Nationality as we know it? – A note on the genuine link

The Nottebohm judgement is probably one if not the best-known case of the ICJ. Ever since its release in 1955 the tune of a genuine link has been reverberating in international law. However, just like so many other one-hit wonders the genuine link has been belittled and failed to genuinely make inroads into doctrinal circles. The general assessment veers somewhere between unhelpful, misguided and retired for good.

The hymn of sovereignty: Nationality is what any State makes of it

And truth be told, looking at the doctrinal understanding of nationality and the recent State practice of handing out nationality al gusto the argument that some form of a substantive relationship needs to exist before any individual can be deemed a national, is hard to gulp. The monetarization of nationality, the freewheeling passportization in the name of nationalistic politics and last but not least the instrumentalization of nationality to overcome the wrongs of a century old past are all but out of sync with the tune of a genuine link. Indeed, the classical hymn that it is for each and every State to decide who its nationals are seems to be the recurring to go to theme, out(b)lasting any reminiscences of a genuine link.

The caveat that sovereignty over one’s nationality is subject to the observance of some limitations under international law, while conveniently added, is given little attention on the ground. Even exorbitant policies like Russia’s extraterritorial passportization in the Caucasus and the Ukraine have remained widely unaddressed and are subject to cacophonic assessments. The limits to the logic of an “unfettered” sovereignty over one’s own nationality seemingly is only heard in the outer regions of a still State-centric international legal order: Where there is no State there can be no nationality. Beyond these far-off lands the evergreen of sovereignty over one’s own nationality remains the rumbling sound of the day, inviting for a laissez faire attitude: Nationality is what any State makes of it.

This attitude has been further supported by two factors. Firstly, globalization and liberalism, which swing to the tune of free allocation of market resources and individualism, allowing ever more people (human capital), to move freely and thereby leave behind the realms of their home countries. The consequences of this process have been an opening up of nationality laws on the one hand and the gradual acceptance of dual and plural nationalities on the other. Globalization and liberalism thereby have created an environment that has unshackled the idea that nationality is a sacred status. Rather, and this may be treated as the second contingent factor, nationality has become something fluid, something that can be instrumentalized. And while this instrumentalization of nationality has led some States to rewrite their nationality laws to allow for the integration of immigrants others have pursued a policy that is aimed at attracting the rich, the beautiful and the well-educated or – just like Russia – to proclaim a personal sphere of sovereignty that goes beyond the territorial confines. Paradoxically, globalization and liberalism thereby have not only fostered the ability for the individual to escape the seemingly inextricable bond of the Schicksalsgemeinschaft and thus move (more) freely between different (relatively) open societies but have also – and ever more so – provided cover for policies that fit into the wider basket of identity politics or are strictly nationalistic.

Moreover, since nationality serves as a basis not only for diplomatic protection and personal jurisdiction but is a means to integrate the individual within the international legal sphere of their respective home State an unfettered claim over the bestowment of one’s nationality amounts to nothing less than the sovereign ability to establish exuberant claims on the international plane. Taken to extreme, nationality in this sense may serve as denominator for a rather different conception of the international order along the lines of Schmitt or Huntington. Rather than territory, personal allegiances rooted in ethnicity, religion or self-ascribed cultural links become the dominant factors legitimizing the exercise of authority: l’État est là où se trouve son peuple. The State in this world is nothing more than the territorial surface and a means to an end for a transcendent nation – whatever that is.

The resurrection of a one-hit wonder

To unwind the (potential) conflicts between territorial and personal claims of sovereignty within the present conception of our still preeminently territorial legal order some – although so far to no avail– have suggested to generally regard claims based on the personal linkage as inferior. Others, however, have suggested that claims based on nationality require further substantiating. Thereby nationality as such remains untouched but the ability of the home State to claim rights and obligations associated with nationality on the international plane are hollowed out. Very much along these lines also the requirement of a genuine link in Nottebohm has been read not as a challenge to Liechtenstein’s nationality as such but as an additional requirement for Liechtenstein’s ability to exercise diplomatic protection. Following up on this logic it has been argued that nationality is an outdated, romanticized concept and that the requirement of a substantiated link between a State and an individual ought to be assessed differently for different legal claims. Rather than engaging with the original limits to the claim of sovereignty over nationality, this approach suggests to engage in a miasma of different specific (genuine) links. As of yet, however, this approach has not taken hold and going by the legal writings in public international law and the ILC there indeed seems to be little appetite to engage with the genuine link in any sort or form. The occasional echoes of a genuine link thus are just blown away by the trumpeting mantra of sovereignty.

