LEGAL IMPLICATIONS OF DUAL CITIZENSHIP UNDER INTERNATIONAL LAW

This article is written by Suhani Bahety of O.P. Jindal Global University, Sonipat, Haryana, an intern under Legal Vidhiya

ABSTRACT 

In today’s modern and globalized world, the concept of dual citizenship is gaining traction and is of significant importance in international law. Yet this concept raises several challenges in the legal sphere of operating in national, private and public international law.  Traditionally, while nations prefer individuals to hold only one nationality, the rise of international migration and human rights law has led to considerable acceptance, if not the creation of dual nationality. This article offers a quick overview of dual citizenship and its benefits. Moving on, the paper explores the key concepts that govern this notion in the international arena. The article’s main discussion focuses on the legal ramifications of holding dual (or multiple) citizenship around the world. To back up its arguments, the article will include a few real-life case examples. The article concludes by advocating for an official framework for dual citizenship internationally inclusive of the needs of both the state and the individual.

KEYWORDS

Dual Citizenship, International Law, State Sovereignty, Human Rights, Dominant Nationality.

INTRODUCTION

Dual citizenship, sometimes referred to as dual nationality, simply put, is the legal status of a person being a citizen of two countries simultaneously. This citizenship is different from having a second citizenship. Dual citizenship is obtained in various ways such as

Marriage—Foreign individuals have the option to become permanent citizens of a country upon their marriage to a citizen of that particular country. This is also known as citizenship marriage. The Hague Convention on Conflict of Nationality Laws (1930) lays down certain provisions regarding citizenship by marriage. It specifically talks about marriage and the nationality of women under chapter 3 of its convention.

Naturalization- The citizenship gained by a person under this concept requires that the individual live in the country for a specified period and fulfil some necessary requirements.

By birth – being born in a country naturally qualifies a person to be a national of that specific country. This citizenship is based on Jus Soli i.e., “right of soil”. This right is provided despite the immigration or the citizenship status of an individual’s parents. 

By descent- citizenship is also acquired by the principle of Jus Sanguinis i.e., “Right of blood”. Under this method, the citizenship of the parent is the pre-determinant of their child’s citizenship status. This process can also be referred to as acquisition by ancestry.

Aside from these basic possibilities, there are a few others, such as citizenship by adoption, citizenship via investment in a country’s economy, citizenship lost by cessation or voluntary loss of one citizenship to gain another, state succession, and migration, among others.

Citizenship status has historically been viewed as a question of national self-definition, fiercely shielded more as a reflex than a rationale. Nationality and identity have been used interchangeably, and they typically correspond with markers of ethnicity, religion, or other sociocultural communities that have been roughly mapped onto geographical boundaries. 

Dual citizenship, which was once considered unusual or harmful, is now a regular feature of globalisation. In the past, state sovereignty said that persons should only have one nationality, and the questions of being stateless or having two nationalities were of concern to attendees at the 1930 Hague Conference on International Law. However, many places now accept dual nationality, even if they do not create it themselves. This shift is driven by a variety of factors, including human rights laws aimed at ending statelessness and an awareness that people might have significant ties to multiple countries.

BENEFITS OF DUAL CITIZENSHIP

Obtaining dual citizenship has several advantages since it increases a person’s movement throughout the world. Generally speaking, certain passports do not permit the simple luxury of travelling with fewer limitations; in this case, holding a second passport is an extra precaution. In support of it, a person is legally entitled to residence in several countries. Having dual citizenship makes it easier for someone to invest globally and profit from it. A person with this citizenship has an advantage in growing their business, expanding their network, and gaining access to a top-notch standard of living. But every advantage has a stumbling disadvantage. Let’s talk about the negative aspects of having two citizenships. 

