The laws of each state determine who is a citizen and therefore, who it will protect. The Michigan Law Review 83 (1984) deals with the problem of dual nationality and how Iran-United States Claims Tribunal (1981) arbitrated claims by dual Iranian-Americans citizens, in their attempt to recover lost property. Iran claimed the duals as Iranian and therefore, under the doctrine of state nonresponsibility, as having no right to reparations, i.e., no right to the protection of the United States.
State nonresponsibility was described by the International Court of Justice as the “ordinary practice whereby a State does not exercise protection on behalf of one of its nationals against a State which regards him as its own national.” Reparation for Injuries Suffered in the Service of the United Nations, 1949 I.C.J. 174, 186 (Advisory Opinion of Apr. 11). [n. 9]
But the Tribunal, ruling against Iran, asserted the doctrine of dominant nationality, allowing individuals of dominant US nationality to present their claims against Iran.
The Michigan Law Review article claims that one problem with the doctrine of state nonresponsibility is that it doesn’t take into consideration the right of an individual to expatriate (604-605):
Specifically, some countries do not allow an individual to expatriate himself, even upon naturalization in another country. For instance, an Iranian citizen can renounce after obtaining permission from the Council of Ministers. Such unbridled control over an individual’s nationality is inconsistent with international expressions such as the Universal Declaration of Human Rights that assert the right to change nationality. If that right is to have any significance, it must encompass the liberty to forsake as well as to acquire a nationality. The extension by a state of its municipal laws to prevent an individual from renouncing his nationality is one of the least defensible expressions of sovereignty.
So the Michigan Law Review directly criticizes an archaic policy of Iran restricting expatriation. Today, such a criticism applies to the United States too, which has applied filing requirements and an exit tax on individuals, barring them from expatriation without first getting the permission of the IRS. The United States is also actively repatriating citizens of Canada against their will. This is a patent violation of international law and the doctrine of dominant nationality. Remember the border guard: “You are a U.S. citizen until we tell you you’re not.” Welcome to the Middle Ages.
In my opinion, the doctrine of dominant nationality should absolve dual citizens, who have dominant nationality in another country, from the extraordinary overreach of the United States. As we have seen elsewhere, the United States may target citizens for assassination; these citizens no longer enjoy the constitutional right to due process. How then can the United States prevent dual citizens from claiming the protection of the nation of their dominant nationality or from refraining from filing requirements of a government with which they have no substantial connections?
Dear United States: please join the modern world. If you would at least join the 20th century, you would then only be one century behind the times.
SOURCE: ”Claims of Dual Nationals in the Modern Era: The Iran-United
States Claims Tribunal”, Michigan Law Review, 83 (1984) 597-624.