It should come as little surprise that to turn against the fiat of this musical monothema risks to enrage some listeners. So, when the ECJ in Tjebbes – paraphrasing the ICJ in Nottebohm – implied that nationality as the precursor for Union citizenship is dependent on a genuine link reflected in the individuals personal and professional ties, some critics did not react kindly. Now this is not the place to address this critique in detail, it is however striking that the overtures that nationality is founded on the understanding of a genuine link that itself is linked to the individual’s embeddedness within a State and society are so provocative. If nationality as a legal status in international law serves as a judicial marker for the people of a State isn’t it consequential that nationality is subject to effectively being part of that people? Now I know that the classical counterarguments against this view are that neither the traditional modes of ius soli nor ius sanguinis require a further link and that if a substantial genuine link was required the nationality of millions of people who over time have lost these links would be void, leaving them stateless. These arguments, however, in my humble opinion are misleading:

Firstly, and to address the latter argument first, nationality is and ought to be perceived as a legal instrument in international law that translates the fact of a genuine link into a perpetual legal status. Nationality is reflective of certain facts “of a social attachment” that allow for the prognosis that these facts will remain the same over time and thus encrypts these facts into a permanent legal status. Nationality thereby hypostatizes a factual status into a legal status and unless that legal status is taken away the legal “fiction” of a social attachment remains. In other words, even if one was to lose the genuine link with one’s home State, nationality as a legal status would remain intact as long as that nationality was not formally withdrawn. Nationality hence has a rationalizing and stabilizing function, taking away the burden of second guessing the factual links of an individual at any given point in time. It is, after all, a manifestation of a lasting bond between an individual and a State.

Secondly, if we perceive nationality as a legal status, it seems only consequential to also assess the substance of a genuine link through a legal prism. And indeed, the idea that the genuine link reflects the individual belonging to a State and the embedment within of the people of the State can be legally reconfigured as the ability of the home State to regulate the personal and professional relationships. The rights and obligations that underpin the social attachment then are the rights and obligations shaped within the particular legal environment of that State. Intriguingly, this conception also concurs with the understanding set out by the ECtHR that nationality constitutes a part of one’s personal identity, as the legal environment in which are embedded is – at least to some extend – formative for the development our own being. The very starting point for any assessment of a genuine link therefore ought to be whether the individual in question comes within the regulatory sphere of his or her presumptive home State. Ius soli and ius sanguinis, seen from this angle, are mere approximations for the home State’s ability to regulate the evolving personal relationships of a new born human on the basis of an existing territorial or personal jurisdictional link. The prognosis that this initial genuine link will persist is as with all prognoses subject to false positives and negatives. From an overall perspective, however, the assumption that a new born human being will develop his or her personal and professional relationships within the confines of the legal regime where he or she was born or under which the relationship with his or her parents has been established, does not seem to be overly unrealistic. That is all the more so as nationality as precursor for the claim to personal jurisdiction creates a self-reinforcing jurisdictional bond.

Thinking about nationality along these lines of course doesn’t do away with the sovereignty of States over their nationality. Rather, it strengthens the conception that nationality is an instrument in and under international law and hence contingent to the limits set out in this very legal order. Otherwise, nationality either becomes meaningless or is instrumental in undercutting the international legal order as such. What is therefore dearly necessary is to engage with these limitations. The ECJ’s and ECtHR’s approach to the issue of nationality may therefore not only be seen as a welcome change of tune but as signs of an evolution of a substantive understanding of a genuine link. And while these tunes of a genuine link will not hush the good old sovereignty hymn they may enrich the musical repertoire.