Who is legally "Chinese", and what do they get for it?

Who is legally “Chinese”, and what do they get for it?

Does ROC immigration law distinguish between (ethic) “Chinese” and non-Chinese? If so, what is the definition of “Chinese-ness,” and how is this proved to visa authorities, etc.? And what are the legal benefits of being “Chinese,” whatever this means?

Does “Chinese” = “Han”? What is the Chinese word for “Chinese” used in these documents?

I have a friend who is part Uygur and part Kazakh, but holds a foreign passport. His ancestors are from the “Sinkiang” region of Central Asia which is currently a part of China, but has not always been in the past. According to the Three Principles of the People, at least some Moslems are considered part of the “Chinese” race. (Along with Tibetans and some others I can’t remember.) Can he get any privileges based on this?

And what about mixed-race children? Are they still counted according to their father’s side, or has that changed?

The Immigration Law distinguishes between those (1) ROC passport holders with household registration in the Taiwan area, (so called “T1 citizens”), (2) ROC passport holders without household registration in the Taiwan area (so called “T2 citizens”), (3) foreigners, (4) stateless persons from Thailand, Burma, and Indonesia, (5) other stateless persons. In addition the Statute Governing Relations between the Taiwan and Mainland Areas distinguishes between those (6) PRC passport holders with permanent residency in a third country (or former PRC nationals with citizenship in a third country), (7) PRC nationals married to ROC nationals, <8> other PRC nationals. (Note that there is no category for “PRC nationals married to foreigners legally resident in the Taiwan area.”)

It should be noted that PRC nationals do not fit the definition of “ROC citizens” in the Nationality Law, but the Ministry of Foreign Affairs does not consider them foreigners.

More complications are provided by Article 2 of the Nationality Law

Article 2
A person who meets one of the following requirements acquires the nationality of the Republic of China:

  1. A person whose father or mother is, at the time of his/her birth, a citizen of the Republic of China.
  2. A person born after the death of his/her father or mother who was, at the time of his/her death, a citizen of the Republic of China.
  3. A person born in the territory of the Republic of China and whose parents are both unknown or are stateless.
  4. A naturalized person.

According to the current interpretation, this actually delineates a further category of ROC citizens, i.e. those who meet the requirements, which in essence means that a person can be considered an ROC citizen even though he is residing in the ROC as a foreigner, such as the case of a child with an ARC who has one ROC parent. (Notes: The Ministry of Finance does not agree with this interpretation, and does not consider these people “ROC citizens”. The Ministry of Defense does agree with this interpretation, hence if the child is male and formerly had household registration in the Taiwan area, then he will be subject to the military service requirement, additionally even those male youths with no ROC identification or household registration will be subject to the military service requirement if either parent is an ROC citizen.)

Although most people recognize that the Ministry of the Interior is in charge of citizenship matters, in fact the Ministry of Foreign Affairs also deals with citizenship matters extensively, since it has guidelines to recognize “T2 citizens” overseas, and issue them ROC passports. The legal basis for this is found in Article 9 of the Passport Law.

Q1: What is the Chinese word for “Chinese” used in these statutes?
A1: See the categories as described above, particularly (1), (2), (6), (7), and <8>.

Q2: I have a friend who is part Uygur and part Kazakh, but holds a foreign passport . . . . . . . Can he get any privileges based on his ancestry?
A2: He could probably apply for an ROC passport at a Taiwan Overseas Representative Office, depending on what documentation he could produce. Then as a “T2 citizen” he could come back to Taiwan for a three months visit. If he has professional skills, he could apply for residency rights. If residency rights were granted, he would be on the fast-track to getting an ROC ID card.

Q3: And what about mixed-race children? Are they still counted according to their father’s side, or has that changed?
A3: See Article 2 of the Nationality Law above. This was promulgated February 9, 2000, and made retroactive for any child not yet 20 years old on that date.

