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1.11.2009 | Von:
Daniel Naujoks

Classic objections and possible counter-arguments

Classic arguments against recognising dual citizenship may be divided into three groups. The first group is directed at the question of whether dual citizenship is permissible under (international) law. Another group of arguments relates to technical difficulties and the third group includes socio-political objections to the concept of dual citizenship per se.
Berlin: "Bin ich eine Gefahr für Deutschland?" steht auf dem Plakat, das am Kinderwagen eines kleinen türkischen Buben befestigt ist, der mit seinen in Deutschland lebenden Eltern am 23.01.1999 vor der Berliner Gedächtniskirche an einer Demonstration für die doppelte Staatsbürgerschaft teinahm.Protesters in Berlin demand the introduction of dual citizenship. The sign asks: "Am I a danger to Germany?" (© picture-alliance / ZB)
Some of the objections deriving from the above groups are explained in more detail below.

International law and dual citizenship

The most important international treaties on dual nationality are the 1963 "Convention on the Reduction of Cases of Multiple Nationality and Military Obligations in Cases of Multiple Nationality" and the 1997 "European Convention on Nationality". [1]

According to its preamble, the 1963 convention finds its basis in the concern that "cases of multiple nationality are liable to cause difficulties and that joint action to reduce as far as possible the number of cases of multiple nationality, as between member States, corresponds to the aims of the Council of Europe". Since, however, only a few states became members of the convention, it never had any particular practical significance. In 1977 and 1993, furthermore, two protocols were added to the convention, which no longer aimed to abolish dual citizenship. In any case, in 2002 Germany was the first country to make use of the option to denounce the treaty and since that time has no longer been a member of the convention.

Instead, since 2005 Germany has been a signatory to the above-mentioned "European Convention on Nationality" which expressly recognises dual nationality. It even determines that renunciation or loss of the former nationality should not be a condition of naturalisation if such renunciation is not acceptable in the other country (Art. 14-16).

For these reasons there is now consensus that recognition of dual citizenship is not a problem under international law. [2] Another indication of this is the fact that states increasingly opt to accept it (state practice). [3]

Technical objections to dual citizenship

The technical concerns expressed against multiple citizenship are based first and foremost on possible conflicts that may arise from military and tax obligations, choice of law, and confusion with regard to rights to diplomatic protection.

(a) Dual military obligations
A point of criticism previously levelled against dual citizenship, concerning the risk that people might be doubly obliged to complete national service, is nowadays no longer at the centre of debate. This is firstly due to the fact that there is a recognisable trend in most states towards abolishing general conscription. [4] Secondly, there are numerous multi- and bilateral treaties in existence that address this matter. [5] Germany, among other nations, is a signatory to the above-mentioned European Convention on Nationality, Art. 23 of which provides guidelines for precisely this case. Even the German Government declares that choosing between German and (for example) Turkish military service does not lead to complications between the two countries. [6]

(b) Citizenship as the basis to determine applicable law
Under international law, nationality is one of the criteria to determine the applicable domestic law, especially in the area of family and inheritance law. However, according to private international law – i.e. the principles which decide which domestic law applies in a given situation – the principle of effective citizenship means that the applicable law is that of the country to which those concerned have an effective tie, in other words the country where they normally reside. [7] In Germany, Art. 5, para. 1, Sentence 1 EGBGB [Introductory Law of the German Civil Code] governs this case, which is why German courts state that they do not see any particular concern in this regard. [8]

(c) Possible double taxation of dual nationals
A state can tax its nationals regardless of their place of residence. Further, people must regularly meet their tax obligation in the country where they are economically active. This obviously gives rise to the risk of double taxation. This is, however, to a large extent insignificant [9], since firstly, only very few states tax their nationals on their global income; and secondly, there are numerous bi- and multilateral agreements to exclude this type of double taxation. [10]

(d) Diplomatic protection for persons with dual nationality
Another technical objection relates to claiming diplomatic protection, whereby a state is entitled to protect its subjects against acts contrary to international law committed by another state. In the case of dual nationals, there could be some dispute as to which state may provide legal protection. On the other hand, conflict may arise if a state intervenes on behalf of a citizen residing in another state of which he or she is also a citizen.

Apart from the fact that experience has shown that states do not clash on account of overlapping consular rights and obligations, the International Court of Justice decided as early as 1955 that, in order for a State to exercise diplomatic protection, in addition to the formal citizenship status, there must be a genuine link with that State. [11] In so far as this genuine link exists with both states, then the country of domicile is entitled to protect that person´s interests. [12]

Just a hundred years ago, the second concern, i.e., state intervention within another state, was a decisive inducement to take action against dual citizenship. According to international treaties concluded since 1930, and according to the rulings of international tribunals, diplomatic protection cannot be exercised by one State against another of which the person concerned is also a national. [13] Experience, too, shows that this objection lacks substance, since the millions of dual nationals living around the world have not yet led to any international tension in this regard. This is also confirmed by the German Foreign Office, which reports that there are no difficulties associated with consular support for dual nationals. [14]

Fußnoten

1.
Text and ratification status of both conventions may be viewed athttp://conventions.coe.int. The conventions´ CETS numbers are 043 and 166.
2.
Hailbronner (1992:16).
3.
In recent years the following states have fully or partly recognised dual citizenship: Columbia (1991), Italy (1992), Hungary (1993), the Dominican Republic (1994), Costa Rica (1995), Ecuador (1995), Brazil (1996), Mexico (1998), Australia (2002), Pakistan (2002), Finland (2003), Philippines (2003).
4.
Legomsky (2003:90).
5.
Legomsky (2003:125 ff.) lists international agreements on this subject according to which dual citizens either have a free choice, where they are to fulfil their military obligations, or have to perform military service in the country of their usual domicile.
6.
Cf. Proceedings of the German Parliament, document number: BT-Ds.14/9828.
7.
Hailbronner (2003:26); Bauböck (2005:8).
8.
Hailbronner and Renner (2005:RN 76).
9.
Bauböck (2005:8).
10.
Aleinikoff and Klusmeyer (2002:35); Hailbronner (2003:26).
11.
International Court of Justice, Nottebohm Decision (Liechtenstein v. Guatemala) in: ICJ Report 23 (1955), p. 20 ff.
12.
Aleinikoff and Klusmeyer (2002:34); Hailbronner (2003:21 f.); Martin (2003:15).
13.
Martin (2003:15). On the other hand, there is also a view that the country of effective citizenship should be entitled to exercise diplomatic protection against all other states, cf. Hailbronner (2003:22) for further references.
14.
German Parliament Plenary Protocol 14/24 dated 3 March 1999, p. 1894.

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