the nottebohm case-cay

8/10/2019 The Nottebohm Case-cay

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THE NOTTEBOHM CASE (DIGEST)Liechtenstein v. Guatemala

FACTS:

Friedrich Nottebohm, born September 16, 1881 in Hamburg, Germany, possessed German

citienship! A"though he "i#ed in Guatema"a $rom 1%&' unti" 1%() he ne#er became a citien o$

Guatema"a! *n *ctober %, 1%)%, Nottebohm app"ied to become a natura"ied citien o$+iechtenstein! The app"ication as appro#ed and he became a citien o$ +iechtenstein! He then

returned to Guatema"a on his +iechtenstein passport and in$ormed the "oca" go#ernment o$ his

change o$ nationa"ity! -hen he tried to return to Guatema"a once again in 1%() he as re$used

entry as an enemy a"ien since the Guatema"an authorities did not recognie his natura"iation

and regarded him as sti"" German! .t has been suggested that the timing o$ the e#ent as due to

the recent entry o$ the /nited States and Guatema"a into the Second -or"d -ar!

He as "ater e0tradited to the /nited States, here he as he"d at an internment camp unti" the

end o$ the ar! A"" his possessions in Guatema"a ere conscated! A$ter his re"ease, he "i#ed out

the rest o$ his "i$e in +iechtenstein!

The Go#ernment o$ +iechtenstein granted Nottebohm protection against un2ust treatment by the

go#ernment o$ Guatema"a and petitioned the .nternationa" Court o$ 3ustice! Hoe#er, the

go#ernment o$ Guatema"a argued that Nottebohm did not gain +iechtenstein citienship $or the

purposes o$ internationa" "a! The court agreed and thus stopped the case $rom continuing!

.SS/4:

-hether or not Nottebohm is a citien o$ +iechtenstein, there$ore entit"ed to dip"omaticprotection!

H4+5:A"though the Court stated that it is the so#ereign right o$ a"" states to determine its on citiensand criteria $or becoming one in municipa" "a, such a process ou"d ha#e to be scrutinied onthe internationa" p"ane here the uestion is o$ dip"omatic protection! The Court uphe"d theprincip"e o$ e7ecti#e nationa"ity, the Nottebohmprincip"e9 here the nationa" must pro#e ameaning$u" connection to the state in uestion! This princip"e as pre#ious"y app"ied on"y incases o$ dua" nationa"ity to determine hich nationa"ity shou"d be used in a gi#en case! Hoe#erNottebohm had $or$eited his German nationa"ity and thus on"y had the nationa"ity o$+iechtenstein!

+iechtenstein considers itse"$ to be acting in con$ormity ith this princip"e and contends thatNottebohm is its nationa" by #irtue o$ the natura"iation con$erred upon him!

FULL CASE

The Nottebohm Case

(Liechtenstein v G!atema"a)

Inte#nationa" Co!#t o$ %!stice

Ai" ' *++

y the App"ication "ed on 5ecember 1;th, 1%'1, the Go#ernment o$ +iechtenstein institutedproceedings be$ore the Court in hich it c"aimed restitution and compensation on the groundthat the Go#ernment o$ Guatema"a had .n its Counter?
http://en.wikipedia.org/wiki/Hamburghttp://en.wikipedia.org/wiki/Germanyhttp://en.wikipedia.org/wiki/Citizenshiphttp://en.wikipedia.org/wiki/Second_World_Warhttp://en.wikipedia.org/w/index.php?title=Effective_nationality&action=edit&redlink=1http://en.wikipedia.org/wiki/Germanyhttp://en.wikipedia.org/wiki/Citizenshiphttp://en.wikipedia.org/wiki/Second_World_Warhttp://en.wikipedia.org/w/index.php?title=Effective_nationality&action=edit&redlink=1http://en.wikipedia.org/wiki/Hamburg


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=emoria", the Go#ernment o$ Guatema"a contended that this c"aim as inadmissib"e because o$the nationa"ity o$ the person $or hose protection +iechtenstein had seised the Court!

Guatema"a has re$erred to a e""?estab"ished princip"e o$ internationa" "a, hich it e0pressed inCounter?

=emoria", that This sentence is ta@en $rom a 3udgment o$ the

ermanent Court o$ .nternationa" 3ustice Series AB, No! ;6, p! 169, hich re"ates to the $orm o$dip"omatic protection constituted by internationa" 2udicia" proceedings!

+iechtenstein considers itse"$ to be acting in con$ormity ith this princip"e and contends thatNottebohm is its nationa" by #irtue o$ the natura"iation con$erred upon him!

Nottebohm as born at Hamburg on September 16th, 1881! He as German by birth, and sti""possessed German nationa"ity hen, in *ctober 1%)%, he app"ied $or natura"iation in+iechtenstein! .n 1%&' he ent to Guatema"a! He too@ up residence there and made that countrythe headuarters o$ his business acti#ities, hich increased and prospered these acti#ities

de#e"oped in the e"d o$ commerce, ban@ing and p"antations! Ha#ing been an emp"oyee in therm o$ Nottebohm Hermanos, hich had been $ounded by his brothers 3uan and Arturo, hebecame their partner in 1%1D and "ater, in 1%);, he as made head o$ the rm! A$ter 1%&' hesometimes ent to Germany on business and to other countries $or ho"idays! He continued toha#e business connections in Germany! He paid a $e #isits to a brother ho had "i#ed in+iechtenstein since 1%)1! Some o$ his other brothers, re"ati#es and $riends ere in Germany,others in Guatema"a! He himse"$ continued to ha#e his 0ed abode in Guatema"a unti" 1%(), thatis to say, unti" the occurrence o$ the e#ents hich constitute the basis o$ the present dispute!

