34

DISSENTING OPINION OF JUDGE READ

I am unable to concur in the Judgment of the Court, which
holds that the claim submitted by the Principality of Liechtenstein
is inadmissible. It is, therefore, necessary for me to indicate my
conclusions as to the proper disposition of the plea in bar, and to
give my reasons. In doing so, I must examine certain of the grounds.
which were relied on by Counsel, in the Pleadings and during the
Oral Proceedings, but which were not adopted as a basis for the
Judgment.

At the outset, I consider that the very nature of a plea in bar
controls the examination of the issues. The allowance of a plea
in bar prevents an examination by the Court of the issues of law
and fact which consitute the merits of the case. It would be unjust.
to refuse to examine a claim on the merits on the basis of findings
of law or fact which might be reversed if the merits were considered
and dealt with.

Accordingly, it is necessary, at this stage, to proceed upon the
assumption that all of Liechtenstein’s contentions on the merits,
fact and law, are well-founded; and that Guatemala’s contentions
on the merits may be ill-founded.

There is another aspect of this case which I cannot overlook.
Mr. Nottebohm was arrested on October 19th, 1943, by the Guate-
malan 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 compen-
sation 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.

It is common ground that 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

34
35 NOTTEBOHM CASE (DISS. OPIN. OF JUDGE READ)

allowed no opportunity to give evidence of the charges made
against bim, 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 £ffect, 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-à-vis
Guatemala, Liechtenstein is entitled, under the rules of international
law, to afford diplomatic protection to Mr. Nottebohm.

It is necessary to deal with the different grounds which have
been relied on in the Pleadings and in the Oral Proceedings.

*
* *

The first ¢round for holding that the claim is inadmissible, which
is contained in paragraph 2 (a) of the Final Conclusions of Guate-
mala, may be stated shortly : that Mr. Nottebohm did not acquire
Liechtenstein nationality in accordance with the law of the Prin-
cipality. While the Judgment of the Court does not rely on this
ground, I must state my position, in order to justify my conclusion
that the plea in bar as a whole should be joined to the merits.

Here, the production of the certificate of naturalization, and
the adoption of the claim by Liechtenstein, establish a prima facie
case. The Court can go back of the certificate and disregard it on .
proof of fraud in the application for or grant of the naturalization,
or in the obtaining or issuing of the certificate. But there has been
no such proof.

It has been argued that the Court can and should examine the
Liechtenstein law and the procedure followed by the Liechtenstein
authorities when the naturalization was granted. It has been
contended that they did not comply with the law and that, as a
result of their defaults, the naturalization granted was a nullity.

I have reached the conclusion that the claim cannot be rejected
on the ground of non-compliance with the national law, and shall
give my reasons in summary form.

To begin with, it is necessary to take into account the juris-
prudence of the Permanent Court. Two principles of law have been
established. The judgment in The Mavrommatis Jerusalem Con-

35
36 NOTTEBOHM CASE (DISS. OPIN. OF JUDGE READ)

cessions—Series A, No. 5, at page 30—settled the rule that the
burden of proof is on the party, that alleges the nullity of a legal
act under the national law, to prove it.

The other principle is to be found in a long series of decisions,
which applied the principle : that ‘‘municipal laws are merely facts
which express the will and constitute the activities of States” and
that the Court does not interpret the national law as such.

Polish Upper Silesia—Series A, No. 7, page 19.

Serbian Loans—Series A, Nos. 20/21, page 46.

Brazilian Loans—Series A, Nos. 20/21, page 124.

Lighthouses Case (France/Greece)—Series A/B, No. 62, page 22.
Panevezys-Saldutiskis Railway Case—Series A/B, No. 76, page 19.

In the present case, Guatemala has alleged the invalidity or
nullity of the legal act of naturalization under the national law.
The burden of proof is on Guatemala to prove it. But Guatemala
has not furnished any admissible evidence ; such as the testimony
of a jurist learned and experienced in Liechtenstein law, or an
opinion from the Highest Court in that country. The case has been
presented as if this Court was competent to interpret the Liechten-
stein law as such, and to pass upon its application to the special
circumstances of this case. It has been argued without consideration
of the provisions of the Liechtenstein law regarding the inter-
pretation of statutes or of the decisions of its courts.

