Microsoft Word - [Formatting V4] Jisen Zhang Note 268-344 268 CHINA’S NATIONALITY LAW [Vol. 35: 268 INTERPRETING “SETTLED ABROAD” IN CHINA’S NATIONALITY LAW: THEORY, PRACTICE, AND PROBLEMS Jisen Zhang* The globalization of China and active international migration across Chinese borders involving millions of people have made understanding Chinese nationality law an issue of tremendous importance. In recent years, disputes concerning nationality have arisen out of undefined terms in the Nationality Law. At the center is the term “settled abroad,” which impacts the nationality of those who acquire foreign nationality and children born to overseas Chinese citizens. The limited literature and legislative interpretations do not clearly define the term. A thorough analysis shows that “settled abroad” means permanent or long-term residency and generally does not scrutinize the length of the actual residence period except for a complete absence of actual residence or undocumented migration. This Note further examines all publicly available cases disputing nationality in the past seven years to understand the judicial practice. It turns out Chinese courts also refrain from inquiring about the actual residence period in non-criminal cases. In recent years, the sensitive nature of the issue and the discoordination among authorities have prevented amendment or interpretation of the nationality law. This Note makes two key contributions to the literature. First, it provides a much-needed interpretation of the key provisions in Nationality Law that have profound implications for millions of people. In contrast to prior literature, which often lacks sufficient comparison and analysis, this Note addresses all prior discussions in a comprehensive way. Second, it is the first work that applies empirical methods to examine how Chinese courts apply the Nationality Law. Finally, this Note also offers several explanations for the stagnant amendment of the Nationality Law from a policy angle. Keywords: China, Nationality law, Statutory interpretation, Settled abroad, Chinese courts, Empirical methods * J.D., Columbia Law School, 2022; LL.B., Peking University, 2019. I am grateful to the editors of the Columbia Journal of Asian Law for their work. I would also like to extend my deep gratitude to Professor Benjamin L. Liebman for his comments and suggestions. All errors remain my own. Comments may be sent to jz2873@columbia.edu. 2022] COLUMBIA JOURNAL OF ASIAN LAW 269 TABLE OF CONTENTS INTRODUCTION ................................................................................................... 271 I. INTERPRETING ARTICLES 5 AND 9 OF THE CHINESE NATIONALITY LAW. 273 A. Theoretical Approaches to the Term “Settled Abroad” ..................... 275 B. Present Interpretations of “Settled Abroad” and Their Shortcomings . ........................................................................................................... 275 1. Three Main Approaches: Between Rights and Facts ..................... 275 2. Borrowing the Definition of “Settled Abroad” from the Overseas Chinese Department Regulations .......................................................... 278 C. Statutory Interpretations of Articles 5 and 9 of Nationality Law ...... 282 1. Textual Interpretation ..................................................................... 282 2. Systematic Interpretation ............................................................... 282 3. Purposive Interpretation: The Dual Legislative Intent ................... 283 4. Comparative and Pragmatic Interpretations ................................... 294 5. Conclusion ..................................................................................... 295 D. Other Issues of Concern ..................................................................... 296 1. When to Examine the Requirement of “Settled Abroad”? ............ 296 2. Which Parent is Required to Satisfy the “Settled Abroad” Element in Article 5? ........................................................................................... 297 3. “Settled Abroad” in Which Country under Article 5? ................... 297 II. HOW CHINESE COURTS DEAL WITH THE INTERPRETATION OF ARTICLES 5 AND 9 OF NATIONALITY LAW ............................................................................. 298 A. Almost No Court Examines the Element of “Settled Abroad” except for Criminal Cases ....................................................................................... 299 B. The Phenomenon of De Facto Dual Nationality is Prevalent ............ 300 C. Parties Take Advantage of the Invisibility of Foreign Nationality to Gain Procedural Advantages ....................................................................... 301 D. Deference to MPS Determination of Nationality .............................. 304 E. No Evident Pattern in Real Estate and Land Cases ........................... 304 F. Criminal Courts Vigorously Scrutinize the “Settled Abroad” Element to Deny Foreign Nationality ........................................................................ 306 III. STAGNANT NATIONALITY LEGISLATION IN THE CHINESE LEGAL SYSTEM ............................................................................................................... 307 A. The History of Chinese Nationality Legislation ................................ 308 B. Hesitation among Top Decision-makers ........................................... 308 C. Institutional Capacity and Systematic Dissonance ............................ 315 CONCLUSION ...................................................................................................... 316 APPENDIX ........................................................................................................... 319 270 CHINA’S NATIONALITY LAW [Vol. 35: 268 Appendix: 81 Publicly Available Cases on Article 9 of Nationality Law (2014-October 2021) ................................................................................... 319 2022] COLUMBIA JOURNAL OF ASIAN LAW 271 INTRODUCTION China adopts the position of denying dual nationality in its 1980 Nationality Law. In particular, the term “settled abroad” controls two key provisions effectuating the denial of dual nationality. Article 5 provides that a child born abroad by Chinese nationals will have Chinese nationality only if one of his Chinese parents is “settled abroad.” Under Article 9, Chinese nationals will lose their Chinese nationality upon voluntary acquisition of foreign nationality only if they are “settled abroad.” Despite the term’s significance, 40 years after the law’s promulgation, “settled abroad” remains undefined in Chinese law. This legal ambiguity has led to much trouble for overseas Chinese, ethnic Chinese with foreign nationality, and foreign nationals in China. This Note seeks to define “settled abroad” precisely and explore the Nationality Law’s problems, as well as their solutions in a broader context. Part I summarizes three main approaches taken by regulators and scholars to interpreting the term “settled abroad”: that it requires a combination of both permanent or long-term resident status and actual residence in foreign countries per a definition in a 2009 regulation enacted by the Overseas Chinese Affairs Office; that it only refers to the right of permanent or long-term residency; or that either of the two is sufficient. A thorough investigation of legislative materials, executive regulations, and scholarly work reveals that the first and third approaches are problematic since they cause more nationality conflicts. As a result, the term “settled abroad” should only require permanent or long-term resident status, subject to limited exceptions such as the absence of actual residence and undocumented migration. Part II conducts an empirical analysis of how Chinese courts deal with the undefined term “settled abroad” and other related nationality law issues, drawing on 81 cases publicly available regarding Article 9 of the Nationality Law. This analysis reveals that most courts do not review the element of “settled abroad” at all in civil and administrative cases. Instead, Chinese courts treat any acquisition of foreign nationality as the basis for loss of Chinese nationality. The phenomenon of concealing the acquisition of foreign nationality and retaining local citizenship proof, coupled with special procedural protections under Chinese law in foreign-related cases, leads to the widespread opportunistic use of concealed foreign nationality to have a second day in courts. Finally, in order to minimize procedural safeguards and consular assistance available to a foreign national, criminal courts, in their attempts to deny foreign nationality in criminal cases, are much more aggressive in scrutinizing the “settled abroad” element. 272 CHINA’S NATIONALITY LAW [Vol. 35: 268 The right to nationality is a fundamental human right widely acknowledged in today’s world.1 The issue is particularly relevant to states with large migrant populations, such as China. According to the International Organization of Migration, China is the fourth largest origin country of international emigrants, with about ten million people born in China living abroad.2 China was the origin of the second largest number of immigrants to the US in 2019, and nearly 3 million Chinese- born emigrants resided in the US at the time.3 Nationality is also a necessary prerequisite for foreign embassies and consulates to provide diplomatic protection or consular assistance to nationals in China.4 Unsurprisingly, the arrest and detention of a Chinese national who has acquired foreign nationality have led to confrontations between Chinese and foreign governments on numerous occasions.5 1 International Covenant on Civil and Political Rights art. 24(3), Dec. 19, 1966, 999 U.N.T.S. 171 (“Every child has the right to acquire a nationality.”); G.A. Res. 217 (III) A, Universal Declaration of Human Rights art. 15 (Dec. 10, 1948) (“Everyone has the right to a nationality. No one shall be arbitrarily deprived of his nationality nor denied the right to change his nationality.”); David Owen, On the Right to Have Nationality Rights: Statelessness, Citizenship and Human Rights, 65 NETH. INT’L L. REV. 299, 302 (2018). 2 International Organization for Migration, World Migration Report 2022, INTERNATIONAL ORGANIZATION FOR MIGRATION (Dec. 1, 2021), at 25, https://publications.iom.int/books/world-migration-report-2022. 3 International Organization for Migration, World Migration Report 2020, INTERNATIONAL ORGANIZATION FOR MIGRATION (Nov. 27, 2019), at 70, 111, https://worldmigrationreport.iom.int/wmr-2020-interactive/. 4 International Law Commission, Draft Articles on Diplomatic Protection with Commentaries, U.N. Doc. A/61/10, at 35, art. 5(1) (2006); Vienna Convention on Consular Relations, Apr. 24, 1963, 596 U.N.T.S. 261, art. 36. 5 CBC News, Family Seeks Whereabouts of Jailed Chinese-Canadian Activist, CBC NEWS (March 28, 2008), https://www.cbc.ca/news/canada/family-seeks- whereabouts-of-jailed-chinese-canadian-activist-1.762192; Andrew Jacobs, Chinese-American Faces Trial in China, NEW YORK TIMES (Dec. 22, 2012), https://www.nytimes.com/2012/12/23/world/asia/chinese-american-faces-trial-in- china-over-business-dispute.html; Perrin Grauer & Joanna Chu, The ‘Forgotten’ Canadians Detained in China, TORONTO STAR (Dec. 28, 2018), https://www.thestar.com/vancouver/2018/12/20/the-forgotten-canadians-detained- in-china.html; John Lyons, American Citizen Says He Was Denied Refuge in Hong Kong’s U.S. Consulate, WASHINGTON STREET JOURNAL (Nov. 8, 2020), https://www.wsj.com/articles/u-s-citizen-says-he-was-turned-away-after- seekingrefugein-u-s-consulate-in-hong-kong-11604863457; Jessie Pang & Greg Torode, Consulates in Hong Kong refused access to dual nationals needing assistance: Canada, REUTERS (Feb. 4, 2021), https://www.reuters.com/article/us- hongkong-security-consulates-idUSKBN2A40UG. A cautionary note is that special rules of nationality law different from the mainland apply to Hong Kong and Macau. 2022] COLUMBIA JOURNAL OF ASIAN LAW 273 Scholars have canvassed the legal and policy considerations of permitting dual nationality in China. 6 Opponents believe that the doubts on political loyalty of overseas Chinese and the ideological tension between China and many other countries remain prominent, and dual nationality was a convenient excuse for exclusion, persecution, and massacre.7 The call for dual nationality, they allege, comes disproportionately from middle-class overseas ethnic Chinese in developed countries, not from the vast majority of overseas ethnic Chinese residing in Southeast Asia. 8 Supporters argue that dual nationality strengthens China’s global influence, conforms to the will of overseas Chinese, catches the trend of transnational mobility, and attracts talent from abroad.9 Given that China is no longer regarded as a spreader of the “Communist Revolution” in the cold war, its relationship with Southeastern Asian countries has vastly improved.10 Nonetheless, the realistic possibility of recognizing dual nationality is remote in the short term and is becoming increasingly unlikely given the recent political atmosphere.11 A clear and stable interpretation of when someone has or does not have Chinese nationality is thus more necessary than ever. I. INTERPRETING ARTICLES 5 AND 9 OF THE CHINESE NATIONALITY LAW 6 For a summary of discussions prior to 2005, see JINGWAI HUAREN GUOJI WENTI TAOLUN JI (境外华人国籍问题讨论辑) [DISCUSSION ON THE NATIONALITY ISSUE OF THE OVERSEAS WITH CHINESE DESCENT] (Zhou Nanjing (周南京) ed., 2005); for more recent discussions, see Stephanie Wang, Does the Nationality Law, and its Prohibition of Dual Nationality, Need Reform…, 3 TSINGHUA CHINA L. REV. 313 (2011); Wei Jingui & Wang Shaolan (卫金桂 & 王绍兰), Zhongguo Gongmin Shuangchong Guoji Wenti Yanjiu Shuping (中国公民双重国籍问题研究述评) [A Review of the Research in Dual Nationality concerning Chinese Citizens], 18 YANGZHOU DAXUE XUEBAO (RENWEN SHEHUI KEXUE BAN) (扬州大学学报(人文 社会科学版)) [J. OF YANGZHOU UNIV. (HUMAN. & SOC. SCI.)] 18 (2014). 7 CHENG XI (程希), ZHONGGUO FANGQI SHUANGCHONG GUOJI DE HUIGU YU FANSI (中国放弃双重国籍的回顾与反思) [THE RETROSPECT AND REFLECTION ON CHINA ABANDONING DUAL NATIONALITY] 192 (2005). 8 Zhou, supra note 6, at 86-87, 122. This Note generally refers to only Chinese nationals as “overseas Chinese” and ethnic Chinese (regardless of their nationality) living in foreign countries as “ethnic Chinese” or “people of Chinese descent.” However, some literature cited by this Note fail to make a clear distinction between the two. 9 Id. 10 Wang, supra note 6; Wei & Wang, supra note 6. 11 Wang Jianchang (汪建昌), Zhongguo Guoji Yimin Zhengce Bianqian Yanjiu: Neizai Luoji yu Weilai Zouxiang (中国国际移民政策变迁研究:内在逻辑与未来走 向) [Changes of International Migration Policy of China: Internal Logic and Future Path], 333 JIANGHAI XUEKAN (江海学刊) [JIANGHAI ACAD. J.] 131, 133 (2021). 274 CHINA’S NATIONALITY LAW [Vol. 35: 268 Since the promulgation of the Nationality Law in 1980, its relatively succinct provisions and the lack of implementation rules or judicial interpretations have created much legal uncertainty and practical inconsistency on its meaning. The most significant puzzle is the meaning of “settled abroad” enshrined in Articles 5 and 9 of Nationality Law. These two articles are the core mechanism through which the non-recognition of dual nationality works. 12 Article 5 provides that “any person born abroad whose parents are both Chinese nationals or one of whose parents is a Chinese national shall have Chinese nationality. But a person whose parents are both Chinese nationals and have both settled abroad, or one of whose parents is a Chinese national and has settled abroad, and who has acquired foreign nationality at birth shall not have Chinese nationality.” Article 9 stipulates that “any Chinese national who has settled abroad and who has been naturalized as a foreign national or has acquired foreign nationality of his own free will shall automatically lose Chinese nationality.” Nationality Law also mentions the term in another context. Under Article 10, “Chinese nationals who meet one of the following conditions may renounce Chinese nationality upon approval of their applications: (1) they are near relatives of foreign nationals; (2) they have settled abroad; or (3) they have other legitimate reasons.” The Note will focus on Articles 5 and 9 as Article 10 has limited legal relevance (see Part I.C.2). It is not clear what situations qualify as “settled abroad” for the purposes of these provisions. 13 Relevant government officials (Bureau of Exit and Entry Administration of the Ministry of Public Security (MPS))14 admitted that understanding of the term “varies in different administrative agencies and in different periods, resulting in inconsistent legal 12 Guoji Fa (国籍法) [Nationality Law] (promulgated by the Nat’l People’s Cong., Sept. 10, 1980, effective Sept. 10, 1980), art. 3 (“The People's Republic of China does not recognize dual nationality for any Chinese national.”). 13 Ma Zhendong (马振东 ) et al., Woguo Guojifa Zhuyao Neirong de Jiedu ji Xiangguan Wenti de Sikao (我国国籍法主要内容的解读及相关问题的思考) [Interpreting the Main Contents and Thoughts about the Relevant Problems of the Nationality Law], 14 SHANGHAI GONGAN GAODENG ZHUANKE XUEXIAO XUEBAO ( 上海公安高等专科学校学报) [J. SHANGHAI PUB. SEC. ACAD.] 63, 64 (2004) (“The term ‘settled abroad’ in the Nationality Law does not have a clear definition and there is no supplementary provisions or judicial interpretation.”). 14 Tabitha Speelman, Establishing the National Immigration Administration: Change and Continuity in China's Immigration Reforms, 123 CHINA PERSP. 7, 7 (2020) (On Apr. 2, 2018, the Chinese government established a new agency dedicated to immigration affairs, the National Immigration Administration (NIA) [国 家移民管理局], attached under the Ministry of Public Security. The Exit and Entry Administration, previously the primary government organ dealing with immigrants, continues to exist as an administrative entity under the NIA.). 2022] COLUMBIA JOURNAL OF ASIAN LAW 275 conclusions.”15 Part I of the Note reviews scholar and practitioner views on the definition of “settled abroad,” conducts a thorough statutory interpretation, and provides a normative solution to the puzzle. A. Theoretical Approaches to the Term “Settled Abroad” In theory, one could explore the meaning of “settlement” or “settled” within the context of immigration law from a variety of perspectives. The term may refer to a de jure right granted by a foreign country to reside for a permanent or prolonged period or, in contrast, the fact that a person has resided somewhere for some time.16 The determination may turn on the individual’s action of residence or the intent to settle. Legislators may also adopt a combination of more than one dimension. If so, a further question is how much weight, if any, should be assigned to each relevant factor. B. Present Interpretations of “Settled Abroad” and Their Shortcomings 1. Three Main Approaches: Between Rights and Facts Early literature shed little light on what “settled abroad” means. 17 More recently, scholars and practitioners have developed three approaches to interpreting the term “settled abroad.” The first approach attributes both right and facts. It can be named “the mixed approach.” The leading authority is the definition of “settled abroad” in the 2009 Notice by the Overseas Chinese Affairs Office of the State Council of Issuing the Provisions on Defining the Identities of 15 Ye Qing & Hu Shanbin (叶氢 & 胡善斌), Woguo Churujing Renyuan Guoji De Queren Yu Jiejue Lujing (我国出入境人员国籍的确认与解决路径) [Confirmation and Resolution Approach to the Nationality of People who Exit and Entry], 203 ZHONGGUO RENMIN GONGAN DAXUE XUEBAO (SHEHUI KEXUE BAN) (中国人民公 安大学学报(社会科学版)) [J. PEOPLE’S PUB. SEC. UNIV. CHINA (SOC. SCI.)] 128, 131 (2020) (The authors who are high ranking MPS officials did not explain how exactly practices differ among regions.); Yin Xinran & Chen Jin (殷欣然 & 陈进), Hou Yiqing Shiqi Shuangchong Guoji Renyuan de Guoji Rending Yi J Sheng Y Shi Weili (后疫情时期双重国籍人员的国籍认定以 J 省 Y 市为例) [Nationality Identification of Dual Nationality Personnel in the Post-epidemic Period Taking the Example of J Province Y City] 36 JIANGSU JINGGUAN XUEYUAN XUEBAO (江苏警官 学院学报) [J. JIANGSU POLICE INST.] 90, 91 (2021). 16 Ye & Hu, supra note 15, at 31 (“Is ‘settled abroad’ an identity or fact?”). 