This page is intended as a place to cite the portions of Constitutions, Charters, Declarations and the like that prohibit discrimination on the basis of national origin. Many of us have often argued –at IBS, Maple, and elsewhere– that prohibiting participation in certain types of financial accounts and/or applying additional tax to income and/or wealth and/or forcing particular reporting requirements to a foreign jurisdiction upon people living and paying taxes in a country protected by one or more of these documents constitutes discrimination on the basis of national and/or ethnic origin. FATCA, FBAR and Double Taxation are thus largely unenforceable.
Constitutional texts will follow here in Blockquote, with translation to English and further commentary in italics where the text cited from the publishing authority of the document is not English. Emphasis upon the operative words shall appear in bold.
I will be maintaining this page and reserve the right to moderate and to make formatting adjustments. Please feel free to add a comment with an analysis of other constitutions, charters, declarations that you know and can provide English translation of. Please try to respect the same type of formatting. As each individual analysis appears, I will copy them into the main post.
I N T E R N A T I O N A L
UNIVERSAL DECLARATION OF HUMAN RIGHTS
UDHR (http://www.un.org/en/documents/udhr/index.shtml):
Article 1.
All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.
Article 2.
Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. Furthermore, no distinction shall be made on the basis of the political, jurisdictional or international status of the country or territory to which a person belongs, whether it be independent, trust, non-self-governing or under any other imitation of sovereignty.
E U R O P E
CHARTER OF FUNDAMENTAL RIGHTS OF THE EUROPEAN UNION
(http://www.europarl.europa.eu/charter/default_en.htm):
Article 21
Non-discrimination
1. Any discrimination based on any ground such as sex, race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a national minority, property, birth, disability, age or sexual orientation shall be prohibited.
FRENCH CONSTITUTION AND DECLARATION OF THE RIGHTS OF MAN AND CITIZEN OF 1789
(http://www.assemblee-nationale.fr/connaissance/constitution.asp#titre_11B)
PRÉAMBULE
Le peuple français proclame solennellement son attachement aux Droits de l’Homme et aux principes de la souveraineté nationale tels qu’ils ont été définis par la Déclaration de 1789, confirmée et complétée par le préambule de la Constitution de 1946, ainsi qu’aux droits et devoirs définis dans la Charte de l’environnement de 2004.
The preamble states the attachment to human rights specified in the Declaration of 1789 (see below).
Art 1
La France est une République indivisible, laïque, démocratique et sociale. Elle assure l’égalité devant la loi de tous les citoyens sans distinction d’origine, de race ou de religion.
[France] insures equality before the law of all citizens without distinction to origin, race, or religion.
Chacun a le devoir de travailler et le droit d’obtenir un emploi. Nul ne peut être lésé, dans son travail ou son emploi, en raison de ses origines, de ses opinions ou de ses croyances.
Nobody may be cheated, in his work or his employment, because of his origins
DÉCLARATION DES DROITS DE L’HOMME
ET DU CITOYEN DE 1789Article Ier
Les hommes naissent et demeurent libres et égaux en droits. Les distinctions sociales ne peuvent être fondées que sur l’utilité commune.
Social distinctions cannot be founded unless for public good. [Well, taking money out of France to pay US taxes or denying people bank accounts and jobs is not for the public good.]
Article II
Le but de toute association politique est la conservation des droits naturels et imprescriptibles de l’Homme. Ces droits sont la liberté, la propriété, la sûreté et la résistance à l’oppression.
The reason for all political associations is the preservation of the natural and unalianable rights of man. These rights are liberty, property, safety, and resistance to oppression.
SWISS FEDERAL CONSTITUTION
(http://www.admin.ch/ch/e/rs/c101.html)
Art. 8 Equality before the law
1 Everyone shall be equal before the law.
2 No one may be discriminated against, in particular on grounds of origin, race, gender, age, language, social position, way of life, religious, ideological, or political convictions, or because of a physical, mental or psychological disability.JDT Note: Although the English translation provided by the Swiss Confederation is not an officially binding version, the word “origin” here is also “origin” in the official French version and “Herkunft” in the German version. We are not speaking of “droit de cité” or “heimatort” i.e. the village from which a Swiss citizen derives his or her Swiss nationality, but of “origin” in general. I read this to mean ethnic and/or national origin. Also refer to RS291 Art 23, which states that Swiss dual nationals are to be considered Swiss, and that other dual nationals are treated as having the nationality with which they have the most ties. Art 261bis CPS also provides for criminal sanctions in cases of discrimination on the basis of origin. Switzerland, though not part of the EU, has bilateral accords with all EU and European Economic Area countries and may be considered to be loosely bound by the European Charter as well.
