THE RELATIONS

OF NATIONALITY
 INTRODUCTION
(A) THE DOCTRINE OF THE FREEDOM OF
STATES IN MATTERS OF NATIONALITY
It is widely thought that states have general freedom of
action in matters of nationality. For example in Nationality
Decrees Issued in Tunis and Morocco the Permanent Court
said:
The question whether a certain matter is or is not solely
within the jurisdiction of a state is an essentially relative
question; it depends upon the development of international
relations. Thus, in the present state of international law,
questions nationality are, in the opinion of this Court in
principle within this reserved domain.
Or as ILC Special Rapporteur Manley Hudson
put it, in principle, questions of nationality fall
within the domestic jurisdiction of each state.

There are compelling objections of principle

to the doctrine of the complete freedom of
states in the present context. Before these are
considered it is necessary to recall the
significance of nationality in the law. First a
state whose national has suffered an injury
caused by an internationally wrongful act of
another state may exercise diplomatic.
 Secondly, numerous duties of
states in relation to war and
neutrality, resting for the most part on
customary law, are framed in terms of
the acts or omissions by nationals
which states should prevent and, in
some cases, punish.
 Thirdly, aliens on the territory of a state
produce a complex of legal relations
consequent on their status of non-nationals.
Government acts may give rise to questions of
international responsibility when they affect
property. Aliens may be expelled for sufficient
cause and their home state is bound to receive
them. Many states will not extradite their
nationals. Fourthly, nationality provides regular
basis for the exercise of civil and criminal
jurisdiction and this even in respect of acts
committed abroad
(B) THE STRUCTURAL PROBLEM
Nationality involves the assignment of
persons to states, and regarded in this way
resembles the law relating to territorial
sovereignty. National law prescribes the extent
of the territory of a state, but this prescription
does not preclude an international forum from
deciding questions of title in its own way, using
criteria of international law. A Sovereignty in
principle unlimited by the existence of other
states is ridiculous.
For instance, as regards the delimitation of the
territorial sea, the Court in Anglo-Norwegian
Fisheries allowed that in regard to rugged
coasts state is in the best position to appraise
the local conditions dictating the selection of
baselines, but the Court did not support
complete autonomy. The conferral of
nationality as a status is in this respect akin to
a process of delimitation.
 It is important to avoid relying on abstract
statements purporting to establish the
boundaries of the reserved domain. Everything
depends on how a particular issue arises.
Nationality is not confined either to the
reserved domain or the realm of state
relations: in principle it has two aspects, either
of which may be dominant depending on the
facts and type of dispute. The approach of the
International Court in Nottebohm would seem
to be perfectly logical in this respect.
The Court said:
It is for Liechtenstein, as it is for every
sovereign State, to settle by its own legislation
the rules relating to the acquisition of its
nationality, and to confer that nationality by
naturalization granted by its own organs in
accordance with the legislation. It is not
necessary to determine whether international
law imposes any limitations on its freedom of
decision in this domain.
 Nationality serves above all to determine
that the person upon whom it is conferred
enjoys the rights and is bound by the
obligations which the law of the State in
question grants to or impose on its nationals.
This is implied in the wider concept that
nationality is within the domestic jurisdiction of
the State. But the issue which the Court must
decide is not one which pertains to the legal
system of Liechtenstein.
 It does not depend on the law or on the
decision of Liechtenstein whether that
State is entitled to exercise its protection.
To exercise protection, to apply to the
Court, is to place oneself on the plane of
international law. It is international law
which determines whether a State is
entitled to exercise protection and to seize
the Court.
 Similarly, Article 3 of the European
Convention on Nationality of 1997 provides:

Each state shall determine under its own

law who are its nationals. This law shall be
accepted by other states in so far as it is
consistent with applicable international
conventions, customary international law and
principles of law generally recognized with
regard to nationality.
(C) COMMON CRITERIA FOR
NATIONALITY
The two main principles on which nationality
has traditionally been based are descent from
a national (ius sanguinis) and birth within state
territory (ius soli). More recent developments
have included giving equal status to men and
women in the determination of nationality, and
providing reinforced guarantees against
statelessness, both trends underwritten by
multilateral treats.
