Dual Nationality and International Law in Times of Globalization

Dual Nationality and International Law in times of Globalization. Challenges and Opportunities for Consular Assistance and Diplomatic Protection in recent cases Dupla nacionalidade e direito internacional em tempos de globalização. Desafios e oportunidades de assistência consular e proteção diplomática em casos recentes

Walter Arevalo-Ramirez

Robert Joseph Blaise Maclean Sumário

I. Crônicas...... 1

A Favor de uma Corte Latino-Americana de Justiça...... 3 Nitish Monebhurrun

Sobre a solução judicial de controvérsias na América Latina...... 7 Lucas Carlos Lima

A Favor de uma Corte Latino-Americana de Justiça - Uma Reação sobre a Legalidade e a Legitimidade de seu Desenho Institucional...... 15 Arthur Roberto Capella Giannattasio

O Estudo do Direito Internacional sob uma Nova Perspectiva: Nossa Experiência na Philip C. Jessup International Moot Court Competition...... 20 Ana Vitória Muniz Bokos, Igor Medeiros Maia, Jefferson Seidy Sonobe Hable, Gabriel de Oliveira Borba, Gilda No- gueira Paes Cambraia e Nayara Lima Rocha Da Cruz

Revisión de laudos de arbitrajes de inversión 2019: I Encuentro Anual (Santiago de Chile, 25/06/2020)...... 31 Andrés Delgado Casteleiro e Ivette Esis

II. Dossiê: Populismo e Direito Internacional / Populism and Internatio- nal Law...... 54

Editorial: Populism and International Law: Global South Perspectives ...... 56 Lucas Lixinski e Fabio Morosini

Editorial: Populismo e Direito Internacional: Perspectivas do Sul Global ...... 61 Lucas Lixinski e Fabio Morosini Between Science and populism: the Brazilian response to COVID-19 from the perspective of the legal determinants of Global Health ...... 67 Deisy de Freitas Lima Ventura e Jameson Martins

Populism, environmental law, and the post-pandemic order...... 85 Alessandra Lehmen

Populism and the Evangelical church in Latin America: how anti-LGBTI forces tried to stop the Colombian peace agreement...... 101 Julia Assmann de Freitas Macedo e Fabrízio Conte Jacobucci

“Deus em Davos”: o direito internacional entre reacionários e neoliberais no go- verno Bolsonaro...... 121 Lucas Tasquetto e João Roriz

Chinese populism in the 1920s, extraterritoriality and international law...... 139 Wanshu Cong

Conceptualizing unilateralism, fragmentationism and statism in a populism context: a rise of populist international law?...... 162 Wei Shen e Carrie Shu Shang

Autonomía administrativa sin autonomía política: la aplicación del modelo “un país dos sistemas” en Hong Kong...... 186 Juan Enrique Serrano Moreno

III. Artigos sobre outros temas...... 197

Um TWAILer entre nós? As contribuições de Celso Duvivier de Albuquerque Mello para o direito internacional (crítico) no Brasil...... 199 Fabio Morosini e Matheus Leichtweis

Democracies in danger: are judicial dialogues means to refrain setbacks in Latin America?...... 224 Melina Girardi Fachin e Bruna Nowak Mover (ou não) as linhas de base: as consequências da elevação do nível dos oceanos sobre as zonas marítimas dos pequenos estados insulares em desenvolvimento e as al- ternativas jurídicas para reduzir seus impactos...... 241 Alexandre Pereira da Silva

A mineração em águas profundas no Pacífico...... 263 Pierre-Jean Bordahandy

Dual Nationality and International Law in times of Globalization. Challenges and Opportunities for Consular Assistance and Diplomatic Protection in recent cases...... 288 Walter Arevalo-Ramirez e Robert Joseph Blaise Maclean

Expulsion of aliens: the application of International Law by Chilean Superior Courts ...... 309 Regina Ingrid Díaz Tolosa

O tipo penal brasileiro de promoção de migração ilegal e o princípio da não crimina- lização da mobilidade humana...... 332 Regina Cândido Lima e Silva Santos e Deilton Ribeiro Brasil

Indicadores transnacionais de corrupção ambiental: a opacidade na transparência internacional...... 352 Márcio Ricardo Staffen

Subtração internacional de crianças: Análise das exceções ao retorno imediato do menor à residência habitual e crítica ao enquadramento da violência doméstica como flexibilidade permissiva...... 365 Vivian Daniele Rocha Gabriel

Legislação específica sobre o enfrentamento ao tráfico de pessoas pós-Protocolo de Palermo (2000): análise do Estado de Moçambique...... 383 Mercia Cardoso de Souza, Guirino Dinis José Nhatave e Francisco Horácio da Silva Frota IV. Artigos traduzidos...... 402

Direito internacional do reconhecimento...... 404 Emmanuelle Tourme-Jouannet e Tradutor: Ademar Pozzatti Junior

V. Resenhas...... 423 Fabio Costa Morosini, Gabriel Lee Mac Fadden Santos, Valentina Fonseca da Luz e Vinicius Tejadas Maia doi: 10.5102/rdi.v17i2.6451 Dual Nationality and International Law in times of Globalization. Challenges and Opportunities for Consular Assistance and Diplomatic Protection in recent cases

Dupla nacionalidade e direito internacional em tempos de globalização. Desafios e oportunidades de assistência consular e proteção diplomática em casos recentes

Walter Arevalo-Ramirez** Robert Joseph Blaise Maclean***

Abstract

This article analyzes the interaction and clashes of the concept of nationality and the concept of diplomatic protection under international law as it may apply to individuals caught in international disputes between states of which they are nationals. The objective of this analytical article is to examine this problem through the lens of the figures of Consular Assistance and Diplomatic Protection. Regarding the methodology, the article is descripti- ve- analytical and uses legal comparative methodology, since it analyzes both law, treaties and jurisprudence from national and international sources. The * Recebido em 23/12/2019 article uses case-law analysis and is elaborated within the following structu- Aprovado em 11/10/2020 re. Part 1 will deal with the general concept of nationality at international