LEGAL PRINCIPLES GOVERNING DUAL CITIZENSHIP UNDER INTERNATIONAL LAW

State Sovereignty-

The legal sovereignty of the state is one of the most important principles of international law and it greatly influences the regulation and perception of dual citizenship. State sovereignty gives each state the power to delineate the boundaries of nationality for the people who will be subject to the provisions of the law. This means that every state is in a position to determine the rules and regulations for the conferment and withdrawal of nationality in accordance with particular political, social, and historical circumstances. This right originates from the fact that states are entitled to set forth the criteria for their population, and it was, in the past, accepted as one of the areas where states enjoyed considerable latitude. These principles were embodied in Article I of the Hague Convention on Certain Questions relating to the Conflicts of Nationality laws in the following terms: “It is for each State to determine under its own laws who are its nationals. This law shall be recognized by other States…”. This is frequently called the domain reserved for the state. According to the principle of domain reserve exclusive competence – each state determines within the bounds of sovereign self-determination the requirements required for admittance to its nationality. One general criterion for participation is that nationals have some form of close ties to the specific state, a genuine link. 

Human Rights Law-

In recent years, human rights standards have begun to limit the control countries have over citizenship decisions, placing more emphasis on protecting individual rights. A major focus is preventing statelessness, where individuals have no citizenship. International human rights laws stress that everyone should have a nationality, aiming to prevent situations where someone is without citizenship. This shift has led to a broader acceptance of dual nationality, which allows people to be citizens of two countries and helps prevent loss of citizenship. Art. 15 of the UN General Assembly’s 1948 Universal Declaration of Human Rights clearly states that everyone has the right to a nationality and should not be unfairly stripped of it. This principle is reinforced by international agreements like the UN Convention on the Reduction of Statelessness, which requires countries to grant citizenship to those who would otherwise be stateless.The human rights perspective sees nationality not only as a decision for states but also as a basic human right connected to human dignity. Consequently, there are increasing calls for countries to recognize and protect the rights to dual citizenship.

LEGAL CHALLENGES &  IMPLICATIONS OF DUAL CITIZENSHIP 

The Doctrine of Dominant and Effective Nationality-

The test of dominant and effective nationality is a significant method used internationally to determine the most relevant nationality of an individual in specific legal situations, especially concerning diplomatic protection and international disputes. The test focuses on the genuine link between a person and the state. It recognizes that the individual’s connection with one state can be stronger than another state. The factors considered under this test include the habitual residence of the person, the place where the person has the strongest professional and economic ties, family and personal ties of a person, and where the individual has a greater socio-cultural life. The core idea of the test is to determine the most real and effective nationality. This test has been acknowledged and applied by the International Court of Justice in the famous Nottbohm case of 1955.

This test provides a useful framework and is preferred over the non-responsibility doctrine. However, its application is and can be complex because an individual’s ties may be spread across multiple countries. For instance, its application in domestic courts could be detrimental to the other concerned country. The Sadat v. Mertes case is significant because it demonstrates how principles of international law, such as the doctrine of dominant nationality, can assist domestic courts in resolving complex issues regarding dual citizenship but at the same time undermining the other government. It shows how U.S. courts apply a voluntary maintenance test in determining dominant nationality. It developed that an American dual nationality can be treated as a foreign citizenry, not for the purpose of the ordinary law but to protect comprehension of the constitutional policy on how we distinguish citizens from aliens. This greatly affects the rights of dual citizens as it comes to their confines to jurisdiction over their rights in their own land.

For example, in Sadat, the Egyptian government did not take part in the Seventh Circuit’s decision on dominant nationality and did not agree to be bound by the court’s decision. Thus, Sadat, by applying the international doctrine of dominant nationality, would have very well affected the Egyptian government. The court’s conclusion on the issue of the plaintiff’s dominant nationality might also antagonize the Egyptian government, given that it alters the status of an Egyptian citizen under federal jurisdiction. In addition, if a domestic court were to find that the dominant nationality of a dual national is domestic, the domestic court’s finding means that the domestic state cannot be made internationally responsible for harm to an alien. As such, the Sadat court correctly found that the unqualified form of the international doctrine of dominant nationality shall not apply. 

Diplomatic Protection and Genuine Link-

The principle of dominant nationality prohibits a dual national from receiving diplomatic protection from both states at once. This rests almost entirely on the person having a “genuine link” with the specific state. This means that a dual citizen who runs into legal trouble abroad will have to check which nationality is superior at that point to obtain the kind of assistance they need.

Example: In the Drummond Case (1834), a dual national (British/French) sought protection from Britain after France seized his property. The tribunal ruled that Drummond, having a 

dominant nationality of French, could not receive protection from Britain. 

