Genuine Link Research Articles

In Fairness to Nottebohm: Nationality in an Age of Globalization

Abstract The Nottebohm judgment from the International Court of Justice (ICJ) has recently come under attack in the context of the European Commission's position on “golden passports” programmes. The judgment has long received intense criticism from a consensus of scholars. This article challenges the conventional wisdom of Nottebohm. The ICJ did not, as critics argue, depart from international law on nationality, nor did it seek to create an international rule based on a “genuine link” requirement. A closer look at the majority's reasoning reveals that the ICJ's conception of nationality as something more than a mere formal classification was prompted by problems that can arise precisely from the phenomenon of globalization, including the instrumentalization of nationality. It further shows that the “substance-over-form” approach adopted by Nottebohm may, or already does, operate in more contemporary contexts.

The settlement of tax disputes by the International Court of Justice

AbstractThis article analyses the ICJ, one of the most eminent actors of the international legal regime, as an actor of the international tax regime. So far, the ICJ’s role in tax dispute resolution has been a blind spot in the literature.The descriptive part of this article first discusses the case law of the PCIJ and ICJ that considers – albeit incidentally – questions of taxation. These tax-related cases are categorized as (i) ‘wrongful taxation’ constituting the subject matter of the dispute; (ii) taxation as evidence for a ‘genuine link’ between the state and a national; or (iii) taxation as an ‘effectivité’ to prove the de facto exercise of state authority over a given territory.The second half of the descriptive analysis assesses the Court’s jurisdiction over tax disputes. Tax treaties usually lack compromissory clauses. Yet, there are a number of jurisdictional bases that vest the Court with the competence to sit over hypothetical tax treaty disputes, although certain reservations may render the Court’s jurisdiction residual to other means of tax dispute settlement. Further, Article 344 TFEU possibly precludes EU member states from initiating ICJ proceedings concerning tax treaty disputes with other EU states.The second, normative part of this article contemplates the Court as a future ‘World Tax Court’. It briefly addresses (i) possible effects of the ICJ’s hypothetical involvement in tax disputes; (ii) whether the ICJ might have a future role in tax dispute settlement in light of recent developments; and (iii) whether it is even desirable to involve the Court in tax disputes.

TACKLING BRIBERY IN ACCESSING KENYAN CITIZENSHIP: TOWARDS IMPLEMENTING AND ENFORCING ANTI-CORRUPTION MEASURES

Every Kenyan citizen has the right to acquire civic identification documents pursuant to article 12 of the Kenyan Constitution, 2010. This right allows Kenyans to apply for birth certificates, national identification documents and passports. These identification documents are crucial in proving that a person has a genuine link with Kenya which in turn unlocks their enjoyment of socioeconomic and political rights. Conversely, without identity documentation, a person’s access to socioeconomic and political rights is limited. Consequently, one may face challenges in accessing education, adequate healthcare, opening a bank account, travelling abroad, owning property, voting and vying for political posts, among others. The Department of Civil Registration Services has the mandate of registering births and deaths, while the National Registration Bureau is tasked with providing national identification documents. Reports conducted by the Ethics and Anti-Corruption Commission (EACC) and the Kenya National Commission on Human Rights (KNCHR) indicate that some applicants seeking civic identification documents were asked for bribes by some registration officials in order to acquire the documentation or expedite the process . Kenya has made positive strides towards combating corruption through enacting extensive domestic anti-corruption legislation and ratifying international and regional legislation on anti-corruption. This paper argues that, successful implementation and enforcement of the existing anti-corruption laws by anti-corruption agencies will play a major role in curbing bribery that is experienced while accessing identification documents in Kenya.

