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Leigh International and Comparative Law Quarterly / Volume 20 / Issue 03 / July 1971, pp 453 - 475 DOI: 10.1093/iclqaj/20.3.453, Published online: 17 January 2008 Link to this article: http://journals.cambridge.org/abstract_S0020589300027275 How to cite this article: Guy |. F. Leigh (1971). Nationality and Diplomatic Protection. International and Comparative Law Quarterly, 20, pp 453-475 doi:10.1093/iclqaj/20.3.453 Request Permissions : Click here CAMBRIDGE JOURNALS Downloaded from http://journals.cambridge.org/ILQ, IP address: 147.188.128.74 on 11 May 2016 NATIONALITY AND DIPLOMATIC PROTECTION By Guy I. F. LeicuH * I. INTRODUCTION DipLoMATIC protection is the means by which a State gives effect to another State’s responsibility for an act in contravention of inter- national law affecting the person or property of a national of the first State.' The State’s right to exercise this protection stems, in turn, from the link of nationality existing between the individual and his State.2, Without this connecting factor of nationality there can normally be no diplomatic protection.? It follows, therefore, that, before an international tribunal or court will entertain a claim brought by a State on.behalf of an individual, it must be satisfied as to various aspects of the relationship between the individual and his State which together comprise the requirement of nationality. It is the purpose of the present writer to explore the nature of the rela- tionship that has been required by international tribunals for the exercise of diplomatic protection with a view towards (1) better under- standing of the nature of the present-day requirements in this regard, (2) evaluating the desirability of certain recent developments in the area, and (3) suggesting the desirable course of possible future developments. A few orientational remarks are appropriate at this stage. This writer is in agreement with those who believe that the individual should be accorded access to international justice in his own right. It is unlikely, however, that such a radical departure from traditional international law notions will result from case law development. If such a change is to be brought about at all, it is more likely to be accomplished by means of international conventions pieeey entered into between States. The question then arises as to whether there is any point in yet again discussing nationality and diplomatic protection in traditional international law terms. This writer believes such a discussion to be * B.A., J.D., University of Pennsylvania, Research Student, Trinity Hall, Cambtidge. 1 age Nationality and Diplomatic Protection (1969) pp. 1 and 30. °° 2 1b p. 7. 3 This is because diplomatic protection is justified on the basis of the personal jurisdiction which a State is entitled to exercise over its nationals. (For a fuller discussion, see p. 455.) 453 454 International and Comparative Law Quarterly [VOL. 20 quite relevant, for it will probably be some years before States are willing to ratify conventions providing for access to international justice by individuals. In the meantime, it behoves those who desire such a progréssion to work within the present system, and to welcome any development which will tend to broaden the class of individuals to whom international justice is potentially available by means of diplomatic protection. Il. NATIONALITY Any legal system evolves out of its social environment. The social environment in which international law has its roots is comprised of the intercourse between any given State-and ‘other States, as well as out of the. way that the States as a group perceive their interrelation- ships.. Hence nationality,.as a concept. of international law, also derives’ its significance by virtue of the fact of relations -between States. At the international level it pertains simply to the attachment of the individual to a particular State. .Jt does not express the nature of the individual’s rights and duties vis-a-vis that State. Further, the precise nature: of ‘the attachment to ‘which “nationality ” refers has not remained constant. Indeed, its meaning. has ‘changed significantly over time ‘and: will, in. all likelihood, continue to.do so-as ‘the. nature. of the world: order evolves. It does, however,. always: signify .some form of membership in the basic political..unit.*° This membership may: be acquired: as a result of: one’s place: of.. birth: (jus. soli), ‘the nationality .of one ‘or both: of one’s parents’ (jus sanguinis), oF as.a result of naturdlisation.. ‘Yet whatever: thie: connection: om the .basis of.which'a State formally.confers :itsi nationality,’ a foreign State may refuse to recognise it unless the link between the granting State and the a is peace close to meet. the. standards of rauerpeuonat law. - ree ar | ee eau “Our. soreeent concern is ‘confined: to.an- examination of the con- nection required ‘for ‘international recognition of nationality: for pur+ poses!: of- diplomatic’ protection.! It i8,'.however; not possible to completely sever the requirements of natjonality for this purpose from the requirements’ of ‘nationality for. other purposes: ‘This:.is because, while particular requirements may vary depending.on‘the: purpose: for which nationality is ‘being :discussed, the question .of the epee) of Pere Ts Ao er ors Poe ig aa Sota Py ateeee a .¢ Van, Painbuys, The Role of. Natlonallty iin International. Law £1989) p.. 18h: ‘s aes 23 AJ.LL. (Supp.) (Harvard Research Draft Convention on Nationality) aa was PhS Se : He. tt SA ts 1 The bulk of this: ganer ‘deaié: with cases ‘in: which the aacquacy: of the formal connection between individual and his State is not questioned. The F: legenhetmer case; however, discussed infra at p. 472 et‘seq:, is a‘ recent ‘example ‘of. case in - which it was primarily this formal connection that was at issue..° i+. - ® Kunz, “ The Nottebohm Judgment"? (1960) 54 AJ.I.L. 536, 546-547. ere Juty 1971] Nationality and Diplomatic Protection 455 the connection between the individual and his State will always be crucial. Therefore, it is well to remember that nationality is also important for the purposes of establishing a State’s competence to exercise personal jurisdiction over individuals.® HI; DIPLOMATIC PROTECTION As mentioned above,'® diplomatic protection is a means used to exact a remedy under international law when the international law standards for the treatment of foreign nationals have been violated.'! The theory of diplomatic protection has its origins in the willingness of States generally to concede to each other jurisdiction over all persons and property within their respective boundaries (territorial juris- diction), while at the same time reserving to themselves the right: to afford their nationals protection in the event of injury to person or — property ensuing from an act undertaken by another State in breach of international law.'? This reservation was; of course,. justified on the basis of personal jurisdiction, that is to say, on the theory that a State has jurisdiction at all times over all who are its nationals.’? . The. foregoing raises a question as to .the- capacity in which a State exercises. diplomatic protection. Since it appears that the interests of the nationals are at stake, and since the-remedy sought is generally related to damage to these interests, it might be thought that the State is acting merely as an agent of the national. This, however, is not the case. A State acts in its own right in exercising diplomatic .protection.: It acts not as an agent, but as the protector-of the interests of its nationals while they are abroad.'* In so doing it is also acting to protect certain of its-own interests. It is acting to.ensure that international law is observed in the treatment of its nationals,’* or, if a treaty is involved, to ensure that i its nationals are treated in accordance with the standards laid down i in.the treaty. In sum, by: taking up the claim of a particular national, a State is also. serving.its more general interest of ensuring that its nationals in a foreign country are accorded the treatment due to them either under general international law or under the terms of a particular treaty. Accordingly, while a State has the right to exercise diplomatic protection, it has no obligation to do so. Whether or not in any, given case it. chooses to act on behalf of a national is entirely within its own discretion? “ * O'Connell, International Law (1965), pp. 730-731. =. > «1 At p, 453. 