ANALYZING LIECHTENSTEIN VS. GUATEMALA: NOTTEBOHM CASE

By Shivanshi Gupta

The International Court of Justice (ICJ) in the case of Liechtenstein vs. Guatemala laid down the principle of effective nationality also known as the Nottebohm principle. It means that domestic law is not enough to contest nationality to another country, the nationality should be effective too. The relation of citizen with its country is not a mere legal relation it has to also be wedded with the traditions, culture and values of the country. The general rule for granting of citizenship is the work of the country itself but in order for it to be recognized by other country, the citizenship must be effective.

FACTUAL BACKGROUND AND TIMELINE OF THE CASE

Nottebohm was a German citizen who went to Guatemala in 1905. There he was employee of the firm which was founded by his own brothers in 1937 he was made the head of the firm. Nottebohm used to pay few visits to a brother who used to live in Liechtenstein since 1931. He had fixed his abode in Guatemala since 1943 until the present dispute.

In 1939 he applied for citizenship for Liechtenstein before World War II began. His application was approved and under German law, he lost his citizenship of Germany. In 1940, he returned to Guatemala on the passport of Liechtenstein and inform the local government of his change of Nationality. On December 11, 1941, Germany takes the side of Allies and formally declared war on Germany. Despite having the Liechtenstein citizenship Guatemala government was of the opinion that he belonged to Germany, they seized all his property. Friedrich Nottebohm was arrested and handed over to the United States. In 1951, the Liechtenstein government, acting on behalf of Nottebohm brought suit against Guatemala in the International Court of Justice.

The two relevant issues in this case were whether the nationality granted by naturalization in nottebohm’s case has adhered to principle of effective -genuine connection and secondly, whether Mr. Nottebohm, having acquired the nationality of Liechtenstein, that acquisition of nationality is one which must be recognized by other States or not.

LIECHTENSTEIN’S CONTENTIONS

The dispute between Liechtenstein and Guatemala is subject-matter of the application to the Court by the Government of Liechtenstein. Moreover, the naturalization of Mr. Nottebohm in Liechtenstein was granted in accordance with the municipal law of Liechtenstein and was not contrary to international law and that Mr. Nottebohm exhausted all the local remedies under the municipal law of Guatemala and international law.

GAUTEMALA’S RESPONSE

Absence of any prior diplomatic negotiations to disclose the existence of a dispute between the Principality of Liechtenstein and Guatemala before filing of the application for instituting proceedings. Moreover, Nationality of Liechtenstein not acquired properly in accordance with the law of the Principality.

The local remedies available to Friedrich Nottebohm under the Guatemalan legislation were not exhausted and thus no violation of international law committed by Guatemala in regard to Mr. Nottebohm.

THE COURT’S REASONING

The Court upheld the principle of effective nationality (the Nottebohm principle) the national must prove a meaningful connection to the state in question. The court supported Guatemala’s argument that Nottebohm did not gain Liechtenstein citizenship for the purposes of international law and stopped the case from continuing. It was held that the claim submitted by the Government of the Principality of Liechtenstein is inadmissible by votes of eleven to three.

ANALYSIS OF THE JUDGMENT

The court said that there was no genuine link of Nottebohm with Liechtenstein and thus the judgment was passed in the favour of Guatemala, that Guatemala is not bound to recognize him as the citizen of Liechtenstein. The court said that the reason why Nottebohm applied for citizenship in Liechtenstein is that he wanted to get rid of being the citizen of a belligerent state i.e. Germany due to world war II.

This case is widely criticized for multitude of reasons, the most primary reason is that with increase in the concept of dual citizenship it is difficult to proof ‘genuine connection’ as this link can only be for one country, thus this test was not successful when applied in the case of dual citizenship.

The international law has not laid down any basis for determining the rules of nationality and to limit them except in the cases of fraud. In this case Nottebohm own motive with respect to naturalization were not tested and thus are it should not be considered for the legality of naturalization. The genuine test was applicable only for the citizens who have applied for citizens who have acquired citizenship by naturalization. This was done because the jus sanguanis principle which means that the person gets citizenship due to the nationality of their parents was not put under the test and it left a major chunk of people who left the country but were still the citizens because of their parent’s nationality. Thus, the application of this test was not uniform.

In this case, Nottebohm was considered as a German national even though he did not possess German citizenship. The court never discussed that as to why Nottebohm remained a German national even after losing his citizenship in 1939. The determination of the ‘genuine link’ was to be done by the state officials which invited bribery, arbitrariness, discretion. Thus, this test is not free from the bias and with contemporary world such acts of biasness has been observed greatly.

The test of effective nationality is flawed in this case due to a couple of reason, Firstly- this concept can never confer any nationality but in the absence of this, the nationality can only be negated. This test only applies negative force. Secondly- This test does not work under the cases of dual citizenship as ‘genuine link’ can only be with one country. Thirdly- The power to decide whether there was ‘genuine link’ or not vested with state officials thus it was not free from the bias. Fourthly- The application of this test was not uniform; this test was required only by people who have applied for citizenship by naturalization method.

With rise in globalization over a period of time, people have started moving across jurisdictions frequently in order to establish their business, for studies etc. thus the concept of dual citizenship is now widely recognized by a lot of countries in the world. If we follow the tests of ‘genuine link’ today it shall give not favorable result as people have now started having relations with a more than one country due their work commitments. Thus, this test is now widely criticized in the world.

Another aspect which can be considered as a criticism of this ‘genuine link’ test is that it was only confined to diplomatic protection. The present case is also in conflict with leading case of Nystrom v. Australia , in this cases the court said that the rights of an individual flow not from his status but from the personhood but in Nottebohm the court held that the rights of individual flow from his status.

A.12 (4) of ICCPR states that ‘no person shall be arbitrarily denied the right to enter his own country’. There is use of the term ‘one’s own country’ and not of ‘country of nationality’. This provision secures the right against non deportability and citizenship. The need of the hour with respect to the laws of citizenship is that they should be based on coherent set of human rights and as we rise rapidly towards the globalization the holding of the Nottebohm case does not stands in consonance with the same.

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