Except for the presumption against statelessness
(whether the ius soli applies in case of doubt), it is
incorrect to regard the two principles as mutually
exclusive: in varying degrees the law of a large
number of states rests on both. A common special
stipulation is that children born to non-nationals who
are members of diplomatic and consular missions do
not thereby acquire the nationality of the receiving
state.
The Harvard Research draft refers to territory
or a place assimilated thereto, and states have
generally applied the principle of the ius soli to
birth on ships and aircraft register under the
flag. Where apparent conflict may arise, as in
the case of birth on a foreign ship in territorial
waters, it seems clear that the child does not in
principle acquire ipso facto the nationality of
the littoral state.
The position as regards naturalization is stated as
follows by Weis:

Naturalization in the narrower sense may be

defined as the grant of nationality to an alien by a
formal act, on an application made for the specific
purpose by the alien. It is generally recognized as a
mode of acquiring nationality. The conditions to be
complied with for the grant of naturalization vary from
country to country, but residence for a certain period
of time would seem to be a fairly universal requisite.
 Hudson remarks: naturalization must be
based on an explicit voluntary act of the
individual or of a person acting on his behalf.

Some jurists conclude that prolonged

residence is a precondition for naturalization.
But in regard to voluntary naturalization two
points must be borne in mind. First, the
voluntary nature of the act supplements other
social and residential links.
 Not only is the act voluntary but it is specific:
it has that very objective.
The element of deliberate association of
individual and state is important and should
rank with birth and descent, not to mention
marriage, legitimation, and adoption.
Secondly, while it is true that a considerable
number of states allow naturalization on easy
terms, the legislation often presents such
relaxed conditions as available exceptionally.
 Nationality ex necessitate iuris is a convenient
notion to analyze a further situation. It is not in all
respects satisfactory, since acquisition by marriage
legitimation, and adoption might also be so described.
However, the cases to be mentioned are sufficiently
clear to justify the concept. For example, there is in
the legislation of many countries a provision that a
child of parents unknown is presumed to have the
nationality of the state where the child is found.
 In a great many instances it is provided
that the rule applies to children born to
parents of unknown nationality or who are
stateless. The rule as to foundlings
appears in the Convention on Certain
Questions relating to the Conflict of
Nationality Laws, Article 14, and in the
1961 Convention on the Reduction of
Statelessness, Article 2.
(D) LEGAL STATUS OF THE
‘GENERAL PRINCIPLES’
Some at least of the principles considered above
are generally recognized as far as the laws of the
various states are concerned. But Weis is very cautions
in assessing this material in terms of states practice:
Concordance of municipal law does not yet create
customary international law; a universal consensus of
opinion of states is equally necessary. It is erroneous to
attempt to establish rules of international law by
methods of comparative law, or even to declare that
rules of municipal law of different States which show a
certain degree of uniformity are rules of international
law.
 This is unexceptionable insofar as the
reversal of the statement would result in a
proposition much too dogmatic. But Weis
underestimates the significance of
legislation as evidence of the opinio of
states. In the case of the territorial sea, the
evidence of state practice available to the
ILC was chiefly in the form of legislation,
and the comments of government
concentrated on their own legislation.
 It might be said that, particular in the field of
nationality, the necessary opinio iuris is lacking; but
insistence on clear evidence of this may produce
capricious results. The facts is that municipal law
overwhelmingly rests on significant links between the
individual and state. Such lack of uniformity as there is
in nationality laws is explicable not in terms of a lack of
opinio iuris , but by reference to the fact that inevitably
municipal law allocates nationality in the first place,
and also to the occurrence of numerous permutations
and hence possible points of conflict in legislation on a
subject-matter so mobile and complex. But in spheres
where conflict on the international plane is easily
foreseeable, the rules are there to meet the case.
 Thus the conclusions of the Court in
Nottebohm are not particularly novel. After
considering the evidence for the doctrine of the
real or effective link, the judgment proceeds:
According to the practice of States, to
arbitral and judicial decisions and to opinions
of writers, nationality is legal bond having as its
basis a social fact of attachment, a genuine
connection of existence, interests and
sentiments, together with the existence of
reciprocal rights and duties.