17 JIN MOSHENG & CHAI FABANG (金默生 & 柴发邦 ), ZHONGHUA RENMIN GONGHEGUO GUOJIFA JIANGHUA (中华人民共和国国籍法讲话) [SPEECH ON THE NATIONALITY LAW OF THE PEOPLE’S REPUBLIC OF CHINA] 12 (1981) (interpreting “settled abroad” in Article 5 as “having a residence abroad, in contrast with provisional travel with a residence in China.”). 276 CHINA’S NATIONALITY LAW [Vol. 35: 268 Overseas Chinese, Chinese of Foreign Nationalities, Returned Overseas Chinese and Relatives of Overseas Chinese (2009 Overseas Chinese Identities Provisions or 2009 Provisions).18 Section 1 of the 2009 Provisions defines “overseas Chinese” as Chinese citizens who have “settled down” abroad (“定居在国外”). It further explains that “settled down” means (1) that a Chinese citizen has acquired long-term or permanent residency in the country where he resides and has been residing in the country for two consecutive years, with a cumulative stay in the country of not less than 18 months within the two years. (2) Where a Chinese citizen has not acquired long-term or permanent residency but has acquired the qualification for legal residence for five consecutive years or more in the country, with a cumulative stay in the country of not less than 30 months within the five years, he shall be deemed to be an overseas Chinese. (3) The period of studying abroad (either at the expense of the government or one’s own) or traveling abroad on official duty (including labor dispatch) does not count for the purpose of “settling down.”19 The core character of this approach is to require a combination of both the right of residency and the fact of an actual stay. Also, the right and the fact complement each other in terms of strength, similar to a “sliding scale” between the two. In other words, if the element of residency right is strong (e.g., permanent or long-term residency), the threshold for the factual element will be low (18 months of stay within two years), and vice versa. Scholars tend to support this approach. For example, Liu alleges that “settlement” as a defined term in immigration law generally refers to both the right of abode and the fact of actual residence instead of one of the dual elements. 20 Song argues that “settlement” includes psychological transition and requires both the 18 Id., at 134; Guanyu Jieding Huaqiao Waiji Huaren Guoqiao Qiaojuan Shenfen de Guiding (关于界定华侨外籍华人归侨侨眷身份的规定) [Provisions on Defining the Identities of Overseas Chinese, Chinese of Foreign Nationalities, Returned Overseas Chinese and Relatives of Overseas Chinese] (promulgated by the Overseas Chinese Affairs Office of the St. Council, Apr. 24, 2009, effective Apr. 24, 2009), CLI.4.340139(EN) (Lawinfochina). 19 Provisions on Defining the Identities of Overseas Chinese, Chinese of Foreign Nationalities, Returned Overseas Chinese and Relatives of Overseas Chinese (2009), sec. 1. 20 Liu Guofu (刘国福), Lun Xinxing Kuaguo Liudong Renyuan Guanli Zhidu zhi Guoji he Juliu Xiangjiehe Yuanze (论新型跨国流动人员管理制度之国籍和居留 相结合原则) [On the Principle of the Combination of Nationality and Residence in the New Management System of Transnational Mobile Personnel], 6 GUOJI FAXUE LUNCONG (国际法学论丛) [INT’L L. STUD. SYMP.] 106, 111 (2009) (The comment is directed at the definition of “Huaqiao” (overseas Chinese) in Chinese law). 2022] COLUMBIA JOURNAL OF ASIAN LAW 277 intention and conduct of long-term residence.21 Certain MPS officials also find the definition appealing.22 The second approach focuses its attention on the right of residency only (“the rights approach”). Variations within this bloc share the common view that the right of long-term or permanent residency alone, even uncoupled with any actual residence, constitutes “settled abroad.” For instance, in 1991, the then head of the MPS exit and entry department published an article to explain Article 5 of Nationality Law in People’s Daily (Overseas Edition), in which he equals “settled abroad” with permanent residency.23 The Immigration Department of Hong Kong Special Administrative Region (HKSAR or HK), which is authorized by the Standing Committee of the National People’s Congress (NPC) to implement Chinese nationality law in HKSAR,24 similarly agrees that “under normal circumstances, having permanent resident status in a foreign country (that is, having resided abroad ordinarily and not being subject to any limit of stay) will be treated as having settled abroad.”25 But it is unclear whether permanent 21 Song Xixiang (宋锡祥), Lun Zhongguo Guojifa de Fazhan yu Wanshan Jianlun Gangao Jumin de Guoji Wenti (论中国《国籍法》的发展与完善——兼论港澳居 民的国籍问题) [On the Development and Refinement of China’s Nationality Law and on the Nationality Issue of Hong Kong and Macao Residents], 153 ZHENGZHI YU FALV (政治与法律) [POL. SCI. & L.] 73, 78 (2009). 22 Ye & Hu, supra note 15, at 134. 23 Liu Xin (刘新), Ruhe Queren Zhongguo Liuxue Jinxiu Renyuan zai Guowai Suosheng Zinv de Guoji (如何确认中国留学、进修人员在国外所生子女的国籍) [How to Confirm the Nationality of the Children Born Abroad by Chinese International Students and Those who Are in Advanced Studies], PEOPLE’S DAILY (OVERSEAS EDITION) (Dec. 18, 1991), cited from Weng Li & Zhang Ye (翁里 & 张 烨) , Yifa Jiejue Guoji Chongtu Tujing Xintan (依法解决国籍冲突途径新探) [On Exploring New Ways of Settling Nationality Conflicts in accordance with Law], 34 ZHEJIANG DAXUE XUEBAO (RENWEN SHEHUI KEXUE BAN) (浙江大学学报(人文社 会科学版)) [J. ZHEJIANG UNIV. (HUMAN. & SOC. SCI.)] 87, 88 (2004). 24 Quanguo Renmin Daibiao Dahui Guanyu Zhonghua Renmin Gongheguo Guojifa zai Xianggang Tebie Xingzhengqu Shishi de Jige Wenti de Jieshi (全国人民代表大 会常务委员会关于《中华人民共和国国籍法》在香港特别行政区实施的几个 问题的解释) [Interpretation by the Standing Committee of the National People’s Congress on Some Questions Concerning Implementation of the Nationality Law of the People's Republic of China in the Hong Kong Special Administrative Region] (promulgated by the Standing Comm. Nat’l People’s Cong., May. 15, 1996, effective July 1, 1997), CLI.1.14406(EN) (Lawinfochina), art. 6 (“The Government of the Hong Kong Special Administrative Region is authorized to designate its Immigration Department as the competent authorities for handling nationality applications. The Immigration Department of the Hong Kong Special Administrative Region shall deal with all matters relating to nationality applications in accordance with the Nationality Law of the People’s Republic of China and the provisions mentioned above.”). 25 Immigration Department of the Hong Kong Special Administrative Region, Frequently Asked Questions on Right of Abode Q10, IMMIGRATION DEPARTMENT OF 278 CHINA’S NATIONALITY LAW [Vol. 35: 268 residency is the whole meaning of the term, i.e., whether actual long- term residence in a foreign country is sufficient when the right of permanent residency is missing. A third approach seeks to define “settled abroad” broadly by recognizing both approaches above (“the expansive approach”). The current practice of Shanghai MPS Exit-Entry Administration Bureau recognizes that “settled abroad” is satisfied in either of the following situations: the applicant has obtained a foreign permanent residence permit, or otherwise the person has lived abroad for five consecutive years with a cumulative stay of no less than nine months each year.26 It adopts the basic position of the rights approach and also recognizes the weight of actual residence. Liu has cautioned that since the identification of personal identity under Chinese law (such as marriage certificates and household registration) has always emphasized legal constructions, the mere fact of settlement should not count if not accompanied by the right to settle.27 No uniform application has developed in practice. MPS officials admit that they sometimes follow the 2009 Overseas Chinese Identities Provisions and sometimes do not, causing confusion—the application is almost random.28 The fundamental conflict among the three approaches is how to treat the right and factual attributes of the term “settled abroad.” Moreover, scholars tend to be succinct in reasoning why they consider one approach superior to another. 2. Borrowing the Definition of “Settled Abroad” from the Overseas Chinese Department Regulations Adopting the definition of “settled” from the 2009 Overseas Chinese Identities Provisions seems natural under the presumption of consistency across the legal system. Some scholars take it for granted that the 2009 Provisions definition should apply to the Nationality Law.29 A closer analysis, however, casts doubt on it. THE HONG KONG SPECIAL ADMINISTRATIVE REGION, https://www.immd.gov.hk/eng/faq/faqroa.html (last visited Dec. 13, 2021). 26 MHP Law Firm, Shanghai: Chuguo Dingju Qing Zhuxiao Hukou (上海：出国定 居，请注销户口) [Shanghai: Please Cancel your Household Registration if Settled Abroad], MHP LAW FIRM (Mar. 22, 2018), http://www.junyuelawyer.com/CN/05- 10740.aspx. 27 Liu, supra note 20, at 111. 28 Ye & Hu, supra note 15, at 111. 29 Wang, supra note 6, at 320 (citing the definition of overseas Chinese department without examination of its applicability). 2022] COLUMBIA JOURNAL OF ASIAN LAW 279 Chinese courts have once borrowed a definition from other laws to interpret a term in Nationality Law in the Zhao Shuwei case. The term in question is “state functionaries” whom Article 12 of Nationality Law forbids from renouncing their Chinese nationality.30 The court concluded that the definition of the same term in Criminal Law should apply to Zhao, a manager dispatched to an overseas subsidiary of a state-owned enterprise, for the following reasons. (1) The principle of legal system unity means that absent a clear contrary statement, same terms should have the same meaning and scope across statutes. Criminal Law is the only law in the Chinese legal system that defines “state functionaries” and is presumed to control. (2) In terms of the source of law, both Nationality Law and Criminal Law are laws duly enacted and promulgated by the NPC, the country’s highest authority. (3) In terms of legal effects, Nationality Law and Criminal Law are both basic laws of a country and are at the same level in the legal system (Chapter 2 laws under the Legislation Law). (4) Finally, as to the timing of their enactment, the two laws were formulated around the same time during the Fifth National People’s Congress. Furthermore, in 1997, the Eighth NPC amended Criminal Law to extend the scope of “state functionaries” and kept Nationality Law unchanged. This amendment suggests that the legislative branch intended for Criminal Law definitions to control the interpretation of the same terms in Nationality Law.31 The teachings from Zhao Shuwei and the general principles of statutory interpretation weigh against transplanting the definition of “settled broad” from the Overseas Chinese regulations. First, Nationality Law is a law made by the NPC. It is of the highest level in the Chinese legal system other than the Constitution, while the 2009 Provisions is only a State Council departmental rule. As to legal effect, the 2009 Provisions only concern overseas Chinese affairs. Matters in departmental rules are confined to the enforcement of laws and administrative regulations, decisions, and orders of the State Council.32 30 Nationality Law, art. 12 (“State functionaries and military personnel on active service shall not renounce Chinese nationality.”). 31 Liu Miaoxiang & Zhu Qingping, Zhao Shuwei Nuoyong Gongkuan An Guojia Gongzuo Renyuan Bude Tuichu Zhongguoji (赵书伟挪用公款案——国家工作人 员不得退出中国国籍) [The Case of Zhao Shuwei Embezzling Public Funds: State Functionaries shall not Renounce Chinese Nationality] 4 RENMIN SIFA ANLI (人民 司法·案例) [PEOPLE'S JUDICATURE: CASES] (2014). 32 Lifa Fa (立法法) [Law on Legislation] (promulgated by the Standing Comm. Nat’l People’s Cong., Mar. 15, 2000, effective July 1, 2000, rev’d Mar. 15, 2015), CLI.1.245693(EN) (Lawinfochina), art. 80 (“The matters prescribed in State Council departmental rules shall be matters for the enforcement of laws or the administrative regulations, decisions, and orders of the State Council. Without any basis in laws or the administrative regulations, decisions, and orders of the State Council, state 280 CHINA’S NATIONALITY LAW [Vol. 35: 268 The 2009 Provisions derives its authorization from enforcing Law on the Protection of the Rights and Interests of Returned Overseas Chinese and the Family Members of Overseas Chinese and its implementation measures, not Nationality Law. 33 Even within the scope of overseas Chinese regulations, the definition in 2009 Provisions does not apply to certain areas, such as the mainland college application for Chinese citizens in Hong Kong, Macau, Taiwan and overseas Chinese.34 Third, Criminal Law and Nationality Law were promulgated by the same term of the NPC (with a ten-month interval), and Criminal Law predates Nationality Law. In comparison, the 2009 Provisions came into being twenty-nine years after Nationality Law. The Overseas Chinese department enacted its earliest definition of “overseas Chinese” and “settled” in 1984, four years after the birth of Nationality Law.35 Fourth, the definition of “settled” has experienced repeated turmoil even within the Overseas Chinese regulations. Three Council departmental rules shall not set out any requirements that impair the rights or increase the obligations of citizens, legal persons, and other organizations, nor increase the power or decrease the statutory duties of the department.”). 33 Provisions on Defining the Identities of Overseas Chinese, Chinese of Foreign Nationalities, Returned Overseas Chinese and Relatives of Overseas Chinese (2009), Preamble. 34 2018 Nian Putong Gaoxiao Lianhe Zhaoshou Huaqiao Gangaotai Xuesheng Banfa (2018 年普通高校联合招收华侨港澳台学生办法 ) [Measures for the Joint Admission of Overseas Chinese, Hong Kong, Macau, and Taiwan Students by Regular Institutions of Higher Learning] (promulgated by the Ministry of Education of the St. Council, May. 30, 2018, effective May 30, 2018), http://www.moe.gov.cn/srcsite/A15/moe_776/s3111/201807/t20180704_341994.ht ml (China), art. 1(3) (“The Overseas Chinese candidate and one of his parents must have obtained long-term or permanent residency in the country of residence, and have resided in the country for 2 consecutive years (as of the end of registration), and the cumulative residence within the two years is not less than 18 months. Among them, the candidate himself must have actually stayed in the country of residence for at least 18 months in the 2 years immediately prior to the registration. If the candidate or one of his parents has not obtained long-term or permanent residency in the country of residence, but has obtained legal residence status for more than 5 consecutive years (including 5 years) in the country of residence, and has an accumulative residence in the country of no less than 30 months within 5 years, and the candidate himself has actually stayed in the country of residence for at least 30 months in the 5 years immediately prior to the registration can also participate in the registration.”). 35 Guanyu Huaqiao Guiqiao Huaqiao Xuesheng Guiqiao Xuesheng Qiaojuan Deng Shenfen Jieshi (Shixing) (关于华侨归侨华侨学生归侨学生侨眷等身份解释(试行 )) [Interpretation of the Identities of Overseas Chinese, Returned Overseas Chinese, Overseas Chinese Students, Returned Overseas Chinese Students and Relatives of Overseas Chinese (Trial Implementation)] (promulgated by the Overseas Chinese Affairs Office of the St. Council, June 23, 1984, effective June 23, 1984), art. 2 (“‘Settlement’ means having obtained the residency right of the country one stays in, or having not obtained the residency right of the country one stays but having lived there to earn a living.”) 2022] COLUMBIA JOURNAL OF ASIAN LAW 281 definitions substituted one another in the past forty years. 36 Any further amendment by the Overseas Chinese department will pose the difficult question of whether the interpretation of Nationality Law follows the step. A negative answer would render the whole idea of reference to the Overseas Chinese system futile and lead to fragmentation. On the other hand, catching the speed is even more problematic. It would treat citizens in identical situations oppositely on the pure basis of luck, undermining the seriousness and fairness of law. Fifth, from the perspective of governmentality, the main implementing agencies of Nationality Law are the MPS and the Ministry of Foreign Affairs (MFA).37 Articles 15 and 16 highlight the NPC arrangement to assign all nationality applications to the MPS and MFA. Other administrative agencies, when faced with an issue of nationality, should turn to MPS for help under the nationality ascertainment procedure.38 These two departments also monopoly all interpretations of Nationality Law so far. Nationality Law in its text never mentioned the Overseas Chinese department. Therefore, the Overseas Chinese department is not the competent authority to interpret Nationality Law, and its normative input is of minimum value. In addition, Part I.C.2 below discusses that only Nationality Law uses the term “waiguo” (“ 外国”) while 2009 Provisions use “guowai” (“国外”). Finally, Part I.C.5 will show that any approach mixing the requirement of facts and rights, as 2009 Provisions does, entails a fatal structural problem in 36 Aside from the definition of “settlement” in the regulations in supra note 33 (applicable between 2009 to present) and note 35 (applicable between 1984 to 2005), a third definition applied between 2005 and 2009. See Guanyu Dui Huaqiao Dingyi Zhong Dingju de Jieshi (Shixing) (关于对华侨定义中“定居”的解释(试行)) [Interpretation of “Settled down” in the Definition of “Overseas Chinese” (Trial Implementation)] (promulgated by the Overseas Chinese Affairs Office of the St. Council, Nov. 8, 2005, effective Nov. 8, 2005), arts. 1, 2 (“‘Settlement’ means that Chinese citizens have obtained long-term or permanent residency in their country of residence. Chinese citizens who have not obtained long-term or permanent residency in their country of residence, but have obtained the legal residency status for more than 5 consecutive years (including 5 years) in their country of residence, and have lived abroad, are deemed to have ‘settled’.”). 37 George Ginsburgs, The 1980 Nationality Law of the People’s Republic of China, 30 AM. J. COMP. L. 459, 496 (1982) (“The police apparatus thus exercises a monopoly over these activities (covered under Art. 16), presumably because of their implications for national security.”). 38 Guanyu Guifan Wo Gaodeng Xuexiao Jieshou Guoji Xuesheng Youguan Gongzuo de Tongzhi (关于规范我高等学校接受国际学生有关工作的通知) [Notice on Regulating Admission of International Students in China's Higher Education Institutions] (promulgated by the Ministry of Education of the St. Council, May. 28, 2020, effective Jan. 1, 2021), CLI.4.342958(EN) (Lawinfochina), art. 3 (“A higher education institution shall strictly examine the nationality status and application eligibility of international students applying for admission. If there is any doubt about an applicant’s nationality status, it shall take the initiative to check and confirm the nationality status of the applicant with the exit and entry department of the local public security authority at or above the level of a district city.”). 282 CHINA’S NATIONALITY LAW [Vol. 35: 268 practice. Thus, the interpretation of “settled abroad” in Nationality Law should avoid referencing the 2009 Provisions or any other Overseas Chinese regulations. C. Statutory Interpretations of Articles 5 and 9 of Nationality Law Keeping the flaws of current approaches to the definition of “settled abroad” in mind, Part C presents a complete statutory interpretation. “Settled abroad” should be defined as the right of permanent residency, with two possible exceptions to Article 9: undocumented immigration and absence of actual residence. 1. Textual Interpretation The dictionary definition of “settle” in Chinese is “to reside fixedly somewhere.” The two sample phrases in the dictionary are “to return and settle in China” and “to settle in Beijing.”39 “Abroad” means “a country other than one’s own country.”40 “Zai” is a preposition that describes “time, place, scope or condition.”41 Technically speaking, the existence of “zai” (“定居在外国”) leans towards the status at a given moment, echoing the timing of birth in Article 5; the language in Article 9 without “zai” (“定居外国”) aligns with a status in a continuous period. But the slight difference of “zai” is likely the unintended consequence of linguistic polishing during the legislative process. 