** Professor of Public International Law law. Part 2 will examine “Consular Assistance”, its source, function and ap- at the Universidad del Rosario Law School in plication. Part 3 will examine a separate and distinct facet of internatio- Bogotá, Colombia. PhD summa cum laude, nal law called “Diplomatic Protection” (as distinguished from “Diplomatic Universidad del Rosario.Visiting researcher at Immunity”) and its application to the protection of nationals as well as its The Hague University of Applied Sciences; the Arctic University of Norway (JCLOS Center for weaknesses. Part 4, which develops the original value and final goal of this the Law of the Seas) and at the iCourts Center, contribution, consist of an analysis of these particular protective measures University of Copenhagen. Tutor in The Hague within the context of particular cases so as to illustrate the weaknesses of Academy of International Law. Professor of Public International Law at the Diplomatic these figures as protective of individuals, the limits of nationality as a shield Academy of the Ministry of Foreign Affairs for individuals caught up in international disputes and the almost “second- (Colombia).Member of the editorial board of class” nature of dual nationality from an international law perspective. Part the Colombian Yearbook of International Law, 5 as a conclusion will include some observations as to how states may im- Council Member of the Colombian Academy of International Law and Director of the Latin prove the protection they can afford to their nationals abroad. American Network of International Law Jour- nals. E-mail: [email protected] Keywords: Nationality. Diplomatic protection. Dual national. Globaliza- tion. Citizenship. International dispute resolution. *** Professor of Public International Law at the Universidad del Rosario Law School in Bogotá, Colombia. B.A. Acadia University, Wolfville, Nova Scotia, Canada (1980), LLB Dalhousie University Law School, Halifax, Resumo Nova Scotia, Canada (1983), B.Ed. York Univer- sity, Toronto, Ontario, Canada (2003). E-mail: Este artigo analisa a interação e os choques entre o conceito de nacionalida- [email protected] de e o conceito de proteção diplomática no âmbito do direito internacional, huawei-meng-wanzhou-sues-canadian-government-over-arrest ponível em: overarrest. government Canadian 1 Airport Vancouver International at planed de she as Huawei giant telecommunications Chinese the of Officer Financial Chief and national Chinese a Wanzhou, Meng Ms. arrested Agency Services Border Canadian the and Police Mounted Canadian Royal the of officers 2018 December 1 law.On international in matic protection, once believed as settled institutions assistance diplo dual nationalityposetoconsularand 1 Introduction ção dedisputainternacional Resolu Cidadania. Globalização. nacionalidade. Dupla Palavras-chave dem ofereceraosseusnacionaisnoexterior. como osestados as proteções podem melhorar que po conclusão, sobre aParte 5 incluiráalgumasobservações dade de uma perspectiva de direito internacional. Como a natureza quase de “segunda classe” da dupla nacionali indivíduospara envolvidos e em disputas internacionais indivíduos, os limites da nacionalidadecomoum escudo de protetoras como figuras dessas fraquezas as ilustrar ticulares no contexto de casos particulares, de modo a siste em uma análisedessas medidas de proteção par valorobjetivoo e original contribuição, desta final con desenvolveque o 4, Partefraquezas. A suas como bem nacionais, de proteção à aplicação sua e Diplomática”) “Imunidade de (distinta Diplomática” “Proteção mada cha direito internacional e distintado faceta separada aplicação.e fonte,função sua uma examinará Parte3 A “AssistênciaConsular”, examinará 2 Parte A nacional. direito inter no de nacionalidade conceito do geral tará tra Parte1 A estrutura. seguinte da dentro elaborado é e jurisprudência da análise a utiliza artigo O nacionais. inter e nacionais fontes de jurisprudências e tratados jurídica comparativa, uma vez que analisa legislações, metodologia utiliza e descritivo-analítico é artigo o gia, metodolo Proteção Diplomática. Quantoà sular eda Con Assistência da figuras das ótica a sob problema cionais. O objetivo deste artigo analítico é examinar esse na entre Estadosdosquaissão disputas internacionais a indivíduos podeseraplicado envolvidosconforme em

Recent cases show the that challenges new trends in SOITD RS. uwi Mn Wnhu sues Wanzhou Meng Huawei: PRESS. ASSOCIATED https://www.theguardian.com/world/2019/mar/04/ : Nacionalidade. Proteçãodiplomática. The Guardian , 04 Mar. 2019. Dis Mar.2019. 04 , 1 . The arrest arrest . The ------. news was released that they both beencharged had security” national dangering business and cultural ties. for “en Both were arrested reportedly working to increase Canadian-North Korean businessman a was Spavor Michael other, The Group. Crisis workingwasChina International rest, in the with ar his of time the at who, diplomat Canadian former a is KovrigMichael One, China. in working Canadians two arrested 2018, December 10 on China, of public Re People’s the Weng, Ms. of release demanding immediate the from Apart response. in China by taken China in Weng’sprominence routine, this immediate one attention gained due to Ms. quiet and extraditions arenormally and arrests Though Iran. sanctionsagainst violations of sing fromalleged ari charges laundering money and financial various to the UnitedStates.was Extradition requested relation in issued followingwarrant an extradition request from Court Supreme Columbia British a executionwasin of 2019. man-to-death-in-a-drug-smuggling-case.html em: canada/2019/01/14/a-chinese-court-has-sentenced-a-canadian- Disponível 2019. Jan. 14 case. smuggling man todeath in drug nadian 5 term=.7d4292101bd3 be4b65b6-7790-11e9-ac17-284a66782c41_story.html?utm_ of-espionage-as-huawei-standoff-intensifies/2019/05/16/ ingtonpost.com/world/china-formally-accuses-canadians- Postington 4 nadians-detained-china-huawei-explainer/ ponível em: political feud so far. 3 em: 2abr. 2019. such-a-big-deal-shes-treated-like-a-princeling-in-china.html com/vancouver/2019/03/08/why-is-huaweis-meng-wanzhou- 2 Acesso em:2abr. 2019. Ca allies. its international or Canada, in and China up between disputes caught been have to Canadians he was sentencedtodeath. re-sentencing, charges.On drug on custody in years 15 in custody since 2016, had previously been sentenced to for asudden retrial. Schellenberg, who hadbeen court a before Schellenberg, Robert Canadian, another ging CanadaintheMengextraditioncase. pressure against foreign forces. with stealing state secrets and passingthem to formally

org Sao ad celneg r nt h first the not are Schellenberg and Spavor Kovrig, brin by ante the upped China 2019 January 14 On SOITD RS. hns cut etne Ca sentences court Chinese PRESS. ASSOCIATED espionage. of Canadians accuses CHINA the of who who’s a justice: Chinese and CANADIANS TorontoThe Star. Disponível em: 1 My 09 Dsoíe em: Disponível 2019. May 16 , https://www.theglobeandmail.com/world/article-ca 4 Accordingly, China has ratcheted up its up Accordingly,ratcheted has China The Globe and Mail The Globeand . Acessoem:17May 2019. 5 https://www.thestar.com/news/ 3 2 n a o 6 a 2019 May 16 of as and and the forceful actions and , Toronto, 15 Jan. 2019 Dis Toronto,2019 Jan., 15 . Acessoem:2abr. 2019. .

