006 The Nottebohmm Case (Liechtenstein v.
Guatamela) - LEDESMA Nottebohm are the short sojourns he took for business purposes. His brother’s
November 18, 1953 & April 6, 1955| ICJ Judgment | Jurisdiction on the basis of
nationality
SUMMARY: Friedrich Nottebohm, a German since birth, applied and later on
was granted nationality through naturalization in Liechtenstein. However, he
went to Guatamela where he took his residence and made it the headquarters of
his business. Guatemala entered World War II against Germany, and the former
arrested Nottebohm as a dangerous enemy alien. He was deported to the US,
where he was interned until 1946. He returned to Liechtenstein after Guatemala
refused his application for readmission. Guatemala confiscated his property on
the grounds that he’s an enemy alien. Liechtenstein then filed with this Court an
Application claiming for restitution and compensation on the ground that
Government of Guatamela “acted towards the person and property of Mr.
Friedrich Nottebohm, a Liechtenstein citizen, in a manner contrary to law”.
Guatamela, on the other hand, refuses to recognize the protection extended by
Liechtenstein to Nottebohm. It argues mainly that it is the bond of nationality
between the State and the individual which alone confers upon the State the right
of diplomatic protection. That this is absent in Liechtenstein’s case.
Whether or not the claim of Liechtenstein with respect to Nottebohm
admissible before the Court?
NO, Liechtenstein’s claim is inadmissible. While 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, the issue which the Court must decide
is not one which pertains to the legal system of Liechtenstein nor does it depend
on that State’s entitlement to exercise protection. To exercise protection in this
Court is to place oneself on the plane of international law, which determines
whether a State is entitled to exercise protection.
Under international law, in cases of dual nationality where the question
arose with regard to the exercise of protection, there is preference to the real
and effective nationality, that which is based on stronger factual ties between
the person concerned and one of the States whose nationality is involved.
Different factors are taken into consideration, and their importance will vary
from one case to the next: the habitual residence of the individual concerned is
an important factor, the center of his interests, family ties, participation in
public life, attachment shown for a given country and inculcated in his
children, etc. Here, the only links to be discovered between the Principality and
presence is referred to in his application for naturalization only as a reference to
his good conduct. Other members of his family have even asserted Nottebohm’s
desire to spend his old age in Guatemala.
Nationality serves 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. It 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.
On the other hand, naturalization is not a matter to be taken lightly as it involves
breaking of a bond of allegiance and establishment of a new bond of allegiance.
Here, naturalization was not based on any real prior connection with
Liechtenstein. The sole aim was 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.
As there was no proof that Guatamela recognized the naturalization conferred
upon Nottebohm, Liechtenstein is not entitled to exercise its protection over
him. The Court, by a voting of 11-3, held that the claim submitted by the
Government of the Principality of Liechtenstein is inadmissible
DOCTRINE: Page 90, Henriksen: In the Nottebohm case however the
International Court of Justice (ICJ) stated that the exercise of rights associated
with nationality may be challenged by other states and the nationality connotes a
‘genuine connection’ with the state that seeks to protect the rights of its citizens.
FACTS:
PROCEDURAL BACKGROUND
1. By way of Application, Government of Liechtenstein instituted proceedings
before this Court claiming restitution and compensation on the ground that
Government of Guatamela “acted towards the person and property of Mr.
Friedrich Nottebohm, a Liechtenstein citizen, in a manner contrary to law”.
2. Guatamela, in its Counter-Memorial contended the inadmissibility of said
claim because of the questionable nationality of Nottebohm which
Liechtenstein wishes to protect.
- Guatamela referred to a well-established principle of international law
 (IL) which states that, “it is the bond of nationality between the State
and the individual which alone confers upon the State the right of
diplomatic protection.”
- Liechtenstein avers that it is well within this rule as it conferred to
Nottebohm nationality by naturalization.
3. The admissibility of Liechtenstein’s Application was the main focus of the
November 18, 1953 decision which rejected the Preliminary Objection
raised Guatamela, and fixed the time-limits of further Pleadings. Hence, this
present case which now deals with the proceedings on the merits.
