Nationality and the Right of Protection in International Public Law

Author(s): Erwin Loewenfeld

Source: Transactions of the Grotius Society , 1956, Vol. 42, Problems of Public and
Private International Law, Transactions for the Year 1956 (1956), pp. 5-22
Published by: Cambridge University Press on behalf of the British Institute of
International and Comparative Law

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 NATIONALITY AND THE RIGHT OF PROTECTION
IN INTERNATIONAL PUBLIC LAW

By DR. ERWIN LOEWENFELD, LL.B., Solicitor of

the Supreme Court
I

The International Court of Justice has recently dissociated

the right of a state to extend its protection to a particular indi-
vidual from the right to consider him as being its subject.
I am referring to the Nottebohm Case, Liechtenstein v.
Guatemala, 2nd phase judgement of 6th April 1955.1
As a result the entire complex of questions attached to the
recognition and effects of naturalization in the international field
has gone by the board.
I have had the honour to act as the agent of the Principality
of Liechtenstein, the plaintiff Government in that case, and after
weeks of attending the hearings at the Hague I feel that confined
within the bounds of the controversy concerning nationality and
the right to protection the case has perhaps failed to receive the
full consideration which would have elucidated all the problems
which it posed.
The Nottebohm case demonstrates that the acquisition of a
new nationality may be challenged and its international effects
dissociated by an ex parte declaration of the challenging state
a stranger to the naturalization without examination at the lex
fori as to fraud or abuse of power in connection with the natur-
alization.

This decision
the contention ofdeparts fromthat
the speaker international tradition
the facts in the case,nd
do it is
not
warrant such a departure.
Friedrich Nottebohm born in Hamburg in 1881 of German
origin, emigrated in 1905 to Guatemala and established there a
successful export and banking business as partner and later as
head of the firm Nottebohm-Hermanos.
He never applied for Guatemalan citizenship. Since 1905 he
had from time to time visited Germany for business purposes,
connections which he maintained until the beginning of the war.
I I.C.J. Reports, 1955.

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6 NATIONALITY AND THE RIGHT OF PROTECTION

In his holidays he visited Germany and the Principality of Liech

tenstein where one of his brothers had his home since 1931.
Nottebohm himself had his permanent residence in Guatemala
until 1943, when events took place which formed the basis of
the present dispute.
In 1939, a few weeks after the outbreak of the 2nd World
War Nottebohm during his visit in Liechtenstein applied for his
naturalization there and at the same time for the previous con-
ferment of citizenship in the commune of Mauren. The Liech-
tenstein Nationality Act of 4th January 1934 provides that an
applicant must prove his acceptance into a Liechtenstein com-
mune and must have resided in the Principality for three years
The provision concerning the 3 years residence may be waived in
circumstances meriting special consideration and by way of ex-
ception, art. 6(d) of the Law of January 4th 1934 regarding the
acquisition and loss of nationality.2
Nottebohm satisfied the municipal criteria concerning dispen-
sation of the residence requirement. A document dated 15th Oct-
ober 1939 certified that on that date the commune of Mauren
had conferred the privilege of its citizenship upon Mr. Notte-
bohm and requested the government to transmit it to the Diet
for approval. On October 20th 1939 Mr. Nottebohm took the
oath of allegiance. A certificate of Liechtenstein nationality wa
signed on behalf of the Liechtenstein Government on the same
day to the effect that Nottebohm was naturalized by Supreme
Resolution of the Reigning Prince, dated 13th October 1939.
Having obtained a Liechtenstein passport Nottebohm had it
visaed by the Consul General of Guatemala in Ziirich on Ist
December 1939 and returned to Guatemala at the beginning of
1940 where he resumed his former business activities after having
been registered in the register of aliens as a Liechtenstein citizen
In view of the nationality conferred upon Nottebohm Liech-
tenstein regarded herself as entitled to approach the Internationa
Court at the Hague by way of a written application against
Guatemala based on the following complaint:
Although Nottebohm had acquired Liechtenstein nationality,
although he had been treated by Liechtenstein and by Switzer-
land (which he passed frequently) as a Liechtenstein national,3
although he had been registered as citizen of Liechtenstein by the
LandesgeAetzblatt, No. 1 of 10.1.34.
3 See dissenting opinion of Judge Read. I.C.J. Reports, 1955, p. 45.

