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The Relations of Nationality

(p. 509) 23  The Relations of Nationality

1.  Introduction

(A)  The Doctrine of the Freedom of States in Matters of Nationality1

It is widely thought that states have general freedom of action in matters of nationality. For example in Nationality Decrees Issued in Tunis and Morocco the Permanent Court said:

The question whether a certain matter is or is not solely within the jurisdiction of a State is an essentially relative question; it depends upon the development of international relations. Thus, in the present state of international law, questions of nationality are, in the opinion of this Court, in principle within this reserved domain.2

Or as ILC Special Rapporteur Manley Hudson put it, ‘[i]n principle, questions of nationality fall within the domestic jurisdiction of each state’.3

There are compelling objections of principle to the doctrine of the complete freedom of states in the present context. Before these are considered it is necessary to recall the significance of nationality in the law. First a state whose national has suffered an injury caused by an internationally wrongful act of another state may exercise diplomatic protection.4 Secondly, numerous duties of states in relation to war and neutrality, resting for the most part on customary law, are framed in terms of the acts or(p. 510) omissions by nationals which states should prevent and, in some cases, punish. Thirdly, aliens on the territory of a state produce a complex of legal relations consequent on their status of non-nationals. Governmental acts may give rise to questions of international responsibility when they affect aliens or their property. Aliens may be expelled for sufficient cause and their home state is bound to receive them. Many states will not extradite their nationals. Fourthly, nationality provides a regular basis for the exercise of civil and criminal jurisdiction and this even in respect of acts committed abroad (see chapter 21).

(B)  The Structural Problem

Nationality involves the assignment of persons to states, and regarded in this way resembles the law relating to territorial sovereignty.5 National law prescribes the extent of the territory of a state, but this prescription does not preclude an international forum from deciding questions of title in its own way, using criteria of international law. A sovereignty in principle unlimited by the existence of other states is ridiculous. For instance, as regards the delimitation of the territorial sea, the Court in Anglo-Norwegian Fisheries allowed that in regard to rugged coasts the coastal state is in the best position to appraise the local conditions dictating the selection of baselines, but the Court did not support complete autonomy.6 The conferral of nationality as a status is in this respect akin to a process of delimitation.

It is important to avoid relying on abstract statements purporting to establish the boundaries of the reserved domain.7 Everything depends on how a particular issue arises. Nationality is not confined either to the reserved domain or the realm of state relations: in principle it has two aspects, either of which may be dominant depending on the facts and type of dispute. The approach of the International Court in Nottebohm would seem to be perfectly logical in this respect. The Court said:

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 naturalization 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…Nationality serves above all to determine that the person upon whom it is conferred enjoys the rights and is bound by the obligations 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(p. 511) or on the decision of Liechtenstein whether that State is entitled to exercise its protection…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.8

Similarly, Article 3 of the European Convention on Nationality of 1997 provides:

Each State shall determine under its own law who are its nationals. This law shall be accepted by other States in so far as it is consistent with applicable international conventions, customary international law and principles of law generally recognised with regard to nationality.9

(C)  Common Criteria for Nationality10

The two main principles on which nationality has traditionally been based are descent from a national (ius sanguinis) and birth within state territory (ius soli). More recent developments have included giving equal status to men and women in the determination of nationality, and providing reinforced guarantees against statelessness, both trends underwritten by multilateral treaties.11 Except for the presumption against statelessness (where the iussoliapplies in case of doubt), it is incorrect to regard the two principles as mutually exclusive: in varying degrees the law of a large number of states rests on both.12 A common special stipulation is that children born to non-nationals who are members of diplomatic and consular missions do not thereby acquire the nationality of the receiving state.13

The Harvard Research draft refers to ‘territory or a place assimilated thereto’, and states have generally applied the principle of the ius soli to birth on ships and aircraft registered under the flag.14 Where apparent conflict may arise, as in the case of birth on a foreign ship in territorial waters, it seems clear that the child does not in principle acquire ipso facto the nationality of the littoral state.15

(p. 512) The position as regards naturalization is stated as follows by Weis:

Naturalisation in the narrower sense may be defined as the grant of nationality to an alien by a formal act, on an application made for the specific purpose by the alien…It is generally recognised as a mode of acquiring nationality. The conditions to be complied with for the grant of naturalisation vary from country to country, but residence for a certain period of time would seem to be a fairly universal requisite.16

Hudson remarks: ‘[n]aturalization must be based on an explicit voluntary act of the individual or of a person acting on his behalf ’.17 Some jurists have concluded that prolonged residence is a precondition for naturalization. But in regard to voluntary naturalization two points must be borne in mind. First, the voluntary nature of the act supplements other social and residential links. Not only is the act voluntary but it is specific: it has that very objective. The element of deliberate association of individual and state is important and should rank with birth and descent, not to mention marriage, legitimation, and adoption. Secondly, while it is true that a considerable number of states allow naturalization on easy terms, the legislation often presents such relaxed conditions as available exceptionally.

