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1. 1. A State is entitled to exercise diplomatic protection in respect of a person who was a national of that State continuously from the date of injury to the date of the official presentation of the claim. Continuity is presumed if that nationality existed at both these dates.
2. 2. Notwithstanding paragraph 1, a State may exercise diplomatic protection in respect of a person who is its national at the date of the official presentation of the claim but was not a national at the date of injury, provided that the person had the nationality of a predecessor State or lost his or her previous nationality and acquired, for a reason unrelated to the bringing of the claim, the nationality of the former State in a manner not inconsistent with international law.
3. 3. Diplomatic protection shall not be exercised by the present State of nationality in respect of a person against a former State of nationality of that person for an injury caused when that person was a national of the former State of nationality and not of the present State of nationality.
4. 4. A State is no longer entitled to exercise diplomatic protection in respect of a person who acquires the nationality of the State against which the claim is brought after the date of the official presentation of the claim.
(p. 103) In the commentary it was explained that the continuous nationality rule, which admittedly was well established, might produce great hardship in cases in which an individual changes his or her nationality for reasons unrelated to the bringing of a diplomatic claim, but that suggestions that it be abandoned had been resisted out of fear that this might be abused and lead to ‘nationality shopping’ for the purpose of diplomatic protection. The ILC was of the view that the continuous nationality rule should be retained but that exceptions should be allowed to accommodate cases in which unfairness might otherwise result. What was being codified was explained further. The commentary proceeded as follows:
Paragraph 1 asserts the traditional principle that a State is entitled to exercise diplomatic protection in respect of a person who was its national both at the time of the injury and at the date of the official presentation of the claim. State practice and doctrine are unclear on whether the national must retain the nationality of the claimant State between these two dates, largely because in practice this issue seldom arises. It is, however, incongruous to require that the same nationality be shown both at the date of injury and at the date of the official presentation of the claim without requiring it to continue between these two dates. Thus, in an exercise in progressive development of the law, the rule was drafted to require that the injured person be a national continuously from the date of the injury to the date of the official presentation of the claim. Given the difficulty of providing evidence of continuity, it is presumed if the same nationality existed at both these dates. This presumption is of course rebuttable.
The first requirement is that the injured national be a national of the claimant State at the date of the injury. The date of the injury need not be a precise date but could extend over a period of time if the injury consists of several acts or a continuing act committed over a period of time.
The second temporal requirement contained in paragraph 1 is the date of the official presentation of the claim. There is some disagreement in judicial opinion over the date until which the continuous nationality of the claim is required. This uncertainty stems largely from the fact that conventions establishing mixed claims commissions have employed different language to identify the date of the claim. The phrase ‘presentation of the claim’ is that most frequently used in treaties, judicial decisions and doctrine to indicate the outer date or dies ad quem required for the exercise of diplomatic protection. The word ‘official’ is added to this formulation to indicate that the date of the presentation of the claim is that on which the first official or formal demand is made by the State exercising diplomatic protection in contrast to informal diplomatic contacts and enquiries on this subject.
The dies ad quem for the exercise of diplomatic protection is the date of the official presentation of the claim. There is, however, support for the view that if the individual should change his nationality between this date and making of an award or a judgment he ceases to be a national for the purposes of diplomatic (p. 104) protection. In 2003 in Loewn Group Inc v USA an ICSID arbitral tribunal held that ‘there must be continuous material identity from the date of the events giving rise to the claim, which date is known as the dies a quo, through to the date of the resolution of the claim, which date is known as the dies ad quem ’. 54 On the facts, the Loewen case dealt with the situation in which the person sought to be protected changed nationality after the presentation of the claim to that of the respondent State, in which circumstances a claim for diplomatic protection can clearly not be upheld, as is made clear in paragraph 4 of the Draft Article. However, the ILC was not prepared to follow the Loewen tribunal in adopting a blanket rule that nationality must be maintained to the date of resolution of the claim. Such a rule could be contrary to the interests of the individual, as many years may pass between the presentation of the claim and its final resolution and it could be unfair to penalize the individual for changing nationality, through marriage or naturalization, during this period. Instead, preference is given to the date of the official presentation of the claim as the dies ad quem. This date is significant as it is the date on which the State of nationality shows its clear intention to exercise diplomatic protection—a fact that was hitherto uncertain. Moreover, it is the date on which the admissibility of the claim must be judged. This determination could not be left to the later date of the resolution of the claim, the making of the award.
