Tuesday, August 28, 2007
Here's a piece by Joshua Rosenzweig of the Dui Hua Foundation on the Chinese government's issuance of a passport to the dissident Yang Jianli.
An interesting aspect of Chinese law pointed out by the article is that Chinese citizens cannot enter China without a valid passport. If the government chooses to invalidate, or refuses to renew, a Chinese citizen's passport while he is abroad, he won't be allowed back in. This is odd in a number of ways. Traditionally, a passport is a request from one sovereign to another to let the former's citizen or subject pass without let or hindrance. It's something foreign governments insist on seeing before they will let you in. But it's got nothing to do with the relationship between the citizen and her own government. To turn it into something your own government insists on seeing before it lets you in seems odd to me. At most it is convenient evidence of citizenship, but not the same as citizenship itself. (I recognize of course that few governments will let in people without valid passports simply because they claim to be citizens. You may have to wait at the border until you can prove your citizenship some other way. But typically you can't be expelled.)
One could argue, of course, that there's no reason why China's use of passports has to follow everyone else's. Still, there is Article 13 of the Universal Declaration of Human Rights, which states that "[e]veryone has the right to leave any country, including his own, and to return to his country." In short, it rejects exile as a governmental measure. It must be said that the ICCPR is a bit more ambiguous: it states that "[n]o one shall be arbitrarily deprived of the right to enter his own country[,]" suggesting that exile is permissible if imposed pursuant to due process of law. I would think that the refusal by a government ministry to issue a passport, where not preceded by a fair hearing, would be considered arbitrary under most definitions, given the high stakes involved.
When I first read Joshua's article, I thought that he must have misunderstood Chinese law regarding the entry of citizens; that surely Chinese law doesn't make the entry of its own citizens back into China contingent upon holding a valid passport, or that if it does, there's a plausible argument that such a requirement is unconstitutional. But having looked at the relevant legal texts, I must confess my intuition was wrong on both counts.
Comments welcome, especially with regard to whether I'm right about other countries not generally requiring a valid passport for re-entry of their own citizens.