Skip to main content <#maincontent>
We will keep fighting for all libraries - stand with us!
Internet Archive logo A line drawing of the Internet Archive
headquarters building façade.
Search icon An illustration of a magnifying glass.
Search icon An illustration of a magnifying glass.
Upload icon An illustration of a horizontal line over an up pointing
arrow. Upload
User icon An illustration of a person's head and chest. Sign up
| Log in
Web icon An illustration of a computer application window
Wayback Machine
Texts icon An illustration of an open book.
Books
Video icon An illustration of two cells of a film strip.
Video
Audio icon An illustration of an audio speaker.
Audio
Software icon An illustration of a 3.5" floppy disk.
Software
Images icon An illustration of two photographs.
Images
Donate icon An illustration of a heart shape
Donate
Ellipses icon An illustration of text ellipses.
More
Hamburger icon An icon used to represent a menu that can be toggled by
interacting with this icon.
Internet Archive Audio
Live Music Archive Librivox Free
Audio
Featured
* All Audio
* This Just In
* Grateful Dead
* Netlabels
* Old Time Radio
* 78 RPMs and Cylinder Recordings
Top
* Audio Books & Poetry
* Computers, Technology and Science
* Music, Arts & Culture
* News & Public Affairs
* Spirituality & Religion
* Podcasts
* Radio News Archive
Images
Metropolitan Museum
Cleveland
Museum of Art
Featured
* All Images
* This Just In
* Flickr Commons
* Occupy Wall Street Flickr
* Cover Art
* USGS Maps
Top
* NASA Images
* Solar System Collection
* Ames Research Center
Software
Internet Arcade Console
Living Room
Featured
* All Software
* This Just In
* Old School Emulation
* MS-DOS Games
* Historical Software
* Classic PC Games
* Software Library
Top
* Kodi Archive and Support File
* Vintage Software
* APK
* MS-DOS
* CD-ROM Software
* CD-ROM Software Library
* Software Sites
* Tucows Software Library
* Shareware CD-ROMs
* Software Capsules Compilation
* CD-ROM Images
* ZX Spectrum
* DOOM Level CD
Books
Books to Borrow Open Library
Featured
* All Books
* All Texts
* This Just In
* Smithsonian Libraries
* FEDLINK (US)
* Genealogy
* Lincoln Collection
Top
* American Libraries
* Canadian Libraries
* Universal Library
* Project Gutenberg
* Children's Library
* Biodiversity Heritage Library
* Books by Language
* Additional Collections
Video
TV News Understanding 9/11
Featured
* All Video
* This Just In
* Prelinger Archives
* Democracy Now!
* Occupy Wall Street
* TV NSA Clip Library
Top
* Animation & Cartoons
* Arts & Music
* Computers & Technology
* Cultural & Academic Films
* Ephemeral Films
* Movies
* News & Public Affairs
* Spirituality & Religion
* Sports Videos
* Television
* Videogame Videos
* Vlogs
* Youth Media
Search the history of over 835 billion web pages
on the Internet.
Search the Wayback Machine
Search icon An illustration of a magnifying glass.
Mobile Apps
* Wayback Machine (iOS)
* Wayback Machine (Android)
Browser Extensions
* Chrome
* Firefox
* Safari
* Edge
Archive-It Subscription
* Explore the Collections
* Learn More
* Build Collections
Save Page Now
Capture a web page as it appears now for use as a trusted citation in
the future.
Please enter a valid web address
* About
* Blog
* Projects
* Help
* Donate
* Contact
* Jobs
* Volunteer
* People
* Sign up for free
* Log in
Search metadata
Search text contents
Search TV news captions
Search radio transcripts
Search archived web sites
Advanced Search
* About
* Blog
* Projects
* Help
* Donate Donate icon An illustration of a heart shape
* Contact
* Jobs
* Volunteer
* People
Full text of "Protecting Powers: International Law
"
See other formats
International and Comparative Law
Quarterly
http://iournals.cambridge.org/ILQ
Additional services for International and
Comparative Law Quarterly:
Email alerts: Click here
Subscriptions: Click here
Commercial reprints: Click here
Terms of use : Click here
Nationality and Diplomatic Protection
Guy |. F. 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. : .