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This chapter discusses nationality as a condition for the exercise of diplomatic protection. Topics covered include the determination of nationality, continuous nationality, dual and multiple nationality, the effective link theory, and stateless persons and refugees. It shows that the ILC has drafted a provision extending the principles of diplomatic protection adopted for corporations to other legal persons to take account of the different features of each legal person. Draft Article 13 of the ILC provides that the principles governing the State of nationality of corporations and the application of the principle of continuous nationality to corporations, contained in Draft Articles 9 and 10, respectively, apply ‘as appropriate’, to the diplomatic protection of legal persons other than corporations.
Keywords: diplomatic protection, International Law Commission, continuous nationality, dual and multiple nationality, effective link theory, stateless persons, refugees
The general rule is that a person, whether natural or juridical, must have the nationality of the State claiming injury at the time at which the injury is inflicted, in order that there may be an actual violation of the substantive rules of international law relating to injuries to aliens. The violation of international law is vis-à-vis that State of nationality, according to the generally accepted current view.
It has also never been contested that the procedural capacity of a State to espouse a person's claim as a rule depends on the latter, whether a natural or juridical person, having the nationality of that State, though in exceptional circumstances that bond may not be required. Both this rule, generally known as the nationality of claims rule, and the exceptions, are referred to in Article 3 of the ILC's Draft Article's of 2006. The rule is applied as a matter of admissibility of the claim.
But the nationality principle has a series of ramifications, depending on what is the situation occurring in practice. The ILC's Draft Articles of 2006 deal with the usual ramifications in Articles 4 to 7 and Articles 9 to 13, proposing at times departures from the customary law as generally understood in the interests of progressive development of the law. The issues to be addressed are discussed hereafter.
By way of introduction, it may be said that the link of nationality cannot be underestimated. A State's right to exercise diplomatic protection is based on the link of nationality between the injured individual and the acting State. Thus, the general rule is that a State may not extend its protection to or espouse claims of non-nationals. 1 In litigation a respondent State may raise the objection to admissibility that the individual concerned does not have the nationality of the claimant State or, where individuals are permitted to bring claims, that the individual (p. 92) does not have the nationality of the relevant State party to the agreement instituting the tribunal. On the other hand, while the general rule is as stated above, the fact that an individual has the nationality of the claimant State (or the relevant State) does not always result in the State's having the right to espouse his claim or in the individual's having the right to bring a claim. Thus, correctly stated, the general rule has both a negative and positive aspect. A State may not espouse claims of non-nationals (nor may non-nationals bring claims), while also a State may espouse claims of nationals (or nationals may bring claims). The positive side of the rule was referred to by the PCIJ first in the Panevezys-Saldutiskis Railway Case. 2With regard to diplomatic protection the tribunal in the North American Dredging Co of Texas Case referred to it as a ‘privilege which one State under the rules of international law can extend or withhold in behalf of its nationals. 3 The rule that nationality is the appropriate ground for the espousal of claims by States, or for individuals to bring claims before tribunals where they have locus standi in cases based on a violation of customary international law, has never been questioned.
Natural Persons: Determination of Nationality
With regard to the determination of nationality the general rule is that ‘questions of nationality are in principle within the reserved domain’. 4 While a State's determination on possession of nationality is not lightly to be questioned, its right to determine an individual's nationality is not absolute. This was made clear by PCIJ in the Nationality Decrees in Tunis and Morocco Opinion when it stated that the question whether a matter was ‘solely within the jurisdiction of a State’, including the conferment of nationality, ‘[i]s essentially a relative question: it depends upon the development of international relations’. 5 Moreover, even if a State in principle has an absolute right to determine nationality, it is arguable that other States may challenge this determination, eg where there is insufficient connection between the State of nationality and the individual or where nationality has been improperly conferred, 6 that is, where the conferment is vitiated for acceptable reasons.
