Nottebohm (Liechtenstein v. Guatemala) - Judgment

Gom~rarniqué No,

(Unofficial)

The following information from the Iiegistry of the International
Caurt of Justice has been comwnicated to the Press:

To-day, 6th P.pri1, 1955> the ~ntcrnatibnal Court of Justice
delivered its Judgment in the Nottebohrn case instituted by an Application
by the Principalitg of Liechtenstein against theRepublic of Guatemala.

Liechtensteic nlairned restitution ad compensation on the grownd
tkatthe Govermnt or"Gu2te:~la had acted towzirds Kr. Friedrich Nottebohm,
a citizen of Liechtenstein, in 2 marner conirars; to international law.
Guatemala, for it s pert, contended that the claim rlraçina$missible on a
number of grounds, one of kinich related to the nzt,ionality of Nottebohm,
for *ose protection Li~chtenstein had seisedthe Ccurt ,

In its Judgment the Court accepted this latter plea in bar and in
consequençe held Liechtençteini claim to be inadmissible,

The Jud,gnent was given by eleven votes to three. Judges KZaestad
and %ad, and Fi. Guggeniiein, Jucige ad hoc, appended to the Judgment
statements of their dissenLing opinions.

In its Judgmnt the Caurt affirmsd the fundamental importance of
the ~lea tn bzr referred to above. Zn putting farward this plea,
Guâtemala referred to khc well-establishe principle that it is the
bond of nationality betwen the State and the individual which alone

confers upon the State the right of diplomatie protection, Liechtenstein
considered itself l;obe acting in conformity &5th this principle and
contcnded tho,tEdo1;teboh.n\cas,in f~ct, its national by virtue of the
naturalization conf erred upon hb.,

The Court then considered the fa.cts. Iqot tebohm, born at Hamburg,
wa.s still a Gernvl n&fonalwhen, in October 1939, he agplied for
naturalizatio n n Liechtenstein. Ln 1905 he went to Guatemala, which
he made the centrs of his business activities which increased and

prospered. He so=etimes went to Gemanjr on busirLesu and to o-ther
countries for holidays, anU also paid a few visits Go Liechtenstein
whers one of llisbmthers bad lived since 1931; but he continued 50
have hi5 fixed abode ir~Guatemala until 1943, that is to Say, until the
events lwhich constitutrd thc basis of the present dispute. 1i1 1939 he
left -Guatemal at zpproxiinatoly the end of 1~4zrch; he seems to have
gone to Hamburg and to h2ve paid a few brief srisits to Liechtenstein,
where he was a£ the beginnjng of October 1?39* It ras then, on %h
October, 1939; a little more than a month after the opening of the
Second \iiorldidar,mrked by Germrly-1s attack oriPolmd, thaihe applied
for naturalization in Liechtenstein,

The necessarij conditions for the naturalization of foreigners in
Liechtenstein arc: laid dom by the LiechtensteiL naw of 4th January,
1734. This Lm requircszmong other thjngsr thatthe amlichc &p
n~twalizatidfi mi-t prow thak acceptzncc Gto the Hom -
Gar-poration (~!eim.at verband of a Liechtenstejn commune hâs

been ...been promised te himin case a£ acquisition of the naklonality of the
State; that, subject to wairrer of this requirenrent under stated
conditions ,e mst prove that he wîll lose !lis former nationalkty as
the result of naturaliaation; that hc ha3 been resident in the

Principality for arlleast three year~, although this requirementcan
be dlspensed with in circumstanced seseming special cansideration and
by way of exception; that he has concluded an agreement concerning
liabiliv ta taxation with the co~p'eten zuthorities md has paid a
naturalizatio fee. The Law reveals concern the'tnaturalization
shoüLd onky be granted with Pull knowledge OS a11 the pedinent facts
and adds that the grant of nationality is barred whcre circunrstmces
are such as to cause zpprehension thzt pre judzce may enure ta the SSate
of Liechtenstein, As regards the procedure to be followed, the
Goverment examines the application, obtains information coneerning

the applicant, subinits the application to the Diet, and, if this .
application is appmved, submiks a requestto the fieigning Princewho
alone is entitled to confer nationality.

