Reassessing Nottebohm in an Era of Global Mobility

Abstract

Despite heavy criticism, the ‘genuine link test’ for assessing the bindingness of a conferral of citizenship on third States, devised by the International Court of Justice in the 1955 case of Nottebohm, still influences the approaches to naturalisation worldwide. 

This article analyses the implications of the judgment in the age of unprecedented global mobility. It is argued that, even though the Nottebohm standard can be useful for mitigating malfeasance connected with the so-called ‘golden passports’ practice, there are other tools at policy-makers’ disposal, which, unlike the strict application of the ‘genuine link test’, can minimise the damage without compromising the benefits of investor citizenship. Conversely, the standard is highly impractical to apply, infringes upon State sovereignty, proves unfit for both public opinion and economic considerations in the era of globalisation, and, most importantly, can inadvertently aggravate the problem of statelessness. 

Hence, the ICJ should use the nearest opportunity to revisit the Nottebohm judgment and depart from the ambiguous, outdated, and potentially harmful ‘genuine link test’.

Introduction

With the number of international migrants estimated at a record-breaking 281 million (3.6% of the globe’s population),[1] the world is experiencing mobility at an unprecedented scale. Thus, the discussion about the emergence of international migration law is more pertinent than ever.

An inherent part of this conversation is the rules concerning the recognition of naturalisation. One of the most significant pieces of jurisprudence in this area is the 1955 case of Nottebohm, in which the International Court of Justice (ICJ) developed the so-called ‘genuine link test’ for assessing whether a grant of nationality by a State is binding on other States.[2]

This article will argue that the ICJ should depart from the rule established in Nottebohm. First, a short summary of the facts and judgment will be provided to paint the backdrop to the discussion. It will then be shown that, despite heavy criticism, the ruling has retained its importance and still informs the approaches of prominent decision-makers to naturalisation – which all the more warrants the Court to revisit the question at the earliest occasion. The remainder of the piece will then be devoted to the assessment of the advantages and disadvantages of the ‘genuine link test’, with reference to issues such as investor citizenship schemes, the practicalities of applying the test, as well as its implications on the matters of State sovereignty, international mobility, and human rights.

While acknowledging the nuances of terminology,[3] this piece will use the terms ‘nationality’ and ‘citizenship’ interchangeably to reflect the implications of Nottebohm in both the international and municipal sphere.

Nottebohm: Facts

Friedrich Nottebohm was born in Hamburg on 16 September 1881. In 1905, he moved from Germany to Guatemala, where he established his residence as well as a coffee plantation and trade business.[4] It is unclear whether he was eligible to apply for Guatemalan citizenship.

On 9 October 1939, shortly after the start of WWII, Mr Nottebohm applied for naturalisation in Liechtenstein, where his brother had lived since 1931.[5] The Principality’s Law of 4 January 1934 stipulated conditions for the grant of nationality, including 3 years of residence in the country – a requirement that could have been, however, ‘dispensed with in circumstances deserving special consideration and by way of exception’.[6] Mr Nottebohm did not fulfil this criterion. However, the Liechtensteiner authorities agreed to process his application nonetheless on the condition that he contribute to the State, and to the Commune of Mauren (where he sought citizenship), and pay an annual naturalisation tax. As a result, Mr Nottebohm was granted Liechtensteiner citizenship on 20 October 1939, simultaneously losing his German nationality.[7]

After that, Mr Nottebohm returned to Guatemala. In 1941, the Guatemalan government declared war on Germany and subsequently reached an agreement with the US to intern persons of German ancestry or nationality. As a result, in 1943, Mr Nottebohm was arrested and handed over to a US military base, where he was held until 1946. He was refused re-entry to Guatemala and all his assets there were seized without compensation as enemy alien property.[8] It was with respect to this expropriation that Liechtenstein asserted its right to extend diplomatic protection over Mr Nottebohm and bring a claim before the ICJ.[9]

Nottebohm: Judgment

The question for the ICJ was, therefore, whether Mr Nottebohm was a Liechtensteiner citizen for the purposes of diplomatic protection.

