CYIL vol. 9 (2018)

CYIL 9 ȍ2018Ȏ CITIZENSHIP IN THE FIRST CZECHOSLOVAK REPUBLIC … ferenda, such a criterion should be refused as it introduces another element of uncertainty into an already restricted area where a state can protect its own nationals. 19 Also, in the Czech doctrine, the question of genuine link and hence of effective nationality is questioned in the sense that there is no certainty whether this doctrine is still alive or not in the general international law system, and if not, what is its format. 20 The 2006 report of the International Law Commission, which contains draft articles on diplomatic protection, does not include the requirement for a genuine link between the state and its national. According to Article 4 of the proposal, “for the purposes of the diplomatic protection of a natural person, a State of nationality means a State whose nationality that person has acquired, in accordance with the law of that State, by birth, descent, naturalization, succession of States, or in any other manner, not inconsistent with international law 21 ”. The Commission notes in its comment That the Court did not intend to expound a general rule applicable to all States, but only a relative rule…Moreover, it is necessary to be mindful of the fact that if the genuine link requirement proposed by Nottebohm case was strictly applied, it would exclude millions of persons from the benefit of diplomatic protection. Indeed, in today’s world of economic globalization and migration, there are millions of persons who have moved away from their State of nationality and made their lives in States whose nationality they never acquire. 22 If we were to return to the Nottebohm case, there could be a situation that Nottebohm’s loss of German citizenship came from the act of acquiring the citizenship of Liechtenstein. Thus, in this case, it would be a rather absurd situation for Guatemala to have had the right to treat the person as if he was neither a German national, nor Liechtenstein, nor its own 23 . As a follow-up to the Commission’s report, we can quote the decision-making practice of the International Court of Justice in its 2007 judgment of the Diallo case 24 (Republic of Guinea v. Democratic Republic of the Congo). In this case, the ICJ stated that Guinea’s claim is permissible, in so far as it concerns the protection of Mr. Diallo’s rights as an individual 25 . From the perspective of genuine link, it is important that Mr. Diallo had been living in Congo since 1964, that is, for more than 32 years. He founded his companies in this country. The ICJ decided on the diplomatic protection of Guinea based on the reality that Mr. Diallo had the citizenship of that country, even though he had a genuine link to the country where he pursued his activities. We can interpret the decision in two ways. On one hand, if the nationality was acquired by birth and, if it has not yet been lost, the nationality remains and, therefore so does the 19 SEIDL-HOHENVELDERN, I.: Mezinárodní právo veřejné [Public International Law]. Prague: CODEX Bohemia, 1999, p. 231. 20 MACH, T.: International Holdings Protection. Plzeň: Aleš Čeněk Publishing, 2011, p. 50. 21 Czech translation in: ONDŘEJ, J., POTOČNÝ, M.: General International Law in Documents. 4th edition. Prague: C. H. Beck, 2016, p. 39. 22 Diplomatic Protection. Text of the draft articles with commentaries thereto. Report of the International Law Commission on the work of its fifty-eighth session, 2006, pp. 29-30. 23 MACH, T.: International Holdings Protection. Plzeň: Aleš Čeněk Publishing, 2011, p. 47. 24 International Court of Justice, Case Concerning Ahmadou Sadio Diallo (Republic of Guinea v. Democratic Republic of the Congo), Decision of 24 May 2007. 25 Ibid., paragraph 96.

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