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The Court
composed as above,
delivers the following Judgment:
By its Judgment of November 18th, 1953, the Court rejected the Preliminary
Objection raised by the Government of the Republic of Guatemala to the
Application of the Government of the Principality of Liechtenstein. At the
same time it fixed time-limits for the further pleadings on the merits.
These time-limits were subsequently extended by Orders of January 15th, May
8th and September 13th, 1954. The second phase of the case was ready [p6]
for hearing on November 2nd, 1954, when the Rejoinder of the Government of
Guatemala was filed.
Public hearings were held on February 10th, 11th, 14th to 19th, 21st to 24th
and on March 2nd, 3rd, 4th, 7th and 8th, 1955. The Court included on the
Bench M. Paul Guggenheim, Professor at the Graduate Institute of
International Studies of Geneva and a Member of the Permanent Court of
Arbitration, chosen as Judge ad hoc by the Government of Liechtenstein, and
M. Carlos Garcia Bauer, Professor of the University of San Carlos, former
Chairman of the Guatemalan Delegation to the General Assembly of the United
Nations, chosen as Judge ad hoc by the Government of Guatemala.
The Agent for the Government of Guatemala having filed a number of new
documents, after the closure of the written proceedings, without the
consent of the other Party, the Court, in accordance with the provisions of
Article 48, paragraph 2, of its Rules, bad, after hearing the Parties, to
give its decision. Dr. Loewenfeld and Mr. Fawcett, on behalf of the
Government of Liechtenstein, and M. Rolin, on behalf of the Government of
Guatemala, addressed the Court on this question at the hearings on February
10th and nth, 1955. The decision of the Court was given at the opening of
the hearing on February 14th, 1955. Having taken note of the fact that
during the course of the hearings the Agent of the Government of
Liechtenstein had given his consent to the production of certain of the new
documents; taking into account the special circumstances in connection with
the search for, and classification and presentation of, the documents in
respect of which consent had been refused, the Court permitted the
production of all the documents and reserved to the Agent of the Government
of Liechtenstein the right, if he so desired, to avail himself of the
opportunity provided for in the second paragraph of Article 48 of the Rules
of Court, after having heard the contentions of the Agent of the Government
of Guatemala based on these documents, and after such lapse of time as the
Court might, on his request, deem just. The Agent of the Government of
Liechtenstein, availing himself of this right, filed a number of documents
on February 26th, 1955.
At the hearings on February 14th, 1955, and at the subsequent hearings, the
Court heard the oral arguments and replies of Dr. Loewenfeld, Professor
Sauser-Hall, Mr. Fawcett and Mr. Lipstein, on behalf of the Government of
Liechtenstein, and of M. Pinto, M. Rolin and M. Molina, on behalf of the
Government of Guatemala.
The following Submissions were presented by the Parties:
On behalf of the Government of Liechtenstein:
in the Memorial:
"The Government of Liechtenstein submit that the Court should adjudge and
declare that:
1. The Government of Guatemala in arresting, detaining, expelling and
refusing to readmit Mr. Nottebohm and in seizing [p7]retaining his property
without compensation acted in breach of their obligations under
international law and consequently in a manner requiring the payment of
reparation.
2. In respect of the wrongful arrest, detention, expulsion and refusal to
readmit Mr. Nottebohm the Government of Guatemala should pay to the
Government of Liechtenstein:
(i) special damages amounting, according to the data received so far, to not
less than 20,000 Swiss francs;
(ii) general damages to the amount of 645,000 Swiss francs.
3. In respect of the seizure and retention of the property of Mr. Nottebohm,
the Government of Guatemala should submit an account of the profits accruing
in respect of the various parts of the property since the dates on which
they were seized and should pay the equivalent in Swiss francs (with
interest at 6 % from the date of accrual) of such sum as may be found in
that account to be owing by them. Further, the Government of Guatemala
should pay damages (at present estimated at 300,000 Swiss francs per annum)
representing the additional income which in the opinion of the Court would
have been earned by the property if it had remained under the control of its
lawful owner.
4. Further, the Government of Guatemala should restore to Mr. Nottebohm all
his property which they have seized and retained together with damages for
the deterioration of that property. Alternatively, they should pay to the
Government of Liechtenstein the sum of 6,510,596 Swiss francs representing
the estimated present market value of the seized property had it been
maintained in its original condition."
In the Reply:
"May it please the Court to hold and declare,
As to the pleas of non-admissibility of the claim of Liechtenstein in
respect of Mr. Nottebohm:
(1) that there is a dispute between Liechtenstein and Guatemala which is the
subject-matter of the application to the Court by the Government of
Liechtenstein and that it is admissible for adjudication by the Court
without further diplomatic exchanges or negotiations between the Parties;
(2) that the naturalization of Mr. Nottebohm in Liechtenstein on October
20th, 1939, was granted in accordance with the municipal law of
Liechtenstein and was not contrary to international law ; that in
consequence Mr. Nottebohm was from that date divested of his German
nationality ; and that Liechtenstein's claim on behalf of Mr. Nottebohm as
a national of Liechtenstein is admissible before the Court;
(3) that the plea by Guatemala of the non-exhaustion of local remedies by
Mr. Nottebohm is excluded by the prorogation in this case of the
jurisdiction of the Court ; or alternatively that [p8]the plea goes properly
not to the admissibility of Liechtenstein's claim on his behalf but to the
merits of that claim;
(4) that in any event Mr. Nottebohm exhausted all the local remedies in
Guatemala which he was able or required to exhaust under the municipal law
of Guatemala and under international law.
As to the merits of its claim, the Government of Liechtenstein repeats the
Final Conclusions set out in its Memorial at p. 51 and with reference to
paragraphs 2, 3 and 4 of those Final Conclusions, will further ask the Court
to order, under Article 50 of the Statute, such inquiry as may be necessary
into the account of profits and quantification of damages."
as final Submissions presented at the hearing of March 4th, 1955;
"May it please the Court,
I. as to the pleas of non-admissibility of the claim of Liechtenstein in
respect of Mr. Frederic Nottebohm:
(1) to hold and declare that there is a dispute between Liechtenstein and
Guatemala, that it forms the subject-matter of the present application to
the Court by the Government of Liechtenstein and that it is admissible for
adjudication by the Court without further diplomatic communication or
negotiations between the parties;
(2) to find and declare that the naturalization of Mr. Frederic Nottebohm in
Liechtenstein on October 13th, 1939, was not contrary to international law ;
and that Liechtenstein's claim on behalf of Mr. Nottebohm as a national of
Liechtenstein is admissible before the Court;
(3) to hold and declare:
(a) that in regard to the person of Mr. Frederic Nottebohm he was prevented
from exhausting the local remedies and that in any case such remedies would
have been ineffective ;
(b) (aa) that in regard to the properties in respect to which no decision
was given by the Minister upon the application for exoneration, lodged by
Mr. Frederic Nottebohm, Mr. Frederic Nottebohm has exhausted the remedies
which were available to him in Guatemala and which he was required to
exhaust under the municipal law of Guatemala and under international law ;
(bb) that in regard to the properties in which a decision was given by the
Minister, Mr. Frederic Nottebohm was not required to exhaust the local
remedies under international law;
(4) if the Court should not hold and declare in favour of conclusion (3)
above
to declare nevertheless [p9]
that the claim is admissible since the facts disclose a breach of
international law by Guatemala in the treatment of the person and property
of Mr. Frederic Nottebohm.
II. As to the Merits of its claim:
(5) to adjourn the oral pleadings for not less than three months in order
that the Government of Liechtenstein may obtain
and assemble documents in support of comments on the new documents produced
by the Government of Guatemala;
(6) to request the Government of Guatemala to produce the original or
certified copy of the original of the 1922 agreements referred to in the
agreements of 8th January, 1924 (Document numbered VIII) and of 15th March,
1938 (Document numbered XI);
(7) to fix in due course a date for the completion of the oral hearings on
the Merits;
(8) if the Court should not make any Order as requested in (5)-(7), the
Government of Liechtenstein repeats the final conclusions set out in its
Memorial at page 51, and with reference to the paragraphs 2, 3 and 4 of
those final conclusions further asks the Court to order under Article 50 of
the Statute such enquiry as may be necessary into the account of profits and
quantification of damages."
On behalf of the Government of Guatemala:
in the Counter-Memorial:
"May it please the Court,
subject to all reservations and without prejudice,
As to admissibility:
to declare that the claim of the Principality of Liechtenstein is
inadmissible
(i) by reason of the absence of any prior diplomatic negotiations;
(ii) because the Principality of Liechtenstein has failed to prove that M.
Nottebohm, for whose protection it is acting, properly acquired
Liechtenstein nationality in accordance with the law of the Principality;
because, even if such proof were provided, the legal provisions which would
have been applied cannot be regarded as in conformity with international
law;
and because M. Nottebohm appears in any event not to have lost, or not
validly to have lost, his German nationality;
(iii) on the ground of M. Nottebohm's failure to exhaust local remedies;
In the alternative, on the Merits:
to hold that neither in the legislative measures of Guatemala applied in the
case of M. Nottebohm, nor in the administrative or [p 10] judicial measures
taken with regard to him in pursuance of the said laws, there has been
proved any fault such as to involve the responsibility of the Respondent
State to the Principality of Liechtenstein;
Consequently, to dismiss the claim of the Principality of Liechtenstein;
In the further alternative, as to the question of the amount claimed:
To hold that there is no case for damages, except in relation to the
property personally owned by Friedrich Nottebohm, and excluding the shares
which he possessed in the firm of Nottebohm Hermanos, and
further to declare that the Government of Guatemala shall be discharged from
all responsibility on its acting in accordance with the provisions of Decree
No. 900, which contains the law relating to Agrarian reform."
In the Rejoinder:
"May it please the Court,
subject to all reservations and without prejudice as to admissibility:
to declare that the claim of the Principality of Liechtenstein is
inadmissible
(1) on the ground of the absence of any prior diplomatic negotiations.
In the alternative, on this point:
to declare it inadmissible on this ground at least in so far as it relates
to reparation for injury allegedly caused to the person of Friedrich
Nottebohm
(2) on the ground that Nottebohm is not of Liechtenstein nationality.
In the alternative on this point:
to order the production by Liechtenstein of the original documents in the
archives of the central administration and the communal administration of
Mauren, together with the records of the Diet relating to the naturalization
of Nottebohm
(3) on the ground of the failure previously to exhaust the local remedies.
In the alternative on this point:
to declare that this contention is well founded at least in respect of
reparation for injury allegedly caused to the person of Nottebohm and for
the expropriation of property other than his immovable property and his
interests in the immovable property held in the name of the firm of
Nottebohm Hermanos.
In the alternative, on the Merits:
to hold that the laws of Guatemala applied to M. Nottebohm have violated no
rule of international law and that no fault has been established on the part
of the Guatemalan authorities in [p 11]their conduct in relation to him such
as to involve the responsibility of the Respondent State;
consequently, to dismiss the claim of Liechtenstein.
In the further alternative, in the event of the ordering of an expert
opinion to determine the quantum of damages:
to hold that the amount of damages to be awarded should be calculated in
accordance with the Guatemalan law, namely, Decree 529 and, in respect of
certain immovable property, the Agrarian Reform Law."
as final Submissions presented at the hearing of March 7th, 1955:
"May it please the Court,
subject to all reservations and without prejudice,
as to admissibility:
to declare that the claim of the Principality of Liechtenstein is
inadmissible
(1) on the ground of the absence of any prior diplomatic negotiations
between the Principality of Liechtenstein and Guatemala such as would
disclose the existence of a dispute between the two States before the filing
of the Application instituting proceedings;
in the alternative on this point:
to declare that the claim of the Principality on this ground is
inadmissible, at least in so far as it relates to reparation for injury
allegedly caused to the person of Friedrich Nottebohm;
(2) (a) on the ground that Mr. Nottebohm, for whose protection the
Principality of Liechtenstein is acting before the Court, has not properly
acquired Liechtenstein nationality in accordance with the law of the
Principality;
(b) on the ground that naturalization was not granted to Mr. Nottebohm in
accordance with the generally recognized principles in regard to
nationality;
(c) in any case, on the ground that Mr. Nottebohm appears to have solicited
Liechtenstein nationality fraudulently, that is to say, with the sole object
of acquiring the status of a neutral national before returning to Guatemala,
and without any genuine intention to establish a durable link, excluding
German nationality, between the Principality and himself;
in the alternative on this point:
to invite Liechtenstein to produce to the Court, within a time-limit to be
fixed by the latter, all original documents in the archives relating to the
naturalization of Nottebohm and, in particular, the convocations of members
of the Diet to the sitting on October 14th, 1939, and those of the Assembly
of Mauren citizens on October 15th, 1939, the agenda and minutes of the
aforesaid sittings, together with the instrument conferring naturalization
allegedly signed by His Highness the Prince Regnant;
(3) on the ground of the non-exhaustion by Friedrich Nottebohm of the local
remedies available to him under the Guatemalan legislation, whether in
regard to his person or his property, even if [p12]it should appear that the
complaints against Guatemala were concerned with an alleged original breach
of international law;
in the alternative on this point:
to declare that this contention is well founded, at least in respect of
reparation for injury allegedly caused to the person of Nottebohm, and to
the property, other than immovable property, or shares that he may have
owned in immovable property registered as belonging to the Nottebohm
Hermanos Company;
in the further alternative on the Merits:
to declare that there is no occasion to order the supplementary enquiry
proposed, since it was incumbent on the Principality, on its own initiative,
to discover the nature of Friedrich Nottebohm's interests in the Nottebohm
Hermanos Company and the successive changes effected in the status of that
Company and in its direct or indirect relations with the Nottebohm Company
of Hamburg;
to hold that no violation of international law has been shown to have been
committed by Guatemala in regard to Mr. Nottebohm, either in respect of his
property or his person;
more especially in regard to the liquidation of his property, to declare
that Guatemala was not obliged to regard the naturalization of Friedrich
Nottebohm in the Principality of Liechtenstein as binding upon her, or as a
bar to his treatment as an enemy national in the circumstances of the case;
consequently, to dismiss the claim of Liechtenstein together with her
conclusions;
as a final alternative in regard to the amount of the damages claimed:
to record a finding on behalf of Guatemala that she expressly disputes the
proposed valuations, which have no valid justification. "
***
By the Application filed on December 17th, 1951, the Government of
Liechtenstein instituted proceedings before the Court in which it claimed
restitution and compensation on the ground that the Government of Guatemala
had "acted towards the person and property of Mr. Friedrich Nottebohm, a
citizen of Liechtenstein, in a manner contrary to international law". In its
Counter-Memorial, the Government of Guatemala contended that this claim was
inadmissible on a number of grounds, and one of its objections to the
admissibility of the claim related to the nationality of the person for
whose protection Liechtenstein had seised che Court.
It appears to the Court that this plea in bar is of fundamental importance
and that it is therefore desirable to consider it at the outset.[P13]
Guatemala has referred to a well-established principle of international
law, which it expressed in Counter-Memorial, where it is stated that "it is
the bond of nationality between the State and the individual which alone
confers upon the State the right of diplomatic protection". This sentence
is taken from a Judgment of the Permanent Court of International Justice
(Series A/B, No. 76, p. 16), which relates to the form of diplomatic
protection constituted by international judicial proceedings.
Liechtenstein considers itself to be acting in conformity with this
principle and contends that Nottebohm is its national by virtue of the
naturalization conferred upon him.
