Principle of effective link

МЕЖДУНАРОДНОЕ ПРАВО

Учебно-методическое пособие

Тема «Население и гражданство»

Составители: А.Д. Краев,

О.А Коленкова

Новосибирск 2013

Издано по решению учебно-методического

совета негосударственного образовательного учреждения высшего профессионального образования Сибирского института международных отношений и регионоведения

Рецензент: кандидат филологических наук Евдокимова Е.В.

Краев А.Д., Коленкова О.А.

Английский язык: «Международное право». Тема «Гражданство» // Учебно-методическое пособие. – Новосибирск: СИМОиР, 2013. – 56 с.

В учебном пособии представлены тексты по теме «Население и гражданство в международном праве», заимствованные из международных конвенций, энциклопедий и словарей, на английском и русском языках, и упражнения к ним. В качестве предтекстовых заданий студентам предлагается анализ основных терминов и их определений на английском языке. Подробно рассмотрены вопросы приобретения и утраты гражданства, двойного гражданства, безгражданства. Учебное пособие предназначено для изучения английского языка по курсу «Международное право» студентами, обучающимися по специальностям «Международные отношения» и «Регионоведение».

СИМОиР, 2013

А.Д. Краев

О.А. Коленкова

Nationality

Exercise 1. Pre-reading questions and tasks:

- What information do you expect to find in the following text?

- Can you find any difference between the terms ‘nationality’ and ‘citizenship’?

- Have you ever heard about ‘jus sanguinis’ and ‘jus soli’? What do they mean?

- Try to give your explanation or find synonyms for the following words relating to the given topic:

Protection, to extradite, military service, domestic, consistent, inconsistent, to acquire, to entitle, request, to exercise, to enjoy.

Exercise 2. Analyse the following terms and their definitions taken from different sources. It will help you understand the differences between the terms ‘nationality’ and ‘citizenship’.

citizenship [1]. A noun [uncount] a. the legal right to be a citizen of a particular country; dual citizenship (=the legal right to be a citizen of two countries) b. the obligations and responsibilities that you have as a citizen.

citizenship [2].

Relationship between an individual and a state in which the individual owes allegiance to the state and in turn is entitled to its protection.

In general, full political rights, including the right to vote and to hold public office, are predicated on citizenship. Citizenship entails obligations, usually including allegiance, payment of taxes, and military service. The concept arose in ancient Greece, where citizenship was granted only to property owners. The Romans initially used it as a privilege to be conferred upon or withheld from conquered peoples, but it was granted to all the empire's free inhabitants in AD 212. The concept disappeared in Europe during the feudal era but was revived in the Renaissance. Citizenship may normally be gained by birth within a certain territory, descent from a parent who is a citizen, marriage to a citizen, or naturalization. See also nationality.

Notes:

1. allegiance [3] [q'li:dZ(q)ns ] 1) лояльность, верность, преданность = loyalty, as of a subject to his sovereign or of a citizen to his country; give allegiance — быть лояльным, вступать в соглашение pledge/swear allegiance — клясться в верности Syn: devotion, fidelity, loyalty Ant: disloyalty, sedition, treachery, treason 2) вассальная зависимость Syn: fealty.

2. allegiance [4] 1. верность; лояльность; преданность 2. обязательство верности и повиновения 3. пребывание в гражданстве, подданстве; государственная принадлежность 4. ист. вассальная зависимость; верноподданство; to abandon allegiance — нарушить верность; to declare allegiance — заявить (о своей) лояльности; to free from allegiance — ист. освободить от вассальной зависимости; to pledge allegiance — взять на себя обязательство соблюдать лояльность; to repudiate [to renounce] allegiance — нарушить верность; to swear allegiance — клясться в верности, в лояльности; присягнуть на верность; acquired allegiance — приобретённое (путём натурализации) гражданство, подданство; actual allegiance — обязанность (иностранца) подчиняться местным законам; double [dual] allegiance — двойное гражданство, подданство; local allegiance см. actual allegiance; natural allegiance — брит. обязательство постоянной верности государству, возникающее в силу рождения; амер. обязательство постоянной верности государству в силу рождения или натурализации; political allegiance — политическая принадлежность; temporary allegiance — временное гражданство, подданство

