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孔夫子旧书网
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海淀分局备案编号(PDF) De-ethnicization and De-sinicization: Reconstructing the Boundaries of Citizenship in China and Taiwan
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7.95Universiti Sains MalaysiaAbstractThis article examines the efforts of the People’s Republic of China (PRC) and Taiwan to legitimize their statehood through the tool of citizenship in the post-détente era. The normalization of relationships between the United States and the PRC in 1979 resulted in the de-recognition of the Republic of China (ROC). During this period, both states utilized different citizenship strategies to increase their state legitimacy. The newly recognized PRC sought to isolate its rival state through the conclusion of consular treaties and dual nationality treaties. De-ethnicization became a defining feature of the Chinese nationality law with the abandonment of the traditional dual nationality practice and the modification of the jus sanguinis principle. On the other hand, the ROC legitimized Taiwanese statehood by initializing the process of de-sinicization to cultivate a local Taiwanese consciousness which is distinct from the Chinese identity. This article compares the Chinese and Taiwanese strategies to legitimize their statehood by “othering” the alien Chinese and by restricting the access to citizenship rights to those with permanent household registration.
Histories of China, Mongolia, Korea and Japan
47 CHAPTER THREE
DE-ETHNICIZATION AND DE-SINICIZATION: RECONSTRUCTING THE BOUNDARIES OF CIZIZENSHIP IN CHINA AND TAIWAN1
CHOO CHIN LOW
Introduction
The People’s Republic of China (PRC) and Taiwan respectively took very different paths to legitimize their states and citizenries. Intense competition for diplomatic recognition and the increased pressures to establish a separate national identity compelled the states to re-define their boundaries
of citizenship. The way China and Taiwan responded to these challenges portrayed the importance of the issue of nationality in competing for international recognition and legitimacy. In the PRC, the objective was achieved by de-ethnicizing its Nationality Law, while Taiwan responded with the de-Sinicization process (the elimination of Chinese influence).
A Taiwan nation-state or a ‘Taiwanese’ nation did not appear in the official vocabulary for more than 50 years. Since 1949 the Koumintang (KMT) regime had inculcated
sense of Chinese identity into the island’s population. Consistent with the claim that the ROC was the legal government of China, the population was considered as belonging to the Chinese race and ethnic Han, thus sharing the Han culture and ancestry.2 Both the People’s Republic of China and the Republic of China justified the inclusion of Taiwan in China, based on the fact that most Taiwanese are ethnic Hans. The Taiwanese are therefore part of the Chinese nation because they are Chinese.
1 The author wishes to thank the editorial board of ChiMoKoJa and the anonymous reviewers. It would not have been possible to write this version of the manuscript without the insightful remarks and constructive critiques provided by the anonymous reviewer. I am grateful to Dr. Steven Welch, Prof. Antonia Finnane, and Dr. Gideon Reuveni for their invaluable guidance on the earlier version of the paper.
2 Melissa J. Brown, Is Tai w a n
Chinese? The Impact of Culture, Power and Migration on Changing Identities (Berkeley: University of California Press, 2004), 2.
48 More importantly, Taiwan is viewed as Chinese territory by the PRC and the KMT, though this view is largely not accepted by the Taiwanese majority.3
The withdrawal of international recognition coupled with domestic opposition, the forming of the Democratic Progressive Party (DPP), and the lifting of martial law caused the new leadership to legitimize ROC statehood. The leadership believed that Sinicization no longer served that purpose. The KMT under the new president initiated the process of localization or Taiwanization (1988–2000s) to replace Sinicization (1945–1988). 4 The Republic of China (ROC) legitimized Taiwanese statehood by developing a local Taiwanese consciousness, which was separate from the Chinese identity, and by carrying out democratization. As the ROC relinquished its claim over China, it also abandoned its former Chinese identity. As part of the emergence of a separate statehood in the ROC, the regime had sought to create
a sense of
Taiwanese identity, based on
combination of Han, Aborigine, and Japanese culture. 5 As such, the local population is no longer considered as Chinese, but rather Taiwanese. In the aspect of official usage, the term ‘Chinese’ now refers exclusively to people from the PRC.6 President Lee Teng-hui believed that a Taiwanese was not necessarily a Chinese.7
The People’s Republic, on the other hand, attempted to reverse its ethnicized Nationality Law. Citizenship is ethnicized when state membership is acquired with a person’s birth. Birth is the decisive element of citizenship attribution.8 The ethnic Chinese were considered Chinese regardless of their place of birth in accordance with the popular adage “once a Chinese always a
Chinese.”9 The jus sanguinis principle had guided the Chinese pre-war nationality laws of 1912, 1914, and 1929 as well as the nationality practices
Shelley Rigger, “Nationalism Ver s us
Citizenship in the Republic of China on Tai wan,” in Changing Meanings of Citizenship in Modern China, ed. Merie Goldman and Elizabeth J. Perry (Cambridge: Harvard University Press, 2002), 355-357. 4
Sheue-jen Ou Lee, Tai w a n e s e
Identity Construction:
Discourse Analysis of Chinese Tex t b oo k s
from the 1970s to 2004 (ProQuest, 2007), 93. 5 A separate statehood of Tai wan grounded on ethnic differences between the Tai wanes e and mainland population was not a valid argument as far as the PRC was concerned, as other Chinese territories were also comprised of non-Han Chinese such as Tibetans, Muslims. and the Cantonese. Brown, Is Taiwa n
Chinese?, 3. 6
Chao Chien-min and Liu Wen -bin, “From Republic of China to Taiw a n: An Institutional Approach to Taiw a n’s Change of Identity,” in Is There a Greater China Identity?, ed. I Yuan
(Taipei: National Chengchi University, 2007), 203. 7
Lucie Cheng, “Transnational Labor, Citizenship and the Tai wan State,” in East Asian Law – Universal Norms and Local Cultures, ed. Arthur Rosett, Lucie Cheng, and Margaret Y.K .
Woo (London: RoutledgeCurzon, 2003), 85-105, 98. 8 Christian Joppke, “Citizenship between De- and Re-ethnicization,” in Migration, Citizenship, Ethnos, eds. Y. Michal Bodemann and G?k?e Yur d a ku l (New Yo r k:
Palgrave Macmillan, 2006), 68. 9
Cheng, “Transnational Labor, Citizenship and the Taiw an State,” 88-89.