11 It must be borne in mind that there is an international law requirement to the effect that local remedies must be exhausted before diplomatic protection’ may be resorted to. 118 Cuthbert, pane nt at p. 3. 13 Id. 14 Van Panhuys, supra, n.4 at pp. "61-82. 18 Johnes, “ The Nottebohm Case” (1956) $ LC.LQ. 20. 16 Johnes, supra at 230. 456 International and Comparative Law Quarterly .[VoL. 20 IV. THE RULE OF CONTINUOUS NATIONALITY. The established’ right of a State to exercise diplomatic protection on behalf of its nationals is generally held to be qualified by the rule that a State may only exercise such protection if the person injured has been its national from the date of injury to the time at which the claim is presented before the international tribunal *" (and, it is believed by some, until the time at which the final award is made)."* Thus, for example, in the Ambiati case,’* the claimant was a U.S. citizen whose claim was based on certain transactions which took place in 1863 and 1864. Ambiati, however, was 4 native of Italy, and he did not acquire U.S. nationality until 1868. The commissioner held that since the claimant had not been a national of the United States at the time of the alleged injury, he did not have standing to bring the claim. This rule of continuous nationality has essentially three components: that the claimant must be a national on the date of the injury; that the claimant must be a national at the date of presentation of the claim; and that the link of nationality must remain uninterrupted during the intervening pericd. All three conditions must be fulfilled for the exercise of diplomatic protection.*° The effect of this rule is ‘to place the individual in a most unenviable position. Since neither the State, of which he had been a national at the time of the injury, nor the State of which he becomes a_national prior to the presentation of the claim is entitled to exercise diplomatic protection on his behalf, he is left without a remedy. - The underlying rationale for this continuous nationality require- ient appears to be that it prevents the abuse of ‘diplomatic protection by the simple expedient of changing the nationality of claims.*? Thus, in the Ambiati case, Commissioner Little in ‘justifying the rule said: ““ the Plaintiff state is not a claim Agent .. . Ambiati could not impose upon the’ United: States, by becoming its citizen, Italy’s existing duty towards him.” ?* One may question, however, whether the fear that an‘ individual will attempt to gain access’ to an’ international tribunal by means of naturalisation is entirely realistic. There are surely few who’ would go to such lengths, and those only if their claims ‘are ex- tremely well founded and substantial. Moreover, it is not likely that a naturalising State would’ lend itself to such | a scheme. 38m 17 Cuthbert, supra, n. 1 at p. ae Van Panhuys, supra, n. 4 at p. 86; but see also Administrative decision No. .V, U.N. REA.A., Vol. Vu, 19. at 140-146. 18 Johnes, supra,.n. 15 at p. oat 3% (United States v. Venezuela), Moore, International Arbitration, Vol. HII, P. 2347, 30 Cuthbert, supra, n. 1 at p. 24. 31 Van Panhuys, supra, n. 4 at p. 929; Cuthbert, supra, n. 1 at a 29. ae 3a ae n. 19 at p. 2348; seo also Administrative decision No: » fUpras A, 17" at 141. 33 Van Panhuys, supra, n. 4 at p. 92. Juty 1971) . Nationality and Diplomatic Protection ‘ 457 The rule is also defended on doctrinal grounds. It is argued that a State acts in its own right in exercising diplomatic protection, that the State of which the individual is a national at the time of the injury is the only one harmed, and that consequently it is the only one having a sufficient interest to entitle it to bring a claim.%* As O’Connell points out, however, the rule of continuous nationality is logically inconsistent with the theory that it is the injured State that deserves redress because it acts to deprive that State of its right to exercise diplomatic protection.?* ‘Moreover, to the degree that an interest is required for the exercise of diplomatic protection, it may be argued that a State always has an interest in another State observing international] law standards in the treatment of foreign nationals; because if it is in the habit of observing such standards it will be unlikely to violate them in its treatment of the nationals of the first State. Further, even if this general interest is deemed insufficient to permit the exercise of diplomatic protection, there are situations imaginable in which the State, of which the individual becomes a national following the injury, would have a particular interest in bringing the claim. Wan Panhuys suggests, for example, the case of a treaty in which States A, B and C agree to treat each other’s nationals according to a certain standard. X is a national of State A at the time he suffers the injury in State C, but a national of State B by the time the claim is presented. In such a case, X’s change of nationality should not interfere with the presenta- tion of the claim. B, after all, has a strong interest in seeing to it that C observes: the terms of: the treaty with regard to its nationals. It will, therefore, also-be interested in requiring C to observe the terms of the treaty with regard-to A’s nationals, because-if C is permitted to violate the treaty as to the-latter it may be tempted also to violate the standards agreed upon in its treatment of B’s nationals. To. put it more succinctly, that B’s nationals in State C will be accordéd the treatment, agreed upon, is to some degree in doubt by C’s violation of the terms of the treaty ‘with regard to X, a national of State A. State B, therefore, has a-strong interest in seeitig to it that C does not violate’ the’ terms of the“treaty as to both its own nationals aid-those of State A‘ If this reasoning is. accepted, however, then it may be ex- tendable ‘to. other ‘situations. For. example, it might apply to. the situation in‘which State-A and. State C have entered into a treaty to accord each other’s nationals special treatment; and States B and C have a similar but entirely separate treaty. X is a national of A when 24 ‘Ambiati case,’ supra, n. 19 at p. 2348; Administrative decision Nos Vv, sore, n. 17 at p. 140. 25 O'Connell, supra, n. 9 at p. 1118. acme e oa 458 International and Comparative Law Quarterly . [VoL. 20 C violates the treaty. He then becomes a national of B which wishes to bring a claim on his behalf. The argument for permitting B to bring the claim would be as follows: the rule of international law pacta sunt servanda has been violated, and this rule forms a connecting link between the rules established by the two treaties. In other words, if C does not observe the terms of its treaty with A, what assurance is there that it will continue to observe the terms of its treaty with B. B then has a definite interest in C’s observance: of its treaty with A, and accordingly has a particular interest in bringing a claim on behalf of X. Van Panhuys suggests that this reasoning can logically be extended still further, to a situation having the same facts as the one imme- diately preceding, except that there is now no treaty between States B and C sjmilar to the one existing between States A'and C. The argument would now be that the rule paca sunt servanda has been violated, and that State B has an interest in this rule being observed by virtue of X’s acquisition of its nationality.