(p. 93) There are now conventions, particularly in the field of human rights, which require States to comply with international standards in the granting of nationality. 7 The IACHR in its Proposed Amendments to the Naturalization Provisions of the Political Constitution of Costa Rica Opinion held that it was necessary to reconcile the principle that the conferment of nationality falls within the domestic jurisdiction of a State ‘with the further principle that international law imposes certain limits on the State's power, which limits are linked to the demands imposed by the international system for the protection of human rights’. 8
International custom and general principles of law would appear to accept that there are limits on the conferment of nationality by describing the linkages between State and individual that will result in the nationality conferred by a State being recognized by international law for the purpose of diplomatic protection, in so far as descent, place of birth, and naturalization are specifically the connections generally recognized by international law. 9 Whether in addition to one of these connecting factors, and particularly in the case of naturalization, there must be a genuine or effective link between State and individual is a more difficult question. If this were the case such a link would require adequate definition so as to be identifiable and not too limiting.
That international law does not recognize naturalizations in all circumstances is clear. For example, fraudulently acquired naturalization will not be recognized. 10 Recognition would conceivably be withheld also in the case of forced naturalization, whether or not it reflected a substantial connection between State and individual. 11
There is, on the other hand, a presumption in favour of good faith on the part of the State conferring nationality. Moreover, as the IACHR said in the Proposed Amendments to the Naturalization Provisions of the Political Constitution of Costa Rica Opinion, the State conferring nationality must be given a ‘margin of appreciation’ in deciding upon the connecting factors that it considers necessary for the (p. 94) granting of nationality. 12 However, a general statement made by the ICJ in the Nottebohm Case (Second Phase) on the nature of nationality was to the effect that:
According to the practice of States, to arbitral and judicial decisions and to the opinion of writers, nationality is the 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 that it constitutes 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. 13
This would seem to indicate that there was a general rule requiring an effective link for the conferment of nationality. However, the court, in fact, did not purport to pronounce on the status of Nottebohm's Liechtenstein nationality in the abstract but confined its views to the status of his nationality vis-à-vis Guatemala. The Italian-United States Conciliation Commission in the Flegenheimer Case limited the applicability of the ‘effective link’ principle to cases involving dual nationals, stating that:
When a person is vested with only one nationality, which is attributed to him or her either jure sanguinis or jure soli, or by a valid naturalization entailing the positive loss of the former nationality, the theory of effective nationality cannot be applied without the risk of causing confusion. It lacks a sufficiently positive basis to be applied to a nationality which finds support in a State law. 14
The Commission furthermore stated 15 that it was doubtful that the ICJ ‘intended to establish a rule of general international law’ in the Nottebohm Case. That States are unwilling to support such a broad principle requiring always an effective link is evidenced by the failure in practice of the attempt to apply the genuine link principle as such to ships, 16 a field in which social and economic considerations probably justify such a rule. Available State practice also shows little support for such a broad rule. 17
Legal commentators are divided on this issue. Some do not accept the genuine link requirement as a rule of customary international law. 18 Many of them have pointed out that there is often little connection between the individual upon (p. 95) whom nationality has been conferred and jus soli or sanguinis and that it is difficult to limit the genuine link requirement to cases of naturalization. Others are well disposed towards the genuine link requirement. 19 Support for the general principle of the effective link is to be found also in the ILC where only some members gave it their support in the fifth session debate on nationality, including statelessness. 20 In 1965 the Institut de Droit International adopted the following resolution on the national character of an international claim presented by a State for injury suffered by an individual, which gives some support to the genuine link principle:
An international claim presented by a State for injury suffered by an individual may be rejected by the respondent State or declared inadmissible when, in the particular circumstances of the case, it appears that naturalization has been conferred on that individual in the absence of any link of attachment. 21
It may be concluded that general international law recognizes that a nationality acquired by fraud, negligence or serious error may not be recognized. 22 It is also the function of an international tribunal, with due regard to the presumption in favour of the validity of a State's conferment of nationality and allowance for a margin of appreciation on the part of the State of nationality, to investigate and, if necessary, set aside a conferment of nationality. 23 This position may be encapsulated as a requirement of good faith. Thus, a conferment of nationality will be recognized (for the purpose of diplomatic protection) provided it is not made in bad faith, the onus of proof being on the respondent State to produce evidence of such bad faith. 24 Beyond that it cannot be said that a general ‘effective link’ theory has been accepted.