.n 1%)%, a$ter ha#ing pro#ided $or the sa$eguarding o$ his interests in Guatema"a by a poer o$attorney gi#en to the rm o$ Nottebohm Hermanos on =arch DDnd, he "e$t that country at a date0ed by Counse" $or +iechtenstein as at appro0imate"y the end o$ =arch or the beginning o$ Apri",

hen he seems to ha#e gone to Hamburg, and "ater to ha#e paid a $e brie$ #isits to Eadu thecapita" city o$ +iechtenstein here he as at the beginning o$ *ctober 1%)%! .t as then, a "itt"emore than a month a$ter the opening o$ the second -or"d -ar mar@ed by Germanys attac@ ono"and, that his attorney, 5r! =ar0er, submitted an app"ication $or natura"iation on beha"$ o$Nottebohm!

*n *ctober %th, 1%)%, Nottebohm, He $urtherundertoo@ to deposit as security a sum o$ )&,&&& Siss $rancs! He a"so ga#e certain genera"in$ormation as to his nancia" position and indicated that he ou"d ne#er become a burden to theCommune hose citienship he as see@ing! +ast"y, he reuested Lthat natura"iationproceedings be initiated and conc"uded be$ore the Go#ernment o$ the rincipa"ity and be$ore the

Commune o$ =auren ithout de"ay, that the app"ication be then p"aced be$ore the 5iet ith a$a#orab"e recommendation and, na""y, that it be submitted ith a"" necessary e0pedition to HisHighness the Keigning rince!

A document dated *ctober 1'th, 1%)%, certies that on that date the Commune o$ =aurencon$erred the pri#i"ege o$ its citienship upon =r! Nottebohm and reuested the Go#ernment totransmit it to the 5iet $or appro#a"! A certicate o$ *ctober 1;th, 1%)%, e#idences the payment o$the ta0es reuired to be paid by =r! Nottebohm! *n *ctober D&th, 1%)%, =r! Nottebohm too@ theoath o$ a""egiance and a na" arrangement concerning "iabi"ity to ta0ation as conc"uded on*ctober D)rd!


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A certicate o$ nationa"ity has a"so been produced, signed on beha"$ o$ the Go#ernment o$ therincipa"ity and dated *ctober D&th, 1%)%, to the e7ect that Nottebohm as natura"ied bySupreme Keso"ution o$ the Keigning rince dated *ctober 1)th, 1%)%!

Ha#ing obtained a +iechtenstein passport, Nottebohm had it #isa?ed by the Consu" Genera" o$Guatema"a in Jurich on 5ecember 1st, 1%)%, and returned to Guatema"a at the beginning o$1%(&, here he resumed his $ormer business acti#ities and in particu"ar the management o$ therm o$ Nottebohm Hermanos!

The rea" issue be$ore the Court is the admissibi"ity o$ the c"aim o$ +iechtenstein in respect o$Nottebohm! .n order to decide upon the admissibi"ity o$ the App"ication, the Court must ascertainhether the nationa"ity con$erred on Nottebohm by +iechtenstein by means o$ a natura"iationhich too@ p"ace in the circumstances hich ha#e been described, can be #a"id"y in#o@ed asagainst Guatema"a, hether it bestos upon +iechtenstein a suMcient tit"e to the e0ercise o$protection in respect o$ Nottebohm as against Guatema"a and there$ore entit"es it to seise theCourt o$ a c"aim re"ating to him! .n this connection, Counse" $or +iechtenstein said:


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hether internationa" "a imposes any "imitations on its $reedom o$ decision in this domain!Furthermore, nationa"ity has its most immediate, its most $ar?reaching and, $or most peop"e, itson"y e7ects ithin the "ega" system o$ the State con$erring it! Nationa"ity ser#es abo#e a"" todetermine that the person upon hom it is con$erred en2oys the rights and is bound by theob"igations hich the "a o$ the State in uestion grants to or imposes on its nationa"s! This isimp"ied in the ider concept that nationa"ity is ithin the domestic 2urisdiction o$ the State!

ut the issue hich the Court must decide is not one hich pertains to the "ega" system o$+iechtenstein! .t does not depend on the "a or on the decision o$ +iechtenstein hether thatState is entit"ed to e0ercise its protection, in the case under consideration! To e0ercise protection,to app"y to the Court, is to p"ace onese"$ on the p"ane o$ internationa" "a! .t is internationa" "ahich determines hether a State is entit"ed to e0ercise protection and to seise the Court!

The natura"iation o$ Nottebohm as an act per$ormed by +iechtenstein in the e0ercise o$ itsdomestic 2urisdiction! The uestion to be decided is hether that act has the internationa" e7ecthere under consideration!

.nternationa" practice pro#ides many e0amp"es o$ acts per$ormed by States in the e0ercise o$their domestic 2urisdiction hich do not necessari"y or automatica""y ha#e internationa" e7ect,hich are not necessari"y and automatica""y binding on other States or hich are binding on

them on"y sub2ect to certain conditions: this is the case, $or instance, o$ a 2udgment gi#en by thecompetent court o$ a State hich it is sought to in#o@e in another State!

.n the present case it is necessary to determine hether the natura"iation con$erred onNottebohm can be success$u""y in#o@ed against Guatema"a, hether, as has a"ready been stated,it can be re"ied upon as against that State, so that +iechtenstein is thereby entit"ed to e0ercise itsprotection in $a#or o$ Nottebohm against Guatema"a! -hen one State has con$erred itsnationa"ity upon an indi#idua" and another State has con$erred its on nationa"ity on the sameperson, it may occur that each o$ these States, considering itse"$ to ha#e acted in the e0ercise o$its domestic 2urisdiction, adheres to its on #ie and bases itse"$ thereon in so $ar as its onactions are concerned! .n so doing, each State remains ithin the "imits o$ its domestic

2urisdiction!