To find the answer, the Court devised a test to determine whether a person is, in fact, more closely connected with the population of the State conferring nationality than with that of any other State. The decisive aspect was the social fact of attachment to the State, proven by factors such as settled abode or intention to settle, prolonged residence, family ties, economic interests, and cultivating the country’s traditions.[10] This has come to be known as the ‘genuine link test’.

Applying the above criteria, the Court found Mr Nottebohm’s connection to Liechtenstein ‘extremely tenuous’. A mere promise to pay the naturalisation tax and make financial contributions to the State and Commune did not amount to ‘economic interests or business activities’, whereas the presence of Mr Nottebohm’s brother in Vaduz was brought up only as a character reference for the citizenship application. Conversely, the Court suspected that Mr Nottebohm’s sole intention was to switch his association from a belligerent State to a neutral one and enjoy the resulting protection. Thus, Guatemala was under no obligation to recognise Mr Nottebohm’s Liechtensteiner nationality and the Principality could not extend diplomatic protection to him.[11]

Nottebohm: Legacy

Shortly after its publication, the judgment was criticised by the academic community as ambiguous at best and erroneous at worst.[12] Some scholars have underplayed its importance as little more than a ‘jurisprudential illusion’[13] or a judgment ‘relegated to the annals of international law history’.[14] Even an Advocate General of the European Court of Justice, Giuseppe Tesauro, dismissed Nottebohm as belonging to a ‘romantic period’ of international relations.[15]

Despite the seemingly strong consensus as to the wrongness of the ruling, it still appears to inform the widespread approach to the bindingness of naturalisations on third States. There have been attempts to interpret Nottebohm as strictly limited to its facts rather than expounding a general rule applicable to all situations concerning conferrals of nationality – both in arbitral awards, such as the Italian-US Conciliation Commission in Flegenheimer,[16] and scholarship, eg, from van den Brink, who contends that Nottebohm is only exceptionally invoked by some tribunals.[17] Both arguments do not stand when one looks at the number of key institutions which follow Nottebohm. The ‘genuine link test’ has been applied in a wide array of circumstances, including by arbitral tribunals (ranging from arbitration facilitated by the Permanent Court of Arbitration[18] to the Iran-United States Claims Tribunal[19] and the Court of Arbitration for Sport),[20] as well as by supranational bodies such as the European Commission.[21] This speaks to the persisting relevance of the Nottebohm test.

Van den Brink is correct to observe that scholarship tends to misunderstand Nottebohm as limiting States’ discretion as to the allocation of nationality, while, in reality, it pertains solely to the bindingness of such naturalisation on other States.[22] A similar mistake is made by some high-ranking officials. For example, Viviane Reding, then a Vice-President of the European Commission, expressed an erroneous interpretation that international law only allows for the conferral of citizenship on the basis of a genuine link.[23] However, van den Brink wrongly dismisses the weight of the 1955 ruling on this ground. This is because even though Nottebohm does not, indeed, restrict the effect of a naturalisation within the remit of municipal law, it does affect the validity of citizenship that does not meet the genuine link threshold outside of the jurisdiction of the conferring State. Arguably, the right to consular and diplomatic protection is an intrinsic part of being a citizen of a State, and, thus, citizenship which does not warrant other States’ recognition is a heavily impaired one.

It is therefore because of the persistent importance of the rule established in Nottebohm and its far-reaching consequences that a revision of this ruling is not only important, but indispensable in the era of increasing global mobility.

The Argument for Upholding Nottebohm

Before making a case for dispensing with Nottebohm, justice must be done to the most convincing argument in favour of retaining it – that the ‘genuine link test’ restricts the proliferation of citizenship-by-investment schemes, colloquially hailed as the ‘golden passports’ practice.