While the ILC decided that it was necessary to retain the continuous nationality rule, it agreed that there was a need for exceptions to this rule. Paragraph 2 accordingly provides that a State may exercise diplomatic protection in respect of a person who was a national at the date of the official presentation of the claim but not at the time of the injury provided that three conditions are met: first, the person seeking diplomatic protection had the nationality of a predecessor State or has lost his or her previous nationality; secondly, that person has acquired the nationality of another State for a reason unrelated to the bringing of the claim; and thirdly, the acquisition of the new nationality has taken place in a manner not inconsistent with international law. The paragraph is concerned with cases in which the injured person has lost his or her previous nationality, either voluntarily or involuntarily. In the case of the succession of States, and, possibly, adoption and marriage when a change of nationality is compulsory, nationality will be lost involuntarily. In the case of other changes of nationality the element of will is not so clear. For reasons of this kind, the paragraph does not require the loss of nationality to be involuntary.
Fear that a person may deliberately change his or her nationality in order to acquire a State of nationality more willing and able to bring a diplomatic claim on his or her behalf is the basis for the rule of continuous nationality. The second condition contained in paragraph 2 addresses this fear by providing that the (p. 105) person in respect of whom diplomatic protection is exercised must have acquired his or her new nationality for a reason unrelated to the bringing of the claim. This condition is designed to limit exceptions to the continuous nationality rule mainly to cases involving compulsory imposition of nationality, such as those in which the person has acquired a new nationality as a necessary consequence of factors such as marriage, adoption, or the succession of States. The exception in paragraph 2 will not apply where the person has acquired a new nationality for commercial reasons connected with the bringing of the claim.
The third condition that must be met for the rule of continuous nationality not to apply is that the new nationality has been acquired in a manner not inconsistent with international law which was a general condition connected with the determination of nationality in the first place.
Paragraph 3 adds another safeguard against abuse of the lifting of the continuous nationality rule. Diplomatic protection may not be exercised by the new State of nationality against a former State of nationality of the injured person in respect of an injury incurred when that person was a national of the former State of nationality and not the present State of nationality.
Paragraph 4 provides that if a person in respect of whom a claim is brought becomes national of the respondent State after the presentation of the claim, the applicant State loses its right to proceed with the claim as in such a case the respondent State would in effect be required to pay compensation to its own national. This was the situation in Loewen group Inc v. USA and a number of other cases 55 in which a change in nationality after presentation of the claim was held to preclude its continuation. In practice, in most cases of this kind, the applicant State will withdraw its claim, despite the fact that in terms of the fiction proclaimed in the Mavrommatis Case the claim is that of the State and the purpose of the claim is to seek reparation for injury caused to itself through the person of its national. The applicant State may likewise decide to withdraw its claim when the injured person becomes a national of a third State after the presentation of the claim. If the injured person has in bad faith retained the nationality of the claimant State until the date of presentation and thereafter acquired the nationality of a third State, equity would require that the claim be terminated, but the burden of proof will be upon the respondent State.
