The Nottebohm Case

(Liechtenstein v. Guatemala)

International Court of Justice

April 6, 1955

1955 I.C.J. 4

By the Application filed on December 17th, 1951, the Government of Liechtenstein instituted proceedings before the Court in which it claimed restitution and compensation on the ground that the Government of Guatemala had “acted towards the person and property of Mr. Friedrich Nottebohm, a citizen of Liechtenstein, in a manner contrary to international law.” In its Counter-Memorial, the Government of Guatemala contended that this claim was inadmissible because of the nationality of the person for whose protection Liechtenstein had seised the Court.

Guatemala has referred to a well-established principle of international law, which it expressed in Counter-

Memorial, that “the bond of nationality between the State and the individual alone confers upon the State the right of diplomatic protection.” This sentence is taken from a Judgment of the Permanent Court of International Justice (Series A/B, No. 76, p. 16), which relates to the form of diplomatic protection constituted by international judicial proceedings.

Liechtenstein considers itself to be acting in conformity with this principle and contends that Nottebohm is its national by virtue of the naturalization conferred upon him.

Nottebohm was born at Hamburg on September 16th, 1881. He was German by birth, and still possessed German nationality when, in October 1939, he applied for naturalization in Liechtenstein. In 1905 he went to Guatemala. He took up residence there and made that country the headquarters of his business activities, which increased and prospered; these activities developed in the field of commerce, banking and plantations. Having been an employee in the firm of Nottebohm Hermanos, which had been founded by his brothers Juan and Arturo, he became their partner in 1912 and later, in 1937, he was made head of the firm. After 1905 he sometimes went to Germany on business and to other countries for holidays. He continued to have business connections in Germany. He paid a few visits to a brother who had lived in Liechtenstein since 1931. Some of his other brothers, relatives and friends were in Germany, others in Guatemala. He himself continued to have his fixed abode in Guatemala until 1943, that is to say, until the occurrence of the events which constitute the basis of the present dispute.

In 1939, after having provided for the safeguarding of his interests in Guatemala by a power of attorney given to the firm of Nottebohm Hermanos on March 22nd, he left that country at a date fixed by Counsel for Liechtenstein as at approximately the end of March or the beginning of April, when he seems to have gone to Hamburg, and later to have paid a few brief visits to Vaduz [the capital city of Liechtenstein] where he was at the beginning of October 1939. It was then, a little more than a month after the opening of the second World War marked by Germany's attack on Poland, that his attorney, Dr. Marxer, submitted an application for naturalization on behalf of Nottebohm.

On October 9th, 1939, Nottebohm, “resident in Guatemala since 1905 (at present residing as a visitor with his brother, Hermann Nottebohm, in Vaduz),” applied for admission as a national of Liechtenstein and, at the same time, for the previous conferment of citizenship in the Commune of Mauren. He sought dispensation from the condition of three years’ residence as prescribed by law, without indicating the special circumstances warranting such waiver. He submitted a statement of the Credit Suisse in Zurich concerning his assets, and undertook to pay 25,000 Swiss francs to the Commune of Mauren, 12,500 Swiss francs to the State, to which was to be added the payment of dues in connection with the proceedings. He further stated that he had made “arrangements with the Revenue Authorities of the Government of Liechtenstein for the conclusion of a formal agreement to the effect that he will pay an annual tax of naturalization amounting to Swiss francs 1,000, of which Swiss francs 600 are payable to the Commune of Mauren and Swiss francs 400 are payable to the Principality of Liechtenstein, subject to the proviso that the payments of these taxes will be set off against ordinary taxes which will fall due if the applicant takes up residence in one of the Communes of the Principality.” He further undertook to deposit as security a sum of 30,000 Swiss francs. He also gave certain general information as to his financial position and indicated that he would never become a burden to the Commune whose citizenship he was seeking. Lastly, he requested "that naturalization proceedings be initiated and concluded before the Government of the Principality and before the Commune of Mauren without delay, that the application be then placed before the Diet with a favorable recommendation and, finally, that it be submitted with all necessary expedition to His Highness the Reigning Prince.''

A document dated October 15th, 1939, certifies that on that date the Commune of Mauren conferred the privilege of its citizenship upon Mr. Nottebohm and requested the Government to transmit it to the Diet for approval. A certificate of October 17th, 1939, evidences the payment of the taxes required to be paid by Mr. Nottebohm. On October 20th, 1939, Mr. Nottebohm took the oath of allegiance and a final arrangement concerning liability to taxation was concluded on October 23rd.

