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Thursday, September 24, 2015

Are There Limits to the Right to Change One's Nationality?

Yes.

Just as there are no universally accepted standards for the attribution of nationality, there are no universal standards governing loss of nationality initiated by a citizen or subject.  The European Convention on Nationality, for example, does not have the same standards as US citizenship law.   States are jealous guardians of their sovereignty when it comes to deciding the conditions, rules, and procedures surrounding a citizen who wishes to change his or state allegiance.  States reserve the right to deny such a request under certain circumstances.

These circumstances are not consistent from one state to another.  Some states restrict the right to change one's nationality if an individual is trying to avoid military service or tax obligations. Kay Hailbronner writes that Austria will not release a citizen if  a criminal procedure or execution of a criminal sentence is pending.  German citizens, she says, who are "officials, judges, military personnel and other persons employed in a professional or official capacity" can also be denied the right to renounce.  Canada has six requirements, one of which concerns national security;  the individual cannot be "a threat to Canada’s security or part of a pattern of criminal activity."  US law permits a US citizen to renounce even if he or she becomes stateless as a result - something most states do not allow.   Luxembourg, the Netherlands and Portugal, according to Gerard-René de Groot and Maarten Peter Vink, do not even require residence outside the country in order to renounce as long as the renunciant has another citizenship.

What this cursory review reveals is while that most liberal democracies agree in principle with the right to expatriate, do not wish to be seen as keeping their citizens captive,  and have procedures and processes in place to allow their citizens/subjects to exercise that right, they do not see it as an absolute right under international law.  Serena Forlati sums up the state perspective well when she writes, "the role of the individual's choices needs to be balanced against the possibly competing interests of the state whose nationality is to be renounced..."

Finding that balance is not easy.  One might even say that it's a work in progress.  There are other more pressing citizenship topics on the international agenda;  statelessness, for example, or involuntary loss of nationality.

But there is one convention, The European Convention on Nationality (ECN),  that is a bit more explicit than the UNDHR about both conditions for voluntary loss of nationality and the limits on state power over renunciants.

The European Convention on Nationality Article 8 has two explicit limitations on the right to renounce one's nationality:

"Each State Party shall permit the renunciation of its nationality provided the persons concerned do not thereby become stateless.
However, a State Party may provide in its internal law that renunciation may be effected only by nationals who are habitually resident abroad."

In the Explanatory Report  of the ECN they directly address the question of renunciation and outstanding citizenship obligations and say:   "It is not acceptable under Article 8 to deny the renunciation of nationality merely because persons habitually resident in another State still have military obligations in the country of origin or because civil or penal proceedings may be pending against a person in that country of origin. Civil or penal proceedings are independent of nationality and can proceed normally even if the person renounces his or her nationality of origin."

And finally in Chapter IV the ECN places boundaries around European states' nationality procedures and processes:

"Each State Party shall ensure that:

1.   applications relating to the acquisition, retention, loss, recovery or certification of its nationality be processed within a reasonable time;

2.   decisions relating to the acquisition, retention, loss, recovery or certification of its nationality contain reasons in writing;

3. decisions relating to the acquisition, retention, loss, recovery or certification of its nationality be open to an administrative or judicial review in conformity with its internal law;

4. the fees for the acquisition, retention, loss, recovery or certification of its nationality be reasonable;

5. the fees for an administrative or judicial review be not an obstacle for applicants."

A reasonable balancing of states' versus citizens' rights?  I thought so, but I note that some European countries have not signed it and quite a few that did, did so with reservations.   

A convention is one thing, how it is implemented in law  and interpreted and applied by the courts is another.  In the next post let's look at one case I saw cited in numerous places: Riener v. Bulgaria  (European Court of Human Rights).  This is a case where a dual citizen, was 1.  denied the right to leave a country of citizenship and 2. refused renunciation. And yes, citizenship obligations (taxes) were an issue in this case.

9 comments:

DL NELSON said...

I like the part about the fees.

Tim said...

I am still trying to dig up that State Department opinion that there is no right of expatriation under customary international law. It is buried deep in my archives and is in a very difficult to view format.

Victoria FERAUGE said...

@DL Nelson- I agree and the rule about processing applications in a reasonable time frame and having all decisions be in writing and so on. Sounds like they they either knew of situations where that had happened or they saw a potential for states to take their sweet time about processing them. Either way, good move on their part.

@Tim, It's OK. I did the research and will be adding the books to my reading lists. Several sources said that CIL was unclear, there probably isn't an absolute right to renounce under it and so on.

Tim said...

@Victoria

On a somewhat unrelated not I am hearing there is going to be a big Hillary Clinton fundraiser in Paris and as such I wanted to make a suggest of pickets and protests. I am almost certain the top dogs of DA France will be out there in force too. It is being held at the private residence of someone named James Cook.

http://www.politico.com/story/2015/09/kgb-huma-and-anna-wintour-in-paris-213935

I am going to try to do some more research to find out where exactly this Mr. Cook lives in Paris.

Tim said...

I referred to some of your long ago comments on IBS this evening. It looks like your prediction that non US tax authorities would withhold information on certain "influential" individuals from the IRS looks more and more true.

http://isaacbrocksociety.ca/2015/09/30/plaintiffs-giny-and-gwen-are-denied-injunction-pending-summary-trial-appeal/comment-page-1/#comment-6635997

JM said...

All these politicians we elected are really not that bright or good people. They can do whatever they want to trap us in or kick us out of the countries. All they care is their legacy, money and power. Many of them are trained lawyers who can make conplicated laws out of thin air to make life difficult for everyone.

Jeremy Whipple said...
This comment has been removed by the author.
Victoria FERAUGE said...

@Tim, Yes, I stand by my words and am not one bit surprised that there is evidence for it. Of course they will be parsing the lists received from the banks and names WILL be withheld if the local governments want to keep certain people out of trouble. Politicians, high level bureaucrats or friends of seem most likely. Those IGA's were only partly about sovereignty - the other part was control over that information and what/who exactly would be reported.

And I imagine that the list will be parsed in the US as well with some names being off limits. People the US does not wish to offend or those who are working in some unofficial capacity for the US government. I saw a report somewhere that the CIA and other 3-letter agencies have bank accounts abroad and surely the US must set those apart in some way.

Another things that occured to me just the other day and saw a huge potential for fraud. Those CLN's. Have a look at them - they are pathetically easy to forge. And they are to be presented to low level bank personnel who are supposed to determine if they are legitimate or not? Given that this document is now worth over 2,000 USD, it seems likely to me that a lively industry is going to spring up offering copies of CLNs at a mucn more reasonable price. And how would the US know? If the bank accepts the CLN, the accounts won't be reported....

Inaka Nezumi said...

That sounds like a good excuse to raise the renunciation fee yet again -- to pay for a new, security-enhanced CLN and associated tracking system. And of course, everyone who has already received a CLN will need to pay for one of the new ones, at least if they ever want to open another bank account again...