49 in both Chinese states after 1949.10 These laws shared a common feature of jus sanguinis which allowed the ethnic Chinese abroad to transmit their Chinese nationality to their descendants indefinitely. 11
In the quest for legitimacy, the Chinese population became the most important diplomatic battlefield for both governments. Maintaining ties with the overseas Chinese through dual nationality served as a legitimization device for the rival states.12
However, the diplomatic isolation of the PRC caused the communist regime to re-evaluate its nationality principle. During the détente era, de-ethnicization became a defining feature of Chinese citizenship with the abandonment of the traditional dual nationality practice and the modification of the jus sanguinis principle. Chou En-lai’s commitment at the Afro-Asia Conference in Bandung and the signing of the Sino-Indonesian Dual Nationality Treaty signified the turning point in China’s ethnicized citizenship practice. Disclaiming the allegiance of the ethnic Chinese who were overseas, China moved away from ethnic citizenship in accordance to its proclaimed principles of peaceful co-existence. The de-ethnicization of Chinese citizenship thus occupied a decisive position in China’s international diplomacy in its bid to normalize relations with her neighboring states.13
The worldwide recognition enjoyed by the PRC by 1971 enabled it to establish embassies and to have its claim to citizenship recognized. Having been denied diplomatic recognition, the ROC was in no position to demand recognition of its claim to sole representation.14 Realistically, the ROC could no longer impose its nationality upon ethnic Chinese after it had lost mainland China and its seat in the United Nations.15 Even so, legally the government could continue to claim all Chinese as its nationals even though it was not
Hungdah Chiu, “Nationality and International Law in Chinese Perspective,” in Nationality and International Law in Asian Perspective, ed. Ko Swan Sik (Dordrecht Martinus Nijhoff, 1990), 27-64, 34-35. 11
“China’s Nationality Law and Principles of International Law,” in Selected Article from Chinese Yea rb o o k
of International Law, ed. Chinese Society of International Law (Beijing: China Translation & Publishing Corporation, 1983), 204-219, 207 and 209. 12 Jens Damm, “Overseas Chinese and Taiw an: Unresolved Questions of Identity and Belonging,” in Tai w a n es e
Identity from Domestic, Regional and Global Perspective, ed. Jens Damm and Gunter Schubert (Berlin: Lit Ver la g , 2007), 79-100, 84. 13
Chen Jian, “China and the Bandung Conference: Changing Perceptions and Representations,” in Bandung Revisited: The Legacy of the 1955 Asian-African Conference for International Order,
See Seng Ta n and Amitav Acharya (Singapore: NUS Press, 2008); Shu Guang Zhang, “Constructing Peaceful Coexistence: China’s Diplomacy toward the Geneva and Bandung Conference, 1954–55,” Cold War
History 7:4 (2007), 509-528, 512. 14
Shao Dan, “Chinese by Definition: Nationality Law, Jus Sanguinis, and State Succession, 1909–1980,” Twe ntiet h -Century China 35:1 (2009), 4-28, especially 22. 15 Ibid., 25.
50 recognized by the United Nations and the international community. Since the 1929 Nationality Law was based on descent, the withdrawal of recognition did not affect the nationality status of ROC nationals. The adoption of the principle of jus sanguinis (citizenship by descent) was problematic because it allowed the ROC to claim the loyalty of all Chinese regardless of the changes in its national boundary.16 This article examines the impacts of the changed diplomatic scene on the reconstruction of citizenship boundaries in the two Chinese states. This is followed by a discussion on the de-ethnicization of the Chinese citizenship law and de-Sinicization of ROC statehood, while demonstrating how ideas of citizenship were used to lend credence to the legitimacy and sovereignty of states. The two cases highlight the difficulty confronted by a divided state in defining its own national identity. Due to the fact that divided nations are “countries with marked ethnic homogeneity,” identity construction poses a considerable dilemma. As such, it was not viable to develop
national identity distinct from that of the rival state. 17 One common feature shared by the PRC and Taiwan is their tendency to develop a distinct national identity as a response to the non-recognition by most other states. Even though neither Chinese state has constitutionally abandoned its nationality claims, they clearly distinguish between the “mainlander Chinese” and the “Taiwanese Chinese.” Both Chinese states restrict full citizenship rights to their own resident citizens by decoupling the two terms of “citizenship” and “nationality” through a household registration system. Only those who register through the household system can be regarded legally as citizens. Through the distinction, both states competently exempt the population of their rival states from claiming citizenship rights without challenging the jus sanguinis principle of their nationality laws. 18
Ethnicization
De-ethnicization
Chinese Nationality Principle
In an ethnicized state, nationality policies intend to reflect the state’s relationship with its nationals abroad and facilitate
their leaving.
This relationship is maintained through the legal mechanism of jus sanguinis. Ethnicized states are “primarily communities of descent.” 19 Joppke identified
16 Ibid., 23. 17 Richard Ned Nebow and Gregory Henderson, “Divided Nations and Partitioned Countries,” in Coercion, Cooperation and Ethics in International Relations,
ed. Richard Ned Nebow (New Yor k :
Routledge, 2006), 48. 18
Ts e ng Yen-Fen and Wu Jieh-Min, “Reconfiguring Citizenship and Nationality: Dual Citizenship of Taiw a nese Migrants in China,” Citizenship Studies 15:2 (2011), 265-282, here 267. 19 Joppke, “Citizenship between De- and Re-ethnicization,” 75.
51 two elements of an ethnicized state. The first element is that the membership of the state is attributed on the basis of birth. Thus, emigrants maintain their state membership regardless of how long they have been outside the state. Secondly, the state’s membership is transmitted to the descendants of emigrants who are born abroad on the basis of descent. Thus, in an ethnicized state “the state moves with its members and even beyond its territory, continues to exert a ‘personal jurisdiction’ over its citizens.”20
Ethnicity had been the criterion in the attribution of the Chinese nationality since the imperial era. The descent-based Chinese Nationality Law of 1929 allowed the government to maintain the loyalty and absolute obedience of all Qing subjects. Since the Qing dynasty regarded China as a multi-ethnic nation instead of a Han nation, the jus sanguinis principle served the state’s objective of including all Qing subjects in its multi-national state. The jus sanguinis principle “presented
familiar and convenient tool for maintaining the subjects’ allegiance to the sovereign, perpetually.” 21 Individuals born to Chinese fathers inherited nationality by birth alone. As a result of China’s ethnicized nationality law, generations of overseas Chinese held a dual nationality when they were naturalized as nationals in their new host country.22 Gaining the allegiance of the population is vital since the interstate rivalry over the control of the population is closely related to issues of state legitimacy and sovereignty. In fact, the battle for influence and control over nationals abroad is one of the areas of rivalry in the quest for national and international legitimacy. Effective control over population and territory is part of the criteria used by the international community to assess
a government’s international legitimacy, which in turn decides its acceptability by the international community. 23 Since the PRC and the ROC claimed the loyalty of their overseas nationals, overseas Chinese had a special status according to the descent-based nationality laws which placed them at a more advantageous position in terms of the acquisition of citizenship and recognition of a dual nationality status. In addition, they also enjoyed categorical rights, such as the rights of return to their country of origin, naturalization, civil rights, and special welfare benefits, which were denied to non-citizens.24
In enacting their nationality laws, careful consideration was given to the protection of the legitimate rights of their overseas nationals.