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289 AREVALO-RAMIREZ, Walter; MACLEAN, Robert Joseph Blaise. Dual Nationality and International Law in times of Globalization. Challenges and Opportunities for Consular Assistance and Diplomatic Protection in recent cases. Revista de Direito Internacional, Brasília, v. 17, n. 2, p. 287-307, 2020 sion. on Human Rights on the Right Opinion to and Freedom Expres of 10 Iranv. Hashemi12Aug.public of 2012,QCCA1449.p. 3-5. ReIslamic in Appeal of Court Quebec the of decision the to refer 9 8 kovrig-1.4975759 www.cbc.ca/news/politics/trudeau-diplomatic-immunity-michael- Michael Kovrig.of arrest in immunity diplomatic violating of China accuses Trudeau Peter. ZIMONJIC, Relations. Diplomatic on Convention Vienna the violates Canada, says conduct, which diplomat a as period ous previ his during actions and duties his about interrogation Chinese Mr.that to subjected Kovrigbeen alleged has has Canada China. to posted diplomat Canadian a previously was Kovrig Mr. arrest, his 7 herVancouver mansions. to beoneof reported been has what in resides and monitoring) electronic (with lawyers, has been released on bail she has hadaccess to a team of whichMs. in Wengsystem justice Canadian the under of treatment the to contrast stark in stands This 4. Note cit (Toronto)Op Mail Globe and hour once per month. The one-half consular visits of 2019 that the men, whose whereabouts are unknown, were only allowedJanuary 18 on Commons of House Canadian the informed 6 fact died from being beaten. authorities that she had suffered a stroke, she had in by2003 that, despite earlier representations the Iranian July 16 on acknowledged Abhati Ali Mohammad dent 2003. July 11 on custody in died 2003 for taking photos outside in Teheran.a prison She June 23 on her arrested authorities Iranian time. the at 2003 to coverin Spring to Iran student riots happening volve China. She was a photojournalist and had traveled 54 years, died while in custodynot allcases inIran in citizen Canadian naturalized -born thispaper. but thisisbeyond thescopeof Immunity Diplomatic issue the with do to has Kovrig involving dualnationals. Cases in law international under recognized rights of the limitation illustrates another seriousissue…that of Chinese birth but a nationalized Canadian. His situation of Uighur a below) (detailed Celil Huseyin of case the limited consular assistance stands in starkcontrast to limited it has been greatly cally permitted, consular assistance but, although it has been techni to entitled are Spavor and Kovrig nationals Canadian As custody). in months 19 spending eventually Garratt Kevin (with dispute extradition similar a to relation in 2014 in detained were Garratt Julia and Kevin nadians

For a full description of the facts of Ms. Karemi’s death please Karemi’sdeath Ms. of facts the of description full a For LIGABO, Ambeyi. Special Rapporteur. U.N. High Commission As seen in the case of Zahra Kazemi, an Iranian an Kazemi, Zahra of case the in seen As Mr. of case the in Canada by raised issue Another eoto iso oteIlmcRpbi fIran. onMission to the Islamic Republic of Report She alsoheldFrench nationality. he was notanaccredited Though diplomat at the time of McCallum John China, to Ambassador Canadian Then . Acessoem:2abr. 2019.

CBC News , 11 Jan. 2019. Disponível em: 10 Iran does Iran not recognize 9 Iranian Vice Presi Iranian 8 wo tteaeo who, of attheage 12 Jan.12 U.N.2004 7 6 . Even their https:// ------rally nameembassies from otherstates to whom their that do nothave countries gene embassies in particular function is toassist nationals inforeigncountries. States includes diplomatic mission a consular missionwhose required come to such aperson’s assistance if because it implicitly means having a state that is able to viduals. Insuch cases, having anationalityisimportant indi on impact significant have can cigars, and cognac spatsbetweenoverdiplomats arguing subject matter of tes and “power politics”, once thought to be the rarified today’s world dispu meansthat international lization of remains forburial. her of Canada to repatriation the allow to refusal the proceedings in relationto this event. extended to This judicial or investigations, any in involvement Canadian Ms. Kazemi’s Canadian nationality and refused to allow cess, tookthe Iran positionthat it did notrecognize dual nationality and accordingly throughout the pro dual nationality 12 spective, forautopsy. 11 Doc. E/CN.4/62/Add 2,para.74. to theirnationalsabroad. how states may improve the protections they can afford asto 5 asaconclusion willinclude some observations law perspective.international nationality froman Part dual of nature “second-class” almost the and disputes individualslity as ashieldfor caught international up in nationa individuals, the limits of gures as protective of fi these of limitations the illustrate to cases particular protective se particular measures within thecontext of the ananalysis of its weaknesses. Part 4 will consist of nationals as well as and applicationthe protection of function source, its Assistance”, Consular called law international distinct and facet of examine aseparate Part 2 will examine “Diplomatic Protection”. Part 3 will law. nationalityatinternational of concept the general ped within the following Part 1will deal with structure. tion and Consular Assistance. The paper will be develo Protec Diplomatic of figures the of lens the through they are nationals. will examinethisproblem article The which disputes between states of international ght in law as it mayand international apply to individuals cau assistanceisneeded. nationals may attendif

See MCGARVEY-ROSENDAHL,See approachPatricia.to new A per Iranian the from concern greater a been have may as Or, These others illustrate situations and that thegloba These hsatcei bu h neato fnationality is aboutthe interaction of article This .

Hous. J. Int.L. 11 , v. 8,p. 305,1985/1986. 12 . Every . Every ------

290 AREVALO-RAMIREZ, Walter; MACLEAN, Robert Joseph Blaise. Dual Nationality and International Law in times of Globalization. Challenges and Opportunities for Consular Assistance and Diplomatic Protection in recent cases. Revista de Direito Internacional, Brasília, v. 17, n. 2, p. 287-307, 2020 18 5 signatories, 8.1. 40parties. Art lessness. 17 5 signatories, 40parties. Preamble. lessness. 16 5 signatories, 40parties. lessness. 15 NationalityLaws, 1930.Preamble. flict of 14 NationalityLaws, 1930. flict of 13 does containa“right”tonationality, asfollows: HumanRights Universal Declarationof nationality.a to “right” general a contain not does “stateless” individual an render would it when ality tain conditions,states revoking prohibits from nation whichnationality, States must grant and,subject to cer ment” desirable to agree reduce statelessness by international (CRS) Statelessness of Reduction Convention Laws Nationality of flict Con the Relatingto Questions Certain Conventionon the to preamble the including “statelessness” multiple to eliminate the phenomenon of efforts has examples of law international example, For similar. something or “right” a as it characterize instruments law law that multipleunder international international 2