Shachar is right to point out that the possibility of acquiring nationality through a financial contribution exacerbates inequalities between different categories of migrants – the haves and the have-nots.[24] Van den Brink further argues that the effect of such programmes can be deeply undemocratic. While wealthy migrants without genuine links to the State can gain full political rights via investment, less well-off foreign-born residents, whose lives are also determined by political decisions made in the country and may, as members of that particular society, have equally high stakes as full citizens, could be denied a say.[25] This is a valid critique. However, it can be argued that this moral dilemma could be solved by the recognition of the moral claims of migrants with genuine links. Per Hidalgo,  it does not follow from the fact that it is morally permissible to deny naturalisation to persons without a genuine link to the country that it is also morally impermissible to grant it.[26] Therefore, the policies of granting citizenship to investors without genuine links and migrants with genuine links are not mutually exclusive.

Scherrer and Thirion are, however, rightly concerned about the possible side-effects of investor citizenship programmes such as money-laundering and corruption.[27] But, again, an outright ban on the practice is not necessarily the only viable solution. It would be preferable for States to focus on reforming their anti-corruption regimes instead. That way, not only would multiple sources of malfeasance be addressed rather than just one, but a country could also continue to reap the economic and social benefits of citizenship-by-investment schemes. Given that such programmes can be easily geared towards promoting investment that results in the production of social goods, sensibly-calibrated ‘golden passport’ schemes can indeed prove to be a win-win arrangement for States with a stronger passport than economy.

The dilemma becomes less obvious, however, in the context of the European Union (EU). Džankić correctly points out that investor citizenship schemes are more problematic in the EU because of Article 20 of the Treaty on the Functioning of the European Union (TFEU), which provides that ‘every person holding the nationality of a Member State shall be a citizen of the Union’.[28] Union citizenship comes with various rights including the right to move and reside freely within EU territory, vote and stand in municipal and European elections, and enjoy diplomatic and consular protection of another Member State in a third country where one’s State of nationality is not represented.[29] As a result, a decision by one Member State to confer nationality has consequences for all other Member States and the supranational organisation as a whole. This can lead to inequalities and imbalances where only some Member States accept citizenship by investment. For example, Estonia, which does not recognise citizenship-by-investment, would have no choice but to allow a person in possession of a purchased Maltese citizenship residing in Estonia to vote and stand in Estonian local elections, per Article 40 of the Charter of Fundamental Rights.[30] Such considerations have led the European Parliament to go so far as to declare citizenship-by-investment as undermining the very concept of EU citizenship.[31]

This is an overstatement. Rather than introducing a blanket ban on citizenship-by-investment schemes (which would inequitably hit weaker economies like that of Malta or Cyprus harder than that of Germany or France), this issue could be treated as yet another challenge for the ‘integration through law’ project.[32] There should be a debate at the EU level on a common naturalisation policy, which would aim to balance the economic considerations of countries wishing to introduce investor citizenship schemes against the broader implications for the rights of other Member States. This would be a more productive approach than the Commission assuming a policing role, scolding smaller economies like Malta, Cyprus, or Bulgaria with infringement proceedings.[33] To address the valid concerns about corruption, more cooperation between Member States is needed. The establishment of the European Public Prosecutor’s Office (EPPO) is a step in the right direction.[34] However, there are still three Member States – Hungary, Denmark, and Ireland – which are not currently part of EPPO. Additionally, the Parliament and Council should adopt the Commission’s Directive proposal, which would modernise the EU framework on corruption,[35] implement the United Nations (UN) Convention against Corruption, and distribute focus more evenly between fighting corruption affecting both the EU’s financial interests and that of individual Member States.[36]

It is true that ‘golden passports’ carry a heavy load of problems, be it democratic deficit, corruption, or specific implications for EU citizenship. That said, Nottebohm’s ‘genuine link test’ is not the only solution. There are several more optimal methods to address these dilemmas, which, unlike a blanket ban on naturalisation-by-investment, would avoid the pitfalls and maximise the benefits of such schemes. As such, its restricting effect on investor citizenship programmes is not sufficient to justify the upholding of Nottebohm – especially considering its manifold shortcomings, which will now be discussed.

