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The citizenship of Hong Kong people : political and legal challenges before and after the handover

by Chan, Ping-fai

Abstract (Summary)
(Uncorrected OCR) The Citizenship of Hong Kong People Political and Legal challenges before and after the handover Chapter 1 Definition of Citizenship In the Oxford Advanced Learner's Dictionary, citizenship means the rights and duties of a citizen and a citizen means a person who lives in a country has the full rights in a state either by birth or by other means like marriage, naturalization to gain such rights. It is a term to stress the relation between an individual and the state. Citizenship is also a term to differentiate people over the world into different groups for political, social and legal reasons. For example, American is American. He has the rights as a citizen in that country but usually not the others. He is not an Australian. He cannot enjoy the rights and benefits and fulfil the duties as an Australian in Australia. In that sense, citizenship also implies that a person can be included into or excluded from the state because he is a citizen of that state or because he is not a citizen of that state. 2 Of course, for some countries like the United Kingdom, dual citizenship is allowed and the citizen in that case will both have the rights and fulfil the duties as the citizen in two countries and sometimes even more than two countries. But in some countries like the Mainland China, dual nationality is neither recognized nor accepted. According to Keith Faulks, rights are not the only element associated with citizenship, but duties and obligation too. Citizenship gives rights and freedom to individual to live their own lives, have their choice of religion and employment, etc. Every citizen enjoys the same freedom and rights irrespective of the race, community, family, etc. Apart from rights, obligation and duties also join to balance with rights under citizenship to make the community stable. The duties include paying tax, serving military term, etc. Through the community structures like the legislature, the law enforcement agencies, the judiciaries, the social security system, the medical and education systems, every citizen is making his/her contribution to duties and obligation whilst enjoying his/her rights under citizenship. For the very reason that citizenship upholds equity amongst individuals in term of rights, obligation and duties, citizenship is always taken as a useful tool of governance for social order and distribution of resources in the community. Besides, it is because citizenship strongly recognizes the identity and value of individuals and provides a method to 3 handle the problem of distributing resources fairly, the states and many political parties, no matter they are on the right or the left, are very keen to run and promote the concept of citizenship for the purpose of better governance and for the ability to place duties on individual and to include or exclude individual to the community. l Keith Faulks also raises some other questions of citizenship namely, "who should be regarded as a citizen and what criteria are legitimate in excluding some from the benefits of citizenship?", " what should the content of citizenship be in term of rights, duties and obligation?" and "how deep and thick should the conception of citizenship be?" 2 As in the past, acquisition of citizenship is limited on the basis of country where it is linked closely with nationality. To quote, if one is a US resident and acquires the American nationality by virtue of his connection such as birth or a period of residence with that country, he has the US citizenship. For the others, they may not even have the chance to take up residence in that country because they do not have the right of abode in that country. In addition, they are refused the permission to land in that country upon arrival. Even if they have successfully entered the country legally and taken up residence, they may not be able to acquire the nationality and subsequently the citizenship. It is because understandably, every country has set 4 its own conditions for granting nationality and citizenship to anyone and its own immigration laws for allowing foreigners to enter the country for residence and granting nationality and citizenship. This brings out the question as quoted by Keith Faulks on limitations of citizenship in the sense that individuals are not free to choose the country that he/she would like to take up residence and the citizenship. The situation is particularly exemplary in the cases of the refugees and immigrants who are often refused the landing permission, just not to mention the citizenship. This underlines the need of making such a provision under the United Nations Universal Declaration of Human Rights (Article 15.1) that right to citizenship is a fundamental human right.3 Citizenship rights Drawing reference to the Western experience of citizenship, T.H. Marshall spells out that the modern state has granted the following rights to its citizens 4 : ? Civil rights: rights required for individual freedom like personal liberties, property rights, and the rights to the process of laws, etc. ?? Political rights: the rights to participate in the exercise of political power, such as 5 the rights to vote and be elected in public office. # Social rights: a whole range of rights relating to economy, welfare, employment, housing, pension and social security, etc. The rights as defined by T H Marshall and Keith Faulks in the above paragraphs have combined to uphold citizenship rights are important to individuals because citizenship first recognizes the individual's identity. It gives individuals the freedom to have their own choice and saves them from interference from the state. According to Keith Faulks, "The importance of rights is that they denote political agency and recognize the individual as worthy of respect and consideration." "Rights are crucial to the successful resolution of problems of governance, namely the need to distribute resources fairly and to maintain social order" and "the recognition of the equal status of each member of the community". 