 It may be said to constitute the juridical
expression of the fact that the individual upon
whom it is conferred, either directly by the law
or as the result of an act of the authorities, is in
fact more closely connected with the
population of the state conferring nationality
than with that of any other State. Conferred by
a State, it only entitles that State to exercise
protection vis-à-vis another State, if it
contributes a translation into juridical terms of
the individual’s connection with the State which
has made him its national.
THE EFFECTIVE LINK PRINCIPLE
AND NOTTEBOHM
(A)PRECURSORS OF NOTTEBOHM
Seen in its proper perspective, the decisions in
Nottebohm is a reflection of a fundamental
concept long present in the materials
concerning nationality on the international
plane. The doctrine of the effective link had
already been recognized for some time in
continental literature and the decisions of
some national courts.
 The legislation of states makes general use
of residence, domicile, immigration with an
intent to remain permanently, and membership
of ethnic groups associated with the state
territory, as connecting factors. International
law has rested on the same principles in
dealing with the situations where a state has
no nationality legislation or where certain parts
of the population fall outside the scope of such
legislation. The principle of effective link may
be seen to underlie much of the practice on
state succession and to support the concept of
ressortissant found frequently in treaties.
commonly in connection with dual nationality, but the
particular context does not obscure its role as general
principle with a variety of applications.
In its reply to the Preparatory committee of the
Hague Codification Conference the German
government declared that ‘a State has no power… to
confer its nationality on all the inhabitants of another
State or on all foreigners entering its territory… if the
State confers its nationality on the subjects of other
States without their request, when the persons
concerned are not attached to it by any particular
bond, as, for instance, origin, domicile or birth, the
States concerned will not be bound to recognize such
naturalization.
(B) THE DECISION AND ITS CRITICS
In Nottebohm Liechtenstein claimed damages in
respect of the acts of the government of Guatemala in
arresting, detaining, expelling, and refusing to readmit
Nottebohm, and in seizing and retaining his property
without compensation. Guatemala asked the court to
declare the claim inadmissible in part ‘because
Liechtenstein had failed to prove that Nottebohm
properly acquired Liechtenstein nationality in
accordance with the law of that Principality; because
anyway that law could not be regarded as in conformity
with international law; and because he appeared ;in any
event not to have lost, or not validly to have lost, his
German nationality’.
 In the final submissions, inadmissibility
was also based on ‘the ground that M.
Nottebohm appears to have solicited
Liechtenstein nationality fraudulently, that
is to say, with the sole object of acquiring
the status of a neutral national before
returning to Guatemala, and with out any
genuine intention to establish a durable
link, excluding German nationality,
between the Principality and himself.
 In its judgment the Court regarded the plea
relating to Nottebohm’s nationality as fundamental.
The issue was one of admissibility and the Court
observed: In order to decide upon the admissibility
of the Application, the Court must ascertain
whether the nationality conferred on Nottebohm by
Liechtenstein by means of a naturalization which
took place in the circumstances which have been
described, can be validly invoked as against
Guatemala, whether it bestows upon Liechtenstein
a sufficient title to the exercise of protection in
respect of Nottebohm as against Guatemala.
In the event, having applied to doctrine of the
effective link to the facts. The Court held the claim
inadmissible. Dissenting judges and critics have
pointed out that Guatemala had not argued the case
on the basis that there was no effective link, and also
that the precise ratio of the decision was the question
of opposability as against Guatemala. This is true, but
the effect of such formal arguments in limiting the
significance of the judgment is negligible. The
tendency to look for precise grounds for decision is a
standard judicial technique, and few jurists seriously
believe that, apart from cases of treaty interpretation,
the pronouncements of the Court can be placed in
quarantine by formal devices.
 What is involved is not recognition [of
acquisition of Liechtenstein nationality] for all
purposes but merely for the purposes of the
admissibility of the Application, and,…
secondly, that what is involved is not
recognition by all States but only by
Guatemala.
The tendency to look for precise grounds for
decision is a standard judicial technique, and
few jurists seriously believe that, apart from
cases of treaty interpretation, the
pronouncements of the Court can be placed in
quarantine by formal devices.
