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Tuesday, January 8, 2013

Citizenship - Who Decides?

A few months ago I was walking down the street to the train station when a French woman came up to me and struck up a conversation.  At that time it was clear that I was going through chemo and, as it turned out, so was she.  Nice lady and we exchanged phone numbers. In the course of our conversation she told me something I found rather fascinating:  Through she spoke no English (or Spanish) she claimed to have been born in the United States in one of the southern states (Texas, I think).  However, her family left the U.S. when she was very young and she had never been back, not even once,  in her entire life.

Owing to the oddness of American citizenship law - that very radical form of jus soli (citizenship via place of birth) that the U.S. practices - that woman is legally just as much an American citizen as I am.  If she chose to do so, she could ask for and receive a U.S. passport, live and work in the U.S., and vote in U.S. elections.  A simple matter really since all she would need to prove this would be a copy of her birth certificate - something that can be ordered on-line from many jurisdictions in the U.S.for a mere pittance.

She was not unaware of this fact.  Her words were, "Je peux" (I could) be an American citizen if I wanted to be one, though she really didn't see any interest in pursuing it.  For her this was a possibility, a potential future, an avenue that she had the right to walk down if she chose to do so.  She was both right and wrong.  Right in knowing her rights.  Wrong in thinking that it was entirely up to her.  By American law she is an American citizen just as she is a French one.  One by just soli (right of soil) and the other by jus sanguinis (right of blood).  This is a fact, not a choice.

But in all her years the U.S. never reached out to embrace her and if you stopped any American on the street in homeland America and asked him or her whether this charming Frenchwoman was a full member of the political community called The United States of America I suspect the answer would be a resounding, "of course not." And she would agree with him.  For both sides something more would be needed - an act, for example, that would demonstrate a desire, a willingness, to be a part of that community.  A desire that clearly she did not have.

So here we have a rather interesting situation:  An American in the homeland would say that she is not an American.  She herself would concur since she sees herself only as someone with the potential to become one, not a full-fledged citizen.  But from the point of view of the U.S. government (and one has to wonder if the French government would agree) she is both American and French.  This means that both have rights over her person.  End of story.  But in all her years, no effort was ever made by the U.S. government to exert sovereignty over her.  In fact, I doubt they know she exists though clearly a time is coming soon when her French bank will know and will, if I understand the law correctly, inform the French government of this fact.  I have to wonder what all this revealing of America's "Accidentals" living in the 190+ countries of the world will mean.  Surely for some it will be a pleasant surprise.  For others not so much.

But it did raise the question in my mind of what would happen if a sufficient number of people outside the U.S. upon being informed of their status as U.S. citizens simply stood up and said, "This is rubbish" and rejected any attempt by the U.S. government to exert sovereignty over their persons?

Does the individual have the right of refusal when it comes to citizenship?  A person can renounce but in renouncing (and going to interviews, filling out the paperwork and paying the applicable exit taxes) is that person not admitting that this other state has sovereignty over him or her?   In the end, in this conflict of dueling citizenships who would decide and is there any recourse for those who don't wish to be considered the citizen of a foreign state to which they have the most tenuous of connections? Is there a higher law or custom that would apply?  Are there any limits to the ability of a state to ascribe nationality/citizenship to an individual?

All good questions.  Just for fun and because I'm feeling perky and curious I tried to answer them.  Here is what I came up with.  As always feel free to correct me if you find errors or disagree.

Does the individual have the right of refusal when it comes to citizenship?

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:

Article 1.
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.

Article 2.
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.

Article 3.
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.


Eric said...

South Korea nowadays actually has fairly reasonable rules about conscription: if you were born abroad to genuine emigrants, or you left the country at a young age, you can file for an exemption. It's an annoying bureaucratic hurdle, but it only has to be done once, and then you can go back for visits or short-term study or anything else short of actually working there. And most surprisingly: the government manages to maintain these reasonable rules in the face of massive public anger at people who are gaming the system to avoid conscription (the prototypical example being rapper Yoo Seung-jun).

A more civilised principle that at least a few countries follow is that nationality requires the consent of the individual, especially where the child's situation has an international aspect. Chile, for example, gives locally-born children of "extranjeros transeuntes" the option but not the obligation to apply for citizenship. Irish nationality law has the concept of people who are "entitled to be" Irish citizens but do not actually become so except by doing "any act that only an Irish citizen is entitled to do", like applying for an Irish passport or running in an Irish election. And many states say that children of citizens born abroad are only citizens themselves if they actively declare their desire for citizenship to the consulate.

Maybe this will one day be an international norm, but in the meantime states which would like to squeeze military service or money out of their diaspora will likely continue to attribute nationality without choice, as an act of aggression.

Tim said...

I believe there is another Hague Convention regard military service in the case of dual nationality that most developed nations(the US, France, Canada, UK, Germany etc) are parties to but which very few developing are.

I tend to get very angry and upset when studying this area of law. The views of the scholars in it in my opinion are very poor. Most of the criticism for example of dual nationality in the Canadian and American context is really thinly disguised anti immigrant sentiment.

Jordan said...

Reading this post reminds me of a few years back when the Western Hemisphere Travel Initiative was created by the United States requiring passports to cross the border. Many border babies, Canadians who were born in the United States because the nearest hospital was in a border states like Michigan, Maine, or North Dakota were in for a rude awakening. In some cases mom and dad were also border babies (there are whole towns in Canada that are physically on the border), and some found that they were not Canadian Citizens, even though they had lived in Canada, and even voted for decades.