Nationality ex necessitate iuris is a convenient notion to analyse a further situation. It is not in all respects satisfactory, since acquisition by marriage, legitimation, and adoption might also be so described. However, the cases to be mentioned are sufficiently clear to justify the concept. For example, there is in the legislation of many countries a provision that a child of parents unknown is presumed to have the nationality of the state where the child is found. In a great many instances it is provided that the rule applies to children born to parents of unknown nationality or who are stateless. The rule as to foundlings appears in the Convention on Certain Questions relating to the Conflict of Nationality Laws, Article 14,18 and in the 1961 Convention on the Reduction of Statelesness, Article 2.19

(D)  Legal Status of the ‘General Principles’

Some at least of the principles considered above are generally recognized as far as the laws of the various states are concerned. But Weis is very cautious in assessing this material in terms of state practice:

Concordance of municipal law does not yet create customary international law; a universal consensus of opinion of States is equally necessary. It is erroneous to attempt to establish rules of international law by methods of comparative law, or even to declare that rules of municipal law of different States which show a certain degree of uniformity are rules of international law.20

(p. 513) This is unexceptionable insofar as the reversal of the statement would result in a proposition much too dogmatic. But Weis underestimates the significance of legislation as evidence of the opinio of states. In the case of the territorial sea, the evidence of state practice available to the ILC was chiefly in the form of legislation, and the comments of governments concentrated on their own legislation.

It might be said that, particularly in the field of nationality, the necessary opinioiuris is lacking; but insistence on clear evidence of this may produce capricious results. The fact is that municipal law overwhelmingly rests on significant links between the individual and the state. Such lack of uniformity as there is in nationality laws is explicable not in terms of a lack of opinio iuris, but by reference to the fact that inevitably municipal law allocates natonality in the first place, and also to the occurrence of numerous permutations and hence possible points of conflict in legislation on a subject-matter so mobile and complex. But in spheres where conflict on the international plane is easily foreseeable, the rules are there to meet the case.

Thus the conclusions of the Court in Nottebohm are not particularly novel. Aft er considering the evidence for the doctrine of the real or effective link,21 the judgment proceeds:

According to the 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, interests 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 directly by the law or as the result 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-à-vis another State, if it constitutes a translation into juridical terms of the individual’s connection with the State which has made him its national.22

2.  The Effective Link Principle and Nottebohm

(A)  Precursors of Nottebohm

Seen in its proper perspective, the decision in Nottebohm is a reflection of a fundamental concept long present in the materials concerning nationality on the international plane. The doctrine of the effective link had already been recognized for some time in continental literature23 and the decisions of some national courts.24 That was(p. 514) commonly in connection with dual nationality, but the particular context does not obscure its role as a general principle with a variety of applications.

In its reply to the Preparatory Committee of the Hague Codification Conference the German government declared that ‘a State has no power…to confer its nationality on all the inhabitants of another State or on all foreigners entering its territory…if the State confers its nationality on the subjects of other States without their request, when the persons concerned are not attached to it by any particular bond, as, for instance, origin, domicile or birth, the States concerned will not be bound to recognize such naturalization’.25 The legislation of states makes general use of residence, domicile, immigration with an intent to remain permanently, and membership of ethnic groups associated with the state territory, as connecting factors. International law has rested on the same principles in dealing with the situations where a state has no nationality legislation or where certain parts of the population fall outside the scope of such legislation. The principle of effective link may be seen to underlie much of the practice on state succession and to support the concept of ressortissant found frequently in treaties.26