42 Such negligible linguistic difference does not legitimize separate definitions for “settled abroad” in Article 5 and Article 9. The meaning of “settled abroad” in the two provisions should be largely the same, if not identical. The legislative intent analysis below will show that the term in the two articles should have the same meaning, with two exceptions made to Article 9. 2. Systematic Interpretation 39 XIANDAI HANYU CIDIAN ( 现 代 汉 语 词 典 ) [CONTEMPORARY CHINESE DICTIONARY (2018)] 308 (Dictionary Editing Office, Institute of Linguistics, Chinese Academy of Social Sciences ed., 7th ed. 2016). 40 Id., at 1343. 41 Id., at 1629. 42 Zhang Chunsheng (张春生), Xinshiqi de Fazhi Jianshe cong Zheli Qibu (新时期 的法制建设从这里起步) [The Building of Legal System of a New Era Started Here], LEGAL DAILY (Dec. 18, 2018), http://www.npc.gov.cn/npc/c30834/201901/1572ef68df5343abb969ca8afca182b4.s html (A group of four members of the Legislative Affairs Commission of the Standing Committee of the National People’s Congress (a linguist, a bridge expert, a mechanical engineering expert, and a sociologist) without legal background worked to incorporate opinions of NPC members and polished the language of the draft of Nationality Law.). 2022] COLUMBIA JOURNAL OF ASIAN LAW 283 The only place other than Articles 5 and 9 where Nationality Law mentions “settled abroad” is Article 10, which provides that Chinese nationals may renounce Chinese nationality upon approval of their applications if they have “settled abroad” (“定居在外国”). Article 10 is not especially helpful in determining the definition of “settled abroad” since all three possible definitions are compatible with its meaning and purpose. Nor could it elucidate the scope and limit of Articles 5 and 9 because it grants a broad discretionary power in contrast with the precision of the automatic mechanisms. The discretionary nature inhibits the argument for a bright line rule. Other laws and judicial interpretations avoid using the exact same term. Nationality Law chooses the term “waiguo” (“外国” or “foreign countries”) while all other laws (including the 2009 Provisions) use “guowai” (“国外” or “outside the country”).43 Nor do these laws and judicial interpretations deal with an issue as fundamental as nationality. 3. Purposive Interpretation: The Dual Legislative Intent (1) Avoiding Dual Nationality One of the most prominent aims and principles of the 1980 Nationality Law is to avoid dual nationality.44 This theme takes up nearly half of the explanation to the draft.45 In the explanation to the draft, legislators quoted “the PRC government’s consistent policy not 43 Guanyu Shiyong Minshi Susongfa de Jieshi (关于适用《民事诉讼法》的解释) [Interpretation on the Application of the Civil Procedure Law] (promulgated by the Supreme People’s Court, Jan. 30, 2015, effective Feb. 4, 2015, rev’d Dec. 29, 2020), CLI.3.242703(EN) (Lawinfochina), arts. 13, 14, 17; Guiqiao Qiaojuan Quanyi Baohu Fa (归侨侨眷权益保护法) [Law on the Protection of the Rights and Interests of Returned Overseas Chinese and the Family Members of Overseas Chinese] (promulgated by the Standing Committee of the National People’s Congress, Sept. 7, 1990, effective Jan. 1, 1991, rev’d Aug. 27, 2009), art. 2. 44 XIANDAI GUOJIFA (现代国籍法 ) [MODERN NATIONALITY LAW] 97-98 (Li Shuangyuan & Jiang Xinmiao (李双元 & 蒋新苗) eds., 2016); Tung-Pi Chen, The Nationality Law of the People’s Republic of China and the Overseas Chinese in Hong Kong, Macao and Southeast Asia, 5 N.Y.L. SCH. J. INT’L & COMP. L. 281, 304 (1984) (“Consistent with this policy, a basic goal of China’s new Nationality Law is to reduce dual nationality of overseas Chinese.”); Wang Keju (王可菊), Zhonghua Renmin Gongheguo Guojifa de Jiben Yuanze (中华人民共和国国籍法的基本原则 ) [The Basic Principles of PRC Nationality Law], 1 ZHONGGUO GUOJIFA NIANKAN ( 中国国际法年刊) [CHINESE Y.B. INT’L LAW] 216, 223 (1982). 45 Wu Xinyu (武新宇), Guanyu Zhonghua Renmin Gongheguo Guojifa Caoan de Shuoming (关于《中华人民共和国国籍法 (草案 )》的说明 ) [Notes on the Nationality Law of the People’s Republic of China (Draft)], NATIONAL PEOPLE’S CONGRESS (Sept. 2, 1980), http://www.npc.gov.cn/wxzl/gongbao/2000- 12/25/content_5001174.htm. 284 CHINA’S NATIONALITY LAW [Vol. 35: 268 to recognize of dual nationality,” as well as Premier Zhou Enlai’s declaration that overseas Chinese automatically lose Chinese nationality if they voluntarily join or acquire foreign nationality.46 The avoidance of dual nationality is embodied in the interaction among Articles 3, 5, and 9 of Nationality Law. Article 3 affirms the basic principle that China does not recognize dual nationality; the second half of Article 5 stipulates under what circumstances a person of Chinese descent would have foreign nationality at birth; Article 9 outlines the automatic loss of Chinese nationality. The 1981 Internal Provisions on the Implementation of the Nationality Law (Trial Draft) (1981 Internal Provisions) issued by the MPS explained that the second half of Article 5 is made to “avoid and resolve the problem of dual nationality of children born to Chinese citizens in foreign countries.”47 Scholars also agree that avoiding dual nationality and conflicts caused by dual nationality is the main purpose of Articles 5 and 9 of the Nationality Law.48 Logic mandates two potential paths for the denial of dual nationality: denying the foreign nationality upon conflict or denying the home nationality upon conflict. The former appears more aggressive. For example, Iran falls within the first category by disregarding the foreign nationality of any Iranian citizen who acquires foreign nationality without going through a series of procedural hurdles.49 As Ginsburgs pointed out, such a bare refusal to recognize the foreign nationality in no way diminishes the validity of such foreign nationality in third countries.50 Chinese nationality law is in the second category with deference to foreign nationality. In other words, Nationality Law adheres to the theme of modesty and respect for foreign nationality laws. (2) Retaining the Chinese Nationality of Those who Have not Settled Abroad and Their Children 46 Id. 47 Guanyu Shishi Guojifa de Neibu Guiding (Shixing Caoan) (关于实施国籍法的 内部规定(试行草案)[81]公发[政]50号) [Internal Provisions on the Implementation of the Nationality Law (Trial Draft)] (promulgated by the Ministry of Public Safety of the St. Council, Apr. 7, 1981, effective Apr. 7, 1981) art. 3. 48 Zhang Chunsheng (张春生 ), Chuli Shuangchong Guoji Wenti de Zhengque Yuanze (处理双重国籍问题的正确原则) [The Correct Principle of Dealing with Dual Nationality Issues], 3 Faxue Zazhi (法学杂志) [L. J.] 40, 40-41 (1980); Ma, supra note 13, at 63. 49 MOHSEN AGHAHOSSEINI, CLAIMS OF DUAL NATIONALS AND THE DEVELOPMENT OF CUSTOMARY INTERNATIONAL LAW: ISSUES BEFORE THE IRAN-UNITED STATES CLAIMS TRIBUNAL 18 (2007) 50 Ginsburgs, supra note 37, at 463. 2022] COLUMBIA JOURNAL OF ASIAN LAW 285 The deference to foreign nationality is not without limit. The limitation on the application of foreign nationality law constitutes the second, less evident but equally important purpose of Nationality Law: to prevent those who have not settled abroad and their children from losing Chinese nationality. This purpose is embodied in the “settled abroad” requirement in Article 5. Some people must fall within the category for the provision to have actual meaning.51 Children born in a foreign country of a Chinese parent not settled in a foreign country will only be recognized as Chinese nationals even if they acquire foreign nationality at the time of birth.52 In the past forty years, in accordance with this line of understanding, a new industry of birthright tourism from China to the US on non-immigrant visas to give birth to children with nationality conflict (commonly referred to as “meibao,” i.e., “American baby”) has prospered. 53 The number of such “American babies” born per year exceeded 10,000 in 2012.54 These children acquire US citizenship at birth under US law and Chinese nationality pursuant to Article 5 of the Nationality Law. When in China, they will only be recognized as Chinese nationals. This situation is called nationality conflict. It is legal under Chinese law for a child with nationality conflict to retain both nationalities and hold multiple passports. To travel to China, they may apply for a special document called “lvxingzheng” (travel permit), which is available to, among others, “non-adult Chinese nationals with special circumstances.”55 They need to disclose whether they have foreign 51 Based on the canon against surplusage. 52 Wang Quan (王全), Fanzui Xianyiren Shuangchong Guoji Wenti de Yingdui yu Chuli Jianping Yu Shanjiang Ji Lili Fenlie Guojie he Zuzhi Lingdao Canjia Kongbu Zuzhi An (犯罪嫌疑人“双重国籍”问题的应对与处理 兼评玉山江·吉力力分 裂国家和组织、领导、参加恐怖组织案) [Study on Dual Nationality of Criminal Suspects from the Perspective of International Law with a Comment on the Case of Yu Shanjiang Ji Lili Case of Dismembering the State and Organizing, Leading and Participating in Terroristic Organization] 135 ZHONGGUO XINGJING XUEYUAN XUEBAO (中国刑警学院学报) [J. CRIM. INVESTIGATION POLICE UNIV. CHINA] 53, 54 (2017). 53 Jennifer Medina, Arriving as Pregnant Tourists, Leaving With American Babies, NEW YORK TIMES (Mar. 28, 2011), https://www.nytimes.com/2011/03/29/us/29babies.html. 54 Tong Mu (童木), Fumei Shengzi Renshu 10nian Fan Baibei Chanyelian Neng Yanghuo Shangwan Ren (赴美生子人数 10 年翻百倍 产业链能养活上万人) [The Number of People Going to the U.S. to Give Birth Has Doubled in 10 years, and the Industry Chain Can Feed Tens of Thousands], SINA.COM (Oct. 14, 2014), http://finance.sina.com.cn/china/20141014/063120529892.shtml. 55 China Consular Services, Huzhao/Lvxingzheng Jianjie (护照/旅行证简介) [A Brief Introduction to Passports/Travel Permits], CHINA CONSULAR SERVICES (Nov. 19, 2021), http://cs.mfa.gov.cn/zggmzhw/hzlxz/hzlvzjj_660526/. 286 CHINA’S NATIONALITY LAW [Vol. 35: 268 nationality or hold foreign passports on the application form. 56 To leave China, they may apply for “churujingtongxingzheng” (exit and entry permit) from MPS branches. Internationally, they are dual nationals; but within the sovereign reach of Chinese territory, they are regarded exclusively as Chinese citizens per the principle of non- recognition of dual nationality enshrined in Article 3 of the Nationality Law. Non-recognition, different from straight prohibition, is a legal fiction without punitive consequences, and its legal force does not extend beyond Chinese territories. The abolishment of the choice of nationality procedure in the 1980s generates uncertainty around whether nationality conflict status may prolong indefinitely. Most children would implicitly lose Chinese nationality upon adulthood (eighteen years old) since only non-adults may apply for travel permits.57 However, if the child has managed to acquire household registration or Chinese passports, or Chinese authorities continue issuing travel permits/exit and entry permits to him after he reaches maturity, the child might remain a de facto dual national permanently. Although the preservation purpose has received less attention from legal scholars, legislative entities and administrative agencies have consistently upheld it. In the 1981 Internal Provisions, the MPS reaffirmed that Article 5 of the Nationality Law is not applicable to “children born in foreign countries by those who are dispatched by the Chinese government or temporarily residing overseas, or returned overseas Chinese and their children who have returned to settle down before the promulgation of the Nationality Law.” 58 MPS agency practice is noteworthy because the MPS led the initial drafting process and serves as one of the two designated implementing agencies. 59 56 Consulate General of the People’s Republic of China in Los Angeles, Zhonghua Renmin Gongheguo Huzhao/Lvxingzheng/Huiguozhengming Shenqingbiao (中华人 民共和国护照/旅行证/回国证明申请表) [Application Forms of Passports/Travel Permits/Certificate of Return of the People’s Republic of China], CONSULATE GENERAL OF THE PEOPLE’S REPUBLIC OF CHINA IN LOS ANGELES (Feb. 9, 2018), http://losangeles.china- consulate.org/chn/lszj/bgxz/hzlxzbg/201802/P020210816045486437540.pdf. 57 Internal Provisions on the Implementation of the Nationality Law (Trial Draft) (1981), art. 2 (Article 4 of Nationality Law has changed the previous practice of allowing children of Chinese and foreign intermarriage within China to “choose his nationality” after reaching the age of 18. Due to the practice of “choice of nationality”, not only the first-generation, but also the second and third generation mixed-race children have to make a “choice of nationality”, which has led to chaos. Therefore, the Nationality Law abolished the “choice of nationality” procedure.). 58 Id., art. 3. 59 Wu, supra note 45 (“The Nationality Law of the People's Republic of China (Draft) was drafted by the Ministry of Public Security in conjunction with relevant 2022] COLUMBIA JOURNAL OF ASIAN LAW 287 Moreover, given the proximity in time (MPS drafted the 1981 Internal Provisions one year after the enactment of Nationality Law), it is not unreasonable to assume that the MPS officials who drafted this internal rule had also participated in the legislation of Nationality Law. The 1991 article in People’s Daily (Overseas Edition) mentioned above further elaborates on this point. “The second half of Article 5 should be understood as follows. For this provision to apply, if both parents are Chinese citizens, they must both have obtained the right of permanent residency in the foreign country, i.e., have settled abroad; if one parent is a Chinese citizen and the other one is a foreign citizen, the Chinese parent must have obtained the right of permanent residency of the foreign country, i.e., have settled abroad. If both or one of the parents is an international student or a student for advanced studies and has not obtained permanent residency, or if only one of the two Chinese parents has obtained permanent residency, the children born abroad will still have Chinese nationality; China does not recognize the foreign passports held by such children.”60 The 1991 article clarified two critical issues: first, it asserted that “settled abroad” is a necessary element of Article 5 for each Chinese parent; second, the government, for the first time, equated “settled abroad” with the right of permanent residency. The 1991 Article does not put an end to the turmoil. In the 2008 Notice of the Ministry of Public Security and the Ministry of Foreign Affairs on Issues Concerned in Implementing Article 5 of the Nationality Law of the People's Republic of China (2008 Notice), after consultation with the Legislative Affairs Commission of the Standing Committee of the NPC, the MPS and MFA superseded the 1991 article and formally announced that Article 5 applies as long as one Chinese parent satisfies the “settled abroad” element. 61 MFA embassies in departments…According to opinions from local governments and other agencies, the Ministry of Public Security and the Legislative Affairs Commission, together with the Ministry of Foreign Affairs, the Overseas Chinese Affairs Office, the Ministry of Civil Affairs and other relevant departments...”). 60 Liu, supra note 23. 61 Gonganbu Waijiaobu Guanyu Zhixing Zhonghua Renmin Gongheguo Guojifa Di Wu Tiao Guiding Youguan Wenti de Tongzhi (公安部、外交部关于执行《中华 人民共和国国籍法》第五条规定有关问题的通知(公境[2008]2204 号)) [Notice 288 CHINA’S NATIONALITY LAW [Vol. 35: 268 foreign countries updated their instruction for travel documents accordingly. 62 The normative document, however, avoided the question of what “settled abroad” means.63 Article 9 of the Nationality Law plays a similar role in preserving Chinese nationality in certain situations. It does not stipulate that all Chinese citizens who have acquired foreign nationality will automatically lose their Chinese nationality. Instead, its application is limited to those who are “settled abroad” and have acquired foreign nationality “out of one’s own will.” In 1990, the MPS and the MFA issued the Notice of the Ministry of Public Security and the Ministry of Foreign Affairs on the Illegal Use of Foreign Passports by Chinese Citizens (1990 Notice).64 . The 1990 Notice stated that “some people have obtained foreign passports before leaving China...most of them hold so-called ‘investment immigration passports’ and some of them buy passports with a high price.” Some countries were highlighted. 65 The 1990 Notice then went on to emphasize that those who hold foreign passports must have sufficient proof that they have residency rights and have actually settled in a foreign country in order to satisfy the test of “settled abroad” in Article of the Ministry of Public Security and the Ministry of Foreign Affairs on Issues Concerned in Implementing Article 5 of the Nationality Law of the People's Republic of China] (promulgated by the Ministry of Public Safety and the Ministry of Foreign Affairs of the St. Council, Sept. 5, 2008, effective Sept. 5, 2008), CLI.4.111214(EN) (Lawinfochina). 62 Embassy of China in the U.S., Zai Meiguo Chusheng de Zhongguo Xuetong Ertong Zhongguo Qianzheng (在美国出生的中国血统儿童中国签证) [Chinese Visas for Children of Chinese Descent Born in the U.S.], EMBASSY OF CHINA IN THE U.S. (Feb. 4, 2015), http://www.china-embassy.org/chn/lszj/qz/t1234521.htm (“According to the Nationality Law of the People’s Republic of China, if both or one of the parents is a Chinese citizen and resides in a foreign country, the person who acquires foreign nationality at birth does not have Chinese nationality and should apply for Chinese visa before traveling to China.”). 63 Notice of the Ministry of Public Security and the Ministry of Foreign Affairs on Issues Concerned in Implementing Article 5 of the Nationality Law of the People’s Republic of China (2008). 64 Gonganbu Waijiaobu Guanyu Zhongguo Gongmin Feifa Chiyong Waiguo Huzhao Youguan Wenti de Tongzhi (公安部、外交部关于中国公民非法持用外国护照有 关问题的通知) [Notice of the Ministry of Public Security and the Ministry of Foreign Affairs on the Illegal Use of Foreign Passports by Chinese Citizens] (promulgated by the Ministry of Public Safety and the Ministry of Foreign Affairs of the St. Council, June 28, 1990, effective June 28, 1990), CLI.4.72427 (Lawinfochina) (“Passports held by such persons include passports of Bolivia, Tonga, Belize, Nicaragua, Ecuador, Peru, Panama, Mauritius, Argentina, Colombia, Thailand, and Philippines. Some countries sell passports in large quantities in order to absorb foreign exchange. In fact, they do not allow licensees to settle in the country, nor do they recognize that they have the nationality of that country.”). 65 Id. 2022] COLUMBIA JOURNAL OF ASIAN LAW 289 9, or else their foreign nationality will not be recognized.66 In 1995, the MPS issued a further notice (now repealed) targeting and restricting the operation of intermediary agencies in China engaged in foreign investment immigration programs.67 The MPS correctly appreciated the overall idea that not everyone who acquires foreign nationality has “settled abroad.” The 1990 Notice, however, is of questionable legality and rationality since it conflates five distinct situations: (1) buying fake passports not recognized by any country; (2) buying authentic passports by illegal means (such as bribing foreign government and diplomatic officials); (3) buying authentic passports legally from a foreign country that “sells” passports with limited functions (for instance, the foreign country does not recognize the passport holder as its citizen or does not allow the passport holder to enter the country); (4) participation in immediate or fast-track investment immigration programs which have a low bar or no bar at all as to actual residence requirement but nonetheless render fully functional nationality; and (5) participation in investment immigration programs which have a substantial bar for actual residence in the foreign country and render fully functional nationality. Passports gained through the first two means are null and void. States may deny the validity of passports with limited functions in the third scenario.68 Though the Chinese government arguably may deny immigration by investment programs without any actual residence in the fourth situation, it is baseless to deny good faith immigration in the fifth situation. The 1990 Notice takes the sweeping position of treating all five cases as illegal purchases of foreign passports.69 The Notice also fails to articulate a specific standard to determine “substantial actual residence,” in contravention of the 66 Id. 67 Gonganbu Guanyu Jianjue Zhizhi Feifa Congshi Zhaolai Yimin Huodong de Tongzhi (公安部关于坚决制止非法从事招徕移民活动的通知( [Notice of the Ministry of Public Security on Resolutely Stopping the Illegal Activities of Solicitation of Immigrants] (promulgated by the Ministry of Public Safety of the St. Council, Aug. 9, 1995, effective Aug. 9, 1995), CLI.4.16886 (Lawinfochina). Although the Ministry of Public Safety has not yet declared it invalid, the Zhejiang Provincial Public Security Department listed it as an abolished normative document in 2020, probably due to the fact that the State Council reformed market admission and the Ministry of Public Safety has accordingly abolished its restriction on private immigration intermediary services. See Gonganbu Guanyu Feizhi Yinsi Churujing Zhongjie Huodong Guanli Banfa de Jueding (公安部关于废止《因私出入境中介 活动管理办法》的决定) [Decision of the Ministry of Public Security to Repeal the Measures for the Administration of the Intermediary Services for Exit and Entry for Private Purposes] (promulgated by the Ministry of Public Safety of the St. Council, Nov. 7, 2018, effective Nov. 10, 2018), CLI.4.326065(EN) (Lawinfochina). 