 In any case, the fact that admissibility was
the issue does not affect the general
significance of the decisions. As the Court
said: ‘[t]o exercise protection, to apply to the
Court, is to place oneself on the plane of
international law. It is international law which
determines whether a State is entitled to
exercise protection and to seize the Court. The
Court did not base its decision on estopped as
against Liechtenstein, but focused on the
existence or not of a right of protection, an
issue which necessarily affects states in
general and not just the parties.
 To those who regarded the Court’s approach
as a novelty, the inadequacy of its review of
state practice is a source of disquiet. But, first,
the Court is usually somewhat oracular in its
announcement of rules of customary law; this
does not mean the relevant materials were not
duly assessed. Secondly, the Court’s
somewhat varied collection of propositions and
references to previous practice reads not as a
survey but rather as an attempt at further and
better particulars as to the logical necessity of
the general principle for which the Court was
contending.
 The relevant section of the judgment
commences well before the ‘survey of materials’,
and the burden of the section as a whole is that, to
settle issues on the plane of international law,
principles have to be applied apart from the rules
of national law. The major point is made on the
basis of a ‘general principle of international law’
and not on the basis of a customary rule of the
usual sort.
Thirdly, critics of the judgment seek materials
which support the ‘link’ theory explicitly as a
specific rule. Not all the materials support such a
rule, but there is much material which supports the
general principle.
Moreover there was very little on the international
plane which expressly denied the effective link
doctrine, and the incidental rejection of it in Salem
was regarded by contemporaries as a novelty.
Judge Read and others have also contended that
the Court relied irrelevantly on the principles
adopted by arbitral tribunals in dealing with cases
of double nationality, since the facts of Nottebohm
did not present this problem: Nottebohm either
had Liechtenstein nationality or none. But the
principle of effectiveness is not restricted to cases
of dual nationality. If the principle exists it applies
to the Nottebohm permutation also.
In terms of the application of the principle to the facts,
Nottebohm was German by birth and was still a
German national when he applied for naturalization in
Liechtenstein in October 1939. He had left Germany
in 1905, although he maintained business
connections there. As a consequence of
naturalization he lost his German nationality. The
Court decided that the effective nationality was not
that of Liechtenstein (but without characterizing the
links with Guatemala in terms of effective nationality):
it found ‘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.
 As to the implications of the Nottebohm
judgment in the realm of policy, critics
have concentrated on the severance of
diplomatic protection and nationality. The
practical result of the decision is seen to
be a narrowing of the ambit of diplomatic
protection. In fact in the vast number of
cases effective nationality matches formal
nationality.
 The Court did not consider whether an
absence of connection when the nationality
was originally acquired can be cured by later
events. However, while in 1955 Nottebohm’s
effective nationality was that of Liechtenstein,
when the main acts complained of occurred it
was not: it is doubtful, to say the least, if after
suffering a wrong a national can then take on
another nationality and, after a lapse of time,
call on the new state to espouse the claim
against the state of former nationality.
 Long-resident refugees are an
important source of problems, and it
would seem likely that the link
doctrine is more helpful here than
reference to national laws. The latter
method leaves the refugee stateless
or links him or her to a community
which has proved repugnant or been
abandoned.
 The UN Convention on the Reduction of
Statelessness of 1961 contains detailed
provisions relying on various criteria of factual
connections and evidence of allegiance. The
1961 conference also adopted a resolution
recommending ‘ that persons who are
stateless de facto should as far as possible be
treated as stateless de jure to enable them to
acquire an effective nationality. Weis remarks
that the convention and recommendation
‘clearly reflect the importance which is
attached to an increasing degree to
effectiveness of nationality.
(c) THE ILC’S WORK ON DIPLOMATIC
PROTECTION
In its work on diplomatic protection the ILC took a
narrow view of Nottebohm’s implications. Article 4 of
the ILC Articles on Diplomatic Protection of 2006
reads as follows:
State of nationality of a natural person
For the purposes of the diplomatic protection of a
natural person, a State of nationality means a State
whose nationality that person has acquired, in
accordance with the law of that State, by birth,
descent, naturalization, succession of States, or in
any other manner, not inconsistent with international
law.
The commentary elaborates:
Draft article 4 does not require a State to prove an
effective or genuine link between itself and its national,
along the lines suggested in the Nottebohm case, as an
additional factor for the exercise of diplomatic protection,
even where the national possesses only nationality.