Accordingly, the contention of the respondent Government, as
regards invalidity under the national law, fails through lack of
evidence to support it. |

But this is not merely a case of failure of proof. Even if the
Liechtenstein Law of 1934 is interpreted without regard to the
rules of interpretation, procedure and administrative law in force
in that country, it is impossible to reach the conclusion that the
naturalization was a nullity. There is a fundamental error in the
method of interpretation adopted by Counsel, both in the Pleadings
and in the Oral Proceedings.

It has been argued that the Liechtenstein authorities disregarded
the provisions of the Law of 1934 in two respects : it is said that
they inverted the order in which the different steps in the procedure
were to be carried out. It is also said that they did not comply
with certain essential requirements laid down in the Law. The
conclusion was reached that the naturalization was invalid, because
of non-conformity with the laws. of the Principality.

This interpretation was based on consideration of particular
provisions, without taking into account the Law as a whole. In
particular, it ignored a provision which is of crucial importance,
Article 21, which contains the following paragraph :

36
37 NOTTEBOHM CASE (DISS. OPIN. OF JUDGE READ)

Section 2r

“The Princely Government may, within five years from the date
of acquisition thereof, deprive a foreign national of the citizenship
of the Principality which has been granted to him, if it appears
that the requirements laid down in this law as governing the grant
thereof were not satisfied. It is entitled, however, at any time, to
deprive a person of the citizenship of the Principality if the acquisi-
tion thereof has come about in a fraudulent manner.”

It is clear that the naturalization of Mr. Nottebohm could have
been revoked at any time within five years of the grant, if it had
appeared that any of “the requirements laid down in this law were
not satisfied’. It is equally clear that, after the expiration of the
five-year period—i.e. in October 1944—the naturalization became
indefeasible, apart from fraud. In such circumstances, it is not
open to me, nearly sixteen years after the event and in the absence
of fraud, to find that the naturalization was invalid under the
Liechtenstein law.

*
* *

The second ground for holding that the claim is inadmissible,
which is contained in paragraph 2.(b) of the Final Conclusions of
Guatemala, may be stated shortly: that naturalization was not
granted to Mr. Nottebohm in accordance with the generally recog-
nized principles in regard to nationality.

Conclusion 2 (6) is obviously defective. The Court cannot deter-
mine “generally recognized principles’’ or decide cases on the basis
of such principles. Its competence is limited by the peremptory and
mandatory provisions of Article 38 of the Statute, to decision
“Gn accordance with international law’.

However, the position taken by Counsel makes it clear that the
Final Conclusion 2 {b) was intended to raise the issue of abuse of
tight.

Abuse of right is based on the assumption that there is a right
to be abused. In the present case it is based upon the assumption
that Liechtenstein had the right under international law to natura-
lize Mr. Nottebohm, but that, in view of the special circumstances
and the manner in which the right was exercised, there was an
improper exercise of the right—an exercise so outrageous and
unconscionable that its result, i.e. the national status conferred on
Mr. Nottebohm, could not be invoked against Guatemala.

The doctrine of abuse of right cannot be invoked by one State
against another unless the State which is admittedly exercising
its rights under international law causes damage to the State
invoking the doctrine.

As this ground is not relied upon in the Judgment of the Court,
it is unnecessary for me to examine the particular grounds relied

37
38 NOTTEBOHM CASE (DISS. OPIN, OF JUDGE READ)

on by Counsel. It is sufficient to point out that Liechtenstein
caused no damage to Guatemala, and that it is therefore necessary
to reject the Final Conclusion 2 (0).

*
* *

The third ground for holding that the claim is inadmissible,
which is contained in paragraph 2 (c) of the Final Conclusions of
Guatemala, is based on fraud.

It is impossible to separate the aspects of fraud which are relevant
to the plea in bar from those which concern the merits. The greater
part of the evidence adduced in support of the charge of fraud was
contained in considerably more than one hundred documents.
From these documents a few were selected and brought to the
attention of the Court. The remaining documents were not placed
at the disposition of the Court.

In these circumstances, it is not possible for me to found any
conclusion based on fraud at this stage in the case. I am therefore
of the opinion that the Guatemalan Final Conclusion 2 (c) should
be joined to the merits.

