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[Thread] The unprecedented reach of HK's national security law has introduced novel legal questions, a key one of which is:
"Can China ignore the dual nationality of those it arrests and detains and refuse consular access for that person?"
"Can China ignore the dual nationality of those it arrests and detains and refuse consular access for that person?"
On dual nationality, the HK police has begun to issue arrest warrants against overseas activists based on violating the NSL (particularly on foreign collusion offenses) including high-profile activists like Nathan Law, Simon Cheng, and Samuel Chu. https://hongkongfp.com/2020/08/01/exile-is-no-protection-from-hong-kong-security-law-says-us-dissident-samuel-chu-wanted-for-secession/
In his comments to the media, Chu states that he is "the first non-Chinese citizen that essentially is being targeted". But while Chu clearly sees himself a US citizen - would China consider him a US or Chinese national and as such, would they need to respect consular relations?
The legal limbo of these dual nationals is also raised by @JustinBongKwan in the context of HK-Canadian dual nationals. Can citizens expect that their Canadian passport would give them extra consular protections if something were to happen to them in HK? https://www.theglobeandmail.com/opinion/article-hong-kongs-chinese-canadians-are-a-community-in-limbo/?cmpid=rss&utm_source=dlvr.it&utm_medium=twitter
The answer, from a legal perspective, seems to be "it depends". The Chinese National Security Law DOES NOT recognize dual nationality for Chinese Nationals (Art 3). So you need to essentially show that you ARE NOT a Chinese National to get consular protection if you are detained.
But for many folks in HK (as well as other Chinese), they may be assigned Chinese Nationality whether they wanted to have it or not. If they were both in HK or China and have at least one Chinese National parent, they are a Chinese National (Art 4).
Also, anyone who is born to at least one Chinese National parent abroad and isn't given foreign nationality at birth (so the jurisdiction does not follow jus soli) is automatically a Chinese National as well (Art 5).
What happens if you had Chinese nationality, but naturalized to another citizenship (e.g. US, Canada, UK - like in the case of Samuel Chu)? Then you will lose your Chinese nationality ONLY if you have "settled abroad" OR "acquired foreign nationality...of your own free will".
According to NSL regulations, "settled abroad" means "living there for an aggregate of two years, with
at least eighteen months consecutive residence". So ostensibly you may need to prove that to get consular assistance or that you have "resettled back" in China/HK.
at least eighteen months consecutive residence". So ostensibly you may need to prove that to get consular assistance or that you have "resettled back" in China/HK.
HK Immigration has interpreted "of your own free will" to require a *positive declaration* that you want to change your nationality.
"If...residents holding foreign passports choose to be treated as foreign nationals...they may make declarations of change of nationality..."
"If...residents holding foreign passports choose to be treated as foreign nationals...they may make declarations of change of nationality..."
So I imagine as more dual nationals get arrested/detained/charged under NSL, there will be many legal fights regarding consular assistance that will orbit around the legal issues I just flagged.
Also there will be little that countries like Canada, Sweden, UK, Australia, India can do to challenge China's interpretation of the National Security Law given their ratification of the 1930 Hague Convention on Certain Questions Relating to the Conflict of Nationality Law.
"Any question as to whether a person possesses the nationality of a particular State shall be determined in accordance with the law of the State."
"A State may not afford diplomatic protection to one of its national against a State whose nationality such person also possesses."
"A State may not afford diplomatic protection to one of its national against a State whose nationality such person also possesses."
For Chu, on legal grounds it seems that he could argue that he has settled abroad and naturalized so he should no longer be considered a Chinese national. However, if that continuous residency were to be broken (e.g. he returned to HK for a period of time), that may be challenged
I'll discuss the use of detention release orders as holding detainees as de facto hostages to shut down domestic and foreign overseas political dissent in a later thread.