I work at H&R Block in Canada and I suppose I am a bit like bankers will soon be. As soon as someone shows me a US passport, or a document that shows their birthplace in the United States I have to stop preparing their tax return and send it over to the US Tax Specialists, who charge an extra 2-3 hundred dollars, even when these people owe nothing in taxes. I have occasionally had people swear they will renounce before they will file, and I tell them they can't renounce until after they have filled.

In Canada the conservative government recently changed our citizenship law so that the second generation born abroad are not Canadian Citizens, but this has problems too. Many Canadians were born elsewhere but grew up in Canada. There are examples of people who were born abroad to Canadian parents, came to live in Canada when they were a year old and happen to be living in Belgium when they have a child. In some cases these people's children are now born stateless. These are the cases where some show of attachment should come into play. Its a nightmare for these parents. While the new law allows for easy naturalization of these babies, they first have to physically arrive in Canada which is difficult when the child is stateless and qualified for no national passport. Then these parents have to wait for their children's files to be procsses. Currently there is an enormous backlog and it can take anywhere from 6 months to 2 years to process a citizenship request.

In the example of the french women born in the states, should there be some mechanism to remove citizenship from those who dont use it? In the Netherlands (and I think) Denmark if you live abroad for more than 20 years you could potentially loose your citizenship. In Canada we have the problem of "Lost Canadians", previous versions of the Act viewed women and minor children as the property of their husband/father, and when the father naturalized in another country the children lost their citizenship. This was the case even when the father had effectively abandoned the family and moved to the United States.

Myself I am actually okay with citizenship passing to grandchildren. Ireland does this, as does Italy. I am hoping that if the referendum in Scotland is successful Alex Salmond will adopt an Irish style citizenship law for Scotland, which would allow me to claim my Scottishness (via my Glasgownian Grandmother).

Tim said...


I am wondering what legal authority H&R Block Canada has to what they are doing under Canadian law. I suspect very little. I can't tell you how angry I got about what H&R Block Canada is doing. I think the CEO of H&R Block Canada should be locked up at the Kingston Ontario Penetentary for violations of the Canadian Foreign Extraterritorial Measures Act.

greg said...

Your article is indeed chilling. As an old guy now reflecting on the meaning of life and our true responsibilities for existing, your message is a very sad one for me. It seems that all of us have been deceived; we are all slaves to the State. We are owned the same as any other livestock. This is starting to be more understood by me as time goes on. I really want to be free, but maybe that will only happen when I pass on.

Victoria FERAUGE said...

@Eric, Thanks for the info about South Korea. And for nothing that countries fellow a much better principle which involves consent before one can be said to be a citizen/national. What is ironic here is that there are long-term residents in the US (the DREAMers) who are having to struggle to stay in the US and to have the right to ask for citizenship. Boggles the mind.

@Tim, Have to agree with you. Much of the literature is about resolving the conflicts associated with the "evils" of dual citizenship. I'm going to check out that Hague Convention. Military service is another area where citizenship comes into play in an important way.

@Jordan - What I understand is that they only way to get out of US citizenship is to renounce. It's basically an automatic "opt in" system where the default is citizenship. To get out of it you must "opt out" which is a cumbersome and unpleasant process. Costs money too. Most people never bother.

Right now I am reading Patrick Weil's new book about "denaturalization" - the stripping of citizenship from people in the US in the 20th centuries. As you point out in a previous era Canada and many other countries had very different rules about the transmission of citizenship and keeping it.

@greg, Before people were citizens, they were subjects. I see continuity here with the latter still influencing how we define membership in a political community. We are indeed "owned" to an extent that most of us never understand until we come straight up against the power of a state.

Jordan said...

@Tim Hi Tim, I can understand how frustrating getting your taxes done as an American must be. The justification for forcing Americans to file a US return is the fact that we as Tax Prepares are required to file "a complete and accurate return". In this case completeness requires that we file a US return for Americans or Green card holders in Canada.

As much as I would love to see the Canadian Government tell the Americans where they can shove their extraterritorial legislation, the current Canadian Government is more than happy to allow the Americans to tax Canadians, even as they take steps to stop the Eritrean embassy from collecting taxes from its citizens.

Think of it from another viewpoint. How would you feel if I didn't make you an American client file a US return and a few years later the Americans catch up to him and require him to pay back penalties? Filling now saves a lot of hassle and headache later, and (plus for the company) our work is guaranteed to be accurate, or we pay any penalty incurred.

I am not familiar with the legislation you are citing, but I would LOVE to see somebody sue to make this sillyness stop :)

Anonymous said...

As a former citizenship policy maker, your post and the thoughtful comments underline the importance of understanding one's particular citizenship issues and the implications it may or may not have for where your children are born.

Many governments struggle with citizenship policy, in particular the balance between citizenship being meaningful (i.e., not just legal) and facilitating acquiring citizenship (particularly immigrant-based countries like US, Canada, Australia, NZ).

Given the 'messiness' of peoples lives, and our increasing global movements, finding that balance remains challenging to say the least.

Good discussion.

Victoria FERAUGE said...

@lymphomajourney, that must have been a fascinating job. I have often wondered who exactly is responsible in government for considering such things. What is fascinating is how all these laws intersect to create some very complex situations. Right now I'm reading a Master's thesis which examines citizenship theory to see if it could be helpful for the security community in the US. The author describes scenarios I've never thought of. It's called DENATIONALIZED CITIZENSHIP THEORY:
HOMELAND SECURITY? by Cherie A. Lombardi. I will do a post ion it and I would love to have your and other Flophouse readers' take on it as well.