*
* *

There is another aspect of the question, which must be considered.
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.

This ground, to which I shall refer as the link theory, as it is
based on the quality of the relation between Mr. Nottebohm and
Liechtenstein, cannot be related to the Final Conclusions of Guate-
mala, or to the argument in the Pleadings and Oral Proceedings.

Accordingly, the matter is governed by the principle which was
applied by this Court in the Ambatielos case (Jurisdiction), Judg-
ment of July Ist, 1952, J.C./. Reports 1952, at page 45:

“The point raised here has not yet been fully argued by the
Parties, and cannot, therefore, be decided at this stage.”

Indirectly, some aspects were discussed as elements of abuse of
right, but not as a rule of international law limiting the power of a
sovereign State to exercise the right of diplomatic protection in
respect of one of its naturalized citizens.

38
39 NOTTEBOHM CASE (DISS. OPIN. OF JUDGE READ)

As a Judge of this Court, I am bound to apply the principle of
international law, thus declared by this Court. I cannot concur in
the adoption of this ground—not included in the Conclusions and
not argued by either Party—as the basis for the allowance of the
plea in bar, and for the prevention of its discussion, consideration.
and disposition on the merits.

Nevertheless, in view of the course followed by the majority,
I must examine this ground for holding that the grant of naturaliza-
tion did not give rise to a right of protection, and indicate some
of the difficulties which prevent my concurrence.

*
i * *

To begin with, I do not question the desirability of establishing
some limitation on the wide discretionary power possessed by
sovereign States : the right, under international law, to determine,
under their own laws, who are their own nationals and to protect
such nationals.

Nevertheless, I am bound, by Article 38 of the Statute, to apply
international law as it is—positive law—and not international law
as it might be if a Codification Conference succeeded in establishing
new rules limiting the conferring of nationality by sovereign
States. It is, therefore, necessary to consider whether there are any
rules of positive international law requiring a substantial relation-
ship between the individual and the State, in order that a valid
grant of nationality may give rise to a right of diplomatic pro-
tection.

Both Parties rely on Article 1 of The Hague Draft Convention of
1930 as an accurate statement of the recognized rules of interna-
tional law. Commenting on it, the Government of Guatemala
stated in the Counter-Memorial (p. 7) that “there can be no doubt
that its Article 1 represented the existing state of international
law”. It 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 im 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 opposa-
bility.

39
40 NOTTEBOHM CASE (DISS. OPIN. OF JUDGE READ)

No ‘‘international conventions’’ are involved and no ‘‘interna-
tional custom’’ has been proved. There remain ‘‘the principles of
law generally recognized with regard to nationality’, and it is on
this qualification of the generality of the rule in Article 1 that
Guatemala has relied both in the Pleadings and in the Oral Pro-
ceedings.

In this regard the Government of Guatemala stated in para-
graph 16 of the Counter-Memorial :

“As to the first point, it is necessary in the first place to determine
what, in the absence of general international conventions binding
upon the Principality of Liechtenstein, is the content of international
law in the light of which the international validity of that State’s
law must be examined.

It must be acknowledged that in this connection there is no
system of customary rules nor any rigid principles by which States
are bound.

As M. Scelle has indicated, it is rather in the realm of ‘abuse of
power’ (or of competence or of right).that the courts must consider
in each case whether there has been a breach of international law
(Scelle—Cours de Droit international public, Paris, 1948, p. 84).”

This position was maintained in the Oral Proceedings.

It is therefore clear that the Government of Guatemala considers
that there are no firm principles of law generally recognized with
regard to nationality, but that the right of Liechtenstein to deter-
mine under its own law that Mr. Nottebohm was its own national,
and the correlative obligation of Guatemala to recognize the Liech-
tenstein 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.

*
* *

I have mentioned that no ‘‘international conventions” are
involved and that no ‘international custom has been proved’.
It has been conceded by Guatemala that ‘‘there is no system of
customary rules”, but the link theory is supported by the view
that certain international conventions suggest the existence of a
trend. I must deal with this point before considering whether the
firm view of the law on which the two Parties are in complete
agreement should be rejected.

