Why would a grant of British citizenship to Hong Kongers be a treaty violation?

Question

Given the recent political situation, there has been renewed interest in opening a path to citizenship for British Nationals (Overseas). The BN(O) status was conferred on some former BDTCs (individuals with British nationality by virtue of their connection to Hong Kong) who registered between 1987 and 1997.

According to Wikipedia, some people advocated granting full British citizenship to those individuals at the time when Hong Kong was handed over to China, but one reason why this did not occur is that it was considered to violate treaty obligations:

Despite petitions from Governors David Wilson and Chris Patten asking for full citizenship to be conferred on the colony's residents,[32][33] Parliament ultimately refused to grant all Hongkongers right of abode in the United Kingdom, citing difficulty in absorbing a large number of new citizens and that doing so would contradict the Joint Declaration.[20] Instead, it offered citizenship to only 50,000 qualified residents and their dependents, through the British Nationality Selection Scheme.[34] Because many departing residents were well-educated and held critical positions in medicine, finance, and engineering, the intention of the plan was to convince people within this professional core of Hong Kong's economy to remain in the territory after 1997.[29] This limited grant of citizenship, along with the fact that the provision for nationality without UK right of abode was included in a memorandum of the Joint Declaration and not in the treaty text, has been used by proponents for conferring citizenship on BN(O)s to argue that granting it would not be a violation of that agreement.[35] On the other hand, the Chinese government considers even these restricted grants to be a breach of the treaty[36] and specifically disregards the British citizenship of those who obtained it under the Selection Scheme.[37]

Here are my questions:

1. What treaty provisions does China argue would be violated by granting full British citizenship to BDTCs, and why? (After all, granting British citizenship to those individuals would not have required China to recognize it. China would still be able to treat such individuals as solely Chinese nationals, just as they currently do with Hong Kongers who hold a second nationality.)
2. Would these treaty provisions be relevant to a blanket grant of British citizenship to BN(O)s if it were to occur today (in 2020)?
3. BN(O)s are still considered to have British nationality, but without a right of abode in the UK. If the UK could create this special status without violating their treaty obligations, why would China consider it a treaty violation to grant those individuals a status that does entail the right of abode in the UK? In other words, what right does China believe it has, due to treaties with the UK, to specifically prevent the UK from granting a right of abode in the UK to people who used to hold the status of BDTC?
4. Would the proposal referenced in the linked article, namely to make BN(O)s eligible for long-term residence permits in the UK, with a path to citizenship, also be considered to violate treaty obligations?

Answer 1

Upon further research, I believe that this argument may be referring to the UK memorandum to the Sino-British Joint Declaration (not part of the main text of the declaration itself, but part of the memoranda that were exchanged between the countries afterwards). It declares, in part:

In connection with the Joint Declaration of the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the People's Republic of China on the question of Hong Kong to be signed this day, the Government of the United Kingdom declares that, subject to the completion of the necessary amendments to the relevant United Kingdom legislation:

a) All persons who on 30 June 1997 are, by virtue of a connection with Hong Kong, British Dependent Territories Citizens (BDTCs) under the law in force in the United Kingdom will cease to be BDTCs with effect from 1 July 1997, but will be eligible to retain an appropriate status which, without conferring the right of abode in the United Kingdom, will entitle them to continue to use passports issued by the Government of the United Kingdom. This status will be acquired by such persons only if they hold or are included in such a British passport issued before 1 July 1997, except that eligible persons born on or after 1 January 1997 but before 1 July 1997 may obtain or be included in such a passport up to 31 December 1997.

I think that the part that China is basing their argument on is the phrase "without conferring the right of abode in the United Kingdom" in reference to the status that BDTCs in Hong Kong on June 30, 1997 will be eligible to retain. I still do not agree with the argument that a grant of British citizenship would be a treaty violation, for two reasons:

1. The UK memorandum is not a "treaty" or agreement between the parties. While the Sino-British Joint Declaration was agreed between the two sides, and is arguably a "treaty", the UK and Chinese memoranda are unilateral declarations made by the two parties that were not agreed with the other side, and do not constitute promises. The text of the UK memorandum uses the word "declares", not "promises" or "agrees".

2. Even if the UK memorandum were a promise (which, again, I don't think it was), the text of the memorandum doesn't actually say that the UK will not grant British citizenship to people of Hong Kong. The grammar of the sentence is a little bit confusing, and the phrase ", without conferring the right of abode in the United Kingdom," comes within the "which ... entitle them to continue to use passports issued by the Government of the United Kingdom", so I think it simply refers to the surprising fact that the status (which is unnamed in the declaration but is consistent with what is now called "British National (Overseas)" (BN(O))) can entitle the bearer to a passport even without right of abode. It doesn't necessarily say that BN(O) cannot have right of abode in the UK.

