By: Prof Charles Kambanda
Kagame junta does not seem to know the law on ” Consul notification and access” under Article 36 of the Treaty on Consul relations:
1. I know of no law or political science/philosophy theory to support the assertion that ” Rwanda government should have full access to Uganda’s detention facilities for Rwanda to (a) be satisfied that there are no Rwandans in Uganda’s prisons or (b) provide have Consul access to Rwandans detained in Uganda”. This position confuses the scope and application of ” Consul notification and access” under Article 36 of the Treaty on Consul Relations.
2. It’s important to note that:
( i) Article 36 ” Consul notification and access” does not create or imply immunity for Rwandans in Uganda. Uganda is is a Sovereign State.
( ii) When a detainee has a dual or multiple citizenship, and the host country is one of the countries to which the detainee is a citizen, Article 36 Consul notification and access does not apply in the strict sense; we resort to political negotiations and/or diplomacy.
Are the Rwandans detainees in Uganda ( some or all) also Ugandans? If ” yes”, we do not proceed with the complex legal and political paradigm of Article 36 .
(iii) Article 36 Consul notiffication and access is not a venue for one government to intervene in another country’s administration of justice system; the Kuijt ( 1997) principle.
(iv) Article 36 is codification of a purported custom among nation ( customary law) yet different countries approach this issue differently. Consequently, absent an additional specific bilateral agreement or Treaty, failure or refusal to abide by Article 36 is not fatal provided that violation of Article 36 does not prejudice the foreign detainee or convict’s case; the Calderon-Media “test”, also applied in Rangel-Gonzales case. Calderon-Media ” test” is rooted in Justice Oda’s legal reasoning in Paraguay v US ( ICJ case).
(v) Because Article 36 presents complex political and legal issues over and above it’s inherent ambiguity on whether it creates a right for the detainee’s country or the detainee himself, it’s a custom among countries to ignore “Consul notiffication and access” under Article 36.
3. Kagame junta also confuses Article 3(1) authorized “spying” with prohibited “spying” under Aricles 41 and 43 of the Viena Convention on Diplomatic Relations. US v Nicagara addressed these issues well . Abuse of Article 3(1) of the Viena Convention on Diplomatic Relations could trigger Article 51 of the United Nations Charter; Rwanda should be aware of Uganda’s Article 51 inherent right.