20 Ibid. 21 Shao Dan, “Chinese by Definition,” 17. 22
Leo Suryadinata, Chinese and Nation-building in Southeast Asia
(Singapore: Singapore Society of Asian Studies, 1997), 10-11. 23 Gu Weiqu n ,
Conflicts of Divided Nations: The Cases of China and Korea (London: Praeger, 1995), 2. 24 Thomas Janoski and Brian Gran, “Political Citizenship: Foundations of Rights,” in Handbook of Citizenship Studies, eds. Engin F. Isin and Bryan S. Turner (London:
52 The PRC was troubled by complications in diplomatic relations stemming from the presence of a huge number of overseas Chinese in non-communist states. The communist regime reconsidered the practicability of its predecessor’s dual nationality policy when the continuance of such a policy complicated its efforts to establish diplomatic relations. Over the course of the 1950s, the People’s Republic turned away from its dual nationality practice. The de-ethnicization movement that followed was motivated by a political factor. Historians draw upon the fact that the PRC’s policy of prohibiting dual nationality among overseas Chinese since 1955 was initiated to ease the tension in its relationship with the Southeast Asian countries. 25 The Chinese government’s insistence on dual nationality had instigated friction for dual nationals. Thus, Chinese nationals living in Hong Kong, Malaya, Siam, the Philippines, and other Far Eastern countries were subject to resentment and discrimination. 26 Their loyalty was soon questioned, their access to local nationality restricted, and they faced discrimination as they were often associated with the communist activities in their adopted lands. The regime had come to realize that its dual nationality policy hindered the establishing of diplomatic relations with Southeast Asian countries. Though PRC’s foreign policy after 1949 had been guided by its anti-capitalist position, and the overseas Chinese were utilized to spread communist revolution and ideals to the Third World countries, by the 1950s the PRC was more interested in establishing good relations with said countries.27
Initial attempts to de-ethnicize the Chinese nationality principle were implemented through bilateral treaties. The PRC was willing to abandon its dual nationality claim, provided that the country involved concluded a formal treaty recognizing the PRC as the sole Chinese government. Among the Southeast Asian countries, only Burma and Indonesia had diplomatic relations with communist China, and only Indonesia responded to the suggestion, which led to the signing of the Sino-Indonesian Dual Nationality Treaty in April 1955.28 The agreement stipulated that Chinese nationals with Indonesian citizenship were given a free choice to opt for citizenship. It was criticized in Indonesia for giving the Chinese easy access to Indonesian
Sage Publications, 2002), 13-52, 23. 25 Choe Hyun, “National Identity and Citizenship in the People’s Republic of China and the Republic of Korea,” Journal of Historical Sociology 19:1 (2006), 84–118, here 108. 26 The Singapore Free Press, “Dual Nationals Cause Friction,” July 7, 1948. Availa b le from http://eresources.nlb.gov.sg/newspapers/Digitised/Article.aspx?articleid=freepress19480707-1.2.17 (Last access, 31 January 2016). 27 Choe Hyun, “National Identity and Citizenship,” 96-97. 28 Fitzgerald, China and the Overseas Chinese: A Study of Peking’s Changing Policy, 1949–1970, 107-109.
53 citizenship: “In theory, at any rate, the Chinese in Indonesia has nothing to lose by becoming Indonesian citizens, for their Chinese citizenship is regained on heading back to China.” Furthermore, the treaty would enable Chinese consular officials to be stationed in the country.29
In other countries attempts were not successful, as Southeast Asian countries which did not recognize the PRC did not respond to the PRC dual nationality offer. The governments were not convinced of the value of the treaty in return for the recognition of communist China. Acknowledging the setbacks to its offer, Chinese Premier Chou En-lai declared Peking’s policy to end the dual nationality of Overseas Chinese in 1956 without any dual nationality treaties. Thus, ethnic Chinese overseas were no longer Chinese citizens if they had acquired local citizenship voluntarily. Those who had chosen local citizenship were considered to have renounced their Chinese citizenship.30 Disclaiming their allegiance was a far-reaching departure from the 1929 Nationality Law, under which renunciation of citizenship had to be approved by the Chinese government. China now recognized the right to renounce Chinese citizenship.31 This policy was welcomed by the Chinese leaders in Singapore as a timely act,
since as long as this issue remained unsolved, suspicion and mistrust would always plague the Chinese abroad. As Southeast Asian countries were moving towards independence, it was imperative for the Chinese minority to take
stand. Lee Kuan Yew, the People’s Action Party leader,
applauded Chou’s decision: “Peking has moved in the right direction. No man can serve two masters.”32
In the next phase of development, attempts to de-ethnicize Chinese nationality were implemented through two devices: consular treaties and nationality law. In consular treaties that established diplomatic relationships, a
Taiwan clause was included in most cases. As long as Taiwan was recognized as part of the PRC, Taiwan’s claim to sole representation of the Chinese nation could no longer be substantiated. Recognizing the PRC as the sole legal government of China would imply that the recognizing states granted similar recognition to China’s citizenship claim. Through the joint communiqués, the PRC managed to secure the acceptance of its anti-dual nationality principle and to have its citizenship claim recognized.
The Straits Time s,
“Chinese in Indonesia,” June
1956. Avai l able from http://eresources.nlb.gov.sg/newspapers/Digitised/Article.aspx?articleid=straitstimes-1.2.90 (Last access, 31 January 2016). 30 Fitzgerald, Chinese and the Overseas Chinese, 112. 31 Ibid., 113. 32 The Straits Times , “Chinese Hail Chou’s Call to Choose Single Nationality Only,” February 17, 1957.
Ava ilable
from http://eresources.nlb.gov.sg/newspapers/Digitised/Article.aspx?articleid=straitstimes-1.2.76.
Détente and Diplomatic Recognition of the PRC
The beginning of the seventies witnessed three important events that changed the international status of the PRC. These were the admission of the PRC to the United Nations in November 1971, taking over the seat of the ROC; the visit of President Richard Nixon to the PRC in February
1972; and the signing of the Joint Communiqué on the Establishment of Diplomatic Relations in January 1979 with the United States, which signaled the international recognition of the communist government. 33
The Joint Communique of 1979 stated that: “The United States of America recognizes the Government of the People’s
Republic of China as the sole legal Government of China. Within this context, the people of the United States will maintain cultural, commercial, and other unofficial relations with the people of Taiwan.”34 After the PRC was seated at the UN, more states started to recognize the PRC, which controlled the greater part of the Chinese population and territory. At the end of 1971, the PRC was recognized by sixty-nine states compared to Taiwan, which was recognized by fifty-four.35 The switch of recognition was an outcome of a “one-China policy” on which there was consensus in the international community. As the international community switched recognition from the ROC to the PRC, existing diplomatic relations with the ROC were terminated. 36
In joint communiqués signed by the PRC and foreign countries,
a Taiwan clause was usually included. A prerequisite for the establishment of relationships was the recognition of Beijing as the “sole legal government of China” and an acceptance of the PRC position that Taiwan was a
part of China and that any official ties between the contracting states and the ROC would not be tolerated by the PRC.37 All communiqués concluded with the United States and its major allies and some Southeast Asian states contained a “Taiwan clause”: among the states with said clause were the United States, Thailand, Malaysia, Australia, New Zealand, the United Kingdom, Spain,
33 Bryon S. J. Weng, “The Evolution of a Divided China,” in The Chinese and Their Future: Beijing, Taipe i ,
and Hong Kong, eds. Zhiling Lin and Thomas W. Robinson (Washington: The AEI Press, 1994), 355. 34
Joint Communique of the USA and the People’s Republic of China on the Establishment of Diplomatic Relations, 1979. Avail able from the American Institute in Taiwan http://www.ait.org.tw/en/us-joint-communique-1979.html. 35
Alan Wac hman, Why Taiwan?