Draft Article 5 leaves open the question whether the heirs of an injured national, who dies as a consequences of the injury or thereafter, but before the official presentation of the claim, may be protected by the State of nationality of the injured person if he or she has the nationality of another State. Judicial decisions on this subject, while inconclusive, as most deal with the interpretation of particular treaties, tend to support the position that no claim may be brought (p. 106) by the State of nationality of the deceased person if the heir has the nationality of a third State. 56 Where the heir has the nationality of the respondent State it is clear that no such claim may be brought. 57 There is some support for the view that where the injured national dies before the official presentation of the claim, the claim may be continued because it has assumed a national character. 58 But in some cases, in spite of considerations of equity, the view has been repudiated. 59
Natural Persons: Dual and Multiple Nationality
Dual Nationality Including the Respondent State
With regard to dual nationality, on the assumption that the nationalities concerned are recognizable for the purposes of diplomatic protection, an issue that has risen is whether one national State may exercise diplomatic protection against another national State of the same person in the application of the nationality of claims rule. That a person may have two or more recognizable nationalities is acknowledged. 60
There is no settled opinion in the sources in support of the view that the State of dominant nationality, however defined, may espouse a claim against another State of nationality, nor is there support for the converse principle that a claim may never be brought against a State of nationality. The 1929 Harvard Draft Convention on Responsibility of States for Damage Done in Their Territory to the Person or Property of Foreigners provides in Article 16(a) that, ‘A State is not responsible if the person injured or the person on behalf of whom the claim is made was or is its own national.’ This principle was endorsed by the 1930 Hague Convention on Certain Questions relating to the Conflict of Nationality Laws, which provided in Article 4 that, ‘A State may not afford diplomatic protection to one of its nationals against a State whose nationality such person also possesses.’ That the concept of dominant or effective nationality was to be considered in the treatment of dual nationals who did not have the nationality of the respondent was made clear by Article 5 of the same Convention, which provided that: (p. 107)
Within a third State, a person having more than one nationality shall be treated as if he had only one. Without prejudice to the application of its law in matters of personal status and 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.
The treaty came into force in 1937. 61
There were many early arbitrations in which the principle of dominant nationality had been applied vis-à-vis another national State, though in most of them the result was that the claimant State's nationality was found not to be the dominant of the two nationalities. 62 There were several such arbitrations in which the principle was rejected as such and not applied, the claimant thus losing the case on admissibility. 63
In two cases in which the facts did not call for the consideration of an application of the principle as such the ICJ seems to have implied or indicated conflicting preferences. In the Reparation Case the court referred to the practice of States not to protect their nationals against another State of nationality as the ordinary practice, 64 while in the Nottebohm Case (Second Phase) the Court stated that:
International arbitrators have decided in the same way numerous cases of dual nationality, where the question arose with regard to the exercise of diplomatic protection. They have given their preference to the real and effective nationality, that which accorded with the facts, that based on stronger factual ties between the person concerned and one of the States whose nationality is involved. 65
(p. 108) Neither of these cases applied either the principle of dominant nationality or its reverse, because the cases did not involve the claimant's national having the nationality of the respondent State.
There are some arbitrations, decided after the Nottebohm Case, in which the principle of dominant or effective nationality has been applied in cases of dual nationality where the person involved has had the nationalities of both States involved in the litigation, sometimes to exclude the claim as inadmissible, sometimes with the reverse effect. These were decided by the Italian-United States Conciliation Commission (1955) and the Iran-US Claims Tribunal (1981 to present). 66
While two rapporteurs of the ILC 67 take the view that the rule of the dominant or effective nationality with its effect favouring claimants, where otherwise their claims would clearly be inadmissible, should be applied in the case of dual nationality, legal commentators have not shown such a consensus. 68 The little State practice that there is on the exercise of diplomatic protection is also equivocal, though it may demonstrate a move away from the restrictive principle of non-recognition of the dominant nationality to its recognition as an answer to inadmissibility. Both the UK and the USA have demonstrated this trend. 69 On the other hand, in the past the Chilean government (p. 109) seems impliedly to have taken the position that it cannot refuse diplomatic protection against another State of nationality. 70 At the same time, the FRG was not opposed to the informal exercise of such protection,71 whereas Switzerland, although considering non-responsibility to be the general rule, did not deny the possibility of protection against another State of nationality in exceptional cases. 72
