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Is it time to retire Nottebohm?

  • Audrey Macklin (a1)
Extract

[N]ationality is a legal bond having as its basis a social fact of attachment, a genuine connection of existence, interests and sentiments, together with the existence of reciprocal rights and duties. It may be said to constitute the juridical expression of the fact that the individual … is in fact more closely connected with the population of the State conferring nationality than with that of any other State.

Scholars of migration and citizenship will recognize the famous passage from the judgment of the ICJ in Nottebohm and perhaps be able to recite it from memory. But Nottebohm is nearing sixty-five, and so the inevitable question arises: is it time to retire the case? One impetus for the project of global migration law is the recognition of “current structures as historically contingent artifacts of a sovereignty-based global system in need of reform.” No artifact does more work in sustaining the current configuration than the use of citizenship (or nationality) as the technology for regulating transnational movement. Sooner or later, a conversation about the emergence of global migration law must grapple with international law's position on nationality, which brings us back to Nottebohm.

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This is an Open Access article, distributed under the terms of the Creative Commons Attribution licence (http://creativecommons.org/licenses/by/4.0/), which permits unrestricted re-use, distribution, and reproduction in any medium, provided the original work is properly cited.
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1 Nottebohm Case (Liech. v. Guat.) (Second Phase), 1955 ICJ Rep. 4, 23 (Apr. 6).

2 For purposes of this essay, I use the terms citizenship and nationality interchangeably, recognizing that the distinction may be relevant in other contexts. I address only nationality of natural persons and not legal persons or nonhuman entities.

3 Case C-369/90, Micheletti, Opinion of Advocate General Tesauro 4355-56, ECLI:EU:C:1992:47. See also John Dugard (Special Rapporteur on Diplomatic Protection), First Report on Diplomatic Protection para. 117, UN Doc. A/CN.4/506 and Add. 1.

4 See, e.g., Ayelet Shachar, The Birthright Lottery 166-67 (2009), who invokes Nottebohm in support of her jus nexi proposal. Diane F. Orentlicher, Citizenship and National Identity, in International Law and Ethnic Conflict 299, 306, 308, 320 (David Wippman ed., 1998); Peter J. Spiro, A New International Law of Citizenship, 105 AJIL 694, 722-23 (2013) (noting that level of “genuine links” required to establish right to citizenship would be higher than that required for state to exercise diplomatic protection).

5 Nottebohm Case (Liech. v. Guat.) (Second Phase), 1955 ICJ Rep. 4, 42-43 (Apr. 4).

6 Discussion of the rights and duties of states in relation to property held by neutrals and by enemy aliens during war time lies beyond the scope of this contribution, and the law. The law is also unclear. In particular, it is not apparent that even had Nottebohm been properly regarded as an enemy alien, Guatemala could lawfully retain his property without compensation after the war. See Rex M. Potterf, Treatment of Alien Enemy Property in War Time and After by the United States, 2 Ind. L.J. 453 (1927). The United States settled its claims with Nottebohm after the war.

8 Robert Sloane offers a novel third approach, arguing that the majority's reasoning masks the “true” basis for its decision, namely abuse of right. See Robert D. Sloane, Breaking the Genuine Link: The Contemporary International Legal Regulation of Nationality, 50 Harv. Int'l L. Rev. 1, 1 (2009).

9 Human Rights Committee, Warsame v. Can., Communication No. 1959/2010 para. 8.5, UN Doc. CCPR/C/102/D/1959/2010 (Sept. 1, 2011).

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