** It is suggested with all deference, however, that the argument cannot logically be extended to cover this last situation. For. in this case the rule of pacta sunt servanda does not serve.as a connecting link between the relationship of A to C and that-of B to C. B, therefore, does not have a special interest in seeing the rule observed in this case. Notwithstanding the weak rationale upon which the requirement of continuous nationality is based, the undesirable consequences to which it leads and the fact that,,at least in some cases, the new national State has an interest of its own in bringing a claim, inter- national tribunals do not yet seem prepared to forgo its application. Thus, in 1939 the Permanent Court of, Internatjonal Justice unequivo- cally reaffirmed the rule in the Panevezys-Saldutiskis Railway case.*" Further, since the Second. World War the rule has been given new support as a result of its repeated application: by United States Inter- national Claims Commissions.’ .. These Commissions were estab- lished in order:to settle claims by. U.S. nationals arising out of nationalisations undertaken by various Central. and. East European countries. . In carrying out their mandate they were to apply both the relevant treaty provisions and the applicable principles of international law. The commissions repeatedly found. that -international. law care the appsanen of the: rule of continuous nationality.”*" 26 Van Panhoys; supra, n. 4 at pp. 89-90., j 27 (1939) P.C.I.J., Ser. A/B, No. 76 at pp. 16-17. Sée also Gleadelt case (Grei Britain v. Mexico) (1929) $ U.N.R.LA.A. 4. 28 Cuthbert, supra, n. 1 -at p.-27; see, inter alla, the’ Kren claim (1953) 20 I.L.R. 233 (discussed infra) and the Bogovic claim (1954) 21 LL.R. 156. . 2% Cuthbert, supra, n. 1 at p. 27. JuLy 1971] ©’: Nationality and Diplomatic Protection. 459 As an example, thé Kren case *°’ was brought before the Com- mission .set up under the United States-Yugoslavia Settlement of Pecuniary Claims Agreement of 1948. . Joseph Kren became a natura- lised U.S.. citizen on March 11, 1940.. In 1945 his property was taken by Yugoslavia. On-April 21, 1948, he died: On July 10 the claims ‘agreement referred to’ above ..was concluded between the United States and Yugoslavia.. The claimant, Magdalen Kren, was executrix ‘of Joseph. Kren’s will, and claimed compensation as such. She, however, did not become a U.S. national until December 13, 1948.’ The -Commission found that.the claim could not.be main- tained, as it was not owned by United States nationals from the date on which it arose to the date.on which the agreement was signed. In deciding the issue posed by the interruption of continuous nationality, the Commission examined the 1948 agreement, the negotiations lead- ing up to the agreement, the International Claims Settlement Act, and other available data. It concluded that neither the: 1948 agree- ment nor the negotiations which preceded i it fusnished any assistance. The Commission.continued : ‘ ‘ \ the’ Interatiorial Claims Seinen ‘Act of 1949 provides in section 4 (a) ‘that in‘ deciding claims, : the. commission shall: apply * “(1) the Provisions "the applicable principles ‘of international law, justice, and equity.” Thus the Commission feels impelled to follow ‘the applicntle principles of international law” in deciding the question?! . The’ Commission then © proceeded to ‘examine ‘international ‘arbitral decisions; leading international Taw'texts,: “and United States practice. It found’ that ‘the ‘continuous ‘nationiality® requirément -was both a rule of international-law,' and consistent ‘with’ United States ‘Brattice. ; Ce re sila : , oor ae path FR Sten AtoM -EFFEQTIVENESS "AND “EQUALITY - las ote, When an individual: possesses ‘dual-.nationality the aidestiow ‘arises ‘as to whethershé imay .be: represented :diplomatica]ly and,’ if: hé ‘may; whether ‘by. both: or only: one of his'national States.**:-The. problem becomes ‘particularly ‘acute ‘when ‘the: individual :is: seeking :to ‘have one .of his--national Statés ‘represent ‘him: against :the ‘other one. Depending on‘ the situation and on the’tfibinal,.a nutriber of: solutions have: been -tried--dmong: these}; to give effect .to the: nationality: of birth; to give effect ‘to.the nationality used by ‘the individual; and, not to permit representation by one of the nationals: States eins another one. of, which he is. also‘a national.” side : . 80 Supra, n. 28. nt feta g ON dd, at 233-234. 32 As to this question see, inter alia;: the: iikeuioa of'thé ‘Salem case, infra, at p. 461 and the discussion of Art. § of the Hague Convention on Nationality, infra, at p. 465. 33 O'Connell, si:pra, ri. 9 at p. 744. 460 International and Comparative Law Quarterly | [VoL. 20 There are essentially two schools of thought which have arisen in connection with the resolution of such dual nationality problems: that which supports the principle of equality, and that which supports the principle of active or effective nationality: The first of these prin- ciples is based on the sovereign equality of States. It is reasoned that if both nationalities are valid, then to permit one State to repre- sent the individual against his other State would be to give greater effect to the nationality of the claimant State, thus denying this sovereign equality. Therefore, neither State of which the individual is a national may represent him against the other State whose nationality he possesses.°* By contrast, according to the second principle, the nationality to be recognised at the international level is that which the individual uses—generally that of the State in which he resides.** : The tribunals themselves have divided on the question of which principle. to apply in cases involving dual nationals.*’ Moreover, the reasoning employed in many of the opinions is often less than clear. As a result, a case by case analysis will not serve the same illuminating function as it might be expected to in an area of the law characterised by more logical and consistent development. Nonetheless, before going on to discuss convenition law, it will be useful to mention some of the cases in the area. : . Two of the leading cases often cited in connection with the prin- ciple of equality are the Alexander case (United States. v. Great Britain) ** brought before the United States-British Claims Commission under the Treaty of Washington of 187], and the Salem case (United States Vv. Egypt)** brought under a 1931 special agreement between the two countries. The Alexander case involved a claim for damages due to the occupation and injury of real property by United States forces during the American Civil War. Alexander was bor in Kentucky of a Scottish father. Apparently, he always considered himself to be British; had spent a considerable amount of time in Scotland; and while there had on several occasions held public office. By operation of United States law he was a citizen of that country jure soli, while by the laws of Great Britain he was‘ a British national jure sanguinis. The tribunal] held that it had no jurisdiction to hear the claim. It rested its opinion squarely on the ‘proposition that, since he was a 34 Merge case (United States v. Italy) (1955) Vol. XIV U.N.R.LA.A. 247. 38 Van Panhuys, supra, n. 4 at p. 74; Alexander case (United States v. Great Britain) Moore, International Arbitration, Vol. II, p. 2531. 36 Van Panhuys, supra, n. 4 at p. 74. a? A discussion of the leading cases follows, infra. 38 Moore, International Arbitration, Vol. HI, p. 2529. 39 Vol. I U.N.R.LA.A. 1165. © JuLy 1971] | ‘Nationality and Diplomatic Protection . 461 national of both countries, neither could represent him in a claim against the other, arguing that to permit a different outcome in such cases must inevitably lead to international friction. To treat his grievances against that other sovereign as subjects of inter- national concern would be to claim a jurisdiction paramount to that of the other nation of which he is also a subject. Complications would inevitably result, for no government would recognize the right of another to interfere thus on behalf of one whom it regarded as a subject of its own.