2021 Statelessness & Citizenship Review 3(2) the relativity assessment in diplomatic protection caselaw is directly related to issues of state sovereignty and non-intervention in the domestic affairs of other states. In short, there must be a legitimating link for a state to be able to invoke diplomatic protection over an individual. Conversely, there is no corresponding necessitating factor in citizenship conferral; indeed, sovereign states have the authority to determine their own rules on citizenship acquisition. 70 Some additional support may be derived from art 8 of the Draft Articles, which extends diplomatic protection to stateless persons who are ‘lawfully and habitually resident’ in a state’s domain. 71 This draft article is regarded as a progressive development of the existing rule and it follows that it may not be considered part of customary international law. 72 Nevertheless, our interest here is with the ILC’s adoption of the ‘lawfully and habitually resident’ factor as a precondition for diplomatic protection to apply to a stateless person/refugee. The commentaries make clear that the term ‘lawfully and habitually resident’ is derived from art 6 of the European Convention on Nationality, which in turn imposes an obligation upon state parties to facilitate the acquisition of nationality of various categories of persons. 73 While art 8 of the Draft Articles is only concerned with the exercise of diplomatic protection over such individuals and does not purport to pronounce on their status, 74 I argue that the origins of the terminology and its usage in the draft article are relevant. First, the habitual residence of an individual was regarded as an ‘important factor’ in determining the strength of their ties to a state by the Court in Nottebohm. 75 Second, and relatedly, the use of the term in the European Convention on Nationality relates to the acquisition of citizenship and is thus directly relevant to our purposes, but also because the implied premise here is that physical presence in a domain is a precondition to the acquisition of citizenship. In other words (and taken together with Nottebohm), it is a factor indicative of a link to the polity. Finally, its inclusion in art 8 of the Draft Articles as a precondition for diplomatic protection to be afforded resonates with the idea that a person’s links with a polity can develop/strengthen over time. If citizenship acquisition is regarded as recognition of an individual’s links meeting the ‘strength’ threshold of a polity to qualify as a member, the exercise of diplomatic protection over a stateless/refugee non-national is arguably the state reciprocal of the progressive strengthening of their links. Notably, this accords with Shachar’s conception of the ‘incremental process’ central to the jus nexi principle discussed in Part III. 76 One final contextual point bears mention here. The preconditions discussed above (‘predominant nationality’ and ‘lawfully and habitually resident’) are restrictive in nature, in the sense that they prevent a state from exercising diplomatic protection over an individual unless they are satisfied. On the other hand, this article is largely concerned with applying the Nottebohm principle in a 70 71 72 73 74 75 76 Nottebohm (n 1). The caveat here is that states may themselves fetter their own authority by acceding to the imposition of such necessitating factors, ie, by ratifying an international treaty. Draft Articles (n 64) 18 art 8. R (on the application of Al Rawi) v Secretary of State for Foreign Affairs [2009] EWHC 972 (Admin). Draft Articles (n 64) 49 n 91, citing European Convention on Nationality, opened for signature 11 April 1997, CETS 166 (entered into force 1 February 1999) art 6(4)(g). Draft Articles (n 64) 47–48. Nottebohm (n 1) 22. Shachar (n 56) 168–69. 324