Geostrategic Rationales for China’s Ter r i t o r i a l
Integrity (Singapore: NUS Press, 2008), 167. 36 Gu, Conflicts of Divided Nations, 108. 37 Shen Lyushun, “The Taiw an Issue in Peking’s Foreign Relations in the 1970s: A Systematic Review,” Chinese (Taiwan) Yea rb o o k
of International Law and Affairs (1981), 74-95, here 76.
55 Greece, Italy, Canada, Belgium, Iceland, Brazil, Japan, the Philippines, and the Netherlands. These countries used ambiguous terms such as “acknowledge,” “take note of,”
or “understand and respect” regarding Peking’s claim over Taiwan.38 However, not all communiqués contained a Taiwan clause. Some contracting states only recognized Beijing as the sole legal government without stating their position on the status of Taiwan, namely Austria, Barbados, Cameroon, Cyprus, Iran, Ireland, Nigeria, and Turkey. Some communiqués declared the establishment of diplomatic relations without even mentioning the recognition of Peking as the sole legal government, such as Bangladesh, Gambia, Ghana, Libya, Mexico, and West Germany.39
In Southeast Asia, Malaysia became the first country to recognize the PRC in May 1974. In the Joint Communiqué that was concluded with Malaysia in 1974 it was stated that “Both the Government of the People’s Republic of China and the Government of Malaysia declare that they do not recognize dual nationality. In accordance to this principle, the Chinese Government considered anyone of Chinese origin who has taken up of his own will or acquired the Malaysian nationality as automatically forfeiting his/her Chinese nationality.”40 The government of Malaysia recognized the government of the People’s Republic of China as the sole legal government of China and acknowledged that Taiwan was an inalienable part of the territory of the PRC. The Malaysian government agreed to close down its consulate in Taipei. 41
The Philippines and Thailand signed a similar communiqué in June and July 1975. Communiqués concluded between the PRC and three Asian states in the 1970s resolved the remaining issues concerning the dual nationality problem of the local Chinese. 42
The neutralization of Southeast Asia made normalization of relations with the communist Chinese regime possible. In the early 1970s, Malaysia initiated the idea of a Zone of Peace, Freedom, and Neutrality (ZOPFAN) in Southeast Asia, and it was supported by the other Southeast Asian countries. Through this concept ASEAN was projected as a region free from foreign interference and superpower rivalry.43
38 Ibid., 79. 39 Ibid., 78. 40 Article 5 of the Joint Communiqué of the Government of the People’s Republic of China and the Government of Malaysia of May 31,
1974 as reproduced in Leo Suryadinata, China and the Asean States: The Ethnic Chinese Dimension (Singapore: Marshall Cavendish Academic, 2005). 41 Article 3. 42 Refer to the Joint Communiqué of the Government of the People’s Republic of China and the Government of the Republic of the Philippines of June 9, 1975, and the Joint Communiqué of the Government of the People’s Republic of China and the Government of with Thailand of July 1, 1975. 43
Lee Lai To, “Taiwan and Southeast Asia: Realpolitik Par Excellence?,”
56 The PRC’s position on the single nationality principle was also spelled out in the 1980 Consular Convention with the United States. In an exchange of notes supplementing the convention, it was stated that “The two governments agree to facilitate travel between their respective countries, of persons who may have a
claim simultaneously to the nationality of the United States of America and the People’s Republic of China, but this does not imply that the governments of the two countries recognize dual nationality.”44 Before the conclusion of the convention, ethnic Chinese who had obtained an American citizenship could not be regarded by the PRC as American nationals and were refused the same protection as other U.S.
citizens during their stay in the PRC.45 According to the exchange of notes, nationals of the United States entering the PRC using American passports would be considered as U.S. nationals by the PRC for the purpose of consular protection. The same principle applied to Chinese nationals entering the United States.46
Reconstructing the Boundaries of Chinese Nationality
The divergence from ethnic citizenship took place with the formulation of the PRC’s first nationality law. Joppke defined “de-ethnicization” as “the process of facilitating the access to citizenship, either through opening it at the margins in terms of liberalized naturalization procedures, or through adding jus soli elements to the modern main road of birth attributed citizenship, or jus sanguinis.”47
The Chinese case features some of the elements of de-ethnicized citizenship as identified by Joppke. The
first element of de-ethnicized citizenship is the introduction of the birth attribute of citizenship (jus soli). 48
The previous laws,
which attributed nationality to descent
(jus sanguinis) alone, resulted in the extensive granting of Chinese nationality. The new law restricted those who were eligible for nationality by combining the element of jus sanguinis with jus soli.
It became more difficult for overseas Chinese children to get PRC nationality as a Chinese could only acquire PRC nationality if he or she 1) was born in China and 2) if one of his or her parents was a Chinese national. The number of ethnic Chinese holding dual nationality would diminish in the future as the PRC recognized the
Contemporary Southeast Asia 7:4 (1985): 209-220, here 210. 44
Paragraph 2 of the US-PRC Consular Convention Exchange of Notes of 17 September 1980 as reproduced in Stephen Kho, A Study of the Consular Convention between the United States of America and the People’s Republic of China (Baltimore: University of Maryland School of Law, 1996), 63. 45 Ibid., 11. 46 Paragraph 3 of the US-PRC Consular Convention Exchange of Notes. 47 Joppke, “Citizenship Between De- and Re-ethnicization,” 69 48 Ibid., 72.