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 NATIONALITY AND THE RIGHT OF PROTECTION 7

Guatemalian authorities he had been arrested on 19th October

1943 in Guatemala, transferred to an American ship and interned
in U.S.A. for two years 3 months.
Guatemala had entered the war at the end of 1941, when the
movable and immovable assets of Nottebohm had been seized by
Guatemala after his name had been put on the American and
British black lists.
During his internment in 1944, a series of 57 legal proceed-
ings were instituted against Nottebohm as enemy alien by Guate-
mala. These proceedings were calculated to expropriate without
compensation all his property in Guatemala after he had been
classified as an enemy alien by a Guatemalian enactment in 1949
which established procedures for expropriation of enemy property
and-for reason of public policy-was made retroactive back to
1938 by means of an ex post facto provision.
It said that enemy property included all property owned inter
alia by persons or entities who on 7th October 1938 were nationals
of a country with which Guatemala had been at war and that it
was to be expropriated without compensation notwithstanding
that such persons had acquired another nationality after 7th
October 1938 (Art. 7a).
Liechtenstein complained that the confiscation of the property
of Nottebohm in his character as a neutral (neutral at the time
when Guatemala entered the war) had violated the principles of
international law and that Guatemala was therefore under a legal
obligation to pay adequate compensation to Liechtenstein.
Guatemala pleaded the non-admissibility of the claim be-
cause the naturalization of Mr. Nottebohm was contrary to inter-
national law and had no effect towards Guatemala.
The International Court of Justice has decided the case on
the strength of a principle which had not been professed during
the proceedings neither by the plaintiff nor by the defendant state
and on which it had felt no necessity to hear their opinion.4 The
Court abstaining from an examination of the Guatemalian plea
of the purported nullity of the naturalization laid down that it
was for Liechtenstein as for every sovereign state to settle by its
own legislation the rules relating to the acquisition of its nation-

4 Judge Read I.e. p. 38-39 with reference to the Ambatialos Case C.I.J.R.
1952, p. 45,

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8 NATIONALITY AND THE RIGHT OF PROTECTION

ality and to confer that nationality by naturalization granted by

its own organs in accordance with its legislation.5
The issue which the Court had to decide was however not
one which pertained to the legal system of Liechtenstein. It did
not depend on the law or on the decision of Liechtenstein,
whether that state was entitled to exercise its protection in the
case under consideration.
To exercise protection, to apply to the International Court of
Justice was to place oneself on the plane of international law. It
was international law which determined whether a state was
entitled to exercise protection and to seize the Court.6 The Court
pointed out that international arbitrators had decided numerous
cases of dual nationality where the question arose with regard
to the exercise of protection.
They had given their preference to the real and effective
nationality, i.e., that which accorded with the stronger factual
ties between the person concerned and one of the states whose
nationality was involved. Different factors had been taken into
consideration and their importance varied from one case to an-
other: habitual residence of the individual concerned, centre of
his interests, his family ties, his participation in public life, attach-
ment shown by him for a given country, and inculcated in his
children.
In the eyes of the Court the conditions of a naturalization may
vary in their purpose or their nature, but they are essentially con-
cerned with the idea indicating the existence of a link (rattache-
merat) between state and individual.
For the same reason the Court pointed out that the practice
of certain states would refrain from exercising protection in favour
of naturalized persons when the latter had in fact by their pro-
longed absence severed their link with what was no longer for
them anything but their nominal country. The International
Court has admitted that the diversity of demographic conditions
has thus far made it impossible for any general agreement to be
reached on the rules relating nationality although by their very
nature they affect international relations.7
it has been considered best to leave the drafting of such
rules to the competence of each state. On the other hand ir the
5 I.C.J. Reports, 1955, p. 20.
6 I.c. p. 21, 22.
: Judgment I.C.J. Reports, I.e., p. 23.

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 NATIONALITY AND THE RIGHT OF PROTECTION 9