CONSTITUTION OF SWEDEN
(http://www.government.se/sb/d/15633/a/194712):
2 § Den offentliga makten skall utövas med respekt för ALLA MÄNNISKORS LIKA VÄRDE och för den enskilda människans frihet och värdighet.
Den enskildes personliga, EKONOMISKA och kulturella VÄLFARD skall vara grundläggande mål för den offentliga verksamheten. Det skall särskilt åligga det allmänna att trygga rätten till hälsa, arbete, bostad och utbildning samt att verka för social omsorg och trygghet.
Det allmänna skall främja en hållbar utveckling som leder till en god miljö för nuvarande och kommande generationer.
Det allmänna skall verka för att demokratins idéer blir vägledande inom samhällets alla områden samt värna den enskildes PRIVATLIV och FAMILJELIV. Det allmänna skall verka för att alla människor skall kunna uppnå delaktighet och jämlikhet i samhället. Det allmänna skall MOTVERKA DISKRIMINERING av människor på grund av kön, hudfärg, NATIONELT eller etniskt URSPRUNG, språklig eller religiös tillhörighet, funktionshinder, sexuell läggning, ålder eller annan omständighet som gäller den enskilde som person.
§ 2 Public power shall be exercised with respect for the equal worth and individual freedom and dignity.
The personal, economic and cultural welfare shall be fundamental aims of public activity. It shall be incumbent upon the public to ensure the right to health, employment, housing and education, and to promote social care and social security.
The public authorities shall promote sustainable development that leads to a healthy environment for present and future generations.
The public authorities shall promote the ideals of democracy as guidelines in all areas of society and safeguard the individual’s personal and family life. The general will work for all people to attain participation and equality in society. The public authorities shall combat discrimination of persons on grounds of sex, color, or ethnic NATIONAL ORIGIN, linguistic or religious affiliation, disability, sexual orientation, age or other circumstance affecting the private person. (Translation was provided by Mark Twain here at IBS).
A M E R I C A S
CANADIAN CHARTER
(http://laws-lois.justice.gc.ca/eng/Const/page-15.html)
Equality Rights
Equality before and under law and equal protection and benefit of law
15. (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.
Further discussions on Canadian Charter: Please refer to Peter Hogg letter (http://www.greenparty.ca/sites/greenparty.ca/files/attachments/peter_hogg_fatca.pdf)
O C E A N I A
NEW ZEALAND HUMAN RIGHTS ACT
(http://www.legislation.govt.nz/act/public/1993/0082/latest/DLM304212.html)
21Prohibited grounds of discrimination
(1)For the purposes of this Act, the prohibited grounds of discrimination are—
(a)sex, which includes pregnancy and childbirth:
(b)marital status, which means being—
(i)single; or
(ii)married, in a civil union, or in a de facto relationship; or
(iii)the surviving spouse of a marriage or the surviving partner of a civil union or de facto relationship; or
(iv)separated from a spouse or civil union partner; or
(v)a party to a marriage or civil union that is now dissolved, or to a de facto relationship that is now ended:
(c)religious belief:
(d)ethical belief, which means the lack of a religious belief, whether in respect of a particular religion or religions or all religions:
(e)colour:
(f)race:
(g)ethnic or national origins, which includes nationality or citizenshipThanks to Stgeorge for finding this text
@Jefferson D Tomas
Yes, thank you for this ‘repository’ so to speak.
@Victoria
Your blog post haunted me as I went to bed last night. The choice any of us makes is going to be painful to varying degrees, and it will vary with each of us how easily we live with that choice. To have even at any time thought that my US citizenship was benign, let alone something I feel compelled to rid myself of, seems naive to me now. The genie that’s being uncorked here is forever going to change the meaning of what it means to be a US person living abroad and could very well see the end of American global migration on any significant scale. What does that mean to the future of American society, culture, and influence when an American’s experience of the world is on a ‘day pass’? What will it mean to the rest of the world? It can’t be something good.
