(Dual National) Politicians – between “Pure-Bloods” and “Half-Bloods”

Last week, Ignazio Cassis became one of the Swiss federal councilors – after having surrendered his Italian passport in the weeks before the election. Simultaneously, in Australia several parliamentarians had to relinquish their seat, because it turned out that they had dual citizenship. Thinking about dual citizenship of elected politicians, four points are to be considered: “awareness” and the “possibility to renounce” where a prohibition for dual citizens to run for office is in force, as well as “loyalty” and “representation”, the basic arguments used when creating such prohibitions.

Thus, is it fair to demand of elected politicians to surrender their foreign passport and renounce their dual citizenship? No, it is not. Prohibiting dual citizens from running for election and from holding office is discriminatory. Furthermore, it is dangerous and possibly entirely counterproductive. To explain this, let me start with a reference to the Australian High Court order of 27 October 2017 concerning the qualification or disqualification of a candidate for parliament because of their dual citizenship.

The Australian High Court stated that “proof of a candidate’s knowledge of his or her foreign citizenship status […] is not necessary to bring about the disqualifying operation of s 44(i)” (para. 71). The disqualifying element would not apply “where the operation of the foreign law is contrary to the constitutional imperative that an Australian citizen not be irremediably prevented by foreign law from participation in representative government” (para. 72). A situation is “irremediably”, “where it can be demonstrated that the person has taken all steps that are reasonably required by the foreign law to renounce his or her citizenship and within his or her power”.

Imagine that a small island state – that does not care about its diplomatic relations with Australia – would grant its citizenship ex lege to any person running for office in Australia, and makes this known in the Australian news outlets. The fee for renouncing this citizenship would be $10.000. The persons would be aware of this citizenship and the fee makes the situation “remediable”. With this simple act, no elections are possible in Australia until sufficient candidates have paid the fee. Thus, until that moment, it is also impossible to change the Australian Constitution, which is the basis of the problem.

The decision of the Australian High Court touches the two, above-mentioned, points “awareness of” of and “the possibility to renounce” a citizenship in an exemplary manner.

Awareness

In the Australian High Court case, many of the applicants were unaware of their dual citizenship, and the court decided that they should have made certain that they had lost their previous nationality, or that they had never acquired it in the first place. This leads to the question: how can you be certain that you are not a dual national?

Does a person whose parent comes from a state that was succeeded by multiple states have to prove that (s)he is not a citizen of any of these states? Does a person with Jewish ancestry have to prove somehow that his direct relatives in ascending line for two generations did not travel to Israel, and did not acquire Israeli citizenship under the Law of Return, which might have been passed on? There are innumerable ways in which a person could have acquired a nationality, especially via descent.

In the High Court case, one of the issues concerned the possible acquisition of Italian nationality via the mother, who in turn had acquired it from her mother based on an Italian Constitutional Court decision of 1983 on gender equality in nationality transmission, which had retroactive effect. One can imagine that a person might not be aware of this, except if (s)he would retain ties to the country of origin after having been naturalized.

This is, thus, a situation, which can only affect persons who have migrated or whose family has a migration background. It especially affects “mixed families”, where multiple countries of origin are represented. Only a so-called “pure blood” could, without making extensive research, state with certainty that (s)he is not a dual citizen. Persons with a migration background would have many difficulties to make such a statement and therefore be “mud-bloods” or “half-bloods”. Such a distinction cannot be tolerated.

Renouncement Can Be Difficult

Renouncement is not as simple as making a declaration. In some states, it is also simply not possible.

If there is an absolute ban of dual citizens holding office, any person who also has the nationality of a country that does not allow renouncement can never run for office, even if (s)he wanted to renounce the other nationality. Take again the Australian example: persons from these countries would have the right to run for office as the situation is “irremediable” and they have done everything in their power to lose this other nationality. If this were not possible, it would be direct discrimination based on nationality or origin.

The danger of having the requirement of renouncement is especially pronounced where it concerns countries that do allow for renouncement. The problem is that the declaration might have to be accepted by a committee or by a minister of the other state and might involve a payment and/or exit tax which might be extremely high (as would be the case in the US). If a person wants to run for office and has to first renounce the other nationality, that country is in the perfect position to make future loyalty or favors conditional for the certificate of loss of nationality.

Loyalty and Representation

This brings me to the more general considerations of loyalty and representation.

What is loyalty to a country? Loyalty is nothing more than that one refrains from doing something that harms the interest of the country (and pay taxes if one lives there or military service for which a special regime for dual nationals already exists). Loyalty does not mean that an act of a person cannot be beneficial to another state. Moreover, a person might always look more favorably on another state, irrespective of whether (s)he has the nationality of that state. It might be heritage, or maybe financial interests. Having the nationality of another state does not necessarily lead to a conflict of interests. Just as not having the nationality of another state does not necessarily exclude a conflict of interests.

If a dual national is elected and acts against the interest of the other state of which he is also a national, what can this state do? Not much more than withdraw his or her nationality. This can be based on either Article 7(1)(c) or (d) of the European Convention on Nationality – which allows withdrawal of nationality due to voluntary service in a foreign military force or conduct seriously prejudicial to the vital interests of the State – or Article 8(3) of the 1961 Convention, which has the same meaning.

If a person were to hold property in another state, the issue would be far more problematic, as this would directly affect the person herself or himself, as Barbara von Rütte also stated in her post of this series.

A person is elected to represent the interests of her or his constituency. That this person also has the nationality of another state does not make the person an elected representative of the other country, nor does (s)he represent nationals of the other country. It is therefore simply a question of professionalism and following a code of conduct in cases of conflict of interests, not a matter of nationality.

Refrain from Using Other Citizen’s Rights

Rainer Bauböck stated that one can expect elected officials to refrain from using the other citizenship, such as voting in the other state of nationality. I disagree with this to a certain extent.

For example, if the other state has a voting obligation, one cannot expect the elected official to refrain from doing this. As far as I am aware, everywhere in the world, one has to show a clean criminal record in order to be eligible for an elected office. It would be rather paradoxical to imagine somebody’s non-voting would trigger a criminal punishment that would make them ineligible to run once again for the office they are currently holding.

Or from an EU perspective: one cannot expect a third country national who also has the nationality of an EU Member State – but is an elected official of the third country – to apply for a visa to enter an EU Member State. A Member State may not even accept such a dual national’s application for a visa as it is, based on the Micheletti case, under an obligation to give effect to the Member State’s nationality and therefore, grant access to its territory immediately.

To Sum It Up

The Australian High Court seems to have a double standard for dual citizenship of politicians. On the one hand, one should have dissolved all ties with the country of origin; on the other hand, one should be fully aware of what happens in the nationality laws of all the countries one might theoretically have a tie with, thus retaining a connection to it.

In general, dual citizenship should not be treated as a liability, but as an advantage. Of course, there might be conflicting interests. However, these may also exist in any other situation. One does not oblige a person who wants to get elected to liquidate any assets (s)he owns in other states, so why would one require the person to renounce a nationality. There are rules on conflict of interests that should simply be taken into account.

David de Groot
Doctoral student, nccr – on the move, University of Bern

On 1 November 2017, Ignazio Cassis became one of the seven Swiss federal councilors. His election is historical, as Cassis is the first member of the Federal Council not to have had Swiss citizenship at birth and he could have been the first member of the Federal Council with dual citizenship – if he hadn’t decided to renounce his Italian citizenship in the months preceding the election. The nccr – on the move publishes a short series of blog posts reflecting on legal and political questions concerning elected politicians with dual citizenship.