view of the majority of judges of the Court a state cannot claim

that the rules it has laid down are entitled to recognition by an-
other state unless it has acted in conformity with the general aim
of making the legal bond of nationality accord with the indi-
viduals general connection with the state which assumes the pro-
tection of its citizens against other states.
The requirement that such a concordance must exist is in
the view of the Court to be found in the studies carried on in the
course of the last 30 years upon the initiative of the League of
Nations and United Nations.
It explains the provision laid down by the Conference for
the Codification of International Law held at the Hague in 1930
(Art. 1 of the Convention relating to conflict of nationality laws)
which said that the law enacted by a state for the purpose of
determining who are its nationals shall be recognized by other
states in so far as it is consistent with... international custom and
the principles of law generally recognized with regard to ndrionality.
The Court came to the conclusion that according to practice of
states, arbitral and judicial decisions and opinions of writers
nationality is the legal bond having at its basis a social fact of
attachment, a genuine connection of existence, interests and senti-
ments, together with the existence of reciprocal rights and duties.
The nationality may be said to constitute the juridical ex-
pression of the fact that the individual upon whom it is conferred
is in fact more closely connected with the population of the state
conferring the nationality than with that of any other state. Con-
ferred by a state it only entitles that state to exercise protection
vis-a-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.
This is in the view of the Court the character which nation-
ality must present when it is invoked in order to furnish the state
which has granted it with the title to the exercise of protection
and to the institution of international judicial proceedings.8

II
After having laid down this doctrine the Court has examined
the question whether the nationality granted to Nottebohm was
based on the factual connection between him and the state in the
period preceding contemporaneous with, following his naturaliza-
8I.C.J. Reports, 1955, p. 24,

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10 NATIONALITY AND THE RIGHT OF PROTECTION

tion and whether it was sufficiently close and as the Co

presses it "so preponderant in relation to any connectio
may have existed between Nottebohm and any other sta
it was possible to regard the nationality conferred upon
real and effective."8

The Court laid emphasis on the far-reaching consequences the

profound changes of a naturalization its repercussions and the im-
portance of circumstances in which it was conferred,
(1) Naturalization is not a matter to be taken lightly; to seek
and to obtain it is not something that happens frequently in the
life of a human being, it may have in the destiny of the indivi-
dual who obtains it, far-reaching changes.
(2) it cannot be considered only from the point of its re-
percussion with regard to the property of the person to be
naturalized.
(3) in order to appraise its international effect it is impos-
sible to disregard the circumstances in which it was conferred.
Taking these three factors into consideration the Court has
raised the question:
Has Nottebohm at the time of his naturalization been more
closely attached by tradition, his establishment, his interests, his
activities, his family ties, his intention for the near future, to
Liechtenstein than to any other state? In this connection the
Court has considered the situation of Nottebohm as to Germany.
the country of his origin and birth, as to Guatemala, the country
of his domicile and his business centre, as to Liechtenstein the
country of his naturalization.
As to Germany, Nottebohm had been a German national
from the time of his birth; he had always retained his connections
with members of his family who had remained in Germany, and
he had always had business connections with that country.
His country had been at war for more than a month and
there was in the eyes of the Court nothing to indicate that the
application for naturalization made by Nottebohm was made by
any desire to dissociate himself from the Government of his
country.
As to Guatemala he had been settled in Guatemala for 34
years, he had carried on his activities there, it was the main
seat of his interest, he returned there shortly after his naturaliza-
tion, and it remained the centre of his interests and of his busi-

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 NATIONALITY AND THE RIGHT OF PROTECTION 11

ness activities. He stayed there until his removal as a result

war measures in 1943. He subsequently attempted to return t
but had to complain of Guatemala's refusal to admit him. The
were several members of his family in Guatemala who attem
to safeguard his interests.
As to Liechtenstein the Court regarded his actual connect
with Liechtenstein as "extremely tenuous".9 No settled abode
prolonged residence in that country at the time of his applic
for naturalization. No intention of settling there had been s
at that time or realized in the ensuing years. Instead he had
turned to Guatemala shortly after his naturalization.
The Court has assumed that he showed every intention
remaining there and that he went to Liechenstein in 1946 o
because Guatemala refused to admit him. The Court has furth
critically referred to the fact that no indication has been g
of the grounds warranting the waiver of the condition of reside
of 3 years which except in exceptional cases is required by
6 of the Liechtenstein Nationality Law.1o
The Court has further emphasized that there was as rega
Nottebohm no allegation of economic interests or of any bu
ness activities, exercised or to be exercised in Liechtenstein.
In applying these facts to the doctrine of necessity of a bond
of attachment between Nottebohm and Liechtenstein the Court
has come to the conclusion:
(1) the existence of a long standing and close connection be-
tween Nottebohm and Guatemala has not been weakened by his
naturalization,
(2) the naturalization was not based on any real prior con-
nection with Liechtenstein, nor did it in any way alter the
manner of life of Nottebohm,
(3) as the Court expressed it, nationality was conferred upon
him in exceptional circumstances of speed and accommodation.
The Court stressed the fact that in both respects the natura-
lization was lacking in the genuine requisite to an act of such
Importance.
It was therefore granted without regard to the concept of
nationality adopted in international relations and need therefore
not be respected by a state in the position of Guatemala.11 But
9 I.C.J. Reports, 1955, p. 25.
Io p.
" T.C.J. Reports, p. 26.

