Model Answer
0 min readIntroduction
Nationality, a legal bond between an individual and a state, is distinct from citizenship, though often used interchangeably. It determines an individual’s legal and political rights and obligations. The ICJ’s 1955 Nottebohm case (second phase) underscored a critical principle: states are not obligated to recognize nationality acquired without a demonstrable connection. This principle, rooted in the concept of *bona fide* naturalization, highlights the importance of a genuine link between the individual and the naturalizing state. The case arose from a dispute between Germany and Liechtenstein concerning the nationality of a German businessman who acquired Liechtenstein citizenship.
Defining Nationality and Citizenship
While often used interchangeably, nationality and citizenship have distinct legal meanings. Citizenship denotes membership in a political community, granting rights and responsibilities. Nationality, on the other hand, is a legal designation determined by a state, irrespective of whether the individual possesses the rights of a citizen. A person can be a national without being a citizen (e.g., British Overseas Territories citizens).
Principles of Nationality Acquisition
States primarily acquire nationality through three main principles:
- Jus Soli (Right of Soil): Nationality is acquired by birth within a state’s territory. The United States and Canada are prominent examples.
- Jus Sanguinis (Right of Blood): Nationality is acquired through descent from a national parent, regardless of place of birth. Germany and Japan traditionally followed this principle, although Japan has relaxed it somewhat.
- Naturalization: This involves a legal process by which a foreign national becomes a citizen of a new state. This process typically includes residency requirements, language proficiency tests, and an oath of allegiance.
The Nottebohm Case and the "Genuine Link"
The Nottebohm case significantly clarified the requirements for naturalization. Herr Nottebohm, a German national, acquired Liechtenstein citizenship in 1936. During World War II, Germany declared him a German agent. Liechtenstein sought to protect him by asserting his nationality. The ICJ ruled that while Liechtenstein had the right to grant citizenship, it was obligated to ensure the applicant had a "genuine link" with the state. This link could be demonstrated through residency, economic ties, or cultural affinity. The ICJ found that Nottebohm’s acquisition of Liechtenstein nationality lacked this genuine connection and was, in effect, a maneuver to avoid German jurisdiction.
Examples of Nationality Acquisition and Challenges
Example 1: India – Primarily *jus sanguinis*, with *jus soli* provisions for certain categories like those born in the Indian subcontinent before independence. The Citizenship (Amendment) Act, 2019, introduces religious considerations for naturalization, sparking controversy.
Example 2: Statelessness – Individuals born in a territory with uncertain nationality status, or those whose nationality is revoked, can become stateless. The Rohingya crisis exemplifies this, with many lacking recognized nationality in Myanmar.
Table: Comparison of Nationality Acquisition Principles
| Principle | Description | Examples |
|---|---|---|
| Jus Soli | Nationality based on place of birth | United States, Canada |
| Jus Sanguinis | Nationality based on parentage | Germany, Japan |
| Naturalization | Acquisition of nationality through a legal process | Most countries worldwide |
Implications for International Law
The Nottebohm case reinforced the principle of state sovereignty in determining nationality. While states have the right to grant citizenship, they must ensure the applicant has a genuine connection. This principle prevents states from being used as havens for individuals seeking to evade legal obligations in their original state. It also highlights the importance of international cooperation in addressing statelessness and nationality disputes.
Statelessness and the 1954 Convention
The 1954 Convention Relating to the Status of Stateless Persons aims to protect individuals lacking nationality. However, ratification rates remain low, and enforcement can be challenging. According to UNHCR, approximately 10 million people globally are stateless (as of 2023).
Conclusion
The Nottebohm case remains a cornerstone of international law concerning nationality acquisition. The principle of a "genuine link" emphasizes the importance of a demonstrable connection between an individual and the state granting citizenship. While states retain the right to determine their own nationality laws, the ICJ’s ruling underscores the need for a balanced approach that respects both state sovereignty and the principles of international cooperation, particularly in addressing the complexities of statelessness and ensuring the legitimacy of naturalization processes.
Answer Length
This is a comprehensive model answer for learning purposes and may exceed the word limit. In the exam, always adhere to the prescribed word count.