National Safety and Security-

Accusations surrounding divided loyalty often introduce a suspicion regarding national security in discussions on dual citizenship. Such people in governments would be suspected, thinking that the individual does not show exclusive allegiance to one country. The assumption leads to extra scrutiny and suspicion, especially in cases where such people are holding sensitive government jobs or engaged in national defence. For example, during World War II, many Japanese Americans were interned out of fear that they were affronting the United States. This historical reference demonstrates in vivid language how dual citizenship could bring about severe ramifications in the legal and social contexts depending on security concerns.

Moreover, obtaining security clearances in countries with dual citizenship can be very hard: for instance, in the United States. The fact that they are dual citizens usually raises questions about their trustworthiness and the degree of their loyalty to every one of their countries. The U.S. State Department draws up some guidelines to ensure that dual nationals undergo thorough inspection during the clearance process since being a dual national can put them in a position where their allegiance and safeguarding of sensitive information need to be called into question. 

Loyalty Conflicts

The issues of divided loyalty occupy a central place in the debate surrounding dual citizenship. Those who hold citizenship in more than one country may face conflicting obligations or expectations from each state, especially during periods of instability or armed conflict. The issue of divided loyalties has a long history, including instances in the early nineteenth century, such as the War of 1812, when a person with dual citizenship was caught between two competing loyalties to either the U.S. or Britain and with a slew of difficult legal and social dilemmas to ponder concerning allegiance and obligation. 

The perception of dual citizens within the community is also significantly influenced by the general attitude of the native population. Research has shown that native populations often perceive dual nationals as harbouring divided loyalties, with consequent stigmas and discrimination. A study conducted in the Netherlands shows that native citizens are inclined to view new immigrants who possess dual citizenship as being less loyal, thus hampering their political acceptance and integration into society.

These loyalty conflicts become more complicated, given the legal issues surrounding dual citizenship. In some nations, the laws explicitly impede dual-national rights due to alleged loyalty issues. The countries in question may force individuals to renounce one nationality when naturalized or bar them from certain government posts because of dual status. In Japan, individuals with dual nationality must choose one nationality by the time they reach 22 years of age, thereby avoiding potential conflicts of loyalty. 

Economic Contribution and Taxation-

Individuals having dual citizenship may face complicated economic policy issues regarding their earnings. They are prone to face hefty taxation obligations from the tax laws of both countries. For example,

A dual citizen of the United States and Mexico living in Mexico has complicated tax obligations. As a U.S. citizen, they must file a U.S. tax return that reports their worldwide income, irrespective of where it is earned. For instance, an individual earning $100,000 from a Mexican employer, they are obliged to file tax returns in both Mexico and the U.S.

In Mexico, they would pay taxes on their income under Mexican law. However, U.S. tax legislation requires these individuals to report their income, which may lead to double taxation in both countries for the same income. Luckily, the mechanisms offered by the U.S. to relieve the taxpayer’s burden, like the Foreign Earned Income Exclusion, allow some eligible individuals to exclude foreign earned income, of up to $126,500 (in 2024), from the U.S. taxation, meeting certain residency requirements. The Foreign Tax Credit also allows the dual citizen to take a tax credit for taxes paid to the Mexican government against their U.S. tax responsibility, which helps soften or eliminate the double taxation on the income earned in Mexico.

Jurisdictional Issues-

One of the areas where there would be complexity in jurisdiction and related legal issues would involve litigation entailing dual nationals. The litigious offshoots of such cases present a quandary for courts, which may have a hard time determining the applicable law or the proper jurisdiction over the case at the bar.

In Kawakita v. United States, the Court held that adequate evidence established the finding made by the jury that the treasonable acts kawakita committed during World War II were done while he had neither repudiated nor lost his American citizenship.

Paradoxically enough, the Supreme Court stated: “Simply to register as a Japanese national or to perform acts which are incidental to Japanese nationality is insufficient in itself to establish the renunciation or loss of American citizenship”.  Thus, it was elaborated that the fact that he had registered for the family census in Japan did not in itself negate American citizenship.  