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 12 NATIONALITY AND THE RIGHT OF PROTECTION

this was not the only reason why the Court refused the right
protection.
The Court has expressed its opinion that naturalization was
not asked so much for the purpose of obtaining legal recognition
of Nottebohm's membership in fact of the population of Liechten-
stein as it was to enable him to substitute for his status as a
national of a belligerent state that of a national of a neutral
state with the sole aim of thus coming within the protection of
Liechtenstein but not of becoming wedded to its traditions, its
interests, its way of life, or of assuming the obligations and exer-
cising the rights pertaining to the status thus acquired. It is for
these reasons that the Court by 11 votes to 3 was of the opinion
that the claim was inadmissible.
Judge Klaestad (Norway), Read (Canada), and Judge ad hoc
Guggenheim (Switzerland) dissented.

Ill
The reason, why many questions dealt with in the pleadings
(necessity of prior diplomatic negotiations, exhaustion of legal
remedies, confiscation of assets of neutrals) remained undecided,
was, that the Court has followed an entirely different line of
reasoning which neither of the parties had expected nor de-
veloped.
The Court has not examined the question:
(a) whether and how far an international Court may assess
the validity of a naturalization under the national law of the
country concerned.
(b) whether there exist binding rules of international law
prescribing minimum requirements for a naturalization to be
recognized abroad (e.g. as to residence of the applicant)
(c) under what conditions a particular third state is entitled
to refuse recognition to a naturalization otherwise internationally
valid, as e.g. in the case of a naturalization in a neutral country
applied for and obtained by the subject of a belligerent state for
the purpose of escaping the consequences of the exercise of the
law of prize by the enemy. 12
The Court has ruled that the validity of the naturalization
from the point of view of national and international law is of no
consequence and that the only conclusive question to be decided
12 Verzijl in Netherlands Tijdschrift woor International Recht III, 1956,
p. 37.

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 NATIONALITY AND THE RIGHT OF PROTECTION 13

was whether a valid naturalization could be upheld against a

third state under the principles governing the right of diplomatic
protection.
The Court dissociated the right of a state to extend its
protection to a particular individual from the right to consider
him as its subject under municipal law.
International public law recognizes undoubtedly situations in
which the diplomatic protection which is being exercised regu-
larly on basis of a naturalization can be successfully contested.
Arbitral decisions have involved the general question of a state
being entitled to exercise protection. But they have done so only
in special circumstances, namely if a conflict of claims of different
nationalities was involved.
The reference in Baron Frederic de Born v. Jugoslavial13
to the "nationalitie effective et prevalente" was based on the fact
that there were two nationalities and that there was a conflict
between them. This principle could not apply in the Nottebohm
Case, because Nottebohm never had a double nationality.
As evidenced by a certificate of the Senate of the Free and
Hanse Town Hamburg of 15th June 1954 Nottebohm had lost his
German nationality in consequence of having acquired the Liech-
tenstein nationality in October 1939. He had not applied for, nor
received permission to retain German nationality. Non-recognition
of the new nationality, e.g. by the Court of a third state, could
never restore German nationality. And assuming that the Federal
German Republic would now put forward a claim on behalf of
Mr. Nottebohm the International Court would at all events
declare such a claim equally inadmissible. It would indeed b
difficult to attempt to define the status of Mr. Nottebohm in an
international proceedings.
Are there other situations, apart from the case of doubl
nationality in which third states are entitled to regard the naturali-
zation of a foreign national as inoperative?
The only other case I am able to refer to is, when the state
of adoption has granted its nationality by compulsion, this mean
without the consent of the person concerned or without the stat
whose nationality is to be lost, having consented to the with
drawal of its own nationality. Examples would be the numerou
decrees of the national-socialistic German Government as regard
German collective naturalizations of persons of Germanic, ethni
'3 Jugoslavian-Hungarian Mixed Arbitral Tribunal, 1926, Vol. VI, p. 499

