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.
See also:
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 [1955], 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.
@punktlich11,
Yep, that’s exactly what I did. Looking back at all my “mistakes” that cannot be reversed, perhaps someone can learn from my experience or maybe not. I wish I had not gotten my FIRST advice from a cross-border accounting firm.
All I know is that I now have a US tax lawyer and accounting firm to amend my 2005 – 2010 US Tax Returns and to have prepared my 2011 US Tax Return. I sure CANNOT / could not DO IT myself! Hopefully, I will soon come to the end of my nightmare.
For my son with a developmental disability and unable to renounce the US citizenship for which he has never been registered (but has anyway) is another matter — I as a Parent, a Guardian or a Trustee am denied that right by the US Consulate, even with a Court Order, unless there is a “compelling need” which there is not determined to be, to renounce that US citizenship on my son’s behalf. I and my son will stay on this side of the US / Canada border where I hope I am protected by Canada.
After my renunciation I may cross for a medical emergency or death of one of my siblings but that will be it — my son would not understand why he could not go along with me otherwise. (“Luckily” my parents are gone and don’ have to witness all this and I don’t have to make the hard decisions about visiting them in their last years.) Whether it makes any sense for me to be the Holder for my son and continue in the Canadian Registered Disability Savings Plan (foreign trust) after I renoune, I don’t know. At any rate, we are be virtue of our extraneous US citizenship second-class Canadians — as is the case for many other families in our situation. It is, in my opinion but perhaps not in the opinion of others, immoral and I can’t see any common sense. We each have a differing story. These are the conclusions I’ve come to for my situation.
@Puntlich11
Thank you for your well reasoned and articulate comment on this issue.
http://isaacbrocksociety.ca/2012/01/07/dominant-and-effective-nationality-and-why-it-matters/comment-page-2/#comment-65288
Much appreciated. You are absolutely right that very few lawyers understand this issue. The reason is simple: the cases that you refer to and the context in which they arose were a long time ago. To really understand this area of law, one must almost grow up with it. But the main message that people need to take from your comment is:
“To clarify: If indeed your US nationality was forfeit upon
naturalisation in Canada and if it was restored (retroactively but
conditionally) by Supreme Court decision then that restoration was
subject (under international law acceded in by the USG) to your consent.
You probably gave that assent by applying for a new passport. You
should have had legal counsel. Unfortunately there aren’t many lawyers
competent in this arcane area to which I have devoted much of my life.”
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@renounce, @Puntlich11,
… and, my first mistake, by getting my first advice from a cross-border accounting firm (rather than an immigration/nationality lawyer) and and then filing back US tax returns (prepared by that firm), the first batch for 2005 – 2007?? I don’t know; I made too many mistakes.
Re: “Fairness or unfairness has little to do with the law.” I should clarify this. Constitutional and human rights (and the Canadian Charter and the European Convention) do set minimum standards especially for penal/criminal law. But especially in the areas I worked in – bankruptcy, taxation and immigration – fairness is left to the political and diplomatic (treaty) arena.
Perhaps I wrote naïvely about the number of Canadians who care about border issues. True, many of the “accidental Americans” were born in the USA by accident, i.e. before the establishment of provincial health plans: thus the closest maternity clinic to Stanstead was then in Newport VT. Many of the Vietnam emigrants (my era) had no, or limited, further interest in the USA (recall the Ronald Anderson case I linked to earlier) and would not have registered Canadian-born children’s birth with an American consular office. (That would still leave the children with US nationality but no one would ever know.) I lectured in Montreal and in Toronto years ago and both times “secret Americans” came up to me afterwards and revealed their status.
Canada is a special case. In the rest of the world most middle-class and working-class dual nationals ignore their responsibilities under US tax law. When penalties and cost of compliance (think: FBAR, FATCA, 5471, 3520 …) are so disproportionate to the risk of revenue loss and to the ability of violators to pay they diminish respect for the enacting State and lead to noncompliance. http://www.gao.gov/products/GGD-98-106 was an early (1998 and prior) assessment. 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. They actually bargain with lawyers for nonresidents – just as ordinary creditors do – as to how much they will settle for when they otherwise have no hope of collection. 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.
@calgary411
As for the Registered Disability Savings Plan (something about which I know nothing), I can only say that it would anyway one should plan for an early transfer of trusteeship to a person and an alternate who are likely to outlive the beneficiary. One doesn’t want a probate/surrogate’s/chancery court or tribunal des successions to choose a successor trustee who would then likely be a friend of the judge or anyway someone who would bleed the trust with fees if that is possible. Google this (with quotes): “in+re+mollie+orshansky”. (What arguably corrupt judges did to her was a travesty, the more so since it was she who invented the “poverty index” during her career with the SSA.)
