• 桂民海|戴啟思
  • 2020-03-12    

 

Gui Minhai

'We know what we are, but not what we may be'. 'Hamlet', Act IV, Scene 5, line 41.

Ophelia, Hamlet's deranged girlfriend, speaks these words shortly before drowning herself because of Hamlet's indifference to her. Her words are evidence of what we would now call an 'identity crisis'.

The case of Gui Minhai, sentenced by a Mainland court to a term of 10 years' imprisonment last week for "providing intelligence overseas", is famously murky. It also discloses an identity problem, a legal one though rather than the product of a high emotional state.

As everyone knows, Gui was a Chinese-born Swedish national and Hong Kong resident who published irreverent books about Mainland figures that were not calculated to endear him to those he wrote about. In 2015 he disappeared from his residence in Pattaya in Thailand and, a few months later, in early 2016, he re-appeared in the Mainland on CCTV confessing to a decade-old hit and run offence.

I want to focus on just one aspect of this case. That is the tussle between the Mainland authorities with Sweden about Gui Minhai's status or legal identity. Is he Swedish or Chinese, or both? Can he, as has been reported, get rid of his Swedish nationality by making a simple declaration that he wishes his Chinese citizenship should be restored?

The simple answer is that if Mainland law says that he can voluntarily renounce foreign citizenship and reacquire Chinese citizenship (he can), then he has been restored to the fold. He has once again all the benefits and privileges-and burdens- of being a Chinese national.

If that is the case, why should the Swedish Government be fussed about the situation? Surely, the relevant Mainland laws provide the answer, and the case is closed?

Changing nationality is not that simple; at least as regards international law.

The crucial legal principle in play here is that states have a legitimate concern to see that the acquisition and loss of nationality are legally predictable and do not give rise to the curse of statelessness.

Statelessness means not having a nationality. If you do not have a nationality, then you cannot claim the protection of a state. If a state does not provide protection, then stateless persons are liable to be shunted around between states and they will find it challenging to settle, work and found a family. It is a wretched condition.

If the rules are not predictable or countries have disorderly or arbitrary systems when implementing them, an individual, through no fault of their own can become stateless, e.g. when German Jews living outside Germany after 1933 and before 1945 had their citizenship status revoked by the Nazis.

Statelessness can affect children because of where they are born or because of the status of a parent. A foreign child born abroad in a state that does not confer citizenship on children born there will be stateless if, as sometimes happens, the mother cannot transmit her nationality to the child under the law of her own country.

It is no surprise then that the right to a nationality and the right no to be deprived arbitrarily of nationality are human rights found in the Universal Declaration of Human Rights.

States recognise that statelessness is both an inconvenience for them and a significant hardship for the person who has no nationality. In 1961 a Convention on the Reduction of Statelessness was made which set out some rules designed to protect persons who might become stateless, including people who have renounced their nationality.

Article 7 of the Convention protects individuals who seek to renounce their nationality from the consequences if, as sometimes happens, the sought-after other nationality does not materialise. It says that the renunciation will not be valid until the new nationality is granted or is guaranteed by the new state.

As a practical solution to the problem of waiting for the new nationality to materialise, some states fix a time limit-six months in the case of the U.K.-at the end of which if there is no new nationality the renunciation is cancelled. In this way, possible statelessness is avoided.

Countries that are parties to the Convention-Sweden is one of them-have a legitimate interest in their citizens' attempts to renounce their citizenship. If the renunciation is not valid for whatever reason, they remain that country's responsibility.

States have, therefore, a legitimate interest in the circumstances surrounding a national's renunciation of their nationality, especially if they are signatories to the Convention on the Reduction of Statelessness.

They will want to know if the individual renouncing nationality has followed all the proper procedures about giving notice to it and clearing up any obligations the national owed to that state at the time of renunciation. Although the right to change nationality is a fundamental human right recognised by the Universal Declaration of Human Rights, exercising that right it is not meant to be like changing a pair of socks.

The tension in Gui Minhai's case would seem to be between Mainland authorities asserting that, as a matter of Chinese law, Gui is now a Chinese under the Mainland's Nationality law. That law expressly recognises a right to apply for restoration of Chinese nationality and the cancellation of foreign nationality. On the other hand, there is Sweden's understandable concern that, under Swedish law, Gui may still be a Swedish national.

Gui's status is important for another reason. Although China is not a party to the Convention on the Reduction of Statelessness and has no concerns under it about nationals renouncing their nationality to reacquire Chinese nationality, it is a party to the Vienna Convention on Consular Relations.

The Vienna Convention on Consular Relations, which applies in the HKSAR, gives foreign consular officials the right of access to foreign nationals detained in foreign jails.

Presumably, the Swedish consular officials in the Mainland will want to visit Gui in prison using the right of access under the Convention to ascertain what is exactly is going on about the claimed renunciation. However, a foreign prisoner can always decline assistance- the Convention provides for this expressly.

There are at least three intriguing scenarios.

One is that the Mainland authorities assert that Gui is a Chinese national now and so the Vienna Convention on Consular Relations does not apply. Accordingly, Swedish consular officials have no rights of access under it.

Another is that Gui rejects the offer of consular assistance without saying he is not entitled to it. This rejection would be a recognition that Gui accepts that he is entitled to consular protection under the Vienna Convention on Consular Relations as a foreign national.

The third scenario is that the offer of consular assistance is made and is accepted. This acceptance means everyone agrees that the Convention applies and Gui is still a Swedish national.

I do not hazard a guess about what will happen. What I am confident about is that the case will continue to be about a question of legal identity. Who is Gui Minhai and what he may be?



About the author

Philip Dykes is a Senior Counsel. He has lived in Hong Kong for over thirty years. His interests are in literature, language, history, fine art and photography. He worked as government lawyer until 1992 and he is now in private practice.


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