The issue of dual nationality: de jure nationality
The sovereign equality of state versus effective link with state
Article 4 of the ILC Draft article Diplomatic Protection (2006) states the legal criteria of acquisition of nationality that:
‘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, decent, naturalization, succession of States or in any other manner, not inconsistent with international law.’
These are accepted conditions of acquisition of nationality in international law. However, as an exception, it is stated in Article 12 of the Hague Convention, it may not confer nationality to the children of diplomatic agents by the birth in territory of state.
The vital point is that the issue of dual nationality arises when criteria of acquisition of nationality meet at the same time between countries and several issues arise between states to decide which state has a right to offer diplomatic protection. According to Evans, mainly, two principles are discussed in the cases of dual nationality which are the sovereign equality of states and effective link with states (Evans, 2006, 491). The issue of effective national was discussed in the Canevaro case (Italy v. Peru) (1912) 6 A.J.I.L. 746. The Peruvian Government claimed the non-payment of a number of cheques issued in 1880 by Jose Canevaro and his sons, but the issue occurred to Rafael Canevaro whose nationality was deemed. By operation of Italian law he was a national of Italy jure sanguinis while he was a national of Peru by the birth in Peru. Italy claimed diplomatic protection on behalf of Rafael Canevaro, but Peru refused to recognise his Italian nationality. The tribunal said that the Italian’s claim was denied because at that time the ‘effective nationality’ was Peruvian becuase in fact, he acted as a Peruvian citizen (Harris, 2004, 626-627). Therefore, in this case effective nationality was applied.
However, in the Salem case (Egypt v US) (1932) 2 R.I.A.A 1161, the principle of effective nationality was not suffice and the equality of state endorsed. Article 4 on the Hague Convention provides ‘A State may not afford diplomatic protection to one of its nationals against a State whose nationality such person also possesses.’ The United States brought the claim on behalf of Salem for compensation by Egyptian authorities. Salem was born in Egypt in 1883 and he naturalised in the United State, but there was a question that he was a Persian nationality by birth at that time of naturalisation. Eventually, the tribunal concluded that Salem was not an Egyptian subject, but Persian nationality when he acquired the United States’ nationality. Therefore, even though the Egyptian Government’s argument of effective nationality, its claim was inadmissible (Harris, 2004, 627). Dixon argues that the right to claims the de jure nationality of states was reaffirmed in this case (Dixon, 2005, 243).
The issue of effective nationality only arose in the Merge case (Italy v United States) (1955) 22 I.L.R 433, but also equality principle also faced in this case. Mrs Merge claimed her loss of personal property in Italy and United States brought claim on behalf of her. She was born in New York in 1909 and then by operation of Italian law she acquired Italian nationality because of her marriage to Italian husband in 1933. She had a United States passport and her legal residence was New York. However, the Commission decided inadmissibility of United States’ claim was based on sovereign equality of state and effective link between Mrs Merge and United State. The Commission commanded that in the case of diplomatic protection of dual nationality, the sovereign equality of State had to yield before the principle of effective nationality (Harris, 2004, 628) as it is proved above the Article 4 of the Hague Convention. Shaw argues that the sovereign equality of states was emphasised in the Merge case (Shaw, 2003, 727). However, when predominance is not proved it must not yield. Therefore, although her legal residence may be one of criteria of deciding nationality, but the effective bond which her individual economic, social, political, civil and family life had to be considered between two countries. The Commission found that there was no effective bond between her and United States, so the United States’ claim was barred (Harris, 2004, 629).
Dixon states relating to above the Salem and the Merge case that where one state is claiming against the other, the effective link test applied in the Merge Claim, while the effective link test could not be applied such as Salem case because if one of the states of nationality is claiming against a third state, the relative strength of nationality lies with the claimant state (Dixon, 2005, 244). Article 5 of the Hague Convention provides:
‘Within a third Stats, a person having more than one nationality shall be treated as if he had only one … in which he is habitually and principally resident, or the nationality of the county with which in the circumstances he appears to be in fact most closely connected.’
Jennings and Watts claim that this contributes in the cases of dual nationality (Jennings and Watts, 1996, 516). However, recently, Article 6 of the ILC Draft articles on Diplomatic Protection provides that any state of dual or multiple national may exercise diplomatic protection against a third state which a national is not a national of that state. In addition, in the cases of dual of multiple national, two or more states may exercise diplomatic protection jointly. According to Wallace, Britain tend to provide diplomatic protection jointly with the other state where the individual possesses dual nationality (Wallace, 2005, 196)
The issue of genuine link of state: de facto nationality
The Nottebohm case (Liechtenstein v Guatemala) 1955 I.C.J Rep 4, has marked a significant concept of the genuine link test in international law. Nottebohm acquired German national by jure soli in 1881, and then after he went Guatemala and became a resident of Guatemala in 1905. Since that Guatemala was centre of his interests and main business area. In addition, he had resided in Guatemala for 34 years until he applied naturalisation to Liechtenstein in 1939. However, after the naturalisation he returned Guatemala as his main interest of business but Guatemala expelled Nottebohm in 1943. Thus, Lichtenstein brought claim on behalf of their citizen, Nottebohm, against Guatemala for arresting, detaining, expelling, refusing to entry of Nottebohm and retaining of his property without paying compensation. Whereas Guatemala asked the Court the inadmissibility of Lichtenstein’s claim. Consequently, the Court decided that the only have genuine attachment between clamant state and its nationals can have a right to exercise diplomatic protection. Therefore, Lichtenstein’s claim was inadmissible due to his tenuous link with Liechtenstein and he had close connection with Guatemala (Harris, 2004, 621-622). Similar case was discussed again in the Flegenheimer claim (Itali v United States) (1958) 25 I.L.R. 91. The United States’ claim against Italy was inadmissible based on the genuine connection between the clamant and the state. The Court reaffirmed that there must exist effective link between the individual and the state in order to the state exercises diplomatic protection on behalf of the individual (Harris, 624). Gardiner argues that such as the individual’s habitual residence, the centre of interests, family tie, participation in public life, attachment to state and attachment of children to state have to be considered (Gardiner, 2003, 269).