2. predicate [5] 1. n ['predIkqt] 1) грам. сказуемое, предикат 2) лог. утверждение v ['predIkeIt] 1) утверждать (of, about; тж. лог.) 2) основывать (утверждение и т. п.) на фактах (on)

3. descent [6] [dI'sent] 1) а) спуск, схождение, снижение (может прямо не переводиться); б) прыжок с парашютом в) десант (особенно морской) г) падение • Ant: ascent 2) скат, склон; понижение местности Syn: declivity 3) а) понижение (значения той или иной величины) б) падение, низость • Syn: fall, decline, sinking 4) а ) происхождение (часто с указанием, по какой линии) Syn: ancestry, lineage, pedigree б) поколение в) переход собственности (также, реже, дворянского титула) во владение наследника при отсутствии завещания г) передача по наследству, наследование; наследственность. 5) а) переход к частностям, подробностям (в речи, изложении) б) вывод частной пропозиции из общей.

Citizenship [7]

Generally citizenship is seen as the relation between an individual and a particular nation and carries with it rights to political participation; a person having such membership is a citizen. It is largely coterminous with nationality, although it is possible to have a nationality without being a citizen (i.e., be legally subject to a state and entitled to its protection without having rights of political participation in it); it is also possible to have political rights without being a national of a state; for example, a citizen of a Commonwealth country resident in the United Kingdom is entitled to full political rights.

nationality [8]. A noun 1 [count or uncount] the legal status of being a citizen or subject of a particular country; dual nationality (=belonging to two countries);

2 [count] a group of people who have the same race, language, or culture.

nationality [9]

Affiliation with a particular nation or sovereign state.

People, business corporations, ships, and aircraft all have nationalities. Nationality is inferior to citizenship, insofar as the latter implies a full set of political privileges and the former does not. Countries have limited rights to determine which of their inhabitants will be their nationals. People generally acquire a nationality by birth within a particular country's territory, by inheritance from one or both parents, or by naturalization. It may change or be augment ed or taken away if a country cedes control of the territory where one lives to another country.

Notes:

1. affiliation [10] [q"fIlI'eISn] 1) усыновление, удочерение 2) установление отцовства 3) установление авторства 4) принятие в члены; присоединение; вхождение в состав 5) принадлежность к организации (connection with an organization, especially a political or religious one)

2. inferior [11] [In'fIqrIq] 1. n подчинённый; младший по чину; стоящий ниже (по развитию, уму и т. п.) your inferiors — ваши подчинённые 2. A 1) низший (по положению, чину; to) 2) худший (по качеству); плохой of inferior quality — плохого качества to be inferior to smb. — уступать кому-л. (в чём-л.) 3) нижний, расположенный ниже 4) полигр. подстрочный

3. augment [12] 1. n ['O:gmqnt] 1) увеличение, прибавление 2) грам. приращение, аугмент 2. v [O:g'ment] увеличивать, прибавлять

nationality [13]

In English usage, nationality is the legal relationship between a person and a country.

Membership that can be acquired by being born within the jurisdiction of a state, by inheriting it from parents, or by a process of naturalization. Nationality affords the state jurisdiction over the person and affords the person the protection of the state.

By custom, it is the right of each state to determine who its nationals are. Such determinations are part of nationality law. In some cases, determinations of nationality are also governed by public international law—for example, by treaties on statelessness and the European Convention on Nationality.

The word citizenship is often used in a different sense from nationality. The most common distinguishing feature of citizenship is that citizens have the right to participate in the political life of the state, such as by voting or standing for election. The term national includes both citizens and non-citizens.

