Why Has China Claimed the Detained Bookseller Gui Minhai Restored his Chinese Nationality? An International Law Innovation???

By Jerome A. Cohen

A few colleagues and I have had some discussion on Gui Minhai’s case, in particular why the Chinese government forced Gui to regain Chinese nationality in 2018. In fact, as a colleague pointed out, Gui’s is not the first case of this kind. His fellow bookseller Lee Bo, who was disappeared from Hong Kong and reappeared in Mainland custody in December 2015, also supposedly renounced his British citizenship while in detention.

As China does not allow dual nationality, the Chinese government claims that Gui gave up his Swedish citizenship when regaining Chinese nationality. But this tactic is abusive and also contrary to international law (Read also Tom Kellogg’s excellent article on “News of a Kidnapping: The Gui Minhai Case and China's Approach to International Law“ here). Below is my colleague Yu-Jie Chen’s take, with my own response following.

Regarding Gui's citizenship, Sweden's Ministry of Foreign Affairs has said that “Swedish citizenship can only be renounced after an examination and a decision by the Swedish Migration Agency,” so it seems that from the Swedish point of view, Gui is still a citizen despite China's claim otherwise.

China's tactic of coercing Gui into restoring Chinese nationality is apparently to deflect international criticism and to also bypass its obligations towards Sweden under the Vienna Convention on Consular Relations (consular visits & the arrangement of legal representation etc). I think the Swedish government should argue that China has violated international law and Sweden's sovereign rights in this case. Given Beijing's expansive notions of sovereignty, it'd be interesting to see its response, but I wouldn't hold my breath.  

There's also a bigger issue for the international system — if China could keep doing this, the Vienna Convention on Consular Relations will be undermined. Obviously, what's the use of having China's commitment to facilitating consular protection if there's a cunning way to exclude its application in the first place?

Yu-jie has identified the general implications of the PRC actions against Gui and Sweden for implementation of the Vienna Convention on Consular Relations. Let’s think for a moment. The PRC’s innovative rationale and practice purporting to erase the foreign nationality of a former PRC national, if acquiesced to by the world community, are easily capable of extension to all foreign nationals, whatever their backgrounds. If, for example, I should be permitted to return to China again, the PRC might detain me and then announce that I have applied for PRC nationality while in custody and that my application has been accepted, with the consequence, according to PRC law, that I have surrendered my American nationality!

This novel technique would render meaningless not only the PRC’s obligations — and other countries’ rights — under the Vienna Convention but also the respective obligations and rights under all of the PRC’s many bilateral treaties concerning consular matters! Foreigners who enter China would then have no protection against arbitrary detention and their governments would be deprived of one of their basic sovereign rights. This should hurt the feelings of all foreign people! Caveat traveler!! And this heinous practice could be further extended to apply to anyone whom the PRC kidnaps from outside China, like Gui, and secretly transports to the PRC!

Chinese Government’s Injustice against Hong Kong Book Seller Gui Minhai

By Jerome A. Cohen 

Hong Kong book seller Gui Minhai has just been sentenced to ten years in prison. China’s official press release concerning Gui’s harsh sentence claimed that Gui “applied to restore PRC nationality in 2018.” This alleged application to regain PRC nationality while in grievously coercive PRC incommunicado detention cannot possibly be deemed legitimate in international law. The PRC press release’s implication, of course, is that his PRC nationality has been restored and that this automatically cancelled his Swedish nationality, at least in PRC eyes. But Sweden’s Ministry of Foreign Affairs confirmed that Gui is still a Swedish citizen because “Swedish citizenship can only be renounced after an examination and a decision by the Swedish Migration Agency.”

We do not have access to a complete record of PRC police/judicial/diplomatic practice, of course, but I am confident that similar types of abuse have taken place in the case of other foreign nationals who had previously abandoned PRC nationality. However, although my memory may dim, I do not recall the PRC so brazenly and briefly alluding to the issue in a public statement.

Of course, if the PRC would publish the abominable court decisions that purport to justify criminal convictions such as Gui’s, we might learn a bit more. Unfortunately, although the PRC now publishes millions of other court judgments, it still — understandably — often refuses to reveal court decisions in “sensitive” matters where universally respected norms of justice have been violated.

Gui’s continuing mistreatment should be deemed to violate both PRC domestic and international law. The Swedish Government, other nations and the world community should not allow this matter to rest, and it should be of especial interest to the many ethnic Chinese who enjoy non-PRC nationalities, particularly those who formerly were PRC nationals.

Chinese police's recent re-detention of Swedish Citizen Gui Minhai: What’s the story?

By Jerome A. Cohen

View fullsize

Gui Minhai. Photo: Hong Kong Free Press, screenshot/CCTV.

The recent Chinese police re-detention of Mr. GUI Minhai, a Swedish citizen, when he was on the train with Swedish diplomats escorting him to Beijing, deserves more public attention than it has received. China’s action must be questioned and protested by the international community, as argued by last week’s Washington Post editorial, China’s violation of rights grows ever more brazen.   

The People’s Republic of China leaves itself open to condemnation by failing to give a public explanation of its dramatic and unusual deprivation of Gui’s freedom. This is probably because there has been some disagreement or lack of coordination in the PRC government’s control of Gui. What may have happened is that the local security police in Ningbo may have approved Gui’s trip to Beijing for medical reasons, as apparently it had approved his Shanghai trips to the Swedish Consulate there. But the central authorities, when they learned of the plan, may have panicked at the possibility that Gui might seek embassy asylum, as the blind barefoot lawyer CHEN Guangcheng did in 2012, and decided to detain Gui again to prevent that possibility. There may also have been, and still might be, a struggle between the Ministry of State Security and the Ministry of Public Security concerning jurisdiction over Gui.

I suspect we will soon see the following explanation from the PRC: Gui was living in Ningbo under “qubao houshen” (取保候审), a Chinese type of bail requiring the “released” suspect to remain in the city where he has been released and requiring him to obtain special permission for any outside trips. Although Gui has apparently completed his sentence for his earlier traffic offense, his bail must relate to the unfinished current charges for which he apparently has not yet been tried.

It is possible, of course, that the Swedish Embassy may have decided to follow the U.S. example in the Chen case and make positive efforts to spirit Gui to the embassy’s custody, but, given the Swedish Government’s quiet, conventional efforts to aid Gui to date, and to aid Peter Dahlin after his detention, that seems unlikely.

Yet, given the escort of two Swedish diplomats accorded Gui, one has to give Sweden credit at least for seeking to assure Gui better medical treatment in Beijing and for anticipating possible obstruction.

Reportedly the PRC and Sweden have differed on the degree of consular access to be permitted to Gui at various times, and these issues probably have a history going back to the original detention of Gui in Thailand, which was a brazen kidnapping. It should be noted that Sweden and China apparently do not have a bilateral consular agreement, which is odd, but both adhere to the multilateral Vienna Convention on consular relations.

These incidents involve so many as yet unanswered questions. The PRC should not remain silent even if its agencies have not yet coordinated. The Ministry of Foreign Affairs, as so often in these cases, was publicly embarrassed when its spokesperson implicitly admitted that it really did not know what was going on.

Certainly, the Swedish Government should reveal the full story behind its frustrations in this case and in others involving China, and Swedish public opinion should demand that the Government tell the truth now.