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Published: Fri, 02 Feb 2018
The concept of nationality is important
The concept of nationality is important since it determines the benefits to which person may be entitled and the obligation such as conscription which they must perform. The problem is that there is no coherent accepted definition of nationality in international law and only confliction description under the different municipal laws of states, not only that but the rights and duties attendant upon nationality vary from state to state.
By the virtue of nationality, a person becomes entitled to a series of rights ranging from obtaining a valid passport enabling travel abroad to being able to vote, and nationals are also entitled to the protection of their state and to various benefits prescribed under international law.
A case which illustrates the point on one of the many incidences of nationality is that of Nottebohm. The International Court of Justice (ICJ) has dealt with nottebohm cases which have some relevance to the question of the nationality of ships.
Nottebohm case concerned the question of whether Liechtenstein could exercise diplomatic Protection on behalf of one of its nationals, Mr Nottebohm, in respect of certain acts committed by Guatemala against him which were alleged to be breaches of international law.
In brief Nottebohm had been born in Germany in 1881. He possessed German nationality, but from1905 had spent much of his life in Guatemala which he had made the headquarters of hisbusiness activities. He obtained Liechtenstein nationality through naturalisation in 1939. His connections with that country were slight, being limited to a few visits to a brother who lived there. At the outset the Court made it clear that it was not concerned with the law of nationality in general, but only with the question of whether Liechtenstein could exercise diplomatic protection in respect of Nottebohm vis à vis Guatemala.
The Court noted that while under international law it was up to each State to lay down rules governing the grant of its nationality,a State could not claim that, The rules it has thus laid down are entitled to recognition by another state unless it has acted in conformity with this general aim of making the legal bond of nationality accord with the individual’s genuine connection with the State which assumes the defence of its citizens by means of protection as against other States.
The Court said in this case that nationality is a legal bond having as its basis a social fact of attachment, a genuine connection of existence, interests and sentiments, together with the existence of reciprocal rights and duties.
The Court found on the facts that there was insufficient connection between Nottebohm and Liechtenstein for the latter to be able to exercise diplomatic protection on Nottebohm’s behalf vis a vis Guatemala.
In this project the researcher discuss the principle of nationality with the help of Nottebohm case and the impact of globalization on nationality in international law.
Liechtenstein V Guatemala
Nottebohm was born in Hamburg and held German nationality by birth.In 1905, he went to Guatemala, took up residence there and made that country the headquarters of his business activities. He had business connections in Germany and sometimes went there on business, He also paid a few visits to a brother who had lived in Liechtenstein since 1931, in 1939, Nottebohm applied for admission as a national of Liechtenstein. His request was granted and his passport was issued, the three years residence requirement being waived. Nottebohm returned to Guatemala and when Guatemala later declared war on Germany he was interned his property confiscated. In 1951, the government of Liechtenstein instituted proceedings before the international court of justice in which it claimed restitution and compensation on the ground that the government of Guatemala had acted toward the person and property of Mr Friedrich Nottebohm, a citizen of Liechtenstein, in a manner contrary to international law.
It is for Liechtenstein, as it is for every sovereign state , to settle by its own legislation the rules relating to the acquisition of its nationality ,and to confer that nationality by naturalisation granted by its own organs in accordance with that legislation. It is not necessary to determine whether international law imposes any limitations on its freedom of decision in this domain. furthermore, nationality has its most immediate, its most far reaching and for most people its only effects within the legal system of the state conferring it, nationality serves above all to determine that the person upon whom it is conferred enjoys the right and is bound by the obligation which the law of the state in question grants to or imposes on its nationals. This is implied in the wider concept that nationality is within the domestic jurisdiction of the state.
But, the issue which the court must decide is not one which pertains to the legal system of Liechtenstein. It does not depend on the law or on the decision of Liechtenstein whether that state is entitled to exercise its protection in the case under consideration. To exercise protection, to apply to the court , is to place oneself on the plane of international law. It is international law which determines whether a state is entitled to exercise protection and to seise the court.
The naturalisation of nottebohm was an act performed by Liechtenstein in the exercise of its domestic jurisdiction. The question to be decided is whether that act has the international effect here under consideration.
International practice provides many examples of acts performed by state in the exercise of their domestic jurisdiction which do not necessarily or automatically have international effect, which are not necessarily and automatically binding on other states or which are binding on them only subject to certain condition, this is the case for instance of a judgement given by the competent court of a state which it is sought to invoke in another state.
In the present case , it is necessary to determine whether the naturalisation conferred on nottebohm can be successfully invoked against Guatemala, whether as has already been stated, it can be relied upon as against that state , so that Liechtenstein is against that state , so that Liechtenstein is thereby entitled to exercise its protection in favour of nottebohm against Guatemala .
International arbitrators have decided numerous cases of dual nationality, where the question arose with regard to exercise of protection. They have given their preference to the real and effective nationality, that which accorded with the facts that based on stronger factual ties between the person concerned and one of the 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 is an important factor, but there are other factor such as 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.