Where the country only has one legal system, the law matches the common perception, but where the country is divided into separate states, different rules apply. In the common law, upon birth, every person acquires a domicile. This is the relationship between a person and a specific legal system. Hence, one might have an Australian nationality and a domicile in New South Wales, or an American nationality and a domicile in Arizona. The person remains subject to the state's jurisdiction (the lex domicilii in Conflict of Laws) for the purposes of defining status and capacity wherever he or she might travel outside the state's territory; in exchange, the individual is entitled to the state's protection, and to other rights as well. This is an aspect of the public policy of parens patriae and derives from the social contract. In the civil law systems of continental Europe, either the law of nationality (known as the lex patriae) or the law of the place of habitual residence is preferred to domicile as the test of a person's status and capacity.

The nationals of a country generally possess the right of abode in the territory of the country whose nationality they hold, though there are some exceptions (e.g., British Nationality Law).

Nationality must be distinguished from citizenship: citizens have rights to participate in the political life of the state of which they are a citizen, such as by voting or standing for election; while nationals need not have these rights, though normally they do.

Traditionally under international law and the Conflict of Laws, it was the right of each state to determine who its nationals are. However, today the law of nationality is increasingly coming under regulation, e.g., by the various conventions on statelessness, and the European Convention on Nationality.

Nationality can generally be acquired by jus soli, jus sanguinis or naturalisation.

Some countries do not permit dual nationality while others only allow a very limited form of dual citizenship (e.g. Indian nationality law, South African nationality law). A person who is not a national of any state is referred to as a stateless person.

The nationality of a legal person (e.g., a corporation) is generally the state under whose laws the legal person is registered.

Alternative usage

In several non-English speaking areas of the world, the cognate word for nationality in local language may be understood as a synonym of ethnicity, as nation can be defined as a grouping based on cultural self-determination rather than on relations with a state. For example, many people would say they are Kurds, i.e., of Kurdish nationality, even though Kurdistan is not a state. In the context of former Soviet Union and former Yugoslavia, nationality is often used as translation of the Russian and Serbian terms (nacional'nost', narodnost) used for ethnic groups within those (former) states. Similarly, the term "nationalities of China" refers to ethnic groups in China.

Notes:

1. domicile [14] [`dOmIsaIl] someone’s home.

domicile [15]

1: a dwelling place: place of residence: home

2 a: a person's fixed, permanent, and principal home for legal purposes b: residence (Merriam-Webster’s Collegiate Dictionary); Place where an individual has a fixed and permanent home for legal purposes. The term refers to the place where an organization (e.g., a corporation) is chartered or that is the organization's principal place of business. The domicile of an individual or organization determines the proper jurisdiction and venue for legal process, including taxation. For persons lacking capacity (e.g., minors), domicile is usually defined as the domicile of the guardian.

domicile (law) [16] is a term that designates the law of a person for purposes of determining certain legal questions such as the ability to invoke the jurisdiction of a court, or the interpretation of a will. A person may have many places of residence, but may only have one domicile. At birth a person obtains the domicile of their parents, and can change it by forsaking their former domicile and intending to reside indefinitely at a new place in which they are physically and lawfully present. In some people's personal law, a woman obtains the domicile of her husband upon marriage. The law of the domicile will govern the law of inheritance applicable on the death of a person and the matrimonial law governing the property of a married couple wherever that property may be.

domicile [17]

а) место проживания, постоянное местожительство Syn: home, residence б) адрес физического лица, юридический адрес фирмы

jus soli [18] принцип почвы (приобретение гражданства по месту рождения)

jus soli [19] [Latin: law relating to the soil (of one's country)] The rule by which birth in a state is sufficient to confer nationality, irrespective of the nationality of one's parents (compare jus sanguinis). The United Kingdom and the United States originally adhered to a strict version of this principle. Thus the children of an *alien, born on the territory of the host state, would from their birth adopt the nationality of that state. Most jurisdictions (including the United Kingdom and the United States) now adopt a combination of jus soli and jus sanguinis.