5 Furthermore, different individuals may have different interests and values even if they have the same citizenship. There are often conflicts arising from the differences among individuals. Rights will take effect to resolve the conflicts as the rights means respects and protection to individuals. Rights also provide an objective platform for individuals to strike the balance between their own interests and differences with others. 6 Citizenship responsibilities Citizenship responsibilities often refer to such duties as tax paying and serving the army. In the last decade, as the welfare states have taken over many of the responsibilities that should have been taken up by the responsible citizens. Individuals in these welfare states are often found to have a sharp neglect of responsibilities. For example, the mass unemployment in the Western societies since the 1980s had met with the contributory social system. Consequently, the demand of responsibilities upon individual citizens had been undermined by the state welfare system. 6 Citizenship nowadays is making more emphasis on responsibilities and placing restrictions on conferring citizenship to individuals. The states will set up conditions with which individuals will be declined the citizenship if he/she fails to comply with the responsibilities that associated with that citizenship. For example, an immigrant is granted citizenship only after depositing a certain sum of money to ensure that he/she will not resort to social security after his/her settlement in the country. 7 A historical overview According to Keith Faulks, the idea of citizenship has "its origin in ancient Greece". The first expression of citizenship was found in the Greek politics in Athens in around fifth century, BC. "The citizenship of the Greeks, however, was different in its form and function from citizenship in the modern period," 7 The context of Greek citizenship was a small-scale democracy whereby citizens could run their own legislative, executive and military functions. The citizenship at that time was obligation-oriented rather than right-oriented because of the frequency and importance of warfare. It was also exclusive in nature as it was a privilege and status. At the time of the Roman Empire, citizenship turned to be more inclusive as the empire had extended its reach to other continents and through the inclusive arrangement, it would draw more tax for the military expenditure. After the fall of the Roman Empire, the citizenship in medieval period began to develop when the money economy and industrial activity started to nourish and demand tax from the community. This had planted elements of obligation into the concept of citizenship. The French Revolution of 1789 further provided an important sense of obligation and identity for citizens. In the 18th century and afterwards, the concept of citizenship had modernized and developed amid the economic growth and the social movements 8 involving women, ethnic minorities and the disabled demanding for their rights as citizens in a state.8 In the 1990s, the concept of citizenship has further developed beyond the limit of a country towards regions or the entire continent. The EU represents the move to extend the rights of citizenship beyond the state. 9 Social consideration According to Keith Faulks, citizenship grants right to individuals so that they can lead their own way of lives. Through the granting of citizenship, individuals have to take social responsibilities too. Keith Faulks states that "It recognizes the contribution a particular individual makes to that community whilst at the same time granting him individual autonomy". When all individuals come together to make the same sort of living, same movement, same choice, there will be problems of how to maintain the social order and how to distribute the limited resources in the country. According to Keith Faulks, "when individuals are treated equally, citizenship can negate sources of social tension that may threaten social order. Through its package of rights, duties and obligations, citizenship provides a way of distributing and 9 managing resources justly, by sharing the benefits and burden of social life" 10 . In recent years, citizens are demanding too many rights but accepting too few responsibilities. One of the outcomes is that the social order and well being of the community is getting more and more difficult to maintain. Therefore, the citizenship is important not only for the benefits it gives to individual, but also for the reciprocal and social idea to which individual has social responsibilities and obligation as well. It is also important that a fine balance has to be struck between rights and responsibilities so that the community will stay in order. Political consideration Citizenship is significant to governance. According to Keith Faulks, "Governance refers to the inherent human need to create and maintain social order and to distribute material and cultural resources. Politics, to which citizenship is closely related, is a set of methods and techniques, such as deliberation, compromise, diplomacy and power sharing through which the problem of governance can be resolved non-violently." n The state and the political parties are keen to define the citizenship as "the extent of citizenship has been determined by boundaries between states, which are both physical and cultural in form." n The state will therefore 10 consider the best interest of the state and decide the policy in which its citizenship will be granted. Legal consideration Regarding the extent of citizenship such as the question of who are to be included and excluded from being a citizen of a certain state, Keith Faulks suggests that all states, no matter how liberal their immigration laws are, often impose controls upon who can enter and stay in the state and who then can take up residence and finally become citizens of the state. Citizenship is often taken as the same as nationality and in fact these two terms are usually taken as one in international law. For the individuals like the refugees or immigrants, the primary problem of citizenship is often that they are perceived as outsiders whom the state is not willing to grant them the citizenship.13 The interesting point is that whilst there are United Nations Universal Declaration of Human Rights and Conventions relating to the protection of immigrants and asylum seekers, there are still individual states not recognizing the conventions. Even for some countries recognizing the relevant conventions, they have applied restrictive legal means to control the entry of immigrants into