Thank you very much for your reply and analysis, Richard. It seems to me that Daud’s case should logically be similar to other “overseas Chinese” (since he has an American passport and has never had a PRC or ROC one). His mother’s family had to flee to the Soviet Union when Mao came to power. This is structurally similar to the flight of southern Chinese to Southeast Asia (i.e. a case everyone agrees is an example of “overseas Chinese”).

Interestingly, nothing in the law as you’ve posted it distinguishes “overseas Chinese” (i.e. ethnic Chinese who live abroad and hold foreign passports) from ordinary foreigners. Can this really be right? I could have sworn that “hua chiao” were treated differently by immigration. If not, then the whole “who is ethnic Chinese?” issue is moot.

Let me see if I can remember where it was I saw this, and post back.


I note that you have indicated that the MOF has one interpretation of the Nationality Law as to whether it applies retroactively to children of foreign fathers and Taiwanese mothers, while the MOD maintains an entirely different interpretation.

However, as I understand, the Ministry of the Interior is the supervising authority with regard to the Nationality Law, and thus, wouldn’t it be best to ascertain MOI’s interpretation?

I look forward to reading your reply.

Best regards,

P.S. I did read your last comments about the MOI’s authority and also the role played by the Ministry of Foreign Affairs… but I am still curious as to how the MOI interprets the Law.

Taking a look at my passport … it clearly states that if I have another passport I cannot seek refuge in the Irish Embassy of that country that I hold the other passport. I guess this hold through for most passports

So If I have an ROC passport and an Irish passport and I go to China and get in trouble with the cops and say I run into the Irish embassy, then as Taiwan is part of One China i.e. the PRC, then I could not seek refuge there correct?
I was thinking about different scenarios in cases where you have say two passports, not that I am thinking of getting an ROC passport.

Also if a region ( Taiwan) can issue passports does this not mean it is a country. If US passport control except the ROC passport, is that not acknowledging that the ROC exists, otherwise the guys who made the fake “Taiwan” passports and managed to get through passport control somewhere, are perfectly entitled to as the ROC does not exist so anything that says you are from this region called Taiwan should be acceptable.

Else are the Taiwanese stateless, if the ROC does not exist then how could passports from the ROC be accepted

(((Does my question make any sense??))

The consular protections are restricted by dual nationality, so your Irish passport notations are true. American passports also carry similiar disclaimers in such cases of conscription and so on.

As a stateless ROC passport holder, your question is valid. Under international humanitarian laws, it is my strong opinion that the Vienna Conventions are not adequately protecting any “Taiwan nationals” of SFPT.

The applicability of the ROC Nationality Laws were made officially applicable to Taiwan natives in Art. 10 of the bilateral Treaty of Taipei on April 28, 1952.

Then the 1972 abrogation by Japan in accordance with the Dr. Kissenger directives of the US State Dept under SPFT. Under Art. 11 of the bilateral treaty, it is legally superseded by Art. 4 and 26 of the SFPT. It seems that the bilateral treaty was terminated within the context of SFPT, and then replaced by the 1972 Shanghai Communique. There is an attempted substitution of an executive agreement for the bilateral treaty. Because of the State Dept repeated attempts to actually create legal conditions of “statelessness”, there are direct legal implications of the SFPT and the abrogated Taipei Treaty (eg. ROC Nationality Laws).

It seems everyone have been quietly tinkering with non-standard forms in lieu of following customary laws of SFPT.

Are you “Chinese” by these modifications or “Taiwanese” by customary law of SFPT?

Kissenger was first personally placed in charge of the SFPT legal return of Bonin Island in 1968 to Japan. Then Okinawa in 1972 to Japan. Both of these are Art. 3 of SFPT, so I am asking grave questions of Art. 2 for the Japanese cession of Formosa. What exactly did Kissenger do during this 1972 period?

I think he got potentially tangled up in the SFPT and Laws of War. Standard operating procedures suggest this was allowable, but did he and his successors conspire to violate Taiwanese civil rights? The attempted creation of statelessness is loss of consular protections by these State Dept actions of One China policy and SFPT’s customary laws of war. International humanitarian laws forbid this including the various Conventions on Statelessness. Your question is valid. Not only are you potentially “stateless” because of modifications, but also are you Chinese or Taiwanese?