It is also to be noted that, as already pointed out, in 1949 the ICJ in the Reparation Case took the view that claims could not be brought against the State of nationality. The trend is unclear but there seems to be some evidence that in the case of the person with dual nationality having the nationality of the respondent State the principle of the dominant or effective nationality is favoured to some extent in determining admissibility of the claim. In the event that this is the applicable principle, what the ICJ said about the determination of the dominant nationality becomes relevant:
Different factors are taken into consideration, and their importance will vary from one case to the next; the habitual residence of the individual concerned is an important factor, but there are other factors such as the center of his interests, his family ties, his participation in public life, attachment shown by him for a given country and inculcated in his children, etc. 73
Because the rule applied in the recent cases had earlier been rejected or was in doubt, it was only after the Mergé series of cases, 74 decided by a conciliation commission (and not solely an arbitral body), that the rule applied came to be respected. Also since many important authorities were against the rule as applied, the claim of the rule to be established may be questioned. It will also be noted that the six arbitrators in the majority in Case No A/18 75 in the Iran-US Claims Tribunal were the three US arbitrators and the three European non-party arbitrators. 76 Moreover, it may be observed that dissenting arbitrator Shafeiei's (p. 110) opinions both in the Esphanian Case and in Case No A/18 were far more thorough than the opinions of the six in the majority. 77
In the circumstances it is necessary to consider the basic principles involved, particularly because the absence of clear agreement on the principle applied raises some questions about the soundness of the rule as applied recently. As pointed out by the present author in 1967 and above in Chapter 7, diplomatic protection is in reality postulated on the reconciliation of conflicting interests. 78 The rule supported by more cogent authority at the time and not clearly rejected later, that the injured person must not have the nationality of the respondent State was, perhaps, the most important rule in the law of diplomatic protection which clearly recognized the interests of the respondent State. The reason for this was that diplomatic protection was conceived as a concession to foreign States and foreign nationals in circumstances in which there was no (p. 111) general reason not to recognize the prerogatives of domestic jurisdiction. The fundamental underpinning is still valid. Thus, the interests of the international community and the interests of the respondent (host) State would require that at present the person concerned should, negatively, not have the nationality of the respondent State, it being irrelevant that he had or did not have another nationality.
As an exception, however, the possession of another nationality in addition to that of the host State could only be given value if there are cogent reasons for not recognizing that the possession of the respondent State's nationality rules out any opportunity for diplomatic protection by other States. The possession of a dominant (or effective) nationality is clearly not the only reason, for it has nothing to do with the respondent State or its conduct. Circumstances in which the negative rule could be qualified would only be, if the context requires, that in addition to the possession of a second, dominant nationality by the person concerned which gives the other State of nationality some claim to protect, the right of the respondent State to treat the person as one of its nationals for the purpose of the rule has in some respect been forfeited. This would occur, for example, if the conduct of the respondent State is so heinous or uncivilized that the person merits to be protected by the other national State.
The term ‘uncivilized’ is used intentionally, though the connotation is more fundamental than was envisaged in the 18th and early 19th century when civilization was equated with the value systems of a limited group of countries which paradoxically included the approval of such conduct as inhuman and oppressive colonial exploitation and the like, and different standards from those applied to those countries themselves were used in judging whether civilization existed or not. Clearly such conduct as denying freedom of religious conscience, use of mutilation or torture, degrading and inhuman treatment such as stoning for adultery, and failure to grant adequate protection for the right to life would now qualify as heinous and uncivilized. On the other hand, the mere taking of property would not, although here again the deprivation of a total livelihood may do so. The conclusion suggested is that a dominant nationality, properly proved, is one (but not the only) consideration to be taken into account in modifying the rule that a person must not have the nationality of the respondent State. The other factors connected with the conduct of the respondent State are also relevant. 79
All this having been said, it is fitting to point out that the ILC in Article 7 of its Draft Articles opted for the solution of the dominant nationality provided it is (p. 112) dominant both at the time of the injury and at the date of the official presentation of the claim. 80
Dual or Multiple Nationality—Not Including the Respondent State
Dual or multiple nationality, where the nationalities involved do not include the respondent's nationality, also raises problems. The issue is whether the respondent State can object that the dominant nationality is that of a third State and not that of the claimant State or the State connected with the claim, as an obstacle to the admissibility of the claim.