***
Nottebohm was born at Hamburg on September 16th, 1881. He was German by
birth, and still possessed German nationality when, in October 1939, he
applied for naturalization in Liechtenstein.
In 1905 he went to Guatemala. He took up residence there and made that
country the headquarters of his business activities, which increased and
prospered; these activities developed in the field of commerce, banking and
plantations. Having been an employee in the firm of Nottebohm Hermanos,
which had been founded by his brothers Juan and Arturo, he became their
partner in 1912 and later, in 1937, he was made head of the firm. After 1905
he sometimes went to Germany on business and to other countries for
holidays. He continued to have business connections in Germanv. He paid a
few visits to a brother who had lived in Liech-tenstein since 1931. Some of
his other brothers, relatives and friends were in Germany, others in
Guatemala. He himself continued to have his fixed abode in Guatemala until
1943, that is to say, until the occurrence of the events which constitute
the basis of the present dispute.
In 1939, after having provided for the safeguarding of his interests in
Guatemala by a power of attorney given to the firm of Nottebohm Hermanos on
March 22nd, he left that country at a date fixed by Counsel for
Liechtenstein as at approximately the end of March or the beginning of
April, when he seems to have gone to Hamburg, and later to have paid a few
brief visits to Vaduz where he was at the beginning of October 1939. It was
then, on October 9th, a little more than a month after the opening of the
second World War marked by Germany's attack on Poland, that his attorney,
Dr. Marxer, submitted an application for naturalization on behalf of
Nottebohm.
The Liechtenstein Law of January 4th, 1934, lays down the conditions for
the naturalization of foreigners, specifies the supporting documents to be
submitted and the undertakings to be given and defines the competent organs
for giving a decision and the procedure to be followed. The Law specifies
certain mandatory requirements, namely, that the applicant for
naturalization should prove: (1) [p14]
"that the acceptance into the Home Corporation (Heimatverband) of a
Liechtenstein commune has been promised to him in case of acquisition of
the nationality of the State"; (2) that he will lose his former nationality
as a result of naturalization, although this requirement may be waived under
stated conditions. It further makes naturalization conditional upon
compliance with the requirement of residence for at least three years in the
territory of the Principality, although it is provided that "this
requirement can be dispensed with in circumstances deserving special
consideration and by way of exception". In addition, the applicant for
naturalization is required to submit a number of documents, such as
evidence of his residence in the territory of the Principality, a
certificate of good conduct issued by the competent authority of the place
of residence, documents relating to his property and income and, if he is
not a resident in the Principality, proof that he has concluded an agreement
with the Revenue authorities, "subsequent to the revenue commission of the
presumptive home commune having been heard". The Law further provides for
the payment by the applicant of a naturalization fee, which is fixed by the
Princely Government and amounts to at least one half of the sum payable by
the applicant for reception into the Home Corporation of a Liechtenstein
commune, the promise of such reception constituting a condition under the
Law for the grant of naturalization.
The Law reveals concern that naturalization should only be granted with
knowledge of all the pertinent facts, in that it expressly provides for an
enquiry into the relations of the applicant with the country of his former
nationality, as well as into all other personal and family circumstances,
and adds that "the grant of nationality is barred where these relations and
circumstances are such as to cause apprehension that prejudice of any kind
may enure to the State by reason of the admission to nationality".
As to the consideration of the application by the competent organs and the
procedure to be followed by them, the Law provides that the Government,
after having examined the application and the documents pertaining thereto,
and after having obtained satisfactory information concerning the
applicant, shall submit the application to the Diet. If the latter approves
the application, the Government shall submit the requisite request to the
Prince, who alone is entitled to confer nationality of the Principality.
Finally, the Law empowers the Princely Government, within a period of five
years from the date of naturalization, to withdraw Liechtenstein nationality
from any person who may have acquired it if it appears that the requirements
laid down in the Law were not satisfied ; it likewise provides that the
Government may at any time deprive a person of his nationality if the
naturalization was fraudulently obtained.
This was the legal position with regard to applications for naturalization
at the time when Nottebohm's application was submitted. [p15]
***
On October 9th, 1939, Nottebohm, "resident in Guatemala since 1905 (at
present residing as a visitor with his brother, Hermann Nottebohm, in
Vaduz)", applied for admission as a national of Liechtenstein and, at the
same time, for the previous conferment of citizenship in the Commune of
Mauren. He sought dispensation from the condition of three years' residence
as prescribed by law, without indicating the special circumstances
warranting such waiver. He submitted a statement of the Credit Suisse in
Zurich concerning his assets, and undertook to pay 25,000 Swiss francs to
the Commune of Mauren, 12,500 Swiss francs to the State, to which was to be
added the payment of dues in connection with the proceedings. He further
stated that he had made "arrangements with the Revenue Authorities of the
Government of Liechtenstein for the conclusion of a formal agreement to the
effect that he will pay an annual tax of naturalization amounting to Swiss
francs 1,000, of which Swiss francs 600 are payable to the Commune of Mauren
and Swiss francs 400 are payable to the Principality of Liechtenstein,
subject to the proviso that the payments of these taxes will be set off
against ordinary taxes which will fall due if the applicant takes up
residence in one of the Communes of the Principality". He further undertook
to deposit as security a sum of 30,000 Swiss francs. He also gave certain
general information as to his financial position and indicated that he would
never become a burden to the Commune whose citizenship he was seeking.
Lastly, he requested "that naturalization proceedings be initiated and
concluded before the Government of the Principality and before the Commune
of Mauren without delay, that the application be then placed before the Diet
with a favourable recommendation and, finally, that it be submitted with all
necessary expedition to His Highness the Reigning Prince".
On the original typewritten application which has been produced in a
photostatic copy, it can be seen that the name of the Commune of Mauren and
the amounts to be paid were added by hand, a fact which gave rise to some
argument on the part of Counsel for the Parties, There is also a reference
to the "Vorausverständnis" of the Reigning Prince obtained on October 13th,
1939, which Liechtenstein interprets as showing the decision to grant
naturalization, which interpretation has, however, been questioned. Finally,
there is annexed to the application an otherwise blank sheet bearing the
signature of the Reigning Prince, "Franz Josef", but without any date or
other explanation.
A document dated October 15th, 1939, certifies that on that date the Commune
of Mauren conferred the privilege of its citizenship upon Mr. Nottebohm and
requested the Government to transmit it to the Diet for approval. A
certificate of October 17th, 1939, [p16]evidences the payment of the taxes
required to be paid by Mr. Nottebohm. On October 20th, 1939, Mr. Nottebohm
took the oath of allegiance and a final arrangement concerning liability to
taxation was concluded on October 23rd.
This was the procedure followed in the case of the naturalization of
Nottebohm.
A certificate of nationality has also been produced, signed on behalf of the
Government of the Principality and dated October 20th, 1939, to the effect
that Nottebohm was naturalized by Supreme Resolution of the Reigning Prince
dated October 13th, 1939.
Having obtained a Liechtenstein passport, Nottebohm had it visa-ed by the
Consul General of Guatemala in Zurich on December 1st, 1939, and returned
to Guatemala at the beginning of 1940, where he resumed his former business
activities and in particular the management of the firm of Nottebohm
Hermanos.
***
Relying on the nationality thus conferred on Nottebohm, Liechtenstein
considers itself entitled to seise the Court of its claim on his behalf, and
its Final Conclusions contain two submissions in this connection.
Liechtenstein requests the Court to find and declare, first, "that the
naturalization of Mr. Frederic Nottebohm in Liechtenstein on October 13th,
1939, was not contrary to international law", and, secondly, "that
Liechtenstein's claim on behalf of Mr. Nottebohm as a national of
Liechtenstein is admissible before the Court".
The Final Conclusions of Guatemala, on the other hand, request the Court "to
declare that the claim of the Principality of Liechtenstein is
inadmissible", and set forth a number of grounds relating to the nationality
of Liechtenstein granted to Nottebohm by naturalization.
Thus, the real issue before the Court is the admissibility of the claim of
Liechtenstein in respect of Nottebohm. Liechtenstein's first submission
referred to above is a reason advanced for a decision by the Court in favour
of Liechtenstein, while the several grounds given by Guatemala on the
question of nationality are intended as reasons for the inadmissibility of
Liechtenstein's claim. The present task of the Court is limited to
adjudicating upon the admissibility of the claim of Liechtenstein in respect
of Nottebohm on the basis of such reasons as it may itself consider relevant
and proper.
In order to decide upon the admissibility of the Application, the Court must
ascertain whether the nationality conferred on Nottebohm by Liechtenstein
by means of a naturalization which took [p17] place in the circumstances
which have been described, can be validly invoked as against Guatemala,
whether it bestows upon Liechtenstein a sufficient title to the exercise of
protection in respect of Nottebohm as against Guatemala and therefore
entitles it to seise the Court of a claim relating to him. In this
connection, Counsel for Liechtenstein said: "the essential question is
whether Mr. Nottebohm, having acquired the nationality of Liechtenstein,
that acquisition of nationality is one which must be recognized by other
States". This formulation is accurate, subject to the twofold reservation
that, in the first place, what is involved is not recognition for all
purposes but merely for the purposes of the admissibility of the
Application, and, secondly, that what is involved is not recognition by all
States but only by Guatemala.
The Court does not propose to go beyond the limited scope of the question
which it has to decide, namely whether the nationality conferred on
Nottebohm can be relied upon as against Guatemala in justification of the
proceedings instituted before the Court. It must decide this question on the
basis of international law; to do so is consistent with the nature of the
question and with the nature of the Court's own function.
***
In order to establish that the Application must be held to be admissible,
Liechtenstein has argued that Guatemala formerly recognized the
naturalization which it now challenges and cannot therefore be heard to put
forward a contention which is inconsistent with its former attitude.
Various documents, facts and actions have been relied upon in this
connection.
Reliance has been placed on the fact that, on December 1st, 1939, the Consul
General of Guatemala in Zurich entered a visa in the Liechtenstein passport
of Mr. Nottebohm for his return to Guatemala; that on January 29th, 1940,
Nottebohm informed the Ministry of External Affairs in Guatemala that he had
adopted the nationality of Liechtenstein and therefore requested that the
entry relating to him in the Register of Aliens should be altered
accordingly, a request which was granted on January 31st; that on February
9th, 1940, a similar amendment was made to his identity document, and
lastly, that a certificate to the same effect was issued to him by the Civil
Registry of Guatemala on July 1st, 1940.
The acts of the Guatemalan authorities just referred to proceeded on the
basis of the statements made to them by the person concerned. The one led to
the other. The only purpose of the first, as appears from Article 9 of the
Guatemalan law relating to pass[p18.] ports, was to make possible or
facilitate entry into Guatemala, and nothing more. According to the Aliens
Act of January 25th, 1936, Article 49, entry in the Register "constitutes a
legal presumption that the alien possesses the nationality there attributed
to him, but evidence to the contrary is admissible''. All of these acts have
reference to the control of aliens in Guatemala and not to the exercise of
diplomatic protection. When Nottebohm thus presented himself before the
Guatemalan authorities, the latter had before them a private individual:
there did not thus come into being any relationship between governments.
There was nothing in all this to show that Guatemala then recognized that
the naturalization conferred upon Nottebohm gave Liechtenstein any title to
the exercise of protection.
Although the request sent by Nottebohm Hermanos to the Minister of Finance
and Public Credit on September 13th, 1940, with reference to the inclusion
of the firm on the British Statutory List, referred to the fact that only
one of the partners was "a national of Liechtenstein/Switzerland", this
point was only made incidentally, and the whole request was based on the
consideration that the firm "is a wholly Guatemalan business" and on the
interests of the "national economy". It was on this basis that the matter
was discussed, and no reference whatsoever was made to any intervention by
the Government of Liechtenstein at that time.
Similarly unconnected with the exercise of protection was the Note addressed
on October 18th, 1943, by the Minister of External Affairs to the Swiss
Consul who, having understood that the registration documents indicated that
Nottebohm was a Swiss citizen of Liechtenstein, requested, in a Note of
September 25th, 1943, that this matter might be clarified. He received the
reply that there was no such indication of Swiss nationality in the
documents and, although the Consul had referred to the representation of the
interests of the Principality abroad by the representatives of the Swiss
Government, the reply sent to him made no allusion to the exercise, by or on
behalf of Liechtenstein, of protection in favour of Nottebohm.
When, on October 20th, 1943, the Swiss Consul asked that "Mr. Walter
Schellenberg of Swiss nationality and Mr. Federico Nottebohm of
Liechtenstein", who had been transferred to the United States Military Base
for the purpose of being deported, should, "as citizens of neutral
countries", be returned home, the Minister of External Affairs of Guatemala
replied, on October 22nd, that the action taken was attributable to the
authorities of the United States, and made no reference to the nationality
of Nottebohm.[p19].
In a letter of the Swiss Consul of December 15th, 1944, to the Minister of
External Affairs, reference is made to the entry on the Black Lists of
"Frederick Nottebohm, a national of Liechtenstein". Neither the text of
these lists nor any extract therefrom has been produced, but this is not
germane to the present discussion. The important fact is that Guatemala, in
its reply dated December 20th, 1944, expressly stated that it could not
"recognize that Mr. Nottebohm, a German subject habitually resident in
Guatemala, has acquired the nationality of Liechtenstein without changing
his habitual residence". The Court has not at present to consider the
validity of the ground put forward for disputing Nottebohm's nationality,
which was subsequently put forward to justify the cancellation of his
registration as a citizen of the "Condado" of Liechtenstein. It is
sufficient for it to note that there is here an express denial by Guatemala
of Nottebohm's Liechtenstein nationality.
Nottebohm's name having been removed from the Register of Resident Aliens,
his relative Karl Heinz Nottebohm Stoltz, on July 24th, 1946, requested the
cancellation of the decision and the restoration of Nottebohm's name to the
Register as a citizen of Liechtenstein, putting forward a number of
considerations, essentially based on the exclusive right of Liechtenstein
to decide as to the nationality in question and the duty of Guatemala to
conform to such decision. Far from accepting the considerations thus put
forward, the Minister of External Affairs rejected the request, on August
1st, 1946, merely saying that it was pointless, since Nottebohm was no
longer a resident of Guatemala.
There is nothing here to show that before the institution of proceedings
Guatemala had recognized Liechtenstein's title to exercise protection in
favour of Nottebohm and that it is thus precluded from denying such a title.
Nor can the Court find any recognition of such title in the communication
signed by the Minister of External Affairs of Guatemala, addressed to the
President of the Court, on September 9th, 1952. In this communication
reference is made to measures taken against Nottebohm "who claims to be a
national of the claimant State" ("quien se alega ser ciudadano del Estado
reclamante"). Then, reference having been made to the claim presented by the
Government of the Principality of Liechtenstein with regard to these
measures, it is stated that the Government of Guatemala "is quite willing
to begin negotiations with the Government of the said Principality with a
view to arriving at an amicable solution, either in the sense of a direct
settlement, an arbitration or judicial settlement". It would constitute an
obstacle to the opening of negotiations for the purpose of reaching a
settlement of an international dispute or of concluding a special agreement
for arbitration and would hamper the use of the means of settlement
recommended by Article 33 of the Charter of the United Nations, to interpret
an offer to have recourse [p20]to such negotiations or such means, consent
to participate in them or actual participation, as implying the abandonment
of any defence which a party may consider it is entitled to raise or as
implying acceptance of any claim by the other party, when no such
abandonment or acceptance has been expressed and where it does not
indisputably follow from the attitude adopted. The Court cannot see in the
communication of September 9th, 1952, any admission by Guatemala of the
possession by Nottebohm of a nationality which it clearly disputed in its
last official communication on this subject, namely, the letter of December
20th, 1944, to the Swiss Consul, still less can it find any recognition of
Liechtenstein's title, based on such nationality, to exercise its protection
and to seise the Court in the present case.
