Commenting on the last post “Although citizenship matters, not all citizenships are the same. Americans are just different …“, Tim Smyth writes:
I am usually not one for optimism but I think Sophie In’t Veld latest response back to the Commissioner which literally came after one day from the Commission’s original response is very much on target and has dramatically reduced the Commission’s room for maneuver. To give some background I am a huge fan of Sophie’s and acknowledge she has been involved in this issues for a better part of 10 years(almost as long as me personally) however, she is not directly related to these issues on a personal level like we are and it has taken some time up until recently for her and her staff to understand this stuff the way “we” understand it. Thus I feel her latest response is an important sign that there is at least someone in elective office somewhere that truly understands these issues the way “we” understand it. (To give some background much of Sophie’s early work on these issues was passed on privacy law and data protection which is her bailiwick more than taxation or nationality which is not. You can see however she has become much more educated on taxation and nationality in recent years).
In terms of what comes next I think there are a couple possibilities. At this point the Commission has some real decisions to make with real political consequences.
1. The Commission can simply decide to respond back to Sophie and blow her off. This might be the “Safest” option but they have not taken this option to date in previous rounds of questioning and institutionally they might feel that pure insubordination is non viable.
2. Say the US can impose CBT but no other “third” country can. Again I am not sure how successfully this can be spun without looking like complete stooges of the US. Also there is not any legal justification I can think as to why the US can impose CBT but no “other” state can under international.
3. Say everyone can impose CBT and define “their” citizens however they wish under international law. This is the logical followup to Commissioner Gentiloni previous response and one that has the most sound basis under international law if you believe the US is entitled to impose CBT under IL however, it would obviously be a practical, political, and logistical nightmare. I will discuss later what are some of these implications
The purpose of this post is to explore various aspects of the concept of citizenship seen through the lens of international law. This is an interesting topic in it’s own right. (It is particularly important in the context of Cook v. Tait.) A basic assumption of the Harter and Gentiloni letters is that the it is the sovereign right of the United States to define who its citizens are. The problem becomes when the United States defines European citizens as US citizens, when those US citizens are residing as European citizens in Europe.
The following questions come to mind:
1. Under what circumstances can the United States expand it’s definition of a U.S. citizen in an extra-territorial manner?
2. Under what circumstances can the United States apply its laws to European citizens living in Europe?
3. How does the assumption that countries are fee to define its citizens operate in a world of dual citizenship?
4. Under what circumstances does the sovereign right of the United States to define who its citizens are encroach on the right of European countries to define its citizenry?
Let’s start with the basic rule that every country is free to define who its citizens are.
Citizenship, international law and how the evolution of the law of citizenship evolution has been shaped by the great wars of the 20th Century
To the extent that the law of citizenship, is a function of international law, it’s clear that international law has evolved. The principle that each country is free to define who its citizens are is long standing. It seems to have been given formal recognition at the end of World War I.
World War I: The League of Nations – Clarifying the rights of countries over citizens
About the League of Nations …
Covenant of the League of Nations of 1919 http://t.co/wbV6XVHxo1 – interesting commentary on priorities at end World War I
— U.S. Citizen Abroad (@USCitizenAbroad) June 12, 2015
The League of Nations was created at the end of World War I. The purpose was for nations to work together to avoid war. The League of Nations was supported by U.S. President Wilson, but was not agreed to by the U.S. Senate. Hence, the United States (although a participant in its creation) was NOT a member of the League of Nations. Canada’s role was described as follows:
Canada was a founding member of the League of Nations — an organization of countries established in 1919 at the end of the First World War. The League failed in its main purpose of keeping peace through the arbitration of international disputes. It was replaced by the United Nations at the end of the Second World War.
Treaty of Versailles
The 1919 Paris Peace Conference, at the end of the First World War, produced the Treaty of Versailles. The main authors of the Treaty — Britain (and its Dominions, including Canada), France and the United States — wanted to establish an international organization of member states founded on the principles of collective security, and the preservation of peace. The Treaty included a provision, or “Covenant,” for the creation of a League of Nations.
American President Woodrow Wilson had played an important part in founding the League, but the United States Senate refused to ratify the Covenant of the League — partly because of American partisan politics. As a result, the U.S. never joined the League, which deprived it of significant power and authority.