the state and to become nationals of that state. For example, 11 Germany has stressed the system with blood when accepting people as nationals. Many Europeans of German origin (by blood) who live outside Germany cannot speak German and know little about German culture are granted with the German citizenship in the country after the fall of the communist rule in the Eastern Europe. But on the other hand, 2 million Turkish workers who have lived in Germany for years to work, to pay tax and to run businesses are denied the German citizenship.14 Holistic citizenship right and responsibilities According to Keith Faulks, a holistic citizenship outlines the relation between rights and responsibilities. It also highlights the point that one is not dependent on the other. To secure citizenship in a holistic way, it has to go through active political actions to extend the rights to the previously excluded groups and at the same time to pass on responsibility to its citizens through a good system in a fair and open community. 15 The responsibilities passed on to individual help develop a sense of obligation and commitment to the community. Duties may be seen as those responsibilities imposed by law and carry some kinds of sanction if the individual does not honour them. Obligations, in contrast may be seen as voluntary compliance. A good and healthy society relies upon obligations rather than imposed duties to 12 maintain the conditions of the community. I6 So, for a holistic citizenship and a good and healthy society to develop, the citizens will have to take up their own obligation, accept duties and exercise rights. Citizenship in a global age According to Waters, globalization means "a social process in which the constraints of geography on social and political arrangements recede and in which people become increasingly aware they are receding." according to Waters. In fact, as Keith Faulks has pointed out, the advance of technology in information and communication has bridged the cultural difference between locations and made instant contacts of people of different states possible. The growth of world trade has acted as a stimulator to link the states together in a faster pace than ever before, although there is a counter argument that globalization is indeed the polarization of economy in which world trade and investment are still heavily clustered in the USA, Europe and Japan. 19 Globalization challenges the traditional concept of security, legal, political and social values that come along with the citizenship of a particular nation. It also blurs the boundaries; both tangible and intangible like psychological ones that are built on the traditional concept of citizenship. In addition, globalization is changing the direct relation of the rights and responsibilities with individual state. People are moving around frequently from state to state. They have rights and responsibilities on their own states. When they stay in more than one state, they will have less responsibility to each of the states than the only one state they remain. A new concept of citizenship has emerged that the principles of defining citizenship are based on the personal basis rather than the national basis. This change has been growing faster and deeper with the development of the international law, the United Nations network, the global civil society and the regional governance. 20 The globalization of citizenship has also brought along challenges to the role of the states. It is because the globalization of citizenship rests substantially on globalization of economy and the globalization of economy makes the market economy even more dominant over the citizenship. In effect, individual state will make policy on citizenship with major consideration of the economy. This also has generated conflicts between the democracy and the capitalism in term of freedom and rights as conferred under citizenship. Meanwhile, globalization of economy and dominance of market economic development have caused the global risks like illegal migration, spread of infectious diseases like SARS, international crime, nuclear power and ecological damages. 22 14 Human right and migration After the Second World War, a wider range of international laws on human rights has emerged. The United Nations Declaration of Human Rights, which was adopted by the UN General Assembly in 1948 has become the "centerpiece of human rights laws." 23 Since then, there are other conventions against torture, against discrimination of women and children and also against the discrimination of rights of migrants. 24 To quote for example, in 1993, all 171 state authorities at the World Conference on Human Rights held in Vienna decided to hold that economic, social and cultural rights to individual were universal. They also agreed that the rights were interrelated and interdependent too.25 There was a case in September 1999 when the European Court of Human Rights ruled that four Britain persons won in their objection to the exclusion on homosexual and lesbian recruits by the British armed force. This has shown that the matter of individual human rights would be ruled and decided at a level beyond an individual state. The court ruled that the British Government had contravened the basic human right of individual to enjoy private lives and the nature of this privacy should have no direct bearing on the eligibility for employment. 15 The human right international laws generate court rulings on the rights of refugees and migrants. The court rules on the right to asylum and the right not to be repatriated back to the country that persecutes the refugees. These rulings are included in the international conventions and many states have formally accepted and agreed to implement the conventions. In fact the establishment of United Nations High Commission for Refugees (UNHCR) in 1951 and the related convention had stipulated the principle that refugees cannot be sent back against their own will to a country where they will be persecuted. 27 Against this background and as a result of the wars in southern and central Africa, Vietnam, Laos and Cambodia, Lebanon and the Soviet invasion into Afghanistan, the number of refugees rose rapidly in the 1970s. In 1991, the former USSR broke up and lost its control over eastern European countries and with the war within the former Yugoslavia, the number of refugees in Europe rose to 1.9 million in 1995. At the same time, there were 6.7 million refugees in Africa and 5 million in Asia because of numerous wars in the region and countries. 