***
Since no proof has been adduced that Guatemala has recognized the title to
the exercise of protection relied upon by Liechtenstein as being derived
from the naturalization which it granted to Nottebohm, the Court must
consider whether such an act of granting nationality by Liechtenstein
directly entails an obligation on the part of Guatemala to recognize its
effect, namely, Liechtenstein's right to exercise its protection. In other
words, it must be deter-mined whether that unilateral act by Liechtenstein
is one which can be relied upon against Guatemala in regard to the exercise
of protection. The Court will deal with this question without considering
that of the validity of Nottebohm's naturalization according to the law of
Liechtenstein.
It is for Liechtenstein, as it is for every sovereign State, to settle by
its own legislation the rules relating to the acquisition of its
nationality, and to confer that nationality by naturalization granted by its
own organs in accordance with that legislation. It is not necessary to
determine whether international law imposes any limitations on its freedom
of decision in this domain. Furthermore, nationality has its most
immediate, its most far-reaching and, for most people, its only effects
within the legal system of the State conferring it. Nationality serves above
all to determine that the person upon whom it is conferred enjoys the rights
and is bound by the obligations which the law of the State in question
grants to or imposes on its nationals. This is implied in the wider concept
that nationality is within the domestic jurisdiction of the State.
But the issue which the Court must decide is not one which pertains to the
legal system of Liechtenstein. It does not depend on the law or on the
decision of Liechtenstein whether that State is entitled to exercise its
protection, in the case under consideration. To exercise protection, to
apply to the Court, is to place one [p21]self on the plane of international
law. It is international law which determines whether a State is entitled to
exercise protection and to seise the Court.
The naturalization of Nottebohm was an act performed by Liechtenstein in the
exercise of its domestic jurisdiction. The question to be decided is whether
that act has the international effect here under consideration.
International practice provides many examples of acts performed by States
in the exercise of their domestic jurisdiction which do not necessarily or
automatically have international effect, which are not necessarily and
automatically binding on other States or which are binding on them only
subject to certain conditions: this is the case, for instance, of a
judgment given by the competent court of a State which it is sought to
invoke in another State.
In the present case it is necessary to determine whether the naturalization
conferred on Nottebohm can be successfully invoked against Guatemala,
whether, as has already been stated, it can be relied upon as against that
State, so that Liechtenstein is thereby entitled to exercise its protection
in favour of Nottebohm against Guatemala.
When one State has conferred its nationality upon an individual and another
State has conferred its own nationality on the same person, it may occur
that each of these States, considering itself to have acted in the exercise
of its domestic jurisdiction, adheres to its own view and bases itself
thereon in so far as its own actions are concerned. In so doing, each State
remains within the limits of its domestic jurisdiction.
This situation may arise on the international plane and fall to be
considered by international arbitrators or by the courts of a third State.
If the arbitrators or the courts of such a State should confine themselves
to the view that nationality is exclusively within the domestic jurisdiction
of the State, it would be necessary for them to find that they were
confronted by two contradictory assertions made by two sovereign States,
assertions which they would conse-quently have to regard as of equal weight,
which would oblige them to allow the contradiction to subsist and thus fail
to resolve the conflict submitted to them.
In most cases arbitrators have not strictly speaking had to decide a
conflict of nationality as between States, but rather to determine whether
the nationality invoked by the applicant State was one which could be relied
upon as against the respondent State, that is to say, whether it entitled
the applicant State to exercise protection. International arbitrators,
having before them allegations of nationality by the applicant State which
were contested by the respondent State, have sought to ascertain whether
nationality had been conferred by the applicant State in circumstances such
as to give rise to an obligation on the part [p22] of the respondent State
to recognize the effect of that nationality. In order to decide this
question arbitrators have evolved certain principles for determining whether
full international effect was to be attributed to the nationality invoked.
The same issue is now before the Court: it must be resolved by applying the
same principles.
The courts of third States, when confronted by a similar situation, have
dealt with it in the same way. They have done so not in connection with the
exercise of protection, which did not arise before them, but where two
different nationalities have been invoked before them they have had, not
indeed to decide such a dispute as between the two States concerned, but to
determine whether a given foreign nationality which had been invoked before
them was one which they ought to recognize.
International arbitrators have decided in the same way numerous cases of
dual nationality, where the question arose with regard to the exercise of
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. 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 centre 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.
Similarly, the courts of third States, when they have before them an
individual whom two other States hold to be their national, seek to resolve
the conflict by having recourse to international criteria and their
prevailing tendency is to prefer the real and effective nationality.
The same tendency prevails in the writings of publicists and in practice.
This notion is inherent in the provisions of Article 3, paragraph 2, of the
Statute of the Court. National laws reflect this tendency when, inter alia,
they make naturalization dependent on conditions indicating the existence of
a link, which may vary in their purpose or in their nature but which are
essentially concerned with this idea. The Liechtenstein Law of January 4th,
1934, is a good example.
The practice of certain States which refrain from exercising protection in
favour of a naturalized person when the latter has in fact, by his prolonged
absence, severed his links with what is no longer for him anything but his
nominal country, manifests the view of these States that, in order to be
capable of being invoked against another State, nationality must correspond
with the factual situation. A similar view is manifested in the relevant
provisions of the bilateral nationality treaties concluded between the
United States of America and other States since 1868, such as [p23] those
sometimes referred to as the Bancroft Treaties, and in the Pan-American
Convention, signed at Rio de Janeiro on August 13th, 1906, on the status of
naturalized citizens who resume residence in their country of origin.
The character thus recognized on the international level as pertaining to
nationality is in no way inconsistent with the fact that international law
leaves it to each State to lay down the rules governing the grant of its own
nationality. The reason for this is that the diversity of demographic
conditions has thus far made it impossible for any general agreement to be
reached on the rules relating to nationality, although the latter by its
very nature affects international relations. It has been considered that the
best way of making such rules accord with the varying demographic conditions
in different countries is to leave the fixing of such rules to the
competence of each State. On the other hand, a State cannot claim that the
rules it has thus laid down are entitled to recognition by another State
unless it has acted in conformity with this general aim of making the legal
bond of nationality accord with the individual's genuine connection with the
State which assumes the defence of its citizens by means of protection as
against other States.
The requirement that such a concordance must exist is to be found in the
studies carried on in the course of the last thirty years upon the
initiative and under the auspices of the League of Nations and the United
Nations. It explains the provision which the Conference for the Codification
of International Law, held at The Hague in 1930, inserted in Article 1 of
the Convention relating to the Conflict of Nationality Laws, laying down
that the law enacted by a State for the purpose of determining who are its
nationals "shall be recognized by other States in so far as it is consistent
with .... international custom, and the principles of law generally
recognized with regard to nationality". In the same spirit, Article 5 of the
Convention refers to criteria of the individual's genuine connections for
the purpose of resolving questions of dual nationality which arise in third
States.
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 only entitles that State to exercise
protection vis-à-vis another State, if it constitutes a translation into
juridical terms of the individual's connection with the State which has made
him its national.[p24]
Diplomatic protection and protection by means of international judicial
proceedings constitute measures for the defence of the rights of the State.
As the Permanent Court of International Justice has said and has repeated,
"by taking up the case of one of its subjects and by resorting to diplomatic
action or international judicial proceedings on his behalf, a State is in
reality asserting its own rights�its right to ensure, in the person of its
subjects, respect for the rules of international law" (P.C.I.J., Series A,
No. 2, p. 12, and Series A/B, Nos. 20-21, p. 17).
***
Since this is the character which nationality must present when it is
invoked to furnish the State which has granted it with a title to the
exercise of protection and to the institution of inter-national judicial
proceedings, the Court must ascertain whether the nationality granted to
Nottebohm by means of naturalization is of this character or, in other
words, whether the factual con-nection between Nottebohm and Liechtenstein
in the period preceding, contemporaneous with and following his
naturalization appears to be sufficiently close, so preponderant in relation
to any connection which may have existed between him and any other State,
that it is possible to regard the nationality conferred upon him as real and
effective, as the exact juridical expression of a social fact of a
connection which existed previously or came into existence thereafter.
Naturalization is not a matter to be taken lightly. To seek and to obtain it
is not something that happens frequently in the life of a human being. It
involves his breaking of a bond of allegiance and his establishment of a new
bond of allegiance. It may have far-reaching consequences and involve
profound changes in the destiny of the individual who obtains it. It
concerns him personally, and to consider it only from the point of view of
its repercussions with regard to his property would be to misunderstand its
profound significance. In order to appraise its international effect, it is
impossible to disregard the circumstances in which it was conferred, the
serious character which attaches to it, the real and effective, and not
merely the verbal preference of the individual seeking it for the country
which grants it to him.
At the time of his naturalization does Nottebohm appear to have been more
closely attached by his tradition, his establishment, his interests, his
activities, his family ties, his intentions for the near future to
Liechtenstein than to any other State?
The essential facts appear with sufficient clarity from the record. The
Court considers it unnecessary to have regard to the documents purporting
to show that Nottebohm had or had not retained his interests in Germany, or
to have regard to the alternative submission of Guatemala relating to a
request to Liechten[p25]stein to produce further documents. It would
further point out that the Government of Liechtenstein, in asking in its
Final Conclusions for an adjournment of the oral proceedings and an
opportunity to present further documents, did so only for the eventuality of
the Application being held to be admissible and not for the purpose of
throwing further light upon the question of the admissibility of the
Application.
The essential facts are as follows:
At the date when he applied for naturalization Nottebohm had been a German
national from the time of his birth. He had always retained his connections
with members of his family who had remained in Germany and he had always had
business connections with that country. His country had been at war for more
than a month, and there is nothing to indicate that the application for
naturalization then made by Nottebohm was motivated by any desire to
dissociate himself from the Government of his country.
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 centre 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.
In contrast, his actual connections with Liechtenstein were extremely
tenuous. No settled abode, no prolonged residence in that country at the
time of his application for naturalization: the application indicates that
he was paying a visit there and confirms the transient character of this
visit by its request that the naturalization proceedings should be
initiated and concluded without delay. No intention of settling there was
shown at that time or realized in the ensuing weeks, months or years�on the
contrary, he returned to Guatemala very shortly after his naturalization
and showed every intention of remaining there. If Nottebohm went to
Liechtenstein in 1946, this was because of the refusal of Guatemala to
admit him. No indication is given of the grounds warranting the waiver of
the condition of residence, required by the 1934 Nationality Law, which
waiver was implicitly granted to him. There is no allegation of any economic
interests or of any activities exercised or to be exercised in
Liechtenstein, and no manifestation of any intention whatsoever to transfer
all or some of his interests and his business activities to Liechtenstein.
It is unnecessary in this connection to attribute much importance to the
promise to pay the taxes levied at the time of his naturalization. The only
links to be discovered between the Principality and Nottebohm are the short
sojourns already referred to and the presence in Vaduz of one of his
brothers: but his brother's presence is referred [p26] to in his application
for naturalization only as a reference to his good conduct. Furthermore,
other members of his family have asserted Nottebohm's desire to spend his
old age in Guatemala.
These facts clearly establish, on the one hand, the absence of any bond of
attachment between Nottebohm and Liechtenstein and, on the other hand, the
existence of a long-standing and close connection between him and Guatemala,
a link which his naturalization in no way weakened. That naturalization was
not based on any real prior connection with Liechtenstein, nor did it in any
way alter the manner of life of the person upon whom it was conferred in
exceptional circumstances of speed and accommodation. In both respects, it"
was lacking in the genuineness requisite to an act of such importance, if it
is to be entitled to be respected: by a State in the position of Guatemala.
It was granted without regard to the concept of nationality adopted in
international relations.
Naturalization was asked for not so much for the purpose of obtaining a
legal recognition of Nottebohm's membership in fact in the population of
Liechtenstein, as it was to enable him to substitute for his status as a
national of a belligerent State that of a national of a neutral State, with
the sole aim of thus coming within the protection of Liechtenstein but not
of becoming wedded to its traditions, its interests, its way of life or of
assuming the obligations�other than fiscal obligations�and exercising the
rights pertaining to the status thus acquired.
Guatemala is under no obligation to recognize a nationality granted in such
circumstances, Liechtenstein consequently is not entitled to extend its
protection to Nottebohm vis-à-vis Guatemala and its claim must, for this
reason, be held to be inadmissible.
The Court is not therefore called upon to deal with the other pleas in bar
put forward by Guatemala or the Conclusions of the Parties other than those
on which it is adjudicating in accordance with the reasons indicated above.
For these reasons,
The Court,
by eleven votes to three,
Holds that the claim submitted by the Government of the Principality of
Liechtenstein is inadmissible.[p27]
Done in French and English, the French text being authoritative, at the
Peace Palace, The Hague, this sixth day of April, one thousand nine hundred
and fifty-five; in three copies, one of which will be placed in the archives
of the Court and the others will be transmitted to the Government of the
Principality of Liechtenstein and to the Government of the Republic of
Guatemala, respectively.
(Signed) Green H.Hackworth,
President.
(Signed), J.López Oliván
Registrar.
Judges Klaestad and Read, and M. Guggenheim, Judge ad hoc, have availed
themselves of the right conferred on them by Article 57 of the Statute and
have appended to the Judgment statements of their dissenting opinion.
(Initialled) G.H.H.
(Initialled) J.L.O.
[p28]
Dissenting opinion of Judge Klaestad
I consider that the case should have been adjourned for the following
reasons:
The present Judgment deals with one of the three pleas in bar which, in this
second phase of the proceedings, have been invoked by the Government of
Guatemala. This plea in bar by that Government is based on the ground that
the naturalization granted to Mr. Nottebohm by Liechtenstein is invalid
because it is inconsistent with the national law of Liechtenstein as well
as with. international law.
I. As to the national law of Liechtenstein, it is argued that the
authorities of that State, in applying their Nationality Law of 4th January,
1934, have not observed its provisions, but in various respects departed
therefrom, particularly with regard to the prescribed order in which
Government, Diet and Commune were to deal with the application for
naturalization. On this ground, the Court is invited to declare that Mr.
Nottebohm has not properly acquired Liechtenstein nationality in accordance
with the law of the Principality.
It is generally recognized that questions of naturalization of aliens are,
in the absence of conventional rules, in principle within the exclusive
competence of States, and that international law has left it to the States
themselves to regulate in what manner and under what conditions their
nationality may be conferred upon aliens. But if a State has in principle
the exclusive competence to regulate questions of nationality by its own
legislation without interference by other States, it is difficult to see on
what ground its own interpretation and application of this same legislation
could be open to challenge by other States. Such a challenge is possible in
theory on the ground that the legislation or the application thereof is
inconsistent with international law; but the question now under
consideration is only whether the authorities of Liechtenstein have applied
their local law in a manner consistent with the provisions of that local
law.
