Nottebohm and ‘Genuine Link’: Anatomy of a Jurisprudential Illusion – IMC-RP 2019/1

ABSTRACT

The ICJ’s 1955 decision in the Nottebohm Case famously set forth an aspirational conception of nationality requiring a “genuine link” between an individual and a state for purposes of international law. The formulation was controversial from its inception as a departure from the prevailing rule that states enjoy sovereign discretion over nationality practices. At no time has “genuine link” represented a general rule of international law. The putative doctrine has a poor track record in subsequent international proceedings (including before the European Court of Justice), effectively limited to supplying secondary support for the “dominant nationality” approach in the narrow context of international claims involving dual nationals. “Genuine link” is even less appropriately applied in the wake of globalisation, in which states have increasingly enabled the conferment of nationality to individuals with tenuous connections to the state, for example, through ancestral descent. Although some political theorists have deployed the “genuine link” label to advance a liberal nationalist agenda, Nottebohm has been rejected by a growing consensus of legal scholars.

KEYWORDS: nationality, citizenship, international law, Nottebohm, naturalization, dual nationality

Peter J. Spiro, Charles R. Weiner Professor of Law, Temple Law School.