I believe that Mr. Geer is referring to Vienna Convention on Consular Relations
(U.N.T.S. Nos. 8638-8640, vol. 596, pp. 262-512, DONE AT VIENNA, ON 24 APRIL 1963)
Article 5 Consular Functions
Consular functions consist in:
(e) helping and assisting nationals, both individuals and bodies corporate, of the sending State;

Obviously, if Taiwan is not recognized as a country, how can it fully deal with Consular Functions? Moreover, what is the status of the so-called ROC passport?

Important to note is that there has never been a formal cessation of the Chinese Civil War hostilities, and a state of war may still be said to exist between the PRC and the ROC.

We may look to the relevant international precedent in this area, such as the authoritative compilation of US Army Field Manual 27-10, LAW OF LAND WARFARE, (revised edition 15 July 1976, published by the US Department of the Army) Chapter 7, Nonhostile Relations of Belligerents, paragraph 456:
456. Safe-Conduct
Documents like passports, issued by the same authority and for similar purposes, to persons residing or sojourning outside of the occupied areas, who desire to enter and remain within or pass through such areas, are called safe-conducts.

Clearly, the issuance of a “travel document” (which appears to be a passport, and is accepted internationally) does not necessarily mean that the issuing agency is a country.

In the case of the ROC, it appears that the issuing authority, namely the ROC’s Ministry of Foreign Affairs, is actually doing nothing more than issuing a Laissez Passer (Safe-conduct) to cross into foreign areas outside the Taiwan Area and also authorizing its use by those persons indefinitely sojourning outside the Taiwan area. This would be the analysis based on the Laws of War.

Laws of War includes int’l humanitarian laws. Such forms of “safe-conduct” includes refugee travel documents, so there is a thin veneer of legitimacy of a ROC passports for stateless persons. But those ROC nationality laws and the Taiwan natives? And what about the consular protections?

We created a legal condition of statelessness for Taiwanese.

What Mr. Geer is alluding to is that the status of Taiwan and its inhabitants is something which has still yet to be clearly and definitively defined under international law.

This may be further explained as follows:
The USA used to have diplomatic relations with the ROC on the sole basis that they were the legitimate government of China, and only broke those relations in December 1978. However the ROC sovereign claim to the Taiwan cession was always officially very undetermined since the 1950 Truman Statement.

[quote]“The occupation of Formosa by Communist forces would be a direct threat to the security of the Pacific area and to the United States forces performing their lawful and necessary functions in that area. Accordingly, I have ordered the Seventh Fleet to prevent any attack on Formosa. The determination of the future status of Formosa must await the restoration of security in the Pacific, a peace settlement with Japan, or consideration by the United Nations.”

– US President Harry S. Truman, June 27, 1950[/quote]

Taiwan is not a country, but it is a legal self-governing dominion of a military government under Article 4 of the San Francisco Peace Treaty (SFPT), April 28, 1952. As designated military governors of administrative authority, the ROC government is actually a “military government” authorized by the USA and is allowed to exercise the executive, legislative, and judicial powers. See US Army Field Manual 41-5 “Joint Manual for Civil Affairs,” Chapter 4 for a full explanation. These powers of military government, however, are still subject to the supreme authority of the USA until the final status of Taiwan under SFPT is peacefully determined. Regardless of the dormant nature of these supreme powers, their own SFPT validity does not whither on the legal vine, as is seen by the US v. Tiede case (US Court of Berlin, 1979) which established for the Berlin Question of supreme authority and conquest. The USA was the juridical person of Berlin without a cession by treaty, and the USA remains the juridical person of Taiwan cession as a self-governing dominion until the final final status is resolved.

For an introduction to the legal treatment of treaty cessions under US law, see De Lima v. Bidwell, 182 U.S. 1 (1901),

So in the eyes of the US Taiwan is an autonmous region of China… but does it recognise it as part of the PRC or of China?

