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NOTTEBOHM CASE SECOND PHASE)

udgment of April 1955

The Nottebohm case had been brought to the Court by anApplication by the Principality of Liechtenstein against theRepublic of Guatemala.

Liechtenstein claimed restitution and compensation on theground that the Government of Guatemala had acted towardsMr. Friedrich Nottebohm, a citizen of Liech.tenstein, in amanner contrary to international law. Guatemala, for itspart, contended that the claim was inadmissibba on a numberof grounds, one of which related to the nationality of Notte-bohm, for whose protection Liechtenstein had seised theCourt.

In its Judgment the Court accepted this latter plea in bar

and in consequence held Liechtenstein s claim to be inadmis-sible.

The Judgment was given by eleven votes to three. JudgesKlaestad and Read, and M Guggenheim, Judge ad beappended to the Judgment statements of their dissentingopinions.

In its Judgment the Court affirmed the fundamental impor-tance of the plea in bar referred to above. In putting forward

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this plea, Guatemala referreil to the well-establislled princi- of Nationality was also produced to the effect that Notte-ple that it is the bond of natio~nality etween the State and the bohm had been naturalized by a S upreme Resolution of theindividual which alone confers upon the State the right of Prince of 13th October, 19 39. Nottebohm then obtained adiplom atic protection. Liechtenstein considered itself to be Liechtenstein passport and had it visa-ed by the Consu l Gen-acting in conformity with this principle and contended that eral of Guatemala in Zurich on 1st Decem ber, 1939, andNottebohm was, in fact, its niittlonal by virtu: of the natural- returned to Guatemala at the beginning of 1940, where heization con ferred upon him. resumed his form er business activities.

The Court then considerai the facts. Nonebohm, born at These being the facts, the C ourt considered whether theHamburg, was still a Ckrm m national w h n , in October naturalization thus granted could be validly invoked against1939, he app lied for naturali;zation in Liechtc:nstein. In 1905 Guatem ala, whether it bestowed upon Lieclltenstein a suffi-he went to G uatemala, which he made the centre of his busi- cient title to exercise protection in respect of N ottebohm asness activities, which increitsed and prospered. He some- against Guatemala and therefore entitled it to seise the C ou ntimes Went to G ermany on business and to 0tller countries for of a claim relating to him. T he Court did not propose to goholidays, and also paid a few visits to Liechtensl:ein, where beyond the limited scope of this question.one of his brothers had lived :since 1931; but he continued tohave his fixed abode in Guatr:mala until 1943, that is to say, In order to establish that the Application must be heldunti l the even ts which constihJted the basis ojfthe present dis - admissible, Liechtenstein argued that Guatemala had for-pute. In 1939 he left Guatem ala at approximlately the end of merly recognized the which it chal-~ ~ ~ h ;e seems to have gonr:to ~~b~~~ to have paid a lenged. Examining Gu atemala's attitude towards Nottebohmfew brief visits to ~ i ~ ~ h ~ ~ ~ ~ ~ : ~ i ~ ,here he was the begin- since his naturalization, the Court consid ered that Guatem ala,,ing of octokr 939. It was then, on 9th ~ ) ~ ~ ~ b ~ ~ ,939, a had not recognized L iechtenstein's title to ex ercise protec-little more than a month er the openinp of h second tion in respect to Nottebohm. It then considered whether theWorld War, marked by G ~ ~ ~ ~ ~ ~ Y ~ttack or b h m d , that he granting of nationality by Liechtenstein directly entailed anapp lied for naturalization in :I,iechtenstein. obligation on the part o f Guatem ala to recognize its effect; in

other words, whether that unilateral act by Liechtenstein wasThe n ecessary con ditions for the naturalization of foreign- one which could be =lied upon against ~ ~ ~n regarders in Liechtenstein re laid clown by th e Liechtenstein Lawto the r,xerciseof protection. ~h~court ealt with thisquesof4 th January*1934. This lw equires things: tion without considering that of the validity of Nottebo hm's

that the applicant for naturalization must prove chat accept- naturdization accordingto the Law of~iechtenstein.ance into the Home Corporation (Heirnu] verband) of aL iech tenstein commune has h n romised to him in case of Nationality is within the domestic urisdiction of the State,acquisition of the natio nalifv of the State; that, sub ject to which settles, by its own legislation, the rules relating to thewaiver of this requirem ent under stated conditions, he m ust acquisition of its nationality. But the issue which the C ourtprove that he will lose his former nationalityas the result of must decide is not one w hich pertains to the legal system ofnaturalization; hat he h as been resident in th,e Pri~lcipality or Liechtenstein; to exercise protection is to place oneself on theat least three y ears, a lthou l~h his requirennent can be dis- plane of international law. International practice providespensed with in circumstances desehng specid consider- many exam ples of acts performed by States in the exercise ofation and by way of excer,tion; that heh : ~oncluded an their domestic urisdiction which do not necessarily or auto-agreement concerning liability to taxation with the compe- matically have international effect. When two States havetent authorities and has paid a naturalization fee. The Law conferred their nationality upon the same individu al and thisreveals concern that naturalization should only be granted situation is no lon ger confined within the lim its of the domes-with full knowledge of all &pertinent facts and adds that the tic jurisdiction of on e of these States but exten ds to the inter-

