Sunday, 25 November 2012

Obama's expressions about citizenship

Peter Spiro has thought a lot about citizenship, and it is interesting what he picks up on from Obama's speech in Burma:  the President has a view of citizenship that is out of an "old playbook," because the alternative, based in human rights, is so politically sensitive:
President Obama’s visit to Burma/Mynamar has centered the status of the country’s Muslim minority Rohingya community which has been denied Burmese citizenship notwithstanding their historical presence in the country. .... Obama’s speech today welcomed recent steps by the Burmese government “to address the issues of injustice and accountability, and humanitarian access and citizenship.” Obama then focused on citizenship at length: 
"Every nation struggles to define citizenship. ... But what we’ve learned in the United States is that there are certain principles that are universal... Only the people of this country ultimately can define your union, can define what it means to be a citizen of this country. ...Every human being within these borders is a part of your nation’s story, and you should embrace that." 
He concluded: “we have an expression in the United States that the most important office in a democracy is the office of citizen — not President, not Speaker, but citizen.” 
Spiro notes the territorial nature of Obama's view, which he says is
"not so surprising out of the super-strong American tradition of jus soli. That’s also consistent with an emerging international law perspective on these questions, which sees habitual residence as giving rise to a right of access to citizenship. The Rohingya situation in Burma is exceptional in rejecting this norm (the Bedoons in Kuwait and Nubians in Kenya are other examples). 
But Obama didn’t seem quite willing to turn to international law as the source of an obligation on this score. ”Only the people of this country ultimately can define your union, can define what it means to be a citizen of this country.” That’s out of the old playbook in which nationality is a matter ultimately of sovereign discretion. He was more in a “leading by example” posture than a tougher one under which Burma has no choice but to fall in line. Leave the latter argument to the human rights heavyweights.
This is an interesting discussion in its own right, but it has application to tax law & policy because issues about citizenship crop up time and time again in taxation, as we try to determine and justify national expressions of jurisdiction over the person, almost always--except in the case of the US--based on assertions about physical location that are almost if not wholly arbitrary, and increasingly pressured by globalization.  The US position, taxing its citizens wherever located, annoys and angers a lot of people (notably, americans living abroad).  But I have yet to identify principles that would explain the appropriateness of either the inclusion or exclusion of a person in the taxpayer category on the basis of citizenship.  Practice, history, assertions by government, yes, but principles?  No.

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