Citizenship — International law
Confict of nationalities: and the winner is ……………….
𝘿𝙪𝙖𝙡 𝙣𝙖𝙩𝙞𝙤𝙣𝙖𝙡𝙞𝙩𝙮 𝙘𝙖𝙣 𝙘𝙖𝙪𝙨𝙚 𝙨𝙤𝙢𝙚 𝙘𝙤𝙣𝙛𝙡𝙞𝙘𝙩𝙨 𝙞𝙣 𝙘𝙖𝙨𝙚 𝙖𝙣 𝙞𝙣𝙙𝙞𝙫𝙞𝙙𝙪𝙖𝙡 𝙨𝙚𝙚𝙠𝙨 𝙙𝙞𝙥𝙡𝙤𝙢𝙖𝙩𝙞𝙘 𝙥𝙧𝙤𝙩𝙚𝙘𝙩𝙞𝙤𝙣 𝙖𝙜𝙖𝙞𝙣𝙨𝙩 𝙖 𝙎𝙩𝙖𝙩𝙚 𝙬𝙝𝙤𝙨𝙚 𝙣𝙖𝙩𝙞𝙤𝙣𝙖𝙡𝙞𝙩𝙮 𝙨𝙪𝙘𝙝 𝙥𝙚𝙧𝙨𝙤𝙣 𝙖𝙡𝙨𝙤 𝙥𝙤𝙨𝙨𝙚𝙨𝙨𝙚𝙨.
In recent years there has been an increasing interest by many individuals in obtaining a second citizenship and a growing number of States have changed their legislations allowing the retention of nationality even in case of acquisition of a second citizenship.
𝘿𝙪𝙖𝙡 𝙣𝙖𝙩𝙞𝙤𝙣𝙖𝙡𝙞𝙩𝙮 𝙘𝙖𝙣 𝙝𝙤𝙬𝙚𝙫𝙚𝙧 𝙘𝙖𝙪𝙨𝙚 𝙨𝙤𝙢𝙚 𝙘𝙤𝙣𝙛𝙡𝙞𝙘𝙩𝙨 𝙞𝙣 𝙘𝙖𝙨𝙚 𝙖𝙣 𝙞𝙣𝙙𝙞𝙫𝙞𝙙𝙪𝙖𝙡 𝙨𝙚𝙚𝙠𝙨 𝙙𝙞𝙥𝙡𝙤𝙢𝙖𝙩𝙞𝙘 𝙥𝙧𝙤𝙩𝙚𝙘𝙩𝙞𝙤𝙣 𝙖𝙜𝙖𝙞𝙣𝙨𝙩 𝙖 𝙎𝙩𝙖𝙩𝙚 𝙬𝙝𝙤𝙨𝙚 𝙣𝙖𝙩𝙞𝙤𝙣𝙖𝙡𝙞𝙩𝙮 𝙨𝙪𝙘𝙝 𝙥𝙚𝙧𝙨𝙤𝙣 𝙖𝙡𝙨𝙤 𝙥𝙤𝙨𝙨𝙚𝙨𝙨𝙚𝙨.
The classic rule was codified in Article 4 of the 1930 Hague Convention on Certain Questions Relating to the Conflict of Nationality Laws which stipulates that
‘A State may not afford diplomatic protection to one of its nationals against another State whose nationality such person also possesses.’
Where the individual claimant also possesses the nationality of a third State, Article 5 of the Hague Convention allows for greater flexibility and regard is likely to be paid to which of the two nationalities is the more effective.
𝙈𝙖𝙣𝙮 𝙎𝙩𝙖𝙩𝙚𝙨 𝙬𝙖𝙧𝙣 𝙩𝙝𝙚𝙞𝙧 𝙘𝙞𝙩𝙞𝙯𝙚𝙣𝙨 𝙖𝙗𝙤𝙪𝙩 𝙩𝙝𝙚 𝙥𝙤𝙨𝙨𝙞𝙗𝙡𝙚 𝙙𝙞𝙛𝙛𝙞𝙘𝙪𝙡𝙩𝙞𝙚𝙨 𝙩𝙝𝙖𝙩 𝙘𝙖𝙣 𝙖𝙧𝙞𝙨𝙚 𝙬𝙝𝙚𝙣 𝙖𝙣 𝙞𝙣𝙙𝙞𝙫𝙞𝙙𝙪𝙖𝙡 𝙝𝙤𝙡𝙙𝙨 𝙖 𝙨𝙚𝙘𝙤𝙣𝙙 𝙣𝙖𝙩𝙞𝙤𝙣𝙖𝙡𝙞𝙩𝙮.