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 14 NATIONALITY AND THE RIGHT OF PROTECTION

cal origin e.g. in the Protectorates Bohemia and Moravia14 further

in parts of Austria and in the Ukraine.
To dissociate the question of the validity of nationality from
that of diplomatic and international judicial protection leaves a
further problem unsolved, and this is a serious consequence of
the doctrine of disassociation, which has been emphasized particu-
larly by Professor Guggenheim.15 Any third state will be in a
position to draw conclusions going beyond the narrow limits of
the right to exercise diplomatic protection and will thus be lead
to disregard other consequences and effects of nationality on the
international level.
There would be nothing to prevent them from saying that
Nottebohm had lost German nationality without having validly
acquired Liechtenstein nationality for international purposes.
It may be objected that according to art. 59 of the Statute
of the Court the decision of the Court has no binding force ex-
cept between the parties and in respect of the particular case.
However who will prevent any state besides Guatemala to
follow the line of disassociation of nationality from protection
now expressly recognized as possible by the International Court?
Therefore for all practical purposes in the international field
a person like Nottebohm is stateless. One asks oneself was this a
necessity and is it not contrary to the basic principle embodied
in art. 15 I of the Universal Declaration of Human Rights of
December 8th, 1948 according to which everyone has a right to
nationality?
"Can the International Court become an instrument for gen-
erating statelessness, has it diluted the inadequate but concordant
principles and presumptions that do exist to ascertain nation-
ality?"16
IV
The Court, in insisting on the necessity of a link between
state and the individual to be naturalized has regarded the non-
existence of such a link as sufficient justification for a complete
disassociation of nationality from protection.
It says: "a state cannot claim that the rules it has laid down
are entitled to recognition by another state unless it has acted in

14 Decree of 20th April, 1939-German Reichsgesetzblatt I, s. 815.

is Dissenting Opinion, I.c., p. 60.
r6 A question asked by Glazer in the Georgetown Law Journal, Vol. 44.
p. 285.

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 NATIONALITY AND THE RIGHT OF PROTECTION 15

conformity with the general aim of making the legal bond of

nationraity accord with the individual's general connections with
the state which assumes the protection of its citizens against other
states". 17
The French expression used is "rattachment". This view of
the majority of the judges of the International Court makes it
clear that the relationship established between state and indivi-
dual by naturalization will have to be based in future on the
existence of a physical or real link or a substantial connection
attaching the individual to the state. Therefore in future: a
mere common and effective will not vitiated by fraud or abuse
of rights to the detriment of a third state is not any more suffi-
cient for the creation of the relationship of nationality.
State practice, judicial decisions and teachings of qualified
publicists will query whether this view is the true expression of a
binding rule of international law. Judge Klaestad is doubtful.18
Up to now the test of effective nationality as stated above
has only been used to resolve conflicts of dual nationality. In all
other cases the theory was clearly inapplicable.
According to most authoritiesl9 the international effect of
the creation of a nationality by naturalization could only be im-
peached by showing of fraud, attending the acquisition of citizen-
ship or by abuse of rights. This occurs when a state avails itself
of its right in an arbitrary manner in such a way as to inflict
upon another slate an injury which cannot be justified by legiti-
mate consideration of its own advantage.20
For the purpose of the present case it is not necessary to say
more except that abuse of rights presupposes the infliction of
some kind of injury upon the legitimate interests of Guatemala
by the naturalization of Mr. Nottebohm. But as rightly pointed
out by Judge Klaestad21 it is not shown that an injury of any
kind was thereby inflicted upon Guatemala which at that time
was a neutral state. In order to ascertain whether the bond be-
tween state and national is real and effective and not merely
17p. 23, I.C.J. Reports, 1955, p. 31.
i8 Dissenting opinion I.C.J. Reports, p. 30.
19 Lauterpacht, International Law, vol. 1, p. 293, 8th edn., Makarov in
Hague Recuiel 74 (1949), as to American sources see Glazer, the eorgetown
Law Journal, vol. 44, p. 318, note 24, Professor Seidl-Hohen feldern Recht der
Internationalen Wirtschaft Heft 5, p. 147 (1955).
20 Lauterpacht International Law vol. 1, para. 155, aa, p. 345.
2Z I.C.J. Reports, 1955, p. 31.