The Permanent Court of International Justice has on several occasions
considered what attitude the Court should take with regard to the national
law of States, such as in Judgments No. 7 concerning German interests in
Polish Upper Silesia and Nos. 14 and 15 in the Serbian and Brazilian Loans
Cases. In accordance with the view expressed in those Judgments, it may be
said that it would not be in conformity with the function for which the [p
29]Court is established if it proceeded to examine and decide whether the
competent authorities of Liechtenstein have applied the various provisions
of their Nationality Law of 1934 in a correct manner. The Court is not
deemed to know the national law of the different States. It would hardly be
possible for it to place its own construction upon the provisions of the
Liechtenstein Nationality Law and to disregard the interpretation and
application made by the competent local authorities. By so doing, the Court
would substitute itself for these local authorities and pronounce upon
matters which have no bearing on international law, and which therefore are
solely within the competence of these authorities.
What the Court, in my opinion, can and must do with regard to the
application of the Liechtenstein Nationality Law, is to ascertain whether
the naturalization in question was in fact granted by the authority to which
that law has attributed this competence. Article 12 prescribes that it is
the Reigning Prince who alone is entitled to grant the nationality of the
Principality. On the evidence submitted to the Court, I am satisfied that
the Prince did in fact give his consent to the naturalization of Mr.
Nottebohm.
II. The Government of Guatemala further contends that the naturalization was
not granted in accordance with international law. It invokes the fact that
Mr. Nottebohm had not established his residence in Liechtenstein before he
applied for naturalization, and that he left the country soon after it was
granted. Apart from conventional rules, international law does not, however,
require previous residence in the country as a condition for naturalization,
nor does it presuppose a subsequent residence there. This is shown by the
fact that the national laws of a great number of States have�though
generally providing for previous residence in the country�allowed
dispensation from that requirement. The national law of Liechtenstein
equally requires such previous residence (para. 6 (d) of the Nationality Law
of 1934) but provides that this requirement may be dispensed with, as in
fact it was in the present case. To exercise this discretionary power of
dispensation is a matter solely within the competence of the Government of
Liechtenstein.
The validity of the naturalization of Mr. Nottebohm is also contested on the
ground that the Government of Liechtenstein has not proved the loss of his
German nationality, as required by paragraph 6 (c) of the same Law of 1934.
But this requirement also may be dispensed with according to that provision.
It appears, however, that such dispensation was considered unnecessary in
view of the provisions of Article 25 of the German Nationality Law of 1913,
according to which he would lose his German nationality by acquiring the
nationality of Liechtenstein. That he there-[p 30] by in fact lost his
German nationality was, on 15th June, 1954, certified by the Senate of
Hamburg.
III. The view has been expressed that the relationship established between
State and individual by naturalization must presuppose the existence of a
physical or real link or a substantial connection attaching the individual
to the State. It is thereby implied that a mere common and effective will,
not vitiated by fraud, is not sufficient for the creation of the
relationship of nationality. It may be questioned whether this view is a
true expression of a binding rule of international law.
When the Court, in the Asylum case, was confronted with a contention
relating to an alleged right of a unilateral and definitive qualification of
the offence committed by the refugee, it based itself on the principle of
State sovereignty and held that a party which relies on a custom derogating
from that principle must prove that the rule invoked is in accordance with a
constant and uniform State practice accepted as law. The same method would
seem to be applicable in the present case. Having to base oneself on the
ground that questions of naturalization are in principle within the
exclusive competence of States, one should, as in the Asylum case, enquire
whether a rule derogating from that principle is established in such a
manner that it has become binding on Liechtenstein. The Government of
Guatemala would have to prove that such a custom is in accordance with a
constant and uniform State practice "accepted as law" (Article 38, para. 1
(b) of the Court's Statute). But no evidence is produced by that Government
purporting to establish the existence of such a custom.
IV. The present Judgment does not decide the question, in dispute between
the Parties, whether the naturalization granted to Mr. Nottebohm was valid
or invalid either under the national law of Liechtenstein or under
international law. Leaving this question open, it decides that the
Government of Liechtenstein is not, under international law, entitled to
extend its protection to him as against Guatemala.
A solution upon these lines�severance of diplomatic protection from the
question of nationality, and restriction of the right of protection�was
never invoked by the Government of Guatemala, nor discussed by the
Government of Liechtenstein. It does not conform with the argument and
evidence which the Parties have submitted to the Court, and the Government
of Liechtenstein has had no occasion to define its attitude and prove its
eventual contentions with regard to this solution, whereby its claim is now
dismissed. In such circumstances, it is difficult to discuss the merits of
such a solution except on a theoretical basis; but I shall mention some
facts which show how necessary it would have been, in the interest [p 31] of
a proper administration of justice, to afford to the Parties an opportunity
to argue this point before it is decided.
Mr. Nottebohm went to Liechtenstein in 1946 after having been liberated from
his internment in the United States of America. It is seen from Annex 5,
paragraph 18, and Annex 6, paragraph 20, of the Memorial, and paragraph 106
of the Rejoinder, that he must have arrived in Liechtenstein before May 6th,
1946. He established his residence in that country and has lived there ever
since.
The record of this case shows that a number of measures were taken by the
Government of Guatemala against property of Mr. Nottebohm at a time when he
was permanently residing in Liechtenstein. When expropriation measures were
taken against his property by virtue of the Legislative Decree No. 630 of
25th May, 1949, he had been living in Liechtenstein for more than three
years.
As the Judgment has not decided that the naturalization granted to Mr.
Nottebohm on 13th October, 1939, is invalid under Liechtenstein law, one
must, for the purpose of deciding the present plea in bar, assume that it is
valid. In such circumstances, it is difficult to see on what legal basis the
Government of Liechtenstein could be considered as being debarred from
affording diplomatic protection to him in respect of measures taken by the
Government of Guatemala against his property at a time when he was a
permanent resident in Liechtenstein. His link or connection with that
country was at that time of such a character that the reasons relied on in
the Judgment should constitute a solid ground for the recognition of the
right of the Government of Liechtenstein to extend its protection to him as
against Guatemala in respect of all measures taken against his property
during his permanent residence in Liechtenstein.
V. It is alleged by the Government of Guatemala that the Government of
Liechtenstein, by granting its nationality to a German national at a time
when Germany was at war, has committed an abuse of right or a fraud. For
the purpose of the present case, it is unnecessary to express any views as
to the possible applicability of the notion of abuse of right in
international law. All I need say is that it would, if so applicable, in my
view presuppose the infliction of some kind of injury upon the legitimate
interests of Guatemala by the naturalization of Mr. Nottebohm. But it is not
shown that an injury of any kind was thereby inflicted upon Guatemala, which
at that time was a neutral State.
As to the contention that fraud was committed by the Government of
Liechtenstein, it suffices to say that no evidence has been produced in
support of such a contention. The various irregularities [p 32]-in the
naturalization procedure of which the Government of Guatemala has
complained, and the financial conditions fixed for the grant of
naturalization, cannot be considered as involving a fraud.
VI. The Government of Guatemala has finally contended that fraud was
committed by Mr. Nottebohm when he applied for and obtained Liechtenstein
nationality. It was argued that he fraudulently sought this naturalization
solely for the purpose of escaping from the consequences of his German
nationality under the shield of the nationality of a neutral State. As no
documentary evidence in support of this contention was produced in the
course of the written proceedings, the Agent of Guatemala, after the closure
of those proceedings and a few days before the oral hearing, submitted to
the Court a considerable number of new documents. The Agent of Liechtenstein
having objected to the production of these documents, the Court on February
14th, 1955, decided to permit the production of all these new documents,
stating that it:
"Reserves to the Agent of the Government of Liechtenstein the right, if he
so desires, to avail himself of the opportunity provided for in the second
paragraph of Article 48 of the Rules of Court, after hearing the contentions
of the Agent of the Government of Guatemala based on these documents, and
after such lapse of time as the Court may, on his request, deem just."
On the basis of these new documents, Counsel for Guatemala submitted at the
oral hearing the new allegation that part of the property of the firm
Nottebohm Hermanos of Guatemala, which the Government of Liechtenstein now
claims on behalf of Mr. Nottebohm, in reality belonged to the firm
Nottebohm & Co. of Hamburg, and that Mr. Nottebohm, by obtaining
Liechtenstein nationality, attempted in a fraudulenf manner to protect
German property from the consequences of the war. Counsel qualified the case
as a "cloaking case".
These allegations of fraud, which now appear to constitute the main aspect
of this case, affect the plea in bar concerning nationality as well as the
merits. In its final Submissions as to the merits, the Government of
Liechtenstein requests the Court:
"(5) to adjourn the oral pleadings for not less than three months in order
that the Government of Liechtenstein may obtain and assemble documents in
support of comments on the new documents produced by the Government of
Guatemala."
A consideration of the merits would render previous compliance with this
request necessary. Not only has the Government of Liechtenstein acquired a
right, by virtue of Article 48, paragraph 2, of the Rules of Court, to
submit documents in support of its comments upon the new documents produced
by the Agent of Guatemala, but this right was expressly reserved to the
Agent of Liechtenstein by the Court's decision of February 14th. A finding
on the plea [p 33] in bar concerning nationality (diplomatie protection)
presupposes, in my opinion, a consideration of the merits ; it depends, as I
have attempted to show, on the question whether Mr. Nottebohm committed a
fraud when he applied for and obtained Liechtenstein nationality. This
question of fraud is so closely connected with the merits of the case that
it cannot be decided apart from them and without any appraisal of the
various relevant facts which may be disclosed by a consideration of the
merits, including the new documents produced by the Government of Guatemala
and the documents which the Government of Liechtenstein has become entitled
to produce.
This procedural situation also affects the two other pleas in bar invoked by
the Government of Guatemala. The plea as to the alleged necessity of
previous diplomatic negotiations could only arise if it were held that Mr.
Nottebohm has validly acquired Liechtenstein nationality. Only in that case
would the Government of Liechtenstein be qualified to present his claim to
the Court. Only then could a relevant question arise as to negotiations
between the two Governments concerning the claim. Similar considerations
apply to the plea in bar as to the exhaustion of local remedies. If it were
held that Mr. Nottebohm has not validly acquired the nationality of
Liechtenstein, the question whether he has exhausted remedies in Guatemala
could not arise before the Court.
For these reasons I have voted for the adjournment of the case.
(Signed) Helge Klaestad.
[p34]
Dissenting Opinion of Judge Read
I am unable to concur in the Judgment of the Court, which, holds that the
claim submitted by the Principality of Liechtenstein is inadmissible. It is,
therefore, necessary for me to indicate my conclusions as to the proper
disposition of the plea in bar, and to give my reasons. In doing so, I must
examine certain of the grounds which were relied on by Counsel, in the
Pleadings and during the Oral Proceedings, but which were not adopted as a
basis for the Judgment.
At the outset, I consider that the very nature of a plea in bar controls the
examination of the issues. The allowance of a plea in bar prevents an
examination by the Court of the issues of law and fact which consitute the
merits of the case. It would be unjust to refuse to examine a claim on the
merits on the basis of findings of law or fact which might be reversed if
the merits were considered and dealt with.
Accordingly, it is necessary, at this stage, to proceed upon the assumption
that all of Liechtenstein's contentions on the merits, fact and law, are
well-founded; and that Guatemala's contentions on the merits may be
ill-founded.
There is another aspect of this case which I cannot overlook. Mr. Nottebohm
was arrested on October 19th, 1943, by the Guatemalan authorities, who were
acting not for reasons of their own but at the instance of the United States
Government. He was turned over to the armed forces of the United States on
the same day. Three days later he was deported to the United States and
interned there for two years and three months. There was no trial or inquiry
in either country and he was not given the opportunity of confronting his
accusers or defending himself, or giving evidence on his own behalf.
In 1944 a series of fifty-seven legal proceedings was commenced against Mr.
Nottebohm, designed to expropriate, without compensation to him, all of his
properties, whether movable or immovable. The proceedings involved more than
one hundred and seventy one appeals of various kinds. Counsel for Guatemala
has demonstrated, in a fair and competent manner, the existence of a network
of litigation, which could not be dealt with effectively in the absence of
the principally interested party. Further, all of the cases involved, as a
central and vital issue, the charge against Mr. Nottebohm of treasonable
conduct.
It is common ground that Mr. Nottebohm was not permitted to return to
Guatemala. He was thus prevented from assuming the personal direction of the
complex network of litigation. He was [p35] allowed no opportunity to give
evidence of the charges made against him, or to confront his accusers in
open court. In such circumstances I am bound to proceed on the assumption
that Liechtenstein might be entitled to a finding of denial of justice, if
the case should be considered on the merits.
In view of this situation, I cannot overlook the fact that the allowance of
the plea in bar would ensure that justice would not be done on any plane,
national or international. I do not think that a plea in bar, which would
have such an effect, should be granted, unless the grounds on which it is
based are beyond doubt.
With these considerations in mind, it is necessary to examine the single
issue that the Court must decide in order to reject or allow the plea in bar
based on the ground of nationality. The issue for decision is: whether, in
the circumstances of this case and vis-à-vis Guatemala, Liechtenstein is
entitled, under the rules of international law, to afford diplomatic
protection to Mr.Nottebohm.
It is necessary to deal with the different grounds which have been relied on
in the Pleadings and in the Oral Proceedings.
***
The first ground for holding that the claim is inadmissible, which is
contained in paragraph 2 (a) of the Final Conclusions of Guatemala, may be
stated shortly: that Mr. Nottebohm did not acquire Liechtenstein nationality
in accordance with the law of the Principality. While the Judgment of the
Court does not rely on this ground, I must state my position, in order to
justify my conclusion that the plea in bar as a whole should be joined to
the merits.
Here, the production of the certificate of naturalization, and the adoption
of the claim by Liechtenstein, establish a prima facie case. The Court can
go back of the certificate and disregard it on proof of fraud in the
application for or grant of the naturalization, or in the obtaining or
issuing of the certificate. But there has been no such proof.
It has been argued that the Court can and should examine the Liechtenstein
law and the procedure followed by the Liechtenstein authorities when the
naturalization was granted. It has been contended that they did not comply
with the law and that, as a result of their defaults, the naturalization
granted was a nullity. I have reached the conclusion that the claim cannot
be rejected on the ground of non-compliance with the national law, and shall
give my reasons in summary form.
To begin with, it is necessary to take into account the jurisprudence of
the Permanent Court. Two principles of law have been established. The
judgment in The Mavrommatis Jerusalem Con-[p 36]cessions�Series A, No. 5,
at page 30�settled the rule that the burden of proof is on the party, that
alleges the nullity of a legal act under the national law, to prove it.
The other principle is to be found in a long series of decisions, which
applied the principle: that "municipal laws are merely facts which express
the will and constitute the activities of States" and that the Court does
not interpret the national law as such.
Polish Upper Silesia�Series A, No. 7, page 19.
Serbian Loans�Series A, Nos. 20/21, page 46.
Brazilian Loans�Series A, Nos. 20/21, page 124.
Lighthouses Case (France/Greece)�Series A/B, No. 62, page 22.
Panevezys-Saldutiskis Railway Case�Series A/B, No. 76, page 19.
In the present case, Guatemala has alleged the invalidity or nullity of the
legal act of naturalization under the national law. The burden of proof is
on Guatemala to prove it. But has not furnished any admissible evidence;
such as the testimony of a jurist learned and experienced in Liechtenstein
law, or an opinion from the Highest Court in that country. The case has been
presented as if this Court was competent to interpret the Liechtenstein law
as such, and to pass upon its application to the special circumstances of
this case. It has been argued without consideration of the provisions of the
Liechtenstein law regarding the interpretation of statutes or of the
decisions of its courts.
Accordingly, the contention of the respondent Government, as regards
invalidity under the national law, fails through lack of evidence to support
it.
