Nationality and the ‘genuine link’ criterion

Nationality law was traditionally a very stable field of law. We have only recently witnessed an increasing instrumentalisation as well as growing inroads into state sovereignty as regards the grounds for acquisition and loss of national citizenship. In that light, it is not surprising that the key principle under public international law – the idea that nationality should reflect a ‘genuine link’ between an individual and a state – was developed a long time ago. In the words of the International Court of Justice in its 1955 Nottebohm decision:

Nationality is a legal bond having as its basis a social fact of attachment, a genuine connection of existence, interests and sentiments, together with the existence of reciprocal rights and duties. It may be said to constitute the juridical expression of the fact that the individual upon whom it is conferred, either directly by the law or as the result of an act of the authorities, is in fact more closely connected with the population of the State conferring nationality than with that of any other State.

What concerns us here, however, is the role of the genuine link criterion in a globalizing world with a growing interest in the mobility value of certain citizenships and an increasing tolerance of multiple citizenship. Rainer Bauböck’s overview in a postscript to a special issue on citizenship by the Journal of Ethnic and Migration Studies provides a useful starting point. He distinguishes between Athenian, Roman and Westphalian conceptions of citizenship. The latter corresponds to the notion that nationality is linked to territory, as we explained in a piece on the French revolution, and is based on a world consisting of equally sovereign nation states. As Bauböck explains, the genuine link criterion ‘is not a sentimental notion that tries to fill the empty [subject-State] relation with expectations about thick loyalties or identities; rather, it is a necessary condition for citizenship to serve its crucial Westphalian function of sorting individuals into states’. The system also implies that states recognize as citizens of another country those who have been granted that citizenship.

Two objections seem to exist against the claim that Westphalian citizenship needs to rely on a genuine link. The first is that the acquisition of citizenship at birth, either by descent (ius sanguinis) or by birth on the territory (ius soli), is a matter of chance rather than proof of a genuine link. The second is that multiple citizenship is at odds with the idea that each individual is allocated to one and only one nation state. Bauböck concludes, however, that both birthright citizenship and multiple citizenship are compatible with the genuine link principle, arguing that birthright citizenship is a reflection of ‘the need for transgenerational continuity of those peoples on behalf of whom modern states claim to exercise legitimate power’. The possibility of multiple citizenship, in turn, is an inherent feature of the current system based on state sovereignty in matters of nationality law. As long as states are free to choose between ius sanguinis and ius soli and the various mixtures between these principles, instances of multiple citizenship will inevitably arise.

Bauböck expects that there will be limits to the instrumental or strategic use of citizenship, the reason being that it is heavily dependent on ‘the established relational [Westphalian] structure and would collapse with this structure if it were fundamentally undermined’. In addition, ‘a full marketization of citizenship would […] depreciate also the instrumental value of citizenship because it would undermine the condition of reciprocal recognition of citizenships between states exercising territorial jurisdiction’.

Author: Dr. Olivier Vonk