Page 115 - Law of Peace, Volume ,
P. 115

Pam 27-161-1

             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,
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