Nottebohm Case (Lichtenstein v. Guatemala)

Parties (including notable third parties)

Liechtenstein (State party); Guatemala (State party)

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Summary of Facts

Mr Nottebohm, born at Hamburg, was a German national when, in October 1939, he applied for naturalisation in Liechtenstein.

In 1905, Mr Nottebohm went to Guatemala, which he made the centre of his business activities, which increased and prospered. He sometimes went to Germany on business and to other countries for holidays, and paid a few visits to Liechtenstein, where one of his brothers had lived since 1931; but he continued to have his fixed abode in Guatemala until 1943

On 9 October 1939, Mr Nottebohm applied for naturalisation in Liechtenstein.

On 13 October 1939, a Certificate of Nationality was produced to the effect that Mr Nottebohm had been naturalised by a Supreme Resolution of the Prince. Mr Nottebohm then obtained a Liechtenstein passport, and had it visa-ed by the Consul general of Guatemala in Zurich on 1 December 1939, and returned to Guatemala at the beginning of 1940, where he resumed his former business activities.

On 17 December 1951, Liechtenstein filed a claim in the ICJ for restitution and compensation from Guatemala. Liechtenstein alleged that Guatemala had acted in a manner contrary to international law by unjustified detention, internment and expulsion of Mr Nottebohm, a citizen of Liechtenstein. Liechtenstein’s claim referred to Guatemala’s declarations that accepted the compulsory jurisdiction of the ICJ.

On 18 November 1953, Guatemala objected to the ICJ’s jurisdiction on the basis that the Declaration by which it accepted the compulsory jurisdiction of the Court had ceased to be in force after 26 January 1952. In the first Judgment, the ICJ overruled Guatemala’s objection on the basis that an international tribunal has the right to decide its own jurisdiction.

On 6 April 1955, the ICJ dealt with the admissibility of Liechtenstein’s claim in the second Judgment. Guatemala, yet again, objected to the ICJ’s jurisdiction on several rounds, one of its objections to the admissibility of the claim related to the nationality of Mr Nottebohm for whose protection Liechtenstein had seised the Court.

The overarching issue before the ICJ was whether Mr Nottebohm's naturalisation of Liechtenstein citizenship was sufficient for Liechtenstein to be entitled to file an admissible claim before the ICJ on his behalf, despite Guatemala's refusal to recognise Mr Nottebohm's Liechtenstein citizenship.

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Legal Arguments

Legal arguments by Guatemala

Guatemala referred to the well-established principle of international law that it is the bond of nationality between the State and the individual which alone confers upon the State the right of diplomatic protection. Guatemala contended that Nottebohm’s naturalisation in Liechtenstein was not based on any meaningful ties to the State, noting that he had no long-term residence, business activity or sustained personal connection there. Instead, Guatemala argued that the naturalisation was primarily sought to avoid the consequences of his German nationality during wartime.

Additionally, Guatemala raised procedural objections to the admissibility of the claim, including the absence of prior diplomatic negotiations with Guatemala and Nottebohm’s alleged failure to exhaust local remedies in Guatemala. Guatemala further challenged the legality of the naturalisation process under Liechtenstein law, asserting that it was irregular and potentially obtained under false pretences.

Legal arguments by Liechtenstein

Liechtenstein considered itself to be acting in conformity with the principle and contended that Nottebohm was, in fact, its national by virtue of the naturalisation conferred upon him. Moreover, Liechtenstein argued that Guatemala had implicitly recognised Nottebohm’s Liechtenstein nationality through a series of administrative acts, such as granting a visa on his Liechtenstein passport and updating his status in local registers. Liechtenstein maintained that these acts effectively prevented Guatemala from later challenging his nationality.

Liechtenstein further invoked the principle of State sovereignty over nationality law, asserting that other states should respect nationality granted in accordance with a State’s domestic procedures and not unilaterally disregard it.

Outcome

The ICJ decided that Liechtenstein was not entitled to take up Mr Nottebohm’s case and put forward an international claim on his behalf against Guatemala. The ICJ dealt with the issue without considering the validity of Mr Nottebohm’s naturalisation according to the Law of Liechtenstein.

The ICJ enunciated that the grant of nationality is entitled to recognition by other States only if it represents a genuine connection between the individual and the State granting its nationality.

The question ICJ considered, at the time of Mr Nottebohm’s naturalisation, was: does Mr 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 ICJ found that Mr Nottebohm’s actual connections with Liechtenstein were extremely tenuous. (The link theory/test articulated by the court here as  ‘‘a genuine connection of existence, interests and sentiments, together with the existence of reciprocal rights and duties’’) The ICJ pointed out that Mr Nottebohm always retained his family and business connections with Germany, and that there is nothing to indicate that his application for naturalisation in Liechtenstein was motivated by any desire to dissociate himself from the Government of his country. Moreover, Mr Nottebohm had been settled for 34 years in Guatemala, which was the centre of his interests and his business activities. Members of Mr Nottebohm’s family had asserted his desire to spend his old age in Guatemala. While the Court affirmed that it is within the sovereign right of every state to define the criteria for nationality under its domestic law, it emphasised that such nationality must meet international standards to form a valid basis for diplomatic protection. The Court upheld the principle of effective nationality, the ‘genuine link’ principle established by this case, which requires a genuine connection between the individual and the state asserting protection. Although this principle had mainly applied to dual nationality cases before, the Court applied it here to assess the legitimacy of Nottebohm’s naturalisation. It concluded that his acquisition of Liechtenstein nationality lacked a real link to the country because it was pursued primarily to avoid the consequences of being a national of a “belligerent state during wartime.” Therefore, Liechtenstein could not validly exercise diplomatic protection on Nottebohm’s behalf, and its claim was ruled inadmissible.

For those reasons, the ICJ held the claim of Liechtenstein to be inadmissible.

International, Regional and Domestic Instruments and Provisions Cited

Source	Instrument name	Provisions cited
International	Charter of the United Nations	Article 33
Domestic	The Liechtenstein Law of January 3rd, 1934	Unknown

UNHCR Statelessness Guidelines cited

This case does not cite UNHCR Statelessness Guidelines.

Available commentary

Rayner Thwaites, ‘The Life and Times of the Genuine Link’ (2008) 49(4) Victoria University of Wellington Law Review 645

• The author argues that the requirement of "genuine link" introduced in Nottebohm was a "restrictive innovation" in the field of international claims. More particularly, what was new was the application of the "genuine connection" requirement to a person with only one nationality. The precedents the Court gave for the genuine connection test were taken from arbitrations addressed to issues of plural nationality. More particularly, the precedents concerned the doctrine of “effective nationality”.
• The author points out that, as a national of Liechtenstein and nowhere else, the test of "real and effective" nationality ceased to play a role in enabling an individual to make a claim that would otherwise be precluded. It had the opposite effect, serving as a new hurdle to the making of a claim, additional to nationality. The genuine connection requirement introduced in Nottebohm qualified a sole national's ability to exercise a core attribute of his or her nationality status, namely diplomatic protection. It did so based on an assessment of the "genuineness" of his or her ties to the relevant country.
• In Nottebohm, a doctrine that had been a means of managing the interaction between two states of nationality changed into something else. It became a doctrine that conditioned a person's ability to exercise his or her only nationality. The exercise of diplomatic protection, grounded in a person's nationality, was now conditioned on an assessment of "social facts" disclosing the presence or absence of a genuine link with the relevant state, absent any need to accommodate or balance the interaction of two nationalities held by a person.