In an earlier post, we noted several distinctive features of Hyeon Soo Lim’s detention, trial and life sentence. These included the explicit mention of “anti-DPRK religious activities” and charges that appeared to stem from activities outside the country, including statements Lim had made about North Korea. But another non-trivial issue in the case had to do with consular access: North Korea’s restriction of Canada’s access to Lim prior to his trial.
In 2010, Canada moved toward what the Harper government called a “Controlled Engagement Policy” that we characterized as a diplomatic model of partial de-recognition. According to the Canadian Department of Global Affairs website on bilateral relations, “the Canadian Ambassador resident in Seoul is responsible for relations with North Korea, while North Korea's Permanent Representative to the UN in New York is typically responsible for relations with Canada.” But since neither one is currently accredited to the other country, Canada’s consular interests in North Korea are managed by Sweden (as are those of the US) under a so-called “protected powers agreement.” (The section of the US travel advisory dealing with the issue is reproduced below).
In addition to protesting Lim’s sentence—including a public mention of concern by the new Prime Minister himself—a foreign ministry spokeswoman also claimed that North Korea had violated its protected powers agreement. The trial was the first opportunity for Canadian officials to see Lim, despite repeated requests to do so. As a result, Canada judged that this was a “serious violation of the Vienna Convention on Consular Relations and the right of states to have consular access to their citizens.”
But as NKNews picked up, Pyonyang has been particularly vehement in defense of this sentence. Moreover, KCNA coverage argued that the “Vienna Convention on Consular Relations clearly states that the Consulate’s right to contact their citizens is bound to government of the country of residence. Following the North Korean law, we have disapproved of Canadian Consulate’s contact with Lim during the investigative phase on Lim’s crimes. But after the investigation was done, with special permission, North Korea has invited the Canadian delegation to attend Lim’s trial and even allowed the consulate to make contact with Lim later.”
The problem is that North Korea’s interpretation of the relevant section of the relevant section of the Vienna Convention on Consular Relations (1963)—to which North Korea acceded in 1984—appears to be simply wrong on the face of it. Art. 36 of the convention (reproduced in full below) lays out very clearly freedom to communicate, the obligation of the receiving state to inform the sending state “without delay” of arrests, and above all “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.”
The mangled defense contained in the KCNA coverage appears to refer to para. 2 of Article 36, which says that the obligations of the Article “shall be exercised in conformity with the laws and regulations of the receiving State,” apparently North Korea’s claim. But the Article concludes with the proviso “that the said laws and regulations must enable full effect to be given to the purposes for which the rights accorded under this article are intended.” Translation: you cannot interpret the convention as allowing you to do whatever you want to do. Treaties are supposed to bind country’s behavior; that is their very point.
But perhaps that is precisely the message that North Korea now wants to send: “if you are detained on charges—including for things you have said abroad—we will do whatever we want.” Marc Noland and I are hardly on Pyongyang’s invite list, but this seals it for me; what is to prevent critics of the regime—even those who want more engagement—from being arrested and tried without effective consular access?
From the US Travel Advisory on North Korea
Since the United States does not maintain diplomatic or consular relations with the DPRK, the U.S. government has no means to provide normal consular services to U.S. citizens in North Korea. The Embassy of Sweden, the U.S. Protecting Power in the DPRK capital of Pyongyang, provides limited consular services to U.S. citizens traveling in North Korea who are ill, injured, arrested, or who have died while there. The U.S.-DPRK Interim Consular Agreement provides that North Korea will notify the Embassy of Sweden within four days of an arrest or detention of a U.S. citizen and will allow consular visits by the Swedish Embassy within two days after a request is made. However, the DPRK government routinely delays or denies consular access.
From the Vienna Convention on Consular Relations, Article 36
1.With a view to facilitating the exercise of consular functions relating to nationals of the sending State:
(a) consular officers shall be free to communicate with nationals of the sending State and to have access to them. Nationals of the sending State shall have the same freedom with respect to communication with and access to consular officers of the sending State;
(b) if he so requests, the competent authorities of the receiving State shall, without delay, inform the consular post of the sending State if, within its consular district, a national of that State is arrested or committed to prison or to custody pending trial or is detained in any other manner. Any communication addressed to the consular post by the person arrested, in prison, custody or detention shall be forwarded
by the said authorities without delay. The said authorities shall inform the person concerned without delay of his rights under this subparagraph;
(c) 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. They shall also have the right to visit any national of the sending State who is in prison, custody or detention in their district in pursuance of a judgement. Nevertheless, consular officers shall refrain from
taking action on behalf of a national who is in prison, custody or detention if he expressly opposes such action.
2.The rights referred to in paragraph 1 of this article shall be exercised in conformity with the laws and regulations of the receiving State, subject to the proviso, however, that the said laws and regulations must enable full effect to be given to the purposes for which the rights accorded under this article are int