The decision in Kawakita v. United States by the Supreme Court demonstrates the intersection of issues relating to nationality and jurisdiction, especially concerning dual nationals charged with treason. The pronouncements of the court established that dual citizens are still responsible to the country of their birth and may be justly punished for their acts under United States law even though they enjoy, in some sense, equal status in another nation.

Issues of International Travel –

One important issue for dual citizens travelling internationally is the requirement that they enter and leave countries on specific passports. An example is that U.S. law requires dual nationals to use a U.S. passport when entering and departing the United States, so the individual is recognized as a U.S. citizen with a certain set of rights and obligations under U.S. law. Likewise, the citizen’s other nationality may also mandate the use of its passport for entry and exit, which could generate confusion and complications when travelling. For instance, a dual citizen of Canada and Italy may have to enter Italy on their Italian passport while using their Canadian passport when returning home to Canada. 

In certain instances, a dual citizen may not see as much diplomatic protection from their respective home countries when travelling internationally. If a dual citizen runs into legal trouble or emergencies abroad, there may be restrictions on consular assistance, depending again upon the country with which that national most primarily identifies. If both states claim jurisdiction, the situation could lead to complexities in terms of being able to receive timely support from embassies or consulates. As an example, U.S.-Mexican dual citizenship may deprive the dual citizen of American consular assistance while in Mexico because they are of Mexican nationality. 

Military Services-

The legal implications of dual citizenship concerning military service are both extensive and multifaceted. Dual citizens might have conflicting military obligations if both countries demand compulsory military service.

The dual citizenship could also be affected by international treaties, and hence these international treaties influence how dual citizenship imposes military requirements. One notable treaty, the Protocol Relating to Military Obligations in Certain Cases of Double Nationality, was established in 1935. It presents guidelines regarding military service for those with multiple nationalities. According to Article 1 of this protocol:

“A person possessing two or more nationalities who habitually resides in one of the countries whose nationality he possesses… shall be exempt from all military obligations in the other country or countries”. 

Yet, in a few other cases, serving in a foreign military may lead to the loss of one nationality. However, there are a few international principles of no double conscription, voluntary service,  State exemption, etc., at play to shield an individual from the spiderweb of military services under dual citizenship. 

Exclusion from Political Rights-

Dual citizenship considerably affects a person’s political rights in a particular state depending heavily on the legal frameworks involved. There are some states which impose significant restrictions on dual citizens’ eligibility for holding positions for political office. For example, dual citizens in Egypt and Armenia are prohibited from being a part of the parliament.

Other restrictions aimed against numerous people address their domestic rights and raise doubts about their loyalty. The most prevalent is exclusion from high-level public office, such as Member of Parliament. Australia has long tolerated dual citizenship, although its constitution bars “subjects or citizens of a foreign power” from serving in the federal parliament. As a result, five MPs, some of whom were unaware that they had a second citizenship granted to them at birth, lost their positions in 2017. In addition to such restriction is the restriction on the voting rights of a person. As seen in the case of the Philippines, where dual citizens by naturalization cannot run for any local elective office.