However, 63 other states were members. The League established headquarters in Geneva, Switzerland. It included a council, assembly and secretariat. The council met quarterly and comprised the major powers as permanent members, plus non-permanent members elected by the assembly. The assembly consisted of representatives of all member states, and met annually. Under a secretary-general, the secretariat provided the permanent staff.
Given that the League of Nations evolved from the Treaty of Versailles, it’s clear that the League of Nations was NOT concerned as much with the rights of individuals as with the interaction among countries.
The League of Nations and Nationality Law
In the late 1920s, the League of Nations began a project which resulted in a informal treaty governing “nationality law”. The primary focus and purpose of the treaty was to clarify the rights that nations had over citizens and in what way(s) one country would recognize/respect the rights of nations over their citizens.
To put it another way:
The 1930 Hague Treaty was an instrument that did NOT clarify the rights of citizenship, but rather clarified the rights of nations in relation to its citizens. Clearly, in 1930, the “citizens of the nation” were considered to be the “property of the nation” – a view that has been diminished today. Cook v. Tait was decided in an era where, the issues were less about the “rights of the citizen” and more about the “rights of the country in relation to its citizens”.
The following discussion paper, which originated at Harvard University, and was submitted to the League of Nations is fascinating. It canvasses most of what was known about “citizenship law” at the time. It’s a must read for those interested in the evolution of the law of citizenship.
The key point to remember is that the “Hague Convention” was concerned with the rights of nations over their citizens and NOT with the rights of citizen in relation to nations.
Citizenship: Who decides? – What is the League of Nations nationality law?
In January of 2013, Victoria Ferauge wrote an excellent post called “Citizenship: Who Decides“. It is (as are her posts) an excellent discussion of an important issue. As the title implies, she raises the question of:
To what extent can a country simply claim us to be citizens?
This is a question of current concern. The U.S. government, by unleashing “FATCA Hunt” on an unsuspecting world, has caused individuals to fear that they may be considered to be U.S. citizens.
Victoria’s post is based largely on an analysis of the 1930 “Hague Convention of Certain Questions Related to the Conflict of Nationality Law“. (The “law of citizenship” has evolved significantly since 1930.)
Victoria Ferauge asks the question:
Does the individual have the right of refusal when it comes to citizenship?
Victoria referring to the Hague Convention writes:
The citizenship laws of nation-states are for the most part a purely domestic matter. The Hague Convention on Certain Questions Relating to the Conflict of Nationality Law says very clearly:
It is for each State to determine under its own law who are its nationals. This law shall be recognised by other States in so far as it is consistent with international conventions, international custom, and the principles of law generally recognised with regard to nationality.
Any question as to whether a person possesses the nationality of a particular State shall be determined in accordance with the law of the State.
Subject to the provisions of the present Convention, person having two or more nationalities may be regarded as its national by each of the States whose nationality he possesses.
So the short answer to the question, “Does the individual have the right of refusal when it comes to citizenship?” is a clear “no.” If the French decide you are French under the French citizenship laws then that’s the way it is. A person can, of course, renounce but citizenship/nationality is clearly a status that the individual has no control over (unless of course he or she obtains it through naturalization).
Are there any limits to the ability of a state to ascribe nationality/citizenship to an individual?*
Now this is where it gets interesting. As a practical matter it is clear that there are limits. The United States of America cannot simply decide to turn the entire French nation into American citizens with the stroke of a pen. I’m not sure what principle this would defy but it seems that it might fall under one of the exceptions in Article 1 above that calls for consistency with international conventions and customs.
One very interesting article I found on-line talks about (and criticizes) something called the “genuine link” doctrine that was used (and perhaps still is) to limit the right of a state to ascribe nationality/citizenship to an individual. It says that there must be some sort of legitimate attachment in existence before a state can claim someone as “theirs.” And this link is? “A legal bond having as its basis a social fact of attachment, a genuine connection of existence, interests and sentiments, together with the existence of reciprocal rights and duties.” In my mind this raised more questions than it answered. Going back to the Frenchwoman I talked about above, the legal bond exists but there is no real attachment behind it. Or is there? Is the mere fact that she was born on U.S. soil sufficient in the eyes of the United States to create a permanent and abiding attachment? Given that she was aware of her rights, is it unreasonable to say that she should also be aware of her duties even if the connection is inactive? To put it another way, should she be held to the obligations of that yet to be actualized citizenship and pay, for example, U.S. taxes? Or, for another example, could she called upon to defend the U.S. and her Constitution if these things were under attack? Could she be considered a traitor if she didn’t?