A certificate of nationality has also been produced, signed on behalf of the Government of the Principality and dated October 20th, 1939, to the effect that Nottebohm was naturalized by Supreme Resolution of the Reigning Prince dated October 13th, 1939.

Having obtained a Liechtenstein passport, Nottebohm had it visa-ed by the Consul General of Guatemala in Zurich on December 1st, 1939, and returned to Guatemala at the beginning of 1940, where he resumed his former business activities and in particular the management of the firm of Nottebohm Hermanos.

The real issue before the Court is the admissibility of the claim of Liechtenstein in respect of Nottebohm. In order to decide upon the admissibility of the Application, the Court must ascertain whether the nationality conferred on Nottebohm by Liechtenstein by means of a naturalization which took place in the circumstances which have been described, can be validly invoked as against Guatemala, whether it bestows upon Liechtenstein a sufficient title to the exercise of protection in respect of Nottebohm as against Guatemala and therefore entitles it to seise the Court of a claim relating to him. In this connection, Counsel for Liechtenstein said: “the essential question is whether Mr. Nottebohm, having acquired the nationality of Liechtenstein, that acquisition of nationality is one which must be recognized by other States.” This formulation is accurate, subject to the twofold reservation that, in the first place, what is involved is not recognition for all purposes but merely for the purposes of the admissibility of the Application, and, secondly, that what is involved is not recognition by all States but only by Guatemala.

The Court does not propose to go beyond the limited scope of the question which it has to decide, namely whether the nationality conferred on Nottebohm can be relied upon as against Guatemala in justification of the proceedings instituted before the Court. It must decide this question on the basis of international law; to do so is consistent with the nature of the question and with the nature of the Court's own function.

In order to establish that the Application must be held to be admissible, Liechtenstein has argued that Guatemala formerly recognized the naturalization which it now challenges and cannot therefore be heard to put forward a contention which is inconsistent with its former attitude.

Reliance has been placed on the fact that, on December 1st, 1939, the Consul General of Guatemala in Zurich entered a visa in the Liechtenstein passport of Mr. Nottebohm for his return to Guatemala; that on January 29th, 1940, Nottebohm informed the Ministry of External Affairs in Guatemala that he had adopted the nationality of Liechtenstein and therefore requested that the entry relating to him in the Register of Aliens should be altered accordingly, a request which was granted on January 31st; that on February 9th, 1940, a similar amendment was made to his identity document, and lastly, that a certificate to the same effect was issued to him by the Civil Registry of Guatemala on July 1st, 1940.

The acts of the Guatemalan authorities just referred to proceeded on the basis of the statements made to them by the person concerned. The one led to the other. The only purpose of the first, as appears from Article 9 of the Guatemalan law relating to passports, was to make possible or facilitate entry into Guatemala, and nothing more. According to the Aliens Act of January 25th, 1936, Article 49, entry in the Register "constitutes a legal presumption that the alien possesses the nationality there attributed to him, but evidence to the contrary is admissible.'' All of these acts have reference to the control of aliens in Guatemala and not to the exercise of diplomatic protection. When Nottebohm thus presented himself before the Guatemalan authorities, the latter had before them a private individual: there did not thus come into being any relationship between governments. There was nothing in all this to show that Guatemala then recognized that the naturalization conferred upon Nottebohm gave Liechtenstein any title to the exercise of protection.

Since no proof has been adduced that Guatemala has recognized the title to the exercise of protection relied upon by Liechtenstein as being derived from the naturalization which it granted to Nottebohm, the Court must consider whether such an act of granting nationality by Liechtenstein directly entails an obligation on the part of Guatemala to recognize its effect, namely, Liechtenstein's right to exercise its protection. In other words, it must be determined whether that unilateral act by Liechtenstein is one which can be relied upon against Guatemala in regard to the exercise of protection. The Court will deal with this question without considering that of the validity of Nottebohm's naturalization according to the law of Liechtenstein.

It is for Liechtenstein, as it is for every sovereign State, to settle by its own legislation the rules relating to the acquisition of its nationality, and to confer that nationality by naturalization granted by its own organs in accordance with that legislation. It is not necessary to determine whether international law imposes any limitations on its freedom of decision in this domain. Furthermore, nationality has its most immediate, its most far-reaching and, for most people, its only effects within the legal system of the State conferring it. Nationality serves above all to determine that the person upon whom it is conferred enjoys the rights and is bound by the obligations which the law of the State in question grants to or imposes on its nationals. This is implied in the wider concept that nationality is within the domestic jurisdiction of the State.