- The Court concluded that the expiration of the 5-year period for which
Guatamela subscribed to a Declaration accepting the compulsory
jurisdiction of the Court in accordance to Article 36 par. 2 of the
Statute, does not affect any jurisdiction which the Court may have to
deal with the claim presented in the application
FACTUAL BACKGROUND
4. Nottebohm was a German by birth, and still possessed German nationality,
when in October 1939, he applied for naturalization in Liechtenstein.
5. He went to Guatamela where he took his residence and made it the
headquarters of his business. He engaged in the field of commerce,
plantation, and banking.
6. He became a partner, and later on the head, of a firm founded by his
brothers. So, he sometimes visited Germany for business and familial
purposes. However, he remained in his abode at Guatamela.
7. In October 9, 1939, a month after the 2nd World War broke, that his
attorney submitted Nottebohm’s application for naturalization.
8. The Liechtenstein Law of January 4, 1934, lays the foundation for the
requirements needed for the naturalization of foreigners, namely:
- He must prove that the acceptance of a Home Corporation of a
Liechtenstein commune has been promised to him in case of
acquisition of nationality;
- He will lose his former nationality (this can be waived subject to
conditions [These conditions were not specified in the case]);
- Compliance of a 3-year residence (this can be dispensed with under
deserving circumstances);
- Submission of documents, i.e. proof of residence, those relating to his
property and income;
- Payment of naturalization fee;
- There is also an inquiry of the relations of the applicant with his former
country, that such must not cause apprehension due to the admission of
new nationality
9. After the Government of Liechtenstein examines the application and
documents and it is satisfied, it shall submit the application to the Diet. If
the latter approves, such will be submitted to the Prince, who alone is
entitled to confer nationality.
- The Prince is further empowered to withdraw Liechtenstein nationality
within 5 years from date of naturalization when the requirements were
not satisfied, and to withdraw it anytime when obtained fraudulently.
That Nottebohm falls within the second case is the position of
Guatamela.
10. At the end, Nottebohm was able to get a certificate of nationality, a
Liechtenstein passport and a visa from the Consul General of Guatamela.
11. He returned to Guatamela and resumed his business, particularly managing
the firm.
12. Guatemala entered World War II against Germany, and the former arrested
Nottebohm as a dangerous enemy alien. He was deported to the US, where
he was interned until 1946. He returned to Liechtenstein after Guatemala
refused his application for readmission. Guatemala confiscated his property
on the grounds that he’s an enemy alien.
LIECHTENSTEIN’S MEMORIAL; REPLY
13. The Court should declare that:
- The Government of Guatamela in arresting, detaining, expelling, and
refusing to readmit Mr. Nottebohm and in seizing and retaining his
property without compensation acted in breach of their obligations
under IL and consequently requires reparation in the form of damages.
14. That their claim is admissible by the Court without further diplomatic
negotiations.
- That the naturalization of Mr. Nottebohm in Liechtenstein in October
20, 1939 was granted in accordance with its municipal law and not
contrary to IL.
- From that date, Nottebohm was divested of his German nationality, so
Liechtenstein’s claim in his behalf is admissible before this Court.
15. Nottebohm was able to exhaust all local remedies required in Guatamela
and under IL.
GUATAMELA’S COUNTER-MEMORIAL; REJOINDER
16. The Court should the claim of Liechtenstein as inadmissible because
- Of the absence of any prior diplomatic negotiations
- Liechtenstein failed to prove that Nottebohm properly acquired
Liechtenstein nationality
o Nottebohm appears to not have validly lost his German
 nationality because the naturalization granted was not in
accordance with Liechtenstein laws.
o Nottebohm appeared to have solicited nationality fraudulently,
with the sole object of acquiring the status of neutral national
before returning to Guatamela. This, without the genuine
intention to establish durable link, excluding German
nationality, between Principality of Liechtenstein and himself.
o They demand that Liechtenstein produce the archives related
to Nottbohm’s naturalization
- Of Nottebohm’s failure to exhaust local remedies
17. There is no case for damages, hence, the Application must be dismissed.
18. Guatamelan laws applied to Nottebohm did not violate any rule of IL, nor
may any fault be established on the part of Guatamelan authorities in their
conduct.