The first international convention is Article 3 (2) of the Statute,
which deals with the problem of double nationality. It has nothing
to do with diplomatic protection and is not in any sense relevant
to the problem under consideration. It is true that it accepts as a
test in the case of double nationality the place in which the person
“ordinarily exercises civil and political rights”. Even if this test

40
AI NOTTEBOHM CASE (DISS. OPIN. OF JUDGE READ)

can be dragged from an entirely different setting and applied to
the present case, it does not contribute much to the solution.
Mr. Nottebohm has, in the course of the last fifty years, been
linked with four States. He was a German national during thirty-
four years, but exercised neither civil nor political rights in that
country. He was ordinarily resident in Guatemala for nearly forty
years, but exercised no political rights at any time in that country
and has been prevented from exercising important civil rights for
twelve years. He was a prisoner in the United States of America
for more than two years, where he exercised neither civil nor
political rights. Since his release, he has been‘ accorded full civil
rights in the United States and has exercised them freely, but he
has had no political rights in that country. He has had full civil
rights in Liechtenstein for nearly sixteen years, and has exercised
full political rights for nine. Article 3 (2) certainly does not weaken
the Liechtenstein position. .

The United States of America, between the years 1868 and 1928,
concluded bilateral conventions with about eighteen countries, not
including Liechtenstein, which limited the power of protecting
naturalized persons who returned to their countries of origin. The
same sort of restriction on the opposability of naturalization was
incorporated in a Pan-American Convention concluded at Rio de
Janeiro in 1906. Liechtenstein was precluded from participation.
Venezuela refused to sign the Convention. Bolivia, Cuba, Mexico,
Paraguay, Peru and Uruguay signed the Convention but did not
ratify it. Brazil and Guatemala have both denounced its provisions.

The fact that it was considered necessary to conclude the series
of bilateral conventions and to establish the multilateral Convention
referred to above indicates that the countries concerned were not
content to rely on the possible existence of a rule of positive
international law qualifying the right of protection. Further, even
within that part of the Western hemisphere which is South of
the 49th Parallel, the ratifications of the multilateral Convention
were not sufficiently general to indicate consensus of the countries
concerned. Taking them together, the Conventions are too few
and far between to indicate a trend or to show the general consensus
on the part of States which is essential to the establishment of
a rule of positive international law.

It is suggested that the link theory can be justified by the
application to this case of the principles adopted by arbitral.
tribunals in dealing with cases of double nationality.

41
42 NOTTEBOHM CASE (DISS. OPIN. OF JUDGE READ)

There have been many instances of double nationality in which
international tribunals have been compelled to decide between
conflicting claims. In such cases, it has been necessary to choose ;
and the choice has been determined by the relative strength of
the association between the individual concerned and his national
State. There have been many instances in which a State has
refused to recognize that the naturalization of one of its own
citizens has given rise to a right of diplomatic protection, or in
which it has refused to treat naturalization as exempting him
from the obligations incident to his original citizenship, such as
military service.

But the problems presented by conflicting claims to nationality
and by double nationality do not arise in this case. There can
be no doubt that Mr. Nottebohm lost his German nationality of
origin upon his naturalization in Liechtenstein in October 1930.
I do not think that it is permissible to transfer criteria designed
for cases of double nationality to an essentially different type of
relationship.

It is noteworthy that, apart from the cases of double nationality,
no instance has been cited to the Court in which a State has
successfully refused to recognize that nationality, lawfully conferred
and maintained, did not give rise to a right of diplomatic
protection.

*
bo %*

There are other difficulties presented by the link theory. In
the case of Mr. Nottebohm, it relies upon a finding of fact that
there is nothing to indicate that his 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. He had no ties with the
Government of Germany, although there is abundant evidence
to the effect that he had links with the country, as distinct from
the Government. There are substantial difficulties which need to
be considered.

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

42
43 NOTTEBOHM CASE (DISS. OPIN. OF JUDGE READ)

origin. It is noteworthy that in the United Kingdom the policy
of recognizing the automatic loss of British nationality on natura-
lization 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 Ger-
many. The first is the fact of his application for naturalization,
the second is the taking of his oath of allegiance to Liechten-
stein, 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.

Counsel for Guatemala proceeded to contend that the lack of
residence, in the circumstances, might be taken into account in
determining whether there had been an abuse of right by Liech-
tenstein, but I have already dealt with that aspect of 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.