LIST OF COUNTRIES OFFERING DUAL CITIZENSHIP

1. Albania
2. Algeria
3. American Samoa
4. Angola
5. Antigua & Barbuda
6. Argentina
7. Australia
8. Armenia
9. Australia
10. Barbados
11. Belgium
12. Belize
13. Benin
14. Bolivia
15. Bosnia & Herzegovina
16. Brazil
17. Bulgaria
18. Burkina Faso
19. Burundi
20. Cambodia
21. Canada
22. Cape Verde
23. Central African Republic
24. Chile
25. Colombia
26. Comoros
27. Republic of Congo
28. Costa Rica
29. Ivory Coast
30. Croatia
31. Cyprus
32. Czech Republic
33. Denmark
34. Djibouti
35. Dominica
36. Dominican Republic
37. East Timor
38. Ecuador
39. Egypt
40. El Salvador
41. Equatorial Guinea
42. Fiji
43. Finland
44. France
45. The Gambia
46. Germany
47. Ghana
48. Greece
49. Grenada
50. Guatemala
51. Guinea-Bissau
52. Haiti
53. Honduras
54. Hong Kong
55. Hungary
56. Iceland
57. Iraq
58. Ireland
59. Israel
60. Italy
61. Jamaica
62. Jordan
63. Kenya
64. South Korea
65. Kosovo
66. Kyrgyzstan
67. Latvia
68. Lebanon
69. Lithuania
70. Luxembourg
71. Macau
72. Macedonia
73. Mali
74. Malta
75. Mauritius
76. Mexico
77. Moldova
78. Morocco
79. Namibia
80. Nauru
81. New Zealand
82. Nicaragua
83. Niger
84. Nigeria
85. Pakistan
86. Panama
87. Papua New Guinea
88. Paraguay
89. Peru
90. Philippines
91. Poland
92. Portugal
93. Romania
94. Russia
95. Saint Kitts & Nevis
96. Saint Lucia
97. Saint Vincent and the Grenadines
98. Samoa
99. Scotland
100. Serbia
101. Seychelles
102. Sierra Leone
103. Slovenia
104. Somalia
105. South Africa
106. South
107. Sudan
108. Spain
109. Sri Lanka
110. Sudan
111. Sweden
112. Switzerland
113. Syria
114. Taiwan
115. Tajikistan
116. Thailand
117. Tibet
118. Tonga
119. Trinidad & Tobago
120. Tunisia
121. Turkey
122. Uganda
123. United Kingdom
124. United States
125. Uruguay
126. Vatican City
127. Venezuela
128. Vietnam
129. British
130. Virgin
131. Islands
132. Yemen
133. Zambia
134. Zimbabwe
135. EU Countries that Allow Dual Nationality
136. Cyprus
137. Czech Republic
138. Denmark
139. France
140. Finland
141. Germany
142. Greece
143. Hungary
144. Ireland
145. Italy
146. Malta
147. Portugal
148. Poland
149. Sweden

Only under very specific circumstances are second passports permitted in Spain, Latvia, and Lithuania.

LIST OF COUNTRIES THAT DO NOT PERMIT DUAL CITIZENSHIP

1. Afghanistan
2. Andorra
3. Austria
4. Azerbaijan
5. Bahrain
6. China
7. Djibouti
8. Eritrea
9. Estonia
10. Ethiopia
11. Georgia
12. Guinea
13. Guyana
14. India
15. Indonesia
16. Iran
17. Japan
18. Kazakhstan
19. Kiribati
20. North Korea
21. Kuwait
22. Laos
23. Lesotho
24. Liberia
25. Libya
26. Liechtenstein
27. Malaysia
28. Montenegro
29. Madagascar
30. Malawi
31. San Marino
32. Sao Tome and Principe
33. Saudi Arabia
34. Singapore
35. Slovakia
36. Suriname
37. Eswatini
38. Tanzania
39. Togo
40. Ukraine
41. United Arab Emirates
42. Uzbekistan
43. Vanuat

INDIA’S STAND ON DUAL CITIZENSHIP

The Indian Constitution governs India’s citizenship policy, notably Article 9, and the Citizenship Act of 1955. According to these legislative rules, India follows a stringent policy of single citizenship, which means that an individual can only be a citizen of India and not of another country simultaneously. Thus, when a person becomes a citizen of another nation, they lose their Indian citizenship. 

Additionally, the Consulate clarifies the citizenship status of OCI cardholders. The Indian Constitution prohibits the dual citizenship of Indian and foreign nationals. The Government of India has chosen to register persons of Indian origin who fall into a specific category as outlined in Section 7A of the Citizenship Act, 1955 as OCI Cardholders. This card is essentially a lifelong visa with additional benefits that are listed on the Ministry of Home Affairs website. It is emphasized that possessing an OCI card does not grant its holders the right to claim dual citizenship.

CONCLUSION

In essence, the legal implications of dual citizenship under international law are not homogenous; rather, they manifest various conflicts between national sovereignty and human rights. Although dual citizenship may enhance opportunities and protections enjoyed by an individual, it creates novel challenges in dealing with an array of legal obligations a citizen must navigate in different biennial jurisdictions.

However, the recent trends appear to reflect an undeniable line of greater acceptance of dual and plural nationality and awareness of the intricate realities of an interconnected world. As globalization alters national boundaries rapidly, there is a need to have a coherent international policy and framework to avoid instability and legal bickering on an urgent basis. 

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