68 ALFRED M. BOLL, MULTIPLE NATIONALITY AND INTERNATIONAL LAW 112 (2007) (discussing the case of Tonga). 69 See Part I.C.5. 290 CHINA’S NATIONALITY LAW [Vol. 35: 268 principle against vagueness and uncertainty. Its prohibition and non- recognition of foreign nationality do not cover most typical investment immigration programs in practice. A final note is that acquisition of nationality based on legitimate connections other than residence, such as blood connection or remedial citizenship, satisfies Article 9. (3) Application The two purposes, that of avoiding dual nationality as well as retaining Chinese nationality for some people, are intertwined. It is imperative to grasp the balance intended by legislators between the two purposes when drawing a bright line rule. The broader historical and international relations background that informs the government’s pronounced distaste for dual nationality is ethnic Chinese in Southeast Asia70—specifically, the government’s goal to eliminate the dual nationality of ethnic Chinese living in Southeast Asia. 71 The 1980 Nationality Law codifies diplomatic efforts towards this end, such as the treaty with Indonesia on dual nationality.72 Under these diplomatic efforts, no overlap of nationality is allowed, and children subject to nationality conflict are required to make a choice at the age of eighteen. The Chinese nationals who have not settled abroad but nonetheless comply with other elements of Article 5 and Article 9 are sources of dual nationality and nationality conflict. The scope of the term “settled abroad” should thus be construed as broadly as possible to minimize dual nationality and nationality conflict. In this regard, “settled abroad” in Article 5 should be defined as permanent or long-term residency only, under the presumption that the foreign government has already made its assessment by issuing residency rights. Xiao criticizes the philosophy of Article 9, arguing that determining the nationality of children of Chinese descent based on foreign laws would run contrary to China’s sovereignty, the “people-oriented” philosophy, and the international society’s respect for children’s right to choose their nationality.73 However, it is the very 70 LIU HUA (刘华), HUAQIAO GUOJI WENTI YU ZHONGGUO GUOJI LIFA (华侨国籍问 题与中国国籍立法) [THE ISSUE OF THE NATIONALITY OF OVERSEAS CHINESE AND CHINESE NATIONALITY LEGISLATION] 174-78 (2004). 71 Chen, supra note 44, at 304. 72 Liu, supra note 70, at 214-15. 73 Xiao Yongping & Guo Minglei (肖永平 & 郭明磊), Quanqiuhua Shiye Xia de Shuangchong Guoji Jianlun Woguo Guojifa de Biduan yu Duice (全球化视野下的 双重国籍兼论我国国籍法的弊端与对策) [Dual Nationality in the Perspective of Globalization and the Shortcomings and Solutions of Chinese Nationality Law], 59 2022] COLUMBIA JOURNAL OF ASIAN LAW 291 intent of the NPC to refer to foreign laws in order to be able to resolve nationality conflicts in the spirit of comity. Requiring residency rights will not unduly deprive the choice of nationality for children born abroad. Parents may deliberately choose to give birth in China or abroad to arrive at the nationality they desire. Moreover, it is impossible to evaluate and discern the intent of parents that give birth in foreign countries. These parents may be married Chinese students pregnant after leaving China, travelers that accidentally give premature birth on ships or flights, or even short-term visitors trapped in a foreign country due to travel restrictions during a pandemic, as the most recent example. The government and courts possess neither the value judgment tools to decide what situations are “worthy” of Chinese nationality nor the practical resources to investigate in detail the circumstances of each individual case. It is burdensome enough to study and scrutinize the permanent residency regimes of nearly two hundred countries, 74 let alone discern the length of actual residence for millions of individuals. Requirements of actual residence are disfavored. The abolishment of the choice of nationality procedure in 1980 (see Part I.C.3(2)) suggests legislative revulsion to mechanisms that require individualized fact-finding. In the same spirit, Articles 5 and 9 are designed to be automatic. Any additional scrutiny concerning the length of actual residence, as found in the 2009 Provisions, will be both legally problematic and practically burdensome. It could also very well lead to public policy and diplomatic failures. Many countries’ investment immigration programs require a residency period shorter than that of the 2009 Provisions, and these programs include more than microstates and tax-evasion heavens. The Golden Visa Program of Portugal, for instance, only requires the applicant to spend seven to fourteen days per year in Portugal for the first five years. 75 Strict implementation of the rules of the 2009 Provisions on actual residence will deny the grant of foreign nationality from many states and lead to undesirable diplomatic confrontation. The same standard should also apply to Article 9 with only minor modifications, if any. When the Nationality Law was drafted (1979-1980), China had just ended decades of draconian exit WUHAN DAXUE XUEBAO ZHEXUE SHEHUI KEXUE BAN (武汉大学学报(哲学社会科 学版)) [WUHAN UNIV. J. (PHIL. & SOC. SCI.)] 581, 586 (2006). 74 Ma, supra note 13, at 64. 75 Christian Henrik Nesheim, Portugal Approves 10,000th Golden Visa, Has Raised Nearly €600,000 Per Application, INVESTMENT MIGRATION INSIDER (Oct. 10, 2021), https://www.imidaily.com/intelligence/portugal-approves-10000th-golden-visa-has- raised-nearly-e600000-per-application/. 292 CHINA’S NATIONALITY LAW [Vol. 35: 268 restrictions, and the budding liberation of private travel was still very limited.76 It was also an era when international migration, cross-border residence, and programs designed by states to attract investment immigrants had been relatively scarce compared to the booming development in these areas more recently.77 There seemed to be no pressing need when the law was first promulgated to elaborate on the meaning of “settled abroad” due to limited cross-border mobility.78 The current global migration is likely well beyond what legislators in 1980 could have imagined. A reasonable inference as to the decision had the legislators been aware of what the world looks like today can be made: they consistently enlarge the permission to migration under the reform and opening-up policy in the past several decades. In accordance with this liberal attitude towards emigration and choice of nationality, “settled abroad” should not be a high threshold. The practice of MPS to equal “investment immigrant programs” with purchasing passports in the 1990s is thus outdated.79 As investment immigration programs boomed in countries across the world, the government was forced to adjust to the reality and forfeited its hostility. Passports acquired through investment immigration are widely recognized in China nowadays. Such hostility would be even more bizarre and double-standard in light of the recent immigration reform by the Chinese government to attract foreign talents.80 76 GUOFU LIU, THE RIGHT TO LEAVE AND RETURN AND CHINESE MIGRATION LAW 139-43 (2007). 77 Madeline Sumption & Kate Hooper, Selling Visas and Citizenship: Policy Questions from the Global Boom of Investor Immigration, MIGRATION POLICY INSTITUTE (Oct. 2014), https://www.migrationpolicy.org/research/selling-visas-and- citizenship-policy-questions-global-boom-investor-immigration. 78 Wang, supra note 6, at 319-20. 79 Notice of the Ministry of Public Security and the Ministry of Foreign Affairs on the Illegal Use of Foreign Passports by Chinese Citizens (1990). It is notable that although the Ministry of Public Safety never declared it invalid, the Zhejiang Provincial Public Safety Department did not include the document in its list of currently effective administrative normative documents. Whether it is an omission or a deliberate move is not clear. See Zhejiangsheng Gonganting Guanyu Baoliu Feizhi Xingzheng Guifanxing Wenjian de Tongzhi (浙江省公安厅关于保留废止 行政规范性文件的通知(浙公办[2015]11 号)) [Notice of Zhejiang Provincial Public Security Department on Retaining and Abolishing Administrative Normative Documents] (promulgated by the Zhejiang Provincial Public Security Department, Jan. 16, 2015, effective Jan. 16, 2015), CLI.12.1181173 (Lawinfochina); Zhejiangsheng Gonganting Guanyu Baoliu he Feizhi Xingzheng Guifanxing Wenjian de Tongzhi (浙江省公安厅关于保留和废止行政规范性文件的通知(浙 公通字[2020]48 号)) [Notice of Zhejiang Provincial Public Security Department on Retaining and Abolishing Administrative Normative Documents] (promulgated by the Zhejiang Provincial Public Security Department, Nov. 6, 2020, effective Nov. 6, 2020), CLI.12.4117208 (Lawinfochina). 80 CENTER FOR CHINA AND GLOBALIZATION, ZHONGGUO GUOJI YIMIN BAOGAO 2018 ( 中国国际移民报告 (2018)) [ANNUAL REPORT ON CHINESE INTERNATIONAL MIGRATION (2018)] 60-66 (Wang Huiyao & Miao Lv (王辉耀 & 苗绿) eds., 2018). 2022] COLUMBIA JOURNAL OF ASIAN LAW 293 Therefore, ideally, there should not be any examination of actual residence under Article 9. Two possible exceptions may apply. The first exception is an extremely rare circumstance under Article 9 where the Chinese national acquired a foreign passport without ever setting foot in the foreign country. Under the fourth situation discussed in the 1990 Notice, the investment by immigration programs with a low bar should satisfy “settled abroad” as long as they require any actual residence. Only those citizenship by investment programs with no requirement of actual residence, or where the intermediary step of legal permanent residence is eliminated or reduced to bureaucratic box-ticking,81 can form the basis of non-recognition of the foreign nationality under Article 9. If legislators do intend to effect the exception, they should issue a list of specified countries that fail the test of actual residence, similar to the list of investment immigration programs with high-risk to the integrity of CRS developed by the Organization for Economic Co-operation and Development (OECD).82 The best practice, as the European Commission did,83 is to compose the list based on studies of immigration programs. A country-specific clear rule is increasingly essential as the number of formalized citizenship by investment programs rose recently, with Chinese nationals among their top applicants.84 Otherwise, it is predictable that arbitrary denial of foreign nationality at the convenience of authorities will erode the stability of nationality and serve as a new type of arbitrage for de facto dual nationality. Those who fail to automatically lose Chinese nationality under this exception may still apply for renunciation of Chinese nationality pursuant to Article 10 of Nationality Law. The second possible exception concerns undocumented Chinese emigrants to other countries. Without this exception, if these undocumented emigrants legally acquire foreign nationality granted by the foreign country and are not recognized as “settled abroad” because they do not possess the right of residence, they will not lose Chinese nationality and end up being de facto dual nationals. The menace here is that other Chinese emigrants may complain that the disparate treatment constitutes an unjust penalty to them. Additional scrutiny to 81 Kristin Surak, Marketizing Sovereign Prerogatives: How to Sell Citizenship, 62 EUR. J. SOCIO. 275, 278 (2021). 82 OECD, Residence/Citizenship by Investment Schemes, OECD, https://www.oecd.org/tax/automatic-exchange/crs-implementation-and- assistance/residence-citizenship-by-investment/ (last visited Jan. 21, 2022). 83 European Commission, Investor Citizenship Schemes: Information on the follow- up of the Commission’s Report on Investor Citizenship and Residence Schemes in the European Union, EUROPEAN COMMISSION, https://ec.europa.eu/info/investor- citizenship-schemes_en (last visited Feb. 8, 2022). 84 Surak, supra note 81, at 278-79. 294 CHINA’S NATIONALITY LAW [Vol. 35: 268 prevent dual nationality arising out of these two exceptions has a moral basis that multiple citizenship by naturalization or by investment is ethnically less legitimate than by birth.85 The solution for their need to connect with China is residency rights and visa privileges. 4. Comparative and Pragmatic Interpretations The essence of nationality law remains primarily an internal matter of sovereignty, and it is for each State to decide, in accordance with its national law, the question of who its nationals are. 86 No universal legal mechanism has so far emerged to regulate nationality.87 Few limits under international law, not even genuine links between the person and the country, apply to the validity of the naturalization process.88 The nationality law and policies of each country, including China’s non-recognition of dual nationality, only take effect within its sovereign domain. For example, a Chinese citizen may very well acquire a Grenadian passport and use it to travel to a third country. The third country’s law will determine its treatment of that traveler. Chinese nationality law does not have either legal or factual relevance under this situation. Moreover, the denial of foreign nationality and the retention of Chinese nationality under Chinese law, combined with the recognition of the foreign passport by other countries, serve as a form of jurisdictional arbitrage along the lines of “Chinese nationality home, foreign nationality abroad”—de facto dual nationality. The experience of de facto dual nationality in China illustrates how idealistic legal rules and defective implementation create perverse incentives. In the 1980s, Chen optimistically predicted that due to the introduction of Nationality Law, dual nationals would “be minimal in 85 ANA TANASOCA, THE ETHICS OF MULTIPLE CITIZENSHIP 10-11 (2018). 86 Draft Articles on Diplomatic Protection with Commentaries, supra note 4, at 31, art. 4, comment 2; Nottebohm (Liechtenstein v. Guatemala), 1955 I.C.J. 4, ¶ 20 (Apr. 6). 87 Kim Rubenstein & Niamh Lenagh-Maguire, More or Less Secure? Nationality Questions, Deportation and Dual Nationality, in NATIONALITY AND STATELESSNESS UNDER INTERNATIONAL LAW 264, 266 (Alice Edwards & Laura van Waas eds., 2014). 88 Oliver Dörr, Nationality, Max Planck Encyclopedia of Public International Law [MPEPIL] (2019), ¶ 18; Draft Articles on Diplomatic Protection with Commentaries, supra note 4, at 32-34, art. 4, comment 5-6. For limits of international law on nationality, see Anne Peters, Extraterritorial Naturalizations: Between the Human Right to Nationality, State Sovereignty and Fair Principles of Jurisdiction, 53 GERMAN Y.B. INT’L L. 623 (2010); Kay Hailbronner, Nationality in Public International Law and European Law, in ACQUISITION AND LOSS OF NATIONALITY VOLUME I: COMPARATIVE ANALYSES: POLICIES AND TRENDS IN 15 EUROPEAN COUNTRIES 35-104 (Rainer Bauböck et al. eds. 2006); PAUL WEIS, NATIONALITY AND STATELESSNESS IN INTERNATIONAL LAW (1979). 2022] COLUMBIA JOURNAL OF ASIAN LAW 295 actual numbers and fade in a short time.”89 But without sharing of information between countries and government entities within a country, it is common for those who have acquired foreign nationality to hide the fact that they have automatically lost Chinese nationality.90 Today, both de facto dual nationality (by concealing the fact that one has automatically lost his Chinese nationality under Article 9) and legally recognized nationality conflict are prevalent.91 A Member of the Standing Committee of the NPC even acknowledged de facto dual nationality as a widespread legal quandary.92 From January 2013 to June 2014, a total of 1.06 million (former) Chinese citizens who concealed their loss of Chinese nationality by holding on to their local citizenship proof after acquiring foreign nationality were required by the MPS to delete their Chinese household registration.93 Learning from the lesson, the definition of “settled abroad” must carry due consideration of its enforceability in the real world. Scrutinization of actual residence is impractical under current circumstances and should be avoided. 5. Conclusion Textual and systematic interpretations do not suggest the necessity of examining actual residence. Legislative intent and pragmatic concerns call for an automatic system that avoids individualized fact-finding. The conclusion is that “settled abroad” should be defined as permanent or long-term residency rights, with two possible exceptions of purchasing passports without actual stay and undocumented immigration under Article 9. The author hopes that this 89 Chen, supra note 44, at 310 (1984) (“Although dual nationality may still occur under the provisions of the 1980 Nationality Law, the impact of dual nationals is expected to be negligible in terms of actual numbers. The largest population of dual nationals arose as a consequence of the traditional Chinese policy prohibiting denaturalization without consent…The remnants of this population, however, will fade in a short time because of the current PRC Government's strong dilution of the ‘blood’ connection.”). 90 Elaine Lynn-Ee Ho, Caught Between Two Worlds: Mainland Chinese Return Migration, Hukou Considerations and the Citizenship Dilemma, 15 CITIZENSHIP STUD. 643, 653 (2011). 91 PETER J SPIRO, AT HOME IN TWO COUNTRIES: THE PAST AND FUTURE OF DUAL CITIZENSHIP 92 (2016). 92 Zou Wei & Yu Xiaojie (邹伟 & 余晓洁), Renda Changweihui Weiyuan: Woguo Cunzai Jiaoda Shuliang Shuangchong Guoji (人大常委会委员 我国存在较大数量 双重国籍) [Member of the Standing Committee of the National People's Congress: There Is A Large Number of Dual Nationality Instances in China], SINA.COM (Apr. 26, 2012), http://news.sina.com.cn/c/2012-04-26/225324336292.shtml. 93 Yin Pumin, Debating Dual Citizenship: Experts Call for Dual Citizenship to Attract Talents Despite Tightened Single Citizenship Management, BEIJING REV. (September 25, 2014), http://www.bjreview.com.cn/nation/txt/2014- 09/25/content_642355.htm. 296 CHINA’S NATIONALITY LAW [Vol. 35: 268 definition will be helpful to legislators, regulators, diplomatic officials, and individuals who encounter the question of Chinese nationality. D. Other Issues of Concern 1. When to Examine the Requirement of “Settled Abroad”? In addition to the meaning of “settled abroad,” another confusing issue is the choice of time for “settlement.” In the era of globalization, people could frequently switch between staying in their home country (if there is one) and traveling to foreign countries. The answer to Article 5 is relatively simple since the clause sets the timing “at birth.” The parents must be settled abroad at the moment the child is born. But the language seems less clear for Article 9. Three timing is available: any period before the person acquires foreign nationality; the moment the person acquires foreign nationality; any period after the person acquires foreign nationality. The second and third timing would defeat the essence of Article 9 and render it subject to abuse. Since sovereign states may and often times grant their nationality to a person located in a foreign country through their consulate institutions abroad, any Chinese citizen can circumvent Article 9 as long as he returns to China and then acquires foreign nationality during his stay in China. Chinese courts, in one of its rare cases that dealt with nationality law, also affirmed this conclusion.94 In Cha Yang, the plaintiff Cha Yang returned to China after studying and working in the US for about thirteen years (from 1986 to 1999), during which he acquired permanent residency in 1992. He applied for the Chinese bar in August 2001 and was sworn in as a US citizen at the US embassy in Beijing in September 2001, while his bar application was pending. The Ministry of Justice granted his bar application in December.95 The plaintiff argues that he acquired US citizenship after returning to Beijing to settle instead of during his settlement in the US, so Article 9 does not apply. Both the Higher People’s Court in Beijing and MPS Exit and Entry Administration rejected this argument.96 Any settlement prior to the acquisition of foreign nationality counts toward “settled abroad” under Article 9. 