Despite divergent views as to the interpretation of the
case, the Commission took the view that there were
certain factors that served to limit Nottebohm to the facts
case in question, particulary the fact that ties between Mr.
Nottebohm and Liechtenstein were ‘extremely tenuous’
compared with the close ties between Mr. Nottebohm and
Guatemala for a period of over 34 years, which led the
International Court of justice to repeatedly assert that
Liechtenstein was ‘not entitled to extend its protection to
Nottebohm vis-à-vis Guatemala’.
This suggests that the Court did not intend to
expound a general rule applicable to all States
but only a relative rule according to which a
State in Liechtenstein’s position was required
to show a genuine a link between itself and Mr.
Nottebohm in order to permit it to claim on his
behalf against Guatemala with whom he had
extremely close ties. Moreover, it is necessary
to be mindful of the fact that if the genuine link
requirement proposed by Nottebohm was
strictly applied it would exclude millions of
persons from the benefit of diplomatic
protection.
The use of the double negative in draft Article
4 (‘not inconsistent’) is intended to show that
the burden of proving that nationality was
acquired in violation of international law rest
upon the state which disputes the nationality of
the injured person. This is said to follow from
the proposition that the state conferring
nationality must be given a ‘margin of
appreciation, correspondingly there is a
presumption in favour of the validity of the
conferral of nationality . It would follow in any
event on the basis of the maxim actori incumbit
probatio.
A factor not be overlooked in discussions
of Nottebohm was that the case involved
a putative enemy alien. Nottebohm
acquired the nationality of Liechtenstein,
a neutral state, with a view, to avoiding
the risk of becoming an enemy alien if
Guatemala entered the second World
war.
By definition they must possess a
population which is their own.
 THE APPLICATION OF RULES OF
INTERNATIONAL LAW
(A)THE LIMITS OF STATE AUTHORITY
IN THE MATTER OF NATIONALITY
If rules of international law are to work effective or
at all, there must be limitations on the powers of
individual states to treat persons as their nationals.
Some of these limitations must now be considered.
It may happen that a state has not adopted any
nationality laws on the modern pattern. Although such
cases are rare, examples of the absence of
nationality legislation arise from the creation of new
states.
So long as no law has been enacted
providing otherwise, my view is that every
individual who, on the date of the
establishment of the State of Israel was
resident in the territory which today
constitutes the State of Israel, is also a
national of Israel. Any other view must
lead to the absurd result of a State
without nationals- a phenomenon the
existence of which has not yet been
observed.
If a new state, relying on the absence of a
municipal law, tried to deport a part of its
permanent population, it would be acting
in clear breach of its obligations and
would be internationally responsible.
Another situation concerns persons
outside the scope of national legislation.
The legislation of a number of states has
categorized the population into those with
a higher status, usually designated
‘citizens’, and others.
In the case of the UK, the position is that the
inhabitants of dependencies whatever their internal
status under the British Nationality Act 1981, are
considered to have the status of national for
purposes of international law. US law has the
category “non-citizen” nationals.
The necessity for assignment of nationality where a
deliberate denial of citizenship occurs is apparent. In
an arbitral award the status of the Cayuga Indians,
who had migrated from the US to Canada, was
established on the basis of factual connection. They
were held to have become British nationals, and the
assumption was that, for purposes of international
law, they had previously been attached to the US.
(B) STATE RESPONSIBILITY AND
THE DOCTRINE OF THE GENUINE
LINK
States cannot plead their internal law in justification of
international wrongs, and they may be held
responsible for conditions on their territory which
constitute a breach of their international obligations.
However, many important duties of a specific
character are prescribed by reference to nationals of
a state. For example there is a duty to admit nationals
expelled from other states and, by way of corollary, a
duty not to expel nationals.
 In kahane (Successor) Paris and
Austrian State the tribunal in substance
regarded Romanian Jews as Romanian
nationals, since Romania, while
withholding citizenship, did not consider
them to be stateless. However, the main
point of the decision was to establish the
meaning of the term ressortissent in the
Treaty of St Germain.
