China’s Denial of Consular Access to Canadians’ Trials Violates Pact, Expert Says

(Left) Michael Spavor, director of Paektu Cultural Exchange, during a Skype interview in Yanji, China, on March 2, 2017. (Right) Michael Kovrig, an adviser with the International Crisis Group, a Brussels-based NGO, during an interview in Hong Kong on March 28, 2018. AP Photo

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

Michael Kovrig, a former Canadian diplomat, faced a closed-door trial on March 22 on charges of “spying into state secrets and intelligence” for foreign entities, Beijing’s No. 2 Intermediate Court said in a statement. The court said a verdict will be issued at a later date.

Kovrig’s hearing follows the March 19 trial of Michael Spavor, a Canadian businessman who faced similar charges of espionage. The Intermediate People’s Court of Dandong in Liaoning Province, where Spavor was put on trial, also didn’t announce a verdict.

Chinese officials 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.

Jim Nickel, center, the deputy chief of mission for the Canadian Embassy in China, and foreign diplomats gather outside the No. 2 Intermediate People's Court as they arrive to attend former diplomat Michael Kovrig's trial in Beijing, on March 22, 2021. Andy Wong/AP Photo

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 won’t hold, because “any denial of access is a breach of the Agreement.”

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

Clarke also cited Article 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).”

A man holds a sign with photographs of Michael Kovrig and Michael Spavor, who have been detained in China since December 2018, as people gather for a rally in support of Hong Kong democracy, in Vancouver, British Columbia, on Aug. 16, 2020. (The Canadian Press/Darryl Dyck

Kovrig and Spavor have been in custody since December 2018, shortly after Canada arrested Huawei Chief Financial Officer Meng Wanzhou at the behest of the U.S. government.

U.S. officials want Meng extradited on charges of bank fraud and conspiracy, saying 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 March 22, Canadian Foreign Affairs Minister Marc Garneau also condemned the lack of transparency in the Chinese court hearing process for Spavor and Kovrig.

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

Hu, a former executive of the 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 7 to 14 years in prison. He was released in 2018, after serving eight years.

In Hu’s case, rather than outright denial 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, according to Clarke: “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.”

“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.”

Clarke also warned the 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.