° This assumption that to permit a claim by a State, of which the individual is a national, against his other State would necessarily lead to international friction must respectfully be questioned. There might be danger of such friction resulting in those few cases in which the link between an individual and his two States is more or less equally strong. In the majority of cases, however, the individual will surely have a much stronger link with one of his States than with the other. Indeed, his connection with the latter may be purely ‘formal: In such a case, it is hard to imagine substantial international friction resulting from permitting a claim to be brought by the State of effective nationality against the State of formal nationality. In the Salem case the court also endorsed the principle of equality. The claim was brought by the United States for compensation for certain treatment accorded Salem by Egyptian authorities. Salem was born in Egypt in 1883-and was later naturalised in the United States. Notwithstanding his Egyptian birth, however, there was'some evidence indicating that Salem had been born of Persian nationality, und that he was a national of that country rather than of Egypt, at the time of his naturalisation in the United States. Egypt argued that the claim must be barred, as Salem was effectively an Egyptian national. The tribunal first acknowledged that Salem was a United States national. It then went on to hold that “the Egyptian government need not refer to the rule of ‘effective nationality’ to oppose the American claim if they can only bring evidence that Salem was an Egyptian subject... .”‘' On this question the tribunal concluded that the Egyptian Government had failed to prove that Salem was an Egyptian national. Further, that, under thé circumstances, it -was unnecessary for the tribunal to consider the question of whether Salem had lost his Persian nationality on being naturalised in the United States; since even if he had retained it:: _ . the Egyptian government cannot set forth against the United States the eventual continuation of the Persian nationality of George Salem, the rule of international law being that in a case of dual nationality a ‘third 409 Moore, supra, n. 38 at p. 2531. 42 ULN.R.IA.A., supra, n. 39 at p. 1187. 20 1.c.1.¢.—16 462 International and. Comparative Law. Quarterly. [VOL. 20 :* power is not entitled to contest the claim of one of the two powers whose national is interested in the case by referring to the nationality of the other power.*? fe 2 By contrast, in a number of cases the principle of effectiveness has been explicitly adopted. The Canevaro case * (Italy v. Peru), brought before the Permanent Court of Arbitration in 1912 is frequently cited as the leading case in this connection.‘ It involved a claim arising out of the Peruvian Government’s non-payment of a number of pay cheques issued by it in 1880 to the firm of Jose Canevaro and Sons. The firm was dissolved in 1900. The pay cheques eventually passed to Napoleon and Carlos Canevaro, whose Italian nationality was not disputed, and to Rafae] Canevaro, whose Italian nationality was one of the questions at issue. The tribunal held, inter alia, that Rafael Canevaro was not. entitled to an award. It reasoned that, while Rafael was an Italian by operation of that country’s law jus sanguinis, he was also a Peruvian national under Peruvian law by virtue of his having been born there. Further, that he had repeatedly behaved as a Peruvian national. In particular, he had participated in the Peruvian political process by running for the Senate,.and had accepted the office of Consul General for the Netherlands. Accordingly, the tribunal concluded that the Peruvian Goyernment was entitled to consider Rafael Canevaro a “Peruvian national, and to refuse to ‘recognise his Italjan nationality. ‘for purposes of having standing to bring the claim. What the. Court did. in this case was- first to accept that Rafael Canevaro had both Italian and Peruvian nationality by operation of the respective nationality laws of the two countries; and then proceed to investigate which -nationality the claimant. actually. used, giving effect to the latter for purposes of diplomatic protection. - Another case decided consistently with the principle of effective nationality was the Tellech case ** brought by the United States, before the 0.5. -Austria and. Hungary - Tripartite, Claims ‘Commission in 1928. . Alexander Tellech..was born in the United States of Austrian parents in.1895. By virtue, of the nationality, laws of the two countries aforementioned he therefore became a dual:national. At.the age of five he returned to Austria with his parents, where he continued to live. . : Following the outbreak of . the. First’ World War he was impressed into the. Austro-Hungarian army. - The tribunal held. that no compensation was due for this treatment..- It reasoned that the action was taken in Austria, where elicen was voluntarily residing, paainst an Austrian. Citizen. Therefore, “* possessing as he did.dual 43- Id. at. 1188. sn eee ; 43 Scott, The Hague Court ‘Reports, Vel. 1 p. 284, 44 Van Panhuys, supra, n. 4 at p. 74; O'Connell, supra, n. 9 at P. 144. 45 (1928) Vol. VI U.N.R.L.A.A. 248-249. Juty 1971] Nationality and Diplomatic Protection 463 nationality, he voluntarily took the risk incident to residing in Austrian territory, and subjecting himself to the duties and obligations of an Austrian citizen arising under the municipal laws of Austria.” “* It must be pointed out that this case does not explicitly rest on the principle of effectiveness. Indeed, there are a number of authorities who tend to regard it as standing for the principle of equality.*’ Further, it is possible to read ‘the opinion as not speaking to the question of standing to bring the claim at all. Rather, it can be read as a decision on the merits, holding that Austria did no more than impose upon Tellech the duties and obligations of an Austrian national; Austria committed no substantive wrong thereby. However, it seems to this writer ‘that the tenor of the tribunal’s opinion, the fact that the question of standing to present a claim nor- mally precedes a decision on the merits, and especially the tribunal’s repeated emphasis of Tellech’s prolonged voluntary residence in Austria, indicate that the case was decided at least in accordance with the principle of effectiveness.‘* It is a fact that the tribunal felt compelled to determine that Tellech was voluntarily using his Austrian nationality before making its decision. Both the Canevaro case and the Tellech case ‘* were examples of situations in which the principle of effectiveness was invoked by the defendant State for purposes of barring the claim. The same principle has, however, also been used as a rationale for permitting a State to represent a national against another State of which he was also a national.°° This happened'in the case of Barthez de Montfort v. Treuhander Hauptverwaltung*' heard before the French-German mixed Arbitral Tribunal in 1926. The claimant was the widow of a French national who was later naturalised in Germany. As a result of his naturalisation his wife acquired German nationality by opera- tion of that country’s law. She never lost her French nationality under the law of France. She did, however, use her German nationality during the war. The tribunal discounted this fact on the grounds that the claimant had only used her German nationality for the purpose of protecting certain property interests in Germany. It held, in part, “that the principle of active nationality, i.e., the determination of nationality by a combination of elements of fact and Jaw, must be followed by an international tribunal, and that the claimant was 48 Id. at 249. : : 47 See in this regard: Bishop, Insernational Law p. 422 (2nd ed. 1962); Van Panhuys, supra, n. 4 at p. 80. 48 This view, is shared by Cuthbert, supra, n. | at p. 20. . 4# Subject to the qualifications expressed above. — 50 Cuthbert, supra, n. 1 st pp. 20-21. : $1 (1925-6) Annual Digest, Case No. 206, p. 279. 464 International and Comparative Law: Quarterly [VoL. 20 accordingly a French national] and was entitled to judgment accordingly.” °? These, then, were the earlier situations in which the ‘principle of effective nationality and that of equality were invoked. Both prin- ciples existed side by-side, and were apparently regarded not as com- plementary but as incompatible with each other. Indeed, in the Salem case the tribunal went so far as to say “ the principle of the so-called.