704 THE AMERICAN JOURNAL OF INTERNATIONAL LAW [Vol. 105:694 enforceable against states. However, this form of constraint said more about changing conceptions of women, family, and the state than it did about state capacity for self-definition. None of the four areas of international regulation meaningfully constrained states in their use of nationality law to set the terms of national identity. Diplomatic protection. A practice with deep roots in international law, diplomatic protection enables states to intercede with other governments on behalf of their nationals.56 Before the advent of human rights, diplomatic protection stood as the only constraint on the exercise of state power against individuals on sovereign territory. It was an important feature of the interstate dynamic, a sensitive limitation on sovereignty.57 The doctrine worked from the theory that an injury to a state’s national is an injury to the state itself.58 It was not a matter of solicitude for individuals, but of the vindication of state interests.59 So conceived, the tie between the individual and the state, formalized in the institution of nationality, represented a crucial element in the practice of diplomatic protection.60 Diplomatic protection was tested at two points of intersection with nationality practice. First, there was the question of whether a state’s determination of nationality was definitive for purposes of exercising protection, or whether the formal tie of nationality needed to be supported by other indicia of actual membership in the national community. This was the issue in the Nottebohm case, which involved a claim by Liechtenstein against Guatemala for the wrongful seizure without compensation of the property of a Liechtenstein national.61 Nottebohm had been a German national from his birth in 1881 until his naturalization in Liechtenstein in 1939.62 A longtime resident of Guatemala, Nottebohm had few ties to Liechtenstein before acquiring its nationality; his qualifications for naturalization appear to have consisted of the payment of a substantial sum to a subnational division of the principality,63 a promise to pay taxes going forward, and a visit of less than two weeks to undertake the naturalization formalities.64 Guatemala challenged the admissibility of Liechtenstein’s claim on 56 See generally, e.g., BORCHARD, supra note 18. See, e.g., J. L. BRIERLY, THE LAW OF NATIONS 204 (4th ed. 1949) (“a large part of the time of the legal department of every foreign office is taken up with” controversies relating to diplomatic protection). 58 Annemarieke Vermeer-Künzli, As If: The Legal Fiction in Diplomatic Protection, 18 EUR. J. INT’L L. 37, 38 (2007). 59 Thus, states have (at least under traditional doctrine on the question) no duty to exercise the right of diplomatic protection on behalf of a national who has been harmed. See BORCHARD, supra note 18, at 18; Vermeer-Künzli, supra note 58, at 63 (noting that state’s exercise of its right to diplomatic protection is discretionary). 60 “[I]t is the bond of nationality between the State and the individual which alone confers upon the State the right of diplomatic protection.” Panevezys-Saldutiskis Railway (Est. v. Lith.), 1939 PCIJ (ser. A/B) No. 76, at 16 (Feb. 28); see also Brownlie, supra note 14, at 290 (source of the “high significance which the concept of nationality has in the law”); Guy I. F. Leigh, Nationality and Diplomatic Protection, 20 INT’L & COMP. L.Q 453, 453 (1971) (“Without this connecting factor of nationality there can normally be no diplomatic protection.”). 61 Nottebohm (Liech. v. Guat.), 1955 ICJ REP. 4 (Apr. 6). 62 Id. at 13; see also Josef L. Kunz, The Nottebohm Judgment (Second Phase), 54 AJIL 536 (1960); Robert D. Sloane, Breaking the Genuine Link: The Contemporary International Legal Regulation of Nationality, 50 HARV. INT’L L.J. 1 (2009). 63 The facts as presented thus appeared to qualify as an early example of the contemporary phenomenon of “citizenship for sale.” See, e.g., Citizenship for Sale: Pledge of Allegiance, ECONOMIST, Feb. 1, 2007, at 45 (discussing states which offer citizenship or related benefits in exchange for money). Nottebohm subsequently developed what would clearly have qualified as a “real and effective” link to Liechtenstein, in the form of nine years’ residence prior to the issuance of the judgment. Nottebohm, 1955 ICJ REP. at 44 – 45 (Read, J., dissenting) (taking Court to task for ignoring evidence of genuine connection). 64 1955 ICJ REP. at 15–16. 57 This content downloaded from 82.196.111.31 on Thu, 07 Oct 2021 15:20:30 UTC All use subject to https://about.jstor.org/terms