It seems to me that dual nationals in the UK whose children benefited from a Child Trust Fund (the UK Government used to give a gift of £250 at birth and a further contribution later to encourage parental savings in a 529-type trust fund) are in the same position. How many of these are reported on form 3520?
Things get worse when non-trust entities and relationships are deemed by Treasury and the IRS to be subject to reporting: Estate of Swan v. Comm’r, 24 T.C. 829 (1955).
There ain’t no justice. But I said that already. For what it is worth: more people have been hanged for volunteering information (“I didn’t shoot the bank dick, my partner did.”) than for any other reason. Never volunteer information that has not been asked for and that is not required to be disclosed. I think that Offshore Voluntary Disclosure is, as its name implies, within the class of “volunteered information”.
*punktlich11
One of the arguments I am trying to make is that it is my belief that any action civil or criminal against a non resident taxpayer must be taken in the District of Columbia. Notwithstanding the fact the IRS is actually based in the District of Columbia DC is actually a horrible venue for tax law cases for a lot of different reasons some of which I expounded upon on another thread yesterday. Note: this was not always the case and back in the day(the time of Cook v Tait) local revenue officers could go after non resident taxpayers for basically political reasons. However, the rules of venue have change dramatically after World War II and the Federal DC Circuit was setup as the catchall for Federal litigation that has no other natural venue.
*punklitch
The DC Circuit also handles case of against the State Dept vis a vis things like loss of nationality, CLN issuance etc so they are more familiar with nationality law than other US Courts.
*punktlich11
I will also add there was another GAO report from around the year 2002 that discusses the disclosure of CLN’s to the IRS. Basically the IRS admitted just like with Passport data they did absolutely nothing with it other than publish the Federal Register list. Perhaps things have changed but then again perhaps not.
*@Tim
You comment on venue. That’s a complex question, complicated further by the multiplicity of tribunals that have jurisdiction over particular matters: for tax, the Tax Court, District Court and Court of Claims; for immigration the Immigration courts as well as the regular federal system. Here’s a blog and case on that: http://blog.taxesforexpats.com/2011/07/28/is-fbar-venue-criminal-venue-for-the-convenience-of-the-government-or-in-no-district-for-the-convenience-of-the-filer/
It’s been some years since I had occasion to refer to a treatise on US immigration law but I recall that Charles Gordon’s encyclopaedic treatise advised practitioners that some administrative law judges were more sympathetic to claimants than others: the implication was that forum shopping is a good idea.
For the rest: one must never forget that the US Government is not responsible for the errors of its agents, not subject to estoppel. If you are told something wrong by a border guard or a government lawyer or a prosecutor or anyone else acting for the Government, and that has not been endorsed by a competent court, you cannot rely on it. http://www.roa.org/site/PageServer?pagename=law_review_1104
*@Tim
“… back in the day(the time of Cook v Tait) local revenue officers could go after non resident taxpayers for basically political reasons”
I can’t let this go uncorrected. Cook v. Tait was 1924. Richard Nixon had the IRS go after people for political reasons. I am aware of one local IRS official who had his neighbour pursued for “probable” tax fraud because he had a boundary dispute (or some similar) and he knew, or thought he knew, that she had a petty enterprise (hair cutting at home or some such). One has no recourse over a government enforcer’s decision to go after you and to ignore other, far more serious, offenders.
I think that participants on this forum are most likely to be vindicated at such time as the US Government becomes generally ridiculed abroad for its disproportionate, selective and vituperative conduct towards its expatriate citizens and others (green card holders and so on). In any event while a collapse of the currency is not likely anytime soon, the dollar can’t forever retain its reserve-currency leadership under a “starve the beast” and “beggar thy neighbour” regime. Laws such as FATCA depend on U.S. dominance in trade and finance.
Expatriation taxes are not unknown elsewhere, including Canada (marking to market and charging CGT on emigration). But the current U.S. practice seems out of scale. Furthermore, once one is out of compliance with FATCA and subject to penalties in excess of assets there is no incentive either to come into compliance or to renounce citizenship. A foreign discretionary trust starts to look interesting, making it possible for the trustee to avoid remitting assets to (for example) an heir who is subject to USG jurisdiction. (Not all countries recognise or allow trusts and many have forced heirship, but those issues can usually be dealt with, at least by the wealthy.)