But this is not merely a case of failure of proof. Even if the Liechtenstein
Law of 1934 is interpreted without regard to the rules of interpretation,
procedure and administrative law in force in that country, it is impossible
to reach the conclusion that the naturalization was a nullity. There is a
fundamental error in the method of interpretation adopted by Counsel, both
in the Pleadings and in the Oral Proceedings.
It has been argued that the Liechtenstein authorities disregarded the
provisions of the Law of 1934 in two respects: it is said that they inverted
the order in which the different steps in the procedure were to be carried
out. It is also said that they did not comply with certain essential
requirements laid down in the Law, The conclusion was reached that the
naturalization was invalid, because of non-conformity with the laws of the
Principality.
This interpretation was based on consideration of particular provisions,
without taking into account the Law as a whole. In particular, it ignored a
provision which is of crucial importance, Article 21, which contains the
following paragraph: [p 37]
Section 21
"The Princely Government may, within five years from the date of acquisition
thereof, deprive a foreign national of the citizenship of the Principality
which has been granted to him, if it appears that the requirements laid down
in this law as governing the grant thereof were not satisfied. It is
entitled, however, at any time, to deprive a person of the citizenship of
the Principality if the acquisition thereof has come about in a fraudulent
manner."
It is clear that the naturalization of Mr. Nottebohm could have been revoked
at any time within five years of the grant, if it had appeared that any of
"the requirements laid down in this law were not satisfied". It is equally
clear that, after the expiration of the five-year period�-i.e. in October
1944�the naturalization became indefeasible, apart from fraud. In such
circumstances, it is not open to me, nearly sixteen years after the event
and in the absence of fraud, to find that the naturalization was invalid
under the Liechtenstein law.
***
The second ground for holding that the claim is inadmissible, which is
contained in paragraph 2 (b) of the Final Conclusions of Guatemala, may be
stated shortly: that naturalization was not granted to Mr. Nottebohm in
accordance with the generally recognized principles in regard to
nationality.
Conclusion 2 (b)is obviously defective. The Court cannot determine
"generally recognized principles" or decide cases on the basis of such
principles. Its competence is limited by the peremptory and mandatory
provisions of Article 38 of the Statute, to decision "in accordance with
international law".
However, the position taken by Counsel makes it clear that the Final
Conclusion 2 (b) was intended to raise the issue of abuse of right.
Abuse of right is based on the assumption that there is a right to be
abused. In the present case it is based upon the assumption that
Liechtenstein had the right under international law to naturalize Mr.
Nottebohm, but that, in view of the special circumstances and the manner in
which the right was exercised, there was an improper exercise of the
right�an exercise so outrageous and unconscionable that its result, i.e. the
national status conferred on Mr. Nottebohm, could not be invoked against
Guatemala.
The doctrine of abuse of right cannot be invoked by one State against
another unless the State which is admittedly exercising its rights under
international law causes damage to the State invoking the doctrine.
As this ground is not relied upon in the Judgment of the Court, it is
unnecessary for me to examine the particular grounds relied [p 38] on by
Counsel. It is sufficient to point out that Liechtenstein caused no damage
to Guatemala, and that it is therefore necessary to reject the Final
Conclusion 2 (b).
***
The third ground for holding that the claim is inadmissible, which is
contained in paragraph 2 (c) of the Final Conclusions of Guatemala, is based
on fraud.
It is impossible to separate the aspects of fraud which are relevant to the
plea in bar from those which concern the merits. The greater part of the
evidence adduced in support of the charge of fraud was contained in
considerably more than one hundred documents. From these documents a few
were selected and brought to the attention of the Court. The remaining
documents were not placed at the disposition of the Court.
In these circumstances, it is not possible for me to found any conclusion
based on fraud at this stage in the case. I am therefore of the opinion that
the Guatemalan Final Conclusion 2 (c) should be joined to the merits.
***
There is another aspect of the question, which must be considered. The
Judgment of the Court is based upon the ground that the naturalization of
Mr. Nottebohm was not a genuine transaction. It is pointed out that it did
not lead to any alteration in his manner of life; and that it was acquired,
not for the purpose of obtaining legal recognition of his membership in fact
of the population of Liechtenstein, but for the purpose of obtaining neutral
status and the diplomatic protection of a neutral State.
This ground, to which I shall refer as the link theory, as it is based on
the quality of the relation between Mr. Nottebohm and Liechtenstein, cannot
be related to the Final Conclusions of Guatemala, or to the argument in the
Pleadings and Oral Proceedings.
Accordingly, the matter is governed by the principle which was applied by
this Court in the Ambatielos case (Jurisdiction), Judgment of July 1st,
1952, I.C.J. Reports 1952, at page 45:
"The point raised here has not yet been fully argued by the Parties, and
cannot, therefore, be decided at this stage."
Indirectly, some aspects were discussed as elements of abuse of right, but
not as a rule of international law limiting the power of a sovereign State
to exercise the right of diplomatic protection in respect of one of its
naturalized citizens.[p 39]
As a Judge of this Court, I am bound to apply the principle of international
law, thus declared by this Court. I cannot concur in the adoption of this
ground�not included in the Conclusions and not argued by either Party�as the
basis for the allowance of the plea in bar, and for the prevention of its
discussion, consideration and disposition on the merits.
Nevertheless, in view of the course followed by the majority, I must examine
this ground for holding that the grant of naturalization did not give rise
to a right of protection, and indicate some of the difficulties which
prevent my concurrence.
***
To begin with, I do not question the desirability of establishing some
limitation on the wide discretionary power possessed by sovereign States:
the right, under international law, to determine, under their own laws, who
are their own nationals and to protect such nationals.
Nevertheless, I am bound, by Article 38 of the Statute, to apply
international law as it is�positive law�and not international law as it
might be if a Codification Conference succeeded in establishing new rules
limiting the conferring of nationality by sovereign States. It is,
therefore, necessary to consider whether there are any rules of positive
international law requiring a substantial relationship between the
individual and the State, in order that a valid grant of nationality may
give rise to a right of diplomatic protection.
Both Parties rely on Article 1 of The Hague Draft Convention of 1930 as an
accurate statement of the recognized rules of international law. Commenting
on it, the Government of Guatemala stated in the Counter-Memorial (p. 7)
that "there can be no doubt that its Article 1 represented the existing
state of international law". It reads as follows:
"It is for each State to determine under its own law who are its nationals.
This law shall be recognized by other States in so far as it is consistent
with international conventions, international custom, and the principles of
law generally recognized with regard to nationality."
Applying this rule to the case, it would result that Liechtenstein had the
right to determine under its own law that Mr. Nottebohm was its own
national, and that Guatemala must recognize the Liechtenstein law in this
regard in so far as it is consistent with international conventions,
international custom, and the principles of law generally recognized with
regard to nationality. I shall refer to this quality, the binding character
of naturalization, as opposability. [p 40]
No "international conventions" are involved and no "international custom"
has been proved. There remain "the principles of law generally recognized
with regard to nationality", and it is on this qualification of the
generality of the rule in Article 1 that Guatemala has relied both in the
Pleadings and in the Oral Proceedings.
In this regard the Government of Guatemala stated in paragraph 16 of the
Counter-Memorial:
"As to the first point, it is necessary in the first place to determine
what, in the absence of general international conventions binding upon the
Principality of Liechtenstein, is the content of international law in the
light of which the international validity of that State's law must be
examined.
It must be acknowledged that in this connection there is no system of
customary rules nor any rigid principles by which States are bound.
As M. Scelle has indicated, it is rather in the realm of 'abuse of power'
(or of competence or of right) that the courts must consider in each case
whether there has been a breach of international law (Scelle�Cours de Droit
international public, Paris, 1948, p. 84)."
This position was maintained in the Oral Proceedings.
It is therefore clear that the Government of Guatemala considers that there
are no firm principles of law generally recognized with regard to
nationality, but that the right of Liechtenstein to determine under its own
law that Mr. Nottebohm was its own national, and the correlative obligation
of Guatemala to recognize the Liechtenstein law in this
regard�opposability�are limited not by rigid rules of international law, but
only by the rules regarding abuse of right and fraud.
***
I have mentioned that no "international conventions" are involved and that
no "international custom has been proved". It has been conceded by Guatemala
that "there is no system of customary rules", but the link theory is
supported by the view that certain international conventions suggest the
existence of a trend. I must deal with this point before considering whether
the firm view of the law on which the two Parties are in complete agreement
should be rejected.
The first international convention is Article 3 (2) of the Statute, which
deals with the problem of double nationality. It has nothing to do with
diplomatic protection and is not in any sense relevant to the problem under
consideration. It is true that it accepts as a test in the case of double
nationality the place in which the person "ordinarily exercises civil and
political rights". Even if this test [p 41] can be dragged from an entirely
different setting and applied to the present case, it does not contribute
much to the solution. Mr. Nottebohm has, in the course of the last fifty
years, been linked with four States. He was a German national during
thirty-four years, but exercised neither civil nor political rights in that
country. He was ordinarily resident in Guatemala for nearly forty years, but
exercised no political rights at any time in that country and has been
prevented from exercising important civil rights for twelve years. He was a
prisoner in the United States of America for more than two years, where he
exercised neither civil nor political rights. Since his release, he has been
accorded full civil rights in the United States and has exercised them
freely, but he has had no political rights in that country. He has had full
civil rights in Liechtenstein for nearly sixteen years, and has exercised
full political rights for nine. Article 3 (2) certainly does not weaken the
Liechtenstein position.
The United States of America, between the years 1868 and 1928, concluded
bilateral conventions with about eighteen countries, not including
Liechtenstein, which limited the power of protecting naturalized persons who
returned to their countries of origin. The same sort of restriction on the
opposability of naturalization was incorporated in a Pan-American Convention
concluded at Rio de Janeiro in 1906. Liechtenstein was precluded from
participation. Venezuela refused to sign the Convention. Bolivia, Cuba,
Mexico, Paraguay, Peru and Uruguay signed the Convention but did not ratify
it. Brazil and Guatemala have both denounced its provisions.
The fact that it was considered necessary to conclude the series of
bilateral conventions and to establish the multilateral Convention referred
to above indicates that the countries concerned were not content to rely on
the possible existence of a rule of positive international law qualifying
the right of protection. Further, even within that part of the Western
hemisphere which is South of the 49th Parallel, the ratifications of the
multilateral Convention were not sufficiently general to indicate consensus
of the countries concerned. Taking them together, the Conventions are too
few and far between to indicate a trend or to show the general consensus on
the part of States which is essential to the establishment of a rule of
positive international law.
***
It is suggested that the link theory can be justified by the application to
this case of the principles adopted by arbitral tribunals in dealing with
cases of double nationality. [p 42]
There have been many instances of double nationality in which international
tribunals have been compelled to decide between conflicting claims. In such
cases, it has been necessary to choose; and the choice has been determined
by the relative strength of the association between the individual concerned
and his national State. There have been many instances in which a State has
refused to recognize that the naturalization of one of its own citizens has
given rise to a right of diplomatic protection, or in which it has refused
to treat naturalization as exempting him from the obligations incident to
his original citizenship, such as military service.
But the problems presented by conflicting claims to nationality and by
double nationality do not arise in this case. There can be no doubt that Mr.
Nottebohm lost his German nationality of origin upon his naturalization in
Liechtenstein in October 1939. I do not think that it is permissible to
transfer criteria designed for cases of double nationality to an essentially
different type of relationship.
It is noteworthy that, apart from the cases of double nationality, no
instance has been cited to the Court in which a State has successfully
refused to recognize that nationality, lawfully conferred and maintained,
did not give rise to a right of diplomatic protection.
***
There are other difficulties presented by the link theory. In the case of
Mr. Nottebohm, it relies upon a finding of fact that there is nothing to
indicate that his application for naturalization abroad was motivated by any
desire to break his ties with the Government of Germany. I am unable to
concur in making this finding at the present stage in the case. He had no
ties with the Government of Germany, although there is abundant evidence to
the effect that he had links with the country, as distinct from the
Government. There are substantial difficulties which need to be considered.
In the first place, I do not think that international law, apart from abuse
of right and fraud, permits the consideration of the motives which led to
naturalization as determining its effects.
In the second place, the finding depends upon the examination of issues
which are part of the merits and which cannot be decided when dealing with
the plea in bar.
In the third place, the breaking of ties with the country of origin is not
essential to valid and opposable naturalization. International law
recognizes double nationality and the present trend in State practice is
towards double nationality, which necessarily involves maintenance of the
ties with the country of [p 43] origin. It is noteworthy that in the United
Kingdom the policy of recognizing the automatic loss of British nationality
on naturalization abroad, which had been adopted in 1870, was abandoned in
1948. Under the new British legislation, on naturalization abroad, a British
citizen normally maintains his ties with his country of origin.
In the fourth place, I am unable to agree that there is nothing to indicate
that Mr. Nottebohm's naturalization was motivated by a desire to break his
ties with Germany. There are three facts which prove that he was determined
to break his ties with Germany. The first is the fact of his application
for naturalization, the second is the taking of his oath of allegiance to
Liechtenstein, and the third is his obtaining a certificate of
naturalization and a Liechtenstein passport.
***
The link theory is based, in part, on the fact that Liechtenstein waived the
requirement of three years' residence. At the time of the naturalization,
Mr. Nottebohm was temporarily resident in Liechtenstein; but he had not
established domicile, and had no immediate intention to do so. But I have
difficulty in regarding lack of residence as a decisive factor in the case.
It has been conceded by Counsel for Guatemala that "the majority of States,
in one form or another, either by their law or in their practice, allow for
exceptional cases in which they exempt the applicant for naturalization from
the requirement of proof of long-continued prior residence". This is another
point on which both Parties are in agreement, and the position has been
fully established in the case.
Counsel for Guatemala proceeded to contend that the lack of residence, in
the circumstances, might be taken into account in determining whether there
had been an abuse of right by Liechtenstein, but I have already dealt with
that aspect of the case.
I am of the opinion that the parties were right, and that, under the rules
of positive international law, Liechtenstein had the discretionary right to
dispense with the residential requirement. That being so, I cannot�in the
absence of fraud or injury�-review the factors which may have influenced
Liechtenstein in the exercise of a discretionary power. It is not surprising
that no precedent has been cited to the Court in which�in the absence of
fraud or injury to an adverse party�the exercise of a discretionary power,
possessed by a State under the principles of positive international law, has
been successfully questioned. If there had been such precedent, it would
certainly have been brought to the attention of the Court. [p 44]
***
It is also suggested that the naturalization of Mr. Nottebohm was lacking in
genuineness, and did not give rise to a right of protection, because of his
subsequent conduct: that he did not abandon his residence and his business
activities in Guatemala, establish a business in Liechtenstein, and take up
permanent residence. Along the same lines, it is suggested that he did not
incorporate himself in the body politic which constitutes the Liechtenstein
State.
In considering this point, it is necessary to bear in mind that there is no
rule of international law which would justify me in taking into account
subsequent conduct as relevant to the validity and opposability of
naturalization. Nevertheless I am unable to avoid consideration of his
conduct since October 1939.
I have difficulty in accepting the position taken with regard to the nature
of the State and the incorporation of an individual in the State by
naturalization. To my mind the State is a concept broad enough to include
not merely the territory and its inhabitants but also those of its citizens
who are resident abroad but linked to it by allegiance. Most States regard
non-resident citizens as a part of the body politic. In the case of many
countries such as China, France, the United Kingdom and the Netherlands, the
non-resident citizens form an important part of the body politic and are
numbered in their hundreds of thousands or millions. Many of these
non-resident citizens have never been within the confines of the home State.
