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.
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 , 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.