Combating drug trafficking: the international legal dimension

According to the provisions of international legal agreements governing interstate relations at sea, there must be a specific connection between states that release ships flying their flag at sea and those ships that use the attributes of the respective state. This regime provides for the existence of a number of interrelated rights and responsibilities that have both the state and the relevant vessel under its flag. In the event that a seagoing ship violates the rules of international law, the State concerned shall have the right to apply liability to such a ship. It is the purpose of this research that is the analysis of the obligations of the states whose flag ships go to sea that violate the established international legal requirements, in particular - in the field of drugs and psychotropic substances. The author of the article used a number of methods of scientific knowledge to obtain relevant results. Such methods include the dogmatic method, the comparative legal method, the deduction method, and the induction method. As a result of the study, the author concluded that the system of obligations of the "flag state", which includes, inter alia, obligations to stop the illicit trafficking of narcotic drugs and / or psychotropic substances, is the illegal use of "flag vessels" and constitute the concept of «genuine link».

Status obligations of a “flag state”: modern international legal regime of the slaves’ transportation suppression

The UN Convention on the Law of the Sea prescribes that vessels have the nationality of the State whose flag they are entitled to fly and that there must exist “a genuine link” between a “flag State” (a State which entitles a vessel to fly its flag) and the “flag vessels” (the vessels which are entitled to fly the States’ flag). But the Convention has neither definition of the term “genuine link” as a legal link “legal rights – legal obligations”, nor defines States’ and vessels’ rights and obligations. We have analyzed status obligations of a “flag State” which are related to suppression of illegal use of the “flag vessels”. The purpose of our study was to investigate modern international legal regime of the slaves’ transportation by sea suppression and to prepare the legal field to defining the full complex of a “flag State” status obligations. The methodology includes systematic, formal-legal methods, the methods of analyses and synthesis. The results highlight that the status obligations of a “flag State”, inter alia, those to suppression the transportation of slaves as an illegal use of the “flag vessels”, are those to form an integral part of the “genuine link” conception.

Revising Citizenship within the European Union: Is a Genuine Link Requirement the Way Forward?

AbstractEU institutions have argued on several occasions that national and EU citizenship should not be awarded without any genuine link with the Member State concerned. Some scholars have adopted the same position, justifying their position referring to the genuine link requirement established by the International Court of Justice in Nottebohm. This has prompted criticism from legal scholars, who point out that Nottebohm was wrong as a matter of international law and moral principle. This paper shows that supporters and critics have failed to recognise that they have been talking with different conceptions of the genuine link requirement in mind. The question of whether to apply a genuine link requirement for the recognition of nationality is altogether different from the question of whether to apply a genuine link requirement for the acquisition of nationality. Nottebohm concerns the first; the arguments of EU institutions the second. The argument of EU institutions cannot therefore be dismissed by dismissing Nottebohm. I subsequently explore the normative arguments for predicating the boundaries of national membership on a genuine link requirement. There are weighty moral reasons for member states to condition the acquisition of national and EU citizenship on the presence of a genuine link. Finally, moving from the normative to the practical, I argue that such a requirement would have far-reaching consequences (targeting not just investor citizenship schemes) and cannot be enforced as a requirement under EU law.

The Intrigues and Intricacies of the Twin Concepts of Flag State Jurisdiction and the Requirement of a Genuine Link under International Maritime Law

The Intrigues and Intricacies of the Twin Concepts of Flag State Jurisdiction and the Requirement of a Genuine Link under International Maritime Law

The “Genuine link” Concept: Is It Possible to Enhance the Strength?

The article focuses on ways and means of strengthening the real connection between a ship and a state of registration. The author emphasizes the prerequisites, the conditions, and the consequences of the registration of sea-going ships in the alternative registries. He notes the complex nature of the genuine link and criticize the consideration of the registration of ships in states as activities aimed exclusively at generating income. The author considers public and private aspects of the registration of ships, its functions, and some mechanisms for preventing violations related to the link between a state of registration and a ship”. The negative impact of open registers and flags of convenience on genuine link strengths arises from the business approach to the choice of jurisdiction adopted both of shipowners and “convenient” registers. Thus, “convenient registers” view relaxation of requirements as a specific service that they provide and as a competitive advantage against other registers. The issue can be mitigated by coordinating steps taken by international maritime organizations and port states. The author notes the weakness of the steps taken to strengthen the genuine link, the inefficiency of norms of the international agreements in this sphere, assess the proposed mechanisms for strengthening it, and note the need to toughening control within the limits of the inspection according to the procedures of the Port State Control.