The Arguments against Upholding Nottebohm

A. Practicalities

The fundamental flaw of the Nottebohm test is its ambiguity and vagueness, making it highly impractical to apply.

The ICJ was not unanimous in its decision regarding Mr Nottebohm. In his dissent, Judge Read criticised the vague and subjective criteria applied by the majority, arguing that they may allow for arbitrariness on the part of the conferring States.[37] This risk is significantly aggravated in the current climate of escalating nativism and xenophobia.[38] This is why Judge Read correctly stressed that nationality- which impacts serious matters such as political rights, military service, treason, migration, and travel- requires certainty.[39] Thus, the ambiguous test of sentimental bond, sincerity, fidelity, and substantial, genuine connection is inappropriate.

Defenders of Nottebohm, such as Carens, contend that ‘residence and passage of time’ are the most accurate criteria for assessing whether a person has established genuine links to a society.[40] Admittedly, this standard seems the least problematic of all those proposed by the ICJ, especially in contrast to the likes of following a country’s traditions.[41] However, it is still impossible to establish a certain period of residence as an objective standard applicable to all different societies across the globe, because the success of integration is heavily dependent on the characteristics of both the culture (eg, how open and welcoming it is) and the person (adaptability, social intelligence, etc). Hence, van den Brink’s assertion that three to five years should be enough for a genuine link to develop lacks an empirical footing.[42] His analogy to the fact that all electoral systems use the minimum voting age as a proxy for political competence does not justify an international standard regarding the minimum period of residence required for the recognition of genuine links of a person to a State.[43] Arguably, States do have the discretion to set their minimum voting age as they see fit – for example, Scotland and Wales allow 16-year-olds to vote for representatives in local government and devolved legislatures, whereas the rest of the United Kingdom sets this bar at 18 years old.[44] Consequently, governments should also be able to decide on the length of time after which they deem residents eligible to apply for citizenship, accounting for the peculiarities of the local population.

Such controversies are bound to arise if the ‘genuine link test’ is retained as a standard for the determination of the bindingness of naturalisation on third States. Spiro is correct in his verdict that, because of the discussed ambiguities and lack of a universally accepted definition of ‘genuineness’, meaningful social connections simply do ‘not translate into a practical standard’ to assess the conferral of nationality.[45]

B. State sovereignty

It has already been established that, even though Nottebohm does not limit the State’s authority to allocate citizenship, it constrains the bindingness of such a conferral vis-à-vis third States. This, in turn, undermines intrinsic rights arising from holding a nationality, such as the right to consular and diplomatic protection. Therefore, by restricting the States’ ability to grant nationality with the full extent of the rights associated with it, the ‘genuine link test’ contravenes the foundational principle of the United Nations found in Article 2(1) of the Charter – sovereign equality.[46]

Judge Read recognised that State practice showed the discretionary right of States to dispense with certain requirements for naturalisation, as Liechtenstein did with regard to the residence criterion in Mr Nottebohm’s circumstances.[47] This echoed the logic of the Permanent Court of International Justice in Nationality Decrees, as well as the Convention on Certain Questions relating to the Conflict of Nationality Laws, which posited the questions of nationality in the States’ domaine réservé (ie, within their internal competence).[48] Judge Read’s position was also reaffirmed in instruments such as the European Convention on Nationality and the International Law Commission’s (ILC) Draft Articles on Diplomatic Protection.[49]

States may have a variety of reasons for forgoing the genuine link requirement. These include the need to attract investment (see the discussion of ‘golden passports’ above) or mitigate demographic decline. It is also not uncommon for countries to waive some naturalisation conditions for migrants expected to make an extraordinary scientific, athletic, or cultural contribution.[50] Maatsch further observes that flexibility as to the requirements for the grant of citizenship may facilitate the remedy of past injustices.[51] An example of such can be seen in Spain and Portugal granting citizenships to the descendants of Sephardic Jews forced into exile in the 15^th and 16^th centuries[52] – people who would surely not meet the genuine link threshold as it was understood by the ICJ in Nottebohm. Yet, making good for historic wrongs seems a valid reason for naturalising them.