The courts o$ third States, hen they ha#e be$ore them an indi#idua" hom to other States ho"dto be their nationa", see@ to reso"#e the conict by ha#ing recourse to internationa" criteria andtheir pre#ai"ing tendency is to pre$er the rea" and e7ecti#e nationa"ity!

The same tendency pre#ai"s in the ritings o$ pub"icists and in practice! This notion is inherent inthe pro#isions o$ Artic"e ), paragraph D, o$ the Statute o$ the Court! Nationa" "as reect thistendency hen, inter a"ia, they ma@e natura"iation dependent on conditions indicating thee0istence o$ a "in@, hich may #ary in their purpose or in their nature but hich are essentia""yconcerned ith this idea! The +iechtenstein +a o$ 3anuary (th, 1%)(, is a good e0amp"e!

The practice o$ certain States hich re$rain $rom e0ercising protection in $a#or o$ a natura"ied

person hen the "atter has in $act, by his pro"onged absence, se#ered his "in@s ith hat is no"onger $or him anything but his nomina" country, mani$ests the #ie o$ these States that, in orderto be capab"e o$ being in#o@ed against another State, nationa"ity must correspond ith the$actua" situation! A simi"ar #ie is mani$ested in the re"e#ant pro#isions o$ the bi"atera"nationa"ity treaties conc"uded beteen the /nited States o$ America and other States since1868, such as those sometimes re$erred to as the ancro$t Treaties, and in the an?AmericanCon#ention, signed at Kio de 3aneiro on August 1)th, 1%&6, on the status o$ natura"ied citiensho resume residence in their country o$ origin!

The character thus recognied on the internationa" "e#e" as pertaining to nationa"ity is in no ayinconsistent ith the $act that internationa" "a "ea#es it to each State to "ay don the ru"esgo#erning the grant o$ its on nationa"ity! The reason $or this is that the di#ersity o$ demographicconditions has thus $ar made it impossib"e $or any genera" agreement to be reached on the ru"esre"ating to nationa"ity, a"though the "atter by its #ery nature a7ects internationa" re"ations! .t hasbeen considered that the best ay o$ ma@ing such ru"es accord ith the #arying demographicconditions in di7erent countries is to "ea#e the 0ing o$ such ru"es to the competence o$ eachState! *n the other hand, a State cannot c"aim that the ru"es it has thus "aid don are entit"ed torecognition by another State un"ess it has acted in con$ormity ith this genera" aim o$ ma@ingthe "ega" bond o$ nationa"ity accord ith the indi#idua"s genuine connection ith the State hichassumes the de$ense o$ its citiens by means o$ protection as against other States!

According to the practice o$ States, to arbitra" and 2udicia" decisions and to the opinions o$


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riters, nationa"ity is a "ega" bond ha#ing as its basis a socia" $act o$ attachment, a genuineconnection o$ e0istence, interests and sentiments, together ith the e0istence o$ reciproca"rights and duties! .t may be said to constitute the 2uridica" e0pression o$ the $act that theindi#idua" upon hom it is con$erred, either direct"y by the "a or as the resu"t o$ an act o$ theauthorities, is in $act more c"ose"y connected ith the popu"ation o$ the State con$erringnationa"ity than ith that o$ any other State! Con$erred by a State, it on"y entit"es that State toe0ercise protection #is ?a?#is another State, i$ it constitutes a trans"ation into 2uridica" terms o$the indi#idua"s connection ith the State hich has made him its nationa"!

5ip"omatic protection and protection by means o$ internationa" 2udicia" proceedings constitutemeasures $or the de$ense o$ the rights o$ the State! As the ermanent Court o$ .nternationa"

3ustice has said and has repeated, !C!.!3!, Series A, No! D, at 1D, and Series AB, Nos! D&?D1, at 1;!

Since this is the character hich nationa"ity must present hen it is in#o@ed to $urnish the Statehich has granted it ith a tit"e to the e0ercise o$ protection and to the institution o$internationa" 2udicia" proceedings, the Court must ascertain hether the nationa"ity granted toNottebohm by means o$ natura"iation is o$ this character or, in other ords, hether the $actua"

connection beteen Nottebohm and +iechtenstein in the period preceding, contemporaneousith and $o""oing his natura"iation appears to be suMcient"y c"ose, so preponderant in re"ationto any connection hich may ha#e e0isted beteen him and any other State, that it is possib"eto regard the nationa"ity con$erred upon him as rea" and e7ecti#e, as the e0act 2uridica"e0pression o$ a socia" $act o$ a connection hich e0isted pre#ious"y or came into e0istencetherea$ter!

Natura"iation is not a matter to be ta@en "ight"y! To see@ and to obtain it is not something thathappens $reuent"y in the "i$e o$ a human being! .t in#o"#es his brea@ing o$ a bond o$ a""egianceand his estab"ishment o$ a ne bond o$ a""egiance! .t may ha#e $ar reaching conseuences andin#o"#e pro$ound changes in the destiny o$ the indi#idua" ho obtains it! .t concerns himpersona""y, and to consider it on"y $rom the point o$ #ie o$ its repercussions ith regard to his

property ou"d be to misunderstand its pro$ound signicance! .n order to appraise itsinternationa" e7ect, it is impossib"e to disregard the circumstances in hich it as con$erred, theserious character hich attaches to it, the rea" and e7ecti#e, and not mere"y the #erba"pre$erence o$ the indi#idua" see@ing it $or the country hich grants it to him!

