Sloane: Breaking the Genuine Link: The Contemporary International Legal Regulation of Nationality

Robert D. Sloane (Boston Univ. - Law) has posted Breaking the Genuine Link: The Contemporary International Legal Regulation of Nationality (Harvard International Law Journal, forthcoming). Here's the abstract:

The concept of nationality serves indispensable functions in international law. It traditionally mediated the relationship between the individual and the state in a bygone era in which international law regarded only the latter as a genuine subject of the law; and in contemporary international law, its roles have expanded. Yet apart from treaty constraints voluntarily assumed by states, today, as in the past, it remains unclear whether and, if so, how international law limits the otherwise almost plenary competence of states to confer their nationality by internal law in a way entitled to international recognition. After the International Court of Justice's (ICJ) 1955 judgment in Nottebohm, however, international lawyers began to express the limit purportedly imposed by general international law with a kind of doctrinal mantra: a state's national, to be a bona fide national entitled to recognition as such at the international level, must have a "genuine link" to that state.

This article critiques the genuine link theory and proposes a functional account of nationality, which, it argues, is descriptively more accurate and normatively more constructive. It first revisits Nottebohm in some detail in an effort to show that the generally accepted reading of that opinion, particularly as it has evolved into a doctrine of broad application, is triply misguide - first, on the opinion's own terms; second, in view of the positive international law of the era; and third, because of contemporary international law's evolution to respond effectively to the needs of the modern global political economy. Nottebohm is properly read as a narrow decision in which the ICJ tacitly invoked a general principle of law to prevent what it saw as a manipulative effort by the claimant, a German by birth, to evade a critical part of the law of war. The principle of abuse of rights, although casually dismissed by some dissents and contemporaneous commentators, better explains and justifies the opinion. If this is right, the ICJ did not, contrary to a view broadly held by both proponents and critics of Nottebohm, judicially legislate a novel rule regulating nationality by means of the genuine link doctrine.

Whatever the merits of this rereading of Nottebohm, today, the genuine link theory often proves anachronistic in view of changes in the diverse functions that nationality serves in international law. To illustrate, the article suggests that the general principle prohibiting abuses of rights - not coincidentally, the actual rationale for Nottebohm - would also be more appropriate and effective than the genuine link theory to regulate nationality in one contemporary context that has provoked debate recently: investor-state arbitration. But the abuse-of-rights principle is no panacea. The point of emphasis is that an atomized conception of nationality, which has been liberated from the genuine link theory, would better serve international policy in fields including international criminal law, human rights, E.U. law, and others. The article concludes that nationality, which is by definition an aggregate concept, should be candidly disaggregated by the functions it serves, and its international legal regulation should vary commensurately.