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.
This essay offers an example of how the doctrine of dominant and effective nationality provides the legal opportunity for the UK to offer assistance to young woman trapped in south Asia–a phenomenon apparently too common, in which a young woman from UK travels with her family for a routine visit to Pakistan or Bangladesh, and unbeknownst to her, the true purpose of the trip is to trap her in a marriage not of her choice.
This article is also interesting for our purposes in the unlikely scenario that the United States were to detain dual citizen of United States and Canada or another nation for tax evasion or criminal FBAR. In this case, the doctrine of dominant nationality would perhaps make it possible for the other country to offer diplomatic protections, aid, or to make petitions on behalf of its citizen.
The common doctrine, which is older than dominant nationality, is called “the rule of state non-responsibility”; it is usually assumed to be in force. Symington writes (emphasis mine):
It is based on the idea that the ordering of persons and assets is an aspect of the domestic jurisdiction of a state and integral to sovereignty and independence. Thus a second state interferes in the first state’s domestic affairs if it offers diplomatic protection to a citizen of that state. Therefore, while a dual national is in one of their states of nationality, that nationality operates as if it was their only nationality. Furthermore, it is reasoned that if both nationalities are valid, to permit one state to represent the individual against the other state would give greater effect to the nationality of the claimant state, thus denying sovereign equality.
I call attention to the line in italics. It is clear then that when the United States tries to tax dual nationals who are resident in their second state of nationality (not the US), it is a clear violation of the rule of state non-responsibility–which is the older of the two doctrines. I.e., the rule, as interpreted by Symington, means that the dual national be treated as though their only nationality is the country where they are. Thus, diplomatically, dual US/Canadian citizen, according to this rule, is only a Canadian when in Canada, and only an American when in America. It is also, for this reason, called, “the rule of sovereign equality”.
As I argued elsewhere, the United States is also in violation of the doctrine of dominant nationality when trying to tax dual nationals resident in their other country (i.e., not the United States). Thus, the United States does not abide by any known international doctrine which determines the treatment of dual nationals.
The problem of hanging any hope of relief from US taxes based on dominant nationality, is that matters not a hoot to the IRS. If you are a US citizen, as defined by US law, you are subject to US taxation on your world-wide income no matter where you live, irregardless of the fact that you have never held a US passport, don’t speak one word of English or have never in your whole life stepped even one foot into US territory. Even if you live in a foreign country with very tight currency exchange controls which prohibit the exchange of its currency into US dollars to be removed from that country and paid to the IRS in fulfillment of your US tax obligation, the IRS could care less. You are obligated to pay your US tax to the IRS. If you have to violate the laws of your home country to do it, the IRS considers this to be your problem, not theirs. To the IRS, this is not an acceptable excuse for not paying your US tax obligation in US dollars.
I went through this with the head of the IRS office in Chicago in 1976 when the Tax Reform of 1976 was enacted. After “telling me off” she ordered me to get out of her office and quit wasting her time. She said I must be a very stupid person to live in a country (it was Brazil) with foreign exchange currency controls like that.
I am sorry to say her views prevail to this day in the US Congress and at the top levels in the IRS. So if you are a US citizen living abroad with a US tax obligation either you pay through the nose or stay outside of the US where the IRS cannot get its hands on you. There may be other countries, but the only country that I have heard of which will assist the IRS in collecting taxes from a US citizen is France. This I was told by a US tax accountant who is a resident of France and had witnessed it with her own eyes.
@Roger, Thank you for your very thoughtful, reply.
I am not holding out hope at all that the United States will change its mind. If I did, I might have listened to James Fallows advice to change the name of this website to something other than a Canadian/British hero who gave his life fighting a United States invasion into Canada.
I am hoping, instead, to write about what is right and fair–not about what is and what cannot be changed.
Is it right to force a young woman into a marriage with a man in a country that her parents feel great attachment to but she does not? I think that is a form of slavery.