Therefore, in the context of the ‘global dynamics in which States compete against each other for limited human and material resources’,[53] upholding Nottebohm not only undermines State sovereignty, but is also inequitable for countries in dire need of people and investment or those who may have other valid reasons for liberalising their naturalisation processes such as redress of past grievances.

C. Globalisation

This article started with figures showing the unprecedented levels of global mobility that the world is currently experiencing.[54] In this context, the ‘genuine link test’proves out of date both because it is not in line with the evolving public opinion on what constitutes a meaningful connection to society, and because it hinders the positive effects of international migration.

Nottebohm was based on the premise that acquiring a nationality involves breaking the bond of allegiance to one State and establishing a new one to another country.[55] However, Judge Read’s dissent shows that this way of thinking was already outmoded in 1955. For example, Britain had permitted dual citizenship since the entry into force of the British Nationality Act 1948.[56] One could expect, perhaps, that the widely reported rise in nationalism and xenophobia in recent years would skew the public opinion back towards a more nativist view on nationality. However, somewhat counter-intuitively, the numbers show a different picture. According to Spiro’s empirical study, since the 1950s, plural nationality has become even more widely practised and accepted.[57] Moreover, the trend recognised by another Nottebohm dissenter, Judge ad hoc Guggenheim, that nationality becomes increasingly dissociated from permanent residence, is clearly continuing apace today.[58] This is because heightened mobility and technological advances allow people to maintain meaningful connections with multiple jurisdictions at the same time.[59] Schlenker’s findings that the majority of people still self-identify by their nationality as understood in the socio-political sense reflected in the genuine link standard do not bear on this argument:[60] if someone has reasons to apply for citizenship and the State to which they are applying is willing to allocate the nationality, then, as convincingly argued by Judge Read, in the absence of fraud or injury, it is not for international law to adjudicate on the motives leading to those decisions.[61] Too wide a discord between public opinion and international law can endanger the trust in, and the legitimacy of, the international legal system.

Secondly, the Nottebohm test is a hindrance to global mobility, which can have a positive impact on both sending and receiving countries. The World Bank’s research found that a rise in migration equal to 3% of the global workforce between 2005-2025 would generate global gains of $356 billion, with 2/3 of that figure accruing to developing countries.[62] Smaller economies would particularly benefit from phenomena associated with international mobility such as remittances – the value of financial transfers sent home by migrants in 2017 equalled $450 billion, accounting for as much as 37% of the Kyrgyz Republic’s GDP, 31% of Haiti’s, and 26% of Liberia’s.[63] There is, of course, a valid argument that migration leads to brain drain. However, its consequences are not always necessarily negative for the countries of origin: Goldin names the examples of the Philippines’ healthcare system benefitting from the training of its staff abroad and the strong network effect of diaspora, which may encourage international investment, aid, and political support for their home countries, as in the case of Taiwan.[64] It has also been previously mentioned that countries welcoming immigrants often benefit economically, be it from investment or the higher productivity and innovation found in migrants as compared to local populations.[65] While the scope of this piece is too narrow to do justice to the discussion of the advantages and disadvantages of migration, it is unquestionable that by setting an inflexible, high threshold for the recognition of naturalisation, the ‘genuine link test’ discourages international mobility, which results in many States missing out on its benefits.

Therefore, one must conclude that Nottebohm is no longer fit for the age of globalisation because it did not stand the test of time when it comes to corresponding with public views on the idea of nationality and because it prevents societies from fully benefitting from global mobility.

D. Statelessness

The most damaging aspect of Nottebohm is its potential to contribute to the global issue of statelessness, which, in turn, undermines individuals’ human rights and destabilises international peace and security.