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16 NATIONALITY AND THE RIGHT OF PROTECTION

fictitious, international law up to now has regarded only the ex-

ternal elements of legal facts to which it attaches certain conse-
quences. It does not concern itself with the mental attitude of
the legal person responsible for a juridical act, such as the act of
naturalization. Nor does it consider the motives which very often
it is difficult to determine, which have led the individual to
apply for naturalization. It may be desirable to set certain limits
to the extensve discretionary power of sovereign states. But this
is not international law as it is, but how it could be.
In accordance with Art. 38 of the Statute of the Court inter-
national public law must be applied as positive law and not
de lege ferenda. It must therefore be examined whether there are
rules in international public law which require a real and effec-
tive connection between state and individual in order to create in
the state a right of diplomatic and judicial protection based on
naturalization.
Both parties have based themselves on the provisions of art.
I of the Convention "on certain questions relating to the conflict
of nationality laws adopted by the Conference for the Codifica-
tion of international law in the Hague in 1930" to which I have
already referred.22
The Government of Guatemala had recognized23 that this
article represented the present state of international law and that
in view of this provision Liechtenstein law in practice has to be
recognized in so far as it was in conformity with international
custom and the principles of law generally recognized with regard
to nationality. Guatemala had also admitted24 that in so far there
is neither up to now a system of customary rules nor any definite
principles to which the states are bound. This position was main-
tained by Guatemala in the oral proceedings.
It was therefore clear that the Government of Guatemala
considered:
(1) That the right of Liechtenstein to determine under its
own law that Mr. Nottebohm was its national and
(2) the correlative obligation of Guatemala to recognize the
Liechtenstein law in this regard were not limited by rigid rules
of international law.
The Court has nevertheless attempted to show that certain

22 Hudson International Legislation V, p. 359.

23 Contre Memoire, p. 7 ? 16.
24 LC., p. 7.

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 NATIONALITY AND THE RIGHT OF PROTECTION 17

international conventions exhibit a trend to the so-called link

theory. The first international convention referred to in the
Judgement25 is article 3 of the statute of the Court (dealing with
the organization and membership of the Court). It provides that
a person who for the purpose of membership in the Court could
be regarded as a national of more than one state shall be deemed
to be a national of the one in which he ordinarily exercises civil
and political rights. But here again only the problem of double
nationality is under consideration.
The Court has further referred to the practice of certain
states which refrain from exercising protection in favour of a
naturalized person, when the latter by his prolonged absence
severed his links with what is no longer for him anything but
his nominal country.25
The Court has emphasized that such a practice 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 Court has also referred to the so-called Bancroft
Treaties26 in which a similar view is manifested. The U.S.A. be-
tween 1868 and 1928 have concluded certain bi-lateral conven-
tions with the North German Confederation and other German
states in order to regulate conflicting claims to the allegiance of
naturalized persons.27
These treaties provided for the loss of nationality and the
American diplomatic protection as regards persons who after
having been naturalized in U.S.A. had resettled in Germany with-
out having the intention to return to U.S.A. However they were
abrogated already in 1917 at the time of U.S.A 's entry into the
Second World War.
As Judge Guggenheim rightly pointed out28 they cannot be
regarded as reflecting rules of general international law. Besides
in the case considered by the Court, there was no conflict of
a similar kind neither was Nottebohm naturalized by Guatemala
nor was he resettled in Germany.
Similar restrictions on the opposability of naturalization were
incorporated in the Pan American Convention concluded at Rio

25 I.C.J. Reports, 1955, p. 22, 23.

26 I.C.J. Reports, p. 22.
27 Hackwortb International Law III, p. 256.
8 I.c., p. 59.

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 18 NATIONALITY AND THE RIGHT OF PROTECTION