43
44 NOTTEBOHM CASE (DISS. OPIN. OF JUDGE READ)

*
* *

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 non-
resident 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 obtain-
ed 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

44
45. NOTTEBOHM CASE (DISS. OPIN. OF JUDGE READ)

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 inter-
national 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 154 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 mid-
winter 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 Liech-
tenstein 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 nation-
ality, 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.

45
46 NOTTEBOHM CASE (DISS. OPIN. OF JUDGE READ)

The second finding is that the naturalization was conferred in
exceptional circumstances of speed and accommodation. There are
many countries, beside 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.

x
* *

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 adopt-
ing 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 Liech-
tenstein 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 recog-
nition of the status. That is why the practice of States has stead-
fastly 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 1931.

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.

46
47 NOTTEBOHM CASE (DISS. OPIN. OF JUDGE READ)

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-à-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 obliga-
tions vis-a-vis the receiving State, particularly a diminution of
its rights as against the individual resulting from the local alle-
giance, 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-à-vis Germany to accord reasonable and fair
treatment. Guatemala had the right to deport Mr. Nottebohm to
Germany and to no other place. Germany had the right of diplo-
matic 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 Guatema'an Government on the highest level. His registration
under the Aliens’ Act as a German national was cancelled and he
was registe. _d as a Liechtenstein national. From the end of January
1940 he was treated as such in Guatemala.

47
48 NOTTEBOHM CASE (DISS. OPIN, OF JUDGE READ)

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 Liechten-
stein 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 war-time measures in the event that
Guatemala ultimately became involved in war with Germany. In

48
49 NOTTEBOHM CASE (DISS. OPIN. OF JUDGE READ)

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 [ 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 reject
the Guatemalan Final Conclusions 2 (a) and 2 (6), join the Con-
clusion 2(c) to the merits, and proceed to an examination of
the other pleas in bar contained in the Guatemalan Final Conclu-
sions i and 3.

(Signed) J. E. READ.

49


55

OPINION INDIVIDUELLE DE M. SPIROPOULOS

Bien qu’appartenant à la majorité, je ne saurais, à mon plus vif
regret, être d'accord avec celle-ci sur tous les points discutés et
tranchés par l'arrêt. Je me bornerai, dans ce qui suit, à exposer sur
quels points je m’écarte de la rédaction donnée à la conclusion
n° 2, conclusion par laquelle la Cour établit sa compétence de juger
au fond.

La rédaction de la conclusion n° 2 de l’arrêt semble imposer à la
Partie demanderesse le devoir d'établir que la réclamation Amba-
tielos « est fondée sur une disposition du traité de 1886 ».

Je me sépare de l'avis de la majorité pour les raisons suivantes.

La déclaration annexée au traité de 1926 prévoit que les diver-
gences entre les Parties intéressées, quant à la validité de réclama-
tions fondées sur les dispositions du traité de 1886, doivent être
soumises à l'arbitrage prévu par le protocole de 1886.

Or, ce protocole établit pour les Parties intéressées, en cas de
divergences entre elles, l'obligation de désigner leurs arbitres en vue
de constituer la commission arbitrale du protocole de 1886. Il s’agit
ici d’un cas d'arbitrage obligatoire.

Si le Royaume-Uni avait désigné son arbitre, ainsi que l’a
demandé le Gouvernement hellénique, ce serait la commission
d'arbitrage qui devrait juger sur la validité de la réclamation
Ambatielos. Et cette commission n’aurait pu considérer la récla-
mation Ambatielos comme valide que sous condition que celle-ci
fût, en effet, fondée sur le traité de 1886.

Or, en matière d'arbitrage, il est aujourd’hui acquis que si l’une
des. parties estime que, pour une raison quelconque, le tribunal
arbitral n’aurait pas de compétence pour se prononcer sur un
différend, cette dernière question ne saurait jamais être tranchée,
souverainement, par la partie soulevant l'exception d’incompétence,
mais bien par le tribunal arbitral lui-même. Le juge de l’action est
aussi juge de l'exception. C’est un point sur lequel, aujourd’hui,
personne ne saurait plus exprimer de doutes.