ISSUE/s:
Whether or not the claim of Liechtenstein with respect to Nottebohm admissible
before the Court? – NO
RULING: 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
RATIO:
LIECHTENSTEIN’S CLAIM IS INADMISSIBLE.
1. To answer the issue, the Court deemed it necessary to answer first this
question: Can the nationality conferred by Liechtenstein to Nottebohm be
validly invoked against Guatamela? Which it held in the negative, too.
2. When Nottebohm presented himself before the Guatemalan authorities, the
latter had before them a private individual. There was no relationship
between governments. Neither did Guatemala recognize that the
naturalization conferred upon Nottebohm gave Liechtenstein any title to
exercise its protection.
- Although a request was sent to the Minister of Finance and Public
Credit referencing Nottebohm’s firm as part of the British Statutory
List, the protection exercised by Liechtenstein was only incidental
because of economic interest, and because the request was based on the
fact that the firm is a “wholly Guatamelan business”.
Similarly, unconnected to this protection is the letter of the Swiss Consul to
the Minister of External Affairs, reference is made to the entry on the Black
Lists of “Frederick Nottebohm, a national of Liechtenstein.
3. Guatemala expressly stated that it could not “recognize that Mr. Nottebohm,
a German subject habitually resident in Guatemala, has acquired the
nationality of Liechtenstein without changing his habitual residence”, which
is an express denial by Guatemala of Nottebohm’s Liechtenstein
nationality.
4. Since there was no proof adduced that Guatamela 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 Guatamela to recognize its
effect, namely, that Liechtenstein’s right to exercise its protection.
CONCEPT OF NATIONALITY IN A DOMESTIC SENSE AS APPLIED IN
THIS CASE
5. 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.
6. 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.
7. Nationality serves 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.
CONCEPT OF NATIONALITY IN INTERNATIONAL LAW AS APPLIED
IN THIS CASE
8. However, the issue which the Court must decide is not one which pertains
to the legal system of Liechtenstein nor does it depend on that State’s
entitlement to exercise protection.
9. To exercise protection in this Court is to place oneself on the plane of
international law, which determines whether a State is entitled to exercise
protection.
10. 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.
11. 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.
12. 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.
13. This situation may arise on the international plane and fall to be considered
by international arbitrators or by the courts of a third State.
TO RESOLVE THE DILEMMA ABOVE: Arbitrators have evolved
certain principles for determining whether full international effect was to
be attributed to the nationality invoked.
14. International arbitrators have decided numerous cases of dual nationality,
where the question arose with regard to the exercise of protection. They
have given their preference to the real and effective nationality, that which
accorded with the facts, that based on stronger factual ties between the
person concerned and one of the States whose nationality is involved.
15. Different factors are taken into consideration, and their importance will vary
from one case to the next: the habitual residence of the individual
concerned is an important factor. But there are other factors such as the
center of his interests, his family ties, his participation in public life,
attachment shown by him for a given country and inculcated in his
children, etc.
16. Courts of 3rd States, when they have before them an individual whom 2
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 (same with writings of publicists and in
practice).
17. 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.
18. Liechtenstein Law of January 4th, 1934: The practice of certain States
which refrain from exercising protection in favor of a naturalized person
when he has in fact, by his prolonged absence, severed his links with what
CONCLUSION
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.
19. 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
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.
- A State cannot claim that the rules it has 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.
- It explains the provision which the Conference for the Codification of
International Law, held at The Hague in 1930, inserted in Art. I of
the Convention relating to the Conflict of Nationality Laws: The
law enacted by a State for the purpose of determining who are its
nationals “shall be recognized by other States in so far as it is
consistent with international custom, and the principles of law
generally recognized with regard to nationality.”
20. 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.
21. Connection with naturalization
- Naturalization, not a matter to be taken lightly, involves breaking of a
bond of allegiance and 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. 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.
22. 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.

23. 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. Other members of his
family have even asserted Nottebohm’s desire to spend his old age in
Guatemala.

24. Naturalization was not based on any real prior connection with
Liechtenstein, nor did it alter the manner of life of the person upon
whom it was conferred in exceptional circumstances of speed and
accommodation
- It was lacking in the genuineness requisite in an act of such importance.
- It was granted without regard to the concept of nationality adopted in
international relations
25. 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.