Is it right to force a person who pays high taxes in Canada to pay “his fair share” in the United States too, when that person receives next to no benefit from that country? I think that is a form of slavery.
The doctrines of dual citizenship are there to resolve disputes between countries on the basis of international law. My hope is that my country, Canada, will fight against this overreach at the STATE vs. STATE so that the rest of us don’t have to fight, individual, against the United States. If I can succeed in showing how wrong the United States is to policy makers in Canada, that is half the battle.
I imagine that if China and India had implemented FATCA the US would have told them to get lost. If somewhere like Portugal or Singapore had enacted FATCA I imagine that everyone would have told them to get lost. Its all about relative size and how much of a bully you can be when it comes to trampling on international laws and norms like the rule of dominant nationality. If I were arrested in Italy the US would not provide any diplomatic assistance since, rightly, my Italian citizenship supersedes that of the US and the Italian government only recognises me as an Italian and nothing else. The US also recognises the right of Italy to claim me exlusively as their citizen whilst in Italian borders. When it comes to money though apparently I am first and foremost a US citizen even when based in a country where my other dominant nationality (Belgium and EU) should take precedence and make my US status null and void. Thank you pointing out this hypocrisy.
Yes, I think many of us here are coming to the same conclusion as Petros: we have no hope of convincing the US to act fairly, justly, or constitutionally, so instead we have to somehow figure out how to get authorities in our countries of residence/other nationality to protect us.
What’s really infuriating is how often the US tries to force other countries to give up the Master Nationality Rule. Roger already mentioned the “Saving Clauses” in US tax treaties in another thread. Another lesser-known case of this was the US-China treaty about the status of the consulate in Hong Kong after 1997.
Basically in the panic after Tiananmen Square in 1989, a lot of Hong Kong people had immigrated to the US, got US passports as an “insurance policy” (since the United Kingdom refused to give real British citizenship to Hong Kongers like what they had give to Falklanders or Gibraltarians), and then come back to Hong Kong. Washington tried to pressure Beijing to let dual Hong Kong-Chinese & US citizens be considered as US nationals while in Hong Kong, but to retain the other privileges of Chinese citizenship if they went to other parts of China (such as freedom to work, study, and open businesses in the mainland). China was of course strongly opposed to this. In the end they came to a compromise: dual nationals could enter Hong Kong and enjoy US “protection” for the first 90 days, but after that they would have to affirmatively renounce their Chinese citizenship if they wanted to continue to have US “protection” (a procedure the Hong Kong immigration department calls “Declaration of Change of Nationality”.)
At the time, the international media portrayed the US as heroes sticking up for Hong Kongers against big bad Beijing, and a few thousand people filed their DCNs. Of course 15 years later I have a much more cynical view of what the US was trying to accomplish: they wanted a treaty they could point to which they could claim recognised their “right” to tax dual nationals while they live in the state of their other nationality.
@Dom you are exactly right. The consulates make it very clear that they can do nothing for you if you break the law in another country. I also agree with the relative size and bullying. That’s why I also think it is pure unadulterated nonsense and I can’t wait to schedule my renunciation appointment.
The US is not too keen on duals, they never have been. I wouldn’t be surprised if this is an attempt to “shake off” flaky Americans, or Americans who have more loyalty to where they live. If we are denied basic services (bank accounts) where we live, then how in the heck can we live overseas? I think this puts people in a place where they MUST make the decision (a) renounce and stay where you are (b) go to America.
(b) is out of the question for me. I can’t take my wife away from her family to a place where she knows nobody where the culture is very different. Even then, my wife has a friend who married an American when he was working in Brazil. The business changed owners and he was let go, so he returned to America with his wife. They’ve been in America for 2 years and already want to come back to Brazil.
Lastly, I know there are probably hundreds of thousands of Americans in all different countries who haven’t taken any action about this nonsense. Who knows what’s going to happen in 2013 when the FACTA comes online. I hope I can have my CLN by then!
@Eric, that was many years ago, but I find it kind of remarkable how *everything always turns out in the US’s favour*.