diplomatic protection the international law rules on The concept ofnationality under GA Res. 217A(III) 10Dec. 1948. state of reduction the on Convention NATIONS. UNITED state of reduction the on Convention NATIONS. UNITED state of reduction the on Convention NATIONS. UNITED Con the to Relating Questions Certain on Convention Hague Con the to Relating Questions Certain on Convention Hague In 1961, the preamble tothe To have anationalityisconsidered so important 16 Treaty Series Treaty Treaty Series Treaty Series Treaty . Although the Although . f1930which provided: ) of nationality double statelessness of and casesof all both be directed in this domain is the abolition of humanity should towards of which the efforts RECOGNISING and shouldhave onenationalityonly; personshouldhavethat every anationality to secure that all its members should recognise community the international interest of general BEING CONVINCED (2) No one shall be arbitrarily deprived of his of deprived arbitrarily be shall one No (2) (1) Everyone hastheright toanationality. 15. Article , v. 989, p. 175. Entered into force 13 Dec. 1975. , v. 989, p. 175. Entered into force 13 Dec. 1975. , v. 989, p. 175. Entered into force 13 Dec. 1975. 14 CRS ; 13 (herein provides conditions under accordingly that the ideal 15 ovnin n the on Convention stated it is“[…] Hague Nationality that it is in the 18 , however, Hague 17 The The , it ------ternational law. ternational Given thatthey eminent emanate from the individual underin evolutionof the perception in an illustrate they Articles, Draft these adopted yet not state succession.Itprovides asfollows: of context the in arise would which 1, Article in ality” States the Succession of Persons Natural Relation in to ticles Nationality of on the convention law. isfounded on international Sofarasthe is EU that Report Explanatory the from clear is Convention,it European his or her nationality.”shall be arbitrarily deprived of this While is a 26 25 24(3). 2200A (XXI).Art 24 2200A (XXI). 23 org/10.5102/rdi.v16i2.5970 ional alidade: novas regras, velhos problemas Nacion Faria. Henrique PauloNUNES, see: nationality,please on 22 national LawCommission States with Commentaries.to the Succession of 21 national LawCommission States with Commentaries.to the Succession of 20 19 the righttoanationality.” tion onNationality nationality” a acquire to provides in Article 24 (3) that “Every child has the right Rights Political and Civil on Covenant tional the are “right” this of recognitions teworthy anindividual. of State a natio something within the nality from sovereign rightof of concept a of evolution an reflect They ght. law, international weispecial carry they of “publicists”

Supra note 14. Para 4 (a). Art. 4 (c) provides that “[…] no one no “[…] that provides (c) 4 Art. (a). 4 Para 14. note Supra Supra note14. Res GA Rights, Political and Civil on Covenant International Res GA Rights, Political and Civil on Covenant International laws domestic Brazilian of challenges the of analysis an For RelationPersonsin Natural of Nationality on Articles DRAFT RelationPersonsin Natural of Nationality on Articles DRAFT GA Res. 217A(III)10Dec. 15. 1948.Art Though the United Nations General Assembly has Assembly General Nations United the Though Law International The Commission, in its Two containing no otheradditionalinstruments Baii, . 6 n 2 p 2522 21. DOI: 2019. 225-242, p. 2, n. 16, v. Brasilia, , 22 to confer into something that exists as the right draft articles. inaccordancewith the present concerned, the States atleast one of to the nationality of that nationality, has the right acquisition of of the mode predecessor State, irrespective of the States, had the nationality of succession of the individualEvery who, onthe date of 1.RighttoaNationality Article nationality. denied nationality nor the his right to change , v. 1. 2,1999. Art. 2,part , v. 2,1999. 2,part 25 provides that “[…] everyone has 19 20 24 21 26 included a “Right to Nation andthe .

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291 AREVALO-RAMIREZ, Walter; MACLEAN, Robert Joseph Blaise. Dual Nationality and International Law in times of Globalization. Challenges and Opportunities for Consular Assistance and Diplomatic Protection in recent cases. Revista de Direito Internacional, Brasília, v. 17, n. 2, p. 287-307, 2020 29 28 its sovereignty over visitors. a state may accord even state may Every exerciseby anational birth. 27 provision. similar a contains Child the of Rights the on Convention Nations United 1989 the of 7 individual’snationality. an Article of rivation dep it seems,law concerned, the arbitrary prohibits international the VCCR? of tion asanational forpurposes recogni for qualifies precisely,who more or, national a is consular assistance to be provided to “nationals”. But who State;” sending the of porate, helping andassisting nationals, both individuals andcor state sending the of interests “[…] the of state” “receiving the in protection the include to functions” “consular defines It nationality. of terms in application its frames (VCCR) nationality. The ght to consular assistance are framedthrough reference to thisproblem powerful examplesof provide cases current specific some below, discussed be will As themselves. manifest can “gaps” these that themselves caught inthe middle. Itisatthismoment find can states both in nationalities having individuals law.international disputes arise between When states, lity is, in some ways “second-class” for of the purposes law makeinternational that it a second appear nationa the new state. in But gaps with beingacitizen of run that benefits and rights the have will they that expect birth. theirplaceof upon thelaws of different nationalities, depending having parentsof of because as well, can acquire dual nationalities on birth country and living and/or working in another. Children, ring in birth dual one (or more) nationalities because of people acqui more and has ledtomore globalization peoples is a historicalphenomenon, of gh migration level. mes more complicated at the Thou international -class category. second on the other, of treat dual nationalityasasort nationality, should, a acquire to right the firmly so zes law, that international which, onthe recogni one hand citizens, even therefore, Itwhen is abroad.perplexing the righttohave thestate extend itsprotectionsover its

VCCR, supra note s Art. 5 (a). Art 5(e). VCCR, 5(a).Art supranotesArt. VCCR, 5(a). supranotesArt. protection a what on limitations significant are there said, That ohtermd fDiplomatic Protection andthe ri Both the remedy of People acquiring asecondnationalityreasonably the As state dual regards beco nationals, the role of With anationalitycomes eventhe expectation and and its nationals Vienna Convention on Consular Relations […]” 28 (emphasis added), and “[…] “[…] and added), (emphasis 29 VCCR Article 36 permits permits 36 Article VCCR 27 . ------

“SPIRO”) Law Journal Emory 34 domesticlaw. domainof reserved nationalityfallswithinthe 24 where itisstated that the issue of at 4 P.C.I.J.No. 1923 B) (Ser.Decrees Nationality Tunis-Morocco 4, No. Opinion Advisory also See p.20. at p.4 1955, I.C.J. Reports h upsso extending such protection. the An purposes of incident towhom they for will treat as anational to determine yourstate will protect you, states haveimplicit right an dual andasovereign state.” relationshipbetween indivian refers tothe and legal defined narrowly is nationality […] law international “[…] in that notes McGarvey-Rosendahl Patricia tage, connections between individuals with a commonheri specificallyusedinthe VCCR. term the it because but tone, in “internationalist” more be may it because only not throughout “nationality” term they indeed mean substantially uses the same thing,thispaper the and interchangeably, “nationality” and 33 nationality 32 nationality 31 “citizens”such asvoting ortherighttoown land. rights of certain lackmay they but “nationals”, as Mexico outside living cans State may be different. For example, Mexico recognizes many Mexi rights enjoyed the bysame “nationals” package and of “citizens” of Stud nationalityinaglobalizedworld ship: the future of 30 dards fornationality[…]” their own stan more orless unfettered in formulating (I.C.J.) commented: Justice of Court International the case, Protection tic the state.the In of nal sovereignty who is a natio is the right to determine of

SPIRO, Peter. Dual nationality and the meaning of citizenship. of meaning the SPIRO,and nationality Peter.Dual 6 April of Judgment phase), (second Case Nottebohm MCGARVEY-ROSENDAHL, Patricia. A new approach to dual MCGARVEY-ROSENDAHL, Patricia. A new approach to dual citizen International Daniel. ADLER, Kim; RUBENSTEIN, Just as nationality implies that one may expect that expect may one that implies nationality as Just to refer may term, general a as “nationality”, While Though it is common to use the “citizenship” terms As the ICJ noted in noted ICJ the As Thus, as Peter J. Spiro writes, states have been, “[…] , . , . 1, 9920. nte ky ifrne s ht the that is difference key Another 1999/2000. 519, p. 7, v. ., . .

