2011] AN INTERNATIONAL LAW OF CITIZENSHIP 705 Nottebohm’s behalf before the International Court of Justice on the ground that his naturalization was defective. The Court found Nottebohm’s naturalization not to have international effect, at least not for purposes of exercising protection against Guatemala. The Court necessarily peered behind the veil of the naturalization decision to consider whether Nottebohm’s acquisition of Liechtenstein citizenship was “real and effective.” “[N]ationality is a legal bond having as its basis a social fact of attachment,” the Court observed, “a genuine connection of existence, interests and sentiments, together with the existence of reciprocal rights and duties.”65 Nottebohm failed the test, “his actual connections with Liechtenstein [being] extremely tenuous.” His naturalization had “the sole aim of . . . coming within the protection of Liechtenstein but not of becoming wedded to its traditions, its interests, [or] its way of life.”66 The Court thus evinced an identity-based conception of nationality as something more than a formal legal classification, as coinciding with some fact of organic community. But the Court was careful to limit its inquiry to the international effect of Nottebohm’s nationality and to preserve the state’s discretion over nationality determinations for purposes of municipal law. The Court refrained from confronting the validity vel non of Nottebohm’s naturalization. “It is for Liechtenstein,” the Court observed, “as it is for every sovereign State, to settle by its own legislation the rules relating to the acquisition of its nationality.” Noting that “for most people” nationality has “its only effects within the legal system of the State conferring it,” the Court affirmed “the wider concept that nationality is within the domestic jurisdiction of the State.”67 The decision had nothing to say about Nottebohm’s status in Liechtenstein, only that his nationality could not be used as a weapon against another state.68 In this respect, one can frame the decision as sovereignty reinforcing. Liechtenstein’s claim, as with all claims of diplomatic protection, sought to constrain Guatemala’s discretion. If not for Nottebohm, diplomatic protection would have been only as limited as a state’s willingness to extend nationality. That prospect was more of a threat to sovereignty than was the refusal to recognize the international effect of nationality determinations on the margins. Nor did the decision significantly impair state capacities to draw the contours of their membership, other than to police their doing so in an unreasonable, attenuated manner (and then for international purposes only).69 In this respect, Nottebohm was merely an extension of the accepted rule that states could not reach out to claim those to whom they had no real connection.70 65 Id. at 23–24. Id. at 25–26. 67 Id. at 20. 68 See Kunz, supra note 62, at 550 (“The judgment does not adjudicate upon the validity of the acquisition of Liechtenstein nationality by Nottebohm.”); J. Mervyn Jones, The Nottebohm Case, 5 INT’L & COMP. L.Q. 230, 234 (1956) (“In the result it seems clear that [Nottebohm] did in fact become a Liechtenstein national, and the Court in its judgment did not question this fact.”). There is some tension internal to the opinion on this point. The Court at one point, for example, describes Liechtenstein as Nottebohm’s “nominal country.” Nottebohm, 1955 ICJ REP. at 22. 69 To the extent that the decision was perceived by contemporary observers not to reflect positive law, it was highly controversial. See Kunz, supra note 62, at 537–39 (describing critical attacks and controversy surrounding the decision); see also Sloane, supra note 62, at 17–24 (dismissing genuine-link theory as dictum not reflecting positive law at time of decision). 70 See supra text accompanying notes 14 –18; see also H. F. VAN PANHUYS, THE ROLE OF NATIONALITY IN INTERNATIONAL LAW 156 (1959) (characterizing decision as continuous with existing approaches to nationality); Brownlie, supra note 14, at 349 (same). The decision repeatedly framed the question as whether Liechtenstein had 66 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