It is true that the IRS can select just a few nonresident tax evaders and non-reporters of foreign accounts; but it won’t take many of them seized on arrival or their US assets sequestered before the rest take notice and act accordingly.
Utne Reader’s article this week on the collapse of the California public university system (just one example of infrastructure collapse in the USA) suggests that offspring of expats may find little that is attractive about studying in the USA. http://www.utne.com/politics/californias-not-so-public-higher-ed.aspx If they don’t do that, are they likely to choose to live there? Just wondering.
*punklitch
I used the term “politcally” to strong I was not referring to Richard Nixon era I was talking more about the pre IRS Bureau of Internal Revenue days back pre 1930’s where you had “local” Revenue officers much in the same way you have “local” US Attorney’s politically appointed. I admit to not being that familar with Cook vs Tait but understanding was Tait had lived outside the US for many years like more than twenty while Cook as the revenue officer for I think Maryland to which Tait had no actual ties to but I might be wrong about this. When use the term political I am more referring to the fact in the present that many “local” US Attorney’s seek higher political office and sometimes willing to stretch the law to bring a case that will look good for them “politcally.”
As East Germany was crumbling in 1989, its Stasi secret police wrote a report identifying conditions that were causing its citizens to flee to the West. Some of the reasons listed are eerily similar to reasons why US citizens are turning in their passports in record numbers and why so many Americans live abroad: (translated)
“Stasi Report on East Germans leaving the GDR
The main reasons / causes for the desire to permanently emigrate or unlawfully leave East Germany – which also align with a variety of inputs central and local bodies / institutions – are given below:
– Dissatisfaction with the availability of goods
– Irritation with inadequate services
– Lack of understanding for deficiencies in medical care and services
– Travel restrictions within the GDR and abroad
– Unsatisfactory working conditions and disruptions in production processes
– Inadequate / inconsistency in the application / enforcement of performance principles and dissatisfaction with the development of wages and salaries
– Annoyance and callousness on the part of officials and employees of government agencies, enterprises and institutions in dealing with citizens
– Lack of understanding for the media policies of the GDR”
Stasi-Bericht, 9. September 1989.
From: „DDR – Das Ende eines Staates“, Paul Jackson, 1994
*@Innocente
Having seen “The Lives of Others” twice and having visited the Stasi office and relics in Warnemünde last year, I don’t think the USA is on track to mimic the GDR.
That said, US civil servants are disdained, even despised, by the Republican Right and that does not lead to good morale or to a proper work attitude. According to Wikepedia, that fount of all knowledge, “As of January 2010, federal district judges were paid $174,000 a year, circuit judges $184,500, Associate Justices of the Supreme Court $213,900 and the Chief Justice of the United States $223,500. All were permitted to earn a maximum of an additional $21,000 a year for teaching”. It seems to me that in our (or more exactly the US) celebrity culture most of those judges think of themselves as worth far more, and it is doubtless reflected in their morale and their performance too. The star lawyers (at least) who appear before them will have earnings in the $ millions.
*@Tim
Cook v. Tait goes to the power of the Congress to levy tax on non-resident citizens. That power is easily abused when the State asserts another power that it possesses: to attribute its nationality at birth and to make it difficult or impossible to renounce. There are countries (Iran comes to mind) that have no (or had none last time I looked) provision for divestiture of nationality. In the 1970s the State Department warned citizens with Greek-sounding names that they could be conscripted into the Greek Army upon arrival in Greece. They even warned a Lebanese-American acquaintance of mine that Greece might consider him Greek, not Lebanese, because of his name. (On the other hand in those days certain Greek-Americans preferred service in the Greek NATO forces rather than in the US Army in Vietnam.)
@punktlich11,
Thanks for all of your commentary. I’ve copied and pasted from your comments into a document and, to keep them in mind, highlighted many things I thought especially relevant. I appreciate your participation.
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Here is an interesting story about how the US stole the US birthright citizenship away from US women who married legal immigrants. It seems that the US has a history of using and abusing citizens arbitrarily:
http://www.startribune.com/opinion/commentaries/186542121.html?refer=y
“The citizens a nation and time forgot” Article by:
DANIEL SWALM Updated: January 12, 2013
Back then, the women who were wed to unnaturalized immigrants remained noncitizens.
….”a woman without a country, an involuntary expatriate in the land of her birth.
But before the end, there was a beginning, and that
beginning started when the 59th Congress of the United States passed a
really bad law (even by congressional standards): The Expatriation Act
of 1907.