But the issue which the Court must decide is not one which pertains to the legal system of Liechtenstein. It does not depend on the law or on the decision of Liechtenstein whether that State is entitled to exercise its protection, in the case under consideration. To exercise protection, to apply to the Court, is to place oneself on the plane of international law. It is international law which determines whether a State is entitled to exercise protection and to seise the Court.

The naturalization of Nottebohm was an act performed by Liechtenstein in the exercise of its domestic jurisdiction. The question to be decided is whether that act has the international effect here under consideration.

International practice provides many examples of acts performed by States in the exercise of their domestic jurisdiction which do not necessarily or automatically have international effect, which are not necessarily and automatically binding on other States or which are binding on them only subject to certain conditions: this is the case, for instance, of a judgment given by the competent court of a State which it is sought to invoke in another State.

In the present case it is necessary to determine whether the naturalization conferred on Nottebohm can be successfully invoked against Guatemala, whether, as has already been stated, it can be relied upon as against that State, so that Liechtenstein is thereby entitled to exercise its protection in favor of Nottebohm against Guatemala. When one State has conferred its nationality upon an individual and another State has conferred its own nationality on the same person, it may occur that each of these States, considering itself to have acted in the exercise of its domestic jurisdiction, adheres to its own view and bases itself thereon in so far as its own actions are concerned. In so doing, each State remains within the limits of its domestic jurisdiction.

The courts of third States, when they have before them an individual whom two other States hold to be their national, seek to resolve the conflict by having recourse to international criteria and their prevailing tendency is to prefer the real and effective nationality.

The same tendency prevails in the writings of publicists and in practice. This notion is inherent in the provisions of Article 3, paragraph 2, of the Statute of the Court. National laws reflect this tendency when, inter alia, they make naturalization dependent on conditions indicating the existence of a link, which may vary in their purpose or in their nature but which are essentially concerned with this idea. The Liechtenstein Law of January 4th, 1934, is a good example.

The practice of certain States which refrain from exercising protection in favor of a naturalized person when the latter has in fact, by his prolonged absence, severed his links with what is no longer for him anything but his nominal country, manifests the view of these States that, in order to be capable of being invoked against another State, nationality must correspond with the factual situation. A similar view is manifested in the relevant provisions of the bilateral nationality treaties concluded between the United States of America and other States since 1868, such as those sometimes referred to as the Bancroft Treaties, and in the Pan-American Convention, signed at Rio de Janeiro on August 13th, 1906, on the status of naturalized citizens who resume residence in their country of origin.

The character thus recognized on the international level as pertaining to nationality is in no way inconsistent with the fact that international law leaves it to each State to lay down the rules governing the grant of its own nationality. The reason for this is that the diversity of demographic conditions has thus far made it impossible for any general agreement to be reached on the rules relating to nationality, although the latter by its very nature affects international relations. It has been considered that the best way of making such rules accord with the varying demographic conditions in different countries is to leave the fixing of such rules to the competence of each State. On the other hand, a State cannot claim that the rules it has thus laid down are entitled to recognition by another State unless it has acted in conformity with this general aim of making the legal bond of nationality accord with the individual's genuine connection with the State which assumes the defense of its citizens by means of protection as against other States.

According to the practice of States, to arbitral and judicial decisions and to the opinions of writers, nationality is a legal bond having as its basis a social fact of attachment, a genuine connection of existence, interests and sentiments, together with the existence of reciprocal rights and duties. It may be said to constitute the juridical expression of the fact that the individual upon whom it is conferred, either directly by the law or as the result of an act of the authorities, is in fact more closely connected with the population of the State conferring nationality than with that of any other State. Conferred by a State, it only entitles that State to exercise protection vis -a-vis another State, if it constitutes a translation into juridical terms of the individual's connection with the State which has made him its national.

Diplomatic protection and protection by means of international judicial proceedings constitute measures for the defense of the rights of the State. As the Permanent Court of International Justice has said and has repeated, “by taking up the case of one of its subjects and by resorting to diplomatic action or international judicial proceedings on his behalf, a State is in reality asserting its own rights—its right to ensure, in the person of its subjects, respect for the rules of international law.” P.C.I.J., Series A, No. 2, at 12, and Series A/B, Nos. 20-21, at 17.

