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It is obvious that if there is any desire to reconsider the whole question, the enactment of this Chinese nationality law affords an admirable opportunity for doing so, and for coming to some arrangement with the Chinese Government on the subject. so as to set matters at rest and obviate petty disputes for the future on these nationality cases.
The desirability of coming to such an arrangement is a matter of policy and not of law, and there are a great many considerations which ought to be taken into account before a decision is arrived at. I mean such questions as whether in the long run Great Britain stands to gain or to lose by a process of ignoring and ousting China's rights over her own subjects, and thereby diminishing the Chinaman's respect for his own Government. There can, I think, be no doubt but that making an agreement with China will necessitate a reduction in the extent to which we claim to protect Chinese. China would have nothing to gain by "agreeing" to the present practice. In fact, she has already flatly refused to countersign passports issued to Anglo-Chinese to visit the interior of China in pursuance of it.
The special rules attached to the Chinese law indicate a recognition by the Chinese authorities that some special arrangements are required to harmonise their system with the laws of foreign countries.
In
Mr. Max Müller (penultimate page of the despatch) treats rules 1 and 2 as covering the persons of double nationality with which the chief difficulties arise. this I think he is mistaken. These rules refer only to persons of Chinese nationality who have been naturulised elsewhere. The difficult cases arise in connection with persons who have acquired the second nationality by birth at Hong Kong, and it is clear from the terms of special rule 7 that China regards such persons as on a different footing from those who have by a voluntary act acquired the foreign nationality, thereby indicating a desire to transfer themselves from Chinese to foreign allegiance. None of the special rules really covers the case of the Anglo-Chinese from Hong Kong at all, but it is noteworthy that in rule 7 China impliedly recognises that a foreign nationality acquired by birth, coupled with long residence in the foreign country, does eliminate Chinese nationality, at any rate, as an active force, because the rule says that in such cases the individuals "can still be considered as Chinese subjects if they desire to retain such nationality.” This is an admission that without such "opting" for Chinese nationality they will be considered as foreigners.
If there is to be negotiation with China it seems to me that what is required is some further special rules based an the theory underlying rule 7, and designed to cover the four cases into which under the existing practice the Anglo-Chinese are divided.
These are-
In
(a.) The children born at Hong Kong of a Chinese father naturalised there. special rules 1 and 2 China has recoguised the force of foreign naturalisation, and I think she would probably recognise the British nationality of this class. It would certainly not be desirable for His Majesty's Government to agree to their being treated when in China as Chinese.
(6.) Children born at Hong Kong of persons who were British subjects by birth in Hong Kong. If the parents have been residents in Hong Kong as well as natives, or have resided abroad, I think China would recognise the British nationality of this class. If they have resided in China, I do not think it is either likely or reasonable that China should forego her claim to jurisdiction over them, and I think the British claim might be abandoned. In effect I think this class will require subdivision.
(c.) Children born at Hong Kong of Chinese parents. It is in respect of this class that I think that His Majesty's Government will have to make the greatest departure from the existing practice if they desire to have an agreement with China, I do not think that China can be expected to treat this class as subject to British. jurisdiction unless the individuals have resided, and continue to reside, in Hong Kong, and do not maintain any permanent place of business on Chinese soil; but in cases* where there is evidence of permanent residence in Hong Kong I do not think that it is unreasonable to expect China to recognise their British nationality, even if they do require to visit China temporarily.
The pinch will come over individuals who reside, not at Hong Kong, but in China, and have been, and are, registered at the British consulates as British subjects, and have always been treated as subject to British jurisdiction. Are these to be banded over en bloc to Chinese jurisdiction P It seems to me that all that can be hoped for is that a list of old-established individuals should be prepared in each consular district whose British nationality might be recognised by China as at
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exception; and that, as to the rest, they should be given a year or some definite period in which they might transfer themselves and their belongings to Hong Kong and settle there, and that if they do make a bond fide settlement there, they should be treated by China as coming under rules 1 and 2 and having abandoned Chinese nationality.
(d) Children of Chinese parents resident in Hong Kong at the time of its cession. In my opinion these people are British subjects, and are not Chinese subjects at all. I have looked at the treaties under which, in 1842 and 1860, Hong Kong and part of Kowloon passed to Great Britain, and it is clear from their terms that the territory was ceded to Great Britain. The effect of cession according to the rules of international law is that the inhabitants of the territory acquire the nationality of the State to which the territory is coded, and lose the nationality of the State making the cession (see " Oppenheim," vol. i, p. 273, section 219). It is because of the operation of this rule effecting considerable hardships in particular cases that in modern treaties a provision is frequently inserted giving the inhabitants the right to opt for their previous nationality, either with or without the condition of leaving the territory (ef, the second article of the Treaty of Frankfort, 1871). No such faculty was inserted in the treaties of 1842 and 1860, and therefore the inhabitants of the ceded territory lost their Chinese nationality. Their issue born in Hong Kong are not Chinese subjects, they do not possess a double nationality at all, and are 'entitled to complete British protection in China.
I am afraid that if I advised in 1904 that these people were of double nationality I erred. With regard to all the classes, I expect that China would claim that people of double nationality according to Chinese law, if they are to be recognised as British subjects, must be treated as foreigners and not claim the privileges of Chinese: they will have to cease to reside in the interior and live only in the treaty ports.
Mr. Max Müller indicates various minor modifications in the decree as desirable, e.g., that applications for recognition of change of nationality should be made through the cousul and not through the local authorities. I think he is clearly right.
It seems to me that it would be very desirable, if the opportunity is to be taken to reconsider the whole situation, to send the papers to, and obtain the observations of, Sir J. Jordan.
The questions with regard to the Kowloon territories held under the lease of 1898 are dealt with in a separate minute.*
C. J. B. H.
Foreign Office, September 1, 1910.
I agree that according to the rules of international law the effect of cession is that the inhabitants of the ceded territory (or at any rate those of them who were immediately before the cession subjects or citizens of the ceding State) acquire the nationality of the State to which the territory is ceded and lose the nationality of the State making the cession.
But international law cannot curtail the right of the ceding State to legislate, within its own limits, by its municipal law for persons within those limits. It is for municipal law to determine who is and who is not a subject of a particular State, and within the limits of such State municipal law is the master law.
Assuming that Liang Tou in international law lost his Chinese nationality when Kowloon was ceded for a term of years to Hong Kong (Great Britain), it does not prevent China legislating municipally so that he may be regarded, as he is apparently regarded, as a Chinese subject within Chinese jurisdiction.
Moreover, I doubt whether the rule of international law above quoted is necessarily applicable in the case of cession for a limited term of years—å form of cession which certainly was not contemplated as possible until quite recent years.
I also think that if it had been foreseen that the result of the cession of Kowloon would have been to turn in time of peace--without notice or option to him-any Chinaman who was resident in Kowloon on the day of the cession into a British subject not only in Kowloon, but in China, some choice in the matter would, and certainly ought to have been, reserved to the person of Chinese origin. It has been certainly usual to give such an option in cases of cession of territory by conquest or arrangement (e.g., the cases of Alsace-Lorraine and of Heligoland), and I think that
• See p. 6.
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