Similarly , the courts of third states, when they have before them an individual whom two other states hold to be their national, seek to resolve the conflict by having recourse to international criteria and their prevailing tendency is to prefer the real and effective nationality,
The same tendency prevail in the writing of publicists and in practice, this notion is inherent in the provision of art 3 para 2 of the statue of the court, national laws reflects this tendency when inter alia they make naturalisation dependent on condition indications indication the existence of a link, which may vary in their purpose or in their nature, but which are essentially concerned with this idea. The Liechtenstein law of 4 January 1934 is a good example,
The practice of certain states which refrain from exercising protection in favour of a naturalised person when the latter has in fact, by his prolonged absence, served his links with what is no longer for him anything but his nominal country, manifests the view of these states that, in order to be capable of being invoked against another state, nationality must correspond with the factual situation.
The character thus recognised on the international level as pertaining to nationality is in no way inconsistent with the fact to lay down the rules governing the grant of its own nationality. the reason for this is that the diversity of demographic condition has thus far made it impossible for any general agreement to be reached on the rules relating to nationality , although the latter by its very nature affects international relations. It has been considered that the best way of making such rules accord with the varying demographic condition in different countries is to leave the fixing of such rules to the competence of each state. On the other hand, a state cannot claim that the rules it has thus laid down are entitled to recognition by another state unless it has acted in conformity with this general aim of making the legal bond if nationality accord with the individual’s genuine connection with the state which assumes the defence of its citizens by means of protection as against other states.
The requirement that such a concordance must exist is to be found in the studies carried on in the course of the last thirty years upon the initiative and under the auspices of the league of nation and the united nations. It explains the provision which the conference for the codificationof international law,held at the hague in 1930,inserted in art 1 of the convention relating to the conflict of nationality laws,laying down that the law enacted by a state for the purpose of determining who are its nationals”shall be recognised by other states in so far as it is consistent with international custom and the principles of law generally recognised with regard to nationality “in the same soirit arti 5 of the convention refers to criteria of the individual’s genuine connections for the purpose of resolving questions of dual nationality which arise in third states.
According to practice of states , to arbitral and judicial decisions and to the opinions of writers, nationality is a legal bond having as its basis a social fact of attachment ,a genuine connection of existence , interest and sentiments,together with the existence of reciprocal rights and duties. It may be said to constitute the juridical expression of the fact that the individual upon whom it is conferred, either of an act of the authorities,is in fact more closely connected with the population of the state conferring nationality than with that of any other state. Conferred by a state , it only entitles that state to exercise protection vis a vis another state, if it constitutes a translation intojuridical terms of the individual’s connection with the state which has made him its national.
diplomatic protection and protection by means of intenational judicial proceedings constitute measures for the defence of the rights of the state, as the permanent court of international justice has said and has repeated, by taking saidand has repeated, by taking up the case of one of its subjects and by resorting to diplomatic action or international,judicial proceedings on his behalf , a state is in reality asserting its own rights- its right to ensure , in the person of its subjects ,respect for the rules of international
since this is the character which nationality must present when it is invoked to furnish the state which has granted it with a title to the exercise of protection and to the institution of international judicial proceedings, the court must ascertain whether the nationality granted to nottebohm by means of naturalisation is of this character or in other words , whether the factual connection between nottebohm and Liechtenstein in the period preceding , contemporaneous with and following his naturalistion appears to be sufficienty close , so preponderant in relation to any connection which may have existed between him and regard the nationality conferred upon him as real and effective,a s the exact juridical expression of a social fact of a connection which existed previously or came into existence thereafter.
In the above case the international court of justice in reduced the concept of effective nationality requiring that, for the granting of nationality to be recognised by other states the existence of a genuine link between an individual and the state granting naturalisation is necessary. The ICJ confirmed on the one hand that the matter of nationality is within the exclusive competence of a state and on the other hand that other state are entitled to challenge the grant of nationality unless there is a genuine connection between the individual concerned and the stae conferring its nationality upon him.
In the context of the nottebohm case it is important to emphasise that the court was particularly influenced by two factors first by a letter from the German foreign office of 4th july 1939 stating that German interests may require that some of its citizen may acquire foreign nationality and for that reason their request for denationalisation, as well as subsequent renaturalisation should be facilitated and looked upon favourable ,second nottebohm was an active member of the nazi party and as such was on the British and the US blacklist.
It seems that the judgement of the ICJ in the nottebohm case concerned exceptional circumstances. The concept of effective nationality has been called into question by both state practice and subsequent decisions of international courts and tribunal . for any state to have its naturalisation process challenged by another state is an unwelcome interference in its internal affairs,entailing a judgement of another state on its domestic legislation in a matter which ,being a manifestation of national soverginity ,is jealousy guarded by any state.
Bye 11 votes three the court held that Liechtenstein was not entitled to exercise diplomatic protection and present a claim to the court on behal of nottebohm .the right of protection arises only where there is a genuine link between the climant state and its national,and there was no genuine link between nottebohm and Liechtenstein,.
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