Since this is the character which nationality must present when it is invoked to furnish the State which has granted it with a title to the exercise of protection and to the institution of international judicial proceedings, the Court must ascertain whether the nationality granted to Nottebohm by means of naturalization is of this character or, in other words, whether the factual connection between Nottebohm and Liechtenstein in the period preceding, contemporaneous with and following his naturalization appears to be sufficiently close, so preponderant in relation to any connection which may have existed between him and any other State, that it is possible to regard the nationality conferred upon him as real and effective, as the exact juridical expression of a social fact of a connection which existed previously or came into existence thereafter.

Naturalization is not a matter to be taken lightly. To seek and to obtain it is not something that happens frequently in the life of a human being. It involves his breaking of a bond of allegiance and his establishment of a new bond of allegiance. It may have far reaching consequences and involve profound changes in the destiny of the individual who obtains it. It concerns him personally, and to consider it only from the point of view of its repercussions with regard to his property would be to misunderstand its profound significance. In order to appraise its international effect, it is impossible to disregard the circumstances in which it was conferred, the serious character which attaches to it, the real and effective, and not merely the verbal preference of the individual seeking it for the country which grants it to him.

At the time of his naturalization does 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 essential facts appear with sufficient clarity from the record. They are as follows:

At the date when he applied for naturalization, Nottebohm had been a German national from the time of his birth. He had always retained his connections with members of his family who had remained in Germany and he had always had business connections with that country. His country had been at war for more than a month, and there is nothing to indicate that the application for naturalization then made by Nottebohm was motivated by any desire to dissociate himself from the Government of his country.

He had been settled in Guatemala for 34 years. He had carried on his activities there. It was the main seat of his interests. He returned there shortly after his naturalization, and it remained the center of his interests and of his business activities. He stayed there until his removal as a result of war measures in 1943. He subsequently attempted to return there, and he now complains of Guatemala's refusal to admit him. There, too, were several members of his family who sought to safeguard his interests.

In contrast, his actual connections with Liechtenstein were extremely tenuous. No settled abode, no prolonged residence in that country at the time of his application for naturalization: the application indicates that he was paying a visit there and confirms the transient character of this visit by its request that the naturalization proceedings should be initiated and concluded without delay. No intention of settling there was shown at that time or realized in the ensuing weeks, months or years—on the contrary, he returned to Guatemala very shortly after his naturalization and showed every intention of remaining there. If Nottebohm went to Liechtenstein in 1946, this was because of the refusal of Guatemala to admit him. No indication is given of the grounds warranting the waiver of the condition of residence, required by the 1934 Nationality Law, which waiver was implicitly granted to him. There is no allegation of any economic interests or of any activities exercised or to be exercised in Liechtenstein, and no manifestation of any intention whatsoever to transfer all or some of his interests and his business activities to Liechtenstein. It is unnecessary in this connection to attribute much importance to the promise to pay the taxes levied at the time of his naturalization.

The only links to be discovered between the Principality and Nottebohm are the short sojourns already referred to and the presence in Vaduz of one of his brothers: but his brother's presence is referred to in his application for naturalization only as a reference to his good conduct.

These facts clearly establish, on the one hand, the absence of any bond of attachment between Nottebohm and Liechtenstein and, on the other hand, the existence of a long-standing and close connection between him and Guatemala, a link which his naturalization in no way weakened. That naturalization was not based on any real prior connection with Liechtenstein, nor did it in any way alter the manner of life of the person upon whom it was conferred in exceptional circumstances of speed and accommodation. In both respects, it was lacking in the genuineness requisite to an act of such importance, if it is to be entitled to be respected by a State in the position of Guatemala. It was granted without regard to the concept of nationality adopted in international relations.

Naturalization was asked for not so much for the purpose of obtaining a legal recognition of Nottebohm’s membership in fact in the population of Liechtenstein, as it was to enable him to substitute for his status as a national of a belligerent State that of a national of a neutral State, with the sole aim of thus coming within the protection of Liechtenstein but not of becoming wedded to its 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.

Guatemala is under no obligation to recognize a nationality granted in such circumstances. Liechtenstein consequently is not entitled to extend its protection to Nottebohm vis -a-vis Guatemala and its claim must, for this reason, be held to be inadmissible.

The Court is not therefore called upon to deal with the other pleas in bar put forward by Guatemala or the Conclusions of the Parties other than those on which it is adjudicating in accordance with the reasons indicated above.

For these reasons,

THE COURT, by eleven votes to three,

Holds that the claim submitted by the Government of the Principality of Liechtenstein is inadmissible.