At the time o$ his natura"iation does Nottebohm appear to ha#e been more c"ose"y attached byhis tradition, his estab"ishment, his interests, his acti#ities, his $ami"y ties, his intentions $or thenear $uture to +iechtenstein than to any other StateP The essentia" $acts appear ith suMcientc"arity $rom the record! They are as $o""os:

At the date hen he app"ied $or natura"iation, Nottebohm had been a German nationa" $rom thetime o$ his birth! He had a"ays retained his connections ith members o$ his $ami"y ho had

remained in Germany and he had a"ays had business connections ith that country! His countryhad been at ar $or more than a month, and there is nothing to indicate that the app"ication $ornatura"iation then made by Nottebohm as moti#ated by any desire to dissociate himse"$ $romthe Go#ernment o$ his country!

He had been sett"ed in Guatema"a $or )( years! He had carried on his acti#ities there! .t as themain seat o$ his interests! He returned there short"y a$ter his natura"iation, and it remained thecenter o$ his interests and o$ his business acti#ities! He stayed there unti" his remo#a" as a resu"to$ ar measures in 1%()! He subseuent"y attempted to return there, and he no comp"ains o$Guatema"as re$usa" to admit him! There, too, ere se#era" members o$ his $ami"y ho sought tosa$eguard his interests!

.n contrast, his actua" connections ith +iechtenstein ere e0treme"y tenuous! No sett"ed abode,no pro"onged residence in that country at the time o$ his app"ication $or natura"iation: theapp"ication indicates that he as paying a #isit there and conrms the transient character o$ this#isit by its reuest that the natura"iation proceedings shou"d be initiated and conc"uded ithoutde"ay! No intention o$ sett"ing there as shon at that time or rea"ied in the ensuing ee@s,months or yearsOon the contrary, he returned to Guatema"a #ery short"y a$ter his natura"iationand shoed e#ery intention o$ remaining there! .$ Nottebohm ent to +iechtenstein in 1%(6, thisas because o$ the re$usa" o$ Guatema"a to admit him! No indication is gi#en o$ the groundsarranting the ai#er o$ the condition o$ residence, reuired by the 1%)( Nationa"ity +a, hichai#er as imp"icit"y granted to him! There is no a""egation o$ any economic interests or o$ any


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acti#ities e0ercised or to be e0ercised in +iechtenstein, and no mani$estation o$ any intentionhatsoe#er to trans$er a"" or some o$ his interests and his business acti#ities to +iechtenstein! .tis unnecessary in this connection to attribute much importance to the promise to pay the ta0es"e#ied at the time o$ his natura"iation!

The on"y "in@s to be disco#ered beteen the rincipa"ity and Nottebohm are the short so2ournsa"ready re$erred to and the presence in Eadu o$ one o$ his brothers: but his brothers presence isre$erred to in his app"ication $or natura"iation on"y as a re$erence to his good conduct!

These $acts c"ear"y estab"ish, on the one hand, the absence o$ any bond o$ attachment beteenNottebohm and +iechtenstein and, on the other hand, the e0istence o$ a "ong?standing and c"oseconnection beteen him and Guatema"a, a "in@ hich his natura"iation in no ay ea@ened!

That natura"iation as not based on any rea" prior connection ith +iechtenstein, nor did it inany ay a"ter the manner o$ "i$e o$ the person upon hom it as con$erred in e0ceptiona"circumstances o$ speed and accommodation! .n both respects, it as "ac@ing in the genuinenessreuisite to an act o$ such importance, i$ it is to be entit"ed to be respected by a State in theposition o$ Guatema"a! .t as granted ithout regard to the concept o$ nationa"ity adopted ininternationa" re"ations!

Natura"iation as as@ed $or not so much $or the purpose o$ obtaining a "ega" recognition o$

NottebohmIs membership in $act in the popu"ation o$ +iechtenstein, as it as to enab"e him tosubstitute $or his status as a nationa" o$ a be""igerent State that o$ a nationa" o$ a neutra" State,ith the so"e aim o$ thus coming ithin the protection o$ +iechtenstein but not o$ becomingedded to its traditions, its interests, its ay o$ "i$e or o$ assuming the ob"igationsOother thansca" ob"igationsOand e0ercising the rights pertaining to the status thus acuired!

Guatema"a is under no ob"igation to recognie a nationa"ity granted in such circumstances!+iechtenstein conseuent"y is not entit"ed to e0tend its protection to Nottebohm #is ?a?#isGuatema"a and its c"aim must, $or this reason, be he"d to be inadmissib"e!

The Court is not there$ore ca""ed upon to dea" ith the other p"eas in bar put $orard byGuatema"a or the Conc"usions o$ the arties other than those on hich it is ad2udicating in

accordance ith the reasons indicated abo#e!

For these reasons,

TH4 C*/KT, by e"e#en #otes to three,

Ho"ds that the c"aim submitted by the Go#ernment o$ the rincipa"ity o$ +iechtenstein isinadmissib"e!

5one in French and 4ng"ish, the French te0t being authoritati#e, at the eace a"ace, The Hague,this si0th day o$ Apri", one thousand nine hundred and $ty?#e, in three copies, one o$ hich i""be p"aced in the archi#es o$ the Court and the others i"" be transmitted to the Go#ernment o$the rincipa"ity o$ +iechtenstein and to the Go#ernment o$ the Kepub"ic o$ Guatema"a,respecti#e"y!

5.SS4NT.NG *.N.*N *F 3/5G4 K4A5

=r! Nottebohm as arrested on *ctober 1%th, 1%(), by the Guatema"an authorities, ho ereacting not $or reasons o$ their on but at the instance o$ the /nited States Go#ernment! He asturned o#er to the armed $orces o$ the /nited States on the same day! Three days "ater he asdeported to the /nited States and interned there $or to years and three months! There as no

tria" or inuiry in either country and he as not gi#en the opportunity o$ con$ronting his accusersor de$ending himse"$, or gi#ing e#idence on his on beha"$!