57 automatic loss of Chinese nationality. In contrast with the 1909, 1914, and 1929 laws which did not allow the Chinese to renounce their nationality without permission, the recognition of the automatic loss of nationality was the first modern feature in Chinese citizenship history.49
The second element of
de-ethnicized citizenship is the non-toleration of dual citizenship, from the perspective of the sending state.50 The People’s Republic disclaimed the overseas Chinese with foreign nationality and they were not seen as PRC nationals.51 The single nationality principle was formally gazetted into the PRC’s first nationality law adopted at the third session of the fifth National People’s Congress on 10 September 1980. Article
of the law stated: “The People’s Republic of China does not recognize dual
nationality for any Chinese national.”52 To eliminate dual nationality, Articles 5 and 9, which have been termed as the “anti-dual nationality devices,” were formulated.53 Article 5 eliminated dual nationality acquired at birth by stating that a child of ethnic Chinese overseas did not have PRC nationality if he or she had acquired a foreign nationality by birth.54 For the case of ethnic Chinese living abroad, Article 9
prevented cases of dual nationality acquired through naturalization when abroad, by stipulating that
Chinese national living abroad lost his or her Chinese nationality automatically if he or she voluntarily acquired a foreign nationality.55
The severing of legal and constitutional ties with its overseas nationals coupled with the limitations of birthright citizenship were indications of the reconstruction of the citizenship boundaries. As Joppke put it, mere birth alone does not qualify one to a state membership and jus soli elements have become remnants of the imperial regime. Citizenship is de-ethnicized when the state moves away from its exclusive definition of membership. 56 As a result of the stricter 1980 nationality rule, not all of the
49 Article 4 of the Nationality Law of the People’s Republic of China of 10 September 1980 stated that, “any person born in China whose parents are both Chinese nationals or one of whose parents is
Chinese national shall have Chinese nationality”; available from the National People’s Congress, http://www.npc.gov.cn/ englishnpc/Law/2007-12/13/content_1384056.htm 50 Joppke, “Citizenship between De- and Re-ethnicization,” 74. 51 Suryadinata, China and the Asean States, 63. 52 Article 3 of the Nationality Law of the People’s Republic of China of 10 September 1980
53 Chen Tung-Pi, “The Nationality Law of the People’s Republic of China and the Overseas Chinese in Hong Kong, Macao and Southeast Asia,” New York Law School Journal of International and Comparative Law 5 (1983), 281-340, here 307. 54 Article 5 of the Nationality Law of the People’s Republic of China of 10 September 1980. 55 Article 9. 56 Joppke, “Citizenship between De- and Re-ethnicization,” 69
58 ethnic Chinese could claim the rights to Chinese nationality. Only ethnic Chinese who possessed a Chinese nationality were entitled to rights such as diplomatic protection and political rights. The recipients of such rights were clearly spelled out in the law,
being referred to as those who possess
a “Chinese nationality” rather than as a “Chinese.” As a logical consequence, ethnic Chinese without the Chinese nationality could not participate in the Chinese legislative body. Overseas Chinese were no longer represented in the National People’s Congress and the Chinese People’s Political Consultative Conference.57
The term “Chinese nationality” was, however, not defined by the 1980 law.58 Article 2 only stated that “The People’s Republic of China is a unitary multinational
persons belonging to any of the nationalities in China shall have Chinese nationality.” 59
While the status of overseas Chinese was clear, the status of the ethnic Chinese in Taiwan was not free from ambiguity. According to Article 17, those who had acquired Chinese nationality according to the previous law would continue to be Chinese nationals.60 It could be assumed that the PRC, in its new nationality law of 1980, did not relinquish its claim over the Chinese in Taiwan. Former ROC nationals were PRC nationals by the virtue of law. Being regarded as PRC Chinese nationals, Taiwanese compatriots did not enjoy the same citizenship status as the other Chinese nationals. They constituted a special category of nationals different from ordinary “Chinese citizens” or “foreigners.” This is still the case today. To access full rights as
PRC citizen, the Taiwanese need to register with the household registration system. They are still required to go through the restrictive naturalization process, a process similar to that for foreigners, in applying for Chinese citizenship. Chinese citizenship could be obtained (by a Taiwanese) through marriage to a Chinese citizen or by elderly exiles who are living alone in Taiwan with dependents in the PRC.61
The fact that the PRC treated all ROC citizens as Chinese nationals was evident from the two regulations passed in the early 1990s. In 1991 the “Regulations of the Travel of Chinese Citizens to and from the Taiwan Area”
57 Carine Pina-Guerassimoff and Eric Guerassimoff, “The “Overseas Chinese”: The State and Emigration from the 1890s through the 1990s,” in Citizenship and Those Who Leave: The Politics of Emigration and Expatriation, eds. Nancy L. Green and Francois Weil (Urbana: University of Illinois Press, 2007), 259-260.
58 Chen, “The Nationality Law of the People’s Republic of China and the Overseas Chinese,” 283 59 Article 2 of the Nationality Law of the People’s Republic of China of 10 September 1980. 60 Article 17 of the 1980 Law only stated that, “The nationality status of persons who have acquired or lost Chinese nationality before the promulgation of this Law shall remain valid.”
61 Tseng and Wu, “Reconfiguring Citizenship and Nationality,” 273-274.
59 defined “Taiwan residents” as PRC citizens residing in Taiwan. The regulation had in fact regulated the citizenship status of ROC residents since a formal definition was absent from the 1980 Nationality Law.62 Article 2 of the “Measures for the Control of Chinese Citizens Travelling to or from the Region of Taiwan” stated that “These measures are applicable to Chinese citizens residing in the Mainland who are travelling to or from the Region of Taiwan and Chinese citizens residing in Taiwan [emphasis added] entering or leaving the Mainland.”63
The status of ROC citizens was further reiterated in the Anti-Secession Law, which defined ROC citizens as “Taiwan compatriots.” In the efforts to reiterate the principle of the one-China policy and deny the division of Chinese sovereignty, in Article 2 of the Act the PRC stated that “safeguarding China’s
sovereignty and territorial integrity is the common obligation of all Chinese people, the Taiwan compatriots included.” This Article implied that Taiwan compatriots were Chinese.64
It is difficult to determine precisely who is Chinese and who is not Chinese or who is a Han and who is not
Han, as the Chinese national identity does not have a clear-wrought boundary.65 The boundary between the Chinese and Han identities is not clear either. Besides, it would be problematic to assume that Taiwanese people should be part of the nation of China because they are culturally Han. Defining the boundary of the contemporary Chinese national identity is not that simple while the Tibet problem and the issues pertaining to the overseas ethnic Chinese remain unsolved. Special treatment for overseas Chinese in China and Taiwan distinguished them from other foreigners and further complicated the definition of the boundary of Chinese national identity.66
De-sinicization of the ROC Statehood
To develop a sense of Chinese identity among the population on Taiwan, the KMT administration implemented a
series of Sinicization policies. During the Sinicization process, the word China (zhongguo) was widely used as the
Chi Chung, “International Law and the Extraordinary Interaction between the People’s Republic of China and the Republic of China on Taiw a n,” Indiana International & Comparative Law Review 19 (2009), 233-322, here 246-247. 63 Article 2 of the Measures for the Control of Chinese Citizens Travelling to or from the Region of Taiwan
(March 1, 1992), Asian Legal Information Instutite, AsianLII Databases, http://www.asianlii.org/cn/legis/cen/laws/mftcoccttoftrot816/. (Last access, 31 January 2016).
64 Chi Chung, “International Law and the Extraordinary Interaction,” 247-248. 65 Brown, Is Tai w an
Chinese? 22. 66 Ibid., 24–25.