Sloane is correct to point out that because Mr Nottebohm lost his German citizenship upon acquiring the Liechtensteiner one, the ICJ effectively rendered him stateless for the purposes of diplomatic protection.[66] Thus, the ILC rightly warns against the strict application of the genuine link standard in a world in which many people have moved away from their States of nationality and made their lives in countries whose citizenship they never acquire, or else have acquired nationality through descent or birth of States to which they do not have a meaningful connection. While it could be argued that some stateless persons could utilise the ‘genuine link test’ to re-establish their belonging to a State, in the light of the previously cited mobility statistics, a blanket enforcement of the Nottebohm rule would render many more stateless.[67] This would not only be a violation of the right to nationality,[68] but would also go against the long-standing General Assembly commitment to the eradication of statelessness as a threat to international peace and security.[69]

Therefore, it would be wrong for the ICJ to uphold a ruling which, if strictly applied, can contribute to a phenomenon which the High Commissioner for Refugees found to deny rights to large populations, fuel global refugee crises by causing forced displacement, and undermine both the socio-economic and political security and development of concerned States.[70]

Conclusion

This article has re-evaluated the ‘genuine link test’ for assessing the bindingness of naturalisation on third States, established by the ICJ in Nottebohm – a standard which, despite heavy criticism, has proven persistent in influencing the approaches of key institutions such as international organisations and arbitral tribunals.

It was argued that, even though the Nottebohm rule is useful for mitigating some of the risks associated with citizenship-by-investment programmes, there are other tools at policy-makers’ disposal, which, unlike the strict application of the ‘genuine link test’, can minimise the damage without compromising on the benefits of investor citizenship. Conversely, it has been shown that the meaningful connection standard is highly impractical to apply, an infringement upon the fundamental principle of State sovereignty, unfit for both public perception and the economic considerations in the era of globalisation, and, most importantly, possibly aggravates the problem of statelessness.

It is for these reasons that this author argues that the ICJ should use the nearest opportunity to revisit the Nottebohm judgment and depart from the ambiguous, outdated, and potentially harmful ‘genuine link test’. Instead, in view of international law, the issue of naturalisation should remain within the States’ (or, in the exceptional case of the EU, sui generis supranational organisations’) reserved domain – both regarding who and how they naturalise and what kind of conferral of nationality by a third State they recognise.

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[1] International Organisation for Migration (IOM), ‘World Migration Report 2022’ (IOM UN Migration, 1 December 2021) <https://worldmigrationreport.iom.int/wmr-2022-interactive/> accessed 13 January 2024.

[2] Nottebohm Case (Liechtenstein v Guatemala) (Second Phase)[1955] ICJ Rep 4, 23.

[3] Barbara von Rütte, The Human Right to Citizenship (Brill 2022) 17.

[4] Nottebohm (n 2) 13.

[5] ibid.

[6] ibid 14.

[7] ibid 15, 55.

[8] Audrey Macklin, ‘Is It Time to Retire Nottebohm?’ (2017) 111 American Journal of International Law Unbound 492, 493.

[9] Nottebohm (n 2) 16.

[10] ibid 24-5.

[11] ibid 25-26.

[12] See, for example, Joseph L Kunz, ‘The Nottebohm Judgment’ (1960) 54 American Journal of International Law 536.

[13] Peter J Spiro, ‘Nottebohm and ‘Genuine Link’: Anatomy of a Jurisprudential Illusion’ (2019) Investment Migration Working Paper 1/2019 <https://investmentmigration.org/wp-content/uploads/2020/10/IMC-RP-2019-1-Peter-Spiro.pdf> accessed 12 January 2024.

[14] Martijn van den Brink, ‘Revising Citizenship within the European Union: Is a Genuine Link Requirement the Way Forward?’ (2022) 23 German Law Journal 79, 82.

[15] Case C-369/90 Micheletti [1992] ECLI:EU:C:1992:47, Opinion of AG Tesauro, para 5.

[16] Italian-United States Conciliation Commission Flegenheimer [1958] 25 ILR 91, 148.

[17] van den Brink (n 14) 82.

[18] del Valle Ruiz and others v Spain [2023] PCA Case No 2019-17, para 422; Carrizosa and others v Colombia [2021] PCA Case No 2018-56, para 198.