Status «ecological» obligations of a flag state as an integral part of the «genuine link» conception

The modern legal regime of a flag State’s status “ecological” obligations is composed by a legislation (laws and regulations) of two levels: international and national. The legislation of both the levels is consistent with the generally accepted international rules, standards and recommended practices and procedures, the “UNCLOS’82”, the rights of States and prescribes, inter alia, measures to be taken for the protection and preservation of the marine environment pollution – measures to prevent, reduce and control pollution of the marine environment – the States’ “ecological” obligations. It is generally accepted in international maritime law to dived abovementioned obligations in: status “ecological” obligations of the “shore States”, status “ecological” obligations of the “port States” and status “ecological” obligations of the “flag States”. The research topic is certainly relevant given the almost catastrophic situation due to pollution of the world's oceans and the environment in general. The research methodology includes methods of analysis and synthesis, dogmatic method and comparative law method. This research focuses on the definition of the modern international legal regime of a flag State’s status “ecological” obligations. These obligations form a flag State’s legal status and could be qualified as an integral part of the “genuine link” conception. The author of the article concluded that the current conventions in the field of maritime law aimed at protecting the world's oceans play an important role, but no less important tasks are to improve national legislation of coastal countries, as well as proper implementation of both international and national norms aimed at the protection and restoration of the world's oceans.

Public Health and International Obligations of States: The Case of COVID-19 on Cruise Ships

Against the backdrop of the COVID-19 outbreak onboard the cruise ship Diamond Princess, both the flag State and the port State should act according to international obligations during the sailing stage, quarantine period after ships’ berthing, and the time when the quarantine period expires. However, the potential danger of the absence of a “genuine link” between the cruise shipowners and the flag State, the lack of coordination of jurisdiction in different sea areas and between different States, and also the lack of special or systematic regulations for infection prevention and control (IPC) at sea and for cruise ships increase the risk of a State’s breach of international obligations. Therefore, it is deemed necessary to improve the responsive measures in international law. This paper, after review and analysis, sheds light on various recommendations on how to improve the responsive measures in international law, including (i) strengthening of the jurisdiction of the flag State, (ii) establishment of a special international cooperation mechanism with an alliance between the WHO and the IMO, and (iii) construction of an IPC mechanism for home ports of cruise ships.

A CRITICAL REVIEW OF THE APPLICATION OF CITIZENSHIP BY INVESTMENT IN LIGHT OF THE EXAMPLES IN THE WORLD

Yatırım yoluyla vatandaşlık kavramı yabancı kişinin ülkeye yaptığı doğrudan veya dolaylı yatırım veyahut bağış karşılığında, yatırım yapılan devlet tarafından verilen vatandaşlık olarak tanımlanabilir. Yatırım yoluyla vatandaşlık verilmesi konusunda geleneksel uygulama, ülkeye belli bir yatırım getirilmesine ilave olarak, yatırım yapan kişinin girişimcilik ve istihdam oluşturma gibi belli vasıflara haiz olmasını aramaktadır. Yatırım yoluyla vatandaşlık verilmesi uygulamaları son 30 yılda ise yatırımcının vasfını göz ardı eden, buna mukabil getirilen ekonomik katkıyı ön planda tutan yatırımcı programları çerçevesinde gelişmiştir. Başlangıçta Karayip bölgesinde yer alan küçük ada devletlerince yürütülen yatırımcı programları zamanla ABD, bazı AB ülkeleri ve Türkiye de dahil olmak üzere geniş bir coğrafyada uygulanır hale gelmiştir. Bununla birlikte, getirilen ekonomik katkının tek kriter olarak arandığı programlar, güvenlik, vergi, seçme ve seçilme hakkı, askerlik yükümlülüğü ve ekonomik fayda başlıkları altında ulusal ve uluslararası düzeyde ciddi eleştirilerin gündeme gelmesine neden olmuştur. Söz konusu eleştirilerin temelinde ise vatandaşlığın metalaştırılması ve aidiyet bağı tesis edilmeden vatandaşlığın verilmesi yatmaktadır.