60 official name for national organizations, and government-owned or government-related enterprises. The term
“Taiwan”
was prohibited in the names of people’s associations. The KMT promoted Mandarin Chinese as the national language in 1953 and prohibited the public usage of Taiwanese local dialects in schools, by government officials, the military, mass media, and in public places.67
Education in the ROC was based on the Chinese language, culture,
and history, aiming to instill
sense of Chinese consciousness. Chinese culture was regarded as the national culture, and Taiwanese culture was treated as folk culture. In the long run, Sinicization policies strengthened the Chinese identity among the local population and weakened the Taiwanese identity.68
As a result, the political identity of Taiwan has been associated with the reunification with China. After Lee Teng-hui became the new president of Taiwan in 1988, the political leadership was no longer preoccupied with the goal of reunification, but instead concentrated on local developments.69 The de-Sinicization program under the new president took the form of constitutional and civic reforms. The ROC restricted electoral rights to the Taiwanese people, rather than to the ethnic Chinese. Through constitutional amendments in the 1990s, only the Taiwanese have the right to elect the governing regime: members of the Legislative Yuan, the National Assembly, the president,
and the vice president. The ROC portrayed itself as the government of the Taiwanese people. It was the local people rather than the mainland people who determined the legitimacy of the ROC regime. Since elections signified the growth of local identity, it was imperative to limit this right to those who could identify themselves with the Taiwanese identity.70
The development of a new political identity as
result of the democratization process, coupled with the extension of citizenship rights and the limitation of the ROC territorial sovereignty to its actual jurisdiction, enabled the nurturing of a local national identity. On the basis of this new political identity, the ROC was able to claim an independent international identity. Democratization also enabled Taiwan to create an international identity which was independent from the Chinese identity of the PRC regime.
Chang Hui-ching and Rich Holt, “Symbols in Conflict: Taiwan
(Taiwan) and Zhongguo (China) in Tai wan’s Identity Politics,” Nationalism and Ethnic Politics 13 (2007), 129-165, here 135-136. 68
Yan g Che-ming, “Taiwanese Skin, Chinese Masks: A
Rhizomatic Study of the Identity Crisis in Taiwan ,” Asian Culture and History 1:2 (2009), 49-56, here 52-53. 69 Timothy Wong
Ka-ying, “From Ethnic to Civic Nationalism: The Formation and Changing Nature of Taiwa n ese Identity,” Asian Perspective 25:3 (2001),
175-206, here 193. 70 Chao and Liu, “From Republic of China to Taiw an,” 202.
61 The creation of this identity was much needed, especially when Taiwan was facing international isolation after it had lost its UN seat.71
Taiwan’s international status was disputed because the international community did not fully de-recognize the ROC, in the strictest sense.
A series of joint communiqués establishing diplomatic relations between the PRC and the United States failed to clarify the status of Taiwan. The Shanghai Communiqué with the Nixon administration on February 28, 1972, the Joint Communiqué with the Carter administration on January 1,
1979, and the Joint Communiqué with the Reagan administration of August 1982 employed vague terms such as “acknowledge” and “not challenge” towards Beijing’s claim to Taiwan. By refusing to use the expression “recognize,” the United States was reluctant to clarify its position in relation to whether Taiwan was or was not a part of China.72
As it was impossible to recognize two states of the same nation, the United States found a
more feasible solution in 1979 by introducing the Taiwan Relations Act (TRA). The TRA in fact restored the
ROC’s sovereignty. The act contained a few provisions which allowed the United States to treat Taiwan as a sovereign nation-state: the ROC was considered as a nation-state under the American Immigration and Nationality A ROC representatives in the United States had full access to all diplomatic
and all agreements between the two states would remain valid.73
While the nature of Taiwan’s statehood remained unsettled, ROC citizens, particularly those abroad, now faced restrictions when they used a Taiwanese passport to travel. Taiwanese passports were not recognized as a valid travel document as the ‘state’ had been derecognized by most countries since 1972. The de-recognition had real implications when the holders of Taiwanese passports faced difficulties in terms of getting a foreign country visa.74 As explained by political scientist Wong Horng-luen: “In the public sphere, more and more people complain about discrimination in foreign countries due to having an unrecognized passport, or due to being misidentified as PRC citizens. Troubles concerning visas and travel documents are most often ridiculed when people talk about Taiwan’s awkward international status and dubious national identifications.” 75
71 Wong, “From Ethnic to Civic Nationalism,” 190-191. 72
Christopher Hughes, Tai w a n
and Chinese Nationalism: National Identity and Status in International Society, Politics in Asia Series (London: Routledge, 1997), 18. 73
Gary D. Rawnsley, Ta i w a n ’s Informal Diplomacy and Propaganda (London: MacMillan Press Ltd, 2000), 17-18. 74
Horng-luen, “Regulating Transnational Flows of People: An Institutional Analysis of Passports and Visas as a Regime of Mobility,” Identities: Global Studies in Culture and Power 11 (2004), 351-376, here 361. 75
Wa ng, Horng-luen.
“Rethinking the Global and the National Reflections on National Imaginations in Taiwan. ”
Theory, Culture & Society 17:4
62 Travelling with a Taiwan passport has been a frustrating experience. Often, visa applications are rejected by
third country due to the absence of diplomatic ties between Taiwan and the specific country.76 The authenticity of their passports were in question, and they were suspected of forging PRC passports. In such circumstances,
“using the Taiwan
passport has been characterized as being nothing less than ‘a third-class national’.”77
The wording on Taiwanese passports, which used the term “Republic of China” instead of “Taiwan,” resulted in confusion among those who were not aware of the ongoing struggle between the two Chinese states. The holder’s nationality was stated as “China” and not “Taiwan.” It was common for the immigration authorities to misrecognize ROC citizens
as PRC citizens, causing much inconvenience and delay in their travel.78 The ROC passports did not contain the term “Taiwan” since this would have implied that Taiwan is an independent state, separate from the PRC. Besides conflicting with the ROC’s one-China policy, the term would have sparked certain opposition from the PRC.79
Dual nationality, then, would definitely ease their travel difficulties. Obtaining a
second nationality was legally permissible under the law. The government had always encouraged dual nationality among its privileged elites. Dual nationality was recognized with the main aim of facilitating the entry and exit of government officials and civil servants during the Cold War years when there were restrictions on people’s movement. Moreover, the ROC accepted dual nationality because it hoped to include all Chinese in the Taiwanese nation.80 In order to maintain an ROC citizenship, dual nationals must use a ROC passport to enter and exit Taiwan.81
Due to the practice of most states which believed that only one state could be recognized in cases of succession, these states have developed an expedient means to deal with the issue of the validity of passports issued by an unrecognized state. In order to maintain their official policy of the non-recognition of the ROC, these countries did not issue visas for ROC travellers. They issued a
separate piece of paper which would be stamped when ROC travellers entered these countries, attached to their Taiwanese passports. This was contrary to the normal practice which involved the stamping of travellers’ passports. By issuing a visa on a separate piece on
here 96. 76 Ibid. 77 Wan g , “Regulating Transnational Flows of People,” 362. 78 Ibid. 79 Ibid., 366. 80 Allen Chun, “The Coming Crisis of Multiculturalism in ‘Transnational’ Tai wan,”
