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
How about the US Constitution?
@Mark Twain we already have some articles under the Our Resources sidebar “Is the taxation of US persons abroad constitutional?” and “FBAR: When government turns predator”.
This is from Wikipedia: Equal Protection Clause, part of the Fourteenth Amendment to the United States Constitution, provides that “no state shall … deny to any person within its jurisdiction the equal protection of the laws.”[1] The Fourteenth Amendment Equal Protection Clause applies only to state governments, but the requirement of equal protection has been read to apply to the federal government as a component of Fifth Amendment due process.
This is the link to the DoJ cite explaining the federal laws that have been passed to back up the 14th Amendment:
http://www.justice.gov/crt/legalinfo/natorigin.php
One frustrating part of this whole FATCA fiasco is that we all know it is something that should be rejected before it takes any kind of a hold in our country. That is what we have been advocating for (NO FATCA, NO IGA) but unfortunately we still have no definite sign of success. The process seems to be that following a FATCA IGA (most likely a Model 1) and the passing of the necessary legislation to facilitate it, then it is time for the victims to lawyer up and begin a legal challenge on the basis of discrimination. What a waste of money, time and energy! In the meantime, until everything works its way through the court system and hopefully a favourable ruling is made, 3% of Canada’s population will be experiencing discrimination. I’m not even certain that we can trust the Canadian courts to rule in our favour since individual rights can be trumped by corporate interests. The banks do not want the threat of a 30% withholding penalty hanging over their heads. They are the major corporate interest here but there are also the tax preparation and compliance industries which welcome the increased profits from FATCA.
After a FATCA IGA there is no doubt that the 3% of Canadian residents with a US connection will be treated unequally as their private financial details are automatically transmitted to the IRS, either directly or indirectly via the CRA. The most likely scenario is that the information will go first to the CRA and from there to the IRS and then TWO governments would have access to this information which in my opinion is even worse than one. Anyway, what I have suggested to some MPs lately is that there might be something else to consider. Upon recognizing that there is unequal treatment for a small subset of Canada’s population, the Canadian government might decide to “fix” the problem by requiring the banks to transmit the same information on the other 97% to the CRA too. Everyone is then treated equally, problem solved. Of course, under the guise of treating everyone equally, the government has then made things even worse. Everyone is placed into a financial panopticon prison. The Canadian government might be just diabolical enough to think that FATCA gives it the opportunity to automatically acquire a whole lot of data on all Canadians which currently it can only get on an individual basis after showing probable cause and obtaining a court order. These days data is as powerful as money and governments love power. Probably this is wild and crazy speculation but maybe it’s something to think about at least.
@Em
If banks forward the account details of the other 97% (who are 100% Canadian) to the CRA, CRA will definitely NOT be forwarding this info onto the USA. Therefore the discrimination issue remains as only ‘US persons’ will have their account details sent to a foreign country.
If the Charter of Fundamental Rights of the European Union identifies discrimination on the basis birth, etc. as prohibited, why don’t persons living in Europe take issue on these grounds with the IGAs agreed to by the UK, Denmark, etc.?
For what it is worth, the persons they have in mind are likely Turks in Germany, North Africans in France, Gypsies everywhere, etc. It might be a novel and unexpected application to extend these rights to expatriate Americans who, on the whole, are not viewed as the object of discrimination in the traditional sense.
@ WhiteKat
No, I didn’t imply that the other 97%, under the treat everyone equally scenario, would have their information given to the IRS. It wouldn’t. The Canadian government would simply be able to claim that since the same information is being collected from everyone, it is no big deal that 3% have the additional insult of having it go to the IRS too. After all, Canada has already, by existing tax treaty, agreed that the USA has a right to collect taxes on its US citizens in Canada. It’s just a slightly different way at looking at the discrimination aspect, a possible way for the Canadian government to weasel out of the discrimination charge. And as for the banks, it actually makes things easier on them. If they juice up their computers for FATCA, it’s just as easy for them to dump everyone’s data at the CRA and let the CRA decide which 3% goes onwards to the IRS. I don’t know, just musing really, and maybe I shouldn’t be giving Harper and his ilk any ideas.
