Nottebohm Case: Liechtenstein v. Guatemala

Facts:

Friedrich Nottebohm was born in Hamburg Germany and was its citizen. In 1905, for the purpose of starting his business in trade, banking, and plantations with his brothers, Friedrich Nottebohm moved to Guatemala. He resided in Guatemala until 1943, however, he never acquired the Guatemalan citizenship. Friedrich Nottebohm visited Germany for business and also paid a few visits to Liechtenstein. In 1939, before World War II began, he applied for citizenship of Liechtenstein through naturalization, and his application was approved. Friedrich Nottebohm became Liechtenstein’s citizen and according to the German law, he lost his Germany’s citizenship.

In January 1940, when he returned to Guatemala, Friedrich Nottebohm informed the local government about his change of nationality. On December 11, 1941, Germany supported Allies and formally declared war on Guatemala. Thus, after the world war, despite of the Liechtenstein’s citizenship, the Guatemala government rejected Friedrich Nottebohm’s citizenship and seized all his property (still considered him as Germany’s citizen). Later he was arrested and handed over to the United States. While the Guatemalan government had already confiscated all his property in the country, the US government also seized his company’s assets in the US. 

In 1951, the Liechtenstein government, on behalf of its citizen Nottebohm, brought a suit against Guatemala in the International Court of Justice. The suit was against the unjust treatment and the illegal confiscation of Nottebohm’s property.

Issues & Arguments

Issue 1

Whether the expiry of the Declaration by which Guatemala acknowledged the Court’s mandatory jurisdiction has ended the authority of the Court to deal with Liechtenstein’s claim after the expiry of five years?

Contentions of Guatemala

The pleas of inadmissibility of Mr. Nottebohm’s claim against Liechtenstein:

• The Republic of Guatemala recognized the compulsory jurisdiction of the Court, but not in an absolute and general form. It contended that it was unable to appear before the International Court of Justice because the jurisdiction of the International Court of Justice in relation to Guatemala had terminated. Thus, it would be contrary to the domestic laws of the country.
• The Ministry was quite willing to begin negotiations with the Principality of Liechtenstein and the attitude of Guatemala is not one of default or of voluntary absence but is towards respect of the domestic laws.

Contentions of Liechtenstein

The pleas of inadmissibility of Mr. Nottebohm’s claim against Guatemala:

• The observations and communications of the Government of Guatemala constitute a Preliminary Objection and is based on assumption.
• The terms of the Declaration made by Guatemala and submitting to the jurisdiction of the Court for five years are sufficient to confer jurisdiction upon the Court.
• The International Court of Justice has jurisdiction both under Article 36(VI) of the Statute and under general principles of international law.

Issue 2

Whether nationality be disregarded by other states when it is used as means since conferring nationality is generally the concern of the granting nation?

Contentions of Guatemala

The pleas of inadmissibility of Mr. Nottebohm’s claim against Liechtenstein:

• Absence of any prior diplomatic negotiations to disclose the existence of a dispute between the Principality of Liechtenstein and Guatemala before the filing of the application for instituting proceedings.
• Nationality of Liechtenstein not acquired properly in accordance with the law of the Principality. Nottebohm solicited Liechtenstein’s nationality fraudulently because of the absence of any genuine intention to establish a durable link to sole object of acquiring the status of a neutral national.
• The local remedies available to Friedrich Nottebohm under the Guatemalan legislation were not exhausted.
• No violation of international law committed by Guatemala in regard to Mr. Nottebohm as Guatemala was not obliged to regard the naturalization of Friedrich Nottebohm in the principality of Liechtenstein binding upon her, to bar to treatment of an enemy national due to inadmissibility of the claim related to the nationality.

Contentions of Liechtenstein

The pleas of inadmissibility of Mr. Nottebohm’s claim against Guatemala:

• The dispute between Liechtenstein and Guatemala is the subject-matter of the application to the Court by the Government of Liechtenstein. Hence, without further diplomatic negotiations between the parties, it is admissible for adjudication by the Court.
• The naturalization of Mr. Nottebohm in Liechtenstein was granted in accordance with the municipal law of Liechtenstein and was not contrary to international law. He was divested of his German nationality which makes Liechtenstein’s claim on Nottebohm as a national of Liechtenstein admissible in the Court.
• Guatemala’s claim that Mr. Nottebohm has not exhausted local remedies is removed from the Court’s jurisdiction by prorogation in this case; or “alternatively that the plea goes properly not to the admissibility of Liechtenstein’s claim on his behalf but to the merits of that claim.” Mr. Nottebohm exhausted all the local remedies under the municipal law of Guatemala and international law.

Ratio

• 1953- “The Court rejected the Preliminary Objection presented by Guatemala and resumed the proceedings on merits.”
• 1955- The Court purported the principle of effective nationality as citizenship was not acquired for the purposes of international law. The claim of the Government of Liechtenstein was held inadmissible by votes of eleven to three.