Done in French and English, the French text being authoritative, at the Peace Palace, The Hague, this sixth day of April, one thousand nine hundred and fifty-five, in three copies, one of which will be placed in the archives of the Court and the others will be transmitted to the Government of the Principality of Liechtenstein and to the Government of the Republic of Guatemala, respectively.

DISSENTING OPINION OF JUDGE READ

Mr. Nottebohm was arrested on October 19th, 1943, by the Guatemalan authorities, who were acting not for reasons of their own but at the instance of the United States Government. He was turned over to the armed forces of the United States on the same day. Three days later he was deported to the United States and interned there for two years and three months. There was no trial or inquiry in either country and he was not given the opportunity of confronting his accusers or defending himself, or giving evidence on his own behalf.

In 1944 a series of fifty-seven legal proceedings was commenced against Mr. Nottebohm, designed to expropriate, without compensation to him, all of his properties, whether movable or immovable. The proceedings involved more than one hundred and seventy one appeals of various kinds. Counsel for Guatemala has demonstrated, in a fair and competent manner, the existence of a network of litigation, which could not be dealt with effectively in the absence of the principally interested party. Further, all of the cases involved, as a central and vital issue, the charge against Mr. Nottebohm of treasonable conduct.

Mr. Nottebohm was not permitted to return to Guatemala. He was thus prevented from assuming the personal direction of the complex network of litigation. He was allowed no opportunity to give evidence of the charges made against him, or to confront his accusers in open court. In such circumstances I am bound to proceed on the assumption that Liechtenstein might be entitled to a finding of denial of justice, if the case should be considered on the merits.

In view of this situation, I cannot overlook the fact that the allowance of the plea in bar would ensure that justice would not be done on any plane, national or international. I do not think that a plea in bar, which would have such an effect, should be granted, unless the grounds on which it is based are beyond doubt.

With these considerations in mind, it is necessary to examine the single issue that the Court must decide in order to reject or allow the plea in bar based on the ground of nationality. The issue for decision is: whether, in the circumstances of this case and vis -a-vis Guatemala, Liechtenstein is entitled, under the rules of international law, to afford diplomatic protection to Mr. Nottebohm.

The Judgment of the Court is based upon the ground that the naturalization of Mr. Nottebohm was not a genuine transaction. It is pointed out that it did not lead to any alteration in his manner of life; and that it was acquired, not for the purpose of obtaining legal recognition of his membership in fact of the population of Liechtenstein, but for the purpose of obtaining neutral status and the diplomatic protection of a neutral State. I shall refer to this ground as the link theory.

Article 1 of The Hague Draft Convention of 1930 reads as follows:

It is for each State to determine under its own law who are its nationals. This law shall be recognized by other States in so far as it is consistent with international conventions, international custom, and the principles of law generally recognized with regard to nationality.

Applying this rule to the case, it would result that Liechtenstein had the right to determine under its own law that Mr. Nottebohm was its own national, and that Guatemala must recognize the Liechtenstein law in this regard in so far as it is consistent with international conventions, international custom, and the principles of law generally recognized with regard to nationality. I shall refer to this quality, the binding character of naturalization, as opposability.

No ‘international conventions’ are involved and no ‘international custom’ has been proved. There remain ‘the principles of law generally recognized with regard to nationality.’ Yet Guatemala concedes that there are no firm principles of law generally recognized with regard to nationality, but that the right of Liechtenstein to determine under its own law that Mr. Nottebohm was its own national, and the correlative obligation of Guatemala to recognize the Liechtenstein law in this regard—opposability—are limited not by rigid rules of international law, but only by the rules regarding abuse of right and fraud.

A difficulty presented by the link theory is that it relies upon a finding of fact that there is nothing to indicate that Mr. Nottebohm's application for naturalization abroad was motivated by any desire to break his ties with the Government of Germany. I am unable to concur in making this finding at the present stage in the case.

In the first place, I do not think that international law, apart from abuse of right and fraud, permits the consideration of the motives which led to naturalization as determining its effects.

In the second place, the finding depends upon the examination of issues which are part of the merits and which cannot be decided when dealing with the plea in bar.

In the third place, the breaking of ties with the country of origin is not essential to valid and opposable naturalization. International law recognizes double nationality and the present trend in State practice is towards double nationality, which necessarily involves maintenance of the ties with the country of origin. It is noteworthy that in the United Kingdom the policy of recognizing the automatic loss of British nationality on naturalization abroad, which had been adopted in 1870, was abandoned in 1948. Under the new British legislation, on naturalization abroad, a British citizen normally maintains his ties with his country of origin.