@badger, Calgary411
Until the thorn of citizenship based taxation is removed, the infection will still fester and have casualties.
Bubble – sadly you are correct. What is even more disturbing is how governments (Swiss, UK, NZ, Mexico et al) have effectively thrown their own citizens directly under the bus. They are not providing any protection under their own laws to their own citizens against foreign US taxation and national origin discrimination. Instead they are agreeing to amend their own national privacy/data protection laws to accomodate the US! China and Canada are can help right this terrible wrong or these two key countries can seal FATCA’s fate.
I too was haunted by the story on Victoria’s site. How could anyone read something like that & not be moved? Hearing personal stories can give some enlightenment to those that just can’t comprehend how serious this issue really can be for those directly affected. Maybe there should be some kind of master data base of personal stories. Would that break through to the powers that be? For those caught in the nightmare would it be therapeutic or would it be depressing?
I left this comment on Victoria’s blog:
“If countries change their laws in order to accommodate the US in the implementation of FATCA and as a result engage in practices that discriminate against USP’s, wouldn’t it be ironic if the US accused these countries of passing laws that result in the discrimination of Americans?”
Aren’t other countries acting under duress, unless of course they can find some way to make FATCA mutually beneficial, say, in a concerted effort to fight offshore tax evasion?
@Jefferson, I would be delighted and I’ll start working on it tomorrow. Can I ask you for a favor though? I still have a pretty bad case of chemo brain and I have over the last few months missed deadlines and email and commitments because I wasn’t feeling well. It would be very helpful if we could talk via email about this and set up some kind of “working together” arrangement. I’m not asking you to be my Mom but it would really help keep me focused and on target. v_ferauge@yahoo.com.
Notwithstanding the violation of rights and freedoms in various countries, it is not clear how this might apply to banks if a country does not sign an IGA. In Canada for example, it would appear that our banks will roll over and play dead. Although they have made representations that complying would be costly, most have developed information and policies on FATCA and specifically what they would do to meet requirements. Their websites do not say they are fighting this, but rather say that they are developing procedures to meet these requirements. Some of the banks statements are rather informal and developmental at this stage, but it would seem their direction is clear. It would seem that although it is costly to implement, it is much more costly to lose the 30% withholding penalty if they fail to comply. So does it come down to what is best for them financially, rather than what is best for their customers? It would appear that their bottom line and their profits are more important than supporting their customers ( and by the way it is our money ). It is much easier and more profitable I guess, to cave in to the blackmail. My hope would be that the banks would collectively refuse and propose mechanisms to enact equal penalties on the US. There are so many ways in which the US badly needs Canada and its resources. We have some big levers.
Here is a link to the New Zealand Human Rights Act 1993: http://www.legislation.govt.nz/act/public/1993/0082/latest/DLM304212.html
21Prohibited grounds of discrimination
(1)For the purposes of this Act, the prohibited grounds of discrimination are—
(a)sex, which includes pregnancy and childbirth:
(b)marital status, which means being—
(i)single; or
(ii)married, in a civil union, or in a de facto relationship; or
(iii)the surviving spouse of a marriage or the surviving partner of a civil union or de facto relationship; or
(iv)separated from a spouse or civil union partner; or
(v)a party to a marriage or civil union that is now dissolved, or to a de facto relationship that is now ended:
(c)religious belief:
(d)ethical belief, which means the lack of a religious belief, whether in respect of a particular religion or religions or all religions:
(e)colour:
(f)race:
(g)ethnic or national origins, which includes nationality or citizenship:
I wonder if there is already any caselaw in the European Court of Human Rights database that would support our positions: http://www.echr.coe.int/ECHR/EN/Header/Case-Law/Decisions+and+judgments/HUDOC+database/
I found the Darby v. Sweden case interesting. The guy lived partially in Finland and was getting hit with Swedish church tax. The Court found for him, and he got at least 58’000 kroner (10 grand or so).
Would some of you Brockers like to spend a little time searching that database for cases of interest to us?
@Jefferson D. Thomas
Is this interesting?