[19] Bavanati v Iran [1995] Iran-USCTR Case No 296, para 12.

[20] Bajrami v FIFA & SFA [2021] CAS 2021/A/8075, para 130.

[21] Commission, ‘Report from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions on Investor Citizenship and Residence Schemes in the European Union’ COM (2019) 12 final.

[22] van den Brink (n 14) 83.

[23] Viviane Reding, Plenary Session Debate of the European Parliament on ‘EU Citizenship for Sale’ (15 January 2014).

[24] Ayelet Shachar, ‘Citizenship for Sale?’ in Ayelet Shachar, Rainer Bauböck, Irene Bloemraad, and Maarten Vink (eds), The Oxford Handbook of Citizenship (Oxford University Press 2017).

[25] van den Brink (n 14) 87.

[26] Javier Hidalgo, ‘Selling Citizenship: A Defence’ (2016) 33 Journal of Applied Philosophy 223.

[27] Amandine Scherrer and Elodie Thirion, ‘Citizenship by Investment (CBI) and Residency by Investment (RBI) Schemes in the EU: State of Play, Issues, and Impacts’ (European Parliamentary Research Service, October 2018) <https://www.europarl.europa.eu/RegData/etudes/STUD/2018/627128/EPRS_STU(2018)627128_EN.pdf> accessed 12 January 2024.

[28] Jelena Džankić, The Global Market for Investor Citizenship (Palgrave Macmillan 2019) 171-222; Consolidated Version of the Treaty on the Functioning of the European Union [2012] OJ C326, art 20.

[29] TFEU (n 28) art 20.

[30] Charter of Fundamental Rights of the European Union [2012] OJ C326, art 40.

[31] Parliament, ‘Resolution on EU Citizenship for Sale’ [2014] OJ C482.

[32] Loïc Azoulai, ‘”Integration Through Law” and Us’ (2016) 14 International Journal of Constitutional Law 449.

[33] Commission, ‘Investor Citizenship Scheme: Commission Refers Malta to the Court of Justice’ (European Commission, 29 September 2022) <https://ec.europa.eu/commission/presscorner/detail/en/ip_22_5422> accessed 11 January 2024.

[34] Council Regulation (EU) 2017/1939 of 12 October 2017 Implementing Enhanced Cooperation on the Establishment of the European Public Prosecutor’s Office (‘the EPPO’) [2017] OJ L283.

[35] United Nations Convention against Corruption (adopted 31 October 2003, entered into force 14 December 2005) 2349 UNTS 41.

[36] Commission, ‘Proposal for a Directive of the European Parliament and of the Council on Combating Corruption, Replacing Council Framework Decision 2003/568/JHA and the Convention on the Fight against Corruption Involving Officials of the European Communities or Officials of Member States of the European Union and Amending Directive (EU) 2017/1371 of the European Parliament and of the Council’ COM (2023) 234 final.

[37] Nottebohm (n 2) (Dissenting Opinion by Judge Read) 56.

[38] Macklin (n 8) 494.

[39] Nottebohm (n 2) (Dissenting Opinion by Judge Read) (46).

[40] Joseph H Carens, The Ethics of Immigration (Oxford University Press 2013) 164.

[41] Nottebohm (n 2) 56 (Dissenting Opinion of M Guggenheim, Judge ‘ad hoc’) 56.

[42] van den Brink (n 14) 88.

[43] ibid 84.

[44] UK Parliament, ‘Who Can Vote in UK Elections?’ (House of Commons Library, 16 November 2023) <https://commonslibrary.parliament.uk/research-briefings/cbp-8985/> accessed 10 January 2024.

[45] Spiro (n 13) 22.

[46] Charter of the United Nations (adopted 26 June 1945, entered into force 24 October 1945) 1 UNTS XVI, art 2(1).

[47] Nottebohm (n 2) (Dissenting Opinion by Judge Read) 43.

