Does the Nationality Law, and its Prohibition of Dual Nationality, Need Reform?

• Author: Stephanie Wang
• Pages: 314-334

3 (DO NOT DELETE) 2011-9-2 2:20 PM

314 TSINGHUA CHINA LAW REVIEW [Vol. 3:313

DOES THE NATIONALITY LAW, AND ITS PROHIBITION OF

DUAL NATIONALITY, NEED REFORM. . .

Stephanie Wang

∗

Abstract

To be, or not to be Chinese, that is the question. This question is facing an increasing

number of people as China becomes interconnected with the world. The question arises

because China’s Nationality Law prohibits dual nationality. This essay examines the

purposes of this prohibition and finds that it was a response to specific historical

circumstances, which no longer apply. Furthermore, the Nationality Law is now

increasingly creating problems and anomalies for a rising number of Chinese nationals who

migrate overseas, foreign nationals who migrate to China, and children born to a Chinese

national and a foreign national in China. This essay finds that the Nationality Law’s

prohibition of dual nationality is outdated and needs to be reformed to deal with the needs and

challenges posed by globalization and China’s development. After examining the indirect

recognition of dual nationality in Hong Kong and the nationality law reforms in India, this

essay proposes that China should adopt a pragmatic and flexible form of dual nationality

recognition, which separates nationality and entitlement to sociopolitical rights. This

approach will further China’s national interest by allowing China to assert its sovereignty,

maintain and attract talent, capital and resources, while maintaining its national security and

political stability.

I. INTRODUCTION

Citizenship defines a person’s legal status as a member of a

nation-state. It also affects their sense of identity.1 In recent

years, globalization has caused the international community to adopt

a more accommodating attitude towards dual citizenship.2 National

interest has become the main guiding factor of citizenship law

reform. Yet, China’s Nationality Law3, and its prohibition of dual

nationality, has remained unchanged since its promulgation 30 years

ago. Hence, a review of its continuing relevance to China’s current

situation is needed, particularly given that recent academic attention

in this area seems to be lacking.4

∗ The author is a Solicitor and Barrister of the Supreme Court of Victoria and the High Court of

Australia and practices corporate law at Minter Ellison. She holds a Bachelor of Laws with First Class

Honours and a Bachelor of Commerce from the University of Melbourne.

1 See infra pt. II for definitions. Kim Rubenstein, Citizenship in an Age of Globalisation: The

Cosmopolitan Citizen?, 25 L. IN CONTEXT 88, 89 (2007).

2 See infra pt. V; Tanja Brondsted Sejersen, ‘I Vow to Thee My Countries’ – The Expansion of

Dual Citizenship in the 21st Century, 42 INT’L MIGRATION REV. 523(2008).

3 Guoji fa (国籍法) [Nationality Law] (promulgated by the Standing Comm. Nat’l People’s

Cong., Sept. 10, 1980, effective Sept. 10, 1980) (ChinaLawinfo).

4 With the exception of Hyun Choe, National Identity and Citizenship in the People’s Republic of

China and the Republic of Korea, 19 J. HIST. SOC. 84 (2006); Anshan Li (李安山), Huaqia Huaren

Guoji Wenti Chuyi (

华侨华人国籍问题刍议

) [The Question of Nationality of the Overseas Chinese],

96 GUOJI ZHENGZHI YANJIU (国际政治研究) [STUD. INT’L POL.] 101 (2005). Older articles include

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This essay seeks to identify problems and suggest possible areas

of reform, drawing inspiration from international practice and

citizenship law reforms in other countries. Instead of repeating the

arguments for and against dual citizenship,5 it will look at the

situational and national interest factors that led China to adopt non-

recognition of dual nationality and examine whether current

circumstances still justify adherence to this principle. This essay

argues that the Nationality Law’s prohibition of dual nationality is

outdated and needs to be reformed to deal with the needs and

challenges globalization poses to China’s development.

After defining the key terms in part II, the Nationality Law and

some of its problems concerning the issue of dual nationality will be

examined in part III. Part IV then considers whether China should

recognize dual nationality, in light of its developmental needs,

national interest, and current global position. Part V discusses

international developments in citizenship law, including the trends in

citizenship law reform around the world. This will shed light on

feasible reforms for China’s Nationality Law.

The situation in Hong Kong and India are of particular relevance

to China. Although Hong Kong operates under a separate political

and legal system, it is still under PRC rule.6 Dual citizenship is

indirectly tolerated in Hong Kong, which can serve as an

encouraging starting point for the gradual acceptance of dual

nationality by the PRC’s government. On the other hand, India’s

experience should also be considered because it has the second

largest diaspora in the world, after China’s,7 and shares many of the

same circumstances, interests, and challenges as China. A limited

form of dual citizenship has been in operation in India since 2003.

This may serve as a source of inspiration for China. The essay

closes with recommendations for reforms in developing a flexible

citizenship law that serves China’s national interests.

George Ginsburgs, The 1980 Nationality Law of the People’s Republic of China, 30 AM. J. COMP. L.

459 (1982); Tung-pi Chen, The Nationality Law of the People’s Republic of China and the Overseas

Chinese in Hong Kong, Macau and Southeast Asia, 5 N.Y.L. SCH. J. INT’L & COMP. L. 281 (1984).

5 For general arguments for and against dual citizenship, see generally RANDALL HANSEN &

PATRICK WEIL, DUAL NATIONALITY, SOCIAL RIGHTS AND FEDERAL CITIZENSHIP IN THE U.S. AND

EUROPE (2002); ADRIENNE MILLBANK, SOC. POL. GRP, PARLIAMENT LIBRARY OF AUSTL. , CURRENT

ISSUES BRIEF 5 2000-01, DUAL CITIZENSHIP IN AUSTRALIA, available at

http://www.aph.gov.au/library/pubs/cib/2000-01/01cib05.htm (last visited Mar. 16, 2011).

6 Eric Huang, The Modern Concept of Sovereignty, Statehood and Recognition: A Case Study of

Hong Kong, 16 N.Y. INT’L L. REV. 99, 140 (2003).

7 Jayanta Ro y, Drumming up diaspora dollars, FIN. EXPRESS, Aug. 6, 2007,

http://www.financialexpress.com/news/drumming-up-diaspora-dollars/208739/0 (last visited Mar. 16,

2011).