Nationality, the ‘genuine link’ and diplomatic protection

We have previously discussed the concept of the ‘genuine link’ as developed in the 1955 Nottebohm case – that is, the requirement of an ‘effective’ bond between an individual and a state consisting of certain mutual rights and duties for a nationality to have effect on the international plane. Indeed, it was decided in Nottebohm that an effective link had to exist with the country of nationality for that country to be able to grant diplomatic protection to its citizen.

The subject of today – diplomatic protection – is relevant because it is still unclear what rules apply when citizenship is acquired under a CBI programme. Peter Spiro has speculated that those who acquire citizenship under such a scheme will often remain non-resident and will generally not be politically engaged. However, ‘one possible cost [for the country granting citizenship] would be with respect to diplomatic protection. It will be interesting to see whether that is a part of a bargain – whether in fact states will intercede with other states on behalf of their paying members (and whether international tribunals would recognise protection of cash-only nationals)’.

John Dugard, an international specialist in the field, has provided the following definition of diplomatic protection:

Under international law, a State is responsible for injury to an alien caused by that State’s wrongful act or omission. Diplomatic protection is the procedure employed by the State of nationality of the injured person to secure protection of that person, and to obtain reparation for the internationally wrongful act inflicted.

Under international law the state of nationality has absolute discretion to decide whether or not to exercise diplomatic protection on behalf of its national. The starting point in respect of these questions is Article 4 of the 1930 Hague Convention on Certain Questions Relating to the Conflict of Nationality Law, stating that ‘a State may not afford diplomatic protection to one of its nationals against a State whose nationality such person also possesses’. Article 5 continues:

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, recognise 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.

Article 4 follows the proponents of the ‘principle of equality’ who take the view that both nationalities have equal weight and therefore none of the States of nationality of an individual may bring a claim against the other for his or her protection. The other school, reflected in Article 5, adheres to the ‘principle of dominant nationality’, so that the nationality which an individual in fact exercises should prevail.

International litigation dealing with cases of dual nationality, for obvious reasons highly relevant in the context of CBI programmes as most naturalisation candidates will insist on keeping their citizenship of origin and becoming dual citizens, is decided by reference to either one or the other principle. The traditional rule that a state cannot protect a national who is in another country of which he possesses the nationality – which was the prevalent practice in the first half of the 20th century – is said to be increasingly mitigated by a state practice which focuses on the individual’s dominant nationality. In case the rule of the dominant nationality is applied, diplomatic protection is possible even against a state of which a dual national holds the nationality as well.

Author: Dr. Olivier Vonk