.n 1%(( a series o$ $ty?se#en "ega" proceedings as commenced against =r! Nottebohm,designed to e0propriate, ithout compensation to him, a"" o$ his properties, hether mo#ab"e orimmo#ab"e! The proceedings in#o"#ed more than one hundred and se#enty one appea"s o$#arious @inds! Counse" $or Guatema"a has demonstrated, in a $air and competent manner, thee0istence o$ a netor@ o$ "itigation, hich cou"d not be dea"t ith e7ecti#e"y in the absence o$the principa""y interested party! Further, a"" o$ the cases in#o"#ed, as a centra" and #ita" issue, thecharge against =r! Nottebohm o$ treasonab"e conduct!


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=r! Nottebohm as not permitted to return to Guatema"a! He as thus pre#ented $rom assumingthe persona" direction o$ the comp"e0 netor@ o$ "itigation! He as a""oed no opportunity to gi#ee#idence o$ the charges made against him, or to con$ront his accusers in open court! .n suchcircumstances . am bound to proceed on the assumption that +iechtenstein might be entit"ed toa nding o$ denia" o$ 2ustice, i$ the case shou"d be considered on the merits!

.n #ie o$ this situation, . cannot o#er"oo@ the $act that the a""oance o$ the p"ea in bar ou"densure that 2ustice ou"d not be done on any p"ane, nationa" or internationa"! . do not thin@ that ap"ea in bar, hich ou"d ha#e such an e7ect, shou"d be granted, un"ess the grounds on hich itis based are beyond doubt!

-ith these considerations in mind, it is necessary to e0amine the sing"e issue that the Courtmust decide in order to re2ect or a""o the p"ea in bar based on the ground o$ nationa"ity! Theissue $or decision is: hether, in the circumstances o$ this case and #is ?a?#is Guatema"a,+iechtenstein is entit"ed, under the ru"es o$ internationa" "a, to a7ord dip"omatic protection to=r! Nottebohm!

The 3udgment o$ the Court is based upon the ground that the natura"iation o$ =r! Nottebohmas not a genuine transaction! .t is pointed out that it did not "ead to any a"teration in hismanner o$ "i$e and that it as acuired, not $or the purpose o$ obtaining "ega" recognition o$ his

membership in $act o$ the popu"ation o$ +iechtenstein, but $or the purpose o$ obtaining neutra"status and the dip"omatic protection o$ a neutra" State! . sha"" re$er to this ground as the "in@theory!

Artic"e 1 o$ The Hague 5ra$t Con#ention o$ 1%)& reads as $o""os:

.t is $or each State to determine under its on "a ho are its nationa"s! This "a sha"" berecognied by other States in so $ar as it is consistent ith internationa" con#entions,internationa" custom, and the princip"es o$ "a genera""y recognied ith regard to nationa"ity!

App"ying this ru"e to the case, it ou"d resu"t that +iechtenstein had the right to determine underits on "a that =r! Nottebohm as its on nationa", and that Guatema"a must recognie the

+iechtenstein "a in this regard in so $ar as it is consistent ith internationa" con#entions,internationa" custom, and the princip"es o$ "a genera""y recognied ith regard to nationa"ity! .sha"" re$er to this ua"ity, the binding character o$ natura"iation, as opposabi"ity!

No Qinternationa" con#entionsI are in#o"#ed and no Qinternationa" customI has been pro#ed! Thereremain Qthe princip"es o$ "a genera""y recognied ith regard to nationa"ity!I Ret Guatema"aconcedes that there are no rm princip"es o$ "a genera""y recognied ith regard to nationa"ity,but that the right o$ +iechtenstein to determine under its on "a that =r! Nottebohm as itson nationa", and the corre"ati#e ob"igation o$ Guatema"a to recognie the +iechtenstein "a inthis regardOopposabi"ityOare "imited not by rigid ru"es o$ internationa" "a, but on"y by the ru"esregarding abuse o$ right and $raud!

A diMcu"ty presented by the "in@ theory is that it re"ies upon a nding o$ $act that there is nothingto indicate that =r! Nottebohms app"ication $or natura"iation abroad as moti#ated by anydesire to brea@ his ties ith the Go#ernment o$ Germany! . am unab"e to concur in ma@ing thisnding at the present stage in the case!

.n the rst p"ace, . do not thin@ that internationa" "a, apart $rom abuse o$ right and $raud,permits the consideration o$ the moti#es hich "ed to natura"iation as determining its e7ects!

.n the second p"ace, the nding depends upon the e0amination o$ issues hich are part o$ themerits and hich cannot be decided hen dea"ing ith the p"ea in bar!

.n the third p"ace, the brea@ing o$ ties ith the country o$ origin is not essentia" to #a"id andopposab"e natura"iation! .nternationa" "a recognies doub"e nationa"ity and the present trend inState practice is toards doub"e nationa"ity, hich necessari"y in#o"#es maintenance o$ the tiesith the country o$ origin! .t is noteorthy that in the /nited ingdom the po"icy o$ recogniingthe automatic "oss o$ ritish nationa"ity on natura"iation abroad, hich had been adopted in18;&, as abandoned in 1%(8! /nder the ne ritish "egis"ation, on natura"iation abroad, aritish citien norma""y maintains his ties ith his country o$ origin!

.n the $ourth p"ace, . am unab"e to agree that there is nothing to indicate that =r! Nottebohms


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natura"iation as moti#ated by a desire to brea@ his ties ith Germany! There are three $actshich pro#e that he as determined to brea@ his ties ith Germany! The rst is the $act o$ hisapp"ication $or natura"iation, the second is the ta@ing o$ his oath o$ a""egiance to +iechtenstein,and the third is his obtaining a certicate o$ natura"iation and a +iechtenstein passport!

