CYIL vol. 9 (2018)

JAN ONDŘEJ – MAGDA UXOVÁ CYIL 9 ȍ2018Ȏ sanguinis when acquiring nationality if at least one of the parents has Czech citizenship at the time of the child’s birth. Common law countries tend to use the principle of ius soli . For example, the British Nationality Act of 1948 states that every person born in the United Kingdom and in the colonies becomes a citizen of the United Kingdom and Colonies. 13 In the Czech Republic, the principle of ius soli is only used in a complementary way. The birth itself is a matter of fact 14 and in most cases the nationality the birth is based on is not changed. There are also other designations for the acquisition of nationality, but they are mostly related to the acquisition of so-called naturalization later in life. In some states, this may be due to a marriage, in particular marriage to a foreigner. Citizenship is also often acquired per request of a person, but relevant conditions that differ from state to state must be fulfilled. Mostly, a certain length of stay in a given country (a permanent residence of 5 years in the Czech Republic is sufficient, for the citizens of the European Union this is 3 years), knowledge of the language of that state, and other conditions. In the Nottebohm case, the issue was a case of naturalization, a later acquisition of Liechtenstein citizenship. The question that the Court had to resolve in this case did not relate to the national law of Liechtenstein; but the issue of diplomatic protection referring to an area of international law. 15 In addition, the ICJ stated that “in order for an international judicial authority to assess the conflict of national and international law, it must always ascertain whether citizenship was acquired under such conditions that the State concerned was obliged to recognize the effects of such citizenship”. Some criteria of international law have been settled based on the decision of this case. International judiciary (whether in court or arbitration) favours real and effective nationality based on a genuine connection between the person and one of the states concerned. Various circumstances had to be considered, the importance of which may vary from case to case: the habitual residence of the individual as a very important circumstance, as well as other circumstances such as the areas of interest and the sphere and centre of interest of the individual, family bonds, participation in the public life in the given country, whether the bond is transferred to their children etc. 16 . We are talking about effective nationality in this case. In particular, the doctrine based on this case often rests on the conception that the case has influenced subsequent practice, and that the requirement of a real bond has become an expression of customary international law and is also relevant to the cases of granting citizenship upon request. 17 Not only at birth, but also in this case, i.e. granting citizenship per request, is the genuine link criterion being applied. 18 Another view on the decision in the Nottebohm case is expressed by I. Seidl-Hohenveldern. According to this author, the judgment is contrary to international customary law. According to this author, de lege 13 Ibid. 14 ČEPELKA, Č., ŠTURMA, P.: Mezinárodní právo veřejné [Public International Law]. Prague: C.H. Beck, 2008, p. 328. 15 ŠTURMA, P. et al. Casebook. Selection of Cases under Public International Law, 3rd edition. Prague: Charles University, Faculty of Law, 2015, p. 49. 16 Ibid., pp. 49-50. 17 ČEPELKA, Č., ŠTURMA, P.: Public International Law. Prague: C. H. Beck, 2008, p. 331. 18 Ibid.

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