In that case if America does recognise Taiwan as part of the PRC but an area of the PRC under a military goverment… then this goverment is an illegal goverement

Then on what grounds apart from the threat of force can the US stop China from taking Taiwan in the morning… or is already a done deal

[b] Richard, Yes, I alsobelieve with one of the inquirer above that there are special rights for people of Chinese descent or Chinese ethnicity which is not fully reflected in your wonderful summary.

  1. Can you explain a bit more alos about the special category for people from Burma/Thailand etc… Why is that? I have lots of relatives who come from there. Some are already ROC citizens I was wondering if some more can apply

We know from history that the whole of KMT’s 3rd division of troops was abandoned in China when CKS their leader crossed over to Taiwan. The 3rd division were in hiding in lower Yunnan province of China waiting for the signal to retake China after 1949. It was suppose to be the sweeping front that never came. The signal to retake China never came. Finally when all hopes for retaking China was gone, some of these troops managed to settle in the now present day northern Thailand
or Burma or even Hong Kong Lamma Island!. The strangest part of history is that the KMT in Taiwan never recognised their lost comrades. never! How would you feel if you had given your life for your country only to be abandoned to fend for yourself when the final “helicopter” came and went. sniff sniff… I would be swearing at KMT…
In HongKong the last pocket of KMT resistance to communism more or less crumble with age rather than with the passing of 1997. There was a (BBC) documentary made apparently about the missing “Third division” of CKS army who were never “recognised” officially again for their bravery. The documentary was shot in northern Thailand and showed how the second generation of KMT “soldiers” ie their offsprings no longer speak Chinese and have married Thais and given up any hope of being the second sweeping front.

For anyone information:
Hong Kong is as you know one of the many Special Administrative Regions of China (aka Hong Kong SAR). The Hong Kong Govt can issue passports to all those born here and are naturalised here or have a parent who is a citizen. The citizenship or residency principles are very close to UK or US. Very simple to understand and you don

American intentions are to return Taiwan to China. In 1950, there was a problem of two Chinas, and the UK recognized the PRC and the USA recognized the ROC. So, the 7th Fleet divided them and Taiwan was left undetermined. Of course, the reality was rectified between 1972-79, but the Taiwan status was not finalized. It is not finalized, but in an interim status.

Actually, the Chinese government on Taiwan is not an illegal government. It was legally but quietly authorized by the US Military Government. On paper, this is the dejure reality of the interim status. It explains a lot for the wording in the Taiwan Relations Act, too.

On paper, there are standard operating procedures of SFPT, and it is amazing how these were closely followed for Taiwan.
Just like with the USA legally stopping the Soviets and East Germans from invading West Berlin, there is a dormant US Military Government on paper under the principle of conquest. China cannot acquire the sovereignty of Taiwan, because it would not be from the sovereign title of SFPT in the event of invasion. The PRC would have to also defeat the USA to gain a valid surrender of Taiwan sovereignty.

The contingency planning is legal and carries a number of legal rights civil obligations, too. This was reaffirmed by the “human rights” clause of TRA. In reality, there are basic civil rights of SFPT. There are implications for Taiwan during the interim statusquo and from this basis, rights of self-determination are not guaranteed. But the inalienable basic rights are a guaranteed defense against the abuses of One China policy. This leads to effective leveraging for the principle of self-determination.

On paper under the principle of cession by conquest, the title of sovereignty of Taiwan is left in the trust of US Military Government, but it is not legally given to Chinese governors on Taiwan. This American occupational tutelage has an inherent flexibility for “rebels” in possesion of certain military areas and whom do not wish to immediately reunite with the diplomatically recognized “lawful” government. This military legal condition is interim and provisional. It can even become indefinite, but it is not permanent by nature.

I salute Mr. Geer’s comments and want to praise them as being the definitive analysis on this subject.

That being said, I hope the readers of this Forum will realize that most other commentators on these issues have different opinions. Hence, you should not expect them to be able to confirm the validity of the views being advanced by Mr. Geer. That “confirmation” will have to wait for some appropriate future date.