In his applicatior! for nati:ralization Nottebohmalsoapplied for
the previous confernent of citLzenship of I.lauren,a comne of
Liechtenstein, He saughtdispunsation fmm the condition of three
yearsl prior residence, without indicating the specid circwnstances
warranting such a waiirer. He undertook to pay (in Swiss fr~ncs)
25,000 francs to the Corne and 12,500 francs to the Staée, the costs

of the proceedings, and an mnual naturalization tax of 1,000 francs -
subject ta the proviso thatthe papent of these taxes was to be set
off against ordinary taxes which wauld fa11 due if the applicant
took up residence in Liechtenstei n and to deposit as security the
sum of 30,000 Mss francs. A Document datecl 15th October, 1939
certifies that on that date th2 ci-Lizeiiship of Ilauren had been conferrad
upon him. A Cortificate of 17th October, 1939 evidences the payment
of the t-s roquired to be paid. On 20th October Nottebohm took the
oath of alleglançe and on 23rd October an arrarigsment concerning
liability to tza£iori was concluded. A Certii fcate of Na'cionality was
Ellso produced to the effect that bbttebokn had been naturalized by a

Supreme Resolutiori of the Prince of 13th October, 1939. Nottebhm
then obtained a Liechtenstein passport and had it visa-ed by the
Consul Genc'ral of Guateml~ in Zurich on 1st Deceinber, 1939, and
returned to Guatemala at the beginningof 1940 where he resumed his
former businessactivities, @

These being the f acts, the Court considered rvhether the naturalization
thus granted could be vdidly invoked agâinst Guatemala, brhether it
bestowed upon Liechtenstei n sufilcient title to exercise protection in
respect of Mottebohm as-against Guatemala and therefore en% itled it to
seise the Court of a clajrn rclating to hLm. The Court did not propose

to go beyond .thelvnited scope of this question,

In order to esta,blish that the .4ppl.icztionmust be held aàrissible,
Liechtenstei nrgued tl~t Guatemala had famerly recclgnized the
naturaJization wt?ich it now challengecl. Examining Guatemla' s
attitude towards Not iebohm zince his na'~uraEzation, the Court considered
that Guatemala hrrd not recognized Liechtenstein" title to cxercise
protection in respect of Nottebohm, It then coilsidered whether the
granting of nationality by Liechtenstein direetly entailed an obligation
on the part of Guatemala to recognize its effect; in other words,

whether .thzt unilateral act by Liechtenstei nzs one which could be
relied upon against Guaten~la in regard to the e*rcise of protection.
The Court dealt with thfs question without considering th~t of the
validitg of Nattebokm s'nctturdizakion according to the Law of
Liechtenstein. Mationality is ~jltilin the domestic jurisdiction of the State, hich
settles, hy its orvn legislation, the rules relating to the acquisition
of it s nztionality. But the issue which the Court must decide is nat

one which u~rtains to th2 lcgd systern of Liechtenstein; to exercise
protection is to glace oncself on the plaae of international lm.
Internztional practice provides mmy examplesof acts performed by
States in the exercise of their domestic jurisdiction ~irhich do not
necessaril yr autornatically hme iirtcrnational zffect , When two
Statzs have conferre2 .thair nati~n~dity upon the sme individual and
this situzkion is no longer c~:~fined withln the lhits of the dbmestic
jurisdiction of onc of these States but extends to the
intcrndiional
field, intsrnati.ond arbitrators or the Gcürts of tnird States rhich
are czlled upon to deal with thLs sltuatiçn would zllow the contradiction
to subsist if thzy confined ther!~szlves to thc view that nationdity Is
exclusiive1-y within the doixestic jurisdiction of the State. Zn order
to resolve thc conflict theg have, on the contraq-, sought to ascertain
wfiethes nationdity h3~ boen confcrred in circumstancos such as to give
risc Lo an obligatian cn the pa~t of the rasponderh State to recagnize
the effect of that nakionzlity. Ln order ho decide this question,

they have evolved certain criteria. Ihey have givm their preference
to the re~l and affcctkvenztionality, that rirhich accordedwith the
f acts, thd, b?,scd on stronger fxetud ties betrieen the person concernéd
2nd one of these States whosenxtionality is irivolvad. Different
factors arc tdcen into coiisideration, and their importancewill vary
from me case to the neJ* : th~re is the habitua1 residence of the
individual conccrncd but dso the ccntre of his intcrests, his family
ties, his participation in public Iife, attachrcerit shown by him fora
givcn country ad inculsated in his childr~n, etc.