de Janeiro in 1906, but the ratification of this Convention which

has been signed by a series of states (Bolivia, Cuba, Mexico,
Paraguay, Uruguay) and has been denounced by others (Brazil,
Guatemala) were not sufficiently general to show a general con-
sensus which is essential for the establishment of a general rule
of international law.29 Moreover the fact that it was necessary
to conclude a Convention is the best proof that no rule of cus-
tomary law qualifying the right of protection exists.
In order to be able to regard the link theory as part of in-
ternational positive law it should be necessary to point to re-
peated and recurrent acts on the international level which would
establish that in circumstances similar to those in which naturali-
zation was granted in the case under consideration third states
have refused to recognize the naturalization.
Only in that case it could be said that an established usage
has developed with the characteristics of a general practice ac-
cepted as law as- provided in Art. 38 of the Statute.
Limitations of the sovereignty of states are not presumed.
The International Court in the Asylum Case (Colombia, Peru,
Report 1950 p. 266) was confronted with the question, whether
Colombia as a state granting asylum to a refugee had the right
to qualify by unilateral and definitive decision an offence com-
mitted by the refugee.
The Court based itself on the principle of state sovereignty
and held that a party which relies on a custom derogating from
the principle must prove that the rule invoked is in accordance
with the constant and uniform usage accepted as law.
Judge Klaestad is of the opinion that the same method
should apply to the link theory.30 As questions of naturalization
are in principle within the exclusive competence of sovereign
states, a state which has acted according to the old principle that
a mere common and effective will not vitiated by fraud is suffi-
cient for the creation of the relationship of nationality can de-
mand that it is proved to him that the link theory since it deviates
from the principle of sovereignty is established in international
law in such a manner that it has become binding on such a
state.
However none of the attempts made to define the bond of
attachment according to criteria other than those which are in
29 Dissenting Opinion, Judge Read, I.C.J. Reports, 1955, p. 41
30 Judge Klaestad, Dissenting Opinion, I.C.J. Reports, p. 29.

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 NATIONALITY AND THE RIGHT OF PROTECTION 19

accordance with existing international law has ever succeeded.

The failure to arrive at such a definition is not accidental.
It arises from the fact that in order to define the bond necessary
to make naturalization binding, it is sought to supplement the
objective criteria (free consent of state and individual) by addi-
tional subjective considerations such as the intent to become in-
tegrated in the national community.
All these subjective elements must necessarily lead to arbi-
trary decisions endangering the certainty of international law.
Neither is the bond established between a state and a na-
tional always closer than that existing between a state and a
individual connected by some other link e.g. residence, nor is
break with the country of origin, as asserted by the Court ess
tial for a valid naturalization under international law. On the
contrary the present tendency in international and municipal law
favours dual nationality. Within the British Commonwealth it
is neither undesired nor avoidable.
The Act of 1948 expressly contemplates it.31 Nor can the
lack of residence be regarded as an essential factor prior to
naturalization. Both principle and state practice demonstrate that
there is no such rule in international law.
A great number of countries confer their nationality without
previous residence.32 Moreover the reality and effectiveness of a
naturalization should not be judged only under the aspects pre-
vailing at the date of naturalization. It is also the conduct of
the person naturalized subsequent to the time of the conferment
of nationality which should be taken into consideration.
Mr. Nottebohm incorporated himself in the non-resident part
of the body politic of Liechtenstein. From the instant of his
naturalization to the date of the judgement he has not departed
31 Parry, British Nationality Rule 12, p. 42.
32Colombia Art. 8 of Constitution of 16th February, 1945 (Peaslee Con-
stitutions, p. 469), Ethiopia, Nationality Law of 22nd July, 1930 (British and
Foreign State papers 1932, p. 800, art. 12, and Proclamation of 5th Octobex,
1933 (I.e. 1933, p. 544), Honduras, Constitution of 28th March, 1936 (Peaslee
II p. 135, art II), Monaco Civil Code of 6th November, 1930, art. 10 (Flour-
noy & Hudson, p. 437), Poland Nationality Law of 8th January, 1951 (Textes
lhgislatifs etrangers 1952 Nr. 3, p. 77), 'U.S.S.R. Citizenship Law 1938 (Am.
Journal of Int. Law, Vol. 33, 1939, p. 158, art. 3), Residence for a specific
period is purely facultative (Committee of experts appointed by the League of
Nations, basis of discussion nr. 6 Maury Repertoire de droit international, vol.
9, 1930, p. 281, Nr. 73 and Rundstein Zeitschrift fiir Folkerrecht 1932, 16,
s. 30).
0

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20 NATIONALITY AND THE RIGHT OF PROTECTION

in his conduct from the position of a member of the Liechtenstein

state. He obtained his passport as a Liechtenstein national, his
visa for Guatemala as such he registered as a Liechtenstein
national; in Guatemala city he obtained his diplomatic and judi-
cial protection first through Switzerland, then through Liechten-
stein; after having been released from internment, he obtained
permanent residence in Liechtenstein; and this was before May
1946, as expressly stated by Judge Klaestad.33
Expropriation measures were finally taken against his property
by virtue of the legislative decree 630 of 25th May 1949 referred
to above when he had been living in Liechtenstein for more than
three years, the ordinary statutory period for candidates in Liech-
tenstein under ?6 of the Liechtenstein law of Nationality.
His link with that country was at that time owing to his
permanent residence of such character that even an application of
the link theory the reasons relied on in the Judgement could
have constituted a solid ground for the recognition of the right to
protection as against Guatemala, in respect of all measures taken
against Nottebohm's property during his permanent residence in
Liechtenstein.

