Why Nationality is a Contentious Principle of Public International Law. Part 1: The Nottebohm Case.
Nationality seems to be the most simple and uncontentious notion of Public International Law, and even one of the pillars of State sovereignty. Legally defined as the judicial link between a State – which is allowed by international custom to choose how and to whom it will grant nationality – and a person, nationality concedes rights and duties in both intern law and international law. We will see in two articles that this idea of nationality as a positive legal link, determined by national jurisdictions through particular nationality laws, is not that obvious on the international stage.
The Nottebohm case is paramount in that matter and shows that you need more than a simple passport to be considered as the citizen of a country by International jurisdictions. Mr. Nottebohm was a wealthy German citizen who had lived in Guatemala for almost 40 years, from 1905 until 1943. On October 9, 1939, Nottebohm applied to become a naturalized citizen of Liechtenstein and truly became a citizen of this country shortly after. When he tried to go back to Guatemala in 1943 he was arrested, extradited to the United States – Guatemala and the US had just entered the Second World War against Germany – and held at an internment camp while Guatemalan authorities were seizing his possessions in Guatemala. Lichtenstein granted him diplomatic protection and petitioned the International Court of Justice against Guatemala. First, Guatemala argued that there had been procedural irregularities in the way Lichtenstein had recognized Mr. Nottebohm as its citizen: however the Court ruled that it is the sovereign right of States to fix by law how to grant citizenship.
Another point by the Guatemalan government was apparently a much more far-fetched argument, but it questioned the very essence of nationality and quickly became fundamental international jurisprudence.
Guatemala argued that Nottebohm’s Lichtenstein citizenship, however valid in municipal law, could not be opposed to another State because it was not effective. What did Guatemala mean by effective nationality? In Guatemala’s opinion, nationality was not a mere legal link between a State and a person; it had to be also a sentimental, familial, political connection assessed by facts – whether Nottebohm’s family was living in the said country, whether he had complied with military obligations there or whether he had political and social commitments there. Nationality was thus more than law; it was a more complex, mutable and meaningful notion that could be interpreted by international judges. Indeed the Court ruled in favor of Guatemala and sanctioned the principle of effective nationality – also called the Nottebohm criterion. It consequently stopped the case from continuing.
Even if Lichtenstein had decided to recognize Mr. Nottebohm as its citizen, the Court ruled in favor of effective nationality, denying the opposability of this nationality to another country. Philosophical origins of effective nationality can be traced back to the late 19th century with famous works such as “What is a Nation?” by French historian Ernest Renan, arguing that a Nation is a “daily referendum” and condemning the formal dimension of nationality. It shows that nationality is far from being a clear-cut notion of public international law and that it is still contentious in many ways, as we will see next week with the Stewart v. Canada case.