[quote=“Hartzell, quoting article 2 of the Nationality Law,”]A person who meets one of the following requirements acquires the nationality of the Republic of China:

2. A person born after the death of his/her father or mother who was, at the time of his/her death, a citizen of the Republic of China.

If your mother died before your birth, you’ll have trouble fulfilling some of the other requirements of citizenship.

[quote=“drambuie”]The strangest part of history is that the KMT in Taiwan never recognised their lost comrades. never! How would you feel if you had given your life for your country only to be abandoned to fend for yourself when the final “helicopter” came and went. sniff sniff… I would be swearing at KMT…


Not quite. The 3rd was first in Burma where they took over the local opium business by virtue of superior firepower. Remember they had been a major supplier to Big-eared Tu and the Green Gang. Eventually the Burmese got fed up with the situation and pushed them toward the Thai border and most of them settled in and around Mae Salong (

And Assistant Secretary Richard Armitage was known to be conducting cover ups of the American MIAs abandoned in these areas. Kissenger was fighting a dirty war in violation of a certain treaty, so covert ops was the spade up their sleeve. These two don’t give a damn about US citizens or KMT “refugees”. Lest they forget.

On the other hand, Richard has made a very ambitious intellectual and legal effort to use the Laws of War to benefit the “KMT rebels” in Thailand. Part of that is learning how-to theorectically construct the ROC Nationality Laws for being framed by the Laws of War. And how-to invoke them in the absence of diplomatic relations. The KMT rebel belligerents in Thailand were recognized by the US government, thus they will benefit from the Laws of War (FM 27-10). Dr. Kissenger should be initimately familiar with this US Army Field Manual after the American occupation of South Vietnam and the PRC’s occupational authority over North Vietnam. How else do you think One China policy came into effect?

Very interesting information in this thread

But according to what Richard said:
A person who meets one of the following requirements acquires the nationality of the Republic of China:

  1. A person whose father or mother is, at the time of his/her birth, a citizen of the Republic of China.
  2. A person born after the death of his/her father or mother who was, at the time of his/her death, a citizen of the Republic of China.
  3. A person born in the territory of the Republic of China and whose parents are both unknown or are stateless.

Does this mean so that all people living in China are ROC citizens, since for years the ROC claimed to be the legitimate rulers of all China and Mongolia.

And are all citizens of the PRC also citizens of the ROC?

Why does the SFPT rarely come up in conversation when the Taiwan China issue is being discussed?

Does the ROC still see itself as the legit ruler of China now, or has it accepted that the ROC is infact only the territory of Taiwan?

Has an major effort being made to reslove the Taiwan China issue or has the issistance of the PRC that this is an internal affair hampered all attmepts to solve this issue, and also the size of its army

Did the US switch recognition to the PRC because they went nuclear and had the capacity to blow the shite out of its neighbours

No, the ROC on Taiwan is a government-in-exile. Any past diplomatic relations with the ROC on Taiwan in that condition made it a foreign policy instrument of the USA. It was solely on the basis of being the legitimate government of China. It was the anti-communist intention of the US Secretary of State Dulles to restore the ROC government-in-exile to the China mainland. However, this failed and the ROC on Taiwan remained the Chinese military governors or US recognized rebel belligerents on Taiwan. This recognition condition was a legal duality of the ROC on Taiwan and the sponsorship by the USA. It also raises some banned practices of using of a puppet government or proxy occupation of Taiwan. However, it seems “rebel belligerents” is how John Dulles has avoided this potential proxy occupational issue of the Hague Regulations. It is allowable. :unamused:

Were East Germans citizens of West Germany? No. But the political status of West Berliners was an issue even the US Court of Berlin did not want to probe too deeply. West Berlin was a German territory under American occupation. But it was not a sovereign part of either West Germany or East Germany under the Bonn Convention of 1955. It still remained apart of the “One Germany” which was officially reunited in 1990. We just simply delegated the temporary administrative functions to the West Germans and applied German Law from 1871. This was based upon a customary practice of occupation which keeps current territorial laws in force until the occupier alters them. So we just never really altered anything “German” under customary law of war from 1945 and beyond. West Berliners were German nationals of their Germany territory held under the customary laws of war and Law of Occupation. But they weren’t exactly the citizens of West Germany by the Bonn Convention.