The "in@ theory is based, in part, on the $act that +iechtenstein ai#ed the reuirement o$ threeyears residence! At the time o$ the natura"iation, =r! Nottebohm as temporari"y resident in+iechtenstein but he had not estab"ished domici"e, and had no immediate intention to do so! ut. ha#e diMcu"ty in regarding "ac@ o$ residence as a decisi#e $actor in the case!

.t has been conceded by Counse" $or Guatema"a that Lthe ma2ority o$ States, in one $orm oranother, either by their "a or in their practice, a""o $or e0ceptiona" cases in hich they e0emptthe app"icant $or natura"iation $rom the reuirement o$ proo$ o$ "ong?continued prior residence!

This is another point on hich both arties are in agreement, and the position has been $u""yestab"ished in the case!

. am o$ the opinion that the parties ere right, and that, under the ru"es o$ positi#e internationa""a, +iechtenstein had the discretionary right to dispense ith the residentia" reuirement! Thatbeing so, . cannotOin the absence o$ $raud or in2uryOre#ie the $actors hich may ha#einuenced +iechtenstein in the e0ercise o$ a discretionary poer! .t is not surprising that no

precedent has been cited to the Court in hichOin the absence o$ $raud or in2ury to an ad#ersepartyOthe e0ercise o$ a discretionary poer, possessed by a State under the princip"es o$positi#e internationa" "a, has been success$u""y uestioned! .$ there had been such precedent, itou"d certain"y ha#e been brought to the attention o$ the Court!

.t is a"so suggested that the natura"iation o$ =r! Nottebohm as "ac@ing in genuineness, and didnot gi#e rise to a right o$ protection, because o$ his subseuent conduct: that he did not abandonhis residence and his business acti#ities in Guatema"a, estab"ish a business in +iechtenstein, andta@e up permanent residence! A"ong the same "ines, it is suggested that he did not incorporatehimse"$ in the body po"itic hich constitutes the +iechtenstein State!

.n considering this point, it is necessary to bear in mind that there is no ru"e o$ internationa" "a

hich ou"d 2usti$y me in ta@ing into account subseuent conduct as re"e#ant to the #a"idity andopposabi"ity o$ natura"iation!

Ne#erthe"ess . am unab"e to a#oid consideration o$ his conduct since *ctober 1%)%!

. ha#e diMcu"ty in accepting the position ta@en ith regard to the nature o$ the State and theincorporation o$ an indi#idua" in the State by natura"iation! To my mind the State is a conceptbroad enough to inc"ude not mere"y the territory and its inhabitants but a"so those o$ its citiensho are resident abroad but "in@ed to it by a""egiance! =ost States regard non?resident citiensas a part o$ the body po"itic! .n the case o$ many countries such as China, France, the /nitedingdom and the Nether"ands, the non?resident citiens $orm an important part o$ the bodypo"itic and are numbered in their hundreds o$ thousands or mi""ions! =any o$ these non?resident

citiens ha#e ne#er been ithin the connes o$ the home State! . can see no reason hy thepattern o$ the body po"itic o$ +iechtenstein shou"d or must be di7erent $rom that o$ other States!

.n my opinion =r! Nottebohm incorporated himse"$ in the nonresident part o$ the body po"itic o$+iechtenstein! From the instant o$ his natura"iation to the date o$ the 3udgment o$ this Court, hehas not departed in his conduct $rom the position o$ a member o$ the +iechtenstein State! Hebegan by obtaining a passport in *ctober 1%)% and a #isa $rom the Consu"ate o$ Guatema"a! *nhis arri#a" in Guatema"a in 3anuary 1%(&, he immediate"y in$ormed the Guatema"an Go#ernmentand had himse"$ registered as a citien o$ +iechtenstein! /pon his arrest in *ctober 1%(), heobtained the dip"omatic protection o$ +iechtenstein through the medium o$ the Siss Consu"! *nthe commencement o$ the conscation o$ his properties, he obtained dip"omatic protection $romthe same source and channe"! A$ter his re"ease $rom internment he as accorded $u"" ci#i" rightsby the Go#ernment o$ the /nited States o$ America and instituted and success$u""y maintainedproceedings and negotiations in -ashington ith a #ie to obtaining the re"ease o$ assets hichhad been b"oc@ed, upon the ground that he as a nationa" o$ +iechtenstein! 5uring the "ast nineyears he has been an acti#e and resident member o$ the body po"itic o$ that State!

As regards residence and business, there is no ru"e o$ internationa" "a reuiring a natura"iedperson to underta@e business acti#ities and to reside in the country o$ his a""egiance! Hoe#er,considering the uestion o$ subseuent conduct, . am unab"e to disregard hat rea""y did


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happen!

To begin ith, =r! Nottebohm as '8 years o$ age at the time??or ithin to years o$ the norma"retirement age in the type o$ business acti#ity in hich he as engaged! The e#idence shosthat he as actua""y contemp"ating retirement! .n *ctober 1%)% he as "arge"y occupied ithp"ans to sa#e the business, but . nd it hard to be"ie#e that he as not a"so thin@ing in terms o$retirement and that Eadu as in his mind! *ut o$ the 1' years hich ha#e e"apsed sincenatura"iation, =r! Nottebohm has spent "ess than $our in Guatema"a, more than to in the/nited States, and nine years in Eadu!

.t is true that, in the app"ications hich ere made in 1%(' on his beha"$ ith a #ie to his returnto Guatema"a, it as stated that he intended to resume his domici"e in that country! ut . amunab"e to o#er"oo@ the $act that his return as abso"ute"y essentia" in order to conduct the '; "asuits to hich . ha#e re$erred abo#e and to c"ear his on good name $rom the charges o$dis"oya"ty hich had been made against him! . do not thin@ that too much eight can be gi#en tothe statements made by his @ins$o"@ in Guatema"a ith a #ie to obtaining the right o$ re?admission to that country!

