Dual nationality exists when two or more nations claim jurisdiction over an individual. This may lead to disputes between the nations claiming the allegiance of the person, requiring that international law settle the matter. This has led to the doctrine of dominant nationality.
Dual Citizenship and National Laws
Dominant nationality protects individuals from state overreach
Dual citizenship and forced marriages, by Alison Symington
In a forthcoming article of Emory International Law Review (25) 2012, “Dueling nationalities, Dominant and Effective Nationality, and the case of Anwar al-Auluqi”, Abraham U. Kannof argues that the United States should be able under the law to exterminate terrorists like “Anwar al-Aulaqi”. He was a dual Yemeni-US citizen when the United States took him out with an armed drone in September 2011. In such cases, according to Kannof, the United States could treat a belligerent like al-Aulaqi as a dominant and effective citizen of Yemen, and no longer under the protection of the United States, and therefore al-Aulaqi’s Constitutional rights, such as the right not to be deprived of life and liberty without due process of the law, no longer count.
Kannof argues further that the United States also recognizes this international convention of dominant and effective nationality. Indeed, I was able to find quickly a Department of Justice memo, that suggests that dominant nationality could help determine if a person should be allowed to work in jobs for which the law requires a US citizenship and loyalty to the US, in cases where the applicant is a dual citizen of a country for which there is no exemption.
What determines Dominant Nationality? An American woman, Mrs. Strunsky Merge, tried to get reparations from the Republic of Italy to recover damages to her property during WWII; the court denied her claim, because she was a dual national thanks to her Italian husband–the court determined her dominant nationality to be Italian, and therefore she was not entitled to any recovery of damages under the terms of the peace treaty. Kannof writes (p. 118):
In that same year , the Mergé Claim gave the principal statement of the doctrine of dominant and effective nationality. There, the Italian-U.S. Conciliation Commission “looked to general principles of international law for resolution to the issue of dual nationality,” finding that “the sovereign equality of States . . . must yield before the principle of effective nationality whenever such nationality is that of the claiming State.” The Commission established considerations by which an individual’s nationality would be evaluated, including “habitual residence, [t]he conduct of the individual in his economic, social, political, civic and family life, as well as the closer and more effective bond with one of the two States.”
Now, Kannof (p. 123) argues that the dominant and effective nationality test should have many uses outside of the context of international arbitration of disputes, including the assassination of United States home-grown terrorists. I argue that it has important ramifications for dual citizens crossing the United States border, US extraterritorial taxation, FBAR and FATCA. The concept of dual citizenship is inadequate when it comes to determining the issues that we are facing. We need to insist upon the doctrine of dominant nationality in the following cases:
(1) When crossing the border. A person born in the United States but who is a resident and citizen of Canada must have the right to travel to the United State with a Canadian passport because he or she has dominant and effective Canadian citizenship. If the United States could decide unilaterally that it can assassinate a US citizen, then we need to insist upon the protection of Canada, and not travel with a US passport–insisting further, that as having dominant and effective Canadian citizenship, that we have the right and the duty to travel on a Canadian passport.
(2) When paying taxes. Canada says it will not collect US taxes from Canadian citizens. If you are living in Canada and you are Canadian citizen, you should not have to pay taxes or file to IRS, because your dominant nationality is Canadian. The IRS cannot collect any taxes that they may assign to a Canadian citizen resident in Canada, unless they can establish lien on a property or bank account that is in the United States. Get your assets out of the United States, and legally, you don’t have to file, because your dominant nationality is Canadian. But in any case, if the USA could potentially assassinate you because your dominant nationality is not US, then I don’t see why you should have to file a 1040.
