The Consul General at Shanghai (Cunningham) to the Minister in China (MacMurray)68

No. 5502

Sir: I have the honor to transmit a copy of a communication dated December 31, 1927, from the Commissioner for Foreign Affairs concerning [Page 583] dual nationality, and a copy of this office’s reply dated May 12, 1928, for appropriate consideration.

The question of dual nationality has been considered by the Consular Body as may be seen by item 9 of the Minutes of the Consular Body Meeting of January 18, 1928.69 At that meeting it was decided that each Consul would handle the question of dual nationality independently. At the same time, various members of the Consular Body were of the opinion that a local arrangement should be made whereby the question of nationality of Chinese should be determined in the first instance by the Judge of the Provisional Court and if any representative of a foreign power was not satisfied with the decision, it would then become a diplomatic question.

I have [etc.]

Edwin S. Cunningham
[Enclosure 1—Translation]

The Chinese Commissioner of Foreign Affairs at Shanghai (Quo Tai-chi) to the American Consul General at Shanghai (Cunningham)

Sir: I have the honor to quote the following communication received from the Provisional Court of International Settlement, Shanghai:

“In the civil and criminal cases in which jurisdiction is taken by this Court, controversy often arises out of the question of the nationality of the litigants. In a majority of cases, the point at issue is as follows:

“The litigant’s father is a Chinese citizen but the litigant himself was born or has resided for a certain period in foreign territory obtaining double nationality after he returns to China and is surreptitiously registered with a foreign Consulate.

“In case of litigation, such a person never fails to claim, by way of protest, that he is not a Chinese citizen. Among the latest cases of this nature may be mentioned that of Hsieh Hui-ch’uan (an American citizen by naturalization) and those of Ch’en Chung-chi, Teng Chih-yang, Ch’en Wei-sung, Hsi Yang-kao and Yen Lai-hsien (Portuguese subjects by naturalization). It is because of the dispute over nationality that these cases dragged along for a long while. If such controversy should be decided by Chinese law, these litigants would naturally be recognized as Chinese citizens in the same way as their fathers since the Law of Naturalization is based upon the principle of consanguinity. Unless and until they have secured consent and received certificates from the Ministry of the Interior, they are not authorized by law to become foreign citizens or subjects even by naturalization. According to foreign laws, however, such litigants, born or domiciled in foreign countries and registered with foreign Consulates, are recognized as citizens or subjects of the countries in which they were born or domiciled and are entitled to their privileges. This contention is not without ground.

[Page 584]

“In the opinion of this Court, dispute over nationality interferes with legal proceedings to a large extent and the result would be unpleasant unless a proper solution be worked out and definite arrangements made previously with the various Consuls concerned. This letter is transmitted in the hope that your office will suggest to the Consular Body that, for the guidance of both parts [parties?], a satisfactory arrangement be made as to the manner in which persons of double nationality who are already registered with foreign Consulates should be dealt with (e. g. steps be taken to ascertain if their registration is effected before or after promulgation of the Chinese Law of Naturalization and whether or not such registration is valid) and as to the manner in which future applications for registration should be restricted (e. g. no registration should be effected at any foreign Consulate unless the permit issued by the Ministry of the Interior is produced).

“Cases involving questions of this character are held in abeyance and the hope is entertained that the matter may be taken up at your earliest convenience.”

It appears that in the days of the Mixed Court the number of civil and criminal cases in which complications had arisen out of the question of nationality was by no means small and that, in a majority of such cases, proceedings were delayed by the dispute over nationality. The request of the Provisional Court that the matter be taken up with the appropriate authorities so that satisfactory arrangements may be made as to the manner in which persons of double nationality who are already registered with foreign Consulates should be dealt with and the manner in which future applications for registration should be restricted, is based upon a motive worthy of consideration. Besides communicating with the other authorities at Shanghai, I write to request that you consider the question and let me have a reply.

With my compliments,

Quo Tai-chi
[Enclosure 2]

The American Consul General at Shanghai (Cunningham) to the Chinese Commissioner of Foreign Affairs at Shanghai (Quo Tai-chi)

Sir: I have the honor to refer to your despatch dated December 31, 1927, embodying a communication from the Shanghai Provisional Court in regard to the question of jurisdiction over persons having dual nationality. It was stated that litigants who have been born or have resided for a time in foreign territory obtain dual nationality after they return to China and are surreptitiously registered at a foreign Consulate. This statement can not be correctly applied in the case of those persons having both Chinese and American [Page 585] citizenship, for it is impossible for any person to register himself surreptitiously at this Consulate General. The case of Wai Yuen Char (Hsieh Hui Chuan) was mentioned as an illustration of a Chinese who had been naturalized as an American citizen. This statement is likewise incorrect, inasmuch as Mr. Char is an American citizen by virtue of his birth within the United States. Furthermore, Chinese are not naturalized as American citizens.

It seems altogether likely that the difficulties caused by this question arise chiefly from the conflict of citizenship laws and regulations of our several countries. On this account it is well-nigh impossible to enter into any local arrangements of a general nature which will satisfactorily cover all cases of dual citizenship. It will be readily seen that American Consuls have no authority whatsoever to refuse consular registration to any American citizen who produces sufficient proof of his citizenship; and as Chinese are not naturalized as American citizens, there is never any occasion for requiring applicants to produce a permit issued by the Ministry of the Interior allowing them to surrender their Chinese nationality. It thus seems to be apparent that the chief difficulty in connection with cases of dual Chinese and American citizenship is due to the fact that Chinese law requires Chinese citizens to secure a permit from the Ministry of the Interior before they are allowed to surrender their Chinese citizenship, while American law gives American citizenship to all persons except those with a diplomatic status who are born in the United States. Naturally each country has framed its own laws, regardless of those made by other countries. Also the question is more acute and causes more difficulties in China than elsewhere because of the existence here of extraterritoriality. However, the only solution for this difficulty appears to be to take up each case as it arises and to settle it on its merits, for as long as a conflict of laws exists the executive officers of each government are powerless to change these laws. It is therefore felt that in cases of dual Chinese and American citizenship each country will have to continue dealing with the matter from its own point of view, and here in Shanghai the courts of each country will continue to exercise jurisdiction over such persons, whenever they are able to do so.

It is very much regretted that no better solution of this difficulty can be suggested, but this Consulate General would be very glad to consider any suggestions or proposals that you may care to put forward, keeping in mind the facts elucidated above.

Accept [etc.]

Edwin S. Cunningham
  1. Copy transmitted to the Department by the consul general in his despatch No. 5441, May 18; received June 11.
  2. Not found in Department files.