 Yet obviously ad hoc denationalization
would provide a ready means of evading these
duties. In appropriate circumstances
responsibility would be established for the
breach of duty if it were shown that the
withdrawal of nationality was itself a part of the
wrongful conduct, facilitating the result. Again,
states could avoid rules governing the
treatment of aliens if they could at their
discretion impose nationality on aliens resident
in or passing through state territory, however
brief their stay. Similar considerations apply to
the law of belligerent occupation and the law of
 The principles needed to solve this type
of problem are simple enough if, on the
facts of the case. The manipulation of the
law of nationality is part and parcel of the
wrongful conduct. However, it is possible
to postulate a general principle of genuine
link relating to the causa for conferment
of nationality (and the converse for
deprivation), a principle distinguishable
from that of effective link.
 Significantly enough, authors,
with support from state practice
and the jurisprudence of
international tribunals, have often
stated the rule that a diplomatic
claim cannot be validly presented
if it is based on a nationality which
has been fraudulently acquired.
 Admittedly the rule is often formulated with the
acts of the individual in mind, but in principle it is
applicable to fraud on the part of a state. In
Nottebohm Guatemala contended that Liechtenstein
had acted fraudulently in granting nationality to
Nottebohm, and futher, that Nottebohm himself acted
fraudulently in applying for and obtaining the
certificate of naturalization. The Court did not address
these arguments explicitly, but, in adverting to
Nottebohm’s motive of acquiring neutral status, the
Court accepted the substance of the argument: in this
context the doctrine of genuine link, in the narrow
sense, and the broad concept of effective link were
brought into close relation.
 In applying the principle of genuine link,
two considerations are relevant. In the
first place, there is a presumption of the
validity of an act of naturalization, since
acts of governments are presumed to
have been performed in good faith.
Secondly, this is reinforced by the
concept of nationality as a status, since
an act of conferment is not to be
invalidated except in very clear cases.
(C) NATIONALITY BY ESTOPPEL
In many cases where the basic facts concerning
the individual are ambiguous, the conduct of
government may provide the answer. Express
declarations and admissions by diplomatic
representatives may create an estoppel. However,
acts of administration of an incidental or routine
nature, especially in the absence of any actual or
apprehended dispute, may not have this effect. In
Nottebohm Liechtenstein argued that Guatemala had
recognized his naturalization on the basis of the entry
of a visa in his Liechtenstein passport and official acts
relating to the control of aliens. The Court observed:
 All of these acts have reference to the
control of aliens in Guatemala and not to the
exercise of diplomatic protection. When
Nottebohm thus presented himself before the
Guatemalan authorities, the latter had before
them a private individual: there did not thus
come into being any relationship between
governments. There was nothing in all this to
show that Guatemala then recognized that the
naturalization conferred upon Nottebohm gave
Liechtenstein any title to the exercise of
protection.
Admission by the parties in the face of a
court will normally be relied upon in
matters of nationality. In some cases the
tribunal has been prepared to rely on the
conduct of governments in the absence of
any declaration. In Hendry the Mexican-
US General Claims Commission held that
Mexico was estopped from denying
Hendry’s American nationality by reason
of its having discharged him from
employment because he was an
American.
 However, in Flegenheimer the italian-US
Conciliation Commission rejected an Italian
argument that the claim was inadmissible
because at the date of the acts complained
of Flegenheimer’s apparent nationality was
German, since he had used a German
passport in dealings with the Italian
authorities. This argument failed on the
facts, but the commission noted ‘that the
doctrine of apparent nationality cannot be
considered as accepted by the Law of
Nations.
 The issue was confronted in an important
decisions of the Eritrea Ethiopia Claims Commission
(EECC) in 2004. The case concerned expulsion and
deprivation of property of a large number of persons
of Eritrean origin who continued to live in Ethiopia
after the separation of Eritrea in 1993 and who still
resident there when war broke out in 1998. Numbers
of them had voted in the April 1993 Referendum on
Eritrean independence (voting in which was limited by
law to ‘Eritrean citizens’). But they continued to
exercise civil and political rights as Ethiopian
nationals, until their denationalization and expulsion.
The EECC held that in the special circumstances they
were dual nationals by estoppel-and this despite the
fact the law of neither state allowed dual nationality.
