Friday, February 09, 2007

Dual Citizenship Can Be Hazardous To Your Health

Celil's family had given up hope1
The Globe & Mail reports that Uyghur-Canadian Huseyin Celil is alive--though not particularly well--and made a court appearance in China last week. Celil fled China and was granted Canadian refugee status, and eventually citizenship, but while on a trip to Uzbekistan he was arrested and extradited to China as an alleged terrorist working for the Uyghur separatist movement. Canada's gotten no traction when it comes to diplomatic access.

Chinese officials have repeatedly rejected Canada's contention that Mr. Celil is a Canadian citizen. They even refuse to recognize the name on his Canadian passport. Instead they call him by his Chinese name, Yu Shanjiang, and they insist that he is a terrorist and a Chinese citizen.

Why is that? you may ask. Well, its because of the biggest wrinkle in the whole nationality/protection edifice. It goes something like this: nationality/citizenship has two elements, a) that it is recognized by the state of purported nationalism (in this case, Canada), and b) that it is recognized in international law.2 Some countries, like Canada, accept dual citizenship (which is a relatively new idea on the international law front), and some, like China, do not.3

However, there doesn't appear to be a rule in international law that requires states to "give up" their citizens when that citizen obtains foreign citizenship. Some states phrase it logically (e.g., citizens lose their citizenship the minute they take on a foreign citizenship, which is efficient because it protects the state against dual nationals and the person against statelessness or impaired mobility rights), and some phrase it vaguely, like China, and what they really mean is "As far as we a concerned, you are a citizen from now until the day you die, and we will simply disregard any other citizenship you claim to have." Once a person is in the jails of that country, the other state (of actual or secondary nationality, depending on your point of view) cannot do much but put political pressure for access to or release of the prisoner.

This is the same quirk that caused serious delay in Maher Arar's case,4 and those of several other Canadian-Syrians. People who disagree with dual nationality may say: well, that's what you get--but the fact is that one cannot get rid of Syrian or Chinese citizenship (or at least, not if the Syrian/Chinese government wants an excuse to hold you). These are not dual citizens, these are forced citizens.

The only upside is that the opinio juris of the international legal community has shifted towards a more flexible definition. Whereas according to the 1930 Hague Convention on Certain Questions relating to the Conflict of Nationality Laws stated:

Article 4: A State may not afford diplomatic protection to one of its nationals against a State whose nationality such person also possesses.

The International Legal Commission's Draft Articles on Diplomatic Protection, while not binding, are nevertheless persuasive and offer this far more nuanced approach:

Article 7
Multiple nationality and claim against a State of nationality
A State of nationality may not exercise diplomatic protection in respect of a person against a State of which that person is also a national unless the nationality of the former State is predominant, both at the date of injury and at the date of the official presentation of the claim.

This means that international law would allow Canada to assert its "ownership" or otherwise right of protection over Celil in an international forum (although what forum and on what grounds would depend what treaties are in force between us an China, among other things).

Cold comfort, I'm sure, if China executes him.

  1. Geoffrey York, Globe & Mail Online, 9 Feb 2007.
  2. Nottebohm Case (Liechtenstein v Guatemala), [1955] ICJ Reports 4; summarized at the ICJ website. In order for nationality to be recognized at international law, it must have a factual basis: the claimant must have a real and substantial connection to the nation of purported nationality. Of course, this particular case was wrongly decided, in my opinion, because the ICJ rendered the poor man stateless. His birth country didn't consider him a citizen, his country of residence refused to grant him citizenship, and the only country which did grant him legal citizenship was later told that citizenship was null and void. Nice.
  3. According to the Nationality Law of the People's Republic of China, Article 3: The People's Republic of China does not recognize dual nationality for any Chinese national. Availible here on the Government of the Hong Kong SAR Immigration site.
  4. Althogh the delay only occurred after Canada and the US had merrily sent him on his way to be tortured.

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