In the fourth place, I am unable to agree that there is nothing to indicate that Mr. Nottebohm's naturalization was motivated by a desire to break his ties with Germany. There are three facts which prove that he was determined to break his ties with Germany. The first is the fact of his application for naturalization, the second is the taking of his oath of allegiance to Liechtenstein, and the third is his obtaining a certificate of naturalization and a Liechtenstein passport.

The link theory is based, in part, on the fact that Liechtenstein waived the requirement of three years' residence. At the time of the naturalization, Mr. Nottebohm was temporarily resident in Liechtenstein; but he had not established domicile, and had no immediate intention to do so. But I have difficulty in regarding lack of residence as a decisive factor in the case.

It has been conceded by Counsel for Guatemala that "the majority of States, in one form or another, either by their law or in their practice, allow for exceptional cases in which they exempt the applicant for naturalization from the requirement of proof of long-continued prior residence.'' This is another point on which both Parties are in agreement, and the position has been fully established in the case.

I am of the opinion that the parties were right, and that, under the rules of positive international law, Liechtenstein had the discretionary right to dispense with the residential requirement. That being so, I cannot—in the absence of fraud or injury—review the factors which may have influenced Liechtenstein in the exercise of a discretionary power. It is not surprising that no precedent has been cited to the Court in which—in the absence of fraud or injury to an adverse party—the exercise of a discretionary power, possessed by a State under the principles of positive international law, has been successfully questioned. If there had been such precedent, it would certainly have been brought to the attention of the Court.

It is also suggested that the naturalization of Mr. Nottebohm was lacking in genuineness, and did not give rise to a right of protection, because of his subsequent conduct: that he did not abandon his residence and his business activities in Guatemala, establish a business in Liechtenstein, and take up permanent residence. Along the same lines, it is suggested that he did not incorporate himself in the body politic which constitutes the Liechtenstein State.

In considering this point, it is necessary to bear in mind that there is no rule of international law which would justify me in taking into account subsequent conduct as relevant to the validity and opposability of naturalization.

Nevertheless I am unable to avoid consideration of his conduct since October 1939.

I have difficulty in accepting the position taken with regard to the nature of the State and the incorporation of an individual in the State by naturalization. To my mind the State is a concept broad enough to include not merely the territory and its inhabitants but also those of its citizens who are resident abroad but linked to it by allegiance. Most States regard non-resident citizens as a part of the body politic. In the case of many countries such as China, France, the United Kingdom and the Netherlands, the non-resident citizens form an important part of the body politic and are numbered in their hundreds of thousands or millions. Many of these non-resident citizens have never been within the confines of the home State. I can see no reason why the pattern of the body politic of Liechtenstein should or must be different from that of other States.

In my opinion Mr. Nottebohm incorporated himself in the nonresident part of the body politic of Liechtenstein. From the instant of his naturalization to the date of the Judgment of this Court, he has not departed in his conduct from the position of a member of the Liechtenstein State. He began by obtaining a passport in October 1939 and a visa from the Consulate of Guatemala. On his arrival in Guatemala in January 1940, he immediately informed the Guatemalan Government and had himself registered as a citizen of Liechtenstein. Upon his arrest in October 1943, he obtained the diplomatic protection of Liechtenstein through the medium of the Swiss Consul. On the commencement of the confiscation of his properties, he obtained diplomatic protection from the same source and channel. After his release from internment he was accorded full civil rights by the Government of the United States of America and instituted and successfully maintained proceedings and negotiations in Washington with a view to obtaining the release of assets which had been blocked, upon the ground that he was a national of Liechtenstein. During the last nine years he has been an active and resident member of the body politic of that State.

As regards residence and business, there is no rule of international law requiring a naturalized person to undertake business activities and to reside in the country of his allegiance. However, considering the question of subsequent conduct, I am unable to disregard what really did happen.

To begin with, Mr. Nottebohm was 58 years of age at the time--or within two years of the normal retirement age in the type of business activity in which he was engaged. The evidence shows that he was actually contemplating retirement. In October 1939 he was largely occupied with plans to save the business, but I find it hard to believe that he was not also thinking in terms of retirement and that Vaduz was in his mind. Out of the 15½ years which have elapsed since naturalization, Mr. Nottebohm has spent less than four in Guatemala, more than two in the United States, and nine years in Vaduz.