 The Commission is not persuaded by Eritrea’s
argument that registration as an Eritrean national in
order to participate in the 1993 Referendum was
without important legal consequences. The governing
entity issuing those cards was not yet formally
recognized as independent or as a member of the
United Nations, but it exercised effective and
independent control over a defined territory and a
permanent population and carried on effective and
substantial relations with the external world,
particularly in economic matters. In all these respects,
it reflected the characteristics of a State in
international law.
 On the other hand, neither is the
Commission persuaded by Ethiopia’s
argument that the continued issuance of
Ethiopian passports and other official
documents was not evidence of continued
Ethiopian nationality. Passports in particular
contain the issuing State’s formal
representation to other States that the bearer
is its national. The decision to issue such a
document, intended to be presented to and
relied upon by friendly foreign States, is an
internationally significant act, not a casual
courtesy.
Nationality is ultimately a legal status. Taking
into account the unusual transitional
circumstances associated with the creation of
the new State of Eritrea and both Parties’
conduct before and after the 1993
Referendum, the Commission concludes that
those who qualified to participate in the
Referendum in fact acquired dual nationality.
They became citizens of the new State of
Eritrea pursuant to Eritrea’s Proclamation
No.21/1992, but at the same time, Ethiopia
continued to regard them as its own nationals.
 In so holding the EECC was
influenced by an Agreed Minute of
1996 which, whether or not it was
a treaty; postponed a process by
which ‘Eritreans who have so far
been enjoying Ethiopian
citizenship’ should be made to
elect one or other nationality.
(D) COMPULSORY CHANGE OF
NATIONALITY
Existing practice and jurisprudence do not
support a general rule that deprivation of
nationality is unlawful. On the other hand,
Article 15(2) of the Universal Declaration of
Human rights of 1948 stipulates that persons
may not be ‘arbitrarily deprived of their
nationality, and although this has no equivalent
in the International Covenant, there is some
basis for holding it to be a rule of customary
international law.
The EECC’s Civilian Claims decisions of 2004 is
relevant here. As to the applicable law it said:
The Commission also recognizes that international
law limits states’ power to deprive persons of their
nationality. In this regard, the Commission attaches
particular importance to the principle expressed in
Article 15, paragraph 2, of the Universal Declaration
of Human Rights, that ‘no one shall be arbitrarily
deprived of his nationality.’ in assessing whether
deprivation of nationality was arbitrary, the
Commission considered several factors, including
whether the action had a basis in law; whether is
resulted in persons being rendered stateless; and
whether there were legitimate reasons for it to be
taken given the totality of the circumstances.
Not withstanding the limitations of the
process, the record also shows that
Ethiopia faced an exceptional situation.
It was at war with Eritrea. Thousands
of Ethiopia with personal and ethnic
ties to Eritrea had taken steps to
acquire Eritrean nationality. Some of
these participated in groups that
supported the Eritrean Government
and often acted on its behalf.
 In applying these criteria the EECC
distinguished between differently situated
groups. On the one hand, as to persons
considered a security risk, it held:
Deprivation of nationality is a serious matter
with important and lasting consequences for
those affected. In principle, it should follow
procedures in which affected persons are
adequately informed regarding the
proceedings, can present their cases to an
objective decision maker, and can seek
objective outside review. Ethiopia’s process
often fell short of this.
 In response, Ethiopia devised and
implement a system applying reasonable
criteria to identify individual dual nationals
thought to pose threats to its wartime
security. Given the exceptional wartime
circumstances the Commission finds that
the loss of Ethiopian nationality after
being identified through this process was
not arbitrary and contrary to international
law.
 But as to a group of registered dual nationals the
Commission held:
Whatever the numbers affected, there was no
evidence indicating that the dual nationals in this group
threatened Ethiopian security or suggesting other
reasons for taking away their Ethiopian nationality.
There was no process to identify individuals warranting
special consideration and no apparent possibility of
review or appeal. Considering that rights to such
benefits as and ownership and business license, as
well as passports and other travel documents were at
stake, the Commission finds that this wide-scale
deprivation of Ethiopian nationality of persons
remaining in Ethiopia was, under the circumstances,
arbitrary and contrary to international law.
Similar analyses were applied to other affected sub-
groups.