(3) When threatened with FBAR and FBAR penalties. The Canadian government says it will not collect FBAR penalties. But those dual citizens with dominant Canadian nationality do not fall under the FBAR law (Bank Secrecy Act), which very clearly states who must file: “Each person subject to the jurisdiction of the United States”. Well, a person with dominant Canadian nationality does not fall under the jurisdiction of the United States but that of Canada. I’m sorry Mr. Geithner, but dual citizens living in Canada don’t have to file. This is clear under international law; and the FBAR law likewise supports this point. So why don’t you just change the rules already to reflect that fact. I urge dual citizens in Canada and abroad to assert your dominant nationality and refuse to file FBARs.
(4) FATCA : When the bank asks you to cede your rights as a Canadian, just simply tell them that your dominant and effective nationality is Canadian. Pull out the law article by Kannof if they don’t know what that is (they won’t).
The doctrine of dominant nationality under international law could indeed have important ramifications for our problem. It is perhaps also a better solution for many dual citizens of the US and another nation, in particular those who do not want to relinquish their citizenship. It is also the practical and common sense solution. And that is why the United States government will fight it tooth and nail.
Or, alternatively, should only one citizenship (the dominant one) be viewed as having any legal significance? And the second one is mainly just a conversation piece–somewhere one grew up or has ancestors–makes for interesting conversation to say you are a dual citizen but only one citizenship has real legal weight?
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“Establishing dominant citizenship in one country does not necessarily relieve a dual citizen of her duties owed to the other;” from the last paragraph of the paper. I have not read every comment here so this may have been covered already, but it appears from that remark that despite dominant nationality, CBT could still make it’s demands.
Dominant nationality establishes the right of the dominant nation to protect a citizen, even when that citizen is in the not-dominant state–so protection for dominant Canadian citizens even if they were to step across the border into the United States–the thing that most of fear most. But it also means that the less-dominant nation now has no duty to protect the citizen, as the law article suggested that assassinating a US citizen who is of dominant nationality of another country would be perfectly fine.
This means of course, that anyone living abroad with dominant nationality in their domicile, would have no protection, and if they are not protected, then the US has no right to tax them either–for protection is the sole justification for taxing citizens abroad in the first place.
Sorry for reviving a 3 year old thread, but it was astounding to see these by punktlich11 on October 8, 2012:
“IRS officials have conceded to me that their policy priority is collections: they will not waste resources on nonresident nontaxpayers without assets in the USA.”
In October 2012 they were right in the middle of abusing resources on this nonresident former US citizen, as they were before (when I was a nonresident US citizen) and after, including the present. By coincidence I do have assets in the US but the IRS didn’t know about them. The IRS knew that my amount of US tax was $0.00 but they were (and remain) busy penalizing me for having written and signed honest declarations on US tax returns.
“They will consider criminal prosecution where the nontaxpayer visits the USA but only where that prosecution will get them useful press reporting: as in purely domestic cases they like to go after professionals (lawyers, doctors, politicians, celebrities) who are presumed to have known better.”
They threatened me and my wife with criminal prosecution, where we were not even nontaxpayers (US tax being $0.00). But they refused to carry through. I filed a motion in US District Court to compel the US to prosecute me criminally, the US Department of Justice objected and the court denied my motion.
(I wish to be prosecuted criminally because it seems to be the only way to obtain discovery. By now I have figured out that the IRS’s real reason for alleging fraud was that I declared US withholding which Ameritrade had reported on Form 1099, but IRS data entry clerk Monica Hernandez fraudulently altered IRS records of Forms 1099 and some unknown person fraudulently altered records of our returns. A witness from Ameritrade could be subpoenaed by service on Corporation Service Company, but in my civil suits the court didn’t let it get that far and didn’t allow discovery. If criminal cases are the only way to obtain discovery, well then bring it on. But the court refused.)
The garbage that IRS told to punktlich11 is no different from garbage that the IRS tells everyone else.
By way of update on this subject:
I found this article neatly summarizing the subject as of 2023:
which terms the dominant and effective nationality doctrine as settled international law
“place of birth … – not to our surprise – as “irrelevant” factor.
Best regards and have a nice day