The essentia" $act is that hen, in 1%(6, he as re"eased in midinter in North 5a@ota, depri#edo$ a"" that he possessed in Guatema"a and ith a"" o$ his assets in the /nited States b"oc@ed, he

ent bac@ to the country o$ his a""egiance! .n my opinion, the $act o$ his return to +iechtensteinand o$ his admission to +iechtenstein is con#incing e#idence o$ the rea" and e7ecti#e character o$his "in@ ith +iechtenstein! .t as an uneui#oca" assertion by him through his conduct o$ the $acto$ his +iechtenstein nationa"ity, and an uneui#oca" recognition o$ that $act by +iechtenstein!

Further, . ha#e diMcu"ty in accepting to c"ose"y re"ated ndings o$ $act! The rst is that thenatura"iation did not a"ter the manner o$ "i$e o$ =r! Nottebohm! .n my opinion, a natura"iationhich "ed u"timate"y to his permanent residence in the country o$ his a""egiance a"tered themanner o$ "i$e o$ a merchant ho had hitherto been residing in and conducting his businessacti#ities in Guatema"a!

The second nding is that the natura"iation as con$erred in e0ceptiona" circumstances o$ speed

and accommodation! There are many countries, besides +iechtenstein, in hich e0pedition andgood i"" are regarded as administrati#e #irtues! . do not thin@ that these ua"ities impair thee7ecti#eness or genuineness o$ their administrati#e acts!

The "in@ theory has been based on the #ie that the essentia" character o$ natura"iation and there"ation beteen a State and its nationa" 2usti$y the conc"usion that the natura"iation o$ =r!Nottebohm, though #a"id, as unrea" and incapab"e o$ gi#ing rise to the right o$ dip"omaticprotection! . ha#e diMcu"ty in adopting this #ie and it becomes necessary to consider the natureo$ natura"iation and dip"omatic protection and the 2uridica" character o$ the re"ationships hicharose beteen Guatema"a and +iechtenstein on =r! Nottebohms return in 1%(&!

Nationa"ity, and the re"ation beteen a citien and the State to hich he oes a""egiance, are o$

such a character that they demand certainty! -hen one considers the occasions $or in#o@ing there"ationshipOemigration and immigration tra#e" treason e0ercise o$ po"itica" rights and$unctions mi"itary ser#ice and the "i@e??it becomes e#ident that certainty is essentia"!

There must be ob2ecti#e tests, readi"y estab"ished, $or the e0istence and recognition o$ thestatus! That is hy the practice o$ States has stead$ast"y re2ected #ague and sub2ecti#e tests $orthe right to con$er nationa"ityOsincerity, de"ity, durabi"ity, "ac@ o$ substantia" connection??andhas c"ung to the ru"e o$ the a"most un$ettered discretionary poer o$ the State, as embodied inArtic"e 1 o$ The Hague 5ra$t Con#ention o$ 1%)&!

Nationa"ity and dip"omatic protection are c"ose"y inter?re"ated! The genera" ru"e o$ internationa""a is that

nationa"ity gi#es rise to a right o$ dip"omatic protection! Fundamenta""y the ob"igation o$ a Stateto accord reasonab"e treatment to resident a"iens and the corre"ati#e right o$ protection arebased on the consent o$ the States concerned! -hen an a"ien comes to the $rontier, see@ingadmission, either as a sett"er or on a #isit, the State has an un$ettered right to re$use admission!

That does not mean that it can deny the a"iens nationa" status or re$use to recognie it! ut byre$using admission, the State pre#ents the estab"ishment o$ "ega" re"ationships in#o"#ing rightsand ob"igations, as regards the a"ien, beteen the to countries! *n the other hand, byadmitting the a"ien, the State, by its #o"untary act, brings into being a series o$ "ega"re"ationships ith the State o$ hich he is a nationa"!


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As a resu"t o$ the admission o$ an a"ien, hether as a permanent sett"er or as a #isitor, a ho"eseries o$ "ega" re"ationships come into being! There are to States concerned, to hich . sha""re$er as the recei#ing State and the protecting State! The recei#ing State becomes sub2ect to aseries o$ "ega" duties #is ?a?#is the protecting State, particu"ar"y the duty o$ reasonab"e and $airtreatment! .t acuires rights #is?a?#is the protecting State and the indi#idua", particu"ar"y therights incident to "oca" a""egiance and the right o$ deportation to the protecting State! At thesame time the protecting State acuires corre"ati#e rights and ob"igations #is?a?#is the recei#ingState, particu"ar"y a diminution o$ its rights as against the indi#idua" resu"ting $rom the "oca"a""egiance, the right to assert dip"omatic protection and the ob"igation to recei#e the indi#idua"on deportation! This netor@ o$ rights and ob"igations is $undamenta""y con#entiona" in its originOit begins ith a #o"untary act o$ the protecting State in permitting the indi#idua" to ta@e upresidence in the other country, and the #o"untary act o$ admission by the recei#ing State! Thescope and content o$ the rights are, hoe#er, "arge"y dened by positi#e internationa" "a!Ne#erthe"ess, the recei#ing State has contro" at a"" stages because it can bring the situation to anend by deportation!