It is true that, in the applications which were made in 1945 on his behalf with a view to his return to Guatemala, it was stated that he intended to resume his domicile in that country. But I am unable to overlook the fact that his return was absolutely essential in order to conduct the 57 law suits to which I have referred above and to clear his own good name from the charges of disloyalty which had been made against him. I do not think that too much weight can be given to the statements made by his kinsfolk in Guatemala with a view to obtaining the right of re-admission to that country.

The essential fact is that when, in 1946, he was released in midwinter in North Dakota, deprived of all that he possessed in Guatemala and with all of his assets in the United States blocked, he went back to the country of his allegiance. In my opinion, the fact of his return to Liechtenstein and of his admission to Liechtenstein is convincing evidence of the real and effective character of his link with Liechtenstein. It was an unequivocal assertion by him through his conduct of the fact of his Liechtenstein nationality, and an unequivocal recognition of that fact by Liechtenstein.

Further, I have difficulty in accepting two closely related findings of fact. The first is that the naturalization did not alter the manner of life of Mr. Nottebohm. In my opinion, a naturalization which led ultimately to his permanent residence in the country of his allegiance altered the manner of life of a merchant who had hitherto been residing in and conducting his business activities in Guatemala.

The second finding is that the naturalization was conferred in exceptional circumstances of speed and accommodation. There are many countries, besides Liechtenstein, in which expedition and good will are regarded as administrative virtues. I do not think that these qualities impair the effectiveness or genuineness of their administrative acts.

The link theory has been based on the view that the essential character of naturalization and the relation between a State and its national justify the conclusion that the naturalization of Mr. Nottebohm, though valid, was unreal and incapable of giving rise to the right of diplomatic protection. I have difficulty in adopting this view and it becomes necessary to consider the nature of naturalization and diplomatic protection and the juridical character of the relationships which arose between Guatemala and Liechtenstein on Mr. Nottebohm's return in 1940.

Nationality, and the relation between a citizen and the State to which he owes allegiance, are of such a character that they demand certainty. When one considers the occasions for invoking the relationship—emigration and immigration; travel; treason; exercise of political rights and functions; military service and the like--it becomes evident that certainty is essential.

There must be objective tests, readily established, for the existence and recognition of the status. That is why the practice of States has steadfastly rejected vague and subjective tests for the right to confer nationality—sincerity, fidelity, durability, lack of substantial connection--and has clung to the rule of the almost unfettered discretionary power of the State, as embodied in Article 1 of The Hague Draft Convention of 1930.

Nationality and diplomatic protection are closely inter-related. The general rule of international law is that

nationality gives rise to a right of diplomatic protection. Fundamentally the obligation of a State to accord reasonable treatment to resident aliens and the correlative right of protection are based on the consent of the States concerned. When an alien comes to the frontier, seeking admission, either as a settler or on a visit, the State has an unfettered right to refuse admission. That does not mean that it can deny the alien's national status or refuse to recognize it. But by refusing admission, the State prevents the establishment of legal relationships involving rights and obligations, as regards the alien, between the two countries. On the other hand, by admitting the alien, the State, by its voluntary act, brings into being a series of legal relationships with the State of which he is a national.

As a result of the admission of an alien, whether as a permanent settler or as a visitor, a whole series of legal relationships come into being. There are two States concerned, to which I shall refer as the receiving State and the protecting State. The receiving State becomes subject to a series of legal duties vis -a-vis the protecting State, particularly the duty of reasonable and fair treatment. It acquires rights vis-a-vis the protecting State and the individual, particularly the rights incident to local allegiance and the right of deportation to the protecting State. At the same time the protecting State acquires correlative rights and obligations vis-a-vis the receiving State, particularly a diminution of its rights as against the individual resulting from the local allegiance, the right to assert diplomatic protection and the obligation to receive the individual on deportation. This network of rights and obligations is fundamentally conventional in its origin—it begins with a voluntary act of the protecting State in permitting the individual to take up residence in the other country, and the voluntary act of admission by the receiving State. The scope and content of the rights are, however, largely defined by positive international law. Nevertheless, the receiving State has control at all stages because it can bring the situation to an end by deportation.