The analogue of deprivation of nationality is provided
by the case described as compulsory change of
nationality and collective naturalization. The whole
pattern of rules and the practice of states is based on
the circumstances that states set the conditions under
which nationality is acquired and lost. The law
concerned may call for expressions of will on the part
of individuals directly, or indirectly, by their
establishing residence or service in the armed forces,
but the conditions are set by the law. Nevertheless
tribunals have occasionally stated in terms that
international law does not permit compulsory change
of nationality.
The US, the UK, France, and other states have often
protested against ‘forced naturalization provisions’, as
they are sometimes called, in the laws of various
Latin American states. This practice is bound up with
the rule that international law does not permit states
to impose their nationality on aliens resident abroad.
But the practice is again better seen as yet another
aspect of the effective link principle, according to
which nationality is not be conferred on nationals of
other states unless the new nationality is based upon
adequate links. Even an unlawful deprivation of
nationality may become irreversible if the individual
voluntarily becomes permanently resident elsewhere
at a stage when resumption of the original citizenship
would have been possible.
(E) NATIONALITY OF THE
EUROPEAN UNION
The 1992 Treaty on European Union created the concept of
European citizenship with article 8(1):
Citizenship of the Union is hereby established. Every person
holding the nationality of a Member State shall be a citizen of
the Union.
This marked the first time in the history of the Westphalian
political order that a citizenship design beyond the nation state
emerged, challenging the exclusivity of national citizenship.
Most commentators initially saw European citizenship as a
purely symbolic concept with limited content, premised on the
pre-existing Community law rights of free movement and non-
discrimination on grounds of nationality.
The concept experienced a
subsequent transformation in the
hands of the European Court of
justice. Union citizenship has been
used by the Court as a means to
expand the material and personal
scope of the Treaty to encompass
situations where the reliance on
free movement might seem
artificial.
EU citizenship is a derivative or dependent
citizenship. A person is a citizen of the union only
if he or she is a citizen of a member state. EU
member states attached declaration No.2 to the
Maastricht Treaty stating that the question
whether an individual possesses the nationality of
the member state shall be settled solely by
reference to the national law of the member state
concerned. In Micheletti the European court of
justice confirm that determination of nationality
falls within the exclusive competence of the
member states, but added that member state
have to have due regard to community law.
Micheletti has been interpreted as a first hint
at the development of a new approach. In
Rottman V. Freistaat Bayern, the court held
that nationality laws of the member states are
within the scope of EU law and that EU law
has to be taken into account when member
states exercise their powers in the spare of
nationality. The European court of justice
further asserted that it is the final arbiter in
disputes arising in this context. This decision
had been described as a serious blow to one
of the last bastions of states sovereignty.
A FUNCTIONAL APPROACH TO
NATIONALITY
Despite the continued reiteration of the
proposition that nationality depends exclusively
on municipal law, it is common for legislation
and judicial decisions to create functional
nationality whereby aspects of national law are
applied on the basis of allegiance, residence or
other connections. There seems to be general
acquiescence in this splitting up of the legal
content of nationality or particular purposes.
 Thus legislation in many countries has
define enemy alien status in functional
terms without depending on the technical
nationality of the country in question. The
control test has been widely applied to
corporations and goods in determining
enemy character. The use of factual test
occurs equally widely when the issue is
one of the law of war and neutrality.
 Moreover, in the context of treaties, rules are often
functional rather than declaratory as to general
status. Thus in IMCO the issue was the interpretation
of the phrase the largest ship owning nations in
Article 28 of the Convention for the Establishment of
the inter Governmental Maritime Organization, and
the advisory Opinion delivered rested on an injury into
the legislative history of the provision and usage
under other maritime conventions. The Geneva
Convention on the status of refugees of 1951
provides that a refugee must be treated, for the
purpose of access to the courts and related matters,
as if a national of the country where the refugee is
habitually resident.
The Vienna Convention on diplomatic relations
restricts the conferment of privileges and
immunities in the case of members of the
mission if they are nationals of the receiving
state or permanently resident there. There is
thus an interplay between nationality as a core
concept of international and national law and
elements associated with the effective link
which provide a functional overlay. Taken
together this ingredients avoid the extremity of
solipsism implied in the mantra that nationality
of individuals falls within the domestic
jurisdiction of each state.
Thank
You…