Next month will mark the 30th anniversary of the signing of the US-China Consular Convention. Three decades of increasingly close Sino-American relations have demonstrated the value of this agreement to both countries in protecting the rights and interests of their nationals when visiting the other country. Although seldom thought of until a problem arises, these protections make a major contribution to bilateral economic, commercial, educational, cultural and sports co-operation by enhancing the personal security of participants.
It is time for China and the US to review their experience with the convention. Presumably both governments have adequate files. Yet my own occasional exposure to consular disputes, as uncompensated adviser to families of Americans detained in China, suggests that, whether at the US embassy in Beijing or the State Department, relevant American officials, who frequently change jobs, could benefit from greater familiarity with 'bureaucratic memory'. Certainly, thorough analysis of both this historical record and the experience of other countries with Chinese consular agreements should precede any bilateral renegotiation of provisions that have proved troublesome.
US nationals should want their government to clarify and strengthen those protections enshrined in Article 35 of the convention, which guarantee each government the rights to communicate with and meet its nationals in the other country. Four important issues, related to criminal justice, need to be considered.
The first concerns the circumstances in which the host government must notify the other government that it has taken one of the latter's nationals into custody. The convention plainly provides that this must be done whenever a national has been 'arrested or placed under any form of detention'.
Nevertheless, in cases allegedly involving 'state secrets', China's Ministry of State Security has sometimes failed to give timely notice that it is holding an American in 'supervised residence', a compulsory measure that can subject a suspect to six months of incommunicado detention in a special ministry facility rather than an ordinary jail. Occasionally, Chinese officials lamely claim that they did not realise the convention requires a detention notice for 'supervised residence'. The convention should be revised to erase any doubts.
Wherever foreign criminal suspects are confined in China, often only a consular visit can interrupt the inevitably coercive interrogation and the torture that sometimes accompanies it. This makes the timing of the detention notice and consular visit a second critical issue. In the convoluted language of the convention, a consul's right to visit, at the latest, 'shall not be refused after two days from the date notification has been sent'. Absent unusual communication problems, the convention allows the host four days to send the notification.
This means that a suspect can be held as long as six days before a consul can meet him and assist him to obtain a lawyer and interpreter, and even this generous limit is frequently violated. Yet, until a consul arrives, the suspect is alone with his interrogators while they seek to extract a quick confession. In order to shorten this dangerous period, it would be desirable to reduce the time limit for notification to 48 hours and to require consular access immediately thereafter.