94 Cha Yang yu Zhonghua Renmin Gongheguo Sifabu Ershen Xingzheng Panjueshu (查扬与中华人民共和国司法部二审行政判决书(2017)京行终 4196 号) [Second Instance Administrative Judgment on Cha Yang v. The Ministry of Justice] (Beijing Higher People’s Court July 10, 2018). 95 Id. The fact that Cha Yang naturalized to be a US citizen while his bar application is pending and practiced as a Chinese lawyer thereafter served as the basis for termination of his bar. 96 Id. 2022] COLUMBIA JOURNAL OF ASIAN LAW 297 2. Which Parent is Required to Satisfy the “Settled Abroad” Element in Article 5? Ye and Hu pointed out that the presently controlling interpretation that only one Chinese parent needs to be “settled abroad” for the second half of Article 5 to apply leads to a logical dilemma.97 For instance, if both parents are Chinese citizens and only one of them has “settled abroad”, their children born abroad with foreign nationality at birth lose their Chinese nationality; if one parent is a foreign citizen and the other one is a Chinese citizen not settled abroad, their children born abroad keep their Chinese nationality.98 The overall nexus of the former situation (jus sanguinis connection) is stronger than that of the latter, but the endowment of nationality mandates otherwise. In line with the skepticism, the 1991 article, as aforementioned, requires that both parents have obtained the right of permanent residency if they are both Chinese citizens for Article 5 to apply. It is no longer good law. Per the 2008 Notice, only one Chinese parent needs to “settle abroad” under Article 5. 3. “Settled Abroad” in Which Country under Article 5? Another tricky question is which country the person needs to be “settled abroad” in order for Article 5 to apply. It is possible that a Chinese citizen with permanent residency right of country A and married to a citizen of country A gives birth to a child in country B, and the child acquires the nationality of country B at birth. If only the permanent residency of birthplace is required, in extreme circumstances, the child might have triple nationalities: jus soli nationality of country B, jus sanguinis nationality of country A, and Chinese nationality. Some MFA consulates, such as the Chinese Consulate in Los Angeles, thus determine that a Chinese citizen with permanent residency rights of any country satisfies “settled abroad.”99 Other consulates remain ambiguous on this issue. But extending the scope of settled countries will not help solve the problem since a country rarely provides in their nationality law that a child born by a permanent resident in a third country acquires its nationality at birth. In the example above, the blood connection derives from the other parent who is a national of country A, irrespective of whether the Chinese citizen has permanent residency rights in country A. It is also 97 Ye & Hu, supra note 15, at 132. 98 Id. 99 Consulate General of China in Los Angeles, Lvxing Zheng Banfa Huanfa Bufa (旅 行证：颁发、换发、补发) [Travel Permits: Issuance, Renewal, and Replacement], CONSULATE GENERAL OF CHINA IN LOS ANGELES (Sept. 30, 2021), http://losangeles.china- consulate.org/lszj/hzlxz/hzlxzxz/202106/t20210601_9021825.htm. 298 CHINA’S NATIONALITY LAW [Vol. 35: 268 convenient to conceal a third country’s permanent residency by replacing passports. Only the country of permanent residence facilitates the policy aim to harmonize the relationship between China and that country.100 Therefore, rules like the Los Angeles Consulate one fail to address any issue. The only permanent residency that matters should be that of the country whose nationality is acquired at birth. II. HOW CHINESE COURTS DEAL WITH THE INTERPRETATION OF ARTICLES 5 AND 9 OF NATIONALITY LAW Between 2014 and October 2021, 81 cases concerning whether one has automatically lost Chinese nationality under Article 9 of Nationality Law were publicly available on the “China Court Judgments” (中国裁判文书网) website run by the Supreme People’s Court.101 No case directly concerns Article 5 of Nationality Law. The following observations are made through an analysis of these cases (for a complete list of the Dataset Cases, see Appendix). Table 1: Distribution of the Dataset Cases by Type Type Number Criminal 1 Administrative 9 Civil 70 Other (Enforcement) 1 Table 2: Distribution of the Dataset Cases regarding Article 9 of Nationality Law over Year Year Number of Cases 2014 11 2015 3 2016 5 100 Gao Lin (高琳), Lun Zhongguo Guoji de Zidong Sangshi (论中国国籍的自动丧 失) [On the Automatic Loss of Chinese Nationality], in supra note 6, DISCUSSION ON THE NATIONALITY ISSUE OF THE OVERSEAS WITH CHINESE DESCENT 138, 146. 101 Multiple proceedings (such as appeals and retrials) of a case are consolidated as one case pursuant to the latest procedural development. Two cases (Appendix No. 34) involve the enforcement of a civil judgment and are counted as civil cases. 2022] COLUMBIA JOURNAL OF ASIAN LAW 299 2017 13 2018 18 2019 13 2020 11 2021 7 Table 3: Distribution of the Dataset Cases regarding Article 9 of Nationality Law over Court Recognition of Chinese or Foreign Nationality Foreign Nationality Recognized Chinese Nationality Recognized Unclear Which Nationality Was Recognized Total Number of Cases 70 6 5 81 A. Almost No Court Examines the Element of “Settled Abroad” except for Criminal Cases The observation that Chinese courts preclude the loss of Chinese nationality if the individual had not settled abroad when he acquired a foreign nationality102 is largely accurate in criminal cases but more nuanced in civil and administrative cases. In almost all non- criminal cases, Chinese courts refuse to treat “settled abroad” as a substantive element in deciding nationality, especially when no party explicitly claims so (Table 3). Only in five out of eighty non-criminal cases did courts analyze the issue of “settled abroad,” and none of them brought forward a clear standard. Among the five decisions, three civil cases mentioned that the person had spent time in a foreign country (Appendix No. 16, 42, 57). One case held that in light of the principle of single nationality, there is a presumption of Article 9 application when a Chinese citizen acquires foreign nationality and no need to examine actual residence (Appendix No. 64). One case implicitly refused to scrutinize the element (Appendix No. 74). As a result, Chinese courts in 86% (70 out of 81) of the cases recognized the foreign nationality and the loss of Chinese nationality. This finding corresponds to the conclusion in Part I that examination of actual residence is unwarranted. 102 Jasper Habicht & Eva Lena Richter, De Facto Dual Nationality in Chinese Law and Practice, 20 CHINA: AN INT’L J. 24, 39 (2022). 300 CHINA’S NATIONALITY LAW [Vol. 35: 268 B. The Phenomenon of De Facto Dual Nationality is Prevalent Since the data of MPS Household Registration Department and MPS Exit and Entry Department are not connected, Chinese citizens who acquire foreign nationality and lose Chinese nationality pursuant to Article 9 may continue holding their local citizenship in the mainland, i.e. identification cards (“ 身 份 证 ”) and household registration (“户口”).103 They could enjoy de facto dual nationality unless authorities discover it since the local, sub-national state provides the majority of important social and economic citizenship rights based on household registration. 104 Important social and economic rights are attached to these local citizenship proof, and they could enjoy de facto dual nationality. There are currently no central- level laws or regulations that explicitly require those who have acquired foreign nationality to cancel their Chinese local citizenship proof. A policy statement from the MPS in 2003 requires cancellation of household registration if the person “settles abroad,” which remains undefined.105 Only several local governments, such as Shanghai, have enacted regulations clarifying that the cancellation extends to those who have joined foreign nationality.106 Nor is there specification as to whether this policy applies to identification cards. Table 4 Those Who Lost Chinese Nationality Under Article 9 but Retained Local Citizenship Proof (Identification Cards, Household Registration, or Chinese Passports) 103 Ye & Hu, supra note 15, at 131. 104 Samantha A. Vortherms, Hukou as a Case of Multi-Level Citizenship, in THE ROUTLEDGE HANDBOOK OF CHINESE CITIZENSHIP (Zhonghua Guo ed.) 132, 132 (2022). 105 The Ministry of Public Safety, Gonganbu Sanshixiang Bianmin Limin Cuoshi (公 安部三十项便民利民措施) [Thirty Measures to Convenient and Benefit the People by the MPS], MPS (Aug. 7, 2003), http://www.scio.gov.cn/xwfbh/xwbfbh/wqfbh/2003/0807/Document/327359/32735 9.htm. 106 Guanyu Yu Yinfa Shanghaishi Changzhu Hukou Guanli Guiding de Tongzhi (关 于印发《上海市常住户口管理规定》的通知) [Notice on Issuing Shanghai Regulation on the Management of Regular Household Registrations], SHANGHAI MPS (Apr. 4, 2018), https://gaj.sh.gov.cn/shga/wzXxfbGj/detail?pa=110ef360e4374a41a9bee739534e6c 5c54d01a372ab513b4df6374b968980fd4. 2022] COLUMBIA JOURNAL OF ASIAN LAW 301 Retained Local Chinese Citizenship Proof No Retained Local Chinese Citizenship Proof Unclear Whether Local Chinese Citizenship Proof Was Retained Cases in which the Court Determined that the Person Has Lost Chinese Nationality 54 13 3 70 In more than two-thirds (77%) of the cases in which the court determined that the person has lost Chinese nationality under Article 9, the person still retains his identification card, household registration, or Chinese passport (Table 4). As discussed in Part II.A, most courts pierce the veil of local citizenship proof and recognize foreign nationality. The Supreme Court, in a jurisdictional appeal, ruled that “the failure to de-register resident identity card of the People’s Republic of China in a timely fashion after a former Chinese citizen acquires foreign nationality is an administrative management issue and does not affect the determination of his status as a foreign national.”107 C. Parties Take Advantage of the Invisibility of Foreign Nationality to Gain Procedural Advantages A side effect of the general availability of local citizenship proof and de facto dual nationality is the weaponization of procedural tools based on foreign nationality. Chinese civil procedure law requires special procedures and, in many circumstances, assigns a higher-level court to hear foreign-related cases. 108 Failure to abide by these requirements may serve as grounds for appeal or retrial.109 Parties with de facto dual nationality often bring the initial lawsuit as Chinese citizens and disclose their foreign nationality at a later stage to switch to a higher court or to appeal (Appendix No. 10, 20, 26, 51, 68, 71). The “second chance” strategy is a double-edged sword. Once learning the fact that one party is a foreign national, the other party who lost the 107 Guangxi Lihui Touzi Youxian Gongsi Wang Yuanye Hezi Hezuo Kaifa Fangdichan Hetong Jiufen Ershen Minshi Caidingshu (广西丽汇投资有限公司王 原野合资合作开发房地产合同纠纷二审民事裁定书(2017)最高法民辖终 125 号 ) [Second Instance Civil Award of Guangxi Lihui Investment Co., Ltd. v. Wang Yuanye on Joint Venture and Cooperative Development of Real Estate Contract Dispute] (Supreme People’s Court Apr. 27, 2017). 108 Zuigao Renmin Fayuan Guanyu Shewai Minshangshi Anjian Susong Guanxia Ruogan Wenti de Guiding (最高人民法院关于涉外民商事案件诉讼管辖若干问 题的规定) [Provisions of the Supreme People's Court on Some Issues Concerning the Jurisdiction of Civil and Commercial Cases Involving Foreign Elements] (promulgated by the Supreme People’s Court, Feb. 25, 2002, effective Mar. 1, 2002, rev’d Dec. 29, 2020), CLI.3.349779 (Lawinfochina). 109 Id. 302 CHINA’S NATIONALITY LAW [Vol. 35: 268 initial trial or preferred other jurisdictions may also use the foreign identity of the opposing party to challenge the decision (Appendix No. 12, 15). Out of the 70 cases where the person has lost Chinese nationality by acquiring foreign nationality (as in Table 4), in 39 cases, the person initially appeared in the court as a Chinese citizen, and a later disclosure of foreign nationality resulted in procedural consequences. Here we define “procedural consequence” as one of the following situations: cases moved to a different court, retrial, annulment of judgment, appeal granted. MPS officials also observe that people with de facto dual nationality disguise as ordinary Chinese citizens but use their foreign nationality in court to take advantage of prolonged foreign-related court proceedings. 110 Unsurprisingly, the percentage of civil cases that went beyond first instance is irregularly high compared to the overall percentage. According to SPC, in 2019, the ratio between closed first instance civil cases and all other civil cases (including appeal and adjudication supervision) is around 6.2:1.111 In our civil Dataset Cases, the ratio is 1.1:1, with 34 out of 70 cases going beyond first instance. A final note is that although parties do show an opportunistic tendency in dealing with their foreign nationality in courts, not all parties and courts are fully aware of the procedural consequences. In some cases, the parties did not allege their due procedural objections, and the court did not use its inherent power to transfer jurisdiction even after realizing that it was dealing with a foreign-related case.112 110 Cai Zhiyong & Li Jun (蔡志勇 & 李君), Dui Yiju Guowai Huaren Guoji Rending Wenti de Sikao (对移居国外华人国籍认定问题的思考 ) [A Reflection of Identification of the Nationality of People of Chinese Descent Moving Overseas], 17 SHANGHAI GONGAN GAODENG ZHUANKE XUEXIAO XUEBAO (上海公安高等专科学 校学报) [J. SHANGHAI POLICE COLL.] 64, 65 (2007). 111 Supreme People’s Court, 2019nian Quanguo Fayuan Sifa Tongji Gongbao (2019 年全国法院司法统计公报) [2019 National Court Judicial Statistics Bulletin], SUPREME PEOPLE’S COURT, http://gongbao.court.gov.cn/Details/fcadfe71e8d5a54acd8f840f768e65.html (last visited Dec. 22, 2021) (In 2019, Chinese courts closed 16,177,373 civil cases. Among them, 13,929,634 cases are first instance). The author only discusses civil cases here since the distinction between first instance and other proceedings of administrative cases is more nuanced. 112 Wu Caidi yu Ng Kam Chol Ng Kum Lan Gongyouquan Queren Jiufen Minshi Ershen Caidingshu (吴彩娣与 Ng Kam Chol Ng Kum Lan 共有权确认纠纷一案民 事二审裁定书(2020)粤 04 民终 1165 号) [Second Instance Civil Award of Wu Caidi v. Ng Kam Chol & Ng Kum Lan on Confirmation of Co-Ownership] (Zhuhai Intermediate People’s Court May 11, 2020). 2022] COLUMBIA JOURNAL OF ASIAN LAW 303 Table 5.1 Distribution of cases regarding Article 9 of Nationality Law over the foreign country at issue Country Number of Cases United States 17 Australia 16 South Korea 11 Canada 7 Japan 5 Germany 3 Ireland 2 Italy 2 New Zealand 2 Singapore 2 Thailand 2 Unspecified 2 Vanuatu 2 Argentina 1 The Commonwealth of Dominica 1 Kazakhstan 1 Saint Kitts and Nevis 1 South Africa 1 Suriname 1 United Kingdom 1 Venezuela 1 Table 5.2 Distribution of cases regarding Article 9 of Nationality Law over Provinces with Five or More Cases 304 CHINA’S NATIONALITY LAW [Vol. 35: 268 Provincial Level Administrative Units Number of Cases Beijing 15 Guangdong 14 Jilin 9 Liaoning 7 Shanghai 7 Zhejiang 5 Guangxi Zhuang Autonomous Region 5 D. Deference to MPS Determination of Nationality In three cases, Chinese courts inquired the MPS about one party’s nationality and complied with the MPS conclusion in all three scenarios (Appendix No. 58, 60, 74). 113 On the one hand, this is understandable since the key facts related to the Article 9 issue are only accessible through international travel and identification records exclusive to MPS. But as other cases show, exit and entry records are enough in many circumstances for the court to do its own fact-finding (Appendix 27, 57, 77). So, the lack of expertise with respect to nationality law, saving of time and effort, and “passing the buck” mentality also contributed to this deference. E. No Evident Pattern in Real Estate and Land Cases There are nine cases involving disputes of urban housing ownership, and courts determined that Article 9 applies in all of them and recognized foreign nationality. There are ten cases on rural real estate disputes (including rural land contracting, distribution of 113 Shi Kewei yu Cixi Shi Minzhengju Xingzheng Dengji Ershen Xingzheng Panjue Shu (施可为与慈溪市民政局行政登记二审行政判决书(2014)浙甬行终字第 51 号 ) [Shi Kewei and Cixi Civil Affairs Bureau on Administrative Registration] (Ningbo Intermediate People’s Court Aug. 6, 2015); Kuang Fuzhi Shouhui Tanwu Feifa Chiyou Sicang Qiangzhi Danyao Ershen Xingshi Panjue Shu (邝辅之受贿贪 污非法持有私藏枪支弹药二审刑事判决书(2017)粤 07 刑终 72 号) [Kuang Fuzhi Case on Taking Bribes, Embezzling, and Illegal Possession of Guns and Ammunition] (Jiangmen Intermediate People’s Court May 9, 2017); Zhou Xiaojun Cai Xu yu Shanghai Huangpu Zhidi Jituan Youxian Gongsi Fangwu Zulin Hetong Jiufen Yishen Minshi Panjue Shu (周筱军蔡旭与上海黄浦置地集团有限公司房 屋租赁合同纠纷一审民事判决书(2017)沪 0101民初 3460号) [Zhou Xiaojun, Cai Xu and Shanghai Huangpu Land Group Co., Ltd. Housing Lease Contract Dispute] (Shanghai Huangpu District People’s Court Mar. 21, 2018). 2022] COLUMBIA JOURNAL OF ASIAN LAW 305 compensation for the requisition of contracted land, and rural property purchase contracts). The number of cases available is too small for any conclusion, although some courts appear reluctant to recognize foreign nationality in rural cases. Thus, the author only lists several notable cases. Where one party presents online conversation evidence to show that the person acknowledged foreign nationality, the court found it inconclusive and turned to household registration records. 114 In another case, one party claimed that he returned to China in 2015, but his Chinese passport is blank without any exit and entry record attached. The court refused to explore the situation further.115 One outlier case held that a former villager who acquired foreign nationality under a fake name and identity could also retain his Chinese nationality and receive compensation for requisition of contracted rural land.116 It is premature to summarize these cases into a pattern. A preliminary conjecture may be that courts are under greater pressure in rural land cases to “quiet down people and bring about peace” (“息事宁人”). Still, the judgment would inevitably enrage the other party. Most of the rural cases are between a “villager group” (a grassroots self-government unit) that distributes the compensation from the government and an individual who joined foreign nationality, so the influence from the government is limited. Another reason may be the acquiescent gesture towards widespread emigration to South Korea in Northeastern rural areas.117 114 Jiang Jingzi Jin Dongzhen Deng yu Yuan Shunyu Deng Nongcun Fangwu Maimai Hetong Jiufen Yishen Minshi Panjueshu (姜景子金东镇等与元顺玉等农 村房屋买卖合同纠纷一审民事判决书(2018)黑 0110 民初 6724 号) [Jiang Jingzi & Jin Dongzhen et al. v. Yuan Shunyu on Rural Real Housing Purchasing Agreement] (Heilongjiang Province Harbin Xiangfang District People’s Court Nov. 28, 2018). 115 Cui Zaiyou Gao Taizhu Deng yu Cui Zaifeng Liwenyong Deng Nongcun Tudi Chengbao Hetong Jiufen Yishen Minshi Panjueshu (崔载佑高泰洙等与崔在峰李 文勇等农村土地承包合同纠纷一审民事判决书(2018)吉 0202民初 1039号) [Cui Zaiyou & Gao Taishu et al. v. Cui Zaifeng & Li Wenyong et al. on Rural Land Contracting Agreement] (Jinlin Province Jilin Changyi District People’s Court May 30, 2019) 116 Yanji Shi Xiaoying Zhen Minzhu Cun Erzu yu Xu Shanshu Chengbaodi Zhengshou Buchang Feiyong Fenpei Jiufen Zaishen Shencha Minshi Caidingshu ( 延吉市小营镇民主村二组与许善淑承包地征收补偿费用分配纠纷再审审查民 事裁定书 (2017)吉民申 3580 号) [Yanji City Xiaoying Town Minzhu Village Second Group v. Xu Shanshu on Compensation for Requisition of Contracted Rural Land] (Jilin Higher People’s Court Nov. 7, 2017). 117 JEONGWON BOURDAIS PARK, IDENTITY, POLICY, AND PROSPERITY: BORDER NATIONALITY OF THE KOREAN DIASPORA AND REGIONAL DEVELOPMENT IN NORTHEAST CHINA 122 (2018). 