‘ effective nationality’ the Egyptian government referred to does not seem to be sufficiently established in internationa] law.” ** Yet, as will be seen below, both principles are still with us. . Vi, THE HAGUE CONVENTION The Harvard research.draft convention on nationality °* declares in Article 2 that “... under international law the power of a state to confer its own nationality is not. unlimited.”°* In the comment to that article it is explained that it is extremely difficult to state with any definitiveness exactly what these limitations might be, but that it is clear that some do exist. As an example it is pointed out that a State could certainly not attempt to naturalise a person who. has no connection with it and who is a national of another State.** To be Sure, this hardly represents a substantial curtailment of the jurisdic- -tion of States in matters of nationality. Yet it is instructive, for it is illustrative of a gradually changing attitude towards the concept of «nationality. It had. once been a subject to be avoided at all costs _by international. tribunals.*" It is becoming instead a subject to be wrestled with. It-is no longer taboo. This tendency is also present in the.1930.Hague Convention on Nationality.** & , The. preamble to: the Convention states that it is in the. interest of ‘the international: community that all men should have only one nationality, and , consequently, ‘that -cases of statelessness and dual nationality be abolished. Clearly, these goals are desirable for they would. minimise international friction. - . .. Articles 1 and 2 of the ee can perhaps: best be dealt with “together Article 1 provides: : ; tid “a3 ULN.R.LA.A., supra, n. 39 at p. 1187. be dedi Research Draft ronventie. on Natonsiey cise 23 AJL, Guppy 13 *ss° 1d. ge ae aie 58 Id. at 26, 57 An example would be the Alexander case discussed at p. 460 ef seq. .5® Convention on Certain Questions Relating to the Conflict of Nationality Laws 4 eee L.N.T.S. 4137. The Convention has been in force since July 1,.1937. has been ratified or acceded to by eleven’ Stdtes: Belgium, Brazil, United Kingdoms Burma, Canada, Australia, India, China, Monaco, the Netherlands, Norway, Poland and Sweden. Further, Malta, “Mauritius and Pakistan have succeeded to the Convention. Multilateral Treaties; U.N. Doc. - ST/LEG/SER. D/3, Dec. 31, 1969. Juty 1971] Nationality and Diplomatic Protection 465 It is for each state to determine under its own Jaw 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. Article 2 provides: “Any questions to whether the person possesses the nationality of a particular state may be determined in accordance with the law of that state.” Viewed together, these two rules suggest that it is for each State to determine who are its nationals subject to international Jaw limitations, and that other States shall recognise such determinations subject to the same qualification. Article 3 provides: ‘Subject to the provisions of the present convention, a person having two or more nationalities may be regarded as its national by each of the states whose nationality he possesses.” This article, while acknowledging the existence of cases of dual nationality, must be read in conjunction with the general limitations contained in Article 1, and the specific qualifications contained in Articles 4 and 5. Article 4 provides: “ A state may-not afford diplomatic protection against a ‘state whose nationality such person also possesses.” Here is a specific affirmation of the principle of equality, running directly counter to such cases as Canevaro.** Clearly, the drafters shared the feeling of the Salem *°. tribunal to the degree that the principle of effective nationality is not part of international law in the specific ‘situation described above. Article 5 provides : Within a third state, a person having more than one tiationality shall be treated as if he had only:one. Without prejudice to the application of its law in matters of any conventions: in force, a third state, shall, of the nationalities which any such person possesses, recognize exclusively in its territory either the nationality of the country in which he is habitually and principally resident, or ‘the nationality of the country with which in the circumstances he appears to be in fact most closely connected. . ‘In contrast to Article’4, Article 5 adopts the principle of effective nationality, albeit only in: those ‘situations in which the two States, of which the individual is a national, are not opposing parties.’ None- theless, the -article does go further than the Salem case, which held that the principle of effective’ nationality was not a rule of international law for any purpose.*? -: In conclusion, then, it may be'said of the » Hague ‘Convention ‘that ‘it went on record clearly for the proposition that it would be in the ‘interests of the international community to abolish both’ statélessness ‘and dual nationality; that it recognised that there were international 59 See discussion of Canevaro case, supra, at p. 462. 60 See discussion of Salem case, supra, at pp. 461-462. -: 6. U.N.R.LA.A,, supra, n. 39 at pp. 1187 and 1188. 466 International and Comparative Law Quarterly [VOL. 20 law limitations to a State’s right to determine its nationals for purposes of international recognition; that it recognised the principle of equality in cases in which the two States of which the claimant is a national are opposed; and that it recognised the principle of effectiveness in all other cases of dual nationality. VU. NOTTEBOHM On December 7, 1951, Liechtenstein instituted proceedings before the International Court of Justice °? against Guatemala in which -it claimed that Guatemala had “ acted towards the person and property of Mr. Friedrich Nottebohm, a citizen of Liechtenstein, in a manner contrary to international law.” ** Among Guatemala’s objections to admissibility of the claim was one which went to the nationality of Nottebohm. The latter had been born in Hamburg in 1881, and was accordingly a German national by birth. However, in 1905 he went to Guatemala. There he took up residence, established his business headquarters, and became a partner in the firm of Nottebohm Her- manos which had been founded by brothers of his in 1912. In 1935 he became the head of that firm. During this period of his life Notte- bohm retained some business connections with Germany. Also he had a number of friends and relatives in Germany and in Liechten- stein. Occasionally he visited ‘a brother living in Liechtenstein. He resided in Guatemala until 1943, when the events ocrutred giving rise to the action. Early in 1939 Nottebohm, after safeguarding his interests by giving a power of attorney to Nottebohm Hermanos, left Guatemala. Apparently, he went to Hamburg, but was in Vaduz by October, 1939. On the 9th of that month, shortly after the outbreak of the Second World War, his attorney submitted an application for naturalisation in Liechtenstein. Liechtenstein had a number of requirements for naturalisation. The most important of these, for present purposes were: (1) proof that acceptance into a Liechtenstein Heimatverband (Home Corporation) would follow if Liechtenstein conferred its nationality; (2) the payment of certain sums of money to Liechtenstein authorities; and (3) a. three-year residency requirement, which could be waived in special cases. Nottebohm requested. dispensation from this residency requirement and agreed to pay the requisite moneys both to the Heimatverband and to the State. In addition, he posted a sum of 30,000 Swiss francs as security; and requested that the naturalisation proceedings be processed as soon as possible. On October 20, 1939, Nottebohm took an oath of allegiance to Liechten- 63 Nottebohm Case (second ee (1955) oe 4. 43 Jd. at 12. i JuLy 1971] ‘Nationality and Diplomatic Protection — . 