Arrest of Gui Minhai during consular support mission

Published: 08 February 2018 Author: Stefan Talmon

Gui Minhai was one of five Hong Kong-based booksellers who sold banned tabloid books to customers in mainland China. Gui disappeared during a holiday in Thailand in October 2015. Three months later, he reappeared in China declaring on State media that he voluntarily turned himself in to answer to a drink-driving incident in 2003 for which he was sentenced to two years in prison. After his release in October 2017, however, he was not allowed to leave the country. Gui was born in China but later acquired Swedish citizenship.

On 20 January 2018, Gui Minhai was arrested by plain-clothed security officials while travelling with two Swedish diplomats on a train to Beijing where he was to receive medical treatment. In response, Sweden summoned the Chinese ambassador to Stockholm. When asked about the incident on 23 January 2018, the Chinese Foreign Ministry spokesperson suggested that the Swedish diplomats had broken the law, saying:

“China has always provided convenience and facilitation to officials at foreign embassies or consulates in accordance with international laws. At the same time, any foreigners in China, including officials at the foreign embassies or consulates in China, should not violate international law or Chinese law.”

This triggered a sharp response from the Swedish Foreign Minister who said:

“We take a very serious view of the detention […] of Swedish citizen Gui Minhai, with no specific reason being given for the detention, which took place during an ongoing consular support mission. […] Mr Gui Minhai was at the time of his detention in the company of diplomatic staff, who were providing consular assistance to a Swedish citizen in need of medical care. This was perfectly in line with basic international rules giving us the right to provide our citizens with consular support. […]. We expect the immediate release of our fellow citizen, and that he be given the opportunity to meet Swedish diplomatic and medical staff.”

The next day, the European Union issued a statement in support of Sweden’s position. On 26 January 2018, the German embassy in Beijing also issued a statement on Gui Minhai which read:

“We fully support the Swedish and EU stance on the case of the EU citizen Gui Minhai.

We share their concern about his treatment and his detention by Chinese authorities during an ongoing consular support mission.

We expect the Chinese authorities to immediately release Mr Gui and allow him to receive consular and medical support in line with his rights.”

This statement was echoed by the spokesperson of the Federal Foreign Office during the regular government press conference the same day. In an interview published on 6 February 2018, the German ambassador to China revisited the case saying:

“That China’s authorities treat an EU citizen this way is without precedence. There is a widespread fear that these violations of international rules, as well as the refusal to allow consular assistance, could happen to other EU citizens in the future.”

The German ambassador did not specify which “international rules” China allegedly violated. Under the Vienna Convention on Consular Relations, which is binding on China, consular officers may protect in the receiving State the interests of their nationals. They may offer help and assistance to their nationals. In order to facilitate the exercise of these consular functions, consular officers are free to communicate with their nationals and have access to them. Thus, when two Swedish consular officials were accompanying Gui Minhai on his journey to Beijing where he was to have a medical appointment at the Swedish embassy, Sweden exercised its rights under the Vienna Convention on Consular Relations. However, a consular support operation cannot shield a person from criminal investigations or proceedings in the receiving State. Consular assistance does not confer upon the foreign national any right to claim immunities. China was thus equally entitled to arrest a foreign national present in its territory during a consular support operation. Any such arrest, however, must be in line with China’s obligations under international human rights law.

The fact that a person is arrested in the presence of consular officers does not absolve the competent authorities of the receiving State from notifying without delay the consular post of the sending State of the detention, if the person detained so requests. In addition, consular officers shall have the right to visit a national of the sending State who is in prison, custody or detention, to converse and correspond with him and to arrange for his legal representation, unless the detainee expressly opposes such action. The right of consular access, however, does not include a right of the sending State to have the detained national examined by consular medical staff or to provide medical care to the national while in detention. Similarly, detained foreign nationals do not have a right to medical support by their country’s consular medical staff. Thus, the only violation of international rules on consular assistance by China could have been the lack of official notification of Sweden of Gui Minhai’s detention or the denial to consular officers of prompt and regular consular access to him.

The German embassy’s demand “to immediately release Mr. Gui”, irrespective of whether or not there were any criminal investigations or judicial proceedings in China, was interpreted by China as showing a lack of respect for the laws and regulations of the receiving State and an interference in its internal affairs.

Category: Diplomatic and consular protection

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Author

  • Stefan Talmon is Professor of Public Law, Public International Law and European Union Law, and Director at the Institute of Public International Law at the University of Bonn. He is also a Supernumerary Fellow of St. Anne’s College, Oxford, and practices as a Barrister from Twenty Essex, London. He is the editor of GPIL.

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