The position is i""ustrated by hat actua""y happened in the present case! =r! Nottebohm ent toGuatema"a '& years ago as a German nationa" and as a permanent sett"er! /pon his admissionas an immigrant, the ho"e series o$ "ega" re"ationships came into being beteen Guatema"a andGermany! Guatema"a as under a "ega" ob"igation #is?a?#is Germany to accord reasonab"e and

$air treatment! Guatema"a had the right to deport =r! Nottebohm to Ge rmany and to no otherp"ace! Germany had the right o$ dip"omatic protection and as under the "ega" ob"igation torecei#e him on deportation! As a resu"t o$ the natura"iation in *ctober 1%)%, the ho"e netor@o$ "ega" re"ationships beteen Guatema"a and Germany as regards =r! Nottebohm came to anend! =r! Nottebohm returned to Guatema"a in 3anuary 1%(&, ha#ing brought about a $undamenta"change in his "ega" re"ationships in that country! He no "onger had the status o$ a permanent"ysett"ed a"ien o$ German nationa"ity! He as entering ith a +iechtenstein passport and ith+iechtenstein protection!

The rst step ta@en by him as the obtaining o$ a #isa $rom the Guatema"an Consu" be$oredeparture! *n arri#a" in Guatema"a he immediate"y brought his ne nationa" status to theattention o$ the Guatema"an Go#ernment on the highest "e#e"! His registration under the A"iensI

Act as a German nationa" as cance"ed and he as registered as a +iechtenstein nationa"! Fromthe end o$ 3anuary 1%(& he as treated as such in Guatema"a!

.n my opinion, as a resu"t o$ =r! Nottebohms admission to Guatema"a and estab"ishment underthe Guatema"an "a as a resident o$ +iechtenstein nationa"ity, a series o$ "ega" re"ationshipsarose beteen Guatema"a and +iechtenstein, the nature o$ hich has been suMcient"y indicatedabo#e! From that time on Guatema"a had the right to deport =r! Nottebohm to +iechtenstein, and+iechtenstein as under the corre"ati#e ob"igation to recei#e him on deportation! +iechtensteinas entit"ed as o$ right to $urnish dip"omatic protection to =r! Nottebohm in Guatema"a, andhen that right as e0ercised in *ctober 1%(), it as not uestioned by Guatema"a!

. am unab"e to concur in the #ie that the acceptance o$ =r! Nottebohm by the Guatema"an

authorities as a sett"er o$ +iechtenstein nationa"ity did not bring into being a re"ationshipbeteen the to Go#ernments! . do not thin@ that the position o$ Guatema"a is in any aydi7erent $rom that o$ other States and . do not thin@ that it as possib"e $or Guatema"a topre#ent the coming into being o$ the same @ind o$ "ega" re"ationships hich ou"d ha#e ta@enp"ace i$ =r! Nottebohm had "anded as a sett"er in any other country!

-hen a series o$ "ega" re"ationships, rights and duties e0ists beteen to States, it is not open toone o$ the States to bring the situation to an end by its uni"atera" action! .n my opinion suchre"ationships came into being beteen Guatema"a and +iechtenstein hen the $ormer Stateaccepted =r! Nottebohm in 1%(&! .t as open to Guatema"a to terminate the position bydeportation but not to e0tinguish the right o$ +iechtenstein under internationa" "a to protect itson nationa" ithout the consent o$ that country!

There is one more aspect o$ this uestion to hich . must re$er! .t is suggested that =r!Nottebohm obtained his natura"iation ith the so"e moti#e o$ a#oiding the "ega" conseuenceso$ his nationa"ity o$ origin! He as a German and Germany as at ar, but not ith Guatema"a!

There can be "itt"e doubt that this as one o$ his moti#es, but hether it as his so"e moti#e is amatter o$ specu"ation!

There is apparent"y abundant e#idence on this aspect o$ the case to hich . ha#e not had accesse#idence hich ou"d pro#e or dispro#e the contention that the natura"iation as part o$ a$raudu"ent scheme! ut it is not permissib"e $or me to "oo@ at that e#idence in dea"ing ith a p"ea


11/11

in bar! . must proceed at this stage on the assumption that the natura"iation as obtained ingood $aith and ithout $raud!

.t has been comp"ained that the purpose o$ the natura"iation as to a#oid the operation o$artime measures in the e#ent that Guatema"a u"timate"y became in#o"#ed in ar ith Germany!.n *ctober 1%)%, i$ =r! Nottebohm read the nespapersOhich is high"y probab"eOhe @ne thatGuatema"a, in concert ith the other an?American States, as ma@ing e#ery e7ort to maintainneutra"ity!

.t is $ar more "i@e"y that, remembering the e0perience o$ Nottebohm Hermanos during the rst-or"d -ar, he as see@ing to protect his assets in the /nited States! The suggestion that he$oresa Guatema"an be""igerency is not supported by any e#idence and . cannot accept it!

Further, e#en i$ his main purpose had been to protect his property and business in the e#ent o$Guatema"an be""igerency, . do not thin@ that it a7ected the #a"idity or opposabi"ity o$ thenatura"iation! There as no ru"e o$ internationa" "a and no ru"e in the "as o$ Guatema"a at thetime $orbidding such a course o$ action! =r! Nottebohm did not concea" the natura"iation andin$ormed the Go#ernment o$ Guatema"a on the highest "e#e" on his return to the country!

. do not thin@ that . am 2ustied in ta@ing =r! Nottebohms moti#es into considerationOin theabsence o$ $raud or in2ury to Guatema"aObut e#en i$ this particu"ar moti#e is considered, itcannot be regarded as pre#enting the e0istence o$ the right o$ dip"omatic protection!

.n #ie o$ the $oregoing circumstances it is necessary $or me to reach the conc"usion that the toarties be$ore the Court ere right in adopting the position that the right o$ +iechtenstein todetermine under its on "a that =r! Nottebohm as its on nationa", and the corre"ati#eob"igation o$ Guatema"a to recognie the +iechtenstein "a in this regard are "imited not by rigidru"es o$ internationa" "a, but on"y by the ru"es regarding abuse o$ right and $raud!

According"y . am o$ the opinion that the Court shou"d ha#e proceeded to e0amine the merits o$

the case!

the nottebohm case-cay

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