893.012/30
The Consul General at Shanghai (Cunningham) to the Minister in China (MacMurray)68
Shanghai, May 18,
1928.
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.]
[Enclosure
1—Translation]
The Chinese Commissioner of Foreign Affairs at
Shanghai (Quo
Tai-chi) to the American
Consul General at Shanghai (Cunningham)
[Shanghai,] December 31,
1927.
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,
[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.]