306 CHINA’S NATIONALITY LAW [Vol. 35: 268 F. Criminal Courts Vigorously Scrutinize the “Settled Abroad” Element to Deny Foreign Nationality In the only criminal decision from the Dataset Cases, the court denied the foreign nationality of a state functionary that acquired US nationality in 2007 (Appendix No. 58).118 The defendant Kuang Fuzhi was once ordered by the Chinese Consulate in Vancouver to give back his Chinese passport during his stay abroad. He argued that this is a clear indication that the Chinese government believed that he had lost Chinese nationality. The court determined that the defendant had not actually settled in the US without further explanation. A strong parallel of tactics can be detected between other criminal cases not posted on the China Court Judgments website and Kuang Fuzhi. In Yuan Mingang and Bao Huamin Defrauding Exit Documents (1999), Liu Leaking State Secrets (2009), and Huang Shumin Corruption (2021), the criminal court insisted that the defendant has Chinese nationality despite the fact that they have acquired foreign nationality.119 In Yuan Mingang, the court relied on the 1990 Notice and denied foreign nationality acquired through investment immigration, although the defendant spent about four years in the foreign country before acquiring his passport. The Liu court acknowledged that Liu acquired permanent residency but refrained from examining the length of actual residence. It instead turned to Article 12 that the defendant was a state functionary when he acquired foreign nationality. The Huang Shumin case exhibits the most astonishing twisting of the law: it compared the length of time the defendant spent in China (21 years) and Australia (8 years) and concluded the defendant had not settled abroad. This line of reasoning is unsustainable under any theory. Writing on the theories of this 118 Kuang Fuzhi Shouhui Tanwu Feifa Chiyou Sicang Qiangzhi Danyao Ershen Xingshi Panjue Shu (邝辅之受贿贪污非法持有私藏枪支弹药二审刑事判决书 (2017)粤 07 刑终 72 号) [Kuang Fuzhi Case on Taking Bribes, Embezzling, and Illegal Possession of Guns and Ammunition] (Jiangmen Intermediate People’s Court May 9, 2017). 119 Zhang Huawei et al., Liumou Xielou Guojia Mimi An Xiemi Fanzui Zhuyi Nengfou Yin Baomi Xieyi er Shige (刘某泄露国家秘密案 泄密犯罪主体能否因保密协议 而适格) [The Case on Liu Leaking State Secrets: Can the Subject of Leaking Crimes be Eligible Due to Confidentiality Agreements], 17 RENMIN JIANCHA (人民检察) [PEOPLE’S PROCURATORIAL] 37, 37 (2009); Yuan Mingang Bao Huamin Pianqu Chujing Zhengjian An (袁闵钢、包华敏骗取出境证件案) [The Case on Yuan Mingang & Bao Huamin Fraudulently Acquiring Exit Documents] 9 XINGSHI SHENPAN CANKAO (刑事审判参考 ) [REFERENCE TO CRIMINAL TRIAL] No. 69 (1999); Huang Shumin Tanwu Zui Xingshi Shenpan Jiandu Xingshi Tongzhi Shu ( 黄淑敏贪污罪刑事审判监督刑事通知书(2021)新 02 刑申 10 号) [Huang Shumin Embezzlement Case] (Xinjiang Uygur Autonomous Region Karamay Intermediate People’s Court Nov. 29, 2021) CLI.C.402870097 (Lawinfochina). 2022] COLUMBIA JOURNAL OF ASIAN LAW 307 subject, two Shanghai judges have commented that in criminal trials, courts should “tend to recognize Chinese nationality” when in doubt because these cases relate to national unity, social stability, the safety of the people, and judicial sovereignty.120 At this point, there has not been any publicized criminal case where the criminal court supported the finding of foreign nationality for those who were once Chinese citizens when it was a contentious issue during trial. Criminal courts divert sharply from their civil and administrative peers and apply all kinds of tactics to deny foreign nationality. The impetus is presumably to be immune from consular assistance by foreign diplomats, stricter and longer proceedings for foreign defendants, and public pressure. The arbitrariness warned above do contaminate the criminal courts. III. STAGNANT NATIONALITY LEGISLATION IN THE CHINESE LEGAL SYSTEM This part situates the problem of nationality law within the modern Chinese legal system. More than forty years after the promulgation of the Nationality Law, the law remains unchanged, and the key terms and origins of disputes remain ambiguous under Chinese law. Conflicting considerations from the top, inability and indolence at the mid-level, and lasting traditional concepts of blood connection all contribute to the problem. The author does not attempt a comprehensive analysis of the issue of dual nationality or the structure and governance of immigration in China. It focuses on one specific question instead: why has China avoided amending the 1980 Nationality Law, consciously or unconsciously, for the past forty years? Legislative inaction or the lack of top-level motivation does not by itself explain the chaotic landscape of Chinese nationality law. Authorities and the Chinese Communist Party (CCP) often times develop interim policies and practices to deal with vague issues. For example, the MPS included the revision of the Nationality Law in its tenth five-year legislative plan (2001-2005) but has made no discernible progress so far.121 Therefore, it is fascinating that the CCP and the administrative state have also dodged the question by avoiding 120 Zhou Sheng & Zhang Yu (周圣 & 张玙), Falv Loudong yu Sifa Shiyong Yi She Shuangchong Guoji Wenti zhi Sifa Shijian wei Shijiao (法律漏洞与司法适用—— 以涉双重国籍问题之司法实践为视角 ) [Legal Loopholes and Judicial Application: From the Perspective of Judicial Practice on Dual Nationality Issues], HIGHER PEOPLE’S COURT OF SHANGHAI MUNICIPALITY (May. 25, 2016), http://www.hshfy.sh.cn/shfy/gweb2017/xxnr.jsp?pa=aaWQ9NDE4NzM2JnhoPTE mbG1kbT1sbTQ3NgPdcssPdcssz&zd=spyj. 121 Zhou, supra note 6, at 244-245. 308 CHINA’S NATIONALITY LAW [Vol. 35: 268 developing regulations, roadmaps, or even informal policies to fill the gap. A. The History of Chinese Nationality Legislation Several centuries of Chinese emigration have resulted in more than 40 million overseas Chinese and people of Chinese ancestry.122 The first codified Chinese nationality legislation was the 1909 Daqing Guoji Tiaoli (Qing Nationality Ordinance) promulgated by the Qing dynasty. It clings to the principle of patrilineal jus sanguinis, allows dual nationality, and exerts strict restrictions on expatriation. Afterwards, the Republic of China enacted the 1912 Nationality Law and the 1929 Nationality Law, which inherited most of the Qing legislation, including the clear permissibility of dual nationality.123 The People’s Republic of China (PRC) abolished all Kuomintang laws in 1949 and had no nationality legislation until 1980.124 During the period, the PRC government regulated nationality through administrative measures, diplomatic practice, international treaties, and government policies. In September 1980, the NPC adopted the current Nationality Law. B. Hesitation among Top Decision-makers The legislators and top decision-makers in China are faced with multiple competing strategic approaches to the nationality issue. The starting point is the conflict between Chinese national interests and the protection of ethnic Chinese abroad. On the international stage, China switched to a policy of single nationality to develop normal diplomatic relations with Southeast Asian countries.125 With approximately 23 million ethnic Chinese in Southeast Asia, constituting 77% of the Singaporean and 24.8% of the Malaysian populations,126 the impact of dual nationality on Sino-Southeast Asian relations cannot be underestimated. The single nationality principle is also incorporated in 122 Min Zhou & Gregor Benton, Intra-Asian Chinese Migrations: A Historical Overview, in CONTEMPORARY CHINESE DIASPORAS 1, 1 (Min Zhou ed. 2017). 123 Shao Dan, Chinese by Definition: Nationality Law, Jus Sanguinis, and State Succession, 1909-1980, 35 TWENTIETH-CENTURY CHINA 4-28 (2009); Liu, supra note 70, at 92-95, 135-38. 124 ZHANG YONG & CHEN YUTIAN (张勇 & 陈玉田), XIANGGANG JUMIN DE GUOJI WENTI (香港居民的国籍问题) [THE ISSUE OF NATIONALITY FOR RESIDENTS OF HONG KONG] 40-44 (2000). Whether the old laws continued to apply between 1949- 1980 is subject to dispute. 125 Liu, supra note 70, at 174-75; Cheng, supra note 7, at 96-97. 126 Leo Suryadinata, China’s Citizenship Law and the Chinese in Southeast Asia, in LAW AND THE CHINESE IN SOUTHEAST ASIA 169, 169 (M. Barry Hooker ed. 2002). 2022] COLUMBIA JOURNAL OF ASIAN LAW 309 international legal documents between China and Southeast Asian countries.127 Another concern is foreign interference and national unification.128 Some worry that dual nationality could be used as a tool to interfere with the ethnic minority population of China or to intervene on behalf of dual nationals in China.129 It may be possible under certain circumstances for a sending state to invoke consular assistance or diplomatic protection in a receiving state for a dual national of both countries. The stipulation of Article 2 of the 1980 Nationality Law that “persons belonging to any of the nationalities in China shall have Chinese nationality” was a direct response to the granting of North Korean nationality certificates to chaoxianzu and Soviet passports to 127 See e.g., Joint Communique of the Government of the People's Republic of China and the Government of the Republic of the Philippines (Peking, June 9, 1975), MINISTRY OF FOREIGN AFFAIRS, https://www.mfa.gov.cn/ce/ceph//eng/zfgx/zzgx/t183265.htm (last visited Mar. 28, 2022) (The Government of the People’s Republic of China and the Government of the Republic of the Philippines consider any citizen of either country who acquires citizenship in the other country as automatically forfeiting his original citizenship.); Joint Communique of the Government of the People's Republic of China and the Government of Malaysia 1974/05/31, MINISTRY OF FOREIGN AFFAIRS, http://my.china- embassy.org/eng/zt/BilateralDocuments/200705/t20070510_1769405.htm (last visited Mar. 28, 2022) (Both the Government of the People's Republic of China and the Government of Malaysia declare that they do not recognize dual nationality. Proceeding from this principle, the Chinese Government considers anyone of Chinese origin who has taken up of his own will or acquired Malaysian nationality as automatically forfeiting Chinese nationality.). 128 Habicht & Richter, supra note 102, at 43 (“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.”). 129 Xin Haiguang (信海光), Huifu Shuangchong Guoji Shi Dang Huan Tu Zhi (恢复 双重国籍事当缓图之 ) [We Should Plan Slowly on the Restoration of Dual Nationality], CAIXIN BLOG (May 10, 2012), http://xinhaiguang.blog.caixin.com/archives/45102 (Xin warned that the granting of North Korean or South Korean nationality to chaoxianzu (Joseonjok or “of Korean nationality”) Chinese citizens may cause secession and turmoil.). Although it is generally recognized that a state may not afford consular assistance to one of its nationals against a state whose nationality such person also possesses, there are still practices to do so. See John Dugard, Diplomatic Protection, Max Planck Encyclopedia of Public International Law [MPEPIL] (2021), ¶ 24-30 (describing the emergence of dominant or effective nationality rules); JOHN QUIGLEY ET AL., THE LAW OF CONSULAR ACCESS: A DOCUMENTARY GUIDE 39-46 (2009) (United States Department of State, for examples, requires its consuls to press very hard for consular access to a dual national under some circumstances.); LUKE T. LEE & JOHN B QUIGLEY, CONSULAR LAW AND PRACTICE 125-30 (3d ed. 2008) (examples of consular assistance to dual nationals); Draft Articles on Diplomatic Protection with Commentaries, supra note 4, at 43-37, art. 7, comment 1-7 (permitting diplomatic protection if the sending state nationality is predominant). 310 CHINA’S NATIONALITY LAW [Vol. 35: 268 Xinjiang residents.130 The politics of citizenship in divided nations also play a role.131 As former Premier Wen Jiabao once quoted regarding Taiwan, “only when the blood of the native son flows back to his native place will it stop boiling.”132 Aside from territorial arguments, the narrative of blood connection, the exclusive conception of jus sanguinis, and ethnonationalism remain prominent.133 Secondly, many have alleged that the side effect of pure diplomatic calculations is the abandonment of protections for ethnic Chinese residing abroad. Liu argued that, by adopting a policy of single nationality, Beijing established the state’s supremacy over individuals in defining the national interests and the unchallenged priority of the China-centered approach. The latter has remained the “guiding principle” in PRC overseas Chinese policy ever since.134 There has been a lingering tension between the need to connect with the Chinese diaspora to help China develop and the government’s fear of being perceived as interfering with another country’s nationals.135 Critics of the single nationality law, witnessing the continued mistreatment of ethnic Chinese in foreign countries, have complained that the denial of dual nationality “did not fundamentally improve the living environment of ethnic Chinese.”136 Those who advocate for a shift in 130 Internal Provisions on the Implementation of the Nationality Law (Trial Draft) (1981), art. 1 (Article 2 stipulates that in our country, “persons belonging to any of the nationalities in China shall have Chinese nationality.” This is because some countries regard people of certain ethnic groups in our country as their citizens and issue passports or nationality documents to people of certain ethnic groups in China through their embassies and consulates…To this end, we insist that people of all ethnic groups in our country have Chinese nationality and do not recognize passports or citizenship certificates issued to Chinese citizens by foreign embassies and consulates without authorization.). 131 Choo Chin Low, The Politics of Citizenship in Divided Nations: Policies and Trends in Germany and China, 49 COMMUNIST & POST-COMMUNIST STUD. 123, 123- 35 (2016). 132 The Economist, Devil May Care: Taiwan's Elections, Seen from the Mainland, THE ECONOMIST (May 20, 2004), https://www.economist.com/asia/2004/03/18/devil-may-care. 133 Choo Chin Low, The Politics of Emigration and Expatriation: Ethnicisation of Citizenship in Imperial Germany and China, 29 J. HIST. SOCIO. 385, 405 (2016). 134 Liu Hong (刘宏 ), Chinese Overseas and a Rising China: The Limits of a Diplomatic ‘Diaspora Option’, in CHINA AND INTERNATIONAL RELATIONS: THE CHINESE VIEW AND THE CONTRIBUTION OF WANG GUNGWU (Zheng Yongnian ed., 2010), 177, 184-85. 135 Wang, supra note 6, at 318. 136 Yang Shuming & Yin Hui (杨树明 & 印辉), Shuangchong Guoji Jiqi Falv Shijian Jianlun Woguo Guojifa de Lifa Gaijin (双重国籍及其法律实践——兼论 我国《国籍法》的立法改进) [Dual Nationality and Its Legal Practice: Debate on Revisions of Nationality Law in China], 3 NANJING SHIDA XUEBAO (SHEHUI KEXUE BAN) (南京师大学报(社会科学版)) [J. NANJING NORMAL UNIV. (SOC. SCI.)] 30, 33 (2006). 2022] COLUMBIA JOURNAL OF ASIAN LAW 311 nationality policy refer to the May 1998 violence in Indonesia137 and the systematic discrimination against ethnic Chinese in Malaysia138 as proof, arguing that it is the foreign nationality of the victims that prevented the Chinese government from providing substantive help.139 The opposing side of the debate explicitly acknowledges the lack of protection for ethnic Chinese and detaches it from nationality policy. The philosophy behind the 1980 Nationality Law is that Chinese nationality legislation and the Chinese government, irrespective of its attitude towards dual nationality, could do little, if anything, to promote the welfare of ethnic Chinese abroad. In other words, the fate of ethnic Chinese would not be different under the status quo or dual nationality law. Cheng asks, “in an international system premised on the cornerstone of nation-states, should violent anti-Chinese incidents occur in the context of dual nationality, what measures would the Chinese government take (to protect these Chinese nationals)? If China is not able to intervene or intervenes in the wrong way (such as using military force), how does the policy shift make sense?”140 He argues that the fate of ethnic Chinese who have long been rooted in a foreign country, similar to any other diasporic group around the globe, rests upon the society and the country they live in. In the end, no amount of Chinese power can solve the political and ethnic conflicts embedded at the heart of a foreign society. As Cheng put it, “the fundamental issue is the rights and obligations of a contributing people to participate in the construction of a new society after the independence of a new sovereign state, a new form of relationship between ethnic minority and majority, and the protection of civil rights and basic human rights.”141 Dual national or not, ethnic 137 Zhou, supra note 6, at 64-65, 175-78, 241-52 (Two proposals at the National Chinese People’s Political Consultative Conference, in 1999 and 2004 respectively, cited the anti-Chinese violence in Indonesia.). 138 Kuala Lumpur, Race-Based Affirmative Action is Failing Poor Malaysians, THE ECONOMIST (May 18, 2017), https://www.economist.com/asia/2017/05/18/race- based-affirmative-action-is-failing-poor-malaysians; Jay Hong Chew, A Revision of Malaysia’s Racial Compact, HARVARD POLITICS (Aug. 18, 2021), https://harvardpolitics.com/a-revision-of-malaysias-racial-compact/; Pusat Komas, Malaysia Racial Discrimination Report 2021, PUSAT KOMAS (Mar. 21, 2022), https://komas.org/fightracism-launch-of-the-malaysia-racial-discrimination-report- 2021/. 139 Zhang Xin (张欣), Shilun Zhongguo Youxian Chengren Shuangchong Guoji de Biyaoxing yu Kexingxing (试论中国有限承认双重国籍的必要性与可行性) [On the Necessity and Feasibility of China Limitedly Recognizing Dual Nationality], 47 LILUN GUANCHA (理论观察) [THEORETIC OBSERVATION] 108, 108 (2007); Yang & Yin, supra note 136, at 33. 140 Cheng, supra note 7, at 192-93. 141 Cheng, supra note 7, at 130-31. 312 CHINA’S NATIONALITY LAW [Vol. 35: 268 Chinese will suffer as long as xenophobia lasts.142 “If revocation of Chinese nationality cannot eradicate the foreign country’s doubt towards ethnic Chinese, neither could restoration [of nationality].”143 This line of argument alleges that dual nationality does not benefit ethnic Chinese in the context of ethnic conflict. The third factor is the international competition for talent and economic resources, which reflects the utilitarian considerations of the party-state. It is not novel for the Chinese government to use citizenship structures as a policy tool to filter and select citizens, including returned overseas Chinese with desirable skills or resources.144 While the Chinese nationality of an overseas Chinese is not in doubt, his rights to resettle in China and acquire household registrations still hinge upon approval by the government. 145 The Chinese government has implemented programs to attract international talents, especially overseas Chinese and ethnic Chinese abroad.146 As the proportional share of ethnic Chinese decline in Asia and increase in the Americas and Europe,147 the Chinese government has refocused its attention away from Southeast Asia toward the “new migrants” (xin yimin) in developed countries viewed as an asset to attract investment and talent. 148 Dual nationality would be hugely attractive to these individuals, but the Chinese government has not yet decided to shift to dual nationality. The current unsatisfactory substitution is de facto dual nationality (intentionally tolerated or not) through local citizenship proof that, in practice, preserves transnational mobility. 142 Xiao & Guo, supra note 73, at 586. The term “xenophobia” should be understood under the context that many ethnic Chinese has lived in the foreign country for many generations. 143 Cheng, supra note 7, at 192. 144 Jiaqi M. Liu, Citizenship on the Move: The Deprivation and Restoration of Emigrants’ Hukou in China, 47 J. ETHNIC & MIGRATION STUD. 557, 558 (2021); Chenchen Zhang, Governing Neoliberal Authoritarian Citizenship: Theorizing Hukou and the Changing Mobility Regime in China, 22 CITIZENSHIP STUD. 1, 11-20 (2018). 145 Liu, supra note 144, at 565. 146 HUIYAO WANG & LU MIAO, CHINA’S DOMESTIC AND INTERNATIONAL MIGRATION DEVELOPMENT 169-227 (2019). 147 Peter S. Li & Eva Xiaoling Li, The Chinese Overseas Population, in ROUTLEDGE HANDBOOK OF THE CHINESE DIASPORA 15, 21 (Tan Chee-Beng ed. 2013) (“Along the way Asia’s proportional share of the Chinese overseas population has steadily declined from 88% in 1980 to 75% in 2009, while American continent’s share has increased from 8% to 19% in the same period.”). 