Jus soli [20]

Jus soli (Latin for "right of the territory"), or birthright citizenship, is a right by which nationality or citizenship can be recognised to any individual born in the territory of the related state. At the turn of the 19th century, nation-states commonly divided themselves between those granting nationality on the grounds of jus soli (France, for example) and those granting it on the grounds of jus sanguinis ("right of blood") (Germany, for example). However, most European countries chose the German conception of an "objective nationality", based on "blood", "race" or language (as in Fichte's classical definition of a nation), opposing themselves to republican Ernest Renan's "subjective nationality", based on an every-day plebiscite of one's appartenance to his Fatherland. This non-essentialist conception of nationality allowed the implementation of jus soli, against the essentialist jus sanguinis. However, today's massive increase of refugees (which immediately followed World War I, as did Agamben underlined in Homo Sacer - 2005) has somehow blurred the lines between these two antagonistic sources of right.

3. jus sanguinis [21] [`GAs sxN`gwInIs] or [`GAs `sxNgwqnqs] принцип крови

(приобретение гражданства по гражданству родителей)

jus sanguinis [22] [Latin: law relating to blood] The principle that the nationality of children is the same as that of their parents, irrespective of their place of birth. This contrasts with *jus soli, whereby nationality is dependent on place of birth. In states in which the jus sanguinis principle applies (i.e. France and Germany), a conflict of jurisdiction may arise when a child is born of parents who are citizens of another state. For example, a child born in the United States of French parents is an American citizen jure soli, but a French citizen jure sanguinis. His effective citizenship will depend upon the jurisdiction within which he happens to be in; in the United States he is a US citizen; in France, a Frenchman; in any other country he is both.

Conflicts resulting from the simultaneous presence of these contrasting claims of allegiance are generally settled between states by deferring jus sanguinis to jus soli when the state asserting its primary claim of allegiance has de facto jurisdiction of the individual in question. Most jurisdictions (including the United Kingdom and the United States) now adopt within their nationality law a combination of jus soli and jus sanguinis.

Jus sanguinis [23]

Jus sanguinis (Latin for "right of blood") is a right by which nationality or citizenship can be recognised to any individual born to a parent who is a national or citizen of that state. It contrasts with jus soli (Latin for "right of soil"). At the end of the 19th century, the French-German debate on nationality saw Ernest Renan oppose the German conception of an "objective nationality", based on "blood", "race" or even, as in Fichte's case, "language". Renan's republican conception explains France's early adoption of jus soli. Many nations have a mixture of lex sanguinis and lex soli, including the United States, Canada, Israel, Germany (as of recently), Greece, Britain, Ireland, and others.

4. habitual residence [24] постоянное место жительства

5. The right of abode [25] refers to an individual's freedom from immigration control in a particular country. A person who has the right of abode in a country does not need permission from the government to enter the country and can live and work there without restriction.

Generally, in order to have the right of abode in a certain country, a person must be a citizen of that country. Those with permanent residency of the country generally have a de-facto right of residence but it can be revoked in certain circumstances, for example for being convicted of crimes.

6. lex [leks]; pl. leges [`lJGJz] закон Syn: law, rule

7. lex domicilii [26] закон домициля

8. lex patriae [27] закон гражданства

9. parens patriae [28] [`pArqnz`peItrJJ] [Latin "parent of his or her country"] 1. The state regarded as a sovereign; the state in its capac­ity as provider of protection to those unable to care for themselves. 2. A doctrine by which a govern­ment has standing to prosecute a lawsuit on behalf of a citizen, esp. on behalf of someone who is under a legal disability to prosecute the suit. • The state ordinarily has no standing to sue on behalf of its citizens, un­less a separate, sovereign interest will be served by the suit. Parens patriae [29] is Latin for "parent of the nation". In law, it refers to the public policy power of the state to intervene against an abusive or negligent parent, legal guardian or informal caretaker, and to act as the parent of any child or individual who is in need of protection. For example, some children, incapacitated individuals, and disabled individuals lack parents who are able and willing to render adequate care, requiring state intervention. In U.S. litigation, parens patriae can be invoked by the state to create its standing to sue; the state declares itself to be suing on behalf of its people.

