Is it time to retire Nottebohm?

Abstract

[N]ationality 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 … is in fact more closely connected with the population of the State conferring nationality than with that of any other State. Scholars of migration and citizenship will recognize the famous passage from the judgment of the ICJ in Nottebohm and perhaps be able to recite it from memory. But Nottebohm is nearing sixty-five, and so the inevitable question arises: is it time to retire the case? One impetus for the project of global migration law is the recognition of “current structures as historically contingent artifacts of a sovereignty-based global system in need of reform.” No artifact does more work in sustaining the current configuration than the use of citizenship (or nationality) as the technology for regulating transnational movement. Sooner or later, a conversation about the emergence of global migration law must grapple with international law's position on nationality, which brings us back to Nottebohm.