467 stein. A certificate of nationality dated October 20, 1939; certifies that Nottebohm was naturalised in that month by edict of the reigning Prince. Thereupon he returned to Guatemala where he continued to live until 1943. In that year he was deported to.the United States for the duration of the war. In 1946 he sought admission to Guatemala ‘and, upon being refused, went to Liechtenstein. .In 1949 his Guate- -malan properties were finally expropriated. It must be emphasised that Nottebohm had only one nationality, for he lost his German nationality on being naturalised in Liechtenstein. The Court held that the factual connection between Liechtenstein and Nottebohm was insufficient to require that Guatemala recognise Nottebohm’s Liechtenstein nationality for purposes of diplomatic pro- tection and, accordingly, that the claim submitted by Liechtenstein was inadmissible. The Court.proceeded, in effect, to separate the question of nationality from that of diplomatic protection, to grant that Nottebohm had validly acquired Liechtenstein nationality under the laws of that country, but to hold that this unilateral act on the part of Liechtenstein was insufficient to entitle Liechtenstein to repre- sent Nottebohm against Guatemala in the absence of a genuine link existing between the subject and his State. ‘4 The Court said in this connection: . ue Nationality is a legal b 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 .. . is in fact more closely connected with the population of the State conferring the nationality than with that of any other State. Con- ferred by.a State, it only entitles that State to exercise protection vis-a-vis another State, if it constitutes a trarislation into judicial terms of the ' . individual's connection with the State which has made him its national.** In the same vein the Court proposed the following test for effective nationality : ° . The habitual residence of ‘the! ‘individual eoncened: is an important factor, but there’are other factors such as the centre of his interests, his family ties, his participation in public life, attachment shows by him ‘for a given country and inculcated i in-his children, etc.** in addition ‘to the Court’s ‘discussion - of ‘the effective natienality requirement, however, there. is another significant aspect of the case. The. Court makes clear that what it is deciding is not the sufficiency of the nationality link for all purposes. of international recognition, but. only for the specific case of: recognition’ by.'\Guatemala for pur- poses of diplomatic protection.°’ Thus, the Nottebohm case presents «4 Cuthbert, supra, n. 1 at pp. 11-12. $5 -Nottebohm, supra,.n. 62 at-p. 23. 66 Id. at 22. 67 Id, at 22, 468 International and Comparative Law Quarterly [VoL. 20 two new elements: this functional approach to nationality which has, as its logical extension, that at the international level one can have nationality for some purposes but not for others, and the effective link doctrine which previously had been applied only in cases of dual nationality.** It is not surprising then that this case has evoked a good deal of controversy, much of it critical. Perhaps the most forceful argument advanced in criticism of the decision is that it rendered Nottebohm stateless for purposes of diplomatic protection and thus left him without judicial remedy against Guatemala.°* In this connection, however, it must be remembered that the Court specifically limited its discussion to the situation at hand. It is, therefore, by no means clear that if Nottebohm needed protection against another country with which he had no connection, Liechtenstein would not be entitled to protect him. But, it will be rejoined, this does not help him vis-d-vis Guatemala. This criticism is valid. Apparently, the Court was strongly influenced by the particular facts of this case. Nottebohm had lived in Guatemala all of bis adult life, he had apparently never applied for Guatemalan citizenship (which would presumably have imposed on him some of the obliga- tions towards Guatemala which go with that country’s nationality); and he then sought to invoke against the State with which he has for many years had the closest of ties the protection of another State with which’ his ties were minimal and strictly formal. As Jessup has said in this connection: “It is clear that a majority of the Court felt that under the circumstances of the facts of this case it was not appropriate for Liechtenstein to present this claim against Guatemala.” '® Bear- ing in mind, however, that Nottebohm had lived in Liechtenstein during the three years preceding the final expropriation of his pro- perty by Guatemala (from 1946 to 1949), and that he was still residing in Liechtenstein at the time these proceedings were instituted in 1951, this reluctance of the Court to permit Liechtenstein to prevent the claim would seem unwarranted. Another criticism made of the decision is that the test it laid down for the adequacy of the connection between individual and State is subjective and ‘therefore is difficult to apply, with the result that it will lead to uncertainty."" Undoubtedly, it might well be difficult to determine with any degree of assurance either the centre of an indivi- dual’s interests or the degree of attachment shown by him towards a 68 O'Connell, supra, n. 9 at p. 739. ¢® Kunz, supra, n. 8 . p. 562. 16 Jessup, Proceedings, Second Summer Ccopatice on International Law,- Cornell Law School, tine, 33-25, 1958, p. 43. 71 Kunz, supra, n. 8 at pp. $54, 561. JuLy 1971) Nationality and Diplomatic Protection 469 particular country. Yet three of the criteria contained in the Court’s test can be ascertained with relative ease and objectivity: residence, family ties, and participation in public life. This being the case, one may perhaps be permitted to question whether the test will really present severe problems in its application. A final criticism which should be addressed here is that the decision has underlined the proposition that States are the subjects of inter- national law and has made international justice even less accessible to individuals.’* It is quite true that the decision reaffirms that States are the only subjects of international law. This does not necessarily mean, however, that international justice will become even less accessible to individuals. Indeed, the Nottebohm case may well turn out to be a landmark decision resulting in access to international justice for a far larger class of people than heretofore. It is clear that the Nottebohm decision has given renewed vigour to the principle of effectiveness. Further, it is clear, that this may have the effect of ensuring that a State may bring a claim on behalf of a national effectively connected with it, even when the claim is against another State of which the individual is also formally a national. In such cases, the principle of effectiveness acts to permit the bringing of claims, whereas the principle of equality would have barred them. It is clear also, that the principle of effectiveness, as expounded in the Nottebohm decision, may have the effect of preventing a State from exercising diplomatic protection on behalf of a national whose connection with that State is only formal. This is so in three types of cases: (1) in the case of dual nationals, where the State of formal’ nationality seeks to bring a claim against the State of effective nationa- lity; (2) in the case of dual nationals where the State of formal: nationality seeks to bring a claim against a third State with which the individual has no connection; and (3) in the case of nationals of only one State—who lack an effective link with that State. As to the first type of case, the principle of effectiveness brings about the same result as would the principle of equality: both principles could bar a claim. from being brought, though for different'reasons."* Accordingly, as to such claims, it cannot be said that the principle of effectiveness would render international. justice any Jess accessible to individuals. If there is merit in the criticism that the principle of effectiveness, as expounded in the Nottebohm decision, may render international justice less accessible to individuals, it is with regard to the other two categories of cases meationed : those in which one of 72 Johned, supra, n. 15 at p. 244. 