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protection cannot be assured. Given the limited interests of Britain in Hong Kong residents after 1997, Britain cannot be expected to exercise its discretionary right of diplomatic protection on their behalf.
Further, because the BDTC holders are also Chinese nationals with real and effective connections with the PRC, current principles of international law on nationality constitute insurmountable obstacles to Britain's right of diplomatic protection. Even apart from China's memorandum, both the traditional and modern rules of international law would certainly bar such a claim. According to the traditional rule of dual nationality, a claimant state would be denied the right to es- pouse the interests of a national who is also the national of the respon- dent state. Under the recently emerged doctrine of dominant and effective nationality, however, a claim can be brought by one state on behalf of a dual national against the other state of which he is also a national if the claimant has closer and more effective ties with the claimant state. Based on this modern principle, Britain would be barred from raising a claim against China on behalf of a BDTC holder. Instead, China would have to bring a claim against Britain, because as a Chinese national and resident, the BDTC holder has closer links to China.
Under the dominant and effective nationality rule, it is also ques- tionable whether Britain would be able to exert such a claim against a third state. Article 5 of the 1930 Hague Convention on the Conflict of Nationality Laws provides that when a person of more than one na- tionality is in a third state he shall be treated as if he has only one
146. The basic principle of international law on the nationality of a claimant is that the injured person must have the nationality of the claimant state or other recognized status at the time of the injury and settlement of the claim. This principle, in applica. tion, is subject to other requirements and refinements to be discussed later in this work. On the nationality of claimants, see J.G. STARKE, Întroduction to International Law 303-07 (9th ed. 1984); L. HENKIN, RC. PUGH, O. Schachter & H. Smit, InterNATIONAL Law: Cases and Materials 431-32 (1980).
147. The traditional doctrine of nonresponsibility is contained in art. 4 of the Hague Convention on the Conflict of Nationality Laws, supra note 27, which states: “A state may not afford diplomatic protection to one of its nationals against a state whose nation- ality such person also possesses.” For a historical review of the nonresponsibility doc- trine, see Note, The Standing of Dual Nationals Before the Iran-United States Claims Tribunal, 24 Va. J. Int'L L. 695, 700-08 (1984),
148. See Esphanian v. Bank Jejarat, AWD 31-157-2 Iran-United States Claims Tri- bunal, The Hague. Mar. 29, 1983, reprinted in 23 LL.M. 489 (1984); see also an excellent analysis of the case and the modern doctrine of dominant and effective nationality in Note, supra note 147, at 708-28. În the exchange of letters accompanying the Consular Convention between the United States and the People's Republic of China, China seems to accept this doctrine for comandar protection vis-à-vis the United States. 19 LL.M. 1119 (1980).
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