10. naturalization [30]

Process of granting nationality or citizenship to an alien.

It may be granted after voluntary application or through legislation, marriage to a citizen, or parental action. Involuntary naturalization occurs when one's home territory is annexed by a foreign state. Qualifications for naturalization may include a minimum residency period, a minimum age, law-abiding character, good health, self-sufficiency, satisfactory knowledge of the new country, and willingness to give up one's former nationality.

Nationality [31]

The possession of nationality grants privileges to an individual and correspondingly imposes obligations.

‘It is for each state to determine under its own law who are its nationals. This law shall be recognised by other states in so far as it is consistent with international conventions, international custom and the principles of law generally recognised with regard to nationality. Any question as to whether a person possesses the nationality of a particular state shall be determined in accordance with the law of that state.’

These fundamental principles set out in the Hague Convention of 1930 on the Conflict of Nationality Laws have been modified by a new principle that when a state grants nationality to a person whose association with that state is so tenuous as not to constitute a ‘genuine link’, other states are not bound to recognise that grant of nationality; otherwise they continue toapply.

Nationality is normally acquired by birth in the territory or as the descendant of a national; occasionally by naturalisation, marriage or on application, and on rare occasions as a consequence of con­quest, cession or other change in the nature of a state. It is often forfeited on the acquisition of a different nationality and may be lost by renunciation, specific state legislation or, in some cases, mar­riage or prolonged absence. Dual nationality may occasionally result from an overlap of two countries’ legislation on the subject or from exceptional circumstances. A person becomes stateless when he is deprived of his nationality and does not acquire an alternative.

The laws relating to nationality are complicated and varied, but they are very relevant to diplomats in general and to consular officers in particular. For example, a state has the right to accord diplomatic protection to its nationals while abroad but not to others; a person usually has the right to be granted re-entry into the state of which he isa national (and therefore prima facie entitlement to a transit visa through an adjacent state in the direction of that state); or he may be liable to military service or subject to extradition. A duly authorised passport is generally accepted as prime facie evidence of nationality.

Exercise 3. Look through the following text and answer the questions that follow.

Text 1. FREEDOM OF STATES IN MATTERS OF NATIONALITY [32]

Nationality is the link between an individual and a state. Nationality serves first to determine which person enjoys the rights and is bound by the obligations which a state grants to its nationals. Nationality has great significance and performs many functions in international law. On the basis of nationality, states have the right to exercise diplomatic protection of their own nationals. States may exercise civil or criminal jurisdiction on the basis of nationality. States may refuse to extradite their own nationals to another state requesting extradition.

Nationality also implies specific obligations, such as the duty to perform military service for the national state.

Questions of nationality fall within the domestic jurisdiction of each state. Under the 1930 Hague Convention on Certain Questions Relating to the Conflict of Nationality Rules, “it is for each State to determine under its own law who are its nationals. This law shall be recognized by other States in so far as it is consistent with international conventions, international custom, and the principles of law generally recognized with regard to nationality ". (Art. 1) Although nationality is primarily a matter of municipal law of each state, it is nevertheless governed to a large extent by principles of international law. While each state determines who are its nationals, national law cannot be inconsistent with international conventions, international custom and general principles of law.

Comprehension questions:

1. What does nationality serve to?

2. Does nationality imply any specific obligations of citizens towards the national state?

3. Nationality is not a matter of only national law of each state, is it?

Exercise 4. Read the following text, entitle it, divide it into parts, and give your title to each part you make.