28 These refugees fled their countries to their neighboring states that were also as poor as if not worse than their own states. A small portion of refugees from Africa and Asia and those from the former Soviet bloc had fled to the developed parts of the world of North America, Western Europe, Japan and Australia as refugees. In 1981, there were 116,000 people applying for asylum to the OECD countries and in 1992, 16 the number rose to 700,000. 29 From the 1970s to the 1980s, there were many Vietnamese boat people fleeing their country after the victory of the Communist North to Hong Kong, the Hong Kong immigration authorities classified them as "economic migrants" rather than refugees. Whilst many states, mostly the European countries, are observing the conventions to accept refugees, some others in Asians countries like Singapore would not be adopting the convention or observing the convention fully because the country is not as wealthy as the western ones.30 In the late 1980s, the number of refugees entering the EU countries continued to grow from 70,000 in 1983 to over 200, 000 in 1989. The countries had begun to change their attitude towards refugees. The EU countries had become less willing to accept the refugees. Examples include the Germany's decision in 1993 to end its liberal policy towards accepting refugees and the Britain's promulgation of the Asylum Act to expedite the process and send the asylum seekers back to a "safe" country in 1993.31 Across the EU countries, there has been a strong view that the refugees were to be classified as illegal immigrants and should be repatriated. On the other hand, the states have always made and defended their own 17 policy on migration after considering a number of factors like race, ethnic group and economy. When there is a strong demand for labour, the states would draw economic migrants. In the 1950s and the 1960s, the main flows of economic migrants were to the North America and the Western Europe. Britain drew migrants to support the economic growth from the Indian Sub-continent and the North Africa where a good number of states were once British colonies while Germany also drew workers from Turkey and Yugoslavia. In the 1970s, the European economies slowed down and foreign workers were attracted to oil-rich Gulf States and the rapidly developing Asian countries. But later in the 1980s, migrants returned back to the Western Europe for economic reasons again. In the 1990s, the Western Europe started to feel the pressure from those economic migrants and considered that such a large-scale immigration was a problem to the region. The EU countries had reached in agreement to tighten up the border control and to curb illegal immigration problem in a "Conference on European Cooperation to prevent uncontrolled migration". 33 In the 1990s, the Asian countries like the West European ones were welcoming migrants for economic reasons. But the financial crisis in 1997 compelled Asian countries to change their policies towards those economic migrants. For example, Malaysia which once accepted thousands of Indonesian laborers had launched strong actions to send away 10,000 immigrants a month. The unemployed 18 Indonesians, however, continued to enter Malaysia illegally. In March 1998, the Prime Minister of Malaysia denied the claim that there were abuses of human rights in camps for those awaiting repatriation.34 Conclusion Citizenship defines the rights, responsibilities and duties of individuals in a state. To maintain the state stable, a balance between rights and responsibilities is necessary. In addition, citizenship recognizes individuals with equity. It gives them freedom to live their own lives and save them from interference from the state on their rights. Rights and responsibilities under citizenship are crucial to governance as they help to solve the problems relating to the fair distribution of resources. Under the principle of justice, individuals are considered and respected with equal status within the community, although they may have different interests and even conflicts. In return, citizenship also helps sustain social stability. The history of citizenship may be traced back to the ancient Greek and the Roman Empire when citizenship was the prerogative of a privilege class and signified the power. On this basis, the concept of citizenship has been built and developed on 19 the limit of a state. Later, there were social movements fighting for more rights for women, minorities and the underemployed groups and the definition of citizenship has been consolidated to rely on the state concept. The economic growth in particular in the regions like the West Europe and the North American had drawn economic migration and this had influenced the state concept of citizenship. In addition, the wars in the African countries and some Asian countries like Vietnam also created a large number of refugees fleeing to the developing countries in the world. The emigration wave was further fueled by the setting up of the international conventions and laws protecting human rights. Some states, mostly the West European countries, accept and honour the conventions but some do not. The admission of the economic migrants and refugees has also brought question to the state concept of the citizenship. On the other hand, the economic globalization in the past few years has also generated great impacts on the state concept of citizenship. It creates challenges to the boundaries of individual states. The human rights and migration in the last decade have generated even more challenges to the state towards the state-based definition of citizenship. Since the 1990s, a trend of globalization of citizenship has emerged. The formation of the EU citizenship is a very good example. Although some have suggested that the EU represents regionalization rather than globalization, 20 the EU really comes as a brand new concept of citizenship. The situation of the EU citizenship will be discussed further in Chapter 2.
Bibliographical Information:

Advisor:

School:The University of Hong Kong

School Location:China - Hong Kong SAR

Source Type:Master's Thesis

Keywords:citizenship china hong kong

ISBN:

Date of Publication:01/01/2005

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