V
The Court had refused Liechtenstein's right of protection for
the reason "that naturalization was to enable him to substitute
for his status as a national of a belligerent state that of a na-
tional of a neutral state".34
Should Guatemala have been at war with Germany at the
crucial date (13th October 1939) the date of naturalization she
would certainly have been entitled to refute the opposability as
against herself Mr. Nottebohm's cange of nationality by way of
naturalization in a neutral country. In that case however the de-
fence would have been independent of the link theory.
However the change in the status of Nottebohm was not
effected during the war between Germany and Guatemala, but
more than two years before Guatemala's entry into the war, at a
time when Guatemala observed strict neutrality.
There is up to now no rational principle or decision in inter-
national law which has justified the view that a new nationality
should be regarded as invalid because it was acquired for the
33 I.C.J. Reports, p. 30.
34 I.C.J. Reports, p. 26.

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 NATIONALITY AND THE RIGHT OF PROTECTION 21

purpose of avoiding certain effects of a former nationality in the

future.35
In Salvsen v. Administrator of Ausrrlan property (1927 AC
641 House of Lords) the same principle is warranted in munici-
pal law. Husband and wife of Austrian nationality succeeded to
obtain in Scotland the recognition of a decision of the court of
their place of domicil declaring their marriage null and void.
They achieved this in order to avoid the application of the Aus-
trian administrator's title to the claim. I happened to have in-
structed the case. Miss Salvesen was a British subject, domi-
ciled in Scotland. She went through a form of marriage in Paris
with an Austrian Subject. The parties lived together as man and
wife at Wiesbaden for 26 years and thus acquired a German
domicil. In 1923 the Administrator of Austrian property claimed
the property of the wife in Scotland on the ground that she be-
came an Austrian national by her marriage. The wife then took
steps to discard her Austrian nationality retroactively by sueing for
nullity in the Court at Wiesbaden on the ground that certain
formalities required by French law had been omitted from the
marriage ceremony in 1897. The Court granted the decree. It
had not been suggested that any false evidence was given in the
German Courts or any material evidence designedly excluded.
Therefore the plea of the Administrator of Austrian property
that the German nullity judgement was collusive and in fraudem
legis was rejected.
In Switzerland, at the beginning of the Second World War
certain statutory measures had been carried through to enable
corporations to transfer their domicile retroactively to over-sea
possessions. This was done in order to prevent seizure of such
properties through the enemy in case the war should extend to
Switzerland. Nobody has ever regarded this measure as an illicit
fraud legis, although the motive to prevent enemy action was
apparent.

V1
In what light is the Nottebohm precedent to be assessed as
regards future exercises of the right of protection of naturalized
persons?
Mervyn Jones36 has emphasized that the decision may be
35 Guggenheim, I. C. J. Reports, p. 64.
36 International Law Quarterly 1956, p. 5.

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22 NATIONALITY AND THE RIGHT OF PROTECTION

defended as a common sense decision or as introducing a bene

ficent rule of international equity.
The Court has laid great emphasis on the rule that by gran
ing diplomatic protection and protection by means of international
judicial proceedings on behalf of one of its subjects the state
in reality asserting to its own right to ensure in the person of
subject respect for the rules of international law.
This may have been the reason why the Court has taken th
decision whereby the fear of an abuse of legal procedure may
have induced the Court not to admit the case.37
However this does not change the fact that there is the
danger that the new doctrine will result in potentially large classes
of unprotected persons.
There is however a way to avoid this undesirable result. It
would be to carry into effect the suggestion made by Mervyn
Jones38 that in future claims conventions the prudent draftsman
should "limit or define or even perhaps exclude the link theory".
If this is not done it will be necessary to determine in every
single case the possible factual elements which form the link re-
quired by the international Court for the creation of a nationality
as basis for international protection.

37 In the eyes of M. Grawitz in Annuaire FranCais de droit International

1955 (Centre National de la Recherche Scientifique) the important lesson to
be drawn from this decision is "que le juge se reconnait justement un droit
de contrble sur la maniere dont un Etat us tie e ses comptences".
38 Mervyn Jones International Laq Quarterly, 1956, p. 5.

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