I can see no reason why the pattern of the body politic of Liechtenstein
should or must be different from that of other States.
In my opinion Mr. Nottebohm incorporated himself in the nonresident part of
the body politic of Liechtenstein. From the instant of his naturalization to
the date of the Judgment of this Court, he has not departed in his conduct
from the position of a member of the Liechtenstein State. He began by
obtaining a passport in October 1939 and a visa from the Consulate of
Guatemala. On his arrival in Guatemala in January 1940, he immediately
informed the Guatemalan Government and had himself registered as a citizen
of Liechtenstein. Upon his arrest in October 1943, he obtained the
diplomatic protection of Liechtenstein through the medium of the Swiss
Consul. On the commencement of the confiscation of his properties, he
obtained diplomatic protection from the same source and channel. After his
release from internment he was accorded full civil rights by the Government
of the United States of America and instituted and successfully maintained
proceedings and negotiations in Washington with a view to obtaining the
[p45] release of assets which had been blocked, upon the ground that he was
a national of Liechtenstein. During the last nine years he has been an
active and resident member of the body politic of that State.
As regards residence and business, there is no rule of international law
requiring a naturalized person to undertake business activities and to
reside in the country of his allegiance. However, considering the question
of subsequent conduct, I am unable to disregard what really did happen.
To begin with, Mr. Nottebohm was 58 years of age at the time �or within two
years of the normal retirement age in the type of business activity in which
he was engaged. The evidence shows that he was actually contemplating
retirement. In October 1939 he was largely occupied with plans to save the
business, but I find it hard to believe that he was not also thinking in
terms of retirement and that Vaduz was in his mind. Out of the 15 1/2 years
which have elapsed since naturalization, Mr. Nottebohm has spent less than
four in Guatemala, more than two in the United States, and nine years in
Vaduz.
It is true that, in the applications which were made in 1945 on his behalf
with a view to his return to Guatemala, it was stated that he intended to
resume his domicile in that country. But I am unable to overlook the fact
that his return was absolutely essential in order to conduct the 57 law
suits to which I have referred above and to clear his own good name from the
charges of disloyalty which had been made against him. I do not think that
too much weight can be given to the statements made by his kinsfolk in
Guatemala with a view to obtaining the right of re-admission to that
country.
The essential fact is that when, in 1946, he was released in midwinter in
North Dakota, deprived of all that he possessed in Guatemala and with all of
his assets in the United States blocked, be went back to the country of his
allegiance. In my opinion, the fact of his return to Liechtenstein and of
his admission to Liechtenstein is convincing evidence of the real, and
effective character of his link with Liechtenstein. It was an unequivocal
assertion by him through his conduct of the fact of his Liechtenstein
nationality, and an unequivocal recognition of that fact by Liechtenstein.
***
Further, I have difficulty in accepting two closely related findings of
fact. The first is that the naturalization did not alter the manner of life
of Mr. Nottebohm. In my opinion, a naturalization which led ultimately to
his permanent residence in the country of his allegiance altered the manner
of life of a merchant who had hitherto been residing in and conducting his
business activities in Guatemala.[p46]
The second finding is that the naturalization was conferred in exceptional
circumstances of speed and accommodation. There are many countries, beside
Liechtenstein, in which expedition and good will are regarded as
administrative virtues. I do not think that these qualities impair the
effectiveness or genuineness of their administrative acts.
***
The link theory has been based on the view that the essential character of
naturalization and the relation between a State and its national justify the
conclusion that the naturalization of Mr. Nottebohm, though valid, was
unreal and incapable of giving rise to the right of diplomatic protection. 1
have difficulty in adopting this view and it becomes necessary to consider
the nature of naturalization and diplomatic protection and the juridical
character of the relationships which arose between Guatemala and
Liechtenstein on Mr. Nottebohm's return in 1940.
Nationality, and the relation between a citizen and the State to which he
owes allegiance, are of such a character that they demand certainty. When
one considers the occasions for invoking the relationship�emigration and
immigration; travel; treason; exercise of political rights and functions;
military service and the like�it becomes evident that certainty is
essential. There must be objective tests, readily established, for the
existence and recognition of the status. That is why the practice of States
has steadfastly rejected vague and subjective tests for the right to confer
nationality�sincerity, fidelity, durability, lack of substantial
connection�and has clung to the rule of the almost unfettered discretionary
power of the State, as embodied in Article 1 of The Hague Draft Convention
of 1931.
Nationality and diplomatic protection are closely inter-related. The general
rule of international law is that nationality gives rise to a right of
diplomatic protection.
Fundamentally the obligation of a State to accord reasonable treatment to
resident aliens and the correlative right of protection are based on the
consent of the States concerned. When an alien comes to the frontier,
seeking admission, either as a settler or on a visit, the State has an
unfettered right to refuse admission. That does not mean that it can deny
the alien's national status or refuse to recognize it. But by refusing
admission, the State prevents the establishment of legal relationships
involving rights and obligations, as regards the alien, between the two
countries. On the other hand, by admitting the alien, the State, by its
voluntary act, brings into being a series of legal relationships with the
State of which he is a national.[p 47]
As a result of the admission of an alien, whether as a permanent settler or
as a visitor, a whole series of legal relationships come into being. There
are two States concerned, to which I shall refer as the receiving State and
the protecting State. The receiving State becomes subject to a series of
legal duties vis-à-vis the protecting State, particularly the duty of
reasonable and fair treatment. It acquires rights vis-à-vis the protecting
State and the individual, particularly the rights incident to local
allegiance and the right of deportation to the protecting State. At the same
time the protecting State acquires correlative rights and obligations
vis-à-vis the receiving State, particularly a diminution of its rights as
against the individual resulting from the local alle-giance, the right to
assert diplomatic protection and the obligation to receive the individual on
deportation. This network of rights and obligations is fundamentally
conventional in its origin�it begins with a voluntary act of the protecting
State in permitting the individual to take up residence in the other
country, and the voluntary act of admission by the receiving State. The
scope and content of the rights are, however, largely defined by positive
international law. Nevertheless, the receiving State has control at all
stages because it can bring the situation to an end by deportation.
The position is illustrated by what actually happened in the present case.
Mr. Nottebohm went to Guatemala 50 years ago as a German national and as a
permanent settler. Upon his admission as an immigrant, the whole series of
legal relationships came into being between Guatemala and Germany. Guatemala
was under a legal obligation vis-à-vis Germany to accord reasonable and fair
treatment. Guatemala had the right to deport Mr. Nottebohm to Germany and to
no other place. Germany had the right of diplomatic protection and was
under the legal obligation to receive him on deportation.
As a result of the naturalization in October 1939, the whole network of
legal relationships between Guatemala and Germany as regards Mr. Nottebohm
came to an end.
Mr. Nottebohm returned to Guatemala in January 1940, having brought about a
fundamental change in his legal relationships in that country. He no longer
had the status of a permanently settled alien of German nationality. He was
entering with a Liechtenstein passport and with Liechtenstein protection.
The first step taken by him was the obtaining of a visa from the Guatemalan
Consul before departure. On arrival in Guatemala he immediately brought his
new national status to the attention of the Guatemalan Government on the
highest level. His registration under the Aliens' Act as a German national
was cancelled and he was registered as a Liechtenstein national. From the
end of January 1940 he was treated as such in Guatemala.[p 48]
In my opinion, as a result of Mr. Nottebohm's admission to Guatemala and
establishment under the Guatemalan law as a resident of Liechtenstein
nationality, a series of legal relationships arose between Guatemala and
Liechtenstein, the nature of which has been sufficiently indicated above.
From that time on Guatemala had the right to deport Mr. Nottebohm to
Liechtenstein, and Liechtenstein was under the correlative obligation to
receive him on deportation. Liechtenstein was entitled as of right to
furnish diplomatic protection to Mr. Nottebohm in Guatemala, and when that
right was exercised in October 1943, it was not questioned by Guatemala.
I am unable to concur in the view that the acceptance of Mr. Nottebohm by
the Guatemalan authorities as a settler of Liechtenstein nationality did not
bring into being a relationship between the two Governments. I do not think
that the position of Guatemala is in any way different from that of other
States and I do not think that it was possible for Guatemala to prevent the
coming into being of the same kind of legal relationships which would have
taken place if Mr. Nottebohm had landed as a settler in any other country.
When a series of legal relationships, rights and duties exists between two
States, it is not open to one of the States to bring the situation to an end
by its unilateral action. In my opinion such relationships came into being
between Guatemala and Liechtenstein when the former State accepted Mr.
Nottebohm in 1940. It was open to Guatemala to terminate the position by
deportation but not to extinguish the right of Liechtenstein under
international law to protect its own national without the consent of that
country.
***
There is one more aspect of this question to which I must refer. It is
suggested that Mr. Nottebohm obtained his naturalization with the sole
motive of avoiding the legal consequences of his nationality of origin. He
was a German and Germany was at war, but not with Guatemala. There can be
little doubt that this was one of his motives, but whether it was his sole
motive is a matter of speculation.
There is apparently abundant evidence on this aspect of the case to which I
have not had access; evidence which would prove or disprove the contention
that the naturalization was part of a fraudulent scheme. But it is not
permissible for me to look at that evidence in dealing with a plea in bar. I
must proceed at this stage on the assumption that the naturalization was
obtained in good faith and without fraud.
It has been complained that the purpose of the naturalization was to avoid
the operation of war-time measures in the event that Guatemala ultimately
became involved in way with Germany. In [p 49] October 1939, if Mr.
Nottebohm read the newspapers�which is highly probable�he knew that
Guatemala, in concert with the other Pan-American States, was making every
effort to maintain neutrality. It is far more likely that, remembering the
experience of Nottebohm Hermanos during the first World War, he was seeking
to protect his assets in the United States. The suggestion that he foresaw
Guatemalan belligerency is not supported by any evidence and I cannot accept
it.
Further, even if his main purpose had been to protect his property and
business in the event of Guatemalan belligerency, I do not think that it
affected the validity or opposability of the naturalization. There was no
rule of international law and no rule in the laws of Guatemala at the time
forbidding such a course of action. Mr. Nottebohm did not conceal me
naturalization and. informed the Government of Guatemala on the highest
level on his return to the country.
I do not think that I am justified in taking Mr. Nottebohm's-motives into
consideration�in the absence of fraud or injury to Guatemala�but even if
this particular motive is considered, it cannot be regarded as preventing
the existence of the right of diplomatic protection.
***
In view of the foregoing circumstances it is necessary for me to reach the
conclusion that the two Parties before the Court were right in adopting the
position that the right of Liechtenstein to determine under its own law that
Mr. Nottebohm was its own national, and the correlative obligation of
Guatemala to recognize the Liechtenstein law in this regard are limited not
by rigid rules of international law, but only by the rules regarding abuse
of right and fraud.
Accordingly I am of the opinion that the Court should reject the Guatemalan
Final Conclusions 2 (a) and 2 (b), join the Conclusion 2 (c) to the merits,
and proceed to an examination of the other pleas in bar contained in the
Guatemalan Final Conclusions 1 and 3.
(Signed) J.E. Read
[p 50]
Dissenting Opinion of M.Guggenheim, Judge �Ad Hoc�
[Translation ]
Having, to my regret, been unable to concur in the Judgment of the Court I
feel it my duty to state my dissenting opinion.
In my view, the submission of the Government of Guatemala that the claim of
Liechtenstein should be declared inadmissible on the ground that F.
Nottebohm does not possess Liechtenstein nationality should have been joined
to the Merits and the proceedings adjourned to enable the Government of
Liechtenstein to obtain and collect documents in support of its observations
on the new documents produced by Guatemala. I have reached this conclusion
for the following reasons:
I
1. Every legal system itself lays down the requisite conditions for the
validity of municipal legal acts. This also applies to the legal system of
Liechtenstein with respect to the grant of its nationality; from the point
of view of the Court, that is a procedure under municipal law.
Naturalization is a fact which has to be proved for the purposes of
international proceedings and the Court is entitled to ascertain, at least
up to a certain point, whether the facts relied upon correspond to the real
and effective situation, that is to say whether the naturalization is
genuine and effective from the point of view of municipal law. The power of
enquiring into the circumstances of a naturalization is not therefore
limited to an examination of certain conditions, as was maintained, for
example, in the Salem case in the dissenting opinion of the American
arbitrator, Nielsen, who considered that the researches of an international
tribunal should be confined exclusively to the question whether the
certificate of naturalization was obtained by fraud or favour (see Reports
of International Arbitral Awards, United Nations, Volume II, pp. 1204 et
sqq.). According to the prevailing view in international judicial decisions,
there is no doubt that an international tribunal is entitled to investigate
the circumstances in which a certificate of nationality has been granted.
This view was adopted in the decision of the German-Rumanian Mixed Arbitral
Tribunal, of November 6th, 1924, in the case of Meyer-Wildermann v. Stinnes
heirs and others (Reports of the Decisions of the Mixed Arbitral Tribunals,
Volume IV, p. 842). Indeed the Tribunal in this case expressly reserved its
right to investigate the circumstances of the official recognition of
nationality. Among the many decisions supporting the right of international
courts and arbitral
[p 51] tribunals to examine certificates of nationality, reference may also
be made to the decision of Commissioner Nielsen in the case of Hatton v.
United Mexican States (Reports of International Arbitral Awards, United
Nations, September 26th, 1928, Volume IV, p. 331) which rightly places
emphasis on the obligation to furnish proof of nationality."Convincing proof
of nationality is requisite not only from the standpoint of international
law, but as juris-dictional requirement."
2. These decisions are in accordance with a more general rule: the rule
requiring proof of nationality is only a particular application of the rule
that an international tribunal is competent to decide upon the validity of a
rule or an act under municipal law if such rule or act is relevant to the
international dispute under examination. The rule or act under municipal law
is to be regarded merely as a fact but such facts may be proved "by means of
any researches which the Court may think fit to undertake or to cause to be
undertaken". (P.C.I.J., Brazilian Loans case, Series A 20/21, p. 124).
Moreover the same decision states: "all that can be said in this respect is
that the Court may possibly be obliged to obtain knowledge regarding the
municipal law which has to be applied". Cf. also P.C.I.J., Series A, No. 7,
p. 19; Series A, Nos. 20/21, p. 46; Series A/B, No. 62, p. 22; Series A/B,
No. 76, p.19.
3. An international tribunal is not therefore bound to confine itself to the
statements of national authorities relating to their application of the
rules of municipal law. Accordingly it may consider the facts in a manner
different from that of municipal courts. But an international tribunal must
never lose sight of the fact that it is called upon to consider municipal
law for the purpose of exercising a competence conferred on it by
international law. It is not its function to decide upon the domestic
validity of municipal law, that is to say, to exercise the powers of a court
of appeal with regard to municipal law. What then is its function ? An
international tribunal must only be concerned with municipal law and, in
particular, with nationality, as a fact determining the admissibility of a
claim brought before an international judicial organ. The plaintiff must
therefore prove that nationality has been conferred by means of a valid act
in accordance with the municipal law of the claimant State; and the
defendant, if he disputes this, must establish the contrary (P.C.I.J.,
Series A, No. 5, P. 30).