Social Analysis 46:2 (2002), 102-122,here 111. 81 Ibid., 109
63 paper, the non-recognizing states avoided any official travelling records on the ROC passports, thus observing their principle of non-recognition.82
In countries which did not recognize the Taiwanese government, ROC citizens were treated as stateless. If ROC citizens were deemed stateless, it would mean that they were also denied access to international courts. They could not enjoy diplomatic protection and had no means of redress, since the ROC, which was denied the privilege of the international courts, would be unable to exercise diplomatic protection on their behalf. Even if the PRC represented ROC citizens in international courts, it would not solve the problem, as ROC citizens were not considered PRC citizens. If this was the case, 23 million stateless ROC citizens would be deprived of their rights before international courts.83
The ROC was also confronted with the problem of naming its nation and population. The terms
“Taiwan” and
“Taiwanese” are not politically acceptable. Neither the PRC nor the ROC themselves accepted the term “Taiwan” as the official name for the nation-state. Before year 2000, both divided states believed that there was only one China and Taiwan was part of China. If the term “Taiwan” were used, it would imply recognizing the independence of Taiwan, thus challenging their long-standing positions.84 On one hand, the terms “Taiwan” and “Taiwanese” were not acceptable; on the other hand, the terms “China” and “Chinese” have already been taken up by the PRC. Whenever the terms “China” and “Chinese”
were used, they referred to the PRC. 85 As Wang Horng-luen has observed,
As a consequence, there is no way to name the political community of Taiwan insofar as nation and nationality are concerned. Neither “Taiwan/Taiwanese” nor “China/Chinese” can serve the function of signifying the political community on this island.86
Restricting the Boundaries of Taiwanese Citizenry
Having been denied diplomatic recognition, the ROC was in no position to demand recognition of its citizenship claim. The issue of nationality was much more complicated because the ROC faced the double legacy of state succession in 1949 and withdrawal of international recognition by the United Nations in 1971. When the PRC succeeded the ROC as the government on
82 Wan g , “Regulating Transnational Flows of People,” 363. 83 Pasha L. Hsieh, “An Unrecognized State in Foreign and International Courts: The Case of the Republic of China on Taiwa n ,” Michigan Journal of International Law 28 (2006), 765-814, here 811-813. 84 Wan g Horng-luen, “Nation, State, and Cross-Strait Relations: Perspectives from Tai wan,”
Macalester International 18 (2007), 45-75, here 59.
85 Ibid., 64-65. 86 Ibid., 65.
64 mainland China, the ROC lost control over the territory of mainland China. The question arose of whether or not the ROC was still entitled to claim the loyalty of the population on the mainland. Since the ROC was recognized by the international community as the sole Chinese government in the early period of the division, one may argue that the regime had more legitimacy than the PRC to claim the ethnic Chinese as its nationals.87
Claiming the title of the sole representative of the Chinese people, the ROC government had granted citizenship rights to all the overseas Chinese since 1949. A
Chinese with dual nationality enjoyed the same rights as a Chinese with a single nationality in the ROC with the exception of the right to hold public office.88 These rights include the right of representation in the National Assembly, the Legislative Yuan,
and the Control Yuan. Representation of the overseas Chinese in the political system served to legitimize the Taiwanese parliament as a
legislative body that represented the Chinese nation.89
The ROC labelled itself as the “Free China” and continued to use its old name,
“The Republic of China,” and not Taiwan.90
The ROC also maintained the same legislative members as it had before 1949, in order to support the claim that it was the legal Chinese government. The ROC legislative body, which was made up of the National Assembly, the Legislative Yuan (the highest legislative body),
and the Control Yuan (exercises the powers of impeachment, censure, and audit) was comprised of long-standing members who had left the Mainland for Taiwan. They were elected in 1947 in Mainland China and were not re-elected by the Taiwanese people. The KMT did not hold any election until 1969.91 These steps were taken to prove that the KMT was still the former Chinese regime and the CCP (Chinese Communist Party) had not succeeded the KMT.
Taiwan’s move from an authoritarian state towards a democratic state challenged the ethnic-based principle of its Nationality Law. Before Taiwan experienced democratization, ROC nationals enjoyed limited citizenship rights. Though the authoritarian KMT regime expansively granted ROC nationality to all ethnic Chinese, the effects were
not significant. With democratization taking place on the island, ROC citizens enjoyed substantive citizenship rights. Since ROC nationality was now more than a mere symbol, granting ROC citizenship rights to all ethnic Chinese (the PRC population and overseas Chinese) would be questionable.92 Granting citizenship rights to overseas Chinese was disputable as they had no tax or military duties in
87 Shao Dan, “Chinese by Definition,” 22. 88 Chiu “Nationality and International Law in Chinese Perspective,” 60. 89 Damm, “Overseas Chinese and Taiwan,” 83-85. 90 Yan g
“Taiwanese Skin, Chinese Masks,” 51. 91 Gu, Conflicts of Divided Nation, 86. 92 Rigger, “Nationalism Ver s u s Citizenship in the Republic of China on Tai wan,”
65 Taiwan. The continuing enjoyment of any privileges by these foreigners evoked considerable opposition from
the local Taiwanese. In terms of university admission, overseas Chinese students had been enjoying privileges based on ethnicity while local students had to compete against each other for the limited places available. In 1989, students and their parents campaigned against the overseas Chinese’s privilege of admission to Taiwanese universities.93
Opinions were also divided on whether or not overseas Chinese dual nationals should have political rights in Taiwan. The ROC policy of permitting dual nationality to the ethnic Chinese created three practical problems in terms of electoral participation. Firstly, it would be unfair if the ethnic Chinese had electoral rights without sharing obligations such as paying taxes and performing military service, since citizenship rights must come with citizenship duties.94 Secondly, the idea of allowing dual nationals of Chinese origin to vote would have been unrealistic as the overseas electorate would far outnumber the local Taiwanese electorate. Thirdly, the granting of electoral rights would have generated considerable hostility in foreign countries which had large Chinese populations as it might have been considered a violation of sovereignty.95
The debate surrounding the electoral rights of overseas Chinese became an issue in the 1990s when the ROC experienced democratization. Prohibiting the overseas Chinese from voting would go against the ROC principle of sole representation, while allowing them the right would be unfair to the local population. During the premiership of the former President Lee Ting-hui, opposition was in the air against the DPP on the granting of such rights. Despite strong resistance, the Lee administration did not rescind the overseas Chinese political representation. 96 This right was enshrined in the amended Constitution of 1991. In the newly added 17 articles, the constitution guaranteed the overseas Chinese political representation. The National Assembly and the Legislative Yuan were to include twenty and six overseas Chinese respectively. In 1992, through a newly added article in the constitution, the ROC granted political participation to overseas Chinese nationals. Overseas Chinese representatives in ROC legislative bodies were maintained. However, overseas Chinese communities no longer had the voting right to elect their representatives since these representatives were appointed, not elected.97
93 Jie Chen, Foreign Policy of the New Taiwa n :
Pragmatic Diplomacy in Southeast Asia (Cheltenham: Edward Elgar, 2002), 187. 94 Hughes, Tai w a n and Chinese Nationalism, 105.
