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31 May 2021

Why Consular Agreements Mean Nothing in China

In March of 2021, authorities in China prevented over a dozen foreign diplomats from attending the trials of Canadian citizens Michael Spavor and Michael Kovrig. Canadian diplomats were included among those barred from attending the trial. Jim Nickel, the Canadian Embassy’s deputy chief of mission told foreign media at the time, “The host government is obliged to give us access under international conventions and our bilateral consular agreement. Despite our repeated requests for access to this trial, we are being denied.”

Michael Spavor and Michael Kovrig’s trial, and their lengthy arbitrary detention, has generated increasing international awareness of China’s wanton disregard of international treaties to which it has agreed. And as part of what has become known as hostage diplomacy this has meant a total disregard for China’s commitments under bi-lateral consular agreements.

A relatively lesser known set of international treaties, consular agreements may not be widely known about instruments but they are in place to establish, among other things, necessary procedural safeguards for detained foreign nationals, regardless of their crimes. Arguably, that China feels so empowered to simply ignore its commitments under this body of international law should come as no surprise in light of its frequent disregard of other fundamental human rights norms. But, acknowledging the denial of accountability under even this most basic set of agreements between sovereign nations should raise particular concern for any “good faith” negotiations with China on other bilateral matters.

While the March trial of the two Canadians generated international attention at the denial of even Canadian diplomatic access, they are sadly far from the only foreign nationals to be detained in China, and to have their rights under consular agreements wholly flaunted by the Chinse Government.

Last week, on 27 May, Australian national Yang Hengjun suffered the same denial of consular access at his trial. Because it is increasingly common in China to deny such consular rights to foreign nationals, Safeguard Defenders has taken a deeper dive into the China-Australia consular agreement to point out exactly where China has broken its diplomatic promises.


China – Australia Consular Agreement

Consular relations between China and Australia are codified in a bilateral treaty and shaped by customary international norms. Violations of these obligations should be treated the same way as the violation of other bilateral treaties and should, arguably, also inform “in good faith” negotiations with the offending country for future bilateral agreements or shape an understanding on relevant fair trial and treatment of foreign nationals in detention.

The 1963 Vienna Convention on Consular Relations establishes international customary norms on such matters. It is the fundamental starting point in consular affairs and the treatment of foreign nationals.

Article 36, Communication and contact with national of the sending State, establishes that consular officers should be free to communicate with their nationals and to have access to them. The receiving State is to notify consular officers of the sending State “without delay,” if a national is arrested or held in custody pending trial or otherwise detained. Consular officers have the right to visit a national of their State who is imprisoned, or otherwise detained, and to arrange for their legal representation.

The 1999 Agreement on Consular Relations Between Australia and the People’s Republic of China (Agreement) builds upon the Vienna Convention in several important ways and should guide all bilateral consular relations between the two countries, especially concerning the detention and trial of foreign nationals.

While the Vienna Convention provides only for the undefined notification of arrest or granting of consular access for detainees “without delay,” the Agreement provides a clear timeline for such notifications that should be observed.

Article 11(1e) of the Agreement clarifies that if an Australian national is arrested or detained in any way, including pending trial, that Chinese authorities are to notify Australian consular officers within three (3) days of the event and that access of the detained national shall be guaranteed within two (2) days of the notification and granted at least once per month thereafter, Article 11(1h).

The Agreement, Article 11(1e) outlines that, Chinese authorities are to inform Australia of the reason for the arrest or detention of one of its nationals.

During trial or other legal proceedings against an Australian national, the Agreement, Article 11(1f), requires that China must provide information on the charges and that a consular officer must be permitted to attend the trial or any other legal proceedings.

The Agreement, Article 11(2), acknowledges that these obligations are to be exercised in conformity with Chinese law but prohibits any justification of national law that would interfere with the “full effect to be given to the purposes for which the rights accorded under this Article are intended.”

The Australian National Interest Analysis of the Agreement stresses, “The Australian Government regards consular access to its citizens arrested or detained overseas as vital to the discharge of its consular rights and duties.”

The analysis continues, noting, “The Australian Government has encountered particular difficulties in securing consular access to arrested or detained Australian citizens who also possess Chinese citizenship. This is because China's nationality law does not recognise dual (or plural) nationality. The Agreement reaffirms that an Australian citizen who enters China on an Australian passport is entitled to consular access and assistance from Australian consular posts.”


Analysis of Yang Hengjun Case: Failure to Comply with Consular Agreement

On 27 May 2021, the Beijing No. 2 Intermediate People’s Court convened the trial against Yang Hengjun on suspected espionage charges. Australia’s Ambassador to China, Graham Fletcher, empowered under the Consular Agreement sought access to the trial. He was arbitrarily denied.

Ambassador Fletcher explained to the media that, “The reason given was because of the pandemic situation but the foreign ministry has also told us it is because it is a national security case therefore we are not permitted to attend it.”

Denial of consular access at trial is a fundamental violation of the China-Australia Consular Agreement, Article 11. That the Ambassador was denied access on the grounds that the case involved Chinese national security furthermore flaunts China’s obligations to the Agreement, which is explicit that there can be no justification under Chinese national law that interfere with the “full effect” of the Agreement, especially concerning consular access at trial.

Australian consular officials in Beijing and Canberra maintain that China has failed to provide "any explanation or evidence for the charges" against Yang Hengjun other than that he is alleged of committing espionage.

While China provided Australia with the reason for Yang Hengjun’s initial arrest, as required under the Agreement, the ongoing failure to provide information on the specific charges constitutes a flagrant violation of its obligations under the Agreement.



In January 2019, Chinese authorities detained Yang Hengjun and initially held him under Residential Surveillance at a Designated Location (RSDL), before transferring him to a detention facility in Beijing. In a message Yang sent from detention, we wrote of his time in RSDL, “The first six months, when I was in RSDL [residential surveillance at a designated location – a type of secret detention], was a really bad period. They tortured me.”

On 7 October 2020, Yang Hengjun’s lawyer, Shang Baojun, was informed that his client had been formally charged. He is accused of espionage, although Chinese officials haven’t even said what country Yang is accused of allegedly providing spy services for.

Australia’s Prime Minister, Scott Morrison, has said it is “absolutely untrue” that Yang was ever acting as a spy for Australia. But it makes it very difficult to craft a defense of espionage charges when the Chinese authorities won’t even divulge this part of the allegation.

Yang reports that since his detention, he has been interrogated over 300 times by multiple authorities for hours at a time. He has maintained his innocence. Australia’s foreign minister has complained that throughout this process, in violation of the Consular Agreement, Yang has had “delayed and limited” access to a lawyer.

(Photo by AP)