Text 2.[33]

If nationality rules are ultimately decided by the municipal law of each state, some principles are, however, commonly adopted by states. Nationality may be acquired as the result of birth or it may be acquired by naturalization. A person's nationality is determined by that of his parents (jus sanguinis) or by the state of the territory of birth (jus soli). These two most important ways of acquiring nationality are not mutually exclusive. The law of a very large number of states rests on both. It is worth mentioning that many legislations stipulate that children born to foreigners exercising official duties on behalf of their government will not acquire the nationality of the state where their parents exercise their duties. Many states have also applied the principle of jus soli to birth on ships or aircraft registered under their flag: children born on a British vessel could acquire the British nationality (this rule is also applied in Argentina, Commonwealth states, Germany, Norway and the United States). Individuals may acquire a new nationality by naturalization. Naturalization is the formal act whereby an alien is received as a national of a given state. This is based on an explicit and voluntary act of the individual. Many states allow naturalization but usually require social or residential links. A prolonged residence in the state is often a condition of acquiring the nationality of this state. Naturalization is defined as a voluntary act. In some cases nationality may be conferred automatically as the effect of some changes in civil status. In some states, a wife acquires automatically the nationality of her husband (this rule is usually justified by the necessity of maintaining family unity) and she is unable to retain her own nationality even if she intended so. In order to favour sexual equality, the United Nations General Assembly adopted in 1957 the Convention on the Nationality of Married Women. Under the terms of this convention, each contracting state agrees that "neither the celebration nor the dissolution of marriage between one of its nationals and an alien, nor change of nationality by the husband during marriage, shall affect the wife's nationality automatically ". The General Assembly confirmed this principle of equality in the Declaration on the Elimination of Discrimination Against Women adopted in 1967 and elaborated in Article 9 of the 1979 Convention on the Elimination of All Forms of Discrimination Against Women: "States Parties shall grant women equal rights with men to acquire, change or retain their nationality. They shall ensure in particular that neither marriage to an alien nor change of the nationality by the husband during marriage shall automatically change the nationality of the wife, render her stateless or force upon her the nationality of husband; States Parties shall grant women equal rights with men with respect to the nationality of the children. «The modern tendency followed by states is that a wife or a husband may acquire her or his spouse's nationality by means of facilitated naturalization. This naturalization is not automatically granted. It needs the consent of the person concerned. Under many legislations a minor may acquire the nationality of his adoptive parents.

Exercise 5. Study the text given below and reveal its key idea.

Text 3. NATIONALITY AND DIPLOMATIC PROTECTION [34]

Diplomatic protection may be defined as the protection a state is entitled to exercise towards its nationals when these nationals have been injured by acts contrary to international law committed by another state. The protection exercised by a state towards its nationals is an inter-state relation. Each state has the duty to protect foreigners settled in its territory. If state B commits injuries against state A nationals, state A will ask reparation to state B as state B did not respect its international obligations towards state A. The decision to exercise protection towards nationals is a political question at the discretion of each state. The state may choose to implement this protection or not. In exercising their diplomatic protection, states defend their own rights. Therefore States freely decide on exercise of implementation. Individuals have no right to be "protected" by their national state in case of injuries committed by another state. The freedom of states in exercising their diplomatic protection explains why the legacy of the "Calvo clauses" was never recognized. The " Calvo clauses " were special treaty provisions created by South American states in the 19th century and inserted in investment agreements 49 concluded between private investors and these states. Under these provisions, private investors (European or American) waived the right to seek diplomatic protection from their home state. It was a condition for doing business and a way to avoid foreign intervention of states on behalf of the diplomatic protection of their nationals. However, international tribunals never accepted the legacy of these provisions, arguing that individuals could not renounce a right they do not possess. The right of diplomatic protection belongs to the state and not to the claimant.

Exercise 6. Make a short summary of the following text using your plan. (Remem­ber that a summary normally consists of about 1/10 of the original).

Text 4. PROCEDURAL ISSUES [35]

States may exercise diplomatic protection under two conditions. First, states may exercise their protection towards their nationals only. This is the nationality requirement. Second, states may exercise their protection only if their nationals cannot obtain satisfaction through the ordinary channels. This is classified as the exhaustion of domestic remedies.

