2021 Statelessness & Citizenship Review 3(2) THE ‘GENUINE AND EFFECTIVE LINK’ PRINCIPLE AS A SUPPLEMENTARY ELEMENT OF THE CITIZENSHIP TEST The case of Nottebohm centred on Frederic Nottebohm (‘N’), who was born a German citizen but resided in Guatemala where he ran the family business. 49 Shortly after the outbreak of World War II, N applied for and was granted citizenship of Liechtenstein. 50 During the war, the Guatemalan Government, regarding N as a German national, seized his property and handed him over to the United States for internment. 51 Subsequently, Liechtenstein brought a claim on N’s behalf against Guatemala at the International Court of Justice (‘ICJ’). The issue arose of whether N’s naturalisation (entitling Liechtenstein to invoke diplomatic protection over N) could be validly invoked against Guatemala. The ICJ drew upon international arbitration jurisprudence in diplomatic protection cases concerning dual nationals, which established that protection could only be validly invoked by an applicant state of ‘real and effective nationality’ against a respondent state. 52 This required a factual assessment of the strength of an individual’s ties with the invoking state, involving factors such as their habitual residence and the centre of their interests. 53 The Court concluded: [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. 54 On the facts, N’s links to Liechtenstein were extremely tenuous and they lacked the genuineness required to allow diplomatic protection to be invoked against Guatemala. 55 Liechtenstein’s claim was therefore inadmissible. What does Nottebohm suggest in the context of citizenship conferral? If citizenship is based on a social fact of attachment, then the test for conferral should be concerned with identifying whether that attachment exists, ie, whether an individual has a genuine and effective link to the polity (the ‘genuine and effective link’/Nottebohm principle). Notably, this concept was explored by Ayelet Shachar in advancing her jus nexi principle of citizenship, defined as a ‘genuine-connection principle of membership acquisition’. 56 Although Shachar’s work primarily develops a theoretical case for her principle, several aspects are relevant to our Malaysia-specific discussion. Should the Nottebohm principle displace the existing jus soli/jus sanguinis principles to become the sole determinant of citizenship conferral, or should it instead be adopted as a supplementary consideration to them? Shachar, whilst arguing that the existing principles are formalist proxies of whether a genuine link to the polity exists, accepts that her jus nexi principle can be adopted in either capacity. 57 I argue that the Nottebohm principle should be adopted as a supplementary element of the s 1(e) citizenship test on the basis that this conforms with 49 50 51 52 53 54 55 56 57 Nottebohm (n 1) 12. ibid 15. ibid 18. ibid 22. ibid. ibid 23. ibid 25–26. Ayelet Shachar, The Birthright Lottery (Harvard University Press 2009) 164. ibid 165–70. 320