Marianne von Bloomberg explains:
Despite this fact, Chinese citizens may de facto hold another nationality due to several reasons of which some can be traced back to the implementation of certain Chinese laws and regulations. It is these legal inconsistencies or even conflicts that Jasper Habicht and Eva Lena Richter shed light on in their recent paper “De Facto Dual Nationality in Chinese Law and Practice”.
One
of the most interesting aspects of the paper touches on the strategic utility of regulatory incoherence. In this case, regulatory incoherence arises from the need to pursue policies that at their edges create regulatory gaps that can be used to effectively produce an objective that is not contemplated in the statutes. It is certainty possible to reform the law as the authors point out. But perhaps the more interesting question is whether it makes sense to do so.
I am cross posting the essay below. The original ECLRH post may be accessed HERE. And as a plug for the marvelous work at the European Chinese Law Research Hub: if you have observations, analyses or pieces of research that are not publishable as a paper but should get out there, or want to spread event information, calls for papers or job openings, or have a paper forthcoming- do not hesitate to contact Marianne von Bloomberg.
De Facto Dual Nationality in Chinese Law and Practice
A new paper by Jasper Habicht and Eva Lena Richter
Multiple nationality is a highly controversial subject in international literature and its acceptance varies geographically. Hostility between nation-states has long been regarded as driving the endorsement of a single nationality policy, but as interstate conflicts have decreased, states’ support of multiple nationality has swelled.
While recent policies issued by the Chinese government advocate the return of overseas Chinese and the attraction of skilled foreign nationals to the country, the People’s Republic of China still rejects the recognition of dual nationality and sticks to arguments that root back to the time of the foundation of the People’s Republic. This seems to reflect a conceptualisation of sovereignty as embracing “national strength”, in combination with notions of racial nationalism, which does not allow for a permeable nationality law that ignores factors of ethnicity and descent. Furthermore, the concern for separatism, as well as the legitimacy of the Communist Party, especially with regard to the legal status of the Republic of China may well be fundamental reasons to maintain the status quo. The effective Nationality Law of 1980 does not explicitly prohibit dual nationality but states that dual nationality is “not recognised”.
Despite this fact, Chinese citizens may de facto hold another nationality due to several reasons of which some can be traced back to the implementation of certain Chinese laws and regulations. It is these legal inconsistencies or even conflicts that Jasper Habicht and Eva Lena Richter shed light on in their recent paper “De Facto Dual Nationality in Chinese Law and Practice”.
The authors do this by discussing three main scenarios where de facto dual nationality may occur: children who acquire Chinese and foreign nationality by birth, former Chinese citizens that do not cancel their household registrations upon naturalising elsewhere, and Chinese officials who naturalise but are denied the right to voluntary expatriation by the Chinese state and are treated as single nationals.
By examining these three scenarios, the authors show that legal and procedural inconsistencies of the Chinese state have created inconsistent implementation of nationality law that can lead to cases of de facto dual nationality. Public administration of nationality law and the Chinese household registration (hukou) system are often conflicting and represent another problem area. Finally, China’s diplomatic efforts of holding up single nationality as the sole legal rule contradict the maintenance of control over former citizens, especially officials, who naturalise elsewhere.
The authors point to the discrepancy of the Chinese state to hold up a policy of single nationality while, at the same time, aiming to attract foreign talent to China. The authors suggest that the possibility to apply for permanent residence and the rights attached to it should be enhanced to safeguard participation in social security and political life, especially for foreign children and skilled foreign nationals. Since enhanced cooperation and data sharing between authorities is a declared goal of recent administrative reforms, problems related to the enforcement of the single nationality rule will become ever more obvious.
The authors also argue that the parallel nature of hukou and nationality is problematic and should be addressed as a high priority to solve the continued appearance of de facto dual nationality and related problems. Last but not least, the Chinese state needs to end its practice of claiming authority over former citizens while holding on to a single nationality policy. Such practice not only violates international law, it also results in political uncertainty which may deter foreign individuals and enterprises from investing in China.
The paper De Facto Dual Nationality in Chinese Law and Practice has now been published in China: an International Journal (Volume 20, Number 1).
Jasper Habicht received his PhD in Regional Studies China from the University of Cologne. His main research interests are Chinese immigration legislation, Chinese nationality legislation and Chinese immigration politics. Get in touch with him via LinkedIn.
Eva Lena Richter is a PhD candidate at the Chair of Chinese Legal Culture, University of Cologne and a Research Associate at the University of Oxford “China, Law and Development” project. Her research focuses on skilled migration to China. Get in touch with her via LinkedIn.
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