There are two questions which have been addressed. First, discussion has been in terms of whether the conferment of nationality which is a domestic matter has limits imposed by international law which will affect the validity of the (p. 96) conferment in general and for all purposes. Second, a narrower issue has been the focus of attention: whether the conferment of nationality has limits for the purpose of the nationality of claims rule in diplomatic protection. While the first issue raises fundamental questions the answer to which will affect the enjoyment of nationality for all purposes by a person, whether he or it is a natural person or a juridical person, the second question is more limited. Suffice it to say here that what is relevant for the purpose in hand is the answer to the second question; whatever the answer to the first question, its effects may be broader and more serious than the answer to the more confined second question. Both legal commentators and tribunals have apparently not generally kept the two matters separate in their statements and conclusion. However, it is the better approach to confine what has been said above to the effects of a conferment or acquisition of nationality on the rule of nationality of claims in diplomatic protection.
The 2004 ILC Draft Articles are non-committal both in Article 4 and the commentary on it on the question of the genuine link. But Article 4 does state that acquisition of nationality for the purposes of diplomatic protection must not be inconsistent with international law, after giving a list of non-exclusive methods of acquiring nationality. That article reads:
For the purposes of diplomatic protection of natural persons, a State whose nationality the individual sought to be protected has acquired by birth, descent, succession of States, naturalization or in any other manner, not inconsistent with international law …
While good faith is the key to answering the question, the commentary also refers to the fact that the benefit of the doubt is to be given to the State of nationality, so that it is for the objector to the nationality of the alien to prove that it is inconsistent with international law. 25
Natural Persons: Continuous Nationality
The rules relating to continuous nationality up to this time are considerably controversial. The 2006 ILC's Draft Articles in Article 5 take an approach which tries to set to rest the many controversies that have existed. Whether States accept these solutions remains to be seen.
To start with the alleged rules and the disagreements on them need to be examined. Thereafter an attempt may be made to point out the changes recommended in the ILC draft.
(p. 97) While there is a diversity of views on the rule of continuous nationality, whether it be in judicial decisions or in State practice, among legal commentators or in codification drafts, the rule in its usual form 26 was that from the time of the original factual injury to the alien until the making of the judicial determination the claim must without interruption have belonged to a person or a series of persons having the nationality of the State by which it was espoused. There was sometimes added the proposition that the person or persons referred to must not at any time during this period have the nationality of the respondent State, 27 which is an important consideration. The latter rule is not quite the same as the rules stemming from dual or multiple nationality, when one of the nationalities is that of the respondent State.
Logically, if the injury which is the object of diplomatic protection is to the State of nationality, which has been an assumption made even to this day, then at the time the injury occurred the victim must have the nationality of that State. Also logically, if the injury is to the State of nationality, it should be irrelevant what happens to the victim's nationality after that; the State whose nationality the victim had should have the procedural right to pursue the claim after the violation of its substantive right. But the rule of continuous nationality is a practical procedural rule, rather than being based on rigorous logic. The requirement that the victim should have the nationality of the State instituting the claim (or up to the time of the judicial decision) is the other side of one coin. It flows from a policy which sees diplomatic protection as for the benefit of the victim as well.
On the other hand, it is inadequate that the claimant State should be the national State of the victim only at the time of the filing of the claim (or the giving of the judicial decision). As was stated in the Administrative Decision No. V on the basis of political considerations (though, as pointed out above, there are conceptual reasons also for the requirement of nationality at the time of the injury),
It is no doubt the general practice of nations not to espouse a private claim against another nation unless in point of origin it possesses the nationality of the claimant nation. The reason of the rule is that the nation is injured through injury to its national and it alone may demand reparation as no other nation is injured. As between nations the one inflicting the injury will ordinarily listen to the complaint only of the national injured. A third nation is not injured through the assignment of the claim to one of its nationals or through the claimant becoming its national by naturalization. While naturalization transfers allegiance, it does not carry with it existing State obligations … [A]ny other rule would open wide the door for abuses and might result in converting a strong nation into a claim agency in behalf of those who after suffering injuries should assign their claims to (p. 98) its nationals or avail themselves of its naturalization laws for the purpose of procuring its espousal of their claims. 28
Although the conceptual reason is implicitly referred to in this case, it is not emphasized because what was being addressed was the question why the nationality of the claim at the time of its filing (or of the judicial decision) was not the only relevant consideration. Clearly, by implication, there was no denial that the nationality of the claim at the time of the making of the claim (or of the judicial decision) was equally a requirement. That is the flip side of the coin. That requirement flowed from the understanding that the State bringing the claim must have an interest in protecting one of its nationals, at that time also, even though conceptually its rights had been already violated by the injury being committed at a time when the victim was its national.
