Sunday, March 25, 2012

The Nottebohm Case | Liechtenstein v. Guatemala case brief

The Nottebohm Case (Liechtenstein v. Guatemala; ICJ 1955; p. 315)
  • Can Liechtenstein represent Nottebohm at the ICJ? No.
  • Two concepts:
    • State protectionstate of which person is a national can protect.
    • State responsibility—state where alien resides (see p. 322, n. 1). This has now expanded to include:
      • Territorial integrity. (Rainbow Warrior Case p. 323)
      • Harm to Environment.
      • Breaching Treaty Obligations.
      • Responsible for violating rights of its own citizens. Problem: (1) What are considered human rights? (2) How to enforce? Esp. when UN can’t intervene in domestic relations. Query: Is this really domestic?
  • Attribution (n. 2, 323)—who in facts binds the state? For what acts is a state responsible? What if it is the act of a state/local agency—can whole nation/state be responsible? Esp w/ (a) federal system and (b) private parties. (Intl comm. has been working on this—but very controversial)
  • Is Guatemala required to recognize Liechtenstein naturalization on intl level?
  • Limitations on naturalization—can’t naturalize a member of foreign forces or someone who enjoys diplomatic immunity.
  • Dualism: Liechtenstein can grant naturalization, but intl law does not require Guatemala to recognize this naturalization.
  • Ct says that there must be a “genuine link” btwn a country and the person asking for protection for the ct to require Guatemala to recognize.
  • This opinion is limited today b/c naturalization has become a matter of convenience. “Genuine Link” is dead.
  • Ct goes into idea of when a state can bring an action—objective theory/positivist theory (only states can).
  • N. 1, p. 322: Mavrommatis Palestine Concessions Case (PCIJ—1924) Est the doctrine that actions against individuals are actions against states. Denial of justice or exhaustion of remedies before it can go to the intl tribunal.
  • There is a gap in the system—what recourse do Nottebohm type people have?
  • N. 3, p. 318: Ct seems to focus on this extensive link w/ Guatemala (but implication that other states might be expected to recognize him.)
  • Reparations: Wld they be given to Liechtenstein and Nottebohm? Stateless persons—do they have any rights? World has over 20 million refugees. Nansen---alien travel documents issued on behalf of UN for people in trouble. These don’t require protection by issuing states.

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