Exploring Atypical Citizenship Deprivation and Spillover Effects To explore how citizenship is recognised internationally — and thereby assess the challenges facing Taiwanese citizenship — the next section introduces the genuine link theory and then examines its application to Taiwanese citizenship. III THE GENUINE LINK THEORY, PREDOMINANT NATIONALITY, AND TAIWANESE CITIZENSHIP In the realm of international law, recognition of an individual’s nationality40 by a state depends on the establishment of genuine connections between the person and the conferring state. This principle has been long debated for its role in the recognition of nationality, and continues to hold significance in determining nationality today. This principle dates to the 1955 Nottebohm Case,41 in which the ICJ ruled that Liechtenstein could not claim diplomatic protection on behalf of Friedrich Nottebohm as there was no genuine link (or connection) between Lichtenstein and Mr Nottebohm. Although this case concerned diplomatic protection, looking from the recognition of nationality, states are not obliged to acknowledge a nationality granted by another state, unless the individual whose nationality is in question has a legitimate and effective connection with the conferring state. However, the binding force of the Nottebohm Case has long been questioned, with limitations emerging in its application. Shortly after the ruling, for instance, the Italy-US Claims Commission restricted the genuine connection requirement primarily to dual nationality cases related to diplomatic protection.42 In 2006, the International Law Commission rejected the requirement of genuine connection for natural persons in the Draft Articles on Diplomatic Protection (‘Draft Articles’),43 citing difficulties in implementing such a rule in a globalised world marked by large-scale immigration and emigration.44 The application of the genuine link theory in contemporary international law also faces criticism. Scholars like Martijn van den Brink argue that it may lead to ‘unacceptable uncertainty’ for today’s mobile citizens, especially concerning European Union citizenship. 45 This critique calls for limiting the theory’s application, allowing individuals without real and effective ties with the granting state to securely hold that nationality while residing in other states. While the genuine link requirement may not universally apply as a rule for recognising ‘real’ nationality or acquiring nationality, discussions on the connection between individuals and states have expanded to include the concept of multiple nationalities. Article 7 of the Draft Articles introduces the predominant nationality test to assess an individual’s multiple nationalities, and to determine which one holds greater significance and effectiveness when seeking diplomatic 40 41 42 43 44 45 ‘Nationality’ and ‘citizenship’ are often treated as interchangeable terms in international law, although they may be interpreted differently in certain contexts, particularly at the domestic level. See Shaw, The People in Question (n 6) 19–23). Nottebohm Case (Liechtenstein v Guatemala) (Second Phase) [1955] ICJ Reports 4 (‘Nottebohm Case’). Flegenheimer Case (Italy v United States of America) (Decision) (1958) 24 RIAA 327. Diplomatic protection: titles and texts of the draft Articles on Diplomatic Protection, UN Doc A/CN.4/L.684 (19 May 2006) (‘Draft Articles’). Report of the International Law Commission on the work of its fifty-eighth session, Official Records of the General Assembly, Sixty-first Session, Supplement No 10, UN Doc A/61/10 (2006, adopted 21 September 2007) 22–100 (‘Draft Articles on Diplomatic Protection with commentaries’). Martijn van den Brink, ‘Revising Citizenship within the European Union: Is a Genuine Link Requirement the Way Forward?’ (2022) 23(1) German Law Journal 79, 96. 109