95 The 1991 Revised Election and Recall Law proclaimed that voters must live in a constituency for at least six months before gaining the right to vote there. Hughes, Taiwan
and Chinese Nationalism, 105. 96 Ibid., 106. 97 Ibid.
Chinese Nationality and ROC Citizenship
Chinese nationality is clearly distinguished from ROC citizenship,
as Chinese nationality, which is granted to all Chinese, is irrelevant in Taiwan. Civil and political rights in Taiwan are determined by the status of ROC citizenship. The exercising of ROC citizenship is based on the establishment of permanent residence, though the ROC
citizenship law still claims all ethnic Chinese as its nationals.98 The ROC differentiates between “citizens” and
“nationals” through
a household registration system. Only those who register through the household system can be regarded legally as citizens.99
Nationals and citizens of the ROC have different rights in terms of immigration and voting. Full citizenship rights such as working, voting, eligibility for social welfare programs, and residence are limited to ROC nationals with permanent household registration in the “Free Areas of the ROC” (Taiwan). ROC nationals without permanent household registration could only access such rights when they are granted the permanent resident status according to the Immigration Law.100 The Election and Recall Law stipulated that the right to vote and run for office is reserved for those with permanent household registration in the ROC. Thus, it is clear that not all ethnic Chinese are entitled to citizenship rights in Taiwan.101
While the ROC Nationality Law did not distinguish between mainland ROC nationals and ROC nationals residing in Taiwan, the two categories of nationals did not enjoy the same rights in Taiwan. Their distinct rights were regulated by the “Act Governing Relations between Peoples of the Taiwan Area and the Mainland Area,” effective from July 31, 1992.102 The Act differentiated between the rights of the “people of the Taiwan Area” and the “people of the Mainland Area.” The former were “people who have household registrations in the Taiwan Area,”
while the latter were “the people who have household registrations in the Mainland Area.”103
The people of the Mainland Area did not have the right to enter the Taiwan
98 Rigger, “Nationalism Vers u s Citizenship in the Republic of China on Taiw an,” 360-361. 99 Tseng and Wu, “Reconfiguring Citizenship and Nationality,” 267. 100 Rigger, “Nationalism Ver s us
Citizenship in the Republic of China on Tai w an,” 360. 101 Ibid., 361. 102 Chi Chung, “International Law and the Extraordinary Interaction,” 248. 103 Article 2(3) of the Act Governing Relations between Peoples of the Taiw an Area and the Mainland Area (July 31,
1992). Availa b le from Mainland Affairs Council http://www.mac.gov.tw/ct.asp?xItem=63756&CtNode=6447&mp=3. (Last access, 31 January 2016).
67 Area.104 Any unauthorized entry into the Taiwan Area made one subject to deportation.105 Even with authorized permission, the people of the Mainland Area could not access citizenship rights without a household registration in the Taiwan Area.106 If people of the Taiwan Area hold PRC passports, they will have their household registration in the Taiwan Area cancelled. A person could not hold household registrations in both the “Mainland Area” and “Taiwan Area” at the same time. Losing such a status would have implied the loss of the rights to voting, recall initiatives, referendums, military service, public office, and other inherent rights.107 A choice must be made by a Taiwanese between the Taiwanese or Chinese household registration. Taiwan does not permit dual nationality for Taiwanese migrants to China,
though dual nationality is legally permissible in Taiwan.108 While the 1929 nationality law attributed ROC nationality based on descent, the 1992 Act Governing Relations between Peoples of the Taiwan Area and the Mainland Area limited the rights of non-domiciled Chinese in the Taiwan Area. Clearly, the Mainland people are not treated the same as the Taiwanese people. The Act was to be applied to overseas PRC nationals or those known as “People of the Mainland Area who reside outside the Mainland Area.”109 The ROC even claimed overseas PRC nationals who were born in foreign countries and held PRC passports. Only former PRC nationals who have 1) resided abroad for over four years and 2) acquired a foreign citizenship were excluded from it.110 The status of the PRC and the mainland population was ambiguous because ROC laws did not specify whether or not the PRC was a foreign country or whether PRC citizens were foreign nationals. For example, the Statute Governing Issuance of Visas on Foreign Passports did not define the term “foreign countries.”111 Similarly, the 1999 Immigration Law does not
104 Article 10. 105 Article 18. 106 According to Article 21, at least ten years of household registration was required for a position in public office, in the government, in educational institutions or state enterprises, or for organizing any political party. Serving in the intelligence or national defence agencies required a household registration in the Taiwan
Area for at least twenty years.
107 According to Article 9 (1), those who already had a household registration in the Mainland Area or a PRC passport were required to cancel them if they wanted to keep their status as the ‘people of the Taiwan Area.’
108 Tseng and Wu, “Reconfiguring Citizenship and Nationality,” 269. 109 Article 3 of the Act Governing Relations between Peoples of the Taiw an Area and the Mainland Area. 110 Article 7 of the Act Governing Relations between Peoples of the Taiw an Area and the Mainland Area. 111 Decision of the Taipei
Administrative High Court No. 4636 on May 15, 2002, in
68 define the term “foreigners.” The official statement that PRC citizens are not foreigners could not be found in the law.112 Article 3 of the Immigration Law only defined “nationals” and “nationals without registered permanent residence in the Taiwan Areas.” “Nationals” refers to “people who reside in the Taiwan Areas and have their permanent residence registered at a household registry or people who reside overseas and have the nationality of the Republic of China” while
“nationals without registered permanent residence in the Taiwan Areas” refers to “nationals who have the nationality of the State nationals and are currently residing abroad, or nationals who have acquired or restored the nationality of the State but have never registered their permanent residence at any household registry in the Taiwan Areas.”113 The question of the status of the mainland population was further elaborated by the Taipei Administrative High Court. In a 2002 decision it ruled that PRC nationals were not foreigners. It justified the argument on the following grounds. Firstly, visitors from the Mainland Area were being issued a travel document by the Ministry of the Interior in accordance with the “Regulations on Permitting Persons from the Mainland Area to Enter the Taiwan Area.” Since the people from the Mainland Area were not issued with a
visa by the Ministry of Foreign Affairs, they were not foreigners. Moreover, the relations between the two states were not regulated by the Ministry of Foreign Affairs but by the Mainland Committee.114
Secondly, people from the Mainland Area were not foreigners because the special relations between the people across the Taiwan Strait were regulated by a special provision. The special provision refers to the “Act Governing Relations between Peoples of the Taiwan Area and the Mainland Area” promulgated on July 31, 1992. Since the ROC did not have jurisdiction over the mainland, it was necessary for the regime to temporarily solve the status of the mainlander prior to unification.115
This was not surprising as the regime’s claim on its territorial boundary also reflected inconsistencies. It was evident from the Act
Chiu Hungdah and Wu Chih-Yut ,
“Contemporary Practice and Judicial Decisions of the Republic of China Relating to International Law, 2002,” Chinese (Taiwan) Yearbo o k
of International Law and Affairs 20 (2002), 93-182, here 131. 112 Ibid., 132.
113 Article 3 of the Immigration Law promulgated on}