The rule was stated in all three of its aspects—time of injury, time of the filing of the claim, and continuity—in the Kren Case by the US-Yugoslavia Claims Commission where it was said:
It is a well settled principle of international law that to justify diplomatic espousal, a claim must be national in origin; that it must, in its inception, belong to those to whom the State owes protection and from whom it is owed allegiance (Borchard, The Diplomatic Protection of Citizens Abroad, p. 666). Further, although the national character will attach to a claim belonging to a citizen of a State at its inception, the claim ordinarily must continue to be national at the time of its presentation, by the weight of authority (Borchard, supra, p. 666), and there is a general agreement that it have a continuity of nationality until it is filed (Feller, The Mexican Claims Commission, p. 96). 29
The rule as explained in this case has been affirmed by the Iran-US Claims Tribunal. 30
The rule is reflected in the practice of States such as the UK and the USA. The 1985 UK Rules applying to international claims states in Rule 1:
HMG will not take up the claim unless the claimant is a United Kingdom national and was so at the date of the injury.
Comment. International law requires that for a claim to be sustainable, the claimant must be a national of the State which is presenting the claim both at the time when the injury occurred and continuously thereafter up to the date of formal presentation of the claim. (p. 99) In practice, however, it has hitherto been sufficient to prove nationality at the date of injury and of presentation of the claim. 31
In 1982 the American Assistant Secretary of State for Congressional Relations wrote a letter to the Chairman of the House Committee on Foreign Affairs stating that:
under the long-established rule of continuous nationality, no claimant is entitled to diplomatic protection of the State whose assistance is invoked unless such claimant was a national of that State at the time when the claim arose and continuously thereafter until the claim is presented. In effect, a claim must be a national claim not only at the time of its presentation, but also at the time when the injury or loss was sustained. 32
Conventions setting up mixed claims commissions generally incorporated the rule in one form or another or came to be regarded as incorporating the rule as a result of interpretation of the conventions. 33 The rule has recurred in many treaties, for instance in nearly all of the lump sum agreements concluded after the Second World War. 34 It is to be found in the Declaration of Algiers establishing the Iran-United States Claims Tribunal, which provides that ‘claims of nationals of Iran or the United States, as the case may be, means claims owned continuously from the date on which the claim arose to the date on which this agreement enters into force, by nationals of that State …’. 35While it may be argued that the rule is incorporated in these instruments by explicit agreement and is not included because it is a customary rule, there are indications that the States involved did include the rule because it reflected customary international law. The same observation applies to attempts to derive a customary rule from the consistent inclusion of the rule in conventions in general. It may very well be the case that the repetition flowed from the desire to include a customary rule, because there is also evidence of pure custom to support the rule.
Codification drafts have also included the rule or some variations of it. 36 However, it is important to note that in 1932 the Institut de Droit International failed by a small majority to approve the rule of continuous nationality. 37 In 1965 the Institut reaffirmed the requirement of nationality at the time of the injury and the date of presentation of the claim but discarded the need for continuous nationality.38
(p. 100) As for legal commentators, it is among them that support for the continuity rule as originally conceived is equivocal. The earliest unqualified support for the rule that can be traced was in 1915 by Borchard. 39 But particularly after the Second World War ‘opinion ranged from a questioning of the customary status of the rule to criticism of its fairness from the perspective of both the State and the individual’. 40 A comprehensive study published recently in 1990 concludes that few writers are ready to give their unqualified support to the rule. 41
The case law, earlier State practice, treaty practice, legal commentators, and draft codifications originally supported the rule of continuity of nationality by and large rather than opposed it. It is after the Second World War that the rule and its rationale really came to be questioned.