The position is illustrated by what actually happened in the present case. Mr. Nottebohm went to Guatemala 50 years ago as a German national and as a permanent settler. Upon his admission as an immigrant, the whole series of legal relationships came into being between Guatemala and Germany. Guatemala was under a legal obligation vis-a-vis Germany to accord reasonable and fair treatment. Guatemala had the right to deport Mr. Nottebohm to Ge rmany and to no other place. Germany had the right of diplomatic protection and was under the legal obligation to receive him on deportation. As a result of the naturalization in October 1939, the whole network of legal relationships between Guatemala and Germany as regards Mr. Nottebohm came to an end. Mr. Nottebohm returned to Guatemala in January 1940, having brought about a fundamental change in his legal relationships in that country. He no longer had the status of a permanently settled alien of German nationality. He was entering with a Liechtenstein passport and with Liechtenstein protection.

The first step taken by him was the obtaining of a visa from the Guatemalan Consul before departure. On arrival in Guatemala he immediately brought his new national status to the attention of the Guatemalan Government on the highest level. His registration under the Aliens’ Act as a German national was canceled and he was registered as a Liechtenstein national. From the end of January 1940 he was treated as such in Guatemala.

In my opinion, as a result of Mr. Nottebohm's admission to Guatemala and establishment under the Guatemalan law as a resident of Liechtenstein nationality, a series of legal relationships arose between Guatemala and Liechtenstein, the nature of which has been sufficiently indicated above. From that time on Guatemala had the right to deport Mr. Nottebohm to Liechtenstein, and Liechtenstein was under the correlative obligation to receive him on deportation. Liechtenstein was entitled as of right to furnish diplomatic protection to Mr. Nottebohm in Guatemala, and when that right was exercised in October 1943, it was not questioned by Guatemala.

I am unable to concur in the view that the acceptance of Mr. Nottebohm by the Guatemalan authorities as a settler of Liechtenstein nationality did not bring into being a relationship between the two Governments. I do not think that the position of Guatemala is in any way different from that of other States and I do not think that it was possible for Guatemala to prevent the coming into being of the same kind of legal relationships which would have taken place if Mr. Nottebohm had landed as a settler in any other country.

When a series of legal relationships, rights and duties exists between two States, it is not open to one of the States to bring the situation to an end by its unilateral action. In my opinion such relationships came into being between Guatemala and Liechtenstein when the former State accepted Mr. Nottebohm in 1940. It was open to Guatemala to terminate the position by deportation but not to extinguish the right of Liechtenstein under international law to protect its own national without the consent of that country.

There is one more aspect of this question to which I must refer. It is suggested that Mr. Nottebohm obtained his naturalization with the sole motive of avoiding the legal consequences of his nationality of origin. He was a German and Germany was at war, but not with Guatemala. There can be little doubt that this was one of his motives, but whether it was his sole motive is a matter of speculation.

There is apparently abundant evidence on this aspect of the case to which I have not had access; evidence which would prove or disprove the contention that the naturalization was part of a fraudulent scheme. But it is not permissible for me to look at that evidence in dealing with a plea in bar. I must proceed at this stage on the assumption that the naturalization was obtained in good faith and without fraud.

It has been complained that the purpose of the naturalization was to avoid the operation of wartime measures in the event that Guatemala ultimately became involved in war with Germany. In October 1939, if Mr. Nottebohm read the newspapers—which is highly probable—he knew that Guatemala, in concert with the other Pan-American States, was making every effort to maintain neutrality.

It is far more likely that, remembering the experience of Nottebohm Hermanos during the first World War, he was seeking to protect his assets in the United States. The suggestion that he foresaw Guatemalan belligerency is not supported by any evidence and I cannot accept it.

Further, even if his main purpose had been to protect his property and business in the event of Guatemalan belligerency, I do not think that it affected the validity or opposability of the naturalization. There was no rule of international law and no rule in the laws of Guatemala at the time forbidding such a course of action. Mr. Nottebohm did not conceal the naturalization and informed the Government of Guatemala on the highest level on his return to the country.

I do not think that I am justified in taking Mr. Nottebohm's motives into consideration—in the absence of fraud or injury to Guatemala—but even if this particular motive is considered, it cannot be regarded as preventing the existence of the right of diplomatic protection.

In view of the foregoing circumstances it is necessary for me to reach the conclusion that the two Parties before the Court were right in adopting the position that the right of Liechtenstein to determine under its own law that Mr. Nottebohm was its own national, and the correlative obligation of Guatemala to recognize the Liechtenstein law in this regard are limited not by rigid rules of international law, but only by the rules regarding abuse of right and fraud.

Accordingly I am of the opinion that the Court should have proceeded to examine the merits of the case.