What I gathered as I read is that international law around citizenship is practically non-existent. Nothing is explicit. The only thing that states seem to be able to agree upon is that jus soli and jus sanguinis are the two customary methods by which citizenship is transmitted and that’s about it. If you have information to the contrary I would be most interested in knowing it.
Can states enforce their sovereignty over its nationals wherever they may be?
Final question and the answer is ‘yes” and they do it all the time if they are sufficiently motivated and an opportunity presents itself. States may not be able to immediately force compliance in some cases if the individual is living in another country but they can and do (if they are so motivated) go after that person or detain him at the border if he or she tries to enter the other country to visit family or just to visit.
The excellent Dual Nationality FAQ has these cautions to offer naturalized and “Accidental” citizens who enter another country of nationality. The example here uses the example of U.S. birthright or naturalized citizens but what he says is equally true of other countries as well.
“So, even after becoming a naturalized US citizen, you should still check carefully with diplomatic officials both of the US and of the “old country” before going back for a visit. If you get arrested there for draft evasion, for voicing opinions about their government while you were in the US which are considered taboo in the old country, or for whatever other reason — or if you find yourself forced into their armed forces — you may very well find that the US can’t help you too much, because the other country will insist you’re one of their own citizens and that the matter is therefore none of the US’s $@&%# business.This same word of caution may also apply to people who were born in the US, but whose parents (or even grandparents) came from somewhere else. Many countries have laws conferring citizenship on the basis of the citizenship of one’s parents or grandparents (even the US has a limited law of this kind). I personally knew someone, some years ago, who got into trouble in South Korea because his father was born in Korea. Even though my friend was born in the US and had never claimed or believed himself to be a Korean citizen, he had to cut short his visit to his ancestral homeland in order to avoid being drafted into the South Korean army.”
So there you have it. Rather chilling isn’t it? I will stop there and get ready to take my train into Paris.As always your comments would be most welcome.
My quick and initial response(and apologies for my typos in previous quickly written response) is that:
1. The US never signed or ratified the Hague Convention
2. A significant number of EU member states have signed but never ratified.
3. Finland an EU member state has never signed nor ratified.
4. Canada denounced the Treaty under Jean Chretien for other unrelated reasons.
The bigger story that this post gets to is that during the League of Nations years there was a much broader and largely unsuccessful push to determine nationality issues and in particular to ban dual nationality. Efforts to ban dual nationality despite how disliked it was by most states in the period failed for the reason in order for it to work there would have to be limits placed in international law and international treaty as to how states could define their “own” nationals. It was determined by most states that international limits on how nationality could be defined to avoid dual nationality were more “offensive” to state sovereignty than dual nationality itself. Thus coming out of the 1920s and 1930s dual nationality became defacto legitimized going to future decades.
The best example of an international agreement that successfully worked in part to limit dual nationality were the US centric Bancroft treaties. One problem with the Bancroft treaties is their bilateral nature did little to stop the US from eventually denouncing all of them.
The other thing I would emphasize is the degree to which international practice regarding nationality is heavily dependent on what I would call “voluntary” self restraint by states not formal international law. For example in the late 1800s there was a common practice by several South American states like Argentina and Brazil of “automatically” granting local nationality to foreigners living in their countries over a certain time period. The reason for this is that Argentina and Brazil wanted to limit the rights of foreigners living in their states to consular protection by their home nations. After extreme protest by the US, UK, and other European nations Argentina and Brazil backed down but not by means of formal international treaty. Essentially Argentina et. all backed down “voluntarily” by changing their domestic nationality law not to assert this claim of nationality with no binding treaty commitment not to do so in the future.
I will also point to those who have been fighting FATCA for the last decade it took a good 20 to 25 years for the US and others to force Argentina and Brazil to “back down” on this assertion of imposed nationality, with political interest in the subject varying across different executive administrations in the US and elsewhere. Sound familiar??