The Legal Fiction of a Genuine Link as a Requirement for the Grant of Nationality to Ships and Humans – the Triumph of Formality over Substance?

Abstract

This paper discusses nationality of a person, whether physical or legal, and compares and contrasts the international legal regime which regulates the nationality of both persons. Whilst humans are granted nationality because they are citizens of a state to which they owe allegiance, in the case of a res which enjoy nationality – such as a ship – the relationship between such a res and its national state is based on a functional dimension. A ship oftentimes navigates in areas beyond state jurisdiction (such as on the high seas) ending up in a legal vacuum if she enjoys no nationality to regulate its behaviour and whatever happens on board that ship during its extra-territorial voyages. The authors thus discuss the juridical nature of nationality, nationality of a res and of humans, and reflect upon the recent sale by states of their nationality to non-citizens thereby shifting human nationality closer to the commodification of nationality of which ships are a traditional instance. It concludes that nationality of ships and of humans has in some legal systems moved away from the classical International Court of Justice’s Nottebohm case requirement of a pre-existing genuine link to one where nationality is reduced to a commodity.