A) Nationality requirement

State is not entitled to exercise protection towards aliens or stateless people. This condition leads to ambiguity in case of double nationality. A state cannot exercise protection towards one of its nationals if he/she possesses at the same time the nationality of the state alleged to have acted wrongfully. States may exercise protection towards any of their nationals; individuals or juridical persons such as private companies for instance. A state espousing the claim of a corporation has to show first that this corporation has its nationality in that state. To determine the nationality of a corporation, international law refers to various links: the nationality of the state that creates the corporation, the center of administration or the principal place of business.

B) EXHAUSTION OF DOMESTIC REMEDIES

Prior to exercising protection, a state has to demonstrate that the claimant has exhausted all available legal remedies in the courts and the administrative authorities of the state alleged to have acted wrongfully. In other words, individuals must have attempted to obtain satisfaction through local remedies before asking for diplomatic protection. For example, if an American citizen is settled in Mexico and is subjected to persecution from local police, he/she must first ask reparation from local authorities. If he/she cannot obtain reparation, he/she must settle his dispute before a Mexican court. Finally, if he/she at this last level cannot get reparation, diplomatic protection may be then exercised.

C) THE "CLEAN HANDS" THEORY

Some legal writers have tried to add a third condition. A state cannot espouse the claim of its national if the latter acted wrongfully. This is often called the "clean hands" theory. To have the benefit of the protection of their national state individuals must demonstrate correct behaviour. This condition is irrelevant under international law. A criminal has the right to be heard before a court, to be condemned equitably and to be detained in decent conditions.

PRINCIPLE OF EFFECTIVE LINK

Nationality (in the sense of legal relation) is a concrete and continuing relationship between the sovereign state and its citizens. Nationality supposes that there is an effective link between a state and its nationals. This link may be: origin, residence, birth, immigration with an intent to remain permanently, etc. The quantity and quality of links required to establish effective nationality may be extremely diversified and actually depend upon the facts of each case. A reasonable link between a state and individuals invoking its nationality must exist. Under this principle, a state cannot espouse the claim of an individual and exercise diplomatic protection if there is no genuine link of nationality. In case of naturalization, foreign states are not under duty to recognize a nationality acquired by a person who has no genuine link or connection with the naturalizing state. This question was abundantly developed by the International Court of Justice in 1955 in the famous Nottebohm Case. Nottebohm was German by birth and left Germany in 1905 to settle in Guatemala. He carried out his activities and established there the main center of his interests. In October 1939, he went to Liechtenstein and asked for naturalization. He returned to Guatemala shortly after his naturalization. Arrested in 1943 as a result of war measures, he was transferred to the United States and spent two years in prison. In 1946 he attempted to return to Guatemala, but Guatemala refused to admit him. In 1949, his properties were confiscated by the Guatemalan government; Liechtenstein then espoused Nottebohm's claim and tried to exercise its diplomatic protection toward him. Guatemala refused to give further developments to Liechtenstein's action, arguing the lack of effective connection between Liechtenstein and Nottebohm. Both states went to the International Court of Justice to settle their dispute. The International Court of Justice stated as following: "(...) these facts clearly establish, on the one hand, the absence of any bond of attachment between Nottebohm and Liechtenstein and, on the other hand, the existence of a long-standing and close connection between him and Guatemala, a link -which his naturalization in no way weakened. That naturalization was not based on any real prior connection with Liechtenstein, nor did it in any -way alter the manner of life of the person upon whom it was conferred in exceptional circumstances of speed and accommodation. In both respects, it was lacking in the genuineness requisite to an act of such importance, if it is to be entitled to be respected by a state in the position of Guatemala. It was granted without regard to the concept of nationality adopted in international relations. (...) Guatemala is under no obligation to recognize a nationality granted in such circumstances."

Дата добавления: 2015-11-14