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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]

Socio-political objections against dual citizenship

(a) 'Unjustified' double voting rights
In nearly all states, voting rights are given on the basis of citizenship. Some commentators, therefore, critically point out that persons who are the citizens of two countries can also vote in two countries, whereas the voting rights of people with solely German citizenship are limited to Germany. Critics argue that this undermines the basic principle of equality of citizens, which is expressed by "one person, one vote". [15]

In this regard it should firstly be noted that, generally, voter turnout amongst the overseas electorate is low. Moreover, many countries of origin have neither established a system of postal ballots, nor do they facilitate voting in their diplomatic missions.

On a theoretical level, the response to the objection that citizens' equality is being infringed may be that the frame of reference for the principle of electoral equality is the single State. [16] No anti-discrimination norm in national or international law aims at equal treatment before different and independent states. Furthermore, the principle of equality only guarantees that there must be plausible reasons for unequal treatment. Where the double voting rights of dual citizens are concerned, the plausible reason is obvious: unlike non-migrants in both countries, they are influenced by both cultures, are rooted in both spheres and belong to both societies. [17]

(b) Integration
A significant objection to dual nationality lies in the assumption that it restricts the integration of dual citizens, as they do not fully identify with the country of immigration. [18]

This objection may be responded to on four points. First, states can bar people who do not wish to accept their values and culture from obtaining citizenship. Thus German naturalisation requirements since 2007 include knowledge of the German social system, culture, history and language. [19]

Second, there are no empirical studies that indicate that retention of another citizenship would erode any existing integration; there are no empirical findings to support those social-psychological assumptions which claim that, for example, an Afghan-German cannot be fully committed to Germany because he possesses two citizenships. Research on transnationalism is only gradually beginning to put forth better hypotheses as to how transnational activities and the feeling of belonging change during the course of a migrant's life, and how this varies between individuals and groups. [20] As sociologist Tomas Hammar observes, civil and cultural identity is not a zero-sum game [21], which means that individuals do not have a limited number of "identification units" that they have to divide between different states and that, therefore, increase in identification with one country proportionately reduces ties to the other. In layman's terms, if a person can simultaneously have sincere ties to a father, a mother, a spouse and children, why should a person not be able to extend his or her patriotic ties to two States at the same time? On the contrary, it is increasingly maintained that combined identities are a sociological reality. In this regard, dual nationality may be seen as legal recognition of these composite national identities. [22]

Third, making it compulsory for German-born people of foreign origin to opt for one of the two nationalities between the age of 18 and 23 may be understood by some as a signal that they are expected to be "just German" and that "Germany" does not recognise their mixed identity, despite their acknowledgement of German values. Such a perception can only have a negative effect on integration.

Fourth and last, an argument against the supposed adverse effect of dual citizenship on integration is: recognizing multiple citizenship creates an incentive for naturalisation. No one would maintain that granting citizenship – with or without the retention of another nationality – will inevitably lead to the integration of the new citizen. Yet, it is certainly a safe assumption that the granting of citizenship will simplify and improve the integration of those who would not otherwise apply for naturalisation. Even if there are few empirical studies on the outcome of these status passages, it can be expected that, due to increased political rights and formal belonging, naturalisation would lead to better positioning within, and interaction with, the majority population. [23] Further, migrants may be induced to identify more readily with a receiving country that recognises mixed-cultural identities.

(c) Loyalty
One of the main objections to dual citizenship lies in a suspected conflict of loyalties. Here, a distinction may be made between conflicts specifically mentioned and less explicit general doubts about the necessary degree of loyalty. One such possible specific conflict is that in the event of war a state depends on the undivided loyalty of the nationals it can call to arms in its service. Further, it is assumed that participation in a country´s political life – as a voter or office-bearer – could be adversely affected by divided loyalties.

With regard to the first objection, it should be pointed out that wars involving the mass drafting of civilians in countries such as Germany are unlikely. Like most modern armies, the German armed forces are constantly developing in the direction of having a smaller body of specialists, so that the non-availability of dual citizens for mass conscription in the unlikely event of war would not compromise the ability of a country such as Germany to defend itself. This would in any case only affect dual nationals from a country with which there was armed conflict.

Proponents and opponents of dual citizenship, meanwhile, agree that persons holding important public offices should give up their second citizenship. [24] As regards electoral behaviour, however, critics of dual citizenship perceive the danger of "instructed voting", whereby dual nationals vote according to the will of the government of their other nationality. However, it seems doubtful whether the state of origin is actually able to make its nationals living abroad behave in a certain way. In particular, experience in many countries where dual citizenship is permitted shows that in practice this does not lead to any appreciable influence on the part of a foreign state. [25]

Moreover, it should be borne in mind that not allowing dual citizenship is no guarantee that the population in Germany will consist only of loyal mono-nationals. Rather, a comparison must be drawn with the reality that, for decades and generations, millions of people have been living in Germany with just one –non-German – citizenship. These people will remain on German soil in the future, too. What are we to make of the fact that this section of permanent residents has no formal ties of loyalty with the state in which it resides?
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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.
15.
Roland Koch, for example, writes in Die Welt, 15 January 1999: "Why should citizens of foreign origin have a say in politics in Germany, whereas Germans abroad have no right to vote?" [translation by the author] See Naujoks (2008:Fn.24) for further references to this kind of argument.
16.
Likewise Aleinikoff and Klusmeyer (2002:31).
17.
Naujoks (2004:21), ibid. (2008:392f.); Bauböck (2005:17.) Moreover, concerns in this regard may be alleviated by the introduction of an "inactive citizenship status" whereby dual nationals enjoy full and unlimited rights in the country of ordinary residence, whereas in the country in which they do not live they have a kind of "truncated citizenship"
18.
Günther Beckstein (quoted in Die Welt, 4 August 2002): "The dual passport is the enemy of integration. New citizens must be fully committed to their new homeland." [translation by the author] See Naujoks (2008:Fn29) for further references to this subject.
19.
Cf. Section 10, para. 1 nos. 5 and 6 German Citizenship Act.
20.
Bloemraad (2004:395).
21.
Hammar (1985:449).
22.
Likewise: Hammar (1985:449); Aleinikoff and Klusmeyer (2002:36, 39).
23.
As Thränhardt (2008) shows, equal involvement of foreign employees in companies´ internal governance has led to good integration within companies. Steinhardt (2008) proved empirically that naturalisation per se leads to improved integration in the national labour market and to higher salaries. Also according to Wüst (2006) "the political integration of migrants [makes] a contribution in terms of the acculturation process of majority and minorities that should not be underestimated." [translation by the author].
24.
Cf. Hailbronner (1992:26); Martin (2003:17); Bauböck (2005:22); Aleinikoff and Klusmeyer (2002:41).
25.
Bauböck (2005).

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