Page 115 - Law of Peace, Volume ,

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or after birth without his consent, express or implied." 40 It is for Liechtenstein, as it is for every sovereign State, to settle by its
e. As noted above, one of the most controversial topics own legislation the rules relating to the acquisition of its nationality, and
in the areas of nationality is the manner in which a state to confer that nationality by naturalization granted by its own organs in
accordance with that legislation. It is not necessary to determine whether
may legitimately confer its citizenship. The most impor-
international law imposes any litations on its freedom of decision in
tant decision pertaining to this matter appears below. It is this domain. Furthermore, nationality has its most immediate, its most
generally regarded as the definitive statement of the effect far-reaching and, for most people, its only effects within the legal system
of nationalization decrees on an international level. of the State conferring it. Nationality serves above all to determine that
the person upon whom it is conferred enjoys the rights and is bound by
NOTTEBOHM CASE the obligations which the law of the State in question grants to or im-
(LIECHTENSTEIN v. GUATEMALA) poses on its nationals. This is implied in the wider concept that na-
International Court of Justice, 1955 tionality is within the domestic jurisdiction of the State.
[I9551 I.C.J. 4 But the issue which the Court must decide is not one which pertains
[Nottebohm had been a German national from his birth in Germany to the legal system of Liechtenstein. It does not depend on the law or on
in 1881 until his naturalization in Liechtenstein in 1939, shortly after the decision of Liechtenstein whether that State is entitled to exercise its
the outbreak of war in Europe. In 1905 he had taken up residence in protection, in the case under consideration. To exercise protection, to
Guatemala and engaged in substantial business dealings in that country. apply to the Court, is to place oneself on the plane of international law. It
Thereafter he sometimes went to Germany on business, to other coun- is international law which determines whether a State is entitled to exer-
tries on holidays, and to Liechtenstein in order to visit a brother who cise protection and to seise the Court.
lived there after 1931. In early 1939, Nottebohm went to Europe and The naturaliition of Nottebohm was an act performed by Liechten-
eventually applied for naturalization in Liechtenstein on October 9, stein in the exercise of its domestic jurisdiction. The question to be
1939. Nottebohm sought and received dispensation from residence re- decided is whether that act has the international effect here under con-
quirements, paid his fees and gave security for the payment of taxes, sideration. .. .
and completed the naturaliition process by taking an oath of allegiance When one State has conferred its nationality upon an individual and
on October 20, 1939. He obtained a Liechtenstein passport, had it another State has conferred its own nationality on the same person, it
visaed by the Guatemalan consul in Zurich, and returned to Guatemala may occur that each of these States, considering itself to have acted in
to resume his business activities. At his request, Guatemalan authorities the exercise of its domestic jurisdiction, adheres to its own view and
made appropriate changes regarding Nottebohm's nationality in the bases itself thereon in so far as its own actions are concerned. In so
Register of Aliens and in his identity document. doing, each State remains within the limits of its domestic jurisdiction.
[On July 17, 1941 the United States blacklisted Nottebohm and froze This situation may arise on the international plane and fall to be con-
his assets in the United States. War broke out between the United States sidered by international arbitrators or by the courts of a thud State. If the
and Germany, and between Guatemala and Germany, on December arbitrators or the courts of such a State should confine themselves to the
11, 1941. Nottebohm was arrested by Guatemalan authorities in 1943 view that nationality is exclusively within the domestic jurisdiction of
and deported to the United States, where he was interned until 1946 as the State, it would be necessary for them to find that they were con-
an enemy alien. He applied upon his release for readmission to fronted by two contradictory assertions made by two sovereign States,
Guatemala, but his application was refused. Nottebohm then took up assertions which they would consequently have to regard as of equal
residence in Liechtenstein, but Guatemala had in the meantime taken weight, which would oblige them to allow the contradiction to subsist
measures against his properties in that country, culminating in wn- and thus fail to resolve the conflict submitted to them.
fiscatory legislation of 1949. In most cases arbitrators have not strictly speaking had to decide a
[Liechtenstein instituted proceedings against Guatemala in the Inter- conflict of nationality as between States, but rather to determine
national Court of Justice, alleging the foregoing facts and asking the whether the nationality invoked by the applicant State was one which
Court to declare that Guatemala had violated international law "in ar- could be relied upon as against the respondent State, that is to say,
resting, detaining, expelling and refusing to readmit Mr. Nottebohm whether it entitled the applicant State to exercise protection. Interna-
and in seizing and retaining his property" and consequently was bound tional arbitrators, having before them allegations of nationality by the
to pay compensation. Guatemala's principal argument in reply was that applicant State which were contested by the respondent State, have
the Liechtenstein claim was inadmissible on grounds of the claimant's sought to ascertain whether nationality had been conferred by the appli-
-
nationality. cant State in circumstances such as to give rise to an obligation on the
[The Court stated the facts and rejected Liechtenstein's argument
that Guatemala was precluded from contesting Nottebohm's nationality part of the respondent State to recognize the effect of that nationality. In
order to decide this question arbitrators have evolved certain principles
because it had on several occasions acknowledged Nottebohm's claim of for determining whether full international effect was to be attributed to
Liechtenstein nationality. It then continued:] the nationality invoked. The same issue is now before the Court: it must
Since no proof has been adduced that Guatemala has recognized the be resolved by applying the same principles.
title to the exercise of protection relied upon by Liechtenstein as being
derived from the naturalization which it granted to Nottebohm, the The courts of thud States, when confronted by a similar situation,
Court must consider whether such an act of granting nationality by have dealt with it in the same way. They have done so not in connection
Liechtenstein directly entails an obligation on the part of Guatemala to with the exercise of protection, which did not arise before them, but
recognize its effect, namely, Liechtenstein's right to exercise its protec- where two different nationalities have been invoked before them they
tion. In other words, it must be determined whether that unilateral act have had, not indeed to decide such a dispute as between the two States
by Liechtenstein is one which can be relied upon against Gua.temala in wncerned, but to determine whether a given foreign nationality which
regard to the exercise of protection. The Court will deal with this ques- had been invoked before them was one which they ought to recognize.
tion without considering that of the validity of Nottebohm's naturaliza- International arbitrators have decided in the same way numerous
tion according to the law of Liechtenstein. cases of dual nationality, where the question arose with regard to the ex-
ercise of protection. They have given their preference to the real and
40. League of Notions Docs., supra, note 27 at 146. But see J. effective nationality, that which accorded with the facts, that based on
Jones, British Nationality Law 15, 27,31 (1956), in whose opinion state stronger factual ties between the person wncerned and one of the States
practice shows that ". . .in the present state of international law the sole whose nationality is involved. Different factors are taken into considera-
limitation appears to be the existence of a genuine connection with the tion, and their importance will vary from one case to the next: the
state .. .," whether or not there is consent. habitual residence of the individual concerned is an important factor,