However, according to Brownie, the Nottebohm case, there were main criticisms of application that at material time the effective nationality was Liechtenstein because the issue occurred between 1943 and 1951 and Nottebohm resided in Liechtenstein (Brownie, 2003, 401). However, Wallace states that a state will exercise diplomatic protection to its national only where a national is a citizen of states at the time of injury occurs and at the time claim is presented (Wallace, 2005, 196). Essentially, there was no effective bond between Nottebohm and Liechtenstein where the date of injury. Recently, this is reaffirmed Article 5 of the ILC Draft article of Diplomatic Protection 2006.
In addition, looking at the process of naturalisation, Article 1 of the Hague Convention provides that:
‘It is for each State to determine under its own law who are its national. This law shall be recognised by other States in so far as it is consistent with international conventions, international custom, and the principles of law generally recognised with regard to nationality.’
Hence, at the process of naturalisation, Liechtenstein did not grant naturalisation to Nottebohm in respect of international law and Nottebohm acquired nationality of Liechtenstein in bad faith in the period war time. In addition, the naturalisation of Nottebohm was not recognised by other states consistent with international law.
In addition, Shaw argues that the Nottebohm case should be limited the fact itself and there is no requirement of nationality to genuine link with states in international law (Shaw, 2003, 726). This genuine link test was rejected in the Barcelona Traction case (Belgium v Spain) (1970) I.C.J. Report 3. The Barcelona Traction Light and Power Company was registered under Canadian law, but the Belgium government brought claims on behalf of their nationals, who were major shareholders of the Barcelona Traction Company, for injuries of their properties by Spanish authorities. However, the court did not accept the genuine connection test, in certain field such as diplomatic protection of corporate entities. Consequently, the court rejected Belgium’s claim that where an unlawful was committed against shareholders of company, only the national state of the company could sue. Article 11 of the ILC Draft articles on Diplomatic Protection provides that:
‘A State of nationality of shareholders in a corporation shall not be entitled to exercise diplomatic protection in respect of such shareholders in the case of an injury to the corporation’
Conclusion
As it is discussed above the cases, the judgments are different based on nature and circumstances of cases. There is no absolute rule or obligation of diplomatic protection in international law. Therefore, as Aust argues, it is effective to protect its nationals are based on nature of factors itself. A state should examine whether the other countries treated wrongly its national, whether a state can bring a claim on behalf of national and admissible (Aust, 2002, 184). In the cases of violation of human rights, it is necessary to exercise diplomatic protection on behalf of nationals. However, it is doubtful whether a state should provide diplomatic protection to its nationals where commercially intended acts are barred by other states rather than breach of international minimum standard of human rights. All in all, it is discretionary to determine to provide diplomatic protection to its national and in certain cases such as dual nationality and genuine link test should be examined by the circumstances of cases and consistent with international law.
Bibliography
Texts
Aust, A. (2002) Handbook of International Law Cambridge, CUP
Brownlie, I (2003) Principle of Public International Law (6th edition) Oxford, OUP
Dixon, M. (2005) Textbook on International Law (5th edition) London, Blackstone
Evans, M. D (2006) International Law (2nd edition) Oxford, OUP
Gardiner, R. K (2003) International Law, Essex, Longman
Harris, DJ (2004) Cases and Materials on International Law (6th edition) London, Sweet and Maxwell limited
Jennings, R and Watts, A. (1996) Oppenheim’s International Law (9th edition) Essex, Longman
Shaw, M.N. (2003) International Law (5th edition) Cambridge, CUP
Wallace, R.M.M. (2005) International Law (4th edition) London, Sweet and Maxwell
Cases
Barcelona Traction case (1970) I.C.J. Report 3
Canevaro Case (1912) 11 R.I.A.A. 397. Translation in (1912) 6 A.J.I.L. 746
Flegenheimer Claim (1958) 25 I.L.R. 91
Merge Claim (1955) 22 I.L.R. 443
Nottebohm Case (1955) I.C.J. Report 4
Salem Case (1932) 2 R.I.A.A. 1161
Treaties
1930 Hague Convention on Certain Questions Relating to the Conflict of Nationality Laws, 179 L.N.T.S. 89
1948 Universal Declaration on Human Rights
2006 I.L.C. Draft Articles on Diplomatic Protection, Report of the I.L.C., 58th Sess. G.A.O.R., 61st Sess., Supp. 10 (A/61/10).