Alison Symington, “Dual citizenship and forced marriages” (PDF), Dalhousie Journal of Legal Studies 10 (2001); Winner of the Smith Lyons Essay Prize.
Abstract: This paper examines the phenomenon of forced marriage and how the international law on diplomatic protection and domestic citizenship laws interact to prevent young women from receiving help because of their status as dual nationals. The evolution of international law and the rise of human rights are considered, the author contesting international rules preventing the United Kingdom from attempting to assist its nationals who are abducted to South Asia for the purposes of forced marriage. This paper demonstrates how in complex situations involving power, gender, culture and politics, law is better understood as a struggle over meaning than as a stated rule of practice.
This essay offers an example of how the doctrine of dominant and effective nationality provides the legal opportunity for the UK to offer assistance to young woman trapped in south Asia–a phenomenon apparently too common, in which a young woman from UK travels with her family for a routine visit to Pakistan or Bangladesh, and unbeknownst to her, the true purpose of the trip is to trap her in a marriage not of her choice.
This article is also interesting for our purposes in the unlikely scenario that the United States were to detain dual citizen of United States and Canada or another nation for tax evasion or criminal FBAR. In this case, the doctrine of dominant nationality would perhaps make it possible for the other country to offer diplomatic protections, aid, or to make petitions on behalf of its citizen.
The common doctrine, which is older than dominant nationality, is called “the rule of state non-responsibility”; it is usually assumed to be in force. Symington writes (emphasis mine):
It is based on the idea that the ordering of persons and assets is an aspect of the domestic jurisdiction of a state and integral to sovereignty and independence. Thus a second state interferes in the first state’s domestic affairs if it offers diplomatic protection to a citizen of that state. Therefore, while a dual national is in one of their states of nationality, that nationality operates as if it was their only nationality. Furthermore, it is reasoned that if both nationalities are valid, to permit one state to represent the individual against the other state would give greater effect to the nationality of the claimant state, thus denying sovereign equality.
I call attention to the line in italics. It is clear then that when the United States tries to tax dual nationals who are resident in their second state of nationality (not the US), it is a clear violation of the rule of state non-responsibility–which is the older of the two doctrines. I.e., the rule, as interpreted by Symington, means that the dual national be treated as though their only nationality is the country where they are. Thus, diplomatically, dual US/Canadian citizen, according to this rule, is only a Canadian when in Canada, and only an American when in America. It is also, for this reason, called, “the rule of sovereign equality”.
As I argued elsewhere, the United States is also in violation of the doctrine of dominant nationality when trying to tax dual nationals resident in their other country (i.e., not the United States). Thus, the United States does not abide by any known international doctrine which determines the treatment of dual nationals.