TNAG-2159-FCO40-3079-Hong-Kong-nationality-package-Chinese-views-1990 — Page 53

CODE 18-77

Reference

41.3.

HKC340 RECEN

SC Mr Peirce

STRY

23 APR 1999

DESK C

TML.

Mr Paal

REGISTRY

Action Taken

DUAL NATIONALITY

1.

! (Proucle Nice)

-

√23/

From: Paul Fifoot

Legal Advisers

Date: 21 March 1990

CC:

CONSULAR PROTECTION

Mr Morris HKD Mr Whomersley Ms Barrett

There appear to be a number of misconceptions about dual nationality and consular protection as regards Hong Kong Chinese who have taken up British nationality but remain in Hong Kong, or are to be found in the rest of China, after 30 June 1997. The position is as follows:-

(i) Dual or "plural nationality arises when, as a result of the operation of two or more municipal law systems [ie national laws] a person is ascribed the nationality of each". (O'Connell: International Law 2nd Edition p 685). If a Hong Kong Chinese who, under Chinese law is, or becomes on 1 July 1997, a Chinese national, has also been registered as a British subject, and he has neither renounced or been deprived of either nationality, he has dual nationality; it is irrelevant to his continuing entitlement to both nationalities (though it may be relevant to some of the incidences of nationality) that China does not "recognise" dual nationality for Chinese nationals. He will remain a Chinese national in Chinese law and a British national in British law.

(ii) "As a matter of practice the British Government will not protect a British subject against a State of which he is also a national.... In the Reparations for Injuries Suffered in the Service of the United Nations Case, the International Court referred to 'the ordinary practice whereby a State does not exercise protection on behalf of one of its nationals against a State which regards him as its own national.'" (O'Connell p 686). DSP Vol 29 para 1.3.1 puts it higher :

"British nationals possessing a second nationality cannot be accorded official British protection in the country of their second nationality; in appropriate cases, however a consular officer may use his good offices on their behalf on a strictly informal basis"

(iii) Para (2) above is stated practice; that practice is in line with Article 4 of the 1930 Hague Convention on Conflict of Nationality laws, although it may not necessarily

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