13 As to the different rationale upon which’ these two ore tiassd: see the discussion of effectiveness and equality supra at p. 459 ef seq. 470 International and ‘Comparative: Law Quarterly « [VoL. 20 the States. of. which an individual is a dual’ national; but with which he. has ‘no effective ‘link, seeks to represent him against-a third State, and those involving a national of ‘only one State who ak an effective Jink with that State. - It is quite true that the principle of Miciiicnead. as sa applied i in the: Nottebohm: decision, would appear to bar-claims brought by States on behalf of individuals falling within either of these categories. Further, that to this extent; the principle. of effectiveness results i in international justice being less accessible to individuals. ‘ However, international ‘law is not static. Jt is a constantly developing process. In light of this, the présent writer suggests that a desirable future development would be for the requirement of formal nationality for the purposes of diplomatic protection to be dropped. Instead of requiring both nationality in the formal sense and an effective link for purposes of diplomatic protection, let an effective link be the only requirement. This would permit a State to bring a claim on behalf of any individual effectively connected with it, irrespective of whether the individual is also a national of that State in the formal sense. Such a development may appear to be unrealistic, or, at the very least, a long way off. However, there is nothing inherently impossible about it. Indeed, it seems to be the logical next step. The trend has been away from the sufficiency of a formalistic legal tie. Surely it is in line with such thinking to reason that if.an individual is. effectively connected with a State, and that-State is willing to bring a eam on his behalf, then it should be permitted so to do. ; Certainly, such a development would ‘be well suited to the present state of international relations.: Ever-increasing numbers of people are travelling, and residing away from their State of formal nationa- lity. ‘Many have no factual connection with it whatsoever. Were international law to develop along the lines suggested above, it would make it possible for Statés with which such individuals are effectively connected to bring claims on their behalf. It would make access to international justice potentially available to a far larger class of people than those to whom it is presently available. The question arises as to what the nature of the effectiveness requirement would be, were the law to develop as suggested. It would seem that this question can best be answered by'the court and tribunals on a case-by-case basis. However, there are a number of critéria to which a court might look in determining whether there exists a sufficient link between an individual and a given State. The State of‘habitual residence; emphasised both in the 1930 Hagué Con- JuLy 1971] Nationality and Diplgmatic Protection . 471 vention on Nationality ’* and in the Nottebohm decision, is. both a- logical criterion and one easy to determine. Two other criteria mentioned by the ‘Court in the Nottebohm case "> may also be helpful, and are also ascertainable with relative ease: family ties and participation in public life. The location of a person’s business interests might also be of some assistance in this connection. None of these factors are suggested as necessary elements of an effective link. Nor are they suggested as the only criteria to be considered in determining the adequacy of the connection between an individual and a State seeking to represent him. They may however furnish a useful starting point. In the last analysis, the facts of each situation should be determinative. Moreover, generally speaking, it would appear that the requirement of effectiveness should be liberally construed, so as to permit a State to bring a claim on behalf of persons factually connected with it. Vill. MERGE AND FLEGENHEIMER Two further cases should be mentioned before concluding, the Merge case ’® brought before the Italian-United States Conciliation Com- mission in 1955 and the Flegenheimer case '’ brought before the same Commission in 1958. The Merge case involved a claim submitted by the U.S. for com- pensation from loss of a grand piano and other personal property located in Italy and owned by Mrs. Merge. Italy rejected the claim on the grounds that Mrs. Merge had both American and Italian nationality, and that the United States was consequently banned from bringing the claim in accordance with the principle of equality. Florence Strunsky was born in New York in 1909, and accordingly acquired U.S. nationality. On December 21, 1933, she married Salvatore Merge of Italy, in Rome, and, because of her marriage, acquired her husband’s nationality. by operation of Italian law. She lived in Italy for the next four years. The United States State Depart- ment issued her a U.S. passport in July of 1931. This was renewed! in 1933 and was valid through 1935. In 1937 Mrs. Merge’s husband, an Italian governmental employee. was sent to that country’s embassy in Japan. Mrs. Merge accompanied her husband, travelling on an Italian passport. In Japan she registered herself at the U.S. consulate. In 1946 the U.S. consulate in Japan issued her a U.S. passport. She travelled to the U.S. on it, stayed nine months, and then went to Italy 74 See n. $8, supra. re 15 See p. 469. 16 (United States v. Maly) (1955) Vol. XIV U.N.R.1.A.A. 236. 17 Digested in (1959) 53 AJ.LL. 944. (United States v. Italy), 1958. 472 International and Comparative Law Quarterly [VoL. 20 on it, having been granted an Jialian visitor’s visa. ‘In Italy she again registered as a U.S. national. . Later that year, in 1947, Mrs. Merge executed an affidavit before a U.S. consular official in which she stated that her only ties with the U.S. were her parents who resided there. In September 1950 .she .was issued a new U.S. passport. In the application she stated that her legal residence was New York, and that at some future date she intended to again reside there per- manently.: At the time of the procéedings Mrs. Merge was ‘still Tesiding with her husband in Italy. The issue of concern here is, of course, that of wiethet: given Mrs. Merge’s dual nationality, the U.S. may exercise diplomatic protection before ‘the Commission. The Italian Government’s contention was that the claimant was an Italian national and that accordingly the claim must be rejected, on the basis of the principle of equality codi- fied in Article 4 of the Hague Convention. The tribunal, however, held that the United States could not exercise protection in this case for reasons of the principle of effectiveness. In so doing, it said in part: ., The, principle, based on the equality of states, which excludes dipibaane protection in the case of dual nationality, must yield before the principle of -effective nationality whenever such nationality is that.of the claiming state. But it cannot yield when such predominance is not proved because .the first of these two principles is generally recognized and may con- stitute a criterion of’ practical application for ths elimination of any possible uncertainty.’* » ° Thus, unlike some of the earlier cases discussed, this case attempts to reconcile the principle of effectiveness with that of equality. The’ significance of the Mérge case is that, following Nottebohm, it, accepts explicitly the doctrine of ‘effective nationality, at least ‘in cases where the two States opposed to each other are the States whose nationality the claimant possesses. Mrs. Merge’s claim was not barred because of the principle of equality, but because the tribunal found’ ‘that there did not’ exist a eueauly effective link between herself and the United States. ‘A very different approach was, however, taken by the same Italian- ‘American Conciliation Commission in deciding the Flegenheimer case brought Before it by the United States three years later. Flegenheimer had: owned stock in an Italian company, and had sold it to another Italian company at substantially below its value. He, sought can- cellation of this sale, claiming that as a Jew he had been motivated by ‘fear that the Italian Anti-Semitic legislation of 1938 might bé applied to him. The Italian defence was that the claim was inadmis- sible as Flegenheimer was not a United States national and, there- 418 Merge case, supra, 0.