Hous. J. Int.L. Hous. J. Int.L. individual in turn givesindividual inturn hisallegiancetothestate. state gives itsprotectiontotheindividualthe and Nationality isareciprocalrelationship, asthe accordance withthatlegislation. byin by its owngranted naturalization organs its nationality, and to confer that nationality of relating tothe acquisition own legislation the rules sovereign[…] it is for every State, to settle by its , v. 46, p. 1411, 1997. (hereinafter referred to as to referred (hereinafter 1997. 1411, p. v.46, , , v. 8,p. 305,1985/1986. , v. 8,p. 305,1985/1986. Nottebohm Nottebohm 34 31 Shesays: 30 , however, it is one case,Diploma a 33 .

Ind. Global LegalInd. Global th , 1955: 32 ------

292 AREVALO-RAMIREZ, Walter; MACLEAN, Robert Joseph Blaise. Dual Nationality and International Law in times of Globalization. Challenges and Opportunities for Consular Assistance and Diplomatic Protection in recent cases. Revista de Direito Internacional, Brasília, v. 17, n. 2, p. 287-307, 2020 nationality 37 dx.doi.org/10.5102/rdi.v11i2.3035 nacional internacional sanguinis noscasosdeadoção jus do critério do aplicação de hipóteses das ampliação necessária Pereira de Vasconcelos. Mayara Da nacionalidadecomodireitohumano:da Hitala PEREIRA, review: please law, international under 36 35 nality” noted:that,atthattime, Natio Dual on “Report 1954 his in Córdova, Roberto naturalization. and parents) both or one of nationality the acquire state), automatically (people that of citizen a becomes ritory quired: there arethreemeansby which nationalitymay beac nationality. national Ingeneral, of the granting laws regarding of conflict the from arises problems, ciated ved by merecompliance withdomesticlaw. law maypliance with international mayor not beachie Com state. nationalizing the of law domestic the by solely its nationality and recognition isnotdetermined was notbindinginternationally. national said: court The its as Nottebohm Mr. of recognition stein’s said that Liechten anaturalizedsubject, the court of diplomatic protection on behalf stein sought to assert sphere. In international question as towhether that recognitionextends to the its own domestic law, of butaseparate the purposes for a state individualthing for to recognizean asanational

MCGARVEY-ROSENDAHL, Patricia. A new approach to dual criteria sanguinis jus the of reception the on analysis an For Nottebohm Case, supranote11,atp. 20-21. h custo fdualnationalities,the asso and acquisition of The law Thus, purposes, for international the issue of , Brasilia, v. 11, n. 2, p. 435-452, 2014/2015. DOI: 2014/2015. 435-452, p. 2, n. v.11, Brasilia, , jus soli .

Hous. J. Int.L. international effect here underconsideration. international to bedecided is whether that act has the question itsdomestic jurisdiction. The of by Liechtenstein in the exerciseperformed Nottebohm was anact of naturalization The to exercise protectionandtoseisetheCourt. whether a State is entitled which determines law. international law Itisinternational of onthe plane is to place oneself to the court, consideration. To exercise protection, to apply to exercise its protection, in the case under Liechtenstein whether that state is entitled of onthe lawIt does not depend the or decision xlsvl ple neeySaeo the world, exclusively State of applied inevery jussoliwere If nationality isacquired atbirth. which of virtue by principles the of conflict double nationality is…the main source of The (an individual born within a State’s ter State’s a within born individual (an , v. 8,p. 305,1985/1986. Nottebohm . 37 Special Rapporteur SpecialRapporteur , inwhich Liechten . Revista de Direito Inter deDireito . Revista jus sanguinis http:// 36 35 ------

dpe b mn Sae aon te lb (rm the (from globe the around States many by adopted nality by investment or economic citizenship, has been jus doni example, For market. or industry national particular a investments the protection of regarding investors, to diversify the jurisdictions and instruments economic needs to attract such astheurgency modern States,byreflecting regulated developedand havebeen supranational legal perspective.supranational legal citizenship by investmentand in international control: the saleof 42 Law andEULaw.Doni inInternational BrillNijhoff, 2019.17-58. 41 Internacional en matière d’investissements étrangers 40 nov. 2013. www.multiplecitizenship.com/documents/IS-01.pdf. Acesso em: 28 188 the States listed, 131 failed to recognize dual nationality. See: http:// Of states. world’s the of policies nationalization existing the then of published a summary Investigations Service agement 39 A/CN.4/83, para.8. 38 “effective nationality”. In Part 3 we will examine the of I.C.J.the bythe applied in ty investment. sions, to rapidly acquiring more thanone nationality by a fast-track toasecondinsomeocca nationality and dual nationality cases by providing individuals with of and theState. “genuine link” risk the concept of a longprocess before the local authorities, putting into classicother or requirements that madenaturalization immediate naturalizations have criticized as “cash for passports” models that grant authors some what including Malta), to States United states continue tonotrecognizedualnationality. in nationalizations. said,however, That the majority of the world, around and the consequent grating increase peoplemi over 65 years later, by the vast numbers of

KÄLIN, Christian H. contentieuses procédures de coexistence La Mathias.AUDIT, Man Personnel of Office States United the 2001 March In CÓRDOVA,Roberto. KRAKAT, Michael B. Genuine links beyond state and market and state beyond links Genuine B. KRAKAT,Michael oe eety nw en t aqie nationality acquire to means new recently, More For nationali lawinternational purposes, the test of contributes of phenomenon to the expansion This This phenomenon is greatly compounded today, phenomenonis greatly This , alsoknown ascitizenshipby investment, natio (ACDI), v. 10,p. 333-370,2017. father prevailing. the hisparents, the nationality of than that of child would notacquire any othernationality applied, a jus sanguinis were the only rule if double nationalitywould never occur. Similarly, Key Contours of Citizenship Ius Doni and Citizenship of Key Contours Report on Multiple Nationality. on Report 41 Bond LawReview, anddon’t require residence 38 Nottebohm .