Member State nationality under EU law – To be or not to be a Union Citizen?

The question of who ought to be regarded as Union citizen is a central but not an easily answered question. Drawing on an analysis of the ECJ’s case-law and the underlying constitutional set up of Union citizenship, this article argues that the notion of nationality in EU law is based on a jurisdictional conception that builds on the idea of a genuine link and a territorial link with the EU. Relying on this understanding the article assesses the peculiar cases of Germany, the UK and Denmark, establishing not only if and how Member States can reconfigure the meaning of their nationality under EU law but also highlighting that the notion of nationality as a peremptory marker for Union citizenship is defined within the constitutional realm of EU law. The understanding that Member States are free to define their nationality within EU law, hence, is a misplaced overstatement of sovereignty. Against this backdrop the last part of the article turns to the case of Latvian non-citizens, arguing that Latvian non-citizens, who are generally not regarded as Union citizens, have been Union citizens all along.

Ukraine is the flag state: the concept of ‘genuine link’ in the context of legal (maritime) doctrine (flag ship – exclusive jurisdiction)

Ukraine is the flag state: the concept of ‘genuine link’ in the context of legal (maritime) doctrine (flag ship – exclusive jurisdiction)

The Role of Digital Platforms in the Collection of VAT/GST and RST and Its Limits

This article examines whether it is appropriate to impose tax liability or collection duty of indirect consumption taxes like value added tax (VAT)/goods and services tax (GST) and retail sales tax (RST) on digital platforms that are not necessarily sellers of the goods or services themselves. This question includes the following considerations. First, is it allowed under international law for a country to impose tax liability on digital platforms just because its residents buy goods and services through them? Second, is it feasible for the country that imposes tax liability on digital platforms to collect taxes even if the platforms have no meaningful physical assets in the territory of the country? Third, under what condition is a country allowed to impose tax liability or collection duty on digital platforms when the tax is supposed to be borne by consumers in the country’s jurisdiction? Fourth, is a putative digital platform a direct seller of goods and services, and accordingly, is it liable to VAT/GST or RST as a supplier? This article presents the following arguments. First, a digital platform may be, in some cases, more properly identified as a party to a transaction with consumers rather than an intermediary for the purposes of private and tax laws. Second, before examining whether a provision that imposes tax liability on digital platforms meets the requirement of a genuine link or nexus under public international law, it is important to investigate whether the nature of the liability is in personam or in rem. Third, it is necessary to make sure that the consumer’s relationship with the digital platform is sufficiently close to justify the tax liability of the platform.

Dual Nationality and International Criminal Court Jurisdiction

Abstract The International Criminal Court (ICC) can exercise jurisdiction over nationals of states parties. However, it has never been clear whether the Court will automatically recognize a nationality that has been conferred by a state party under its domestic law, nor what criteria it would use to evaluate that nationality should it not be automatically accepted. In December 2019, the Office of the Prosecutor made its first formal pronouncement on the question, finding that the ICC does not have jurisdiction over North Koreans, despite their being South Korean nationals under South Korean law, because North Koreans are not able to exercise their rights as South Koreans until accepted as such by application, and on occasion their applications might be refused. In this article, I reject the Prosecutor’s analysis as misguided. I also reject the other main approaches to nationality recognition suggested by scholars, namely a ‘genuine link’ requirement, a deferral to municipal law, and a deferral to municipal law except where a conferral of nationality violates international law. Instead, I propose a functional approach that would respect municipal conferral of nationality unless that conferral unreasonably interferes with the sovereign interests of a non-state party.

If Mr Nottebohm had a golden passport: a study of the obligations for third countries under international law regarding citizenships-for-sale

When discussing ‘golden passports’, modern-day academics and practitioners frequently and erroneously cite Nottebohm to claim that international law demands a ‘genuine link’ to grant nationality. Despite Nottebohm's central status in international law, such a view misrepresents the ruling of the majority of the International Court of Justice in the 1955 case. Nottebohm does indeed open very effective avenues to address some of the legal issues derived from citizenship-for-sale schemes, but not as is often assumed. This article reflects instead on Nottebohm's insightful distinction between the competence to grant a nationality, and the effects due under international law norms to that new nationality by third States. On that basis, the article proposes a number of options working within the bounds of international and EU law to protect those third States from some of the undesired trans-boundary effects of golden passports.

