The ‘Genuine and Effective Link’ law. Notwithstanding such a bar, adoption of the principle may still be available as a matter of policy. This Part considers whether such a direct transplantation is possible, and if not, whether adoption as a matter of policy is both possible and warranted. The Nottebohm principle is premised upon the understanding that citizenship is construed in light of the strength of a person’s links to a polity, those links having met a certain threshold. Having identified this, we can then consider the various sources of this principle, and the problems (if any) of incorporating them into Malaysian domestic law. Here, I identify three sources: (i) international law, (ii) English common law and (iii) citizenship by naturalisation in the Federal Constitution. A International Law While Nottebohm itself was not concerned with dual nationality, it both crystallised and extended the ‘real and effective nationality’ concept in international arbitration jurisprudence. 63 The position of Nottebohm itself in the wider context of international law is considered in the commentaries of the International Law Commission’s (‘ILC’) ‘Draft Articles on Diplomatic Protection’ (‘Draft Articles’). 64 The Draft Articles, despite not having been formally adopted as a treaty by the UN General Assembly, are generally regarded as codifying customary international law in that area. They have also been cited with approval by the ICJ in several cases. 65 Article 7 of the Draft Articles provides that a state of nationality may not exercise diplomatic protection over a dual national against another state of nationality unless ‘the nationality of the former State is predominant’. The concept of a ‘predominant nationality’ first emerged in the Mergé Claim (‘Mergé’) decision of the Italian–United States Conciliation Commission, which also marked the starting point of the customary rule. 66 However, its origins are rooted in the ‘effective link’ principle in Nottebohm, which was itself cited with approval in Mergé. 67 The ILC also considered that the terms ‘effective’ and ‘dominant’ nationality, used interchangeably in the case law, both meant the same thing. 68 The term ‘predominant’ stresses the element of relativity and the need for an assessment of the strength of a person’s link with a particular state. 69 The application of the principle in this context is evocative of the case where a person is born out of wedlock in Malaysia to a non-national mother, as occurred in Lim. Applied in the context of citizenship conferral, therefore, the relevant issue for consideration (as shown in the modified s 1(e) test) should be the strength of their link to the Malaysian polity, relative to the strength of their link with the country of their birth mother. However, the conceptual difference between international and domestic law remains. While both cases concern issues of (purported) dual/multiple nationality, 63 64 65 66 67 68 69 ibid 21–24. Report of the International Law Commission: Fifty-Eighth Session UN Doc A/61/10 (1 May– 9 June and 3 July–11 August 2006) 16 [49]–[50] (‘Draft Articles’). Ahmadou Sadio Diallo (Republic of Guinea v Democratic Republic of the Congo) (Preliminary Objections) [2007] ICJ Rep 582. Mergé Claim (1955) 22 ILR 443 (‘Mergé’). ibid 455. Draft Articles (n 64) 45–46, citing Mergé (n 66). ibid. 323