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It will be for consideration in both cases (i.e., persons already registered and persons not previously registered) whether the prescribed period during which protection will be granted pending production of a denationalisation certificate should be six months or perhaps longer. Proposal (c) contemplates six months as adequate. There is in favour of this view the fact that this proposal came originally from a Chinese source, and I am inclined to agree that it is unnecessary to press for the adoption of a longer period, to which the Chinese might not agree.
15. As regards the possibility that certificates of denationalisation may be unreasonably withheld, I stated in my despatch to Sir Sidney Barton No. 40 of the 19th March (sub-enclosure in my despatch No. 267), that in this point, indeed, lies the crux of the whole problem, and that it will be necessary to make some stipulation in regard to it. On fuller consideration of the problem in the light of your despatch, I am now inclined to modify this view to the extent of thinking that, in order to achieve once and for all time a final settlement, it may be possible to ignore this risk, and I am now prepared definitely to recommend that after the expiration in each case of the prescribed period of six months, without the production of a denationalisation certificate, registration and protection should be withdrawn from existing as well as subsequent registrants, whether or not the denationalisation certificates are unreasonably withheld. The underlying idea of any scheme is to avoid the conflicts with the Chinese authorities which have proved so embarrassing and so harmful to our prestige in the past, and I venture to suggest that we shall have done enough for our Anglo-Chinese subjects, and achieved a reasonable compromise, if we register and protect them for six months in every case, and for no longer than that period in any case, unless they have before its expiry divested themselves legally of their Chinese nationality. At the worst, the only persons who would in the event of certificates being withheld find themselves in a worse position than is contemplated by Mr. Pratt are existing registrants, and, as a last resource, it would, in the early stages at any rate, still be possible to make exceptions in suitable well-recommended cases.
16. I now
come to the main practical difficulty which is inherent in any possible denationalisation scheme, namely, what is to be the position of descendants of persons of Chinese race who obtain denationalisation certifi- cates, and thus acquire sole British nationality? Are we to be obliged automatically to accept and to extend the full privileges of a British subject to any person of dual nationality to whom the Chinese authorities choose to issue a denationalisation certificate, or will His Majesty's Government still retain the power to refuse to recognise as British subjects any person or class of persons, even though they have obtained denationalisation certificates? And are descendants of persons who in this manner acquire sole British nationality to be entitled automatically, generation after generation, to be treated in China as British subjects in the fullest sense of the term? The answer to the first question may well be in the affirmative, and our only remedy in the case of undesirables lie in refusing protection, as is occasionally done in the case of undesirable white British subjects, a policy which, in spite of certain obvious disadvantages, is certainly possible. The practical answer to the second question is more difficult.
17. It has hitherto been the practice, under Foreign Office instructions, to decline to register the births of children born in China of Anglo-Chinese subjects, These children though probably we were not on strong legal grounds in doing so.
are accordingly unable to produce any evidence of British nationality and receive no protection in China. It seems to me of paramount importance that, whatever the result of the arrangements we now contemplate, we should not allow any altera- tion to be made as regards the status of these children. In other words, even if the Chinese authorities were prepared to issue to them denationalisation certificates, we should continue to refuse to recognise them as British subjects. Any other decision would result in the creation of a new and similar problem to the one we are at the moment endeavouring to solve, viz., the bringing into existence of a constantly increasing race of people of Chinese descent-born, brought up and residing in China-quite indistinguishable from the ordinary Chinese citizen.
18. As regards children born outside China of parents of Chinese race who have been granted Chinese denationalisation certificates, I consider that for similar reasons it is essential that, in the event of such children travelling to China, they should be treated as transient visitors of Anglo-Chinese nationality, notwithstanding the fact that their parents, by obtaining Chinese denationalisation certificates, had become solely of British nationality. Although such distinctions may seem legally anomalous, they are not only politically essential, but equitably justifiable, seeing
that in these cases a presumption which could not exist in the case of other British subjects must arise, namely, that they are reverting to their original Chinese nationality.
19. I recommend, therefore, that in the former case of children born in China of parents of Chinese origin no claim to British nationality should be recognised, whether or not based on the ground that the parents possessed Chinese denationalisa- tion certificates, and that in the latter case of such children born outside China, they should be required to obtain denationalisation certificates as a condition of being given British registration and protection for more than six months or whatever period of grace may be fixed for Anglo-Chinese visitors to China.
20. As regards the communication to the Chinese authorities of the names of persons of Chinese race registered, which is at present part of the Shanghai scheme, in spite of certain possible disadvantages, it seems to me essential, if we are to settle this problem by agreement with the Chinese, that lists of names should be communi- cated. China has not at present, and it is unlikely that she will be able to institute in the future, any proper system of checking the entry and exit of travellers, and even if any system of control was introduced elsewhere, it is difficult to see how it could work in the settlements and concessions. It is only reasonable that if the Chinese are to refrain from claiming transient visitors, during the period of grace allowed, as Chinese, they should be supplied with a list of names, for otherwise the first that the Chinese may know of a man claiming to be a British subject may be when he gets into trouble and they wish to bring him into court. Such a situation is clearly undesirable.
21. It is to be understood, and should be clearly laid down; that, whatever may be the practice in other countries, in China recognition, registration and pro- tection are to be synonymous. This is the practice hitherto approved in China, and because of the existence of extra-territoriality it should remain so. By this is meant, in particular, that persons of dual nationality will in no case be registered except for the period during which they are transient visitors, namely, the first six months, and that Section 13, Chapter XXVII, of the Consular Instructions will continue in general not to apply in China.
22. To sum up, the introduction of a system for the issue of denationalisation certificates removes what has hitherto been the chief objection to our accepting in its entirety the theory of Chinese law that nationality is determined by descent. Let us now decide to accept the principle that every person of Chinese race is by Chinese law Chinese in China unless he can obtain a denationalisation certificate, and, having done so, let us put this principle into practice by refusing registration and protection in China to any person of Chinese race beyond a period of six months, during which he will have the opportunity of obtaining a denationalisation certificate.
23. If this proposal is approved, the next step will be to instruct Mr. Brenan at Canton to approach the local authorities there with a view to the modification of the scheme which we have already accepted as regards the Provinces of Kwangtung and Kwangsi in the direction of the Shanghai scheme by the introduc- tion of a period of protection terminating after six months, and at the same time to authorise Sir Sidney Barton to pursue his negotiations in Shanghai. Both at Canton and Shanghai the Chinese authorities are as anxious as we are to see a settlement of this problem; the settlement I suggest is, with only minor modifica- tions, that proposed by the Chinese themselves; it amounts to complete recognition of the Chinese Nationality Law, and thus puts into effect one part of our January offer, and, once adopted at Canton or Shanghai, its extension to all Nationalist territory will naturally follow.
24. The last step, which it will no doubt be thought desirable to postpone for the present, will be the fixing of a definite date after which the registration and protection of existing registrants will be withdrawn, as they have already been warned at Canton may occur, unless they can produce denationalisation certificates. 25. In conclusion, I have the honour to observe that, even if the adoption of my proposals results in some complications and hardship in individual cases, it will nevertheless go a long way towards reaching a final settlement of the problem of dual nationality in China.
I have, &c.
MILES LAMPSON.
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