Case Digest: Nottebohm Case (Liechtenstein v. Guatemala) 1955

Public International Law | The Nationality Principle

Facts: 

• Friedrich Nottebohm, a German national, resided in Guatemala, maintained business there, and occasionally visited Germany and Liechtenstein.
• In October 1939, after World War II broke out, he applied for Liechtenstein citizenship, obtaining it quickly without fulfilling the residency requirement.
• He obtained a Liechtenstein passport and a Guatemalan visa, then returned to Guatemala. Later, both the U.S. and Guatemala were at war with Germany.
• In 1943, Guatemala arrested and deported Nottebohm to the U.S., where he was interned until 1946. Guatemala confiscated his property in 1949.
• Liechtenstein filed a case against Guatemala, claiming Guatemala's actions breached international law, seeking reparation for Nottebohm's arrest, expulsion, and property seizure.

Issue:

• Whether the claim was inadmissible due to the nationality of the claimant.

Ruling:

• Guatemala has referred to a well-established principle of international law,... that ‘it is the bond of nationality between the State and the individual which alone confers upon the State the right of diplomatic protection’.... 
• 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. ... Guatemala, on the other hand, requests] the Court ‘to declare that the claim of the Principality of Liechtenstein is inadmissible’, and set[s] 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. 
• In order to decide upon the admissibility of the application, the court must ascertain whether the nationality conferred on Nottebohm by Liechtenstein ... bestows upon Liechtenstein a sufficient title to the exercise of protection in respect of Nottebohm as against Guatemala and therefore entitles it to seize the Court of a claim relating to him. 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. ... Reliance has been placed on the fact that... 
• the Guatemala in Zurich entered a visa in the Liechtenstein passport of Mr. Nottebohm for his return to Guatemala; 
• that on January 29,1940 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 31; 
• that on February 9, 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 1,1940. 
• The acts of the Guatemalan authorities proceeded on the basis of the statements made to them by the person concerned. ... 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. 
• In a letter of the Swiss consul of December 15, 1944, to the Minister of External Affairs, reference is made to the entry on the Black Lists of “Frederick Nottebohm, a national of Liechtenstein.” ... Guatemala, in its reply ... expressly stated that it could not “recognise that Mr. Nottebohm, a German subject habitually resident in Guatemala, has acquired the nationality of Liechtenstein without changing his habitual residence.” ... There is here an express denial by Guatemala of Nottebohm’s Liechtenstein nationality.... 
• There is nothing here to show that before the institution of proceedings Guatemala had recognised Liechtenstein’s title to exercise protection in favor of Nottebohm and that it is thus precluded from denying such a title. ... 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.... 
• 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 oneself on the plane of international law. It is international law which determines whether a State is entitled to exercise protection and to seize 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.... 
• 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 consequently 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.... 
• International arbitrators have decided ... 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 favor 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 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 defense 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 I 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-d-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. Diplomatic protection and protection by means of international judicial proceedings constitute measures for the defense of the rights of the State. As the Permanent Court of International Justice has said and 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.” 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 international 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 connection 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 of any other State? 
• 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 center of his interests and of his business activities. He stayed there until his removal as a result of war measures in 1943. He subsequently attempted to return there, and he now complains of Guatemala’s refusal to admit him. There, too, were several members of his family who sought to safeguard his interests. 
• 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 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 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 in 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-a-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.

Conclusion:

• The Court clarifies that the issue isn't about Liechtenstein's domestic legislation on nationality but whether it has the right, under international law, to exercise protection and bring a claim to the Court concerning Nottebohm.
• It emphasizes that while nationality largely operates within a state's legal framework, determining rights and obligations, the entitlement of a state to exercise protection and approach the Court is governed by international law.
• Instances of dual nationality have been addressed in international practice, where arbitrators and courts prefer the "real and effective" nationality, considering various factors such as habitual residence, family ties, public life participation, and attachment to a specific country.
• International law recognizes the character of nationality based on genuine connections and reciprocal rights, emphasizing that a state can exercise protection only if the individual's connection justifies it.  
• Nottebohm had been a German national since birth and maintained connections with family and business in Germany. His settlement in Guatemala for 34 years was characterized by business activities, familial connections, and a stable lifestyle.
• In contrast, his ties to Liechtenstein were superficial, involving only brief visits without any intention of settling or establishing long-term connections.
• His naturalization in Liechtenstein lacked genuine prior connection, did not alter his lifestyle, and was pursued primarily to change his nationality from a belligerent state to that of a neutral state for protection purposes.
• The naturalization was granted hastily, without consideration for genuine nationality concepts in international relations, merely to seek protection from Liechtenstein without any intention to adopt its traditions or obligations.
• Guatemala is not obligated to recognize such nationality obtained in these circumstances, and therefore, Liechtenstein's claim against Guatemala is deemed inadmissible.