Nieznane poglądy sędziego Bohdana Winiarskiego na zagadnienie obywatelstwa i opieki dyplomatycznej
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Date
1987
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Wydział Prawa i Administracji UAM
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The unknown views of judge Winiarski on questions of nationality and diplomatic protection
Abstract
Judge Winiarski was unable to take part in the last stage of the second
phase of the Nottebohm case decided by the International Court of Justice in 1956.
He was thus prevented from appending to the judgement his dissenting opinion.
He subsequently wrote down a statement of his views, dated 15th June 1955,
and circulated it among the members of the Court and some other jurists. The present contribution briefly presents Judge Winiarski's unpublished views against
the background of the Court's judgement.
Friedrich Nottebohm was German by birth domiciled in Guatemala. In 1939
he acquired the nationality of Liechtenstein. The Court found that the naturalization
conferred on Nottebohm could not be invoked by Liechtenstein against Guatemala,
and Liechtenstein was not entitled to exercise its protection in favour of Nottebohm
against Guatemala. Consequently, the Court held that the claim submitted by
Liechtenstein was inadmissible.
Judge Winiarski disagreed. According to him, between 1940 and 1944 the
Government of Guatemala regarded Nottebohm as a national of Liechtenstein, and
— as a result — an official relationship arose between the two Governments.
That relationship concerned the right of diplomatic protection. The naturalization
of Nottebohm by Liechtenstein was lawful, while the Hague Court cannot pronounce
on the interpretation and application of municipal law when done by the supreme
organs of the country. Each country decides on the regularity of the naturalization
brought under its laws, and the naturalization of Nottebohm remained within the
domestic jurisdiction of Liechtenstein, though Judge Winiarski did not deny that
there might be situations where naturalization was governed by treaties or other
rules of international law. Nor did Nottebohm solicit the Liechtenstein nationality
fraudulently.
Having established that the naturalization of Nottebohm was valid in both
municipal and international law Judge Winiarski criticized the Court for not
admitting that Liechtenstein had the right to exercise its diplomatic protection
with regard to Nottebohm. Any non-recognition of nationality and of the resulting
right of diplomatic protection could only be based on reasons that follow from
international law. The concept of effective nationality and the concept of the real
connection with the naturalizing State were of strictly limited relevance in international
law. Various factors adduced by the Court in this context were not conclusive
in law. In particular, they did not follow from international law and were
too subjective to find support in judicial decisions. In Judge Winiarski's opinion
the Court's judgement went beyond positive law.
Judge Winiarski also criticised the "unexpected formalism" of the Court in considering
it unnecessary to have regard to certain new documents filed after the
closure of the written proceedings. The Court thus deprived itself of the possibility
of verifying some further facts that were alleged. The examination of these
facts could have thrown new light on the admissibility of the claim submitted by
Liechtenstein. Judge Winiarski thought that the Court should have adjourned the
oral proceedings.
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Citation
Ruch Prawniczy, Ekonomiczny i Socjologiczny 49, 1987, z. 4, s. 103-112