Appliquant maintenant le principe susmentionné au présent cas,
il s'ensuit que, si le Gouvernement du Royaume-Uni avait accepté
le recours à l’arbitrage proposé par le Gouvernement hellénique,
c'eût été à la commission arbitrale du protocole de 1886 de décider
si la réclamation Ambatielos est, oui ou non, fondée sur des disposi-
tions du traité de 1886.

34
56 OPINION INDIVIDUELLE DE M. SPIROPOULOS

Du point de vue de cette constatation, la Cour ne saurait deman-
der au Gouvernement hellénique d'établir que la réclamation
Ambatielos «est fondée sur une disposition du traité de 1886 »,
étant donné que l'obligation du Royaume-Uni d'accepter l'arbitrage
est indépendante de la question de savoir si cette réclamation est,
en effet, fondée sur le traité de 1886. Cette obligation existe même
si la réclamation n'était pas, en effet, fondée sur le traité en ques-
tion. Autre chose est — nous l’avons déjà dit — que la commission
arbitrale n'aurait pu reconnaître la réclamation Ambatielos comme
valable que dans la mesure où celle-ci aurait pu être, en fait, fondée
sur le traité de 1886. Et c’est pour avoir une décision sur l’obliga-
tion du Royaume-Uni d'accepter l'arbitrage que le Gouvernement
hellénique a saisi la Cour (voir requête hellénique ainsi que conclu-
sions subséquentes).

D'autre part, du moment que la Cour n’est, ce moment-ci, appelée
qu'à décider sur l'exception d’incompétence soulevée par le
Royaume-Uni, elle ne saurait, pour des motifs de procédure, se
prononcer d'ores et déjà sur le bien-fondé de la demande hellénique
tendant à ce que la Cour dise que le Royaume-Uni est obligé d’accep-
ter l'arbitrage, décision qui relèverait forcément du fond. En
effet, au point de vue de la procédure, la Cour ne saurait se pro-
noncer sur le fond de la demande hellénique susmentionnée qu'après
s'être préalablement déclarée compétente à cet effet.

Cependant, étant donné que, d’après notre avis, il n'appartient
pas à la Cour d'examiner si la réclamation Ambatielos « est fondée
sur les dispositions du traité de 1886 », on peut se demander si, en
statuant sur le fond de la demande hellénique susmentionnée (c’est-
à-dire sur la question de savoir si le Royaume-Uni est obligé d’accep-
ter l'arbitrage), la Cour doit se borner, après avoir entendu les
Parties, à renvoyer les Parties à l’arbitrage du protocole de 1886
sans pouvoir procéder à un autre examen quelconque.

Pour répondre à cette question, on doit prendre en considération
que, lorsqu'un Etat s’est lié par une clause d'arbitrage obligatoire
— et le protocole de 1886 en est un exemple —, il n'existe pour
cet Etat, en principe, aucun moyen de décliner une offre de recourir
à l'arbitrage. Ce n'est que dans le cas tout à fait exceptionnel où
l'invitation de recourir à l’arbitrage constituerait un abus manifeste
de l’État requérant que le recours à l'arbitrage ne serait pas obliga-
toire. Pareil abus existerait, par exemple, si, sans l'existence d’un
différend réel, l’une des parties demandait la constitution du
tribunal arbitral. En effet, en pareil cas, on est obligé de reconnaître ©
à la partie adverse le droit de refuser la désignation de son arbitre.
Pareille hypothèse, si alléguée, pourrait naturellement faire l'objet
d'un examen de Ja part de la Cour lorsque celle-ci se prononcera
sur le bien-fondé de la demande du Gouvernement hellénique en
question.

35
57 OPINION INDIVIDUELLE DE M. SPIROPOULOS

Pour conclure, nous sommes d’avis que la Cour aurait pu se
borner à se déclarer compétente sur la question de savoir si le
Royaume-Uni est tenu de soumettre à l'arbitrage, conformé-
ment à la déclaration de 1926, le différend relatif à la validité de la
réclamation Ambatielos, sans y ajouter les mots « en tant que cette
réclamation est fondée sur le traité de 1886 », étant donné que cette
phrase semble imposer au demandeur le devoir d'établir que la
réclamation en question est, en effet, fondée sur une disposition du

traité de 1886.

(Signé) SPIROPOULOS.

36