Has China Shirked its Obligation to its Citizen Kidnapped by Hamas?

Home | China Law Blog | Has China Shirked its Obligation to its Citizen Kidnapped by Hamas? Noa Argamani is one of the hostages seized by Hamas and a video of her abduction has been circulated worldwide. Though Noa grew up in Israel, her mother was born and raised in China. Her parents have embarked on a public relations campaign to highlight Noa’s Chinese background. The family believes that given the long-standing cordial relationship between Palestinian political groups and Beijing, Hamas would hesitate to harm a person identified as Chinese. A child with one Chinese citizen parent automatically receives Chinese citizenship The Chinese Foreign Ministry has deflected all questions about Noa, including whether she holds Chinese citizenship. But Noa is most likely a citizen of China, regardless of where she was born and even though she is a citizen of Israel. How is this possible given that China generally does not recognize dual nationality? The answer lies in provisions of Chinese law that prescribe that a child with one Chinese citizen parent automatically receives Chinese citizenship, even if the child is also automatically a citizen of another country. Article 4 of the Chinese Nationality Law (Chinese version here) provides that a child born in China to one Chinese parent is a Chinese citizen. The initial post by the Israeli Embassy in China stated that Noa was born in Beijing in 1997. If this were true, then Article 4 would have conferred automatic Chinese citizenship on Noa. There is no exception to this rule and its application would have been straightforward in Noa’s case. That Noa would have received Israeli citizenship through her father is not relevant under Chinese law. A child born outside of China to at least one Chinese parent is a Chinese citizen Noa’s mother has since said that Noa arrived in Israel for professional training in 1994 and Noa was in fact born in Israel. In that case, Article 5 governs Noa’s Chinese citizenship. That provision provides (again) that a child born outside of China to at least one Chinese parent is a Chinese citizen. The only exception to this rule is if the Chinese parent has “settled abroad” and the child at birth has foreign nationality (the requirements are conjunctive as context of the Chinese original makes it clear). As a result, Noa’s Chinese citizenship depended on whether her mother was “settled abroad” in 1997. The Chinese government has interpreted this term (定居在外国 in Chinese) to mean having acquired foreign permanent residence. Therefore, a person born in the U.S. to a Chinese parent who does not possess a green card is a Chinese citizen as a matter of Chinese law. The Chinese government would not stamp a visa in that person’s American passport and would permit her to enter China only as a Chinese citizen. China apparently applies this policy worldwide, as this helpful citizenship chart from the Chinese consulate in Manchester, England, demonstrates (in Chinese only). This chart makes clear that a person born in the U.K. to a Britsh parent and to a Chinese parent who lacks permanent residence there is a Chinese citizen, even though that person also automatically qualifies for British citizenship as a matter of British law. I have no particular expertise in Israeli immigration laws. But marriage-based immigration to Israel is apparently a time-consuming bureaucratic process. It is fair to surmise that when Noa was born in October 1997, only three years after her mother’s initial arrival in Israel, her mother had not yet “settled abroad” as that term is defined by China. On the basis of that assumption, Noa has been a Chinese citizen from birth. Article 9 of Chinese Nationality Law provides for automatic loss of Chinese nationality if the person “has been naturalized as a foreign national or has acquired foreign nationality.”But the Chinese government has taken the position that this provision does not apply when a foreign nationality is automatically granted at birth, even though it would create serious tension with China’s principle of non-recognition of dual nationality (as reflected in Article 3 of the Nationality Law). China solves this tension by simply refusing to honor the person’s other nationality. One person born in the United States to Chinese parents and raised here found out to her surprise as an adult that she had Chinese citizenship due to the “timing of my parents’ green cards.” The only way that Noa could have relinquished her Chinese citizenship was through a cumbersome renunciation process. This is almost impossible to accomplish from outside China (I have represented clients who needed to do this to obtain job related security clearances in the United States). I doubt that Noa has gone through the process. In light of what we know about Noa, her mother, and Chinese nationality rules, it is reasonable to surmise that Noa has Chinese citizenship in the eyes of Chinese law. That would, under international law, impose legal and moral obligations on China to work for Noa’s release. Having conferred citizenship on her and not recognizing her Israeli nationality as a matter of domestic law, China is legally required to assist her at a time of distress. But given the geopolitical factors in play here, it is unlikely Beijing will honor its obligations. The above is a guest post by Minyao Wang, a New York based trial attorney with Reid Collins law firm. 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