US and China Consular Confrontations: An International Law Perspective

Introduction

In a move that escalates political tensions between the world’s two largest economies, the United States Government on  July 21, 2020 abruptly ordered China to “cease all operations and events” at its consulate in Houston, Texas within 72 hours. State Department spokesperson Morgan Ortagus said the directive to close China’s consulate was made to protect “American intellectual property and the private information of its citizens”. She added that Washington would not tolerate China’s violations of U.S. sovereignty and intimidation of the US people, just as it had not tolerated China’s unfair trade practices, theft of American jobs, and other egregious behaviour.

Reacting to the closure order, China’s Foreign Ministry Spokesperson Wang Wenbin said at a news briefing “the unilateral closure of China’s consulate general in Houston within a short period of time is an unprecedented escalation of its recent actions against China”.

However, besides its embassy in Washington and of course the consulate in Houston, China also has four other US diplomatic missions in New York, Chicago, San Francisco, and Los Angeles. This article would consider the legality or otherwise of US abrupt order of the closure of Chinese consulate in Houston and the retaliatory move by Beijing ordering the US to close their consulate in Chengdu.  

The Issue

Relations between China and the United States have plummeted in the past year, amid an ongoing trade war, the coronavirus pandemic, and US criticism of China’s human rights abuses in Hong Kong and Xinjiang. The US authorities alleged Chinese consulate officials in Houston of engaging in massive illegal spying and influencing operations against US government officials and Americans. 

In a retaliatory move, On July, 24 2020 China’s ministry of foreign affairs said it had ordered the US consulate in Chengdu, in Sichuan province, to cease all operations. Authorities notified the US of China’s decision to revoke its consent for the consulate to operate, according to a notice on the ministry’s website. It described the measure as a legitimate and necessary response while calling on Washington to reverse its decision.  “The current situation between China and the United States is something China does not want to see, and the responsibility rests entirely with the United States,” it said, urging the US to bring “bilateral relations back on track”

China’s foreign ministry spokesman, Wang Wenbin, said at a press briefing on Friday that the US mission in Chengdu had been singled out because “some personnel were engaged in activities inconsistent with their status that interfered with China’s internal affairs and security interests.” China’s ministry of foreign affairs did not give a deadline for when the consulate must close but the editor of the state-run Global Times newspaper said on Twitter the consulate had been given 72 hours to close

The International Legal Framework

Both China and the US are state parties to the Vienna Convention on Consular Relations 1963 (VCCR). It is clear from the preamble of the convention that customary international law will govern matters not expressly regulated by the provision of the convention. Section II makes provision for the end of consular functions. Specifically, Article 25 of the VCCR only makes provision for termination of the function of member of a consular post. It provides thus:

The functions of a member of a consular post shall come to an end, inter alia:

(a) On notification by the sending State to the receiving State that his functions have come to an end;

(b) On withdrawal of the exequatur;

(c) On notification by the receiving State to the sending State that the receiving State has ceased to consider him as a member of the consular staff.

The provision of Article 25 crystallizes the assertion that the convention does not provide for such circumstances which may provoke receiving and sending state to terminate consular functions. In this instance, the US allegations against Chinese consulates may be a viable ground under the law and subsequently, Beijing’s retaliation may also be an accepted ground under the VCCR as there is no clear provision of the VCCR which makes provision for states ordering closure of this nature.

However, a bilateral consular treaty exists between both countries. This is known as the Consular Convention between the United States of America and the People’s Republic of China. This treaty entered into force September 18, 1980. There is however no clear provision of the treaty which makes provision for termination of consular mission or procedure for closure of consular offices. Article 6 of the treaty only makes provision for the process for terminating functions of members of consulate which is mutatis mutandis with Article 25 VCCR above. 

Consequently, Article 27(1) VCCR is very much relevant in this circumstance, it provides that in the event of the temporary or permanent closure of a consular post, the provisions of subparagraph (a) of paragraph 1 shall apply.  The said subparagraph (a) provides:

the receiving State shall, even in case of armed conflict, respect and protect the consular premises, together with the property of the consular post and the consular archives.  

Also, Article 27(2a) provides that if the sending state has another consular post in the territory of that state, the consular post will be entrusted with the custody of the premises of the closed consular post as well as the property and documents therein. In effect, the premises and documents in the Houston consulate will be handed over to other Chinese Consular posts in the US territory and also the Chengdu consulate will be handed over to other US consular posts in China. Thus, in the event that the consulates in both Houston and Chengdu are closed, this provision will be binding on both countries

Conclusion

The closure of both consular offices would no doubt further deteriorate relationships between China and the US and may rupture existing diplomatic ties. However, the authors submit that the US closure of the Houston consulate and China’s subsequent closure of the Chengdu consulate is not a breach of international law especially any provision of the VCCR or any articles of the Consular Convention between the US and China as there is no provision in the convention and the bilateral treaty which forbids or lays down procedures on closure of consular offices. However, both China and the US are obliged to conform to the provision of Article 27(1) VCCR as it relates to property of the consular posts in closures of this manner. 


Olalekan Olayode is a graduate of the Faculty of Law, Obafemi Awolowo University, Ile Ife, Osun State, Nigeria where he served as the Director of Programmes of the International Law Students Association and the Director of Administration of the Clinic for Human Rights. He can be reached at lekanolayode@gmail.com.

Adekunle Abiona is a graduate of the Faculty of Law, Obafemi Awolowo University, Ile Ife, Osun State, Nigeria where he served as the President of the International Law Students Association. He can be reached at adekunleabiona5@gmail.com.


Image: Reuters

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