Diplomatic Protection of Dual Nationals
This article was prepared with the assistance of ABIL, the Alliance of Business Immigration Lawyers, of which Loan Huynh, Fredrikson Immigration Department Chair, is a member.
This article provides an overview of recent developments in dual nationality and its effects on diplomatic protection.
In recent years, there has been increasing interest in obtaining a second citizenship. In particular, obtaining citizenship and a passport from an EU country can give to the holder and his or her family the possibility of living and working freely in any of the EU countries without visas.
Dual citizenship, however, can create some issues when an individual seeks diplomatic protection. The general principle governing diplomatic protection of dual nationals is set forth by article 4 of the 1930 Hague Convention: “a State may not afford diplomatic protection to one of its nationals against a State whose nationality such person also possesses.”
Even though few countries have ratified the Hague Convention, this provision (the so-called nonresponsibility rule) has been customarily accepted for many years in international law. The U.S. State Department, for example, notes that:
the U.S. Government recognizes that dual nationality exists but does not encourage it as a matter of policy because of the problems it may cause. Claims of other countries on dual national U.S. citizens may conflict with U.S. law and dual nationality may limit U.S. Government efforts to assist citizens abroad.
Other governments hold the same position. The Australian government, for example, tells dual nationals that it “may be limited in its ability to provide you with consular assistance should you seek it.” The Canadian Department of Foreign Affairs states that dual citizenship “means that you are a citizen of more than one country. While having dual (or multiple) citizenship is legal in Canada, some countries do not legally recognize dual citizenship. This may limit or even prevent Canadian officials from assisting you, especially if you are incarcerated.” The United Kingdom’s Home Office states that “[a]s a dual national you can’t get diplomatic help from the British government when you are in the other country where you hold citizenship. For example, if you hold both British and Chinese citizenship you can’t get diplomatic help from the UK when you’re in China.”
The nonresponsibility rule seems, however, no longer the prevailing principle applicable to all cases where issues arise with respect to conflicting nationalities. During recent years, it has been replaced by the principle of “effective nationality” as outlined by the International Court of Justice in the Nottebohm case, decided in 1955:
[International arbitrators] have given their preference to the real and effective nationality, that which accord[s] with the facts, that [which is] based on stronger factual ties between the person concerned and one of these States whose nationality is involved. Different factors are taken into consideration, and their importance will vary from one case to the next: the habitual residence of the individual concerned but also the centre of his interests, his family ties, his participation in public life, attachment shown by him for a given country and inculcated in his children, etc.
Many tribunals have confirmed this principle. For example, the Iran-United States Claims Tribunal, in Case No. A-18, stated that the relevant rule is the one “that flows from the dictum of Nottebohm, the rule of real and effective nationality and the search for stronger factual ties between the person concerned and the one of the States whose nationality is involved.”
In Case No. 296, Bavanati v. the Government of the Islamic Republic of Iran, the same tribunal dismissed a compensation case brought by an Iranian-U.S. dual national where the claimant could not establish a dominant and effective U.S. nationality. The tribunal stated that “evidence shows that since 1974, when the claimant moved to Germany, his habitual residence, center of interest, family ties, participation in public life and other attachments have been insufficient to support a finding that Mr. Bavanati’s links to United States were dominant over his links to Iran.”
Dual nationals may have limited diplomatic protection according to the principle set forth by the 1930 Hague Convention that a state may not afford diplomatic protection to one of its nationals against a state whose nationality such person also possesses.
In recent years, however, international tribunals—beginning with the milestone Nottebohm case decided by the International Court of Justice—have started switching from the nonresponsibility principle set forth in the Hague Convention to the principle of “effective nationality.”
When assessing dual nationals’ eligibility for diplomatic protection, the mere possession of citizenship is not the only factor to be taken into account. Other factors now considered include the center of his or her interests, family ties, and participation in public life, and his or her attachment for a given country that is inculcated in his or her children, if any.