The genuine link theory in dual nationality in international law

Abstract

"A man is not half a subject of one State and half of another State. It is an unfortunate thing for him in time of war if he owes a double allegiance, but it seems to me that the true way to view the question in spite of that difficulty is to say that he is completely a subject of each State." (Ridley J. in Ex parte Freyberg, 1917, 2 K.B., 129). "If a person possesses dual nationality... it does not mean that he owes any the less allegiance to this country than a person who is only a British subject. Dual nationality is not half one nationality and half another, but two complete nationalities so far as our law is concerned." (Inouye Kanao vs. The King, A.D., no.39). The above two quotations from British judgements clearly illustrate the predicament in which a person, possessing the nationality of more than one State, may find himself, particularly in time of war. He may be called upon, simultaneously, to fulfil his duties towards two States which are at war with each other, and he may have to pay with his life for adopting the cause of one of the States against the other. Equally unfortunate cases may occur in time of peace when individuals possessing two nationalities are required to perform compulsory military service in the armies of two States, the result being that, in the absence of special agreement, they become deserters in relation to one of the armies concerned. But difficulties experienced by dial nationals, and by States in dealing with dual nationals, are not confined to the circumstances involving military service. Although great steps have been undertaken in recent years in the field of international law in favour of the individual (Starke, Introduction to International law, pp. 312-318), the individual as yet no locus standi in the international arena apart from the State or international organisation or entity to which he belongs. By and large, nationality still determines the rights and obligations of State in large areas of international law where the position of the individual is involved, and especially in three of its most important branches, namely jurisdiction, diplomatic protection and the responsibility of States.