   And even if it does say that the status (likely BN(O)) cannot have right of abode in the UK (which, again, is not necessarily what the text says), that is not mutually exclusive with a separate status (like British citizenship) that does have right of abode in the UK. In the memorandum, the UK never said that it will not grant any particular status, only that it will grant a certain status. The fact that the UK will grant a certain status (which may not have right of abode in the UK) does not conflict with the UK granting another status (like British citizenship through the British Nationality Selection Scheme) that does grant right of abode in the UK.

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Former answer:

On a legalistic level, I do not agree that granting British citizenship to the people of Hong Kong constitutes a violation of the Joint Declaration, or is an interference in Hong Kong's affairs, because citizenship and nationality are purely internal matters. Who is a country's citizen or national is determined solely by the law of that country, and what it means to be a country's citizen or national (e.g. what rights and responsibilities there are) is whatever is prescribed by that country's law. Other countries are free to, for their internal purposes, recognize or not recognize a person's nationality granted by a certain country. So, for example, if the UK decided to unilaterally and involuntarily grant British citizenship to everyone in the world with the last name Smith (however unusual this may be), it is free to do so, and no other country has a say in this. Other countries are free to not recognize this grant of British citizenship for their own purposes.

Now, this is not the first time that a country has complained that another country's granting of citizenship amounted to interference. For example, in some separatist conflicts in post-Soviet states where Russia has supported the separatist region, the countries have complained that Russia is giving Russian citizenship to the region's inhabitants, to form a pretext for military interference in the guise of "protecting" its citizens. There is a valid point to this, although a legalist would argue that the problem is not with Russia granting citizenship to anyone it likes, but rather the problem is with the idea that having your citizens in another country gives you the right to interfere there. Does China have a legitimate fear that if a significant portion of Hong Kongers had British citizenship, it would give the UK a pretext for interference? I am not sure, but it is not that far fetched. Western countries often make a big deal when one of their citizens is mistreated or dies in another country, while they do not make the same amount of fuss when far more of that other country's own citizens get mistreated or die for the same reason.

Answer 2

"In this memorandum the Government of the United Kingdom declared that all persons who hold British Dependent Territories citizenship (BDTCs) through an affiliation with Hong Kong would cease to be BDTCs on 1 July 1997".

Also "BDTCs were allowed to apply for British National (Overseas) status until July 1997, but this status does not in of itself grant the right of abode anywhere, including the United Kingdom and Hong Kong. After the handover, most former BDTCs became citizens of the People's Republic of China. Any [people] who were ineligible for PRC citizenship and who had not applied for BN(O) status automatically became British Overseas citizens. " (https://en.wikipedia.org/wiki/Sino-British_Joint_Declaration)

Basically, the Chinese are claiming that any legal interference by the UK in Hong Kong affairs stopped in 1997, according to the treaty. Therefore, should the UK give full citizenship or BN(O) status to persons not having it already, they are breaking the treaty. Therefore, China would also not be obliged to respect it. This last thing is probably the whole point of this strategy. The UK no longer has military or economic muscle to force China to do anything, there is only fig leaf of international law. If the British break that law, there is no need for China to oblige it.

Answer 3

1. China does not argue (present tense) anything in relation to BDTCs, because (for the purposes of this discussion) they no longer exist. Everyone who held BDTC status in relation to Hong Kong lost it on 1 July 1997.
   • It is difficult to speculate on the exact course of Sino-British negotiations leading up to the handover in 1997. However, it seems plausible that this would have been a concession that China would have wanted the UK to make under the circumstances. If the UK is no longer administering the territory, then they would logically no longer extend citizenship to the people of that territory.
2. BN(O)s are in a different boat to BDTCs, because they acquired this status by taking positive action before July 1997. The UK might plausibly argue that it has an independent relationship with these people, which does not depend on the political status of Hong Kong or "one country, two systems."
   • The precise way you characterize this will depend on how you view citizenship. If you consider citizenship to be an exercise of a government's sovereignty, then the UK's position might be questioned on the grounds that they ceded sovereignty over Hong Kong to China, and that BN(O) status is too tenuous of a relationship to support this exercise. On the other hand, you might view citizenship as a private right (or collection of rights) belonging to the citizen, in which case there should be no logical reason that the UK cannot grant additional rights to whomever it wishes.
   • It is also unclear to me whether the Joint Declaration created ongoing obligations here, or merely required a one-time termination of BDTC status.
3. (and 4) This has more to do with realpolitik than legal issues. If BN(O)s have the immediate ability to flee Hong Kong and settle in the UK, this lessens China's ability to control them. China does not like that, so they are characterizing it as a treaty violation. But you can also make a legalistic argument for this, as described in the bullets above.