Liberal or Constrained? Judicial Incorporations of Other Rules of International Law in the UNCLOS and the Application of the “Genuine Link Test”

The UNCLOS regulates complex balance of rights and duties among State parties. Its text was deliberately left vague as a result of compromise between the negotiating parties. To develop the legal norms, judges and arbitrators have referred to other rules of international law through systematic integration, rules of reference, and broad applicable law. However, judicial practice has expanded subject-matter jurisdiction beyond the UNCLOS, causing antinomy between Articles 288, on jurisdiction, and 293 of UNCLOS, on applicable law. Part XV of the UNCLOS has created an invisible community that would ideally lead the UNCLOS Tribunals to develop and follow a pragmatic approach as to the limits of their subject-matter jurisdiction in order to provide for judicial coherence. When interpreting the treaty, the establishment of genuine links between disputes and substantive rules under the UNCLOS is necessary, by which other rules of international law are firmly anchored to the interpreted texts under the UNCLOS.

When losing citizenship is fine: denationalisation and permanent expatriation

ABSTRACTOver the last few decades, only a few studies have assessed denationalisation as a way of terminating ‘obsolescent’ citizenship resulting from the long-term emigration of an individual. This mode of loss of citizenship seems prima facie more legitimate than citizenship revocation as a means of punishment, as it only represents the legal recognition of the disappearance of a genuine link between an individual and a state. This paper explores the legal status of this mechanism (both from international law and national legislation) and differentiates three models (corrective, preventive, and extensive). From a normative perspective, reviewing three democratic theories of citizenship, this paper claims that the most persuasive justification for this mode of loss is the ‘all subjected persons’ principle. The loss of citizenship of permanent expatriates thereby becomes part of a democratic theory linking habitual residence with possession and conservation of citizenship, with due respect for human rights principles.

Revising Citizenship within the European Union: Is a Genuine Link Requirement the Way Forward?

EU institutions have argued on several occasions that national and EU citizenship should not be awarded without any genuine link with the Member State concerned. Various political theorists have adopted the same position as these institutions and have justified their arguments by referring to the genuine link requirement established by the International Court of Justice in Nottebohm. This has prompted criticism from legal scholars, who point out that Nottebohm was wrong as a matter of international law and moral principle. This paper shows that supporters and critics have often failed to recognise that they have been talking with different conceptions of the genuine link requirement in mind. The question of whether to apply a genuine link requirement for the recognition of nationality is altogether different from the question of whether to apply a genuine link requirement for the acquisition of nationality. Nottebohm concerns the first; the arguments of political theorists and EU institutions the second. Their arguments cannot therefore be dismissed by dismissing Nottebohm. I subsequently explore the normative arguments for predicating the boundaries of national membership on a genuine link requirement. There are weighty moral reasons for member states to condition the acquisition of national and EU citizenship on the presence of a genuine link. Finally, moving from the normative to the practical, I argue that such a requirement would have far-reaching consequences (targeting not just investor citizenship schemes) and cannot be enforced as a requirement under EU law.

A QUALIFIED DEFENCE OF THE PRIMACY OF NATIONALITY OVER EUROPEAN UNION CITIZENSHIP

AbstractThe relationship between EU citizenship and nationality is still defined by ‘linkage’ and ‘derivation’: national citizenship enjoys primacy over and conditions access to EU citizenship. However, because naturalisation decisions have a European dimension as well as a cross-border dimension, various commentators have questioned whether this primacy is desirable. This article examines alternative models of EU citizenship and argues that the answer is not to reconsider the criteria of ‘linkage’ and ‘derivation’, but to create some common EU rules on ‘access’ to national and EU citizenship. A particularly attractive solution is for rules on the grant of nationality to be guided by the idea of a ‘genuine link’. Reflecting on the Commission's recent report on investment citizenship within the EU and the debate it provoked, this article questions whether such shared rules can currently be adopted.