grant of nationality is b-d where circumstances uchs national field, international arbitrators or th e Co urts of thirdto cause apprehension that prejudice may enure to the State States whichare called upon to deal with this situation wouldof Liechtenstein.AS regard.9 the pro cedu e: to be followed, allow the contradiction o subsist if they cor~finedhemselvesth Government examinesth application. obtains infom a- to the view that nationality is exclusively within the dom estiction concerning the appl ica~ ;t,ubmits the iipplication to the jurisdiction of the State.In order to resolve the conflict theyDiet, and , if this application is approved , submits arequest to have, on the con trary, sought to ascertain whether nationalitythe R eigning P rince w ho altr.ne is en titled tc, confer national- h s een conferred in circumstances such to give rise to anity obligation on the part of the respondent State to recognize the

effect of that nationality. In order to decide this question,In his application for ]naturalization Nonebohm also they have evolved cemin crimia. They have given tbcirapplied for the previous coufermen t of citizenship of Mau- plefnence to the real and effectivenationality, that whichren, a commune of Liechtznstein. He sought dispensation accorded with the facts that based on stronger factual tiesfrom the condition ofthree years' prior resider~ce,without between the person and one of these Stuesindicating the cimmstances wananting such a is involved Different factors sen i n o con-waiver. He undertook to pay (in Swiss francs) 25.000 fn u rs and their mpm will vary one cnse toto the com mu ne and 12,500 francs to the State9 the costs of the next: there is the hab itual residenceof the individualcon-Ihe proceedings* and an lax of 0 0

cerned but also the ce n mof his interests, Ilia fami ly ties, hisfrancs-subject to the proviso that the payment hese taxeswas to be set off against orclinarymes which fall due participation in p ublic life, attachmen t shown by him fo r aif the applicant took up residence in Liechtenstein-and to given country and inculcated in his ch ildren, etc.deposit as security the sum of 30,000 Swis r francs. Docu- The same tendency prevails among writers. Moreover, thement dated 15th October, 1939 certifiesthttt on that date the practice of certain States, which refrain from exercising pro-citizenship of M auren had Ik en conferred upon him.A Cer- tection in favour of a naturalized person when the latter has intificate of 17th October, 1939 evidences the payment of the fact severed his links with what is no long er for him anyth ingtaxes required to be paid. In 20th Octo ber Nottebohm took but his nominal country, manifests the view that, in order tothe oath of allegiance and on 23rd October an arrangement be invoked against anoth er State, nation~alitymust com-concerning liability to taxation was conclutied. Certificate sponcl with a factual situatio n.

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The character thus recognized on the intern~ational evel aspertaining to nationality is in no way inconsistent with thefact that international law leaves it to each State to lay downthe rules governing the grant of its own nationality. This is sofailing any general agreement on the rules relating to nation-ality. It has been considered that the best way of making suchrules accord with the varying demographic conditions indifferent countries is to leave the fixing of such rules to thecompetence of each State. But, on the other hand, a Statecannot claim that the rules it has laid down are entitled to rec-ognition by another State unless it has acted in conformitywith this general aim of making the nationality grantedaccord with an effective link between the State and the indi-vidual.

According to the practice of States, nationality constitutesthe juridical expression of the fact that an individual is moreclosely connected with the population of a particular State.Conferred by a State, it only entitles that Stiite to exerciseprotection if it constitutes a translation into uridical terms ofthe individual s connection with that State. Is this the case asregards Mr. Nottebohm? At the time of his naturalization,does Nottebohm appear to have been more cbosely attachedby his tradition, his establishment, his interests, his activi-ties, his family ties, his intentions for the near future, toLiechtenstein than to any other State?

In this connection the Court stated the essential facts of thecase and pointed out that Nottebohm a1way.s retained hisfamily and business connections with Gerrr~any nd thatthere is nothing to indicate that his application ]For naturaliza-tion in Liechtenstein was motivated by any desire to dissoci-ate himself from the Government of his country. On the other

hand, he had been settled for 34 years in Guatemala, whichwas the centre of his interests and his business activities. Hestayed there until his removal as a result of war measures in1943, and complains of Guatemala s refusal to readmit him.Members of Nottebohm s family had, moreover, asserted hisdesire to spend his old age in Guatemala. In contrast, hisactual connections with Liechtenstein were extremely tenu-ous. If Nottebohm went to that country in 1946, this wasbecause of the refusal of Guatemala to admit him. There isthus the absence of any bond of attachment with Liechten-stein, but there is a long-standing and close connectionbetween him and Guatemala, a link which his naturalizationin no way weakened. That naturalization was not based onany real prior connect:ion with Liechtenstein, nor did it in anyway alter the manner of life of the person upon whom it wasconferred in exceptio~ial ircumstances of speed and accom-modation. In both respects, it was lacking in the genuinenessrequisite to an act of such importance, if it is to be entitled tobe respected by a State in the position of Guatemala. It wasgranted without regmi to the concept of nationality adoptedin international relations. Naturalization was asked for not somuch for the purpose of obtaining a legal recognition of Not-tebohm s membership in fact in the population of Liechten-stein, s it was to enable him to substitute for his status as anational of a belligerent State that of the subject of a neutralState, with the sole airn of thus coming within the protectionof Liechtenstein but iiot of becoming wedded to its tradi-

tions, its interests, its way of life or of assuming theobligations-other than fiscal obligations-and exercisingthe rights pertaining to the status thus acquired.

For these reasons thc Court held the claim of Liechtensteinto be inadmissible.