Justin Bong-Kwan is a writer and practising barrister based in Hong Kong.
On the eve of the 23rd anniversary of Hong Kong’s handover from Britain to China, the National People’s Congress Standing Committee in Beijing unanimously passed a national security law that has since been adopted in Hong Kong. Some observers see the move as a sign that Beijing is tightening its grip on the city, which has been marred by political unrest and conflict over the past year.
Prime Minister Justin Trudeau has voiced concern over the situation in Hong Kong, pointing out that 300,000 Canadians currently live in the territory. Indeed, after the U.S., Hong Kong has the largest community of Canadians living abroad. The wave of immigration from Hong Kong to Canada prior to the handover was well-documented in Margaret Cannon’s book China Tide: The Revealing Story of the Hong Kong Exodus to Canada. In the years that followed, some returned to Hong Kong with their Canadian-born children to take advantage of the city’s attractive economic conditions and career opportunities.
However, the nationality of these naturalized Canadians in the territory is a thorny issue – and could have implications for any Canadians now considering moving away from Hong Kong.
The reason is that China’s Nationality Law appears to reject the idea that first-generation Canadians from Hong Kong and their children are in fact Canadian if they live in Hong Kong. Pursuant to the law’s application to the city, a Hong Kong resident of Chinese descent who was born in Hong Kong is considered a Chinese national. Unlike Canada, China does not recognize dual citizenship. Acquiring foreign nationality does not negate Chinese nationality in the absence of “settling abroad.” And children born abroad to Chinese nationals are also considered Chinese nationals.
Recently, the U.K. responded to China’s national security law by announcing that it would create a pathway to British citizenship for Hong Kong’s approximately three million holders of British National (Overseas) passports. Beijing, however, has warned that this may prompt “corresponding measures.” If these measures result in travel restrictions on Chinese nationals in Hong Kong, the practical effect of such restrictions on Chinese-Canadians who wish to leave may sweep Canada into a diplomatic conundrum.
Relations between China and Canada remain tense over the arrest of Huawei executive Meng Wanzhou in Canada and the detention of Canadians Michael Kovrig and Michael Spavor in China. Mr. Trudeau has been facing twin pressures: to stand firm against China and to give in to this “hostage diplomacy.” It is unclear which approach will prevail.
In any event, Canada’s international obligations under the 1930 Hague Convention on Certain Questions Relating to the Conflict of Nationality Law would prevent Ottawa from interfering with the treatment of Chinese-Canadians in Hong Kong. Under the convention, it is for a state to determine who its nationals are, according to its own laws. A state cannot provide diplomatic protection to its own nationals against another state if those individuals also have that nationality.
Indeed, if Chinese-Canadians are barred from leaving the city by virtue of being considered Chinese nationals, Ottawa’s hands would be tied.
Hong Kong’s Chinese-Canadians may be eyeing a return home in the wake of Beijing’s new security law. But if they assume they won’t be affected by political developments because of their Canadian passports, they should think again.
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