Em,
I was thinking the same thing as I read your post – lets not give anyone any not so bright ideas.
For info purposes, had my appt in Calgary on around 2nd wk in Jan, for renunciation, all went well, very professional from embassy interviewer , no pressure to try and changeyour mind, just let you know once its done, there’s no turning back, this is before signing and making sure nobody is telling you to renounce, received CLN last wk, with cancelled passport, here I was expecting wallet size CLN , but its letter size , so hope everybody has same success we had , my wife also renounced, same time
@ WhiteKat
Right! However, everyone means everyone, so MPs would not like that idea from a personal perspective (good incentive one hopes to be against FATCA) and if they tried to make everyone mean everyone except MPs then the everyone else would be pretty outraged. What we need is for everyone to be outraged that anyone (that is, the unfortunate 3%) are being threatened by the unreasonable intrusiveness of FATCA. Financial panopticon prison is actually a pretty good description of FATCA.
http://www.corbettreport.com/articles/20080308_panopticon.htm
Congratulations to you and your wife, Chuck! Good to hear all went smoothly (sounds like Calgary does a good professional job of it) and your CLNs arrived in two months. Thanks very much for letting us know.
Thanks, Chuck53 (charlie488), for the report for you and your wife renouncing at the Calgary US Consulate and receiving your CLN. I’ve updated our R&R database with two more successes. Sincere congratulations!
Em,
You made my head spin – not sure who I am anymore, part of the 3% or part of the 97%. I guess that`s the point though eh.
Swiss citizens abroad, particularly those in the US, are upset about FATCA’s impact on their ability to maintain bank accounts in Switzerland, according to an article in today’s Swissinfo:
“The Swiss Abroad community has vowed to fight any discrimination by financial institutions amid a row with the United States over tax compliance.
The Council of the Swiss Abroad called on the government to ensure that Swiss banks no longer refuse to open accounts or manage assets for Swiss expats. At a meeting in Bern on Saturday, it also stressed that bank fees must not be excessive.
The move comes as expats in the US or with dual American and Swiss nationality in particular face being shunned by Swiss banks.”
http://www.swissinfo.ch/eng/politics/Tax_and_banking_cause_concern_for_expats.html?cid=35247000
I can hear the homelanders now saying that Canada has laws that obstruct the US from going after Americans who wish to evade their tax responsibilities, therefore Canada must be a tax haven and an enemy of the US.
If anyone has any doubt as to why they continue to write letters and do whatever they can to educate and advocate against citizenship-based taxation in general and FATCA in particular then please read the comment from Anonymous at Victoria’s excellent blog …
http://www.blogger.com/comment.g?blogID=2424131704277823220&postID=1612057461719336577
It absolutely grinds my gut that Anonymous probably went through all she did without having found support such is available here and at other sites which have popped up since the FATCA Fatwa began. Be sure to read Victoria’s fine piece which prompted the comment from Anonymous too.
@Em
Thanks for the heads up on another fine piece from Victoria. Overwhelming, really.
Thanks for Victoria’s latest and the comments, especially from Anonymous. Heart wrenching and puts my gut in knots for what people are going through. Will the anger for it all ever abate? Will Canada refuse to submit to the bully by proving that the Canadian Charter of Rights is there for reasons like this?
@Em, and @bubblebustin, I worry about those who have been readers here, and sometimes were writers, but who we don’t hear from ever, or don’t hear from anymore after initial contact. I hope they are okay and have made it this far – or maybe some have gone silent because they have somehow managed to get beyond it. For example, I wonder how markpinetree is? Maybe some have managed to resolve things, or file quietly and successfully, or through the Streamlined path – who knows?
@badger,
As far as I know, nothing has changed for markpinetree one way or the other. He tweets every now and then.
@calgary 411, there has been untold suffering. We do not know what has happened and is happening to those that read here but never post. Or those who posted but have stopped. The suffering is made all the more acute because of the fear and need to be circumspect, and the lack of knowledge and understanding from those who are not part of this strange nightmare alternate universe we live in – where a powerful ‘foreign’ government, the US, can do this to us and our families – mostly unopposed and unreported. And I remember for example, when IJ spoke of having to put on a brave face for his wife and children. What doctor would understand if someone came to them and tried to describe this situation as the cause of their depression? No-one who has not lived it can fathom it. That leaves no understanding ear to hear and bear witness, and no empathetic audience other than the virtual one through websites like IBS or Victoria’s blog. There are things that need to be said, but there is nowhere for people to say them.
