CYIL vol. 9 (2018)

JAN ONDŘEJ – MAGDA UXOVÁ CYIL 9 ȍ2018Ȏ held by, for example, J. Hřebejk, 45 who doubts that there could hardly exist a dual genuine loyalty. From the perspective of international law, multiple citizenship often leads to disputes between states, especially in the area of diplomatic protection. According to the customary international law , a person with multiple nationalities cannot rely on their other nationality against a state of which they are also a citizen of. 46 According to Article 4 of the Hague Convention on Some Issues of Conflict of Nationality Law of 1930, the State cannot provide diplomatic protection to its citizen against the State whose citizenship that person also possesses. 47 In this context, however, one can see a certain tendency to accept dual citizenship in terms of both doctrine and practice . According to the proposal of the Commission for International Law on Diplomatic Protection of 2006, under certain conditions, the application of diplomatic protection by the state is permitted by the state’s jurisdiction in the state whose jurisdiction the person also has. Pursuant to Article 7 of the Draft Article on Diplomatic Protection 48 of 2006, a state of nationality may not exercise diplomatic protection in respect of a person against a state of which that person is also a national unless the nationality of the former state is predominant , both at the date of the injury and at the date of the official presentation of the claim. Predominant genuine link therefore applies in case of dual or multiple citizenship. According to the Commentary of the Commission on International Law, the issue of dominant or effective citizenship was confirmed by the Merge Committee 49 (Italy-USA) in the Merge 50 case in 1955. According to the view of the Conciliation Commission, in this case the principle of effective citizenship and the concept of dominance are two sides of the same coin. This rule was applied by the Conciliation Commission in over 50 cases involving dual citizenship. According to the third report on the State Liability, the Special Rapporteur suggested that in cases of double or multiple citizenship the right to the claim could be declared only by a state whose citizen would have a greater legal or other relationship established with the person. According to the Commission’s commentary on the draft articles on diplomatic protection, the term prevalent (predominantly) used by the Merge Committee (Italy-USA) in the Merge case represents the beginning for the development of current customary law. 51 The question of dual citizenship is sometimes explained by international treaties. For example, under the above-mentioned 1930 Hague Convention, a third State, in the case of 45 HŘEBEJK, J.: Dual Citizenship and State Security in: ŠTURMA, P., TYMOFEYEVA, A. (eds.) et al. Citizenship in the Context of the Development of Human Rights. Prague: Charles University Faculty of Law, 2017, p. 60. 46 POTOČNÝ, M., ONDŘEJ, J.: Mezinárodní právo veřejné. Zvláštní část [Public International Law. Particular Part]. 6th edition. Prague: C. H. Beck, 2011, p. 57. 47 ONDŘEJ, J., POTOČNÝ, M.: General International Law in Documents. 4th edition. Prague: C. H. Beck, 2016, p. 35. 48 Czech translation in: ONDŘEJ, J., POTOČNÝ, M.: General International Law in Documents. 4th edition. Prague: C.H. Beck, 2016, p. 39. 49 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. 34-35. 50 Text of the case in: BISHOP, W. W.: International Law. Cases and Materials. Second edition. Boston, Toronto: Little, Brown and Company, 1962, p. 418 and following. 51 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, p. 35.

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