Anuario Colombiano de Derecho Colombiano de Derecho Anuario 42 between the citizen v. 30,p. 145,2018. 40 , or to develop case was that U.N. Doc. 39 : Ius - - - - -

293 AREVALO-RAMIREZ, Walter; MACLEAN, Robert Joseph Blaise. Dual Nationality and International Law in times of Globalization. Challenges and Opportunities for Consular Assistance and Diplomatic Protection in recent cases. Revista de Direito Internacional, Brasília, v. 17, n. 2, p. 287-307, 2020 ae47 n icsini atTreo thispaperbelow. of 497,anddiscussioninPart Three page Persons with Dual Nationality (1984), 23 Int’l Legal Materials 489 at Case A/18 Concerning Jurisdictionthe Question Over of Claims of its in interpretation. See Iran care – United Status great Claims Tribunal: cautioned Decision in and prohibition this of efficacy tinued con the questioned A/18 case its Tribunalin Claims States United 47 46 ish Royal Navy. SeeRUSSELL atp. 756. therefore subject and to such measures as conscriptionintothe Brit nationals British be to 1870 until considered were nationals States United 1783, in independence achieving States United the despite that, was nationality” “indelible of example One “RUSSELL”). as results. 45 L. Rev Views Respecting the American Legal Independence. Effects of 44 LawJournal Emory 43 also anational. which the individual is a State of against to a national prohibited aState from affordingdiplomatic protection which non-responsibility”) of “doctrine (the tionals” Na Dual of Claims for States of Non-Responsibility the openingaverments: nality Laws on Certain Questions Relating Natio to the Conflict of well intothe20 “Once anEnglishman,always anEnglishman”. capturingthe idea, expressed in the saying: cinct way of owes”. he that allegiance patriam”, exuere potest meaning “nomanmay abjure hisnativethe or country “Nemo maxim legal the in forjustaslong.been deplored nationalityitself,has andthephenomenon of concept Spiro writes: evil. In anyevent it was tobeavoided anddiscouraged. considered at best an inconvenience and atworst an theVCCR. 36of thistesttoArticle relevance of

1939 Hague Convention. Art. 4. It is worth noting that the Iran- 1939 HagueConvention. bizarre practice-some in nationality Dual Franklin. RUSSELL, British on Note A Citizens? or Subjects James. KETTNER, citizenship. of meaning the SPIRO,and nationality Peter.Dual h au ovninacpe h Dcrn fof “Doctrine the accepted Convention Hague The dualnationalitypersisted until negative view The of embodied as “perpetual” as viewed was Allegiance dualnationalityarealmostasoldthe Instances of dualnationalities was Until recently, the existence of , v. 62,n.945,p. 947,1976.atp. 947. Int’l Lawyer (hereafter Hague Convention) includes in includes Convention) Hague (hereafter only onenationality only should haveperson anationalityand that all its members shouldrecognize that every general community to secure the international the interest of in is it that CONVINCED BEING , v. 46,p. 1411,1997.supranote12atp1417. 47 , v. 4, p. 756, 1969/1970. (hereinafter referred to referred (hereinafter 1969/1970. v.756, p., 4, th century. 1930 The 44 The British had a more suc a more Britishhad The 43 : 46 (emphasisadded) Hague ConventionHague should haveshould 45 Va. - - - - - eaga fsingle nationalities for everyone, dealt with of ve a goal following: thestatesinvolved. as itsnationalby eitherof person with two ormorenationalities could be regarded who their own nationals were to determine states of right the recognize to Conventionhad Hague however,Despite expatriation. the foregoing, and the women, children, married adopted children nality of [] cntn suc o rcin ewe States” between friction of source constant a “[…] Roberto Córdovaty”, SpecialRapporteur wrote: Nationali Multiple on “Report entitled (ILC) mission the I.C.J.the by in adopted later test “effectivenationality” the of the bydual nationalities problem utilizing a form vidual involved to as the Doctrine is referred is also anational.This which the indi aState of against anational of Protection behalf on that a State cannot exercise Diplomatic rule tionalities is the general 53 A/CN.4/83, para.8.para6. 52 A/CN.4/83, para.8.supra,note15, para.5. 51 50 49 48 nals. dualnatio of behalf diplomatic protectionon grant the complicationsthat arisewhenStates and seek to obligations service multiple military the possibility of examples suchillustrates through and the problem as

As noted, one specific difficulty that arises in regards to dual na CÓRDOVA,Roberto. CÓRDOVA,Roberto. 1939 HagueConvention. 5. Art. 1939 HagueConvention. 3. Art. 1939 HagueConvention. 1. Art. Thus, the Hague Convention, while seeking to achie states,to third With regard however, itcontainedthe natio of issues the with dealt Conventionalso The He goes on to explain that multiple ontoexplain nationality is He goes Com Law International the to report 1954 his In Nottebohm 53 Mr. Córdova’s approach to resolving the multiple appears tobeinfactmostcloselyconnected. withwhichthe circumstances in he thecountry of resident,the nationality principally or habitually and either the nationality in which he is in its territory any such personpossesses, recognize exclusively thenationalitieswhich force,in State third shall, of a anyconventions status personal and of matters of its law in Without prejudice tothe of application he had onlyone. nationality shall be treated as if State,third a Within havingperson a one than more avoid doubleormultiple nationality. nationality, shouldbemadeto effort that every and person shouldhaveevery a nationality, but only one community the international interest of general the in report…that first his in state to opportunity has already had the Special Rapporteur The case. Report on Multiple Nationality. on Report Multiple Nationality. on Report 51 48 , and that a 49 U.N. Doc. U.N. Doc. 50 52 ------

294 AREVALO-RAMIREZ, Walter; MACLEAN, Robert Joseph Blaise. Dual Nationality and International Law in times of Globalization. Challenges and Opportunities for Consular Assistance and Diplomatic Protection in recent cases. Revista de Direito Internacional, Brasília, v. 17, n. 2, p. 287-307, 2020 at p. 316. lawtional 56 A/CN.4/83, para.8.Basis3. 55 A/CN.4/83, para.8.Basis2. 54 Rode, supranote 14atp. 141. Nationals.See Dual of Claims for States of Non-Responsibility of states, which hadarisen non-responsibility of trine of nationality) was, in fact, the older rule, and that the effectivedoc to referred he (as nationality” “dominant of more writes: Much accommodated. be to complication a as more and eliminated be to evil an as less seen been has lity” dual nationality. sphere, of solution to the problem, inthe international nality”. allbuttheir“effective nationality”. be deprived of involvednationalities problem deeming that individuals

UHOE Aa I Psprs n ntoaiy n interna in nationality and Passports I. Adam MUCHMORE, CÓRDOVA,Roberto. CÓRDOVA,Roberto. In 1959, Zvonko R. Rode took the view that the rule nationa “dual of recently,issue however,More the the as appears nationality” “effective again, Once natio “effective define to seeks then Córdova Mr. .