[48] Nationality Decrees Issued in Tunis and Morocco (French Zone) (Advisory Opinion) [1923] PCIJ Rep Series B No 4, 6, 24; Convention on Certain Questions relating to the Conflict of Nationality Laws (adopted 13 April 1930, entered into force 1 July 1937) 179 LNTS 89, art 1; Katja S Ziegler, ‘Domaine Réservé’ (Max Planck Encyclopedia of Public International Law, April 2013) <https://opil.ouplaw.com/display/10.1093/law:epil/9780199231690/law-9780199231690-e1398> accessed 1 March 2024.

[49] Council of Europe, European Convention on Nationality (adopted 6 November 1997, entered into force 1 March 2000) ETS 166, art 3; ILC, ‘Draft Articles on Diplomatic Protection with Commentary’ (2006) UN Doc A/56/10, 29.

[50] Ayelet Shachar, ‘Picking Winners: Olympic Citizenship and the Global Race for Talent’ (2011) 120 Yale Law Journal 2088.

[51] Aleksandra Maatsch, Ethnic Citizenship Regimes: Europeanization, Post-war Migration and Redressing Past Wrongs (Palgrave Macmillan 2011).

[52] Hans Ulrich Jessurun d’Oliveira, ‘Iberian Nationality Legislation and Sephardic Jews’ (2015) 11 European Constitutional Law Review 13.

[53] Džankić (n 28) 97.

[54] IOM (n 1).

[55] Nottebohm (n 2) 24.

[56] ibid (Dissenting Opinion by Judge Read) 42.

[57] Peter J Spiro, At Home in Two Countries: The Past and Future of Dual Citizenship (New York University Press 2016).

[58] Nottebohm (n 2) (Dissenting Opinion of M Guggenheim, Judge ‘ad hoc’) 57.

[59] Macklin (n 8) 495.

[60] Andrea Schlenker, ‘Divided Loyalty? Identification and Political Participation of Dual Citizens in Switzerland’ (2015) 8 European Political Science Review 517.

[61] Nottebohm (n 2) (Dissenting Opinion by Judge Read) 42-43.

[62] World Bank, ‘Global Economic Prospects 2006’ (World Bank Group eLibrary, November 2005) <https://documents1.worldbank.org/curated/zh/507301468142196936/841401968_2005103190201050/additional/Global-economic-prospects-2006-economic-implications-of-remittances-and-migration.pdf> accessed 9 January 2024.

[63] Ian Goldin, Development: A Very Short Introduction (Oxford University Press 2018) 130.

[64] ibid 130-31.

[65] ibid; see also van den Brink (n 14) 86.

[66] Robert Sloane, ‘Breaking the Genuine Link: The Contemporary International Legal Regulation of Nationality’ (2009) 50 Harvard International Law Journal 1, 16.

[67] ILC (n 49) 30.

[68] Universal Declaration of Human Rights (adopted 10 December 1948) UNGA Res 217 A(III), art 15(1).

[69] UNGA Res 50/152 (9 February 1996) UN Doc A/RES/50/152, recital 9 and clause 16; UNGA Res 67/149 (20 December 2012) UN Doc A/RES/67/149, clauses 5 and 7; UNGA Res 68/141 (18 December 2013) UN Doc A/RES/68/141, clauses 5, 8, and 9; UNGA Res 70/135 (17 December 2015) UN Doc A/RES/70/135, clauses 11 and 12.

[70] United Nations High Commissioner for Refugees, ‘Global Action Plan to End Statelessness: 2014-2024’ (UNHCR, 2014) <https://www.unhcr.org/media/global-action-plan-end-statelessness-2014-2024> accessed 8 January 2024.

Jan Młynarczyk

LLB (LSE) ’24 and Notes Editor of the LSE Law Review 2023-24; Articles Editor of the LSE Law Review Summer Board 2023. I would like to thank Dr Chaloka Beyani (LSE) for his invaluable comments on the earlier drafts of this piece, as well as recognise my LSE Jessup 2024 colleagues and coaches for inspiring the subject matter of this article. I am also grateful to the Editorial Team for their feedback and guidance.