Another matter of concern is that, if such a rule existed, there was little agreement on the actual content of the rule. Apart from the requirement that the claim must have originated in an injury to a national of the dominant State, which is not in dispute, there are some other aspects of the rule on which there was disagreement. What is the date of injury for the purpose of establishing the nationality of the claim has been contested by legal commentators, though the matter was regarded as non-controversial by international tribunals. 42 Issues have been raised as to the definition of national for the requirement of nationality, the contention being that intention to become a national duly declared at the time of the injury was sufficient. But the contention, though examined and sometimes accepted in early jurisprudence, has been rejected by subsequent international claims commissions. 43 The requirement of continuous nationality has in practice received little attention in the case law. As Briggs articulated it in 1965,
If the judicial decisions of international tribunals have thus established the rule that, in order to be admissible, a claim must possess the nationality of the State asserting it not only at the origin but also on the date of its presentation to an international tribunal, is there an additional requirement, namely: that such a claim must have been continuously national during the period between these two dates? Tribunals are seldom confronted by such as problem. In most instances where a tribunal has stated in expressis verbis that a claim must be “continuously” national, from the origin to its presentation, what the tribunal has actually had to decide was whether or not a claim possessed the nationality of the claimant State on one or both of the two crucial dates. See the Gleadell and Flack cases, above; and the Benchiton case, below. Cases where a tribunal has had to deal with a claim that possessed the required nationality in the period between those two dates have arisen seldom and have been controversial. 44
(p. 101) A more palpable dispute relates to the dies ad quem, the date until which continuous nationality is required or the second date for the nationality of the claim. Several dates have been suggested and employed: the date on which the government endorses the claim of its national, the date of the initiation of diplomatic negotiation on the claim, the date of filing of the claim, the date of the signature, ratification, or entry into force of the treaty referring the dispute to arbitration, the date of presentation of the claim, the date of conclusion of the oral hearing, the date of judgment, and the date of settlement. 45 First, the date may depend on the terms of the arbitration convention. 46 Second, the date chosen may be of practical significance. 47 In sum, there seems to be no evidence of clear State practice on the basis of which a customary rule pointing to a single date ad quem in the absence of agreement can be founded.
It has been pointed out that the objections to the continuous nationality rule are not confined to its uncertain content and to its unfairness but that from a theoretical perspective it is out of line with both the Vattelian thesis that an injury to the alien is an injury to the State itself and the growing tendency to see the individual as a subject of international law. 48 Strict adherence to the logic of the Vattelian thesis has been rejected in the jurisprudence by the adoption of two points of time (if not continuity) for the existence of the nationality connection, however defined. In the Stevenson Case the umpire unequivocally stated that there was no precedent permitting the second point of time for the existence of the nationality connection to be ignored, though this was illogical in terms of the Vattelian premise.49
It has been suggested that the logical position should be restored, in spite of its weaknesses. 50Another view is that the policy reason for the continuous nationality rule, which is that it prevents abuse of diplomatic protection by States espousing cases, is outdated. 51 Judge Fitzmaurice in his separate opinion in the Barcelona Traction Co Case was of the same view, stating that:
too rigid and sweeping an application of the continuity rule can lead to a situation in which important interests go unprotected, claimants unsupported and injuries unredressed, not on account of anything relating to their merits, but because purely technical considerations bring it about that no State is entitled to act. This situation is the less defensible at the present date in that what was always regarded as the other main (p. 102) justification for the continuity rule (and even sometimes thought to be its real fons et origo), namely the need to prevent the abuses that would result if claims could be assigned for value to nationals of States whose Governments would compel acceptance of them by the defendant State, has largely lost its validity. 52
On the ground that the traditional requirement of continuous nationality has outlived its usefulness, it has been proposed that a flexible regime should be established which accords with contemporary international law, and which places emphasis on the individual, but at the same time takes account of the fears of potential abuse which inspired the requirement. 53
The ILC has acted cautiously. Its Draft has retained the rule of nationality at two points of time, while clarifying how it is stated and is understood. Its formulation does not leave open the requirement of continuity but incorporates a presumption. Article 5 of its 2006 Draft states:
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