4. I have reached the conclusion that it was for the Court to determine
whether F. Nottebohm validly and effectively acquired nationality in
accordance with the municipal law of Liechtenstein in such a manner that the
validity and effectiveness of the naturalization cannot be the subject of
any doubt. [p 52]
In this connexion, however, the Court must confine itself within certain
clearly defined limits. This limitation upon the competence of the Court is
based on two entirely different considerations: on the one hand, when
investigating the application of the municipal law by the municipal
authorities, the Court must confine itself to examining whether such
application is in accordance with the obligations which international law
imposes on the State in question; on the other hand, having regard to the
fact that, according to the practice of international law, municipal law
does not form part of the body of legal rules which it applies directly, the
Court is obliged to reach a decision in regard to municipal law on the basis
of evidence submitted to it in the proceedings. It cannot freely examine the
application and interpretation of municipal law but can merely enquire into
the application of municipal law as a question of fact, alleged or disputed
by the parties and, in the light of its own knowledge, in order to determine
whether the facts are correct or incorrect.
5. Since the law of Liechtenstein applies primarily within the national
sphere, it is the competent State authorities, and these authorities alone,
which are entitled to determine whether the law relating to naturalization
has been correctly applied, that is to say, whether, in the present case,
sufficient reasons existed for waiving the requirement that the applicant
must have "ordinarily resided in the territory of the Principality of
Liechtenstein at least three years" and whether the application for
naturalization was "deserving [of] special consideration" and also whether
the applicant could be exempted from this requirement "by way of exception"
(see Art. 6 of the Liechtenstein Law on the Acquisition and Loss of
Nationality of 4th January, 1934). Even the State Court of Liechtenstein is
incompetent to review the considerations of expediency upon which legal
acts, decided upon and applied by virtue of a discretionary power of the
administrative authorities, are based. This is in accordance with the
generally recognized principles of Swiss and German administrative law. It
has, moreover, received confirmation in the judicial decisions of the State
Court of the Principality, as is shown by its decision of 20th July, 1950,
concerning the grant of a concession for a hotel
(Gastbewerbehaus-Konzession). (See Rapport de Gestion of the Princely
Government to the Diet for the year 1950, pp. 83 et sqq.) It was there
stated that, in accordance with Article 40 of the Law relating to the State
Court, the latter could only give decisions on questions of law and not with
regard to the discretionary power of administrative authorities. In my
opinion the Court is not entitled to assume the functions of a supervisory
judicial body which does not exist under the domestic law.
6. If the question of F. Nottebohm's acquisition of Liechtenstein
nationality is considered from this angle, it is beyond doubt that [p 53] he
must be regarded as a national of the Principality.A naturalization to
which the supreme organs of the Principality, the Reigning Prince and the
Diet, have given their consent, in accordance with Article 12 of the Law on
the Acquisition and Loss of Nationality� as they did in the case of F.
Nottebohm�is a valid naturalization. Moreover there is also a presumption
juris and de jure in favour of the validity of the acts of these supreme
authorities, since Liechtenstein law does not provide for the judicial
control of acts performed by these authorities in the exercise of their
discretionary power.
7. Moreover, in order to determine the validity of a naturalization, an
international tribunal must also bear in mind that, from the moment of his
naturalization, Liechtenstein has never ceased to regard F. Nottebohm as one
of its nationals; this attitude was likewise adopted by Switzerland, the
Power representing Liechtenstein interests abroad, as appears from the
Certificate of the Swiss Clearing Office of 24th July, 1946 (Reply, Annex
18, p. 90), and probably also by Guatemala, at least until a date which it
is difficult to determine from the documents. Finally, F. Nottebohm, who in
fact lost his German nationality in consequence of his naturalization, has
never invoked the protection of any State other than Liechtenstein; he
returned to Liechtenstein in 1946 and never changed his residence
thereafter.
II
1. In addition to the question whether Liechtenstein nationality was validly
and effectively granted to F. Nottebohm according to Liechtenstein law, a
further question arises, as is stated in one of the Conclusions of
Guatemala, namely, whether Liechtenstein nationality was granted to F.
Nottebohm in accordance with the generally recognized principles in regard
to nationality. In my opinion, however, it is not this abstract problem
which calls for consideration in the present case, but rather the more
concrete problem of determining whether diplomatic protection resulting from
the grant of Liechtenstein nationality can be relied upon as against
Guatemala in virtue of the general rules of international law.
2. For this diplomatic protection by Liechtenstein might be inoperative for
two different reasons which must be clearly distinguished. In the first
place, the nationality of F. Nottebohm may not in itself be valid on the
international level and this would entail its invalidity, with the result
that Liechtenstein could not exercise its right of diplomatic protection.
Alternatively, it is possible that the nationality of F. Nottebohm might, in
itself, be valid from the international standpoint but could not be relied
upon as against States in regard to which Liechtenstein might seek to
exercise diplomatic protection in the same circumstances as in regard to
Guatemala.[p 54]
3. International law furnishes examples of situations in which the grant of
nationality is invalid, with the direct consequence that it cannot form the
basis of diplomatic protection. The inadmissibility of a claim on the ground
that diplomatic protection cannot be invoked is then merely the result of
the absence of the effects of nationality on the international level. This
also gives rise to other consequences, such as the non-recognition of the
personal status which, being claimed on the basis of the grant of
nationality, is held to be null and void, or the loss of the right to claim
the benefit of treaty rights reserved to nationals of the State concerned.
If, on the international level, we examine the cases in which the absence of
a valid bond between the State and the individual to whom the State has
granted its nationality has been recognized in practice, it will be found
that such a bond has only been held to be lacking when the person concerned
possessed a second nationality or when his State of adoption has granted its
nationality by compulsion, that is to say, without the consent of the person
concerned, or without the State whose nationality is to be lost having
consented to the withdrawal of its own nationality.
It is in such circumstances and in such circumstances alone, where the bond
between the State and the individual is lacking to so great an extent, that
third States are not bound to recognize the naturalization nor to accede to
a claim to the right to exercise protection. Thus third States are not bound
to consider the children of foreign diplomats born in the territory of a
State which attributes its nationality to them as nationals of that State
(cf. Article 12 of The Hague Convention of 1930 on Certain Questions
relating to the Conflict of Nationality Laws). The ownership of land is not
by itself a sufficient legal title for the grant of nationality (cf. the
awards of the German-Mexican Claims Commission, American Journal of
International Law, 1933, p. 69). The Ordinance of the German Reich of
August 23rd, 1942, which authorized the grant of German nationality to
certain classes of the population in territories not subject to German
sovereignty but occupied by Germany, was not bound to be recognized by third
States because it was contrary to certain obligations binding on Germany
under general international law (cf. Annuaire suisse de droit international,
Vol. I, 1944, pp. 79 et sqq.). The compulsory reintegration of a former
national resident abroad is unlawful if the person concerned has lost his
nationality by its withdrawal and if a new bond has not been created between
him and the State wishing to reintegrate him in his former nationality
(Jugdments of the Swiss Federal Court, Vol. 72,1, p. 410; Vol. 74,1, pp. 346
et sqq.).
All these situations are, however, somewhat exceptional. In the case of F.
Nottebohm, the grant of Liechtenstein nationality did [p 55] not fall within
any of these categories, all the more so since he voluntarily acquired
Liechtenstein nationality and by so doing automatically lost his German
nationality by virtue of Article 25 of the German Nationality Law of 22nd
July, 1913, a fact which is, in my opinion, of vital importance for
determining the "effective-ness" of Liechtenstein naturalization on the
international level. No proof has been furnished in the proceedings to the
effect that F. Nottebohm availed himself of the right granted by this
Article, according to which nationality was not lost by a person who, before
acquiring a foreign nationality, obtained from the competent authorities of
his State a written authorization to retain his original nationality. On the
contrary, the certificate of the Senate of the Free Hanseatic City of
Hamburg of 15th June, 1954, attests the loss of German nationality by F.
Nottebohm in consequence of his naturalization in Liechtenstein (Reply,
Annex 19, p. 91).
4. Are there other situations, apart from those which have been referred to,
in which third States are entitled to regard the naturalization of a
foreign national as inoperative when the foreign national has agreed to the
grant of nationality and when his former nationality has not been retained?
To be justified in saying so, it would be necessary to point to repeated and
recurrent acts on the international level, which would establish that, in
circumstances identical with or similar to those in which naturalization was
granted to F. Nottebohm by Liechtenstein, third States have refused to
recognize the naturalization so that it can be said that an established
usage has developed displaying the characteristics of a general practice
accepted as law (Article 38, paragraph 1 (b), of the Statute of the Court
and P.C.I.J., Series A, No. 10, p. 28; I.C.J. Asylum case, Reports 1950, pp.
276 et sqq.). No evidence of such a custom, which would forbid the grant of
nationality in the circumstances in which Liechtenstein granted her
nationality to F. Nottebohm, has been given in these proceedings. It is not
sufficient for this purpose merely to affirm�without any evidence�that
there is no other State law permitting naturalization in the circumstances
in which it was granted to F. Nottebohm.
5. Moreover, none of the attempts made to define the "bond of attachment"
according to criteria other than those which have just been mentioned and
which are in accordance with existing international law, has succeeded.
This failure to arrive at such a definition is not fortuitous. It arises
from the fact that in order to define the bond necessary to make
naturalization binding, it is sought to supplement the objective criteria
(absence of compulsion in relation to the applicant; dual nationality; the
grant of nationality without withdrawal of nationality by the State to
which the naturalized person formerly belonged) by subjective considerations
such as the "genuineness of the application", "loyalty to the new State",
"creation of a centre of economic interests in the new State", "the [p 56]
intention to become integrated in the national community"; or, again, rules
are stated which are in no way in accordance with present international
practice, or vague principles are formulated which would open the door to
arbitrary decisions. International law does not, for example, in any way
prohibit a State from claiming as its nationals, at the moment of their
birth, the descendants of its nationals who have been resident abroad for
centuries and whose only link with the State which grants its nationality is
to be found in descent, without the requirement of any other element
connecting them with that State, such as religion, language, social
conceptions, traditions, manners, way of life, etc. (see, for example, Swiss
Civil Code, Art. 263, para. 1, 270, 324, para. 1; and Art. 10 of the Federal
Law on the Acquisition and Loss of Swiss Nationality of September 29th,
1952; Art. 4 of the Liechtenstein Law on the Acquisition and Loss of
Nationality). It is difficult to see how it can be maintained that the
conditions necessary to render naturalization valid and effective on the
international level have only been complied with if at the time of
application for naturalization there existed one of those subjective bonds
of attachment which have just been referred to.
6. In order to judge as to the bond between the State and its national, that
is to say, in order to ascertain whether this bond is real and effective and
not merely fictitious, international law only has regard to the external
elements of legal facts to which it attaches certain consequences, without
concerning itself with the mental attitude of the legal person responsible
for a juridical act such as the act of naturalization, and without
considering the motives (which it is very difficult to determine), which
have led the individual to apply for naturalization. This view is in no way
inconsistent with the provisions of Article 1 of the Convention on Certain
Questions relating to the Conflict of Nationality Laws adopted by the
Conference for the Codification of International Law, held at The Hague in
1930. According to this Article, the law enacted by a State for determining
who are its nationals "shall be recognized by other States in so far as it
is consistent with .... international custom and the principles of law
generally recognized with regard to nationality". This rule, the correct
interpretation of which has been the subject of dispute among writers,
contains no criterion requiring an "effective" bond in the case of
nationality. It merely refers to the rules of international custom and the
principles of law generally recognized with regard to nationality,
principles which do not forbid the grant of nationality in the circumstances
in which Liechtenstein granted its nationality to F. Nottebohm.
7. Nor is it possible to maintain that the bond established between a State
and its national is in all circumstances closer than that existing between a
State and an individual connected with it by some other link, as, for
example, permanent residence. When the [p 57] development of modern law in
civilized States is closely considered, it is even possible to affirm that
the rights and duties of an individual vis-a-vis the State of his permanent
residence, are frequently more numerous than those which link him to the
State of which he is a national. There are certain rules of private law
governing conflicts of law which clearly illustrate this situation. In these
circumstances, the assertion that there exists an especially close link
between the State and its national can hardly bear the absolute character
which is frequently attributed to it. This link is, in any case, weakened
when nationality becomes dissociated from permanent residence as well as in
the case of dual nationality, where two or several States claim a right to
the attachment of the individual in question and require him to fulfil the
duties inherent in nationality, a situation which is in no way contrary to
general international law. Moreover, international law contains no rule
which makes the effectiveness of nationality dependent upon a sentimental
bond between the naturalizing State and the naturalized individual.
8. It has, however, been asserted, both in the written and oral proceedings,
that it is necessary to consider the problem of the validity of the act of
naturalization apart from the existence of a specific rule of customary law
prohibiting Liechtenstein from naturalizing F. Nottebohm in such
circumstances, but that a more general complaint could be levelled against
Liechtenstein on the one hand and Nottebohm on the other, namely, the
absence of a real and genuine intent which is a condition for the validity
of legal acts in international law. Nevertheless, it cannot be contended
that the naturalization of F. Nottebohm was vitiated by the absence of a
genuine intent on the part of Liechtenstein to naturalize him or on the part
of F. Nottebohm himself. The reality of the naturalization cannot be called
in question. There was no question of a fictitious marriage between
Liechtenstein and Nottebohm. In this connexion it is necessary to have
regard to the subsequent conduct of Nottebohm, which never varied after
naturalization. He always behaved exclusively as a Liechtenstein national
and, in taking up the case of its national, the Principality has shown the
serious character of the bond linking it with its national. The extent to
which the Court can consider the "genuineness" of naturalization as an
element of proof in regard to the reality and effectiveness of
naturalization, is confined within the limits which have just been stated.
Since F. Nottebohm was not himself subject to any duties based on the
principles of international law, it is also unnecessary to consider whether
he acted in "good faith" when he applied for naturalization. No rule of
general international law�that is to say, no customary rule nor general
principle of law recognized by civilized nations within the meaning of
Article 38, 1 (b) and (c),[p 58] of the Statute of the Court�lays down such
a requirement and no international responsibility can be incurred by the
Principality for not having considered the application for naturalization
from this point of view, which would render the naturalization wholly or
partly inoperative as against Guatemala, a neutral country at the time of
the naturalization of Nottebohm. It would be inadmissible to seek to impose
a requirement in this respect, that the naturalizing State or applicant for
naturalization should foresee uncertain events which might take place in the
future with a greater or lesser degree of probability.
9. Even if it were admitted that the Court is entitled to enquire into the
motives which led F. Nottebohm to apply for Liechtenstein nationality, it
is necessary to point out that F. Nottebohm in no way failed to observe the
principles of good faith as defined by the municipal law of civilized States
and in particular by Article 2 of the Civil Code of Liechtenstein of 1926.
F. Nottebohm did not conceal any essential or subordinate element for the
consideration of his application by the Liechtenstein authorities which
could therefore decide upon the application with full knowledge of the
facts. There was therefore no "lack of loyalty" on the part of F. Nottebohm,
no failure to keep his word which, in certain circumstances, could render
the legal act irregular for the purposes of the application and
interpretation of the Liechtenstein Law on the Acquisition and Loss of
Nationality. Only if it could be proved that F. Nottebohm acted in a
fraudulent manner, for example, by concealing German property with the help
of the naturalization, might it be possible, if certain conditions were
fulfilled, to speak of a failure on the part of F. Nottebohm to observe the
principle of good faith vis-!!!ä-vis the Principality and perhaps also
vis-à-vis Guatemala. Such concealment might, as I shall show, justify the
non-recognition of Liechtenstein nationality. In such a case, however, it
would not be the absence of good faith which would be the decisive element
in the fact that Liechtenstein nationality could not be invoked, but the
wrongful character of the fraudulent transaction of concealment of which the
acquisition of Liechtenstein nationality would only be one of the
constituent elements.
