Toothless European Citizenship / Šimon Uradnik

Albeit the genuine link doctrine had been created to assess the right to diplomatic protection in the case of multiple nationalities by the International Court of Justice in Case Nottebohm; 105, 106 for the purpose of exploring the essence of Union citizenship, it may serve more than well as well. 107 The International Court of Justice established the rule of real and effective nationality as being comprised of two essences, namely: the social fact of attachment, and reciprocal rights and duties. 108 May the latter be spared for the following subchapter and the former analysed here. The social reality of an individual’s attachment to a population or society conforms to the already-mentioned genuine link, which has been framed as a ‘genuine connection of existence, interests and sentiments’. 109 These are based on rather strong factual ties, such as the centre of life interests, family ties, participation in public life, the attachment shown to a given country, or intentions for the near future to live in it, all from the perspective of an individual. 110 In other words, the genuine link can be defined as belonging and attachment to a specific group of people delineated by common interests, family or political ties, a sense of patriotism, or a shared proximate future. This delineation mirrors the concepts of a nation or, in the Union context more adequate, demos . Therefore, for confirmation or refutation of the existence of the genuine link in Union citizenship, it is inevitable 105 Nottebohm Case (Liechtenstein v Guatemala) (second phase) [1955] ICJ Rep 4. Since the case‘s circumstances are irrelevant to this monograph, they are not included. 106 Its utilisation in the field of public international law has been more than controversial and criticised; in addition to the original ruling, three dissents were attached which disagreed with the very existence of the concept of ‘genuine link’; for that purpose, see Dissenting Opinion of Judge Klaestad, Dissenting Opinion of Judge Read, and Dissenting Opinion of M. Guggenheim, Judge ‘Ad Hoc’. From the recent criticism, it is relevant, for instance, Rayner Thwaites, ‘The Life and Times of the Genuine Link’ (2018) 49 Victoria U Wellington L Rev 645 accessed 30 th March 2023; Peter J Spiro, ‘Nottebohm and ‘Genuine Link’: Anatomy of a Jurisprudential Illusion’ (2019) 1 IMC-RP accessed 30 th March 2023; Audrey Macklin, ‘Is It Time to Retire Nottebohm?’ (2017) 111 AJIL Unbound 492 accessed 30 th March 2023. 107 Similarly, the genuine link doctrine and test have been used by Ayelet Shachar for an assessment of the general citizenship theory; hence, the original circumstances of the case were omitted entirely, and the genuine doctrine was used independently. To that effect, see Ayelet Shachar, The Birthright Lottery: Citizenship and Global Inequality (Harvard University Press 2009) 164-190. 108 Nottebohm Case (Liechtenstein v Guatemala) (second phase) [1955] ICJ Rep 4, 23. 109 Ibid. 110 Ibid 22 and 24.

29