One provision of the law was this: If an American-born
woman, a native-born U.S. citizen, married a legal immigrant, well,
then, that woman lost her American citizenship. Poof. Gone. Kaput.
Vanished into thin air. Congress, in all its wisdom, didn’t trust a
woman to be both a good wife to an immigrant husband and a good citizen
of the country in which she was born…..”
Probably every Canadian knows this story but it was news to me. During WWII, Princess Juliana of the Netherlands gave birth to daughter Margriet in the Ottawa Civic Hospital. To ensure that the child would have Dutch (and only Dutch) citizenship, the hospital suite was declared “extra-territorial” by the Canadian Parliament and therefore temporarily Dutch territory:
“Princess Juliana of the Netherlands, the only child of then–Queen Wilhelmina and heir to the throne, sought refuge in Canada with her two daughters, Beatrix and Irene, during the war. During Princess Juliana’s stay in Canada, preparations were made for the birth of her third child. To ensure the Dutch citizenship of this royal baby, the Canadian Parliament passed a special law declaring Princess Juliana’s suite at the Ottawa Civic Hospital “extraterritorial”. On January 19, 1943, Princess Margriet was born. The day after Princess Margriet’s birth, the Dutch flag was flown on the Peace Tower.”
http://en.wikipedia.org/wiki/Military_history_of_Canada_during_the_Second_World_War
To help out the Canadians born in American hospitals near the border who do not wish to be American, the US Congress could, retroactively, declare those hospital delivery rooms “extra-territorial” for the moment of birth of any Canadians.
This is obviously a far-fetched solution that will never happen but still a brain stimulator.
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When did the .S. begin insisting that Americans who are dual citizens with Canada cannot enter the U.S. on their Canadian passport? In 1991, when I was in the process of taking out my dual citizenship, I had a long and pleasant talk with a representative at the .S. State Department, regarding what would be expected of me by the U.S. when I became a dual U.S.-Canadian citizen. The State Department representative told me that when I was resident in Canada that I should enter and leave Canada on my Canadian passport, and that when I was resident in the U.S. I should enter and leave the U.S. on my American passport. The reason for doing this, he said, was so that Customs Canada and the Canadian government would have a clear record of when I was entering and leaving Canada. Makes sense to me. If the Americans force we who are dual citizens residing in Canada to enter and leave Canada on a .S. passport how IS Canada able to maintain a clear record of our residency in Canada. Will the U.S. actually refuse us entry if we present with a Canadian passport that shows a birthplace within the U.S.? How DOES Canada track our comings and goings, then? When I took a vacation to the States in 1996–before passports were required–I told Amreican Customs that I was a dual citizen. I showed both my American birth certificate and my Canadian citizenship card. The American Customs agent, in 1996, said “You have to declare one”. Not wanting to deny either country, my response was “I am a citizen of the U.S. and of Canada. The State Department told me to enter and leave on the document of the country of the country I am resident in” and I slid the Canadian citizenship card forward. He accepted this, with a disapproving grimace. What changed and when?
I would add just one comment to what I have already said here. That comment is that in 1984, the U.S. Supreme Court made a decision that said, in effect, that “a person cold have two friends and not be an enemy of either”. This was the basis for allowing and recognizing the legality and legitimizing of dual US.-Canadian citizenship, without having to renounce the country of one’s birth. It would seem to me that U.S. border guards who refuse to recognize and accept a Canadian passport presented by a dual U.S.-Canadian citizen who is resident in Canada are violating the 1984 U.S. Supreme Court decision.
@Susan, to my knowledge this was a ineffective security measure put in place after 9-11. In the process, the US has maintained its reputation as a serial human rights abuser, by not acknowledging that Canadian citizens have the right to relinquish their US citizenship and that right rests in their hands, as it is a right that belongs to the individual not to a state. The Neanderthal border guards (apologies to Sasquatch) should be telling Canadian citizens that if they relinquished their US citizenship they may obtain a CLN at the nearest Consulate by informing them of their relinquishment. Instead they say, in so many words, “You are a US citizens until we tell you that you are not.” This is a clear violation of US law and international law. But what can you expect from a serial rights abuser?
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One thing I’d be curious about–is there a distinction between the concept of “dominant nationality” and someone’s “only nationality”? In other words–you’ve mainly enumerated situations where the dominant nationality is the only one that should come into play.
What are some circumstances in which the opposite is true? What are some circumstances in which it IS appropriate to bring the secondary citizenship into play?
Or does the concept of dominant nationality effectively mean that dual citizenship doesn’t, for practical purposes, really exist?