10. Is it possible to accept the validity of F. Nottebohm's nationality for
the purposes of the municipal law of Liechtenstein and yet to affirm that
this nationality does not deploy all its international effects and that
Liechtenstein is not, therefore, entitled to exercise diplomatic protection
should the latter be disputed by Guatemala? International law is indeed
conversant with situations in which the municipal effects and even some of
the international effects of nationality are recognized but in which
diplomatic protection exercised on the basis of the acquired nationality
may be successfully disputed. Thus, the individual who possesses two
[p 59] nationalities can only avail himself of the diplomatic protection of
one of the States of which he is a national vis-à-vis the other and this is
so wherever he may be resident. According to the prevailing view, a State
can only grant its diplomatic protection to an individual who possessed its
nationality at the time when the event giving rise to the diplomatic
protection took place, and who has retained such nationality uninterruptedly
up to the time when the claim is presented. This dissociation of nationality
from diplomatic protection is normally confined to situations in which the
individual has two nationalities�either cumulatively or in succession�with
the result that the right of protection may always be exercised by one
State, thus preserving the possibility of a claim being asserted on the
international level.
11. Nor is this statement of the position inconsistent with the fact that
the courts of third States and international tribunals have, on many
occasions, had to settle disputes in which two States claimed the same
individual as their national and that in such cases the prevailing tendency
has been to give preference to the real and effective nationality, a view
which forms the basis of Article 5 of the Convention of 1930 relating to the
Conflict of Nationality Laws. The test of effective connection with respect
to nationality has only been laid down for the purpose of resolving
conflicts arising out of dual nationality, in regard to which third States
must choose between one nationality, held to be the more real and effective
one, and a second nationality held to be the less real and effective. The
test has also been applied between two States each of which wishes to
exercise diplomatic protection on behalf of the same person.
As for the Bancroft Treaties, which were invoked during the course of the
proceedings, I consider it incorrect to regard these Treaties as
constituting a precedent for the case of F. Nottebohm. Apart from the fact
that these were bilateral treaties concluded in 1868 between the United
States of America on the one hand and the States of Wurtemberg, Bavaria,
Baden, Hesse and the North German Confederation on the other, they were
abrogated on 6th April, 1917 (see Hackworth, Digest of International Law,
Vol. III, p. 384), at the time of the entry of the United States of America
into the first World War and cannot therefore be regarded as reflecting the
rules of general international law, since these provisions were mainly
concerned with the loss of nationality and the American diplomatic
protection of persons of German origin, naturalized in the United States
and taking up their residence again in Germany without the intention of
returning to the United States. The main purpose of these treaties was to
annul the effects of American nationality granted to persons who had no wish
to reside in the United States and who returned to their country of origin
frequently in order to evade the obligations of military service. As regards
persons [p 60] possessing dual nationality�American nationality and the
nationality of one of the German States in question�the Bancroft Treaties
sought to give effect to the nationality of the country of habitual
residence (cf. Moore, A Digest of International Law, Vol. III, pp. 358 et
sqq.).
The present case is entirely different. F. Nottebohm was not a Liechtenstein
national who went to Guatemala and was naturalized in that country and
thereafter returned to Liechtenstein in order to take up residence there.
Moreover, no conflict of dual nationality arises in his case. To allow
Guatemala to hold that Liechtenstein's claim to exercise diplomatic
protection is inadmissible against Guatemala would lead to the consequence
that F. Nottebohm, having lost his German nationality by acquiring the
nationality of Liechtenstein, would no longer be able to invoke the
diplomatic protection of any State. Such a dissociation of nationality from
diplomatic protection is not supported by any customary rule nor by any
general principle of law recognized by civilized nations, within the meaning
of Article 38 (1) (b) and (c) of the Statute of the Court. I consider that
such a rule of international law could only be applied, in the present case,
especially on consideration of a preliminary objection, with the consent of
both parties, in accordance with Article 38 (2) of its Statute.
12. Moreover, to dissociate the question of the validity of nationality
from that of diplomatic protection leaves a further problem unsolved. Is the
question one of the general non-validity of the naturalization on the
international level, thus going beyond the limited right of third States to
deny the claim to exercise diplomatic protection, or does such non-validity
merely affect the right of Liechtenstein to exercise diplomatic protection
as against Guatemala?
Since the reasons invoked for the purpose of denying the claim to exercise
diplomatic protection are inevitably based on the manner in which F.
Nottebohm acquired Liechtenstein nationality, and not on any special reasons
which Guatemala may have had for refusing to recognize the effects of the
nationality in the field of diplomatic protection, any third State will be
in a position to draw conclusions going beyond the narrow limits of the
right to exercise diplomatic protection and will thus be led to disregard
other consequences, other effects of nationality on the international
level. There would, for example, be nothing to prevent them from saying that
the personal status of F. Nottebohm is that of a stateless person, Nottebohm
having in fact lost German nationality without having validly acquired
Liechtenstein nationality for international purposes. The fact that the
Judgment only applies to the particular case and that the res judicata is
not binding on third States in no way detracts from the force of these
considerations.[p 61]
The scope of the judicial decision extends beyond the effects provided for
in Article 59 of the Statute.
13. On the other hand, the reasons relied on�namely the absence of a
sufficient bond of attachment, which debarred Liechtenstein from exercising
diplomatic protection as against Guatemala�affect the claims relating to
damage caused at the time when F. Nottebohm had not yet established a
permanent residence in the Principality. Even if these grounds are
admitted, however, I consider that there is nothing to prevent Liechtenstein
from putting forward claims relating to the period when F. Nottebohm took
up permanent residence at Vaduz as from 1946 (see Rejoinder, p. 45). Since
the events giving rise to the damage suffered by F. Nottebohm in respect of
his property�as to which damage, claims have been put forward against
Guatemala�occurred within the period subsequent to 1946, and in particular
since Liechtenstein's application was presented to the Court on 17th
December, 1951, and since the expropriation measures in regard to which
reparation is claimed by the Principality were only applied after the year
1949, and in particular after the enactment of Legislative Decree No. 630
of 13th July, 1949, relating to the Law on the Liquidation of Matters
arising out of the War (see Counter-Memorial, Annex 39, p. 126), there is
nothing to prevent F. Notte-bohm's nationality deploying its ordinary
effects as against Guatemala, even if it is considered that factual ties
stronger than those created in 1939 by naturalization, are essential for the
purpose of enabling a State to exercise diplomatic protection on behalf of
its nationals.
It cannot be denied, if this reasoning, which I consider goes beyond the
requirement of general international law, is adopted, that F. Nottebohm,
after a permanent residence of more than three years in Liechtenstein, is
entitled to put forward certain of his claims against Guatemala, and that
Liechtenstein is entitled to take up the case of its national. Since F.
Nottebohm certainly had Liechtenstein nationality, which was supported by a
"bond" of residence at the time when the claim was addressed to Guatemala
(1951), Liechtenstein, in this connexion, fulfils all the requirements
which, in international practice, have been the subject of dispute, as to
the date which is to be preferred, that is to say, the date when the
national Government espouses the claim, the date when the claim is presented
to a representative of the defendant Government, the date when it is
brought before an international tribunal, or even the date when the claim is
settled (cf. E. Borchard, Protection diplomatique des Nationaux à
l'Étranger, Annuaire de l'Institut de droit international, 1931, Vol. I, p.
284).
On the other hand there is no doubt that the events giving rise to the
dispute, that is to say, the damage suffered in respect [p 62] of
expropriated property, occurred at a time subsequent to the final
establishment of F. Nottebohm in Liechtenstein. In this connexion it is also
necessary to point out that all the strict tests laid down for the purpose
of determining the national character of a claim, which were considered
during the preliminary discussions for the 1930 Conference on the
Codification of International Law, were complied with in the present case
(cf. League of Nations, Doc. C.75.M.69.1929.V., pp. 140 et sqq.).
The fact that the Guatemalan Law of 1949 on the Liquidation of Matters
arising out of the War, in accordance with Article 7 of Legislative Decree
No. 630, regarded as enemy nationals those persons who possessed the
nationality of any of the States with which Guatemala was at war or who had
such nationality on 7th October, 1938, although they claimed to have
acquired another nationality after that date, does not further modify the
essential elements of the question under consideration, that is to say, that
the events giving rise to the dispute occurred at a time when F. Nottebohm
was a Liechtenstein national. It is not for a third State to decide the
validity of a foreign nationality for the purpose of rendering inoperative
the exercise of diplomatic protection, with the possible exception of the
special case of concealment of enemy property, which will be dealt with
under III below and which, being a matter concerned with the merits of the
case, cannot be considered in connexion with a plea in bar.
Since no final measure of expropriation, in respect of which a claim for
reparation has been put forward by Liechtenstein, was adopted before F.
Nottebohm's return to the State, of which he was a national, in 1946, and
since all these measures were only carried out after he took up permanent
residence in Liechtenstein, I fail to see how it is possible to invoke the
absence of any bond of attachment between Liechtenstein and F. Nottebohm
(even if in this connexion one were to admit the existence of requirements
going beyond what is laid down by general inter-national law on this
question) for the purpose of denying that Liechtenstein had the right to
take up the case of its national in 1951 with respect to unlawful acts
alleged to have been committed after 1946.
14. A decision that Liechtenstein's application is inadmissible on the
ground that F. Nottebohm does not possess effective nationality, and that
therefore the applicant. State is not entitled to exercise the right of
diplomatic protection as against Guatemala would involve three important
consequences:
(a) The rule of international law that nationality should not be dissociated
from diplomatic protection in cases where the protected person has only one
nationality, and where the facts giving rise to the dispute have occurred
after the grant of such nationality, would be modified retroactively
sixteen[p63]years after F. Nottebohm's naturalization in Liechtenstein. This
situation is all the more serious since the main facts giving rise to the
dispute only occurred after 1949, three years after F. Nottebohm finally
established himself in Liechtenstein and, by prolonged residence there,
created solid bonds of attachment, the absence of which has been relied upon
by the respondent party in the written and oral proceedings as a ground for
the view that Liechtenstein is not entitled to exercise diplomatic
protection in favour of F. Nottebohm against Guatemala. I. consider that
even if one shared this view, one must at least recognize the right to
exercise diplomatic protection as regards the injury suffered by F.
Nottebohm after 1946, especially the injury resulting from the measures
taken following the enactment of Legis-lative Decree No. 630 of July 13th,
1949.
(b) Even if it be admitted that nationality can be dissociated from
diplomatic protection in the present case, there remains the question as to
what are the consequences of the total or partial invalidity under
international law of a nationality validly acquired under municipal law. Is
the invalidity confined to the sphere of diplomatic protection, or does it
extend to the other effects of nationality on the international level, for
example, treaty rights enjoyed by the nationals of a particular State in
regard to monetary exchange, establishment and access to the municipal
courts of a third State, etc.?
(c) A refusal to recognize nationality and therefore the right to exercise
diplomatic protection, would render the application of the latter�the only
protection available to States under general international law enabling them
to put forward the claims of individuals against third States�even more
difficult then it already is.
If the right of protection is abolished, it becomes impossible to consider
the merits of certain claims alleging a violation of the rules of
international law. If no other State is in a position to exercice diplomatic
protection, as in the present case, claims put forward on behalf of an
individual, whose nationality is disputed or held to be inoperative on the
international level and who enjoys no other nationality, would have to be
abandoned. The protection of the individual which is so precarious under
existing international law would be weakened even further and I consider
that this would be contrary to the basic principle embodied in Article 15
(1) of the Universal Declaration of Human Rights adopted by the General
Assembly of the United Nations on December 8th, 1948, according to which
everyone has the right to a nationality. Furthermore, refusal to exercise
protec[p 64]tion is not in accordance with the frequent attempts made at
the present time to prevent the increase in the number of cases of stateless
persons and to provide protection against acts violating the fundamental
human rights recognized by international law as a minimum standard, without
distinction as to nationality, religion or race.
15. The finding that the Application is not admissible on the grounds of
nationality prevents the Court from considering the merits of the case and
thus from deciding whether the respondent State is or is not guilty of an
unlawful act as regards Liechtenstein and its national, who has no other
legal means of protection at his disposal. Moreover, a preliminary objection
must be strictly interpreted. It must not prevent justice from being done.
III
As regards the criticism made during the written and oral proceedings, that
F. Nottebohm had sought Liechtenstein nationality for the purpose of
changing his status from a subject of a belligerent State to that of a
subject of a neutral State, it is necessary to make the following
observations:
1. There is no rational principle or judicial decision in either private or
public international law to justify the view that a new nationality which
has been acquired for the purpose of avoiding, in the future, certain
effects of a former nationality should be regarded as invalid. Even if it
were admitted, although this has not been proved, that F. Nottebohm became a
Liechtenstein national with the object of evading the consequences of his
German nationality, it is necessary to point out that this change in his
status was not effected during the War between Guatemala and Germany but
long before that time. It is therefore impossible to speak of a change in
the status of a person from that of an enemy national to that of a neutral
national which might, in certain circumstances, have been the case had the
naturalization taken place while Guatemala and Germany were in a state of
war.
2. On the other hand, could it be said that Nottebohm's nationality was
fraudulent and defective if it had been proved that he applied for
naturalization in Liechtenstein, for the purpose of using such
naturalization as a cloak for the property of enemy nationals in Guatemala?
It might be considered that a nationality acquired for the sole purpose of
claiming the diplomatic protection of a neutral State cannot be invoked
vis-a-vis the belligerent State against which the acts of concealment of
enemy property were
[p 65]directed, on the ground that a legal act may be vitiated by fraud and
that the respondent party is therefore justified in alleging that it is a
nullity.
The acquisition of nationality in such cases forms part of a transaction
which is to be regarded as generally fraudulent, with the possible result
that the injured belligerent State may refuse to recognize the change of
nationality, and not merely that diplomatic protection cannot be relied
upon. Nevertheless, it will always be difficult to prove the existence of
such a fraudulent operation.
3. Moreover, whatever the solution of this problem may be, it would have
been necessary, for the purpose of examining it and of arriving at a
solution, to consider the merits of the dispute. In this connexion, the
Court should have given the applicant party the opportunity of collecting
all the evidence with the object of enabling the Court to ascertain whether,
in the particular case, the allegation of concealing property was justified
and that therefore Guatemala was not bound to recognize the Liechtenstein
nationality of F. Nottebohm. Since proof of concealment of property has not
been adduced, I consider that the Court should have joined the objection to
the admissibility on the ground of nationality to the merits. This should
also have been the case as regards the two other grounds of inadmissibility,
since their fate is bound up with the objection based on nationality.
Indeed, if the latter objection is upheld, it becomes unnecessary to
consider Guatemala's objection to the admissibility on the ground of prior
diplomatic negotiations and non-exhaustion of local remedies.
4. Moreover, the decision of the Court given at the public sitting of
February 14th, 1955, expressly reserved the right of Liechtenstein, under
Article 48, paragraph 2, of the Rules of Court, to submit documents in
support of its comments on the new documents produced by the other Party.
The Court should therefore have granted the application for an adjournment
made by the Government of the Principality of Liechtenstein.
(Signed) Guggenheim |
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