So by customary laws are you “Chinese” of the China mainland or “Taiwanese” of the Taiwan territory in SFPT? Read Art. 5 of the 1895 Treaty of Shimonoseki and you will clearly see customary law of a “territorial nationality” as it is put into effect for two years.

The ROC laws on Mainland Relations between the Taiwan Area and Mainland Area really reflect the practices of West Berlin. It is a modification of the customary laws of war in SFPT.

The October 25, 1945, ‘Retrocession Day’ formalities were bungled by Chen Yi and so Chinese are colluding to “steal” Taiwan. George Kerr wrote on this in “Formosa Betrayed”.
You may not realize that he was a Civil Affairs Officer in the US Navy during WWII. (Since 1955-today, however, the civil affairs issues are handled by the US Army.) He fought for years to protect the Formosans but the ROC just kept accusing him of protecting Japanese nationals. Formosans were Japanese nationals until April 28, 1952, and this is still recognized in many Japanese Court cases. Retrocession Day is null and void because it just marks the beginning of joint-occupation of Japanese territory. On that day, the US Military Government had started the official period of “enemy occupation” of Japan. This is critical.

The ROC just gave up their claims to China mainland in 1991 when Lee Tenghui came into power. There is still the Taiwan Area of the ROC Constitution which is rooted in occupational government on Taiwan.

Kissenger did make the first substantial changes in 1971-72.
It resulted in the signing of the Shanghai Communique on February 28, 1972. Based upon some inferences of some declassified documents, Kissenger knew the significance of February 28, 1947, to the Taiwan independence movement.
This symbolism has disturbed me as we know the great emphasis Zhou Enlai would have placed on something like that.

No. President Nixon was very emphatic in his directions to Dr. Kissenger and General Alexander Haig. Do not violate the treaty obligations to Taiwan. Both the SFPT and Mutual Defense Treaty were in effect at that time.

MDT was terminated in 1979 because advisors to President Carter had delusions of granduer for causing the diplomatic switch and the signing of their second Shanghai Communique. When Carter officially derecognized the juridical person of the ROC government-in-exile on the basis of being the lawful government of China, he also stopped the sponsorship and American use of the ROC as a foreign policy instrument.

Art. 6 of the MDT was constructed in a perculiar manner of territorial overlap and the 1955 MDT “Exchanges of Notes” between Dulles and George Yeh of the ROC puts some great emphasis on this unique aspect of the SFPT role in the MDT. There is jurisdictional duality of SFPT in the MDT and Carter terminated it in 1979. Senator Berry Goldwater challenged this MDT termination all the way to the Supreme Court. In Goldwater v. Carter, the US Supreme Court clearly states it has not examined these treaty termination actions of the Commander-in-Chief. The military issue is wide open to being revisited. Goldwater dropped the MDT issue because they created the Taiwan Relations Act. Again, the SFPT is intertwined with the defense issues of Taiwan as it was with MDT.

During the Carter rush to create a legacy, Secretary Richard Holbrooke got into a fistfight with the Secretary for Human Rights over the Taiwan rights issues. The “human rights” clause of the TRA is really directly attributable to Holbrooke when the drafters in Congress added it. It seems that under the customary law of war, there are issues of “undefined” civil rights in a landmark supreme court case in 1900. There are “human rights” for cessions of peace treaties during any temporary miliatary occupation. The “human rights” clause of TRA is not even window dressing, it is a legally veiled threat from Congress to Richard Holbrooke and his “Fourth Communiques”. Congress has promised undefined civil rights enhancements to you and the people of Taiwan for things like self-determination. There are legal issues of SFPT for “undefined” civil rights under the treaty clause of TRA. :wink:

Here in Taiwan, according to the latest announcements that I have heard, people from the PRC are not considered “foreign citizens.”

At the same time, they are not considered “local citizens.”

Hey Hartzell, what’s with all the gravedigging?