(B)  The Decision and its Critics

In Nottebohm Liechtenstein claimed damages in respect of the acts of the government of Guatemala in arresting, detaining, expelling, and refusing to readmit Nottebohm, and in seizing and retaining his property without compensation.27 Guatemala asked the Court to declare the claim inadmissible, in part ‘because Liechtenstein had failed to prove that Nottebohm…properly acquired Liechtenstein nationality in accordance with the law of that Principality’; because anyway that law could not be regarded as ‘in conformity with international law’; and because he appeared ‘in any event not to have lost, or not validly to have lost, his German nationality’. In the final submissions, inadmissibility was also based on ‘the ground that M. Nottebohm appears to have solicited Liechtenstein nationality fraudulently, that is to say, with the sole object of acquiring the status of a neutral national before returning to Guatemala, and without any genuine intention to establish a durable link, excluding German nationality, between the Principality and himself ’.

In its judgment the Court regarded the plea relating to Nottebohm’s nationality as fundamental. The issue was one of admissibility and the Court observed:

In order to decide upon the admissibility of the Application, the Court must ascertain whether the nationality conferred on Nottebohm by Liechtenstein by means of a(p. 515) naturalization which took place in the circumstances which have been described, can be validly invoked as against Guatemala, whether it bestows upon Liechtenstein a sufficient title to the exercise of protection in respect of Nottebohm as against Guatemala…what is involved is not recognition [of acquisition of Liechtenstein nationality] for all purposes but merely for the purposes of the admissibility of the Application, and,…secondly, that what is involved is not recognition by all States but only by Guatemala.28

In the event, having applied the doctrine of the effective link to the facts, the Court held the claim inadmissible. Dissenting judges29 and critics30 have pointed out that Guatemala had not argued the case on the basis that there was no effective link, and also that the precise ratio of the decision was the question of opposability as against Guatemala. This is true, but the effect of such formal arguments in limiting the significance of the judgment is negligible. The tendency to look for precise grounds for decision is a standard judicial technique, and few jurists seriously believe that, apart from cases of treaty interpretation, the pronouncements of the Court can be placed in quarantine by formal devices.31 In any case, the fact that admissibility was the issue does not affect the general significance of the decision. As the Court said: ‘[t]o 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’.32 The Court did not base its decision on estoppel as against Liechtenstein, but focused on the existence or not of a right of protection, an issue which necessarily affects states in general and not just the parties.33

To those who regard the Court’s approach as a novelty,34 the inadequacy of its review of state practice is a source of disquiet. But, first, the Court is usually somewhat oracular in its announcement of rules of customary law; this does not mean the relevant materials were not duly assessed. Secondly, the Court’s somewhat varied collection of propositions and references to previous practice reads not as a survey but rather as an attempt at further and better particulars as to the logical necessity of the general principle for which the Court was contending. The relevant section of the judgment commences well before the ‘survey of materials’, and the burden of the section as a whole is that, to settle issues on the plane of international law, principles have to be applied apart from the rules of national law.35 The major point is made on the basis of a ‘general principle of international law’ and not on the basis of a customary rule of the usual sort. Thirdly, critics of the judgment seek materials which support the ‘link’ theory explicitly as a specific rule. Not all the materials support such a rule, but there(p. 516) is much material which supports the general principle. Moreover there was very little on the international plane which expressly denied the effective link doctrine, and the incidental rejection of it in Salem36 was regarded by contemporaries as a novelty.37

Judge Read38 and others39 have also contended that the Court relied irrelevantly on the principles adopted by arbitral tribunals in dealing with cases of double nationality,40 since the facts of Nottebohm did not present this problem: Nottebohm either had Liechtenstein nationality or none. But the principle of effectiveness is not restricted to cases of dual nationality. If the principle exists it applies to the Nottebohm permutation also.

In terms of the application of the principle to the facts, Nottebohm was German by birth and was still a German national when he applied for naturalization in Liechtenstein in October 1939. He had left Germany in 1905, although he maintained business connections there. As a consequence of naturalization he lost his German nationality.41 The Court decided that the effective nationality was not that of Liechtenstein (but without characterizing the links with Guatemala in terms of effective nationality): it found ‘the absence of any bond of attachment between Nottebohm and Liechtenstein and, on the other hand, the existence of a long-standing and close connection between him and Guatemala, a link which his naturalization in no way weakened’.42