The sam tcndency nrev?Lls among writcrs. Eloreoveir, the practice
of certzh States, sc~izh refrzin from excrcising protection in favcur
of a na.twaized pcrsofi wiier!the lztterhes in fact severed his links
with slhctiis rioI.onç~r for hk, anybliing but his nominal co~intry,
mifcsts thc viwr that, in order to be invokod ag~inçt mother State,
na*uionality mst ~orrespond with rzÎactud sikuation.

The chnracter thus recogmized on the international lmel as
pcrtaining to nt?tiondity i. in no w2y inconsisten t\riththe fact that
intern-tional la~r lcaves it to each State to l2y down the rulcs
govzrning th$ gr?~t 331 itç ohm n~7~tionaïi.ty. This is so f xLling any
general. >grecment ontha mlcs relating to nationalitg. It has been
cgnsidered th& the best t&y of ~rdcing such rules accord with the
v3r~4~3g denographic condit ions in dif f crent countric s is to ka-ve Lhc
fixing of such
mleu to the conpetence of each State, But, on the
other hmd, e 3tate çsmot cXaim th& the rules ït has laid dom are
entitled to recognition by another State unless it hzs acted in
cnnfciY7nit'~ with this gcncral ah of ;n&lng the nationdity granted
accord with an ef fccti'c"~ link betwzei? the State and the. individual.

According to the iracticc of States, ~ztionality consLitutes the
juridicd expression of' the fact that an individual is rn0y.eclosely
cclnnect¢dwiththe populaiionof aparkicillar State. Conferredbya
State, it on14 cntitles that Stzto to exerciseprotection if it
conçtitutes a trmslation btc juridical term~ of the inàîvidualfs

conncction 1i5th thst Stzte. 1s tkiis thc cas2 as regards Mr. Notteboh?
At the tint cf his rli,turalization, daas i\Jotteboh zppear to h2ve been
more closcly attache2 by h*is tradition, his cstablishznt, his interest s,
his activities, his fanil:. ties,his inLeritiois for the near future, to
Liechtenstein ",sn to azy other Stste?

In this connedion the Court statedthe essential facts of the case
and pointed out thztI\iotteboh calways retained his fmily md business

connections ... connections with Gemmy and thst there is nothingto indiczte that
his application for naturalizz.t'ion in Liechtenstein wzs motivated by
any desire to dissocilte himsclffrom bhe Govornrnent of his country,
On the other hmd, hu had been settled for 34 ÿears in Guatemala, which
was the centre of his interests and his businessaçtivities. He
stayed Ghare until his remavzl ae a i-osult of w-?r measures fn 1943, 2nd
complbns of Guztemalals refuscl to readmit him. Menbers of Nottebohmls

family had, mareover, essertod his dcsir? to spund his ald age in
Guatemla. Ir! contrast, his actuzl connections wiLh Liechtenstein were
extrenel.~ tenuous , If PTatt'ebohrn w2n-t to thst country in 1946, this
was because of the rzfusal of Guatemala to adnit hirri, There is thus
the absence 'of xny bond of atischznt rpiYtLiechtenstein but there is
a long standing md close conne,ction betwcen hirn and Gu~temla, a li&
which his naturdization in no way we&ened. That naturalization was
not based or1an7 rzal -rior connectio~ with Liechtenstein, nor did it
in any way altsr the mnner of life of the person upon trhom it was
conferred in exceptionel circumstance sf speed and accommodation. In
' bath respects, it was lackingin the genuineness requisite to an act of
such j.qortance, if it fi to bbi:entitlzd to be respected by a Stzte in
B
the position of Guate~ala. It was granted without regard ta the
concept of nationditg adopted in international relations. m
Naturalizetion wzs asked for not so much for the purpose of obtaining
a logd recognition of Nottcbohmfs membership in fact in the population
of Liechtenstein, as it 11as ta enable hilnto substitute for his status
as a nztional of a belligerent State that of the subject of a neutral
State,wit hhesole ah of thus conring within the prctection of
Liechtenstei bnut not of becorring ;*reddedto its traditions, its
interests, its way of life or of asswning the obligztions - ather than
fiscal obl-igations - and exercising the rights pertaining to the stztus
thus acquired.

For these reasans the Court held the clah of Liechtenstein to be
inadmissible.

Shc Megue, April6th, 1955.