U.C. JInt’l. Davis Pol’y L.and v) from such State; iv) iii) political office; ii) i) which heisanational,such as: of the states showing a closer link de facto to one of do notapply, subparagraphs anyothercircumstances c) which heisanational; the States of oneof of residence in the territory not this State is aparty, the previous andhabitual which he is whether not anational, or a state of b) which isanational; theindividual concerned of a) jointly orseparately: the following circumstances, either be taken of To the effective determine nationality account will purposes of international law atanygiven international time. of purposes nationalities could be dominant andeffective for those haveone nationality, than more only oneof individual that,whilean couldvalidlyto assert began By the mid-1950’s, however,tribunals international His previous request of diplomatic protection diplomatic of request previous His Language; of or rights political and civil of Exercise service; Military above the in mentioned criteria the If of territory the in residence of case the In States the of one of territory the in Residence wesi fimmovable property. Ownership of Report on Multiple Nationality. on Report Multiple Nationality. on Report , v. 301, p. 316, 2003/2004. U.N. Doc. U.N. Doc. 55 54 56 - - - - - 3 duals. these new views,consequences indivi withharsh for have but changed, there are some states which resist right. posit thatadualnationalityishuman paper,as to so far wethose whogo notethatthereare this des towardsdual nationalityisbeyond the scopeof more recentlywas destinedtofallintodisuse. Cavelier. Rosario: Ed.Universidad delRosario, 2006.p. 230-246. en homenaje a Germán amicorum los derechos humanos:liberr (ed.). Abello diplomaticprotection. tinuing usefulness of 61 law as“trite”. characterizes thispropositionof BROWNLIEwhere p.391, at UniversityPress,2003. Oxford ford: 60 siecle “[…] views based onthe reality of those with moremodern dualnationalitywith views earlier of holders of compares author dual nationality 59 LawJournal Emory 58 p. 143. nant nationality. 57 thestateitself.offence against a state’s that an offence against concept nationals is an the the state, not the victims, and arises out of that of state in which theyto bepresent happen by tect a foreign its nationals being victimized illegally citizens their states to act in protection of the historic right of the state itself. It is founded upon sential sovereignty of Diplomatic Immunityfigure of and the arises es out of

globalized world to theclasicrules onnationality ina current issuesundernew challenges Diplomatic andits protection MACLEAN, R. J. Blaise. Fresh hay from old fields: the con the fields: old from hay Fresh Blaise. J. R. MACLEAN, BROWNLIE,Ian. MCGARVEY-ROSENDAHL,See approachPatricia.to new A citizenship. of meaning the SPIRO,and nationality Peter.Dual domi of doctrine ZVONKO,the and nationals Rode.Dual R. hl neaiaino t attitu he various modern an examinationof While Spiro writes: Diplomatic Protection is distinct from the separate Diplomatic Protection is distinct from the separate Americainashrinkingglobe[…]”atp2. 60 . Specifically, it is the right of a state to pro to state a of right the is it Specifically, . Derecho internacional contemporáneo: internacional Derecho .

fdualnationality. of to rootout the underlying causes efforts abandoned in aforeignstate, at the same time asthey have nationality notwithstanding nationalization of now the retention appear more willing to accept in state attitudes towards dualnationality. States Recent years have witnessed a marked softening Hous. J. Int.L. A.J.I.L. , v. 46,p. 1411,1997.supranote12atp. 1453. Principles of public international law. public international Principles of , v. 53, n. 1, p. 139, 1959. supra note 14 at , v. 8, p. 305, 1985/1986. In which the 58 lo público,privado, lo In: GALVIS, Ricardo GALVIS, 61 . The rightis . The 57 59 6. ed. Ox ed. 6. Times fin de fin ------

295 AREVALO-RAMIREZ, Walter; MACLEAN, Robert Joseph Blaise. Dual Nationality and International Law in times of Globalization. Challenges and Opportunities for Consular Assistance and Diplomatic Protection in recent cases. Revista de Direito Internacional, Brasília, v. 17, n. 2, p. 287-307, 2020 Commission (2000) U.N. Doc. A/55/10. Para 29. the 52 of Report lished in The 4/506 A/CN. 66 Commission (2000)U.N. Doc. A/55/10.Para 21. the 52 of Report lished in The 4/506 A/CN. 65 Commission (2000)U.N. Doc. A/55/10. the 52 of Report lished in The 4/506 A/CN. 64 tional Justice. Supra,n.1 Interna of Aug. 30 1924), Court (PCIJ Permanent 236 1924. ICGJ 2, n. A Series Judgment,PCIJ Court, the Jurisdictionof the to tion 63 tional Justice. Interna of Aug. 30 1924), Court (PCIJ Permanent 236 1924. ICGJ 2, n. A Series Judgment,PCIJ Court, the Jurisdictionof the to tion 62 dau old 22-month her and she when 2016 April since in Iran who hasbeenimprisoned nian-British national Ira an Zaghari-Ratcliffe Nazanin to Protection matic Diplo granted Kingdom United the 2019 of March in medy oughttobepreserved: led him to conclude that Diplomatic Protection as are substantive individual procedural rights, which tence of exis the of level, international the at lack, a identified matic protection as aremedy available toaState. fictions, diplo recognized the remaining importance of someunderlyinglegal acknowledging the existence of Diplomat Protection on as SpecialRapporteur Concessions the in (PCIJ) Justice national Inter of Court Permanent the by provided is concept

DUGARD, John R. DUGARD, John R. DUGARD, John R. PalestineMavrommatis Concessions, Greece PalestineMavrommatis Concessions, Greece Prof. Dugard seems to have been a goodforecaster: seems Prof.to have Dugard been a goodforecaster: ILC the by 2000 in (appointed Dugard John Prof. the for point starting jurisprudential important An , , , 62 7 Mar. 2000. (hereinafter “First Report”) and pub and Report”) “First (hereinafter 2000. Mar. 7 pub and Report”) “First (hereinafter 2000. Mar. 7 7 Mar. 2000. (hereinafter “First Report”) and pub and Report”) “First (hereinafter 2000. Mar. 7 diplomatic protection. would beasetback forhumanrightstoabandon law,procedural rightsunderinternational it the individualUntil acquires comprehensive law.international its subjects, of respect for the rules the person of itsown right–itstoensure,reality asserting in judicial proceedingshis behalf, on aState is in to diplomatic action or international by resorting its subjects and oneof By taking upthe case of channels.obtain satisfaction through the ordinary another State from whomthey have been unable to law by to international injured by acts contrary that a State is entitled to protect its subjects when law international principle of It is anelementary case: First Report on Diplomatic Protection. onDiplomaticProtection. First Report onDiplomaticProtection. First Report onDiplomaticProtection. First Report nd nd nd Session of the International Law the International Session of Law the International Session of Law the International Session of 63 armai Palestine Mavrommatis 66