The Court did not consider whether an absence of connection when the nationality was originally acquired can be cured by later events. However, while in 1955 Nottebohn’s effective nationality was that of Liechtenstein, when the main acts complained of occurred it was not: it is doubtful, to say the least, if aft er suffering a wrong a national can then take on another nationality and, after a lapse of time, call on the new state to espouse the claim against the state of former nationality.43

As to the implications of the Nottebohm judgment in the realm of policy, critics have concentrated on the severance of diplomatic protection and nationality.44 The practical result of the decision is seen to be a narrowing of the ambit of diplomatic protection. In fact in the vast number of cases effective nationality matches formal nationality.45 Long-resident refugees are an important source of problems, and it would seem likely that the link doctrine is more helpful here than reference to national laws. The latter method leaves the refugee stateless or links him or her to a community which has proved repugnant or been abandonded.

(p. 517) The UN Convention on the Reduction of Statelessness of 196146 contains detailed provisions relying on various criteria of factual connection and evidence of allegiance. The 1961 Conference also adopted a resolution recommending ‘that persons who are stateless de facto should as far as possible be treated as stateless de jure to enable them to acquire an effective nationality’.47 Weis remarks that the convention and recommendation ‘clearly reflect the importance which is attached to an increasing degree to effectiveness of nationality’.48

(C)  The ILC’s Work on Diplomatic Protection

In its work on diplomatic protection the ILC took a narrow view of Nottebohm’s implications. Article 4 of the ILC Articles on Diplomatic Protection of 2006 reads as follows:

State of nationality of a natural person

For the purposes of the diplomatic protection of a natural person, a State of nationality means a State whose nationality that person has acquired, in accordance with the law of that State, by birth, descent, naturalization, succession of States, or in any other manner, not inconsistent with international law.

The commentary elaborates:

Draft article 4 does not require a State to prove an effective or genuine link between itself and its national, along the lines suggested in the Nottebohm case, as an additional factor for the exercise of diplomatic protection, even where the national possesses only one nationality. Despite divergent views as to the interpretation of the case, the Commission took the view that there were certain factors that served to limit Nottebohm to the facts of the case in question, particularly the fact that the ties between Mr. Nottebohm and Liechtenstein…were ‘extremely tenuous’ compared with the close ties between Mr. Nottebohm and Guatemala…for a period of over 34 years, which led the International Court of Justice to repeatedly assert that Liechtenstein was ‘not entitled to extend its protection to Nottebohm vis-à-vis Guatemala’. This suggests that the Court did not intend to expound a general rule applicable to all States but only a relative rule according to which a State in Liechtenstein’s position was required to show a genuine link between itself and Mr. Nottebohm in order to permit it to claim on his behalf against Guatemala with whom he had extremely close ties. Moreover, it is necessary to be mindful of the fact that if the genuine link requirement proposed by Nottebohm was strictly applied it would exclude millions of persons from the benefit of diplomatic protection…49

(p. 518) The use of the double negative in draft Article 4 (‘not inconsistent’) is intended to show that the burden of proving that nationality was acquired in violation of international law rests upon the state which disputes the nationality of the injured person.50 This is said to follow from the proposition that the state conferring nationality must be given a ‘margin of appreciation’;51 correspondingly there is a presumption in favour of the validity of the conferral of nationality.52 It would follow in any event on the basis of the maxim actori incumbit probatio.

A factor not to be overlooked in discussions of Nottebohm was that the case involved a putative enemy alien. Nottebohm acquired the nationality of Liechtenstein, a neutral state, with a view to avoiding the risk of becoming an enemy alien if Guatemala entered the Second World War.53

3.  The Application of Rules of International Law

(A)  The Limits of State Authority in the Matter of Nationality

If rules of international law are to work effectively or at all, there must be limitations on the powers of individual states to treat persons as their nationals. Some of these limitations must now be considered.

It may happen that a state has not adopted any nationality laws on the modern pattern. Although such cases are rare,54 examples of the absence of nationality legislation arise from the creation of new states. By definition they must possess a population which is their own. In a decision on the status of former Palestine citizens55prior to the enactment of the Israeli Nationality Law of 1952, a judge of the District Court of Tel-Aviv observed:

So long as no law has been enacted providing otherwise, my view is that every individual who, on the date of the establishment of the State of Israel was resident in the territory which today constitutes the State of Israel, is also a national of Israel. Any other view must lead to(p. 519) the absurd result of a State without nationals—a phenomenon the existence of which has not yet been observed.56

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