In such cases the dominant nationality theory has been applied by tribunals to identify which national State has the right of claim. 81 The 1930 Hague Convention 82 and several draft codification proposals83 also incorporate the principle. On the other hand, there is some authority for the rule that there is no need to show dominant nationality, it being sufficient that the person injured had the nationality of the claimant State, irrespective of other nationalities than that of the respondent State. 84 A compromise rule has been offered by the Iran-US Claims Tribunal, namely that in the case of dual or multiple nationality, dominance need not be proved, provided there is a bona fide link between the injured person and the claimant State. 85
In this case of such dual or multiple nationality it is true that the interests of the respondent State are not particularly prejudiced, unless it is subjected to more than one claim for the same injury. Therefore, the rule that any State of nationality may bring a claim—which is in effect a new rule that has been supported recently—may be recognized provided it is also made a condition that the filing of a claim by one national State bars the filing of a claim by any other national State. This proviso is important and is a defence to admissibility whether the original claim has been successful, withdrawn, or otherwise dealt with after it was filed. The filing of a joint claim by two or more national States may also be permitted with the above proviso. As a proviso, and in addition, the application of a genuine link theory, as a general principle (apart from the rule in the Nottebohm Case), (p. 113) may be useful. Thus, the interests of the respondent State will be given added recognition in circumstances where it is really the interests of the injured person that are given special recognition. 86
The ILC Draft Articles of 2006 in Article 6 adopted a solution favouring multiple claims in the case discussed above without the provisos referred to above, thus, completely favouring the alien as against the respondent State.
Multiple Nationality Including That of the Respondent State
A problem arises, for example, where the person has the nationality of the respondent State and also two or more other nationalities. The question is whether the theory of the dominant nationality is to be applied as between the two other nationalities if it is recognized that in certain circumstances a claim may be brought against a national State. If the rule is that a claim may never be brought against a national State, cadit quaestio.
There is no reason why in the circumstances postulated the theory of the dominant nationality as between the two other nationalities should not be applied in the circumstances where a national State other than the respondent State may bring a claim against the latter. Vis-à-vis the respondent State this would mean that only the State of the truly dominant nationality could bring a claim. The matter has not been discussed either in decided cases or by legal commentators nor have relevant situations appeared in State practice. However, the application of a dominant (or more dominant) nationality theory would protect both the respondent State and the person injured. Clearly, if the view expressed with regard to multiple nationalities of injured persons is adopted, in addition to the claimant being the State of dominant nationality or the person claiming having the dominant nationality as between two other nationalities, the respondent State (of nationality) would have to be guilty of some ‘heinous’ conduct, which results in its forfeiting the right to treat that person as its national in the context of diplomatic protection.
Natural Persons: the Effective Link Theory
Where the respondent State is not a State of nationality what has come to be called the rule in the Nottebohm Case 87 permits a defence to admissibility, even if the claimant is a State of nationality or the person claiming has the relevant nationality. There has been some difficulty in identifying exactly what is the rule.
(p. 114) The case, which involved Liechtenstein and Guatemala, concerned the former's claim to restitution and compensation on behalf of Nottebohm for actions of Guatemala alleged to be in violation of international law. Nottebohm was a German national when in 1939 he applied for and was granted naturalization in Liechtenstein. He was at all material times a permanent resident of Guatemala. His only connection with Liechtenstein was the residence of his brother in Vaduz. He paid certain sums of money and taxes to Liechtenstein and took an oath of allegiance to the reigning prince. He returned to Guatemala on a Liechtenstein passport after a visit to Vaduz to complete the formalities. He had lost German nationality. 88 The issue was whether Liechtenstein could espouse his claim before the court in the exercise of diplomatic protection. This involved the question whether the nationality conferred on him by Liechtenstein could be successfully invoked against the respondent State, whose nationality also he did not have.
The court explained in broad terms that:
According to the practice of States, to arbitral and judicial decisions and to the opinions of writers, nationality is a legal bond having as its basis a social fact of attachment, a genuine connection of existence, interests and sentiments, together with the existence of reciprocal rights and duties. It may be said to constitute the juridical expression of the fact that the individual upon whom it is conferred, either directly by the law or as the result of an act of the authorities, is in fact more closely connected with the population of the State conferring nationality than with that of any other State. Conferred by a State, it constitutes a translation into juridical terms of the individual's connection with the State which has made him its national.89
The court pointed out that Nottebohm had connections with his family members in Germany, and had business connections with Germany. It was said that:
He had been settled in Guatemala for 34 years. He had carried on his activities there. It was the main seat of his interests. He returned there shortly after his naturalization, and it remained the center of his interests and of his business activities. He stayed there until his removal as a result of war measures in 1943. He subsequently attempted to return there, and he now complains of Guatemala's refusal to admit him. There, too, were several members of his family who sought to safeguard his interests.
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