148 Mette Thunø, China’s New Global Position: Changing Policies Toward the Chinese Diaspora in the Twenty-First Century, in CHINA’S RISE AND THE CHINESE OVERSEAS 184, 192-94 (Bernard P. Wong & Tan Chee-Beng eds. 2018); Liu, supra note 134, at 184-85; CHINA AND INTERNATIONAL RELATIONS: THE CHINESE VIEW AND THE CONTRIBUTION OF WANG GUNGWU 177, 184-86. 2022] COLUMBIA JOURNAL OF ASIAN LAW 313 A cautionary note is that people of Chinese descent overseas may not desire a second Chinese nationality in their resistance to homogenization.149 The experiences of returned overseas Chinese in political turmoil in the 1960s and 70s are particularly memorable.150 Many local-born Chinese, having succeeded in resisting both re- Sinicization and localization pressures, choose new identities or seek out their own unique place within society.151 As Wang Gungwu noted, he “has not accepted China’s view that China alone has the capacity to give the overseas Chinese what they need in order to remain Chinese.”152 Fourth, on a microscopic level, the legislative sources and legal governance traditions of the PRC are split squarely equal. The current Chinese legal system draws upon China’s experience since 1949, China’s own legal traditions, socialist legal models, as well as selective borrowing from Western systems in its legal development. 153 The single nationality policy is the product of the Chinese government dealing with Chinese ethnicity and diaspora, handcrafted by the prominent leaders of the CCP, particularly Zhou Enlai.154 Socialist countries around that time also adopted single nationality policies.155 The adoption of single nationality marks a sharp turn away from the permanent allegiance doctrine in Qing and Republic of China eras, which were rooted in the traditions of blood connection. More recently, the growing global acceptance of dual nationality and quasi-dual nationality,156 both in the West and certain Asian countries,157 has pressured the single nationality principle. Finally, it would be an oversimplification to characterize the nationality issue as a simple question stemming from mere technical 149 STEVEN B. MILES, CHINESE DIASPORAS: A SOCIAL HISTORY OF GLOBAL MIGRATION 257-59 (2020); Zhou, supra note 6, at 329-483. 150 GLEN PETERSON, OVERSEAS CHINESE IN THE PEOPLE’S REPUBLIC OF CHINA 141- 68 (2012). 151 WANG GUNGWU, THE CHINESE OVERSEAS: FROM EARTHBOUND CHINA TO THE QUEST FOR AUTONOMY 92, 97 (2000). 152 Wang Gungwu, A Single Chinese Diaspora?, in DIASPORIC CHINESE VENTURES: THE LIFE AND WORK OF WANG GUNGWU 157, 163 (Gregor Benton & Hong Liu eds. 2004). 153 Benjamin L. Liebman, Authoritarian Justice in China: Is There a “Chinese Model”?, in THE BEIJING CONSENSUS? HOW CHINA HAS CHANGED WESTERN IDEAS OF LAW AND ECONOMIC DEVELOPMENT 225, 233 (Weitseng Chen ed. 2017). 154 ZHUANG GUOTU (庄国土), HUAREN HUAQIAO YU ZHONGGUO DE GUANXI (华人 华侨与中国的关系) [THE RELATIONSHIP BETWEEN ETHNIC CHINESE, OVERSEAS CHINESE, AND CHINA] 254-55 (2001). 155 GEORGE GINSBURGS, THE CITIZENSHIP LAW OF THE USSR 71-131 (1983). 156 Maarten Vink & Arjan H. Schakel et al., The International Diffusion of Expatriate Dual Citizenship, 7 MIGRATION STUD. 362, 362-83 (2019). 157 Id. 314 CHINA’S NATIONALITY LAW [Vol. 35: 268 calculations of instrumentalists. Chinese nationalism or patriotism, irrespective of its complicated source or genealogy, has become an integral part of current Chinese politics. The issue of nationality cannot escape its framing. “Who is one of us” is thus inherently sensitive. This is complicated by the fact that China had its own worldview of tianxia (all under heaven), which fused with the imported concept of modern nation-states. China’s modern international order is thus “a fusion of its traditional tianxia elements and Western elements of the international order,”158 its identity a combination of historical great power and a developing state that has been a victim of Western imperialism,159 its future an interaction between coastal openness and inland traditions.160 The result is citizenship tied to territorial unity with a profound overtone of ethnonationalism as its context.161 Despite the inherent mix of Western and Chinese influences in China’s worldview, as well as the struggle between conceptions of the nation-state and tianxia state,162 when it comes to the nationality of ethnic Chinese, acceptance of the nation-state and respect for the international order have prevailed in the past forty years. The modern Chinese state chooses territory over ethnicity as the formal criterion for national belonging.163 History reminds us that dual nationality has the potential to be a source of international conflicts, such as the Nazi intervention in other states on behalf of ethnic Germans abroad164 and the more recent example of ethnic Russians in post-Soviet countries.165 It is hard to imagine that China would or should revert its course in light of these lessons. 158 Zheng Yongnian, Organizing China’s Inter-State Relations from “Tianxia” (All- under-Heaven) to the Modern International Order, supra note 148, CHINA AND INTERNATIONAL RELATIONS: THE CHINESE VIEW AND THE CONTRIBUTION OF WANG GUNGWU 283, 293. 159 Niall Duggan, A New Chinese National Identity: The Role of Nationalism in Chinese Foreign Policy, in CHINESE NATIONAL IDENTITY IN THE AGE OF GLOBALISATION 161, 165 (Lu Zhouxiang ed. 2020). 160 WANG GUNGWU, THE REVIVAL OF CHINESE NATIONALISM 17 (1996). 161 Bryan S. Turner & Chang Kyung-Sup, Whither East Asian Citizenship?, in CONTESTED CITIZENSHIP IN EAST ASIA: DEVELOPMENTAL POLITICS, NATIONAL UNITY, AND GLOBALIZATION 243, 245 (Chang Kyung-Sup & Bryan S. Turner eds. 2012). 162 WANG KE (王柯), CONG TIANXIA GUOJIA DAO MINZU GUOJIA: LISHI ZHONGGUO DE RENZHI YU SHIJIAN (从天下国家到民族国家：历史中国的认知与实践) [FROM TIANXIA STATE TO NATION-STATE: THE COGNITION AND PRACTICE OF HISTORICAL CHINA] 318 (2020). 163 Thunø, supra note 148, at 199. 164 Jerry Z. Muller, Us and Them: The Enduring Power of Ethnic Nationalism, 87 FOREIGN AFFAIRS 18 (2008); Mark Mazower, Minorities and the League of Nations in Interwar Europe, 126 DAEDALUS 47, 55 (1997). 165 James Hughes & Gwendolyn Sasse, Comparing Regional and Ethnic Conflicts in Post-Soviet Transition States, 11 REG’L & FED. STUD. 1-35 (2001). 2022] COLUMBIA JOURNAL OF ASIAN LAW 315 A final observation centers on what tianxia thinking offers to the fiercely disputed issue of nationality. A critic immersed within the tianxia mindset would be deeply confused about the obsession with nationality since tianxia is a universal all-under-heaven ideology that is supposed to work for all mankind.166 If the Chinese state truly values the blood connections deeply embedded in its past and the present relevancy of inclusiveness and openness in the tianxia thinking, it should find the idea of granting long-term residency rights or favorable visa policies to ethnic Chinese a perfect match. C. Institutional Capacity and Systematic Dissonance The chaotic handling of nationality derives from fragmentations in the governance system and the lack of institutional capacity and expertise. The nationality regulation structure in China is fragmented. Article 15 of the Nationality Law established the division of nationality applications between the MPS branches within China and the MFA branches abroad.167 The independence of the household registration department from the exit and entry department further contributes to this fragmentation problem.168 In addition, such fragmentation exists not only horizontally across diplomatic, household registration, and immigration departments but also vertically at different levels within a department. 169 Since the MPS, the provincial level public security department, and the municipal level public security bureau each have their own exit and entry component, they sometimes disagree on an individual’s nationality. Even exit and entry branches of the same level in different regions, faced with similar facts or the same case, may come to opposite conclusions.170 These problems are not unique to nationality: the local citizenship regime in China has become fragmented as well, 171 leading to highly localized and randomized enforcement. In some counties with lots of emigrants, local branches 166 Zheng, supra note 158, at 302-07. 167 Nationality Law, art. 15 (“Nationality applications at home shall be handled by the public security bureaus of the municipalities or counties where the applicants reside; nationality applications abroad shall be handled by China's diplomatic representative agencies and consular offices.”). 168 Habicht & Richter, supra note 102, at 38-39. 169 Wang Pu & Zeng Fanjing (王璞 & 曾范敬), Woguo Shixing Shuangchong Guoji de Bukexingxing Fenxi (我国实行双重国籍制度的不可行性分析 ) [The Infeasibility Analysis of Dual Nationality in China], 37 WUJING XUEYUAN XUEBAO (武警学院学报) [J. ARMED POLICE ACAD.] 19, 21 (2021). 170 Id; Ye & Hu, supra note 15, at 130-31. 171 Ling Wu, Decentralization and Hukou Reforms in China, 32 POL’Y & SOC’Y 33, 33 (2013). 316 CHINA’S NATIONALITY LAW [Vol. 35: 268 of the MPS unilaterally suspended the enforcement of regulations that require deprivation of household registration of the emigrants who have moved abroad.172 Aside from structural asymmetries, many low-level MPS branches simply lack the capacity and expertise to apply nationality law. More than once, local MPS branches admitted that they did not know what nationality certification means and had to ask the NIA for help.173 Those who did work on nationality issues have made obvious legal mistakes. 174 The immigration legal system in China is still predominately a matter of administrative management. 175 To local MPS officials, nationality issues are just one of the hundreds of issues within their jurisdiction and one that they encounter infrequently. The administrative officials are both unwilling and unable to bring clarity, and as a result, localized randomness dominates the practice of nationality administration. CONCLUSION More than forty years after the promulgation of Nationality Law, interpretation of the key terms and origins of disputes remains ambiguous in Chinese law. The lasting vagueness illustrates that the idea of modern citizenship stays more on the paper than in the hearts and minds of legislators and bureaucrats. The concept of modern citizenship implicates three main dimensions: a legal status defined by civil, political, and social rights and obligations; political agents actively participating in a society’s political institutions; and the membership in a community that furnishes a distinct source of identity.176 Chinese nationality nowadays lacks substance in all three 172 Liu, supra note 144, at 567. 173 Jane21844, Ruhe Banli Guoji Rending Shouxu (如何办理“国籍认定手续”) [How to Handle the Nationality Identification Procedures], NATIONAL IMMIGRATION ADMINISTRATION (Jun. 16, 2020), https://www.nia.gov.cn/Enquiry/publish/showQuestion.jsp?MZ=XnSxNYw79%2F c2hhy1gwGCiQ%3D%3D (A 16-year-old German teenager whose parents were ethnic Chinese German citizens sought permanent residency in China. The mother held Chinese nationality when the child was born, and the regulation requires nationality identification procedures for such cases. The public safety officials in Qiqihar city and Heilongjiang province did not know how to handle the nationality identification procedures. Shanghai exit and entry officials advised that the parents seek help from the NIA.). 174 Ye & Hu, supra note 15, at 130, 132. 175 Xiong Wenzhao (熊文钊), Lun Zhongguo Yimin Falv Zhidu de Lishi Yanjin yu Zhidu Jiangou (论中国移民法律制度的历史演进与制度建构 ) [Historical Evolution and System Construction of the Chinese Immigration Legal System], 171 BIJIAOFA YANJIU (比较法研究) [J. COMPAR. L.] 177, 180 (2020). 176 Jaen L. Cohen, Changing Paradigms of Citizenship and the Exclusiveness of the Demos, 14 INT’L SOCIO. 245 (1999). 2022] COLUMBIA JOURNAL OF ASIAN LAW 317 aspects. The legal status is uncertain and subject to the arbitrary administration of the government; the political participation is largely nominal; the prominence of local citizenship proof and the prevalence of de facto dual nationality devalue Chinese nationality.177 Even the identification cards issued to citizens are called “resident identification.” The concept of modern citizenship with a series of rights and obligations vis-à-vis the state did not seep into the decision- making process and administrative practice related to nationality law. From this perspective, nationality seems insignificant. But it is meanwhile significant: the deep-rooted tradition of “blood is thicker than water,” the overseas Chinese policy aimed at expanding international influence, the rising narrative of nationalism, and the widespread emigration of wealthy individuals, the privileged class, and corrupt officials all contribute to the complexity.178 As a result, the decision-makers turn to the “let it be” attitude to reserve strategic ambiguity. Such politically and socially sensitive topics have also consolidated into the strongholds of administrative agencies largely exempt from the legalization and the rule of law movement in the past forty years. The Note systematically examined all relevant discussions and provided a comprehensive interpretation of the term “settled abroad.” “Settled abroad” should be equivalent to the right of permanent or long-term residency in a foreign country. Actual residence should not be a requirement for the application of Articles 5 and 9. The two potential exceptions to Article 9 are purchasing of passports without any stay in the foreign country and the acquisition of foreign nationality through undocumented emigration. The first exception should be limited to a few specified foreign countries to safeguard the seriousness of law and prevent abuse of police power. In practice, a clear pattern can be observed that Chinese courts do not scrutinize “settled abroad” when deciding nationality except for criminal cases. Chinese courts’ unfamiliarity with nationality law leads to low-quality legal reasoning in some cases. Training in this respect is urgent. The widespread invisible de facto dual nationality, and the procedural turmoil, can only be resolved by clear rules and closer coordination 177 Choo Chin Low, China and Taiwan, in NATIONALITY LAW IN THE EASTERN HEMISPHERE: ACQUISITION AND LOSS OF CITIZENSHIP IN ASIAN PERSPECTIVE 117, 117 (Olivier Vonk ed., 2018). 178 Biao Xiang, Emigration Trends and Policies in China: Movement of the Wealthy and Highly Skilled, TRANSATLANTIC COUNCIL ON MIGRATION (Feb. 2016), https://www.migrationpolicy.org/sites/default/files/publications/TCM_Emigration- China-FINAL.pdf; Southern Metropolis Daily, Shuangchong Guoji Caozuo Shouduan Baoguang Liangzhong Shenfen Liangtou Zhan Haochu (双重国籍操作手 段曝光 两种身份两头占好处) [Exposure of Dual Nationality Operation Methods: Two Identities with Advantages at Both Ends], SINA.COM (May 9, 2012), http://edu.sina.com.cn/a/2012-05-09/1753215232.shtml. 318 CHINA’S NATIONALITY LAW [Vol. 35: 268 and sharing of information between state organs. Finally, the history of nationality legislation since late Qing Dynasty proves that regardless of the political nature of the ruling regime, nationality issues will trouble China persistently. Nationality remains a sensitive and tangled topic in the unfinished journey of China toward modernization. One of its consequences is the absence of an amendment to the nationality law in the last forty years. The legislative inaction likely will continue into the near future. 2022] COLUMBIA JOURNAL OF ASIAN LAW 319 APPENDIX Appendix: 81 Publicly Available Cases on Article 9 of Nationality Law (2014-October 2021)179 N ote T he F oreign C ou ntry at Issu e W heth er at an y S tage of th e P roceed ings the P arty P resen ts H im self as C hin ese N ational to th e C ou rt and th e C ourt later find th at H e H as F oreign N ation ality W heth er the P arty H as D e F acto D u al N ationality b y R etainin g L ocal C itizen sh ip P roof (H ou sehold R egistration or Id en tification C ard) C on clusion of th e C ou rt on N ation ality Ju risdiction L evel of C ourt (B asic, Interm ediate, H igh, S uprem e) C au se of A ction T ype of C ase (C ivil, A dm inistrative, or C rim inal) 180 C ase N u m ber Y ear N o. U nspecified U nspecified U nspecified U nspecified L iaoning, Fushun Interm ediate A llocation of com pensation for expropriation of contracted land C ivil （ 2021 ） 辽 04 民 终 235 号 2021 1 179 The cases are numbered in reverse chronological order with the latest cases on top. 180 The author did not include other types of cases (e.g., cases of recognition and enforcement of foreign judgments or arbitral awards) since they do not involve an active dispute on the nationality of an individual under the Nationality Law. 320 CHINA’S NATIONALITY LAW [Vol. 35: 268 C entralized jurisdiction does not extend to foreign-related real estate cases. T he court of the place w here the real estate is located has jurisdiction. V anuatu N o N o Foreign L iaoning, Shenyang Interm ediate Jurisdictional objection; R eturn of O riginal Property C ivil （ 2021 ） 辽 01 民 辖 235 号 2021 2 C entralized jurisdiction does not extend to foreign-related real estate cases. T he court of the place w here the real estate is located has jurisdiction. V anuatu N o N o Foreign L iaoning, Shenyang Interm ediate Jurisdictional objection; R eturn of O riginal P roperty C ivil （ 2021 ） 辽 01 民 辖 220 号 2021 3 A ustralia Y es Y es Foreign B eijing, D axing Interm ediate Jurisdictional objection; Private lending C ivil （ 2021 ） 京 02 民 辖 终 180 号 2021 4 A rural resident had autom atically lost his C hinese nationality and access to rural collective econom ic organization upon joining foreign nationality even though he had a valid household registration. H e does not have any claim of com pensation for expropriation. South K orea N o Y es Foreign Jilin, Y anbian K orean A utonom ous Prefecture Interm ediate A llocation of com pensation for expropriation of contracted land C ivil （ 2021 ） 吉 24 民 终 1179 号 2021 5 2022] COLUMBIA JOURNAL OF ASIAN LAW 321 C ase dism issed w ithout prejudice for inconsistent identity. T he foreign party m ust bring law suit under foreign identity rather than C hinese identity. Ireland Y es Y es Foreign L iaoning, Shenyang, E conom ic and T echnological D evelopm ent Z one B asic Post-divorce property dispute C ivil （ 2021 ） 辽 0191 民 初 3753 号 2021 6 C ase dism issed w ithout prejudice for inconsistent identity. T he foreign party m ust bring law suit under foreign identity rather than C hinese identity. Saint K itts and N evis Y es Y es Foreign H unan, C hangde, W uling B asic C reditor's right of revocation C ivil （ 2021 ） 湘 0702 民 初 230 号 2021 7 T he court concluded that household adm inistrative rules do not expressly require cancelation of household w hen a C hinese citizen joins foreign nationality. H ow ever, the adm inistrative agency m ay cancel household here per discretion. C anada N o Y es Foreign A nhui, H efei H igh A dm inistrative registration of household A dm inistrative （ 2020 ） 皖 行 终 78 号 2020 8 322 CHINA’S NATIONALITY LAW [Vol. 35: 268 C anada U nspecified U nspecified U nspecified G uangdong, Z huhai Interm ediate C onfirm ation of co-ow nership C ivil （ 2020 ） 粤 04 民 终 1165 号 2020 9 T he Plaintiff brought law suit as a C hinese national and lost in first instance. H e then appealed, alleging that he w as a foreign national entitled to foreign-related proceedings. T he appellate court rescinds the original judgm ent and rem ands for retrial. A ustralia U nspecified U nspecified Foreign B eijing, C hangping Interm ediate C ontract dispute C ivil （ 2020 ） 京 01 民 终 966 号 2020 10 T w o relatives of the seller had joined foreign nationality and lost C hinese nationality, but rem ained on the household registration of the house. T he buyer sought revocation of such household registration. T he court held that the buyer did not provide sufficient evidence to show the relatives w ere foreign nationals. U nspecified N o N o Foreign L iaoning, Shenyang Interm ediate R eal property purchase contracts C ivil （ 2020 ） 辽 01 民 终 14827 号 2020 11 2022] COLUMBIA JOURNAL OF ASIAN LAW 323 (1) In the previous first instance, appeal, and retrial proceedings, both parties participated as C hinese citizens. T he P laintiff then found out the foreign nationality of D efendant and appealed the retrial, alleging w rong identity, absence of foreign-relate proceedings, and invalid pow er of attorney. T he court denied all claim s. G iven the forum selection