• Dual Nationals-Servants of Two Masters.|戴啟思

  • 發布日期:2021-01-23 11:00
  • Dual Nationals-Servants of Two Masters.|戴啟思

 

Dual Nationals-Servants of Two Masters.

Dual Nationals-Servants of Two Masters.

The debate about whether the Chinese Government should continue to tolerate people holding HKSAR passports and passports of other countries had its unlikely origins over two hundred years ago in a dispute between Great Britain and the USA over sailors.

The trouble started a few years before 1812 with the Royal Navy stopping American merchant vessels on the high seas. After boarding the American ships, Royal Naval officers looked for skilled seafarers born in Great Britain but had settled in the USA and became that new country's citizens.

The naval officers then 'pressed' (conscripted) these handy sailors into service on the Royal Navy ship for service in the war against Napoleon that was going on at the time.

The dispute between became a full-blown war in 1812, with British troops invading the United States. (One of the high points of the conflict-for the British- was the British Army vandalizing the Capitol Building in Washington, in 1814, something not repeated until President Trump incited his supporters to march on that symbol of democracy a week ago.)

These marine kidnappings-as they were seen by the USA-rested on the common law. It treated a person born in a territory under the British monarch's rule as a British subject for life, wherever they lived.

The basis of this legal rule was that the Crown offered the subject life-long protection. The monarch gave protection in return for life-long allegiance. This link between subject and Crown was the product of medieval social and political structures. Those had disappeared with the arrival of nation-states with voting citizens replacing subjects. The duty of allegiance, however, survived.

The dispute over American/British sailors was a precursor to a growing phenomenon: widespread migration. The nineteenth-century saw the first mass-migrations from Europe to the Americas, both South and North. British, German, Scandinavian, Spanish and Italian migrants relocated to new countries with their home nationalities intact. How would tensions arising from competing nationalities be treated when two countries claimed the emigrant or immigrant's allegiance, depending on your point of view?

A point in case is when tensions arose between the USA and Great Britain in the 1860s when former British subjects born in Ireland, but who had become U.S. citizens, returned to Ireland to help nationalists overthrow British rule. The British authorities treated them as British subjects and charged them with treason, an offence that could be committed only by British subjects.

When the USA objected, the British authorities replied by pointing out that at the time of the break with Great Britain in 1776, the Americans adopted the same common law about allegiance. The British simply said that Americans would do the same if the situation were reversed.

Countries began to realize that expatriation-the act of leaving a home country and starting a new life elsewhere-was here to stay. Some countries, notably the USA and Great Britain, concluded treaties that agreed not to make claims upon citizens who had acquired a new nationality. These countries then enacted domestic laws to give effect to these treaties.

The USA passed an Expatriation Act in 1868 after the trouble with its citizens in Ireland. The law expressly recognized a right for citizens to seek a new nationality. The new right was 'indispensable to the enjoyment of the rights of life, liberty, and the pursuit of happiness.'

Although a country like the USA could recognize a right to expatriation for its citizens the thinking was that new immigrants would embrace life in the new country and sever all ties with the 'old' country.

That did not always happen. Many immigrants to the USA did not renounce their original nationality upon acquiring American citizenship and kept up ties with the 'mother country'. What is more, where a country's law provided that a person acquired nationality through descent, not the place of birth, the children of expatriated foreign nationals acquired the nationality of the, usually, male parent.

The USA was the first choice for immigrants from Europe. About 12 million entered the USA between 1870 and 1900 from England, Ireland and Germany. Welcoming immigrants gave way to suspicion and mild hostility. At the beginning of the 20th century, a nativist sentiment arose against 'hyphenated-Americans'.

'Hyphenated-Americans' were immigrants that still identified with their or their parents country of origin by referring to themselves as Irish-Americans, Anglo-Americans or German-Americans. Congress enacted laws that were unfriendly to dual-nationals. A lengthy stay outside the USA could result in the loss of U.S. citizenship as could voting in a foreign election. One law designed to discourage dual nationality was particularly harsh: an American woman who married a foreign citizen forfeited her U.S. nationality, even if she remained in the USA.

Hostility to the idea of dual nationality waned in the second half of the last century in the USA. A 1967 case in the USA decided that dual nationals could not lose their U.S. citizenship other than by deliberate acts to surrender it.

Many other countries that encouraged and benefited from migration did not want nationals who left to make their fortunes abroad to have to sever ties entirely with the mother country if they acquired another nationality. These expatriates were a source of remittances and constituted a pool of overseas talent that might return one day. Such countries either recognized dual citizenship or an overseas variant of citizenship.

About 90 countries now recognize dual citizenship, including Russia, the European Union countries and the USA. China, along with many countries in Asia, does not.

It is a matter for China to decide whether it wishes to continue to turn a blind eye on Hong Kong permanent residents holding foreign passports. There are pros and cons either way.

If the aim is to build a more cohesive nation, only recognizing one nationality is the way to go. However, that does not fit in with the structure of the Basic Law.

Permanent residence is the key to nearly all the Basic Law rights, including the right to vote, not Chinese nationality. The Basic Law confers the right of abode, which means that the HKSAR is your home. If you leave it, the immigration authorities cannot keep you out when you return, if you have the right of abode.

Resident status also carries with it the right to expatriation is in Article 31, which says that residents have freedom of emigration to other countries. It also says that residents have the freedom to enter and leave the region, which is vital for residents that do not have the right of abode.

Removing the right to travel under Article 31 and the even more critical right of abode under Article 24 by stripping Chinese national residents of their nationality upon acquiring a second passport seems harsh in these circumstances.



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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