Nottebohm Case (Liechtenstein v. Guatemala); Second Phase
|Publisher||International Court of Justice (ICJ)|
|Publication Date||6 April 1955|
|Reference||I.C.J. Reports 1955, p. 4; General List, No. 18|
|Cite as||Nottebohm Case (Liechtenstein v. Guatemala); Second Phase, International Court of Justice (ICJ), 6 April 1955, available at: http://www.refworld.org/docid/3ae6b7248.html [accessed 6 March 2015]|
|Comments||Proceedings instituted by Application.-Objection to admissibility.-Final Conclusions of the Parties.-Nationality as a condition for the exercise of diplomatic protection and for international judicial proceedings.-Liechtenstein Nationality law of January 4th, 1934.-Naturalization in Liechtenstein.-Domestic jurisdiction with regard to nationality.-Refusal by Guatemala to recognize nationality acquired by naturalization in Liechtenstein.-Conditions to be satisfied in order that nationality conferred upon an individual by a State may be relied upon as against another State and give a title to the exercise of protection against that State.-Real and effective character of nationality-Real link between the naturalized person and the naturalizing State.|
Proceedings instituted by Application.-Objection to admissibility.-Final Conclusions of the Parties.-Nationality as a condition for the exercise of diplomatic protection and for international judicial proceedings.-Liechtenstein Nationality law of January 4th, 1934.-Naturalization in Liechtenstein.-Domestic jurisdiction with regard to nationality.-Refusal by Guatemala to recognize nationality acquired by naturalization in Liechtenstein.-Conditions to be satisfied in order that nationality conferred upon an individual by a State may be relied upon as against another State and give a title to the exercise of protection against that State.-Real and effective character of nationality-Real link between the naturalized person and the naturalizing State.
Present: President HACKWORTH; Vice-President BADAWI; Judges BASD EVANT, ZORICIC, KLAESTAD, READ, HSU MO, ARMAND-UGON, KOJEVNIKOV, Sir Muhammad ZAFRULLA KHAN, MORENO QUINTANA, CORDOVA; M. GUGGENHEIM and M. GARCÍA BAUER, Judges ad hoc; Registrar LÓPEZ OLIVÁN.
In the Nottebohm Case, between
the Principality of Liechtenstein, represented by:
Dr. Erwin H. Loewenfeld, LL.B., Solicitor of the Supreme Court, as Agent, assisted by:
Professor Georges Sauser-Hall, Honorary Professor at the Universities of Geneva and of Neuchâtel, Mr. James E. S. Fawcett, D.S.C., of the English Bar, Mr. Kurt Lipstein, Ph.D., of the English Bar, as Counsel, and
the Republic of Guatemala, represented by:
M.V.S Pinto J., Minister Plenipotentiary, as Agent,
Me. Henri Rolin, Professor of Law at the Free University of Brussels, M. Adolfo Molina Orantes, Dean of the Faculty of Jurisprudence of the University of Guatemala, as Counsel, and by Me. A. Dupont-Willemin, of the Geneva Bar, as Secretary,
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 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 García 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, had, 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 11th, 1995. 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 and 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 and 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 main tained 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 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 paragraphe 2, 3 and 4 of those 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;
(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 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 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 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 ternative, on this point:
to declare it inadmissible on this ground at least in so far as it relates to reparation for injury allegedly cause to the person of Friedrich Nottebohm
(2)on the ground that Nottebohm 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 Notebhom 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 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;
(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. Nottebhom 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 timelimit to be fixed by the latter, all original documents in the archives relating the naturalization of Nottebohm and, in particular, the convocations of member 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 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 contentions 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 Pincipality, on its own initiative, to discover the nature of Friedrich Nottebohm's interests in the Notebohm 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 the 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.
Guatemala has referred to a well-established principle of international law, which it expressed in Courter-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 Germany. He paid a few visits to a brother who had lived in Liechtenstein 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) "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 naturalizations in 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 he 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. 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 Crédit 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 "V orausverständnis" 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, 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 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 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 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 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 13th, 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 a broad 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.
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 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 determined 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 oneself 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 Nottelbohm 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 State, 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.
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 of the respondent State to recognize the effect of the 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 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 prevailingtendency 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 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 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-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.
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 right-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. 20-2I, 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 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 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 Liechtenstein 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 county.
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 year-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 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, it 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 inadmissaible.
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,
by eleven votes to three,
Holds that the claim submitted by the Government of the Principality of Liechtenstein is inadmissible.
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,
(Signed) J. LOPEZ OLIVAN,
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.
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, 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 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 wold 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 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 has 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 ha 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 (a) 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 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-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 frand, 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. I (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 circumstance, 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 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 his 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 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 document 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 fraudulent 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 in bar concerning nationality (diplomatic 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 precedural 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.
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 constitute 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 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 be 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 Concessions-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 Guatemala 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 provisions which is of crucial importance, Article 21, which contains the following paragraph:
"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 it 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 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 o f the charge of fraud was contained in considerable 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 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.
As a Judge of this Court, I an 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 I 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 I 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 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.
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 I 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 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, 1984, 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 nationally, 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 can be dragged from an entirely different setting and applied to the present case, it does not contribute much to the solution. Mr. Nottobohm 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 1996. Liechtenstein was precluded from participation. Paraguay, Peru and Uruguay signed 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 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 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 case of double nationality.
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. The 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 indicated that this 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 origin. It is noteworthy that in the United Kingdom the policy or recognizing the automatic loss of British nationality on naturalization abroad, which had been adopted in 1870, was abandoned in 1984. 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 many, 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 year's 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 case 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.
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, United Kingdom and 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 non-resident 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 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 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. Our of the 15½ 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 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, he 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.
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. I 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.
Nationally, 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 test, 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-and has clung to the rule of the almost unfettered discretionary power of the State, as embodied in Article I 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.
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 allegiance, 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 setter. 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 Alien' 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.
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 t 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 war with Germany. In 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 Unites 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 the 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. Nottebohms 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 I and 3.
(Signed) J. E. READ.
DISSENTING OPINION OF M. GUGGENHEIM, JUDGE "AD HOC"
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.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, Unites 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 cricumstances 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 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 jurisdictional 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 court. 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.
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.