clause and choice of law provisions in the contract, the issue has no bearing on the proceeding. (2) T he Plaintiff argued that the shareholder agreem ent is invalid because D efendant (w ho pretends to be a C hinese citizen), as a foreigner, can only establish foreign invested enterprises under C hinese law . T he C ourt held that the restriction on foreign investm ent is not a “ forceful com pulsory rule” and thus does not render a contract void. N ew Z ealand N o Y es Foreign Shandong, Z ibo Interm ediate Private lending C ivil （ 2020 ） 鲁 03 民 终 1144 号 2020 12 324 CHINA’S NATIONALITY LAW [Vol. 35: 268 N ew Z ealand N o Y es Foreign Shandong, Z ibo Interm ediate Private lending C ivil （ 2020 ） 鲁 03 民 终 1143 号 2020 13 T he fact that a legal heir is a foreign national does not affect statutory succession. C anada N o Y es Foreign B eijing, H aidian Interm ediate Statutory Succession C ivil （ 2020 ） 京 01 民 终 5268 号 2020 14 D uring first instance, the D efendant alleged, and the P laintiff adm itted that the P laintiff is a foreign national. C ase transferred to interm ediate courts w hich have original jurisdiction. A ustralia Y es Y es Foreign B eijing, D axing B asic Private lending C ivil （ 2020 ） 京 0115 民 初 18347 号 2020 15 T he court m entioned that the party has settled in S outh K orea w hen determ ining nationality. South K orea Y es Y es Foreign L iaoning, Panjin, Panshan B asic N ullity of m arriage C ivil （ 2020 ） 辽 1122 民 初 1145 号 2020 16 2022] COLUMBIA JOURNAL OF ASIAN LAW 325 T hailand N o N o Foreign G uangxi Z huang A utonom ous R egion, W uzhou, C hangzhou B asic U njust enrichm ent C ivil （ 2020 ） 桂 0405 民 初 259 号 2020 17 T hailand N o N o F oreign G uangxi Z huang A utonom ous R egion, W uzhou, C hangzhou B asic U njust enrichm ent C ivil （ 2020 ） 桂 0405 民 初 143 号 之 一 2020 18 326 CHINA’S NATIONALITY LAW [Vol. 35: 268 T he registration of m arriage by a form er C hinese citizen based on her household registration is null and void since she did not fulfill the procedure of foreign-related m arriage registration. Ireland Y es Y es Foreign A nhui, W uhu Suprem e A dm inistrative R egistration of M arriage A dm inistrative （ 2020 ） 最 高 法 行 申 11360 号 2019 19 O nce determ ined that one party w as a foreign national, the H igh C ourt rem anded for retrial. South K orea Y es Y es Foreign Jilin, T onghua H igh A ction for nonparty's objection to enforcem ent; P roperty ow nership dispute C ivil （ 2019 ） 吉 民 终 370 号 2019 20 A lthough the P laintiff concealed the fact that he is a foreign national, registered as a C hinese shareholder of the com pany, and caused an adm inistrative penalty, such actions do not affect the validity of the current shareholder registration. U nited S tates Y es Y es F oreign B eijing H igh C onfirm ation of qualification as shareholder C ivil （ 2019 ） 京 民 终 95 号 2019 21 2022] COLUMBIA JOURNAL OF ASIAN LAW 327 U nited States Y es Y es Foreign B eijing, C haoyang Interm ediate R eturn of original property C ivil （ 2019 ） 京 01 民 终 10924 号 2019 22 L ater discovered foreign nationality of a party does not negate the validity of pow er of attorney. U nited S tates Y es Y es Foreign Shandong, Q ingdao Interm ediate A dm inistrative registration A dm inistrative （ 2019 ） 鲁 02 行 终 672 号 2019 23 Inconsistent identity, Plaintiff voluntarily w ithdrew w ithout prejudice. C anada Y es Y es Foreign G uangdong, S henzhen, L uohu B asic C om pensation for property dam age C ivil （ 2019 ） 粤 0303 民 初 22946 号 之 一 2019 24 D ism issed, subject m atter non- justiciable A ustralia N o N o Foreign G uangdong, G uangzhou, H uangpu B asic R ight to use rural residential lot C ivil （ 2019 ） 粤 0112 民 初 11201 号 2019 25 328 CHINA’S NATIONALITY LAW [Vol. 35: 268 T he Plaintiff had w on a m onetary judgm ent against the D efendant (w ho w as in C hinese identity). T he D efendant subm itted proof from V ancouver C onsulate that he is a foreign national. Prior judgm ent vacated for w rong identity. C anada Y es Y es Foreign Shandong, Q ingdao, Jiaozhou B asic Private lending C ivil （ 2019 ） 鲁 0281 民 初 8241 号 2019 26 T he C ourt on its initiative requested exit and entry records from the M P S and m ade a factual finding that a C hinese local citizenship proof and a C anadian passport belong to the sam e person. A ustralia Y es Y es Foreign G uangdong, G uangzhou, T ianhe B asic C om panies dispute C ivil （ 2019 ） 粤 0106 民 初 23826 号 之 一 2019 27 Inconsistent identity, case dism issed w ithout prejudice. A ustralia Y es Y es Foreign H enan, Z hengzhou, Jinshui B asic Succession disputes C ivil （ 2019 ） 豫 0105 民 初 4621 号 2019 28 T he court ruled that the D efendant had lost C hinese nationality since she held an Italian passport. C ase transferred to proper jurisdiction. Italy Y es Y es F oreign H ebei, B aoding, X ushui B asic C ontract for assignm ent of claim s C ivil （ 2019 ） 冀 0609 民 初 802 号 2019 29 2022] COLUMBIA JOURNAL OF ASIAN LAW 329 A ustralia N o Y es Foreign Shanghai, Jiading B asic Post-divorce property dispute C ivil （ 2019 ） 沪 0114 民 初 1336 号 2019 30 V enezuela N o Y es Foreign G uangdong, Jiangm en, E nping B asic R ight to use construction land; P roperty purchase contracts C ivil （ 2019 ） 粤 0785 执 异 32 号 2019 31 A form er C hinese citizen registered divorce under her C hinese identity. T he C ourt ruled that even if the civil affairs bureau later realized the registration is void, it does not have the legal authority to take the initiative to revoke the registration absent requests. Singapore N o Y es Foreign Jiangsu, X uzhou H igh A dm inistrative R egistration of M arriage A dm inistrative （ 2018 ） 苏 行 终 1715 号 2018 32 330 CHINA’S NATIONALITY LAW [Vol. 35: 268 A ny claim that one party is a foreign national m ust be supported by evidence. Singapore N o Y es C hinese G uangdong, D ongguan H igh L iability for liquidation C ivil （ 2018 ） 粤 民 申 3040 号 2018 33 T he applicant acquired foreign nationality after an arbitral aw ard had been enacted. T hus, he m ust apply for recognition and enforcem ent under his foreign identity. A ustralia Y es Y es Foreign B eijing, Shijingshan Interm ediate R ecognition and enforcem ent of arbitral aw ards C ivil (E nforcem ent) （ 2018 ） 京 01 执 602 号 2018 34 T he P laintiff as a foreign national not residing in C hina needs to provide properly notarized identity docum ents to bring law suits. U nited K ingdom N o Y es Foreign B eijing, C haoyang Interm ediate C ontracts dispute C ivil （ 2018 ） 京 03 民 终 499 号 2018 35 L abor regulations require em ploym ent perm its approved by the governm ent for foreigners to w ork in C hina. A bsent such perm its, labor or em ploym ent relations never exist. A ustralia Y es Y es Foreign Shanghai, M inhang Interm ediate L abor contracts C ivil （ 2018 ） 沪 01 民 终 3186 号 2018 36 2022] COLUMBIA JOURNAL OF ASIAN LAW 331 Inconsistent identity, transferred to proper jurisdiction. A rgentina Y es Y es Foreign G uangxi Z huang A utonom ous R egion, G uilin, X ingan B asic C reditor’ s right of revocation C ivil （ 2018 ） 桂 0325 民 初 1409 号 2018 37 U nited States Y es Y es Foreign B eijing, C haoyang B asic Succession disputes C ivil （ 2018 ） 京 0105 民 初 2892 号 2018 38 T he court review ed facts and concluded that evidence provided by the P laintiffs (electronic data and telephone conversation recordings) are not enough to prove that the D efendant has acquired foreign nationality. South K orea N o Y es C hinese H eilongjiang, H arbin, X iangfang B asic R ural property purchase contract C ivil （ 2018 ） 黑 0110 民 初 6724 号 2018 39 332 CHINA’S NATIONALITY LAW [Vol. 35: 268 D efendant alleged circum stantial evidence (exit and entry records, party statem ent of travel history) to prove inconsistency and the existence of foreign passports. T he court m ade a factual finding that the evidence is not sufficient. South K orea N o Y es C hinese Jilin, Jilin, C hangyi B asic C onventional usufructs on rural land for agricultural operations C ivil （ 2018 ） 吉 0202 民 初 1039 号 2018 40 South K orea N o Y es C hinese Jilin, Jilin, C hangyi B asic C onventional usufructs on rural land for agricultural operations C ivil （ 2018 ） 吉 0202 民 初 1038 号 2018 41 T he court m entioned that the party resided in the U nited States betw een 1997 and 2012 and acquired U S nationality in 2012. U nited S tates N o N o Foreign G uangdong, S henzhen, F utian B asic L abor dispute C ivil （ 2018 ） 粤 0304 民 初 24896 号 2018 42 Inconsistent identity, case dism issed w ithout prejudice Italy Y es Y es Foreign Z hejiang, L ishui, Q ingtian B asic Private lending C ivil （ 2018 ） 浙 1121 民 初 5565 号 2018 43 2022] COLUMBIA JOURNAL OF ASIAN LAW 333 C ase transferred to proper interm ediate jurisdiction U nited States N o N o Foreign B eijing, H aidian B asic Private lending C ivil （ 2018 ） 京 0108 民 初 22286 号 2018 44 Inconsistent identity, case transferred to proper interm ediate jurisdiction. South K orea Y es Y es N o Jilin, Y anbian K orean A utonom ous R egion, Y anji B asic Partnership agreem ent dispute C ivil （ 2018 ） 吉 2401 民 初 2699 号 2018 45 Inconsistent identity, case dism issed w ithout prejudice U nited States Y es Y es Foreign H unan, C hangsha, Furong B asic C ontracts dispute C ivil （ 2018 ） 湘 0102 民 初 1925 号 之 一 2018 46 334 CHINA’S NATIONALITY LAW [Vol. 35: 268 W hen jurisdiction falls on the residence of D efendant and the D efendant has joined foreign nationality, his residence is w here he actually lives instead of his previous household registration. U nited States Y es Y es Foreign Jilin, C hangchun, N anguan B asic C ontracts dispute C ivil （ 2018 ） 吉 0102 民 初 1941 号 2018 47 A ustralia Y es Y es Foreign Z hejiang, Jiaxing, H aining B asic Private lending C ivil （ 2018 ） 浙 0481 民 初 7808 号 之 一 2018 48 T he court relied on a previous case in the sam e court in w hich the party w as found to be a foreign national. A ustralia Y es Y es F oreign G uangdong, G uangzhou, Panyu B asic P rivate lending C ivil （ 2018 ） 粤 0113 民 初 4710 号 2018 49 2022] COLUMBIA JOURNAL OF ASIAN LAW 335 T he Suprem e C ourt held that the fact that a form er C hinese citizen retain valid household registration or identifications cards does not m ean that they still have C hinese nationality. C anada Y es Y es Foreign G uangxi Z huang A utonom ous R egion, N anning Suprem e Jurisdictional objection; R eal estate developm ent and operation contracts C ivil （ 2017 ） 最 高 法 民 辖 终 125 号 2017 50 A shareholder of a com pany w as a C hinese national upon the initial establishm ent and registration of the com pany. L ater he joined foreign nationality. T he C ourt ruled that the he is entitled to brining a shareholder claim although his foreign identity does not m atch the registration record. A ustralia Y es Y es Foreign Z hejiang, L ishui H igh C onfirm ation of invalid contract C ivil （ 2017 ） 浙 民 终 610 号 2017 51 336 CHINA’S NATIONALITY LAW [Vol. 35: 268 T he C ourt ruled that the Plaintiff m ay cut a share from the com pensation of expropriation even though she joined foreign nationality under a fake nam e. South K orea Y es Y es C hinese Jilin, Y anbian K orean A utonom ous Prefecture H igh A llocation of com pensation for expropriation of contracted land C ivil （ 2017 ） 吉 民 申 3580 号 2017 52 See Part.I.D .1. U nited S tates N o Y es Foreign B eijing H igh R evocation of adm inistrative license A dm inistrative （ 2017 ） 京 行 终 4196 号 2017 53 A form er C hinese citizen signed a contract under her C hinese identity to sell a house she ow ned to the P laintiff and refused to fulfil the contract. T he C ourt found that the contract is valid, and the seller has defaulted. U nited States N o Y es Foreign G uangdong, S henzhen Interm ediate R eal property purchase contracts C ivil （ 2017 ） 粤 03 民 终 10890 号 2017 54 2022] COLUMBIA JOURNAL OF ASIAN LAW 337 Foreign nationals need consulate notary to prove its identity. U nited States Y es Y es Foreign Jiangsu, N anjing Interm ediate R eturn of original property C ivil （ 2017 ） 苏 01 民 终 9562 号 2017 55 D efendant appealed the case and alleged that the D efendant w as a foreign national. T he C ourt agreed and rem anded for retrial under foreign-related procedures. South K orea N o N o Foreign H eilongjiang, M udanjiang Interm ediate C onfirm ation of qualification as shareholder C ivil （ 2017 ） 黑 10 民 终 683 号 2017 56 T he Plaintiff adm itted his foreign nationality. T he C ourt collected exit and entry records to determ ine that he has settled in South K orea and ruled that he is thus not entitled to distribution of conventional usufructs. South K orea N o N o Foreign Jilin, Y anbian K orean A utonom ous Prefecture Interm ediate C onventional usufructs on rural land for agricultural operations C ivil （ 2017 ） 吉 24 民 终 1464 号 2017 57 338 CHINA’S NATIONALITY LAW [Vol. 35: 268 See Part.II.F . U nited States N o Y es C hinese G uangdong, Jiangm en Interm ediate T aking bribes, E m bezzling, and Illegal possession of guns and am m unition C rim inal （ 2017 ） 粤 07 刑 终 72 号 2017 58 A form er C hinese citizen used his C hinese household registration to register as a shareholder. A lthough it is in violation of relevant regulations, it does not prevent the court from concluding that the C hinese identity and the foreign nationality belong to the sam e person at issue. G erm any N o Y es Foreign G uangdong, S henzhen, Q ianhai C ooperation Z one B asic L iability for dam age to interests of shareholders C ivil （ 2017 ） 粤 0391 民 初 2840 号 2017 59 A form er C hinese citizen rented city public housing after S hanghai police departm ent had revoked his household registration. T he lease is void since public housing is reserved for those w ith Shanghai household registration. G erm any N o N o Foreign Shanghai, H uangpu B asic D ispute over real property leasing contract C ivil （ 2017 ） 沪 0101 民 初 3460 号 2017 60 2022] COLUMBIA JOURNAL OF ASIAN LAW 339 T he P laintiff reported to the police departm ent that a third party (w ho had civil disputes w ith him ) had de facto dual nationality and com plained that the police departm ent took no action. T he C ourt rules that the P laintiff does not have standing. U nited States U nspecified U nspecified U nspecified G uangdong, Z huhai, Jinw an B asic A dm inistrative inaction A dm inistrative （ 2017 ） 粤 0404 行 初 256 号 2017 61 G erm any U nspecified U nspecified U nspecified G uangdong, G uangzhou, H aizhu B asic D ispute on succession C ivil （ 2017 ） 粤 0105 民 初 9013 号 2017 62 A form er C hinese citizen and a fugitive at large joined foreign nationality. T he C ourt held that the fugitive issue has no bearing on the contract dispute. U nited States Y es U nspecified Foreign Z hejiang, Q uzhou H igh C ontracts dispute C ivil （ 2016 ） 浙 民 终 228 号 2016 63 T he C ourt reasons that the fact that the Plaintiff has acquired foreign nationality dem onstrates that she has settled abroad prior to acquiring foreign nationality. South A frica Y es Y es Foreign Shanghai, B aoshan Interm ediate C onfirm ation of qualification as shareholder C ivil （ 2016 ） 沪 02 民 终 4874 号 2016 64 340 CHINA’S NATIONALITY LAW [Vol. 35: 268 T he appellate court acquiescence reasoning by the trial court that identification cards is an issue of adm inistrative m anagem ent and does not preserve the C hinese nationality of those w ho have joined foreign nationality. Japan Y es Y es Foreign B eijing, F engtai Interm ediate U njust enrichm ent C ivil （ 2016 ） 京 02 民 终 10361 号 2016 65 Japan Y es Y es Foreign B eijing, X icheng Interm ediate C onfirm ation of invalid contract C ivil （ 2016 ） 京 02 民 终 3694 号 2016 66 A ustralia Y es Y es Foreign G uangxi Z huang A utonom ous R egion, G uilin, L ingui B asic C ontracts dispute C ivil （ 2016 ） 桂 0312 民 初 543 号 之 一 2016 67 2022] COLUMBIA JOURNAL OF ASIAN LAW 341 A com m ercial depositor of a bank (the D efendant) transferred its claim s related to the deposits to the Plaintiff, a foreign national, after the D efendant realized that its deposits have been pledged as collateral by the D efendant w ithout its perm ission T he D efendant argued that the transfer is a m alicious m ove to circum vent the level rules of subject m atter jurisdiction (H ad the P laintiff not been a foreign national, the case w ould have gone to an interm ediate court instead of high court). T he S uprem e C ourt disagreed. T he P laintiff is only enjoying the procedural protection he is rightfully entitled to as a foreign national. T here w as no evidence of m alicious intention. C anada N o N o Foreign Jiangsu, W uxi Suprem e Jurisdictional objection; C onfirm ation of invalid contract C ivil （ 2015 ） 民 四 终 字 第 3 号 2015 68 A ustralia N o Y es Foreign L iaoning, D alian B asic R evocation of m arriage C ivil （ 2015 ） 沙 民 初 字 第 05525 号 2015 69 342 CHINA’S NATIONALITY LAW [Vol. 35: 268 T he D efendants have acquired foreign nationality and thus lost C hinese nationality before the signing of the disputed housing expropriation com pensation agreem ent. T hey have no claim to the com pensation for governm ent expropriation of the house. U nited States N o N o Foreign Shanghai, Jingan B asic Partition of fam ily property C ivil （ 2015 ） 静 民 一 （ 民 ） 初 字 第 769 号 2015 70 Identification card is an issue of adm inistrative m anagem ent and does not prevent those w ho join foreign nationality from losing C hinese nationality. Japan Y es Y es Foreign B eijing, Fengtai Interm ediate U njust enrichm ent C ivil （ 2014 ） 二 中 民 （ 商 ） 终 字 第 11571 号 2014 71 Japan Y es Y es Foreign B eijing, F engtai Interm ediate U njust enrichm ent C ivil （ 2014 ） 二 中 民 （ 商 ） 终 字 第 11566 号 2014 72 2022] COLUMBIA JOURNAL OF ASIAN LAW 343 T he C om m onw ealth of D om inica Y es Y es Foreign Fujian, Q uanzhou Interm ediate U njust enrichm ent C ivil （ 2014 ） 泉 民 申 字 第 95 号 2014 73 A form er C hinese citizen w ho has acquired foreign nationality registered m arriage under C hinese identity. T he trial court reasoned that no evidence show ed that the husband settled abroad, so he retained C hinese nationality. T he appellate court reversed. It avoided the settled abroad question by relying on M PS conclusions but declared the husband a foreign national and the m arriage registration void. A ustralia N o Y es Foreign Z hejiang, N ingbo Interm ediate M arriage adm inistrative registration A dm inistrative （ 2014 ） 浙 甬 行 终 字 第 51 号 2014 74 N otary of consulates is required for foreign nationals w ithout residence in C hina. T hose w ho have residence in C hina m ay skip the procedural hurdle. U nited S tates Y es Y es Foreign H ainan, H aikou Interm ediate Private lending C ivil （ 2014 ） 海 中 法 民 一 终 字 第 1801 号 2014 75 344 CHINA’S NATIONALITY LAW [Vol. 35: 268 T he P laintiff identified herself as a foreign national w ithout residence in C hina. C ase dism issed for failure to com ply w ith notary requirem ents for such party. U nited States Y es Y es Foreign Sichuan, L eshan, S hizhong B asic H ouse adm inistrative registration A dm inistrative （ 2014 ） 乐 中 行 初 字 第 149 号 2014 76 T he D efendant refused to answ er to court inquiry regarding his nationality. H is co-defendants requested court order to pull his exit and entry records attached to his C hinese and foreign passports. T he C ourt recognized his foreign nationality based on analysis and deduction of these records. A ustralia N o Y es Foreign Shanghai, Jingan B asic Partition of co-ow ned property C ivil （ 2014 ） 静 民 三 （ 民 ） 初 字 第 6 号 2014 77 T he form er C hinese citizens w ho have joined foreign nationality do not have right to hold contracted land. C ase dism issed for lack of standing. K azakhstan N o U nspecified Foreign X injiang U yghur A utonom ous R egion, U rum qi, U rum qi B asic C ontracts for assignm ent of conventional usufruct on rural land for agricultural operations C ivil （ 2014 ） 乌 民 一 初 字 第 36 号 2014 78 2022] COLUMBIA JOURNAL OF ASIAN LAW 345 A foreign national is not eligible to purchase public housing in Shanghai. T he public housing purchase contract is thus void. Japan N o Y es Foreign Shanghai, Z habei B asic R eal property purchase contracts C ivil （ 2014 ） 闸 民 三 ( 民 ) 初 字 第 211 号 2014 79 Form er C hinese citizens w ho have joined foreign nationality is not entitled to com pensation for expropriation of rural contracted land. South K orea Y es Y es Foreign Jilin, T onghua, T onghua B asic A llocation of com pensation for expropriation of contracted land C ivil （ 2014 ） 通 民 初 字 第 434 号 2014 80 C ase dism issed based on statute of lim itations. Surinam e U nspecified U nspecified U nspecified G uangdong, Z huhai, X iangzhou B asic M arriage adm inistrative registration A dm inistrative （ 2014 ） 珠 香 法 行 初 字 第 46 号 2014 81