@nobledreamer, I have sometimes found myself back in a time machine courtesy of the IBS archives, and re-read threads from what was not that long ago, but which seems like ages. I hope that markpinetree and all those others, as well as ourselves, may get to another better, side of this.
@badger, I know what you mean. Once in a while, I even end up on ExpatForum and wonder about soooo many people. 416, justbrowsin, vangrrrl, there were so many. Maybe because that was the beginning for me, their stories and horror, anger, fear and all, I just associate with so strongly. I think it wears differently over time. I thought renouncing would change it and it did, but really, not quickly. Now, I am actually glad about it and am thankful that I was lucky in so many ways, not lots of money, already CDN, etc. At least there is clearly one good thing, and that is, I am no longer confused about any of this. I understand exactly what it is. And I’m glad to be on the other side of that.
Hi Folks, Oh yes the comment from anonymous in response to my latest post just hit me where I lived. I also received some interesting mail in response to it. One was yet another letter from a homelander who said, “I’m filling out my tax forms right now and I see ‘foreign tax credit.” Doesn’t that solve the problem?” I really appreciated the question and of course shot of an email in response enumerating all the ways it does not help us. Since this question comes up and over and over again, I think a very clear post about it would be helpful.
I also got a very nice email from someone associated with FAWCO who is now the president of AARO. Learned a lot from her email (and yes I need to write another post talking about FAWCO as well which is the oldest of the diaspora organizations) but I was most struck her comment that she was present at the the Treasury/IRS meetings about FATCA/FBAR last year. There is a story there to be told and I hope she’ll tell me more. What happened? What was said? How did US officials react to her comments? I don’t think I’m alone is saying that this sort of information needs to be shared more widely. Can anyone explain to me why it isn’t? I’m not looking for fault here – I’m looking to fix it.
And thank you Jefferson for the post with all your research. Great stuff. I had no idea. I’ll write a post in the next few days and link to your work. Again, thank you. Want me to look up what the French and other French speaking countries’ constitutions say?
@Victoria Sounds like you got my post at your Flophouse blogspot site. I didn’t bother to log in, I just did anonymous, but it was indeed me. Since everything is not in one constitution, but the current constitution refers back to 1789 and other documents, the French case is a little more complicated. Somehow this is not surpising due to the number of iterations of “the Republic” reloaded that have occured over time (no thanks to the WW II and Pépin).
I can think of no Brocker/Sandboxer better than you to write us a summary on origin discrimination from the French constitutional perspective. I have already done Switzerland, looking only at the English, French, German versions of the constitution (I could look at the Italian version, but I only have an approximative and passive understanding of Italian and am pretty certain that I would come to the same conclusions, and German is the largest linguistic group here anyway). In Europe, that leaves us with Belgium (French and Flemish) and Luxembourg (French, Luxembourgois, German), both of which can probably be done with the French versions of their constitutions, but I haven’t looked them up yet. If you could do these, it would be great. The next step would be to look at Francophone African countries. The subsaharan ones probably have constitutions in French, and I wouldn’t be surprised if magreb countries like Algeria or Morocco also have French translations available. If we can find Roger, we might be able to include Portuguese-speaking countries (Portugal, Angola, Mozambique, Brazil).
I know this all sounds like a lot of work, but if we do this work, we might then be able to argue that the vast majority of countries seem to agree on this issue, so why can’t we reject FATBARDT worldwide? If not in parliaments, perhaps we will have to do it in the courts in some countries.
If there are any Anglophone Africans here, please do volunteer to check out constitutions in Anglophone Africa. I suppose I could do some of the Nordic countries, perhaps with the exception of Finland, but they are a bit of a longshot from German. Mark Twain (who already did Sweden) if you have time can you use your Swedish to figure out Denmark and Norway?