THE RISK OF STATELESSNESS
56
YALE HUMAN RIGHTS & DEVELOPMENT L.J.
2017
[Vol. 19
In its majority decision, the ICJ made citizenship a necessary but not
sufficient condition for diplomatic protection, and introduced a genuine
link requirement for recognition of nationality under international law.45
The ICJ held that: “nationality 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.”46 The ICJ then
used the rationale that Nottebohm was not “in fact more closely connected
with the population of [Liechtenstein] than with that of [Guatemala]” to
find his claim to Liechtenstein nationality ineffective, and Liechtenstein
without standing to sue Guatemala for violations of Nottebohm’s rights
before the ICJ.47
On its face, Nottebohm appears to undercut the force of the norm that
nations are free to establish rules of nationality acquisition. However, Peter
Spiro has expressed a belief that the ICJ decision is “sovereignty
reinforcing” for two important reasons.48 First, the decision is sovereignty
reinforcing because Liechtenstein was attempting to constrain Guatemala’s
discretion over national matters.49 Upholding Liechtenstein’s right to do so
would mean that a state’s right to assert itself within the sovereign territory
of another was only as limited as its willingness to extend nationality.50
Further, Spiro believes that Nottebohm protects sovereignty in the sense that
it provides rules for the resolution of sovereign clashes vis-à-vis dual
nationals with regard to diplomatic protection.51 He emphasizes a reading
of Nottebohm that limits its significance to the arena of diplomatic
protection, and that the decision did not “negate his status as a national” in
Liechtenstein, nor did it purport to govern his status as a member of that
sovereign nation.52
Whatever forms the critiques and rationalizations of Nottebohm may
take, none dispute that the ICJ decision is a basic point of reference for the
discourse on the evolution of nationality in the Twentieth Century. The
decision should be read in the historical context of the post-war world and
in conjunction with the simultaneous evolution of human rights doctrine.
In 1948, the UDHR heralded a new era in the global consciousness with
regard to individual rights.53 UDHR Article 15 declared that “[e]veryone
has the right to a nationality,” and that “no one shall be arbitrarily deprived
(on file with author).
45. Nottebohm Case, 1955 I.C.J. at 26.
46. Id. at 23.
47. Id. at 23, 25-26.
48. Spiro, supra note 7, at 284.
49. Id.
50. Id.
51. Id. at 284-85.
52. Id. at 284.
53. See U.N. Office of the High Comm’r for Human Rights, Statement by the UN High
Commissioner for Human Rights Navi Pillay on the Occasion of the 60th Anniversary of the
Universal
Declaration
of
Human
Rights
(Dec.
10,
2008),
http://www.ohchr.org/EN/NewsEvents/HRDay20072008/Pages/60UDHRHCStatement2008.aspx [https://perma.cc/8RK3-VZ3A].
Electronic copy available at: https://ssrn.com/abstract=3111529
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