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.
The news of a deal between the 5 major EU governments and the US regarding FATCA came as a major shock to many, including myself, last week. I have now come across news that the EU, now bolstered by the US drive to implement FATCA, has on its agenda to really join US pressure and try to “break Switzerland” as I like to say. On the forums I have also come across posts which have implied that Russia and China are probably not going to resist FATCA either. See everything below.
European Deal could double the pressure on Switzerland with the EU joining the US in violating Swiss sovereignty:
Alison Symington, “Dual citizenship and forced marriages” (PDF), Dalhousie Journal of Legal Studies 10 (2001); Winner of the Smith Lyons Essay Prize.
Abstract: This paper examines the phenomenon of forced marriage and how the international law on diplomatic protection and domestic citizenship laws interact to prevent young women from receiving help because of their status as dual nationals. The evolution of international law and the rise of human rights are considered, the author contesting international rules preventing the United Kingdom from attempting to assist its nationals who are abducted to South Asia for the purposes of forced marriage. This paper demonstrates how in complex situations involving power, gender, culture and politics, law is better understood as a struggle over meaning than as a stated rule of practice.
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.
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.
I have been hearing here (and elsewhere) that the American IRS has said that it might be inclined to treat dual US/Canadian citizens a bit more leniently. I imagine this is in response to the concerns that have been publicly raised by the Canadian government in response to the FATCA and the FBAR requirement.
I do not begrudge one whit this good news (if it is indeed true) but it does raise questions for us overseas Americans who are not residents of Canada and who are (or wish to be) dual-citizens (or who have family members who already are dual citizens) of another nation-state.