v. UnitedKingdom v. UnitedKingdom 64 UN Doc.UN Doc.UN Doc.UN ) while ) , Objec , Objec , 65 He ------sing from a wrong committed against its national. From mine whether, it to is seek appropriate satisfaction ari the State and its procedures to deter the discretion of enforced on theirbehalf. have no theState that isbeingenforced. Victims of right it isa by Dugard. interest that the remedy remains alive as recommended nationality, yet it is a matter of the issues of some of Diplomatic Protection give rise to successful claim of states.”two the between pute dis a matter tothelevelconsular casea her from of “…raise(d) has UK the authorities, Iranian by prison mistreatment in of tiating her release, andallegations in nego progress UK to join her father. Due to lack of Her now four-year-oldto the daughterhasbeenunable toreturn “spying”. for sentence five-year a received ghter were taken intocustody. of States to grant this righttotheircitizensunderdomestic law. Statestogrant of resentations”) course,at p.preclude the right 731. does This not, of protection. 71 p. 723,2000.at p. 1008,inreferencetotheBritishRules. diplomatic protection. and Diplomatic representations Company Ltd, 1970 ICJ Reports 1 at p 44, and WARBRICK, Colin. 75 as to the traditional position,Barcelona Traction Light and Power tional Law Commission (2000) U.N. Doc. A/55/10. supra, n.3, para the 52 of Report The published in and 4/506 A/CN.Doc. UN 70 humanrights?. of case for diplomatic protection la borderdispute: an under the radar: resident colombian sion nationals of during the Colombia-Venezue MACLEAN,AREVALO,Joseph-Blaise; Robert Walter.expul The See: country. that in resident Colombians Venezuelansof by ment lomatic protection as aremedy availableto the mistreat inregard 69 zaghari-radcliffe-diplomatic-protection guardian.com/news/2019/mar/07/foreign-office-grants-nazanin- tion. 68 zaghari-radcliffe-diplomatic-protection guardian.com/news/2019/mar/07/foreign-office-grants-nazanin- tion. 67 tection: to invokerameters inorder diplomatic pro a claimfor right todiplomaticprotection. human no recognizes law international Consequently, position, asit allows the exercise its own discretion. course,the state’s this is the preferable perspective, of

WARBRICK, Colin. Diplomatic representations and diplomatic See, dip note,herein have theauthors positedtheavailability of Of protec diplomatic Zaghari-Ratcliffe grants Office FOREIGN protec diplomatic Zaghari-Ratcliffe grants Office FOREIGN s oe, hn ilmtc rtcin s invoked is Protection Diplomatic when noted, As International law has established the followingInternational pa The Guardian The Guardian e.g. DUGARD, John R. DUGARD,Johne.g. in personam ICLQ 69 , v. 51, p. 723, 2000. (hereinafter “Diplomatic Rep Vniversitas Mr 21. ipnvl em: Disponível 2019. Mar. , em: Disponível 2019. Mar. , righttohave diplomatic protection , 7 Mar. 2000. (hereinafter “First Report”) Report”) “First (hereinafter 2000. Mar. 7 , v. 68,n.138,2019. 70 Thus, it falls entirely within First Report on Diplomatic Protection. onDiplomaticProtection. First Report 68 71 The requirements for a The 67 . Disponível em:3abr. 2019. . Disponível em:3abr. 2019. s Zaghari-Ratcliffe Ms. nd Ssino theInterna Sessionof https://www.the https://www.the ICLQ , v. 51, ------

296 AREVALO-RAMIREZ, Walter; MACLEAN, Robert Joseph Blaise. Dual Nationality and International Law in times of Globalization. Challenges and Opportunities for Consular Assistance and Diplomatic Protection in recent cases. Revista de Direito Internacional, Brasília, v. 17, n. 2, p. 287-307, 2020 ford: OxfordUniversity Press, 2003. supra,n.11,p. 404-405. 76 the disputes author whether continuous nationalityis, infact, a rule. vestment disputes. relevanceits historical development toinvestor-state current and in principle: continuous-nationality-of-claims The S. Matthew ESNE, Int’lComp. and L.Q, 75 UN. Doc. A/CN/.4/514(hereinafter“SecondReport”). the Special Rapporteur’sDiplomatic Protection on SecondReport is the subject matter of rule Case 42. (ELSI) This 1989 ICJ Reports 74 the righttoprotecttheirnationalsabroad.” law that States have international customary of rule widely accepted A/CN.4/506 Doc. 73 thiswillbediscussed below.sibility engaged; diplomatic protection and when (and on what basis) is state respon Rules,the Primary that is tosay, what acts justify the invocation of 72 res was Tribunal The Tribunal. Claims States United Part Four below. tion remains intact will be discussed more specifically in law. ned atinternational this classic formula Whether classic view would be that the claim may not be sustai which Diplomatic Protection is claimed, then against a the state those nationalities is of and oneof national dual a is victim the If Assistance). Consular to is it (as outside itsscope. falls requirement hands” “clean alleged the of nation

h su f hti n“nentoa rn”i usino of question a is wrong” “international an is what of issue The BROWNLIE,Ian. protection. diplomatic and Nationality F. I. Guy LEIGH, See Interhandel Case, 1959 ICJ Reports 27; Elettronica Sicula S.p.N. See The nationalityissue – arose in relationtothe Iran The Nationality isfundamental toDiplomaticProtection exami means “nationality” on focus paper’s This DUGARD, John R. DUGARD,John states. is, the two no dual nationality as regards involved the both of national offending State State,and the complaining that a be cannot victim the (f) complaint was lodged the time the wrong was committed when the and the complaining State both at of been anational complied with, which meansthatvictim must have be must requirement nationality continuous the (e) localremediesrequirement) the exhaustionof as to referred (generally means” “ordinary through the offendingState from relief unable toobtain mustmeans thatthe national have sought been and This exhausted. been have must remedies been local (d) have must wrong anotherState anationalof committed against international the (c) a State, to attributable be must wrong international the (b) law, wrong”, that is, tointernational actcontrary “international an of commission the (a) Geo. Wash. Int’l L.Rev, , v. 20, n. 453, p. 456, 1971 7 Mar. 2000. supra, n. 3, para. 36. “[…] it is a is it “[…] 36. para. 3, n. supra, 2000. Mar. 7 76 Principles of public international law. public international Principles of First Report on Diplomatic Protection. onDiplomatic Protection. First Report 75 v. 36, p. 783, 2004. in which ,and . atp. 456. 72 cf. 6. ed. Ox ed. 6. DUCH 73 74 , UN . ------was summarizedasfollows: the United States. were also citizens of they before the Iran tribunal, evenclaims against if werelaw,citizens under Iranian Iranian could not bring nationals.that individuals,took theposition Iran who involvedtribunals claimsby dualUnitedStates – Iranian among otherconsiderations. international law,cable principles of justice and equity”, dicating the claims,was the tribunal “[…] appli toapply claims Revolution.arising fromthe Iranian Inadju of settlement in Declaration, Algiers the to pursuant Iran, to the lump –sumsettlement bypaid tionals inregards ponsible foradjudicating claims by United States na dual nationality. persons with jurisdiction over claims of the question of concerning 81 dual nationality. persons with jurisdiction over claims of the question of concerning 80 dual nationality. persons with jurisdiction over claims of the question of concerning 79 dual nationality. persons with jurisdiction over claims of the question of concerning 78 p. 436,1997. claims settlement the foreign claims.commission: Iran 77 relevant conclusions. number of reachedand dual nationals a the issue of analysis of make claimsbeforethetribunal. United States nationals, including dual nationals, could all “citizens”, as “nationals” defined Declaