Man is an animal suspended in webs of significance that he himself has spun...

Friday, October 30, 2015

Flophouse Citizenship and International Migration Reading List

Time for another update of the Flophouse citizenship/migration reading list. New books are in green. I highly recommend the titles below - read them and you will never look at citizenship or migration the same way again. All the underlined titles take you directly to the book on Amazon (US). I would really appreciate suggestions for other titles that might be of interest. I promise to read and add them to the list if I think they are good.

The Changing Role of Nationality in International Law (2013) edited by Alessandra Annoni and Serena Forlati.  Some good essays in this volume about the impact of international human rights law on national laws.  There are international conventions concerning statelessness, political and social rights, freedom of movement, and the right to change one's nationality, but these can be interpreted at the country or supra-state level.  Serena Forlati's essay Nationality as a Human Right looks at the Right to Have a Nationality (UDHR/ICCPR/CRC) and shows how this right is limited at the nation-state level because states do not wish to give up their power to attribute and deprive people of their nationality - even when it conflicts with other nation's nationality laws or results in statelessness.

Military Migrants: Fighting for YOUR Country (2012) by Vron Ware.  In the first decade of the 21st century the British army, faced with deployments in Irak and Afghanistan, could not recruit enough soldiers locally.  So they turned to the young men and women of Commonwealth countries like Fiji and South Africa.  While these soldier/migrants served with UK citizens and swore the same oath to the Queen, they were still immigrants, not citizens.  A fascinating story that raises questions about the link between citizenship and service to a country. I highly recommend this one.

Return:  Nationalizing Transnational Mobility in Asia (2013) edited by Xiang Biao, Brenda S.A. Yeoh and Mika Toyota.  Some excellent essays in this collection about:  Japanese Brazilians; the Korean Chinese and their relationship to South Korea; Cambodians and the US deportation machine; and the regulation of circular migration between Malaysia and Indonesia.

If This is Your Land, Where Are Your Stories? (2010) by J. Edward Chamberlin.  This is a hard book to describe.  It's about stories - the ones we tell about ourselves, our people, and how we came to be here in this land (and not someplace else).   And the central question for me in this book is: how do we work through our differences when we have different myths, histories, narratives and memories about the very same place?

Global Marriage: Cross-Border Marriage Migration in Global Context (2010) by Dr. Lucy Williams.  Outstanding look at cross-border marriages from a global perspective.  Williams takes on the myths, stereotypes about foreign brides (and grooms) and counters them with solid research. A refreshing antidote to the many silly things said about those "marriage migrants."

The Scramble for Citizens: Dual Nationality and State Competition for Immigrants (2013) by David Cook-Martin.  A fine book that looks at migration from Spain and Italy to Argentina in one era and the reverse migration from Argentina back to Spain and Italy of those immigrants' descendants in another.  The author does a fine job of showing how it is almost impossible for a state to make (and make stick) immigration/emigration and citizenship law unilaterally.  There is a larger context with sending and receiving states competing for the productive power and loyalty of immigants and emigrants.

Democracy and the Foreigner (2003) by Bonnie Honig.  Great read.  Honig takes the idea of "the foreigner" as a vexing issue to be solved through assimilation or rejection and turns it around.  Are there circumstances when the stranger is not a problem at all, but rather a solution to what ails a community?

Migration and the Great Recession:  the Transatlantic Experience (2011) edited by Demetrios Papademetriou et al.  If you were wondering how the economic crisis in the first decade of the 21st century had an impact on migration, this book of essays from the Migration Policy Institute is good place to begin.  Data from the U.S., U.K., Spain, Portugal, Ireland, Sweden and Germany.

Anthropology and Migration: Essays on Transnationalism, Ethnicity, and Identity (2003) by Caroline Brettell. An anthropologist looks at migration, transnationalism, and assimilation/integration through a population she knows well: the Portuguese diaspora. (Flophouse review here.)

Moving Matters: Paths of Serial Migration (2013) by Susan Ossman. .A look into the minds of "serial migrants." Those who immigrate once (like all other migrants) and then do something that shatters the standard immigrant tale - they move on. (Flophouse review here.)

International Migration in the Age of Crisis and Globalization (2010) by Andres Solimano. The author is ambitious and confronts some of the most difficult topics around migration:  Why is International Migration Such a Contentious Issue?  Are Goods and Capital More Important than People?  Don't Always 'Blame' the North!

The Citizen and the Alien:  Dilemmas of Contemporary Membership (2006) by Linda Bosniak. Refreshing take on the dilemmas of citizenship and democratic ideals.  Who is included/excluded and on what basis?  The problem of democracy and the legal permanent resident. Complex questions with no easy answers.

A Nation of Emigrants:  How Mexico Manages Its Migration by David Fitzgerald (2009)  The internal American battle over immigration from Latin America is a very public debate but it's only half the story.  Mexico, the U.S.'s southern neighbor and a major sending country, has made and is still making policy to manage its emigration and its emigrants.  This is an extraordinary book and there is much to be learned from Mexico's efforts and policies - even when they have failed.

The Sovereign Citizen:  Denaturalization and the Origins of the American Republic (2013) by Patrick Weil  Really superb book.  Excellent research into the un-making of American citizens in the 20th century.  

Citizenship and Those Who Leave:  The Politics of Emigration and Expatriation by Nancy L. Green and Francois Weil (2007)  I contend that you cannot talk about immigration without also discussing emigration.  A fine work - excellent chapters on how states (UK, Holland, U.S., France and others) have tried to manage emigration.

Citizenship and Immigration by Christian Joppke (2010) This one covers a wide variety of old and new ideas about citizenship.  A good place to begin for someone who is just delving into how immigration/emigration and citizenship are entwined. Joppke refutes the idea of the decline of citizenship - an argument worth reading..

International Migration and the Globalization of Domestic Politics edited by Rey Koslowski.  Some very good insights into how international migration and diaspora politics affect politics back in the home country.

Immigration and Citizenship in Japan by Erin Aeran Chung (2010) Excellent book about Japan as a country of immigration. "Japan is currently the only advanced industrial democracy with a fourth-generation immigrant problem." Chung tells the story of how this came about and the impact this has had on modern Japanese citizenship law.

Rights and Duties of Dual Nationals:  Evolution and Prospects edited by David A. Martin and Kay Hailbronner (2003)  Fine set of articles on dual citizenship and such things as military service, extradition, political rights (Peter Spiro), denationalization and many others.  Pricey but worth every penny.

International Migration and Citizenship Today by Niklaus Steiner (2009).  A very fine book on the political, economic and cultural impact of immigration.  He frames the discussion around two essential questions:  What Criteria to Admit Migrants?  and What Criteria to Grant Citizenship?

Citizenship Today: Global Perspectives and Practices edited by T. Alexander Aleinikoff and Douglas Klusmeyer (2001).  This was one of the best books I read on the topic of citizenship with essays by Patrick Weil, Karen Knop and Richard T. Ford, among many others.   

States without Nations:  Citizenship for Mortals by Jacqueline Stevens (2009) A strong critique of birthright citizenship in all forms and a call for citizenship based on residency.  

The Perils of Belonging: Authochthony, Citizenship, and Exclusion in Africa and Europe by Peter Geschier (2009).  Outstanding read.  States make citizens and states can also "unmake" them.  Nativism and the never-ending debate over who really "belongs."

The Politics of Citizenship in Europe by Marc Morje Howard (2009).  A really fine study of the citizenship policies of the oldest member-states of the EU.  Read this book to grasp how citizenship laws have changed over time and the reasons why.

The Future Governance of Citizenship by Dora Kostakopoulou ((2008).  Good overview of the current citizenship models and a proposal for an "anational" citizenship framework.

Beyond Citizenship:  American Identity After Globalization by Peter Spiro (2008).  Excellent book that examines how globalization has changed the value of citizenship overall and American citizenship in particular.  Very thoughtful.  Very well-written.

Qu'est-ce qu'un Français? by Patrick Weil (2002).  Mr. Weil spent over 8 years in the archives researching this book and it is fascinating.  France has been something of a test lab for just about every combination of jus soli and jus sanguinis citizenship possible.  Everything has been tried and tried again.  I read the book in French but it is also available in the usual places in English.

Gender and International Migration in Europe by Eleonore Kofman, Annie Phizacklea, Parvati Raghuram and Rosemary Sales (2000).  If you are looking for some empirical evidence for how migration, immigration policy and citizenship rights have different outcomes and impacts for women, this is a good place to start.

The Birthright Lottery:  Citizenship and Global Inequality by Ayelet Shacher (2009) An attack on both jus soli and jus sanguinis methods of transmitting citizenship.  Fascinating argument.

Aliens in Medieval Law:  the Origins of Modern Citizenship by Keechang Kim ((2000).  I've been meaning to write a post about this book since it has a very original take on the historical roots of modern citizenship.  I recommend it highly. 

Human Rights or Citizenship? by Paulina Tambakaki (2010)  Interesting ideas about how traditional models of citizenship and  human rights legislation are in conflict.

Let Them In:  the Case for Open Borders by Jason L. Riley (2008)  The author makes a very radical argument for simply opening the doors and letting people move where they wish.

For info I have created a Citizenship and Migration book list on Goodread's Listopia here.  Good place to read reviews and find quotations from the above books.

Wednesday, October 28, 2015

Documenting Identity: Birth Certificates

A few days ago a federal judge in the United States upheld (for now) Texas' right to deny undocumented migrants access to US  birth certificates for their US citizen children born in the United States.

Birth certificates were provided in the past to parents who could produce a Mexican expatriate identity document called a matricula consular card.  Texas official changed their policy and no longer accept this as proof of identity.  The judge who heard the case brought by desperate parents trying to enroll their citizen children in school, or get medical care for them, refused to issue an emergency injunction against Texas saying that the court needed more information before it could rule for or against.

Answering the question Who are you? can be more complicated than most of us realize.  We may answer that question (or volunteer that information)  many times as we go about our daily lives and 99.9% of the time we are trusted .

When we write an article, for example, and we say that we are British in our bio, how many readers ask for proof?  Or when we have coffee with a friend in France who proudly proclaims that she's French, we assume that she's telling the truth and we don't ask her for her certificat de nationalité française.  Or when I'm asked by the crew of the ship I took to Miyajima this weekend and I answered "American".  The crew simply handed me an English guidebook; they did not ask for my passport.

It is only when we have dealings with a state that definitively documenting our identity becomes essential.  To get an identity card, a passport, a residency card, or access to services reserved for citizens, a state doesn't always take your word that you even exist  - much less accept your assertion that you are American, Japanese, German or Brazilian.  States usually want something that documents presence on this planet from birth.

This is called a "breeder document" and it is vitally important.   For lack of a "breeder document" that enables us to get other documents, we can be be denied many things:  access to services,  the right to leave a country, entry into another country,  or residency in a country.   We can even be deported assuming that the authorities can themselves establish an identity for us that corresponds to a country to which we can be sent. (Interestingly enough this is an issue and there are people languishing in deportation centers all around the world because the local authorities can't make a match and have no idea where to send them.)

The trouble begins because not all countries document birth in the same way, or at all.  According to the United Nations Development Program,  "Only about 65% of all births are registered globally..."     And looking at the countries that do have a method for recording births, they all have different processes, customs, and document formats, all of which can change over time and are managed via via very different processes and by different levels of authority depending on the country.

Consider for a moment the difficulties the French have had with Mayotte, an archipelago in the Indian Ocean near Madagascar which became a French department in 2011.  The difficulties in extending the French civil registration system to a population that numbers just a little over 200,000 people have been legion.  According to Claudine Hardy's essay in Identification and Registration Practices in Transnational Perspective, as late as 2007 the  commission charged with managing the integration was still encountering the following problems:
"Families with inconsistent names for children because the father's or mother's name have changed over time... The very notion of a patronymic name was unknown until 2000. Difficulties encountered by adult persons realizing that their birth was never declared in the first place:  research in the town hall's records, search for witnesses, enquiry on the basis of approximate birth date." 
Lest those of us sitting comfortably in OECD countries think that these problems are confined to small outposts far removed from what we smugly think of as "civilization", let's take another example - a very timely one since it demonstrates that the troubles with Texas  are not new in the United States.  Have a look at this 2010 article, Undocumented Citizens: 
The Crisis of U.S. Birth Certificates, 1940-1945, which has this chart showing the status of birth registration in the US in 1922:

Registration-area states (at least 90% of each year's births registered) are in red; states with "laws under trial" are in pink; states with "unsatisfactory laws" are in yellow.
In 1922 only 29 states registered at least 90% of the birth in their territories.  This fact provoked a crisis during World War II because there were federal requirements for receiving benefits and working in the defense industry.  Suddenly, large numbers of Americans had to prove their citizenship and that meant obtaining a birth certificate.

According to Shane Landrum this was a nightmare for citizens and local authorities alike:   "Despite the importance of being able to prove one’s citizenship with a birth certificate, in the early 1940s, about 43 million Americans—nearly one-third of working-age population—had no such document. Their births had never been recorded by government, and they faced complex and unfamiliar procedures for documenting their own births."

There were some very creative solutions to this problem.  Some native born Americans simply used forged documents:  "By May 1942, at least four separate businesses in Los Angeles purported to help would-be defense workers get birth certificates."  Some states like California and Virginia had procedures called "delayed birth registration" but this was costly and sometimes, as was the case of Virginia, race was an issue.  Virginia law required the applicant to specify if he was "white" or "colored".  Failure to indicate one or the other meant no birth certificate and thus no job or access to benefits.

It was so bad that in 1942 the US government blinked and gave up: " ...the War Manpower Commission announced that defense-plant workers no longer needed to show a birth certificate as proof of their citizenship. Instead, they could swear to their citizenship 'in the presence of an Army or Navy plant representative,' signing their names and agreeing to a $10,000 fine and up to 5 years in prison if they were lying."

In 21st century America,  the situation is so much better.  Or is it?  Yes and no.  An American born today will almost certainly have his or her birth registered.  Obtaining a copy, however, means knowing which one of the 16,000 different offices that can issue birth certificates in the United States to which one should apply.   Many local authorities have on-line systems for requesting one, but few controls over who is making the request.  (Note that this is not unusual - France has such a system where one self-certifies that he or she has a right to a copy.)

So should anyone put their trust in Texas and their ability to manage this process in a fair and efficient manner?  I don't know, folks.  Their insistence on refusing birth certificates without some sort of identification might be perfectly legitimate except that it appears to be targeted at one population in particular.  I note that they do accept a Driver's License as a Primary Identification. This is utter horse manure - my French husband has a US driver's license and he is certainly not a citizen of the US, nor is he a resident there.   Take that one out of equation (and watch Americans in Texas scream about the stupidity of government and how dare those bureaucrats not trust them)  and I might think better of their efforts.

Almost all systems (even modern ones) for registering birth and obtaining documentation of that fact are deficient in one way or another: inconsistent, decentralized to the point of absurdity and prone to forgery and identity theft. What is amazing is that many modern states still rely on them almost exclusively to establish identity.

Because, frankly, between that piece of paper and a person, there is nothing to link the two except faith and trust.

Tuesday, October 27, 2015

How to Write about Japan

This is the title of a very good essay written by Patrick Sherriff, a writer/journalist who lives in Akibo, Japan.

How to Write about Japan takes on some of the story lines and stereotypes used and reused by people who write about Japan:  the "inscrutability" of the Japanese, the poor suicidal "salaryman", the recycling of old stories about weird "trends" that may or not really exist outside the observer's mind, the strange food, and the pictures that always show the Japanese doing something odd and so on and so forth.

Sherriff pulls no punches about the travel writers who use these themes in their articles.  "If the Japanese are so darned inscrutably different from regular folk," he writes,  "how in the hell can you, whose only expertise is you got through two-thirds of Shogun in college, get at the Real Japan, the Land of the Rising Sun Japan, The Cat and the Concrete Japan?"

The Real Japan?  Ah, this I recognize.  It's a close cousin to a place called The Real France (aka la France profonde).  In this imaginary world the French are just as mysterious - a strange but adorable tribe with quaint and exotic customs that are an endless source of amusement and wonder.

It is generally true that wherever an expat finds him or herself is unique and completely unlike any other place on the planet.  The vocation of the travel writer and long-term residents who write expat biographies is to assert insider status and reveal differences to an audience out there in the world who will hopefully find it interesting enough to pay to read about it.

Note that this uniqueness is always defined by the culture of origin of the writer, and probably reveals more about the writer himself and his relationship to his home country and culture than it does about the country he or she writes about.    

Sherriff's  "rules" show what is sacrificed in that effort to be interesting and saleable.  Articles that emphasize the exotic and perpetuate negative and positive stereotypes have the effect of practically writing the population concerned out of membership in the human race.  Complex human beings who are themselves unique individuals living on a planet composed of other unique individuals become static cardboard cutouts defined by their deviation from norms that are the mental and cultural baggage of the writer, and read as gospel truth by readers continents away. How dangerous is this?

Very.  That the Japanese are "inscrutable" and impossibly different sounds very much like something my grandfather might have said - the one who went to war against them.


I invite you to read the article that inspired this one:  How to Write about Africa.

And I would love to hear from you, Flophouse reader, about the rules for writing and selling articles about the country where you live.

Monday, October 26, 2015

My Experience is Where I'm From

Says Taiye Selasi in this brilliant Ted Talk.

Travelling in Japan this weekend I cannot count the number of times we were asked, "Where are you from?" and every time we lied.  Because to say "America" or "France" or to write "Osaka, Japan" on the registration card at the hotel where we stayed isn't exactly false, but it isn't really entirely true, is it?

It seems to me that whatever answer we do give depends on the context - something Selasi doesn't mention.  That in some places things are more pleasant for us if we simply say "France".  We have found this to be true in Japan where feelings about Americans and American culture are ambivalent.

 Identity is, in other words, flexible in our little family.  We can detach and attach at will.  The countries, cultures and  fellow citizens concerned have no power to stop it.  It is independent of passports and national authority because it is a space that is owned largely by the individual with only one  of Selasi's three "R's'' being under the control of the nation-state.

Salasi is resentful of the half-truths/lies told in introductions to her speeches and work, but the flip side of attempts to impose a legible identity on an individual is the manipulation of a fluid identity to one's own purposes.   With multiple experiences, passports, languages, and countries the individual can choose which ones confer the most benefit in any given situation.  This careful selection of identity can be used to connect (positive) or repel (hostile) in any context.

A utilitarian use of identity?  Absolutely and I would argue that it is completely legitimate.  We are not responsible for other people's sterotypes and assumptions.  If someone decides, after hearing "US" or "France", what kind of people we must be, what language we speak, and what our culture is all about, there is very little we can do about it.  But once we perceive that they have made a mental prison for themselves with the bars being the assumptions they cannot break,  then we can dance around their cage.

Friday, October 23, 2015


As of yesterday, I am half a century old.

I celebrated this fact an ocean away from where I was born.  Osaka is about 9 hours by plane from Seattle - longer, in fact, because there are no direct flights.  My usual path, however, takes me in the opposite direction on a 13-hour flight to France where I have lived for nearly 20 years and have a house and all the other things that a fortunate person my age may have accumulated over the years.

With all this coming and going, to-ing and fro-ing, three "vexed institutions" - The United States, France and Japan - have set their bureaucraties to making me, in the words of James C. Scott, "legible".

What does that mean?  It means that for a state to fulfill its functions people must be defined in particular ways in order for the state to provide certain services and to tax and maintain public order.  Whether this is nefarious or benevolent depends both on the nature of the states(s) involved and on the temperament and perceptions of the individual concerned.

I was born in a hospital near but not in the city of Seattle in the state of Washington in the United States of America.  A Certificate of Live Birth certifying this fact and giving the names of my parents was filed with the local authorities.  This was the first and perhaps the most important document for all the nation-states I have encountered in my life -  this bit of paper stating that I was born in this place to these parents.  And by the laws of the United States in the year 1965 this paper establishes that I am a citizen of the United States by jus soli.

Which, if one examines the history of the place where I was born, was not a given.  In the 19th century this area was not part of the United States of America.  European countries claimed the part of the world where I was born:  Spain, Russia and Great Britain,  These claims were disconcerting (and deadly) to the tribes and peoples who already inhabited this land:

The various claims were more or less resolved by 1846 but the territory was oly officially recognized by the US in 1853 and did not become a state (the State of Washington)  until 1889.  So this region only became legible (with clear borders and boundaries) to the United States a mere 75 years (one or two generations) before I was born.   Think for a moment about what that implies;  prior to 1889 (or 1853 if you prefer) the settlers in this area were ALL emigrants/immigrants whether they came from Wisconsin, USA or Trondheim, Norway.  The area into which they arrived in the early part of the 19th century had, for the most part, no established government and was most certainly not under the authority of the United States:  no tax office, no border patrols, no immigration authority, no police force, and no authority that could issue such things as official birth certificates.   But they made do:
"Since – in the beginning – Congress paid little attention to the small settlements, they followed the example of earlier pioneer communities and made their own government. On July 5, 1843 in an old barn belonging to one of the missions, the settlers of the Willamette Valley by a vote of 52 to 50 drafted a constitution “for the purposes of mutual protection and to secure peace and prosperity among ourselves … until such time as the United States of America extend their jurisdiction over us” (Boorstin, 244)."
Imagine how it might have been otherwise.  What if Great Britain had not ceded the territory to the US?  I might have been born a British/Canadian citizen and not American at all.  And had I been born a generation or two before the US extended jurisdiction to this area, I would not have a birth certificate at all - only (perhaps) a family bible or a certificate of baptism.

In 1965 American authority over this region had been firmly established, but my birth was documented not by the US federal government but by the local government, King County.  For as long as I have lived outside the country obtaining a birth certificate has meant applying to them, and not to the US embassy or any other federal authority.

Over the years the information that certificate of live birth has changed and this has to do with the shifting boundaries of local authority.  In 1965 Iwas born in an area outside of Seattle that was an "unincorporated" area which mean that it was not attached to the city of Seattle or any other city in the area.  So in the past 20 years or so different copies of my birth certificate give different places of birth.  For a time it was "Seattle" and now it is simply "King County".

This has posed an interesting problem for my legal status outside the United States.  How can I have been born in Seattle according to one set of birth certificates and then in King County in others?  To understand why that change was made one would have to know the changing history of what is (even in the Seattle area) a pretty insignificant part of the world of little concern to the US government and of no concern at all to the French.

But one must be made legible, right?  The solution of the US federal government on my passport and of the French authorities on my Carte de resident has been to drop any mention of city or county and to simply put "Washington" as my place of birth - a solution that leads to many misunderstandings because the "Washington" that most people in and outside of the US know is the capital city, Washington, D.C.

James C. Scott sees "legibility as a central problem in statecraft."  In premodern times, he says, states were blind when it came to their subjects.  Clear borders and jurisdiction, family names and social security numbers, places of birth and established places of residence with addresses are relatively recent and were created by men (and women) to manage other men and did not "successfully represent the actual activity of the society..."

States are still blind in so many ways.  Their information is limited and is nothing more than simplified slices of  how societies function.  Even today states cannot capture all the economic activity in their own territories in order to tax it or control their borders to their own citizens' satisfaction. Cigarette smuggling is rampant in France. In the US there are still many many areas where someone can live "off the grid" or slip out of the country into Canada or Mexico.

Almost everywhere in the world where states demand documents, those documents can be forged.  I predict that one result of the US State Department's decision to charge over 2,000 USD for a US Certificate of Loss of Nationality will be the rise of an industry that will offer good copies for a reasonable price.  In short, all of the established ways of making people "legible" are problematic within a national territory and break down even more in the face of human migration in and out of different areas of authority.

A lot in there to vex various nation-states.  Or at least to make them a bit anxious.  What might these states do to make their citizens at home and abroad more "legible"?  What would be their motives for doing so?  Security is probably the most compelling reason. But another is, to put it very crudely, resource extraction (taxes).  How might these citizens abroad react to a distant state's assertion of sovereignty? How might diasporas and citizens living in other jurisdictions react to such an attempt?  Avoidance, most likely - the time-honored "weapon of the weak" used by emigrants everywhere from peasants to computer programmers.

All things I'll be thinking about for whatever time I have remaining.

Looking forward to it.

Sunday, October 11, 2015

Riener versus Bulgaria

On August 28, 1997 Ms. Ianka Riener filed complaint  46343/99 against Bulgaria with the European Commission of Human Rights.  Almost 10 years later, the final judgement in the case was handed down by the European Court of Human Rights (Fifth Section).

That's a long time to wait for justice.

The story is a convoluted one that started with a tax dispute which led to a passport seizure and a travel ban that lasted for years.  The bare facts are that Bulgaria claimed that Ms. Riener owed taxes and then prevented her from leaving Bulgaria until those taxes were paid.  How you might feel about these facts depends greatly on how you feel about such things as "tax justice" versus "freedom of movement".

The irony here is that the story pretty much ended before the ECHR ruled:  Bulgaria dropped its claim against Ms. Riener for back taxes and lifted the travel ban in 2004, two years before the ECHR's judgement dated May 23, 2006.

So what was complaint  46343/99 all about?  Ms Riener, a dual Austrian/Bulgarian citizen, claimed that Bulgaria violated her rights under the Convention for the Protection of Human Rights and Fundamental Freedoms when it prevented her from leaving Bulgaria  Specifically, she alleged that she was denied her rights under Article 8, Article 13 and Article 2  (Protocol No. 4)  - Freedom of movement which says:
"Everyone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement and freedom to choose his residence.
Everyone shall be free to leave any country, including his own.
No restrictions shall be placed on the exercise of these rights other than such as are in accordance with law and are necessary in a democratic society in the interests of national security or public safety, for the maintenance of ordre public, for the prevention of crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.
The rights set forth in paragraph 1 may also be subject, in particular areas, to restrictions imposed in accordance with law and justified by the public interest in a democratic society."
Ms. Riener was born in Bulgaria in 1946 but moved to Austria and became an Austrian citizen in 1989.  Her daughter and grandchildren lived in Austria but in 1991 Ms. Riener was living in Bulgaria where she ran a coffee import business registered in both Austria and Bulgaria.   The trouble began with a tax dispute.

In 1992 the Bulgarian authorities "found that the applicant owed 26,494,582 “old” Bulgarian levs (“BGL”) of unpaid excise tax and BGL 4,104,925 of interest (the total amount due having been at the time the equivalent of about 1 million United States dollars (“USD”). The applicant’s ensuing appeals were dismissed on 20 August 1992 by the Sofia fiscal authority and on 7 April 1993, after a hearing on the matter, by the Sofia City Court. On 7 October 1994 the Supreme Court dismissed the applicant’s petition for review (cassation) of the above decisions."

In 1995, the year that Bulgaria formally applied for EU membership,  the Bulgarian fiscal authorities asked the Passport Department at the Directorate of the Police to impose a travel ban on Ms. Riener until her tax debt was paid.  In the same year, when Ms. Riener attempted to leave Bulgaria for Greece, her Austrian passport was seized at the border and she was not allowed to leave the country.  Since she did not have a Bulgarian passport the seizure of her sole passport meant that she had no travel documents at all and could not leave Bulgaria.  She appealed the travel ban and in 1996 the Sofia City Court ruled against her:
"It found that the applicant’s obligation to pay a significant amount in taxes, as established by the courts, was a sufficient ground, under section 7(e) of the Passport Law, to seize any passport which is used for international travel. Unpaid tax was also a ground to impose a prohibition against leaving Bulgaria under section 29(1)(v) of the Law on Sojourn of Aliens. Although this provision did not provide expressly for a confiscation of a foreign passport, if applied in conjunction with the relevant regulations, it clearly allowed such measure in respect of a person against whom there had been a
decision prohibiting his departure from Bulgaria."
Bulgaria argued that unpaid tax obligations were sufficient to override Ms. Riener's right to leave the country.  Note that Ms. Riener did not agree with the tax assessment in the first place.  She claimed that "the Bulgarian authorities had failed to distinguish between her activities as a physical person engaged in commerce and her position as manager of the Austrian company she owned. That had resulted in wrong assessment of her tax liability. In reality she did not owe taxes."

Not surprisingly the Bulgarian government saw things a bit differently. "The Government stated that the measures against the applicant had been lawful and necessary in a democratic society for the maintenance of ordre public and the protection of the rights and freedoms of others. Emphasising that the applicant had owed significant amounts in taxes and had refused to pay, contesting her debt, the Government considered that the measure against the applicant had been imposed on an individual basis, taking into account her behaviour."

So how did the Court rule?  The right to leave a country is not unconditional and Article 2 makes that very clear. But a State does not have unlimited freedom to override the right to freedom of movement by citing public order or the interests of a democratic society.
"Any measure restricting that right must be lawful, pursue one of the legitimate aims referred to in the third paragraph of the above-mentioned Convention provision and strike a fair balance between the public interest and the  individual’s rights." 
In other words a State must have a very good reason to deny an individual freedom of movement and that reason must be in pursuit of a specific goal outlined in Article 2. And finally, fairness and proportionality must also be considered.

Tax obligations can be a reason to consider denying freedom of movement and the Court noted that there are States that do have such laws.  But it is the ultimate aim of such a denial that makes all the difference here.  A travel ban, said the Court, cannot be a de facto punishment for not meeting one's tax obligations.  The goal must be recovery of the debt. 

And here Bulgaria fell short.  The Court decided that Bulgarian tax authorities had not "actively sought to collect the debt, either before or after the entry into force for Bulgaria of Protocol No. 4 to the Convention."  The Bulgarian authorities simply renewed the travel ban year after year and ''the periodic 'confirmations' of the travel ban were not based on analysis of the applicant’s attitude, on information about her resources or any concrete indication that the chances for recovery would be jeopardised if she were allowed to leave the country."

The authorities, said the Court, have a duty "to take appropriate care that any interference with the right to leave one’s country should be justified and proportionate throughout its duration, in the
individual circumstances of the case. It notes in this context that in the domestic law of a number of member states prohibitions against leaving the country for unpaid taxes can only be imposed if there are concrete reasons to believe that the person concerned would evade payment if allowed to
travel abroad."

So it's not so simple as sending a dunning letter, revoking or seizing a passport, and then waiting until the individual suffers, complies and pays. The State must justify its decision and continue to do so with fairness and proportionality in mind:  Is the aim legitimate?  Are the means used to achieve it necessary and reasonable?
"In sum, having regard to the automatic nature of the travel ban, the
authorities failure to give due consideration to the principle of
proportionality, the lack of clarity in the relevant law and practice with
regard to some of the relevant issues and the fact that the prohibition against
the applicant leaving Bulgaria was maintained over a lengthy period, the
Court considers that it was disproportionate to the aim pursued. It follows
that has been a violation of the applicant’s right to leave any country, as
guaranteed by Article 2 § 2 of Protocol No. 4."
I like the Court's reasoning.  Travel bans and passport seizures exist or have been proposed as tools in the "war against tax evasion".  What the proponents of such measures forget is that States are powerful and they do abuse that power. That is not an anti-government stance - it is a fact.  Whatever the merits of the tax case against Ms. Riener she still had rights and the State had a responsibility to be respectful of those rights.  

Ms. Riener was awarded 10,000 Euros by the Court which is not much when one considers that she spent years as a captive citizen of a country she wanted to leave and whose citizenship she tried to renounce four times.  Bulgaria didn't come out of it too well either;  not only did the Court rule against them in 2006, in 2004  the Bulgarian fiscal authorities determined that their right to seek the collection of the debt under local law was no longer valid which meant that the only legitimate aim (recovery of the debt) was not served by keeping Ms. Riener in Bulgaria.  

Thursday, September 24, 2015

Are There Limits to the Right to Change One's Nationality?


Just as there are no universally accepted standards for the attribution of nationality, there are no universal standards governing loss of nationality initiated by a citizen or subject.  The European Convention on Nationality, for example, does not have the same standards as US citizenship law.   States are jealous guardians of their sovereignty when it comes to deciding the conditions, rules, and procedures surrounding a citizen who wishes to change his or state allegiance.  States reserve the right to deny such a request under certain circumstances.

These circumstances are not consistent from one state to another.  Some states restrict the right to change one's nationality if an individual is trying to avoid military service or tax obligations. Kay Hailbronner writes that Austria will not release a citizen if  a criminal procedure or execution of a criminal sentence is pending.  German citizens, she says, who are "officials, judges, military personnel and other persons employed in a professional or official capacity" can also be denied the right to renounce.  Canada has six requirements, one of which concerns national security;  the individual cannot be "a threat to Canada’s security or part of a pattern of criminal activity."  US law permits a US citizen to renounce even if he or she becomes stateless as a result - something most states do not allow.   Luxembourg, the Netherlands and Portugal, according to Gerard-René de Groot and Maarten Peter Vink, do not even require residence outside the country in order to renounce as long as the renunciant has another citizenship.

What this cursory review reveals is while that most liberal democracies agree in principle with the right to expatriate, do not wish to be seen as keeping their citizens captive,  and have procedures and processes in place to allow their citizens/subjects to exercise that right, they do not see it as an absolute right under international law.  Serena Forlati sums up the state perspective well when she writes, "the role of the individual's choices needs to be balanced against the possibly competing interests of the state whose nationality is to be renounced..."

Finding that balance is not easy.  One might even say that it's a work in progress.  There are other more pressing citizenship topics on the international agenda;  statelessness, for example, or involuntary loss of nationality.

But there is one convention, The European Convention on Nationality (ECN),  that is a bit more explicit than the UNDHR about both conditions for voluntary loss of nationality and the limits on state power over renunciants.

The European Convention on Nationality Article 8 has two explicit limitations on the right to renounce one's nationality:

"Each State Party shall permit the renunciation of its nationality provided the persons concerned do not thereby become stateless.
However, a State Party may provide in its internal law that renunciation may be effected only by nationals who are habitually resident abroad."

In the Explanatory Report  of the ECN they directly address the question of renunciation and outstanding citizenship obligations and say:   "It is not acceptable under Article 8 to deny the renunciation of nationality merely because persons habitually resident in another State still have military obligations in the country of origin or because civil or penal proceedings may be pending against a person in that country of origin. Civil or penal proceedings are independent of nationality and can proceed normally even if the person renounces his or her nationality of origin."

And finally in Chapter IV the ECN places boundaries around European states' nationality procedures and processes:

"Each State Party shall ensure that:

1.   applications relating to the acquisition, retention, loss, recovery or certification of its nationality be processed within a reasonable time;

2.   decisions relating to the acquisition, retention, loss, recovery or certification of its nationality contain reasons in writing;

3. decisions relating to the acquisition, retention, loss, recovery or certification of its nationality be open to an administrative or judicial review in conformity with its internal law;

4. the fees for the acquisition, retention, loss, recovery or certification of its nationality be reasonable;

5. the fees for an administrative or judicial review be not an obstacle for applicants."

A reasonable balancing of states' versus citizens' rights?  I thought so, but I note that some European countries have not signed it and quite a few that did, did so with reservations.   

A convention is one thing, how it is implemented in law  and interpreted and applied by the courts is another.  In the next post let's look at one case I saw cited in numerous places: Riener v. Bulgaria  (European Court of Human Rights).  This is a case where a dual citizen, was 1.  denied the right to leave a country of citizenship and 2. refused renunciation. And yes, citizenship obligations (taxes) were an issue in this case.