The US State Department, for example, underlines that holding a second citizenship “may limit US Government efforts to assist citizens abroad”.
Other Governments, such as Australia, Canada, and UK have the same position on the matter.
Effective and dominant nationality
But what happens in case of conflicts between nationalities? The older non-responsibility rule seems no longer the prevailing principle applicable to cases where issues arise to conflicting nationalities. During recent years is being replaced by the principle of “effective nationality”, set forth in the milestone case Liechtenstein v Guatemala (Nottebohm case) of the International Court of Justice. The Court affirmed that international arbitrators have given their preference to the real and effective nationality, which is based on stronger factual ties between the person concerned and one of the States whose nationality is involved. Factors which are taken into consideration for determining that the link is effective are: (i) the habitual residence of the individual; (ii) the centre of his interests; (iii) his family ties, his participation in public life; (iv) attachment shown by him for a given country and inculcated in his children.
Effective nationality must be based on strong factual ties
After the Nottebohm decision, the “effective nationality” principle has been confirmed by many Tribunals. The Iran-United States Claims Tribunal in Case No. A-18, for example, affirmed that is the rule of real and effective nationality and the search for stronger factual ties between the person concerned and the one of the States whose nationality is involved, that must be taken into account. The same tribunal, Case n. 296 Bavanati, dismissed a compensation case brought by an Iranian-US dual national because “evidence shows that since 1974, when the claimant moved to Germany, his habitual residence, center of interest, family ties, participation in public life and other attachments have been insufficient to support a finding that Mr. Bavanati’s links to United States were dominant over his links to Iran …”.
Genuine link theory cannot be generalized
The Nottebohm award was not unanimous and some of the judges and some authors have expressed dissenting opinions for various reasons. The possible limitations to the general applicability to all cases of the “genuine link” doctrine were clearly acknowledged in case Flegenheimer decided in 1957 by the Italian-US Concilation Commission. The Tribunal recognized, in fact, that if the genuine link doctrine were to be generalized, thousands of persons who possess the nationality of a State but have their centre of interest, family and business in another State, would be exposed to non-recognition of their nationality. The genuine link theory, if applied strictly, would exclude all these persons from the benefit of diplomatic protection (cfr. UN Special Rapporteur, John Dugarde)
Abuse of nationality
The Nottebohm award, evidenced however that situations of abuse of dual nationality may occur. The Court indicated in fact that, in the case of Mr. Nottebohm, naturalization was asked for not so much for the purpose of obtaining a legal recognition of his bond and allegiance to Liechtenstein, but with the sole purpose to enable him to substitute for his status as a national of a belligerant State (Germany) that of a national of a neutral State (Liechtenstein). Mr. Bottehom did not show any intent of becoming wedded to Liechtenstein’s traditions, its interests, its way of life or of assuming the obligations — other than fiscal obligations — and exercising the rights pertaining to the status thus acquired. Judge Guggenheim noted that “nationality acquired for the sole purpose of claiming diplomatic protection … forms part of a transaction which is to be regarded as generally fraudulent and a State may refuse to recognize the change of nationality”.
Effective nationality cannot be disguised in order to obtain illegittimate benefits
The concept of a possible abuse of dual nationality was further expanded in case A-18 and in other cases decided by the Iran-US Tribunal. In judging those cases, the Tribunal affirmed the principle that “dual nationality cannot abused, i.e. the Tribunal could deny jurisdiction on equitable grounds in cases of fraudulent use of nationality”. In the Case Esphahanian, the Tribunal affirmed that “Such a case might occur where an individual disguises his dominant and effective nationality in order to obtain benefits with his secondary nationality”. In the case Saghi, the Tribunal denied the claim because the claimant “had consciously sought and obtained Iranian nationality solely for the purpose of having certain shares …placed in his name in order to minimize the adverse effects of the Law of Expansion. … To rule otherwise would be to permit an abuse of right”.
Conclusions
In case of conflict of nationalities, the nationality of the State of which the individual has a genuine connection and bond will prevail. The genuinity and dominance of the connection shall be assessed taking into account the person’s habitual residence and other factors such as the centre of his interests, his family ties, his participation in public life, and other attachments. Dual nationality has however some limitations. It can limit the State’s ability to protect its citizens abroad and, more important, cannot be used fraudulently in order to obtain benefits to which an individual would otherwise not be entitled to.
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Italo-Moroccan student jailed for 3 yrs in Marrakesh — English — ANSA.it
