Nationality
2.1 Definition and Conflict of Nationalities
Nationality refers to membership in a nation which means the relationship between a citizen of a nation and the nation itself,customarily involving allegiance by the citizen and the protection by the state.3 The concept of nationality is the link connecting the state and the people it includes in its territory.By virtue of nationality,a person becomes entitled to a series of rights ranging from obtaining a valid passport enabling travel abroad to being able to vote.In addition,nationals may be able to undertake various jobs (for example in the diplomatic service) that a non-national may be barred from.Nationals are also entitled to the protection of their state and to various benefits prescribed under international law.On the other hand,states may not mistreat the nationals of other states nor,ordinarily,conscript them into their armed forces,nor prosecute them for crimes committed outside the territory of the particular state.4
In the context of private international law,nationality is also a very important definition.First,nationality of a person is the criterion for judging whether he is a citizen or foreigner,and in many cases serves a test to determine whether a case involves foreign elements or not.Second,nationality is a decisive test to determine the specific treatment that a foreigner can enjoy in the forum state,since the foreigners with different nationalities may enjoy different treatments under the bilateral treaties between the forum state and the respective foreign states.Third,nationality may constitute a good ground upon which the court of a given country exercises jurisdiction.Fourth,in some countries,France in particular,a person’s status is primarily tested by his nationality.5
Generally,international law leaves the conditions for the grant of nationality to the domestic jurisdiction of state,and the question whether a given person is the citizen of a certain state can only be decided by the law of that state; however,there is no coherent,accepted definition of nationality in international law and only conflicting descriptions under the different municipal laws of states.For instance,some countries follow the principle of jus sanguinis,i.e.,a person’s nationality is determined on the basis of the nationality of his or her parents—or one (particular) parent—at the time of the target person’s birth,including Bulgaria,Belgium,China,Croatia,Finland,Germany,Greece,Hungary,Iceland,India,Ireland,Israel,Italy,Japan,Philippines,Poland,Romania,Russia,Rwanda,South Korea,Spain,Sweden,Turkey,Ukraine and so on; while others adhere to the principle of jus soli,i.e.,a person’s nationality is determined by his or her country of birth,including Argentina,Brazil,Cambodia,Canada,Chile,Colombia,Jamaica,Mexico,Nicaragua,Pakistan,Panama,Peru,the United States,Uruguay,Venezuela and so on.Furthermore,some countries,say,U.K.,and Russia,recognize dual nationality while others,say,Poland and China,confirm that nobody shall be simultaneously a citizen of more than one state.Under such a background,conflict of nationalities arises naturally.
To be more specific,conflict of nationalities can be divided into two categories: positive conflict and negative conflict.The former connotes that a person has more than one nationality simultaneously,which is often referred to as “dual (or plural) nationality”—sujets mixtes; while the latter means a person not being a national of any state,which is often called “statelessness”—apatriades.
Dual nationality may exist from birth: a child born in the United States of a German father is German in virtue of jus sanguinis6 and American in virtue of jus soli.[4]Or it may result from a marriage: an American woman married to a British man remains an American and may become a British subject.On the other hand,statelessness may arise under ordinary international circumstances,where a child of parents whose home country adheres to the pure principle of jus soli,was born in a country in which the jus sanguinis was in force.
Since nationality is an especially important contact to determine,inter alia,the status and capacity of person,conflict of nationalities,both positive and negative conflict,need to be solved in one way or another.
2.2 Solutions to Conflict of Nationalities(https://www.daowen.com)
From the perspective of comparative law,the following approaches are commonly employed to solve the positive conflict.First,a person who is simultaneously a national of the state of the forum and of some other states is usually considered by the forum as exclusively its own national,his additional foreign nationality being disregarded.This approach has been traditionally followed in France,U.K.,Switzerland,Austria and many other countries.For instance,Article 23 (1) of Swiss Federal Code of Private International Law provides that “[I]f a person is a citizen of one or more States in addition to Switzerland,Swiss citizenship shall be determinative for purposes of jurisdiction based on citizenship.” 7 The Hague Convention on Conflict of Nationality Laws has recognized the right of a state to apply its law in such cases,as its Article 3 provides that “[S]ubject to the provisions of the present Convention,a person having two or more nationalities may be regarded as its national by each of the states whose nationality he possesses.”8
Second,where a person is a national of two or more states but litigation arises in a third country,different approaches are employed by different states as follows: (1) some states,say,Japan before the enactment of the new code of private international law in 2006,applied the law of the last acquired nationality,insofar as it reflects the expectations of the person in question.(2) some states,say,Hungary,9 in this case,apply the law of the state of which the person is not only a national but where he also has his domicile or habitual residence or,in the absence thereof,his residence.10 (3) some states,say,Switzerland,apply the law of the state with which he is most closely connected,as Article 23 (1) of Swiss Federal Code of Private International Law provides that “[I]f a person is a citizen of several states,the citizenship of the state with which the person is most closely connected shall be determinative for purposes of the applicable law unless this Code provides otherwise.”11 (4) some states,say,Greece,12 adhere to a more flexible principle of preferring among several nationalities of a person which in a given case appears the most “effective” one.13 This principle has also been formulated by The Hague Convention on Conflict of Nationality Laws as follows:
“Within a third state,a person having more than one nationality shall be treated as if he had only one.Without prejudice to the application of its law in matters of personal status and of any conventions in force,a third state shall,of the nationalities which any such person possesses,recognize exclusively in its territory either the nationality of the country in which he is habitually and principally resident,or the nationality of the country with which in the circumstances he appears to be in fact most closely connected.”14
As regards to statelessness,most states follow the same approach: individuals lacking a definite nationality are generally subject to the law of their domicile or habitual residence,and in default thereof,to the law of their temporary residence.
2.3 Chinese Law
Chinese law concerning the acquisition and loss of nationality is primarily reflected in the Nationality Law of the People’s Republic of China which was adopted at the Third Session of the Fifth National People’s Congress and effective as of September 10,1980.15 The most important characteristics of this law are listed below:
First,the Law establishes a principle in combination of jus sanguinis and jus soli which effectively solves the negative conflict of nationalities.16 Second,the law adheres to the principle of one nationality,i.e.,it does not recognize dual citizenship with any other country,as Article 3 provides that “[T]he People’s Republic of China does not recognize dual nationality for any Chinese national.” Furthermore,Article 9 goes on to provide that “[A]ny 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.” Within such a setting,a Chinese national,at least in theory,cannot have more than one nationality simultaneously.[5]
The Conflicts Act of 2010 provides an embracive solution to the conflicts of nationalities: when the law of nationality shall be applied under this Act,and the natural person in question has more than one nationality simultaneously,the Conflicts Act provides solutions depending on the specific situations as follows: first,where the person has a habitual residence in one of the countries of which he is a citizen,the law of that country shall apply; second,where a person has no habitual residence in all the countries of which he is a citizen,the nationality which is most closely connected to him shall be determinative for purpose of the applicable law; third,where a natural person has no nationality or his nationality cannot be ascertained,the law of his habitual residence shall apply.17