The Court stated that though a state has sovereign right to determine its own citizens and criteria for becoming one in municipal law, such a process would have to be internationally scrutinized if the question is of diplomatic protection. This does not assume, however, that other States must necessarily recognize the designation of the conferred State unless it has behaved in compliance with the general objective of creating a genuine connection between it and its national objective. The Nottebohm principle was followed, a supplementary and mandatory prerequisite for recognition of nationality at international law – ‘the national must prove a meaningful connection to the state in question’.

The court was of the opinion that Nottebohm’s naturalization as a citizen of Liechtenstein had not been based on any genuine link with that country but for the sole purpose of allowing him in times of war to replace his position as a national of a belligerent state with that of a neutral one. The Court held that Liechtenstein was not entitled to take up his case and put forward an international claim on his behalf against Guatemala as there was an absence of any effective link between Nottebohm’s citizenship with the country. The sole aim of Nottebohm was to acquire protection and not be wedded to the traditions and interests of Liechtenstein.

Analysis

“International law treats nationality as an evidence of genuine link of an individual with its state.” The judgment in this case reflects the essence of ‘connection’ with the population of the state conferring the citizenship. The ICJ highlighted that according to the state practices, judicial and arbitral decisions as well as the opinions of the writers, a ‘genuine connection of existence’- “principle of effectiveness”, sentiments, social fact of attachment with the state is necessary along with the existence of reciprocal rights and duties. Nationality, and the relation between a citizen and the State to which he owes allegiance, are of such a character that they demand certainty. Nationality and diplomatic protection are closely inter-related. The general rule of international law is that nationality gives rise to a right of diplomatic protection.

The import of the Court’s decision was to render inoperative the general rule of international law, outside the well-established exceptions relating to dual nationality, that the State of nationality has the right to exercise diplomatic protection over its national abroad. Dual citizenshipis a situation when a single person is legally recognized as a citizen of two or more countries at the same time. The principle of effectiveness was evolved for the purpose of determining the citizenship of an individual in case of dual citizenship, on the basis of ‘genuine link’. The aspect focused is regarding the sovereignty of the state. A sovereign state has the power to create its own legislation related to the aspect of acquiring nationality and even confer nationality by naturalization in accordance with its legislation. Nationality generally, only effects the legal system of the state conferring it. However, international law is responsible for determining whether a state has an entitlement to exercise protection.

Hague Draft Convention of 1930 – Article 1:

For each State to determine who are its nationals under its own law. It shall be recognized by other States if it is consistent with “international conventions, international custom, and the principles of law generally recognized with regard to nationality”.

According to this rule to the case, Liechtenstein had the right to determine the nationality of Mr. Nottebohm. Moreover, Liechtenstein law was consistent with international conventions, as well as customs and the principles of law. Granting citizenship by naturalization was based on Liechtenstein’s discretion and under its domestic jurisdiction, however, the question which arose was whether there was the presence of international law under this consideration or does international law contemplate the imposition of the condition of “effectiveness” of the nationality link as the limiting basis for the exercise of diplomatic protection by the national State of an individual?

Nottebohm’s naturalization was motivated by a desire to break his ties with Germany which is proven by his application for naturalization, his oath of allegiance to Liechtenstein, and acquiring a certificate of naturalization and a Liechtenstein passport. The issue arose when the requirement of three years’ residence was waived off even though Liechtenstein had the discretionary right to dispense with the residential requirement.  The judgment of the court relied on that the naturalization of Nottebohm was not a genuine transaction as it was acquired for the purpose of obtaining neutral status and the diplomatic protection of the State.

It has been more than six decades since the Nottebohm judgment and the time to retire the Nottebohm principle has arrived. The principle focuses on “genuine links” of individuals with state leads to uncertainty in the application of law, invited arbitrariness as well as abuse of discretion due to absence of any basis for determining genuine link- it depends on case to case basis.

This principle is also not applicable in determining nationality in case of single citizenship, as an absence of aby genuine link in case of single citizenship will lead to loss of status of an individual. When a person is vested with only one nationality attributed to him by a valid naturalization entailing the positive loss of the former nationality, the theory of effective nationality cannot be applied without the risk of causing confusion. This is due to the absence of proven effectiveness for disclosing the effectiveness of a bond with a political collectivity, and the persons by the thousands who, because of the facility of travel in the modern world, possess the positive legal nationality of a State, but live in foreign States where they are domiciled and where their family and business center is located, would be exposed to non-recognition, at the international level, of the nationality with which they are undeniably vested by virtue of the laws of their national State.

The principle also fails to establish a noncitizen’s right to citizenship. Nottebohm citizenship regime should no longer be followed “for each state to determine under its own laws who are its nationals”. The states should devise a coherent and human rights-compliant set of binding international norms governing attribution, conferral, and withdrawal of nationality rather than relying on this ambiguous and unjust principle.