Ryan has a great blog called Lost Laowai and writes from China. One of his readers contacted him about a dire situation he faced. The thread is documented here: What to do when your Chinese ex-wife runs away with your child?. Situations such as these seem common enough that they surface from time to time from different countries but always remain under the radar of the international news services. They apply not only to children but to adults as well. If you are living abroad, you start a family and have kids, be aware of these supposedly well known international laws or you might be in for a huge shock when this go badly wrong.
Lost Laowai: Blogging about China
I’ve just received a rather disturbing e-mail from a fellow expat here in China. As I really don’t have any experience, or know anything about the laws or official steps that can be taken, I figured I’d post it on here in hopes that our wonderful readers might have some advice to give.
The e-mail reads:
Hello. I wonder if you could help me. I am an American in China and my Chinese ex-wife and her boyfriend have abducted my five year old daughter. I need some legal help to try to get my daughter back. I’m alone and I don’t know what to do and could sure use some help and support.
Thank you
Jon XXXXXJon’s asking, anyone have any ideas what can be done?
___I had long ago read in my international relations class that, by international law, your country of birth had specific legal rights, no matter that you now have a foreign passport. These rights include the ability to deny you consular services of the country of your passport, indefinite detainment, etc. In other words, your country of birth have the legal ability to treat you as a local and screw you around if you go back and visit them. No matter about your fancy new passport from wherever. Some countries do not allow you to renounce your citizenship because you were born there, so you will always be their citizen. Some countries bestow automatic citizenship on wives of citizens (some Gulf Coast countries). Many people find out about these international laws long after they are neck deep in trouble, which is way too late.
___For such an international law, it remains for me difficult to find the original source. I’ve tried to search the internet for citation but could not get a definitive answer. I could not find a name, a convention, or treaty for it. Maybe, I thought, it never existed? If it was repealed there would be some news item somewhere on the internet. I fear I found a hole in the knowledge base of my beloved internet.
___By chance I stumbled upon a US Department of State document (U.S. Department of State telegram to all U.S. diplomatic and consular posts abroad concerning consular assistance for American nationals abroad, January 1, 2001) document, which documents:
10. Arrest in the Country of the Other Nationality:
Generally speaking, consular notification is not/not required by treaty if the U.S. citizen detainee is also a citizen of the country where the arrest occurred. This is true even if the detainee’s other country of citizenship is a mandatory notification country. It is a generally recognized rule of international law that when a person who is a dual national is residing or traveling in either of the countries of nationality, the person owes paramount allegiance to that country.
___Because this child was born in China, he is without question a Chinese citizen. If there was proof that this child’s father was American, and even if the US granted immediate citizenship to kids born outside the US to American citizens, that would make the child a dual national. Unfortunately China does not acknowledge dual citizenship. It is unclear if China would even allow the child to have US consular contact, and the US Consulate may be powerless to demand China return or even see the child. It is unclear if someone born in China can renounce their Chinese citizenship. Then again in China there is the written law and then there is the law of the street.
___Yokie Yuma wrote in the thread: “**confusion** Does this mean, that for the rest of the child’s life, even if they received a passport/citizenship from their father’s country, they can be detained here in Ch1na when coming or going?”
___Firstly, the father would have to unequivocally prove he is the father. Then the father would have to apply for a US passport for the daughter. Will the US Consulate approve this? How will you get the child, without the mother’s permission, to the Consulate? Let’s assume this has been done. The child is now a dual citizen, which China does not allow.
___Even if you give up her Chinese citizenship, the US passport will always state the country of birth, which China can use to detain her. If her US passport does not have a country of birth (you can apply to not have this on your passport), some countries may not allow her to enter the country.
___It is unclear whether she would be able to come and go just like a US citizen. Certainly China will always have rights to detain her due to international law. It is this uncertainty that can be worrisome. Even if China had a law they may not uphold it. With China you never know.
___This thread touches on automatic citizenship to children of US parents, though does not give many details but you can use it for further research. This thread discusses children of one US citizen and one non-citizen who live together out of wedlock. Moms rule.
Children born abroad to unmarried American mothers are automatically considered natural-born citizens, as long as the mother has lived in the US for a continuous period of at least one year, anytime prior to the birth. But children born to American fathers unmarried to the children’s non-American mothers are not considered natural-born citizens (or citizens at all) unless the father takes several actions:
* Provide financial support to the child until he reaches 18,
* Establish paternity by clear and convincing blood evidence,
* Acknowledge his paternity formally before the child has reached his 18th birthday
o This last element can be shown by acknowledging paternity under oath and in writing; having the issue adjudicated by a court; or having the child otherwise “legitimated” by law. USC § 1409(a).
___What is not discussed is automatic citizenship for children of a US citizen married to a non-citizen. I’ll leave this research to an American.
Here are some research terms:
Jus Soli or “birthright citizenship”: a right by which nationality or citizenship can be recognised to any individual born in the territory of the related state.
Jus Sanguinis or “right of blood”: nationality or citizenship is not determined by place of birth, but by having an ancestor who is a national or citizen of the state.
Nationality Law of the People’s Republic of China : Interestingly nothing in this link covers children. It does say in Article 9: Any Chinese national who has settled abroad and who has been naturalized as a foreign national or has acquired foreign nationality of his own free will shall automatically lose Chinese nationality.
Wikipedia: Nationality Law of the People’s Republic of China: Citizenship by birth
Chinese nationality law operates mainly on the basis of jus sanguinis (“right of blood”). On 1st October 1949, most people of Chinese nationality acquired PRC nationality.
In general, when a person is born in China, that person is a Chinese national if he or she has at least one parent of Chinese nationality, or if both parents are settled in China and are stateless or of “uncertain” nationality.
A foreign-born person with at least one parent that is a Chinese national has Chinese nationality so long as that parent has not “settled” in that country. The term “settled” is usually taken to mean that the Chinese national parent has permanent residency in the country concerned. A person born outside China, including those with parent(s) of Chinese nationality, does not have Chinese nationality if a foreign nationality is acquired at birth, if the Chinese national parent has settled abroad.
In China, children born of Chinese-foreign marriages are considered to be Chinese citizens by the PRC government, which can cause complications if a foreign passport is subsequently used to exit China.
Forum thread on Children with Dual Nationality: “My wife is Chinese and I am British, and our baby girl was born in China, so she will have two passports…”
Some great information that everyone who is married to a Chinese national and/or having children in China need think about. You’ve done a great service pulling this together.
Children born in North America really take their citizenship for granted.
It’s unfortunate, but a person can be either lucky or unlucky, depending on where his or her mother is at the moment of delivery. There really isn’t anything such as international law, just bilateral and multilateral agreements to respect laws and rules established in foreign locales.