Statelessness & Citizenship Review 2021 3(2) within the remit of s 1(e) citizenship (and the various rights and privileges attached to that status). Further, the outcomes generated by the test do not give effect to the Parliament of Malaysia’s intent that persons with a genuine attachment to Malaysia should be granted citizenship. This article seeks to address these issues by exploring the possibility of adopting the Nottebohm (Liechenstein v Guatemala) (‘Nottebohm’) ‘genuine and effective link’ principle as a supplementary element of the s 1(e) citizenship test. 1 It is argued that incorporating a factual assessment of whether the applicant has a genuine and effective link with Malaysia both adds certainty to the application of the test and conforms with the Parliament of Malaysia’s intent, ensuring that citizenship is conferred upon those caught by s 1(e). However, the contextual difficulty in transplanting the principle from the international law sphere into Malaysian domestic law means that any adoption would have to be done on a policy (and not a purely legal) basis. This article is divided into four parts. Part II lays out the relevant provisions of the Constitution and discusses the relationship between Malaysian domestic law and international law. Part III reviews the application of the existing test by the Court of Appeal of Malaysia in several leading cases. I argue that the case law is contradictory and the evidential burden imposed upon applicants can be practically impossible to satisfy, particularly for persons with no knowledge about their biological parents. Part IV makes the case for the adoption of the ‘genuine and effective link’ principle and considers how a modified s 1(e) test incorporating it could be applied in practice. Finally, Part V considers how the principle can be transplanted into Malaysian domestic law, and the various hurdles to adoption. CITIZENSHIP LEGISLATION IN MALAYSIA AND INTERACTION WITH INTERNATIONAL LAW A Citizenship and the Constitution Malaysia’s citizenship provisions are housed in the Constitution, which provides for four different methods of acquiring citizenship: by operation of law (art 14), registration (arts 15–18), naturalisation (art 19) and incorporation of territory (art 22). There are several pathways for in situ stateless persons (‘stateless persons [who] are in their “own country”’) 2 in Malaysia to acquire citizenship. As explained later in the article, most foundlings (children abandoned at birth) and stateless children will be entitled to citizenship by operation of law via the s 1(e) safety net. However, due to various legal and administrative hurdles, few, if any, acquire citizenship in this way. Alternatively, art 15A empowers the Government to register any person below the age of 21 as a citizen. In practice, this involves making an application to the Home Minister, whose discretion in approving or rejecting the application is absolute and immune from judicial review. 3 Article 15A does not require the Minister to provide reasons for their decision. When an 1 2 3 See Nottebohm (Liechenstein v Guatemala) Second Phase (Judgment) [1955] ICJ Rep 4 (‘Nottebohm’). Gabor Gyulai, ‘Statelessness in the EU Framework for International Protection’ (2012) 14(3) European Journal of Migration Law 279. Federal Constitution of Malaysia, sch II pt III s 2. 310