China’s Denial of Canadian Consular Access to Kovrig, Spavor Trials Violates Consular Agreement, Expert Says

by EditorK

People hold signs calling on Beijing to release Canadian detainees Michael Spavor and Michael Kovrig at the B.C. Supreme Court in Vancouver on March 6, 2019. (Lindsey Wasson/Reuters)

China has closed the trial of the second arbitrarily detained Canadian, while once again denying consular access to the hearing, a move which an expert says is a violation of consular agreement.

Michael Kovrig, a former Canadian diplomat, faced a closed-door trial on Monday on charges of “spying into state secrets and intelligence” for foreign entities, said Beijing’s No. 2 Intermediate Court in a statement. The court said a verdict would be issued at a later date.

Kovrig’s hearing follows the first trial on March 19 for Michael Spavor, a Canadian businessman who also faced similar charges of espionage. The intermediate People’s Court of Dandong in China’s Liaoning Province, where Spavor was tried, also did not announce a verdict.

China has denied Canadian consular access to both trials for the “two Michaels,” which is a clear breach of the Canada-China Consular Agreement, according to Donald Clarke, a Chinese law specialist and law professor at the George Washington University.

In his article published last week, Clarke argued that China’s attempt to justify the exclusion of Canadian diplomats from the hearing on the grounds that state secrets are involved will not hold, because “any denial of access is a breach of the Agreement.”

Clarke supported his argument, quoting the Consular Agreement Art. 8(5), which states, “A consular officer shall be permitted to attend the trial or other legal proceedings.”

Clarke also quoted Art. 8(7) of the Consular Agreement, which states, “A consular officer shall comply with the law of the receiving State in performing the functions provided for in this Article. Nevertheless, the application of the law of the receiving State shall not restrict the implementation of the rights provided for in this Article.”

“It’s extremely important to understand that to say that Art. 8(5) doesn’t apply because there are state secrets involved is like saying it doesn’t apply because it’s Tuesday,” Clarke wrote. “There is simply no exception there, and Art. 8(7) makes it clear that China can’t cite its own law as a justification for restricting the rights under Art. 8(5).”

Kovrig and Spavor have been in custody since December 2018, shortly after Canada arrested Huawei telecom’s chief financial officer Meng Wanzhou at the behest of the U.S. Department of Justice.

U.S. officials want Meng’s extradited on charges of bank fraud and conspiracy. Meng and her company allegedly lied to multiple financial institutions, including HSBC, in an effort to evade American sanctions against Iran.

China has repeatedly denied wrongdoing in its treatment of Kovrig and Spavor, despite allegations that their detention was a hostile retaliation for Meng’s arrest.

In a statement released on Monday, Canadian Foreign Affairs Minister Marc Garneau also condemned the lack of transparency in the Chinese court hearing process for the two Michaels.

Clarke pointed out that China has “successfully tried this same trick” in 2010, in the trial against Australian citizen Stern Hu.

Hu, a former executive of Rio Tinto mining group, was detained by the Chinese regime in July 2009, on charges of stealing commercial secrets and accepting bribes. Hu was sentenced to 10 years in prison, while three of his colleagues were sentenced to between seven to 14 years in prison. Hu was released in 2018, after serving eight years in prison.

In Hu’s case, rather than outright denying of the Australia-China Consular Agreement—which is similar to the Canada-China Agreement in the part of consular access—the Chinese Ministry of Foreign Affairs said at the time that: “Please don’t mix up the relationship between a country’s sovereignty, particularly its judicial sovereignty, and the Chinese-Australian Agreement on Consular Relations. The Chinese-Australian Agreement on Consular Relations must be premised on respect for China’s sovereignty and judicial sovereignty,” Clarke quoted.

“The Australians acquiesced to this clear breach without a fuss, or at least without any public fuss,” Clarke said. “I don’t see any reason for Canada to do the same.”

“At this point it seems a little late in the day to worry about hurting the feelings of the Chinese people,” he said.

Clarke also warned European Union, which is working toward an investment agreement with China, about Beijing’s repeated practices of abandoning international treaties.

“China has already announced that it is not bound by any provisions of the Sino-British Joint Declaration on Hong Kong; now it is repeating through its actions its view that it is not bound by its consular agreements. I guess it’s not bound by any promises,” he said.

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