How would this apply to for example an EU member state allowing a bank/employer etc. based in that member state to discrimate against a permanent resident lawfully residing and paying taxes to the EU member to be discrinated against because of being a “US person” (especially if they were also a citizen/permanent resiednt of the EU member state.
Page 107 Handbook European Court of Human Rights
“The essence of the ECtHR’s approach is that the closer the factual bond of an individual to
a particular State, particularly in terms of paying taxation, the less likely it is that it
will find that differential treatment on the basis of nationality is justified.”
@allou Well, certainly the fact that someone has a tax domicile in a European country proves their ties to that country. So if one pays taxes in France or Germany, has their primary residence there, etc., differential treatment in that country on the basis of nationality should not be justified.
@jefferson and others –
“Well, certainly the fact that someone has a tax domicile in a European country proves their ties to that country. So if one pays taxes in France or Germany, has their primary residence there, etc., differential treatment in that country on the basis of nationality should not be justified”
Those were my thoughts too – the statement is on page 107 of the Handbook European Court of Human Rights.
Page 107 Handbook European Court of Human Rights
“The essence of the ECtHR’s approach is that the closer the factual bond of an individual to
a particular State, particularly in terms of paying taxation, the less likely it is that it
will find that differential treatment on the basis of nationality is justified.”
However this is a handbook, and I am not a lawyer, so I have no idea of how much-if at all-it could be relevant to the discriminatory acts against US persons living abroad as described at IBS and the letters sent to the US House Ways and Means committee. Any further comments?
I thought that this could be usable, but unfortunately, this is likely over-ridden by longstanding tax treaties, all standardized under Bill Clinton, establishing US extra-territorial taxation in each country, signed, ratified.
The handbook guidelines would have to be implemented into new treaties?
The Dutch Blinkbank has just had a ruling against it in the Netherlands for discrimation after closing the accounts of U.S. persons because of the costs imposed by FATCA:
http://www.futd.nl/fiscaal-nieuws/7286/door-fatca-weren-van-amerikaanse-klanten-verboden-onderscheid/
I was relying on Google translator and a weak knowledge of Dutch, but the meaning seems clear.
@Publius: Excellent find! This case involves an “accidental American”, born in 1969 in the US who moved to the Netherlands in 1970. He opened an investment account in the Netherlands at Binckbank in 1999 which the bank cancelled in 2013 due to FATCA. The Dutch human rights court ruled that this account termination was discrimination based on the plaintiff’s nationality:
http://translate.google.com/translate?sl=auto&tl=en&js=y&prev=_t&hl=en&ie=UTF-8&u=http%3A%2F%2Fmensenrechten.nl%2Fpublicaties%2Foordelen%2F2014-40%2Fdetail&edit-text=
Yes, a great find, Publius. Kudos to this person for standing up / fighting this closure of his accounts (for national origin by US taint) and for the Netherlands decision!!
I wonder the help of this courageous Netherlands MP (Sophie in’t Veld of Netherlands): https://www.youtube.com/watch?v=zRoU-JNFhr0
I am glad you appreciated it. I thought that it might help to give people some encouragement in standing up to those denying service.
The bank in question, which was indeed the Dutch division of BinckBank, not Blinkbank. The bank had even written into its Dutch terms and conditions the exclusion of U.S. persons due to FATCA, see section 6.4. If anyone is planning on using this as evidence for any reason, I would download it sooner rather than later, since it will disappear.
https://www.binck.be/_clients/binck_be/data/pdf/algemene_voorwaarden_nl.pdf
Hello all
To all European nationals affected by this FATCA nonsense, you could also investigate the European Convention on Nationality, in particular Article 5:
“Article 5 – Non-discrimination. The rules of a State Party on nationality shall not contain distinctions or include any practice which amount to discrimination on the grounds of sex, religion, race, colour or national or ethnic origin. Each State Party shall be guided by the principle of non-discrimination between its nationals, whether they are nationals by birth or have acquired its nationality subsequently.”
If your Member State has signed on the dotted line, one would have thought that you are protected. Since when did pseudo-legal intergovernmental agreements supersede European conventions?
Maybe it is time for all affected Europeans to march to Strasbourg?
This is hypocrisy at America’s best…
http://www.justice.gov/crt/legalinfo/natorigin.php