-76 at p. 247. © JuLy 1971] . Nationality and Diplomatic Protection’ ~ 473 fore, not a United Nations national as defined in Article 78, paragraph 9 (a) of the Italian Peace Treaty under which the Commission was established. The above mentioned article provides in part: “ United Nations nationals means individuals.of any of the United Nations . . . at the coming into-force of the present Treaty, provided that the said individuals . . . also had this status on September 3, 1943.” Albert Flegenheimer was born in Wiirttemberg, Germany, -in 1890. His father, born in-Baden, Germany, had moved to the United States in the 1860s, and had been naturalised in 1873. -He returned to Ger- many in 1874. In 1894 he was naturalised in Wiirttemberg, where he remained until his death. Albert was included in the 1894 naturalisa- tion, and lived in Germany until 1937. In that year he was told that as a Jew he must leave Germany, and he went to Italy. Following the 1938 Italian Anti-Semitic Laws he moved, first to Switzerland, and then to Canada in 1939. All this he did on his German passport. In 1939 he filed his first formal claim.to U.S. citizenship. This was refused him by a board of special inquiry- of the U.S. Immigration and Naturalisation Service. In 1940 his German citizenship was revoked. Eventually he was admitted to the United States on a tem- porary visa and, following U.S. entry into the war, the U.S. Immigra- tion and Naturalisation Service ordered that he be given the status of a US. national. This was in 1942.. The State Department granted Flegenheimer a passport in October 1946, though-it had refused him one earlier that year. In 1952, following the initiation of proceedings before the Conciliation Commission, Flegenheimer requested issuance of a certificate of nationality. The examining officer found him not to be.a United States national. The Acting Assistant Commissioner, Inspection and Examination Division, found to the contrary, however, and issued him the requested certificate. In this case the Commission refused to accept as a fact Flegenheimer’s U.S. nationality, and then go on to decide whether the nationality link was such as to warrant diplomatic protection. It held instead that it was not bound by the Certificate of Nationality, and affirmed the right of an international tribunal to examine the validity and f at the international level of nationality conferred by a State. It reasoned that if nationality is held to be invalid on the international plane. then there can be no international ‘ consequences of nationality such as diplomatic protection.’® Where international law and the international bodies that must apply the law are concerned, national laws are simple facts, an indication of the will and the activity of states. . It is the duty of the Commission to establish Albert Flegenheimer’s ire nationality. ... It must therefore examine whether an administrative decision, such as that taken in favour 79 Cuthbert, supra, n. 1 at p. 18. seek 474 International and Comparative Law Quarterly [Vot. 20 of Albert Flegenheimer in the United States was of such a nature as to be convincing.*° The Commission then found that Flegenheimer did acquire United States nationality jus sanguinis, as a result of his father’s U.S. nationa- lity. It found also, however, that Flegenheimer later lost his United States nationality under the terms of the Bankroft Treaty. concluded in July 2, 1868, between the United States and Wiirttemberg, by virtue of his acquisition of Wiirttemberg and German nationality and his residence in that country for over five years. Further, that he never regained his United States nationality. The Commission, therefore, held that Flegenheimer’s evidence of U.S. nationality was not of such a nature as to be convincing before an international tribunal. In discussing further Italian defences, the Commission also refused to accept the proposition that Flegenheimer’s U.S. nationality must be effective for the United States to be entitled to exercise diplomatic protection on his behalf. It expressly limited the doctrine of effec- tiveness to cases of dual nationality.*' Indeed, the Commission went beyond that, saying: “ There does not in fact exist any criterion of proven effectiveness for disclosing the effectiveness of a bond with a political collectivity.” * , The decision is thus of interest to the present discussion in three respects. First, because in upholding the right of an international tribunal to investigate whether a claimant in fact possesses his asserted nationality it provides a recent example of the one other established approach to the question of whether a State may exercise diplomatic protection on behalf of an’ individual whom it claims as its national. Secondly, because it purports to limit the doctrine of effectiveness to cases of dual nationality. Thirdly, and most important, because it involves a situation in which an individual’s claim was barred solely because of a deficiency in his formal nationality. If the tribunal had not insisted on formal nationality, Flegenheimer’s claim might well have been adjudicated on the merits. 1x. CONCLUSION What, ‘then, may be concluded from this discussion? Perhaps the most significant single impression with which one is left is: that nationality is no longer exclusively within the reserved domain of States. More and more it is being grappled with by international ‘tribunals. Beyond this, however, there are a number of factors which must be: considered in any attempted determination of the circum- se i Eiereuiidimee case, supra, n. 77 at p. 946. © 81 Id. at 957. $3 Id. 2 PPADS vs JuLy 1971] Nationality and Diplomatic Protection 475 stances in which the exercise of diplomatic protection will be permitted under present international law. It is clear, first of all, that the claimant must be a national of the State seeking to exercise diplomatic protection on his behalf. Further, that an international tribunal may examine the proof and validity of the claimant’s nationality for purposes of determining whether he is such a national. If he is not, a State claiming him as its national will not be permitted to represent ‘him irrespective of whether he has another nationality. It is clear also that the rule of continuous nationality remains an established principle of international law. Moreover, despite its rather weak rationale, there is as yet no evidence that its scope will soon be curtailed. -Thus the individual must.remain a national of the State claiming on his.behalf from the time-of the injury to the time at which the claim is presented before an international tribunal. These requirements aside, there are, at present, two principles of international law relevant to a determination of when diplomatic pro- tection will be permitted, namely the principles of equality and effec- tive nationality. While it is undoubtedly true that the former remains a viable rule of international Jaw, the present writer believes that the principle of effectiveness can now also safely be said to be well estab- lished. Moreover, it is perhaps not unlikely that attempts will frequently be made to reconcile the two principles, as was done in the Merge case. Yet as that case shows, any attempt to reconcile the two is likely to result in a victory for the effectiveness theory. Finally, is the principle of effective nationality a desirable one? | It seems to this writer that it is. First because it tends to resolve ques- tions of dual nationality for purposes of diplomatic protection. Secondly, because it may eventually result in access to international justice by a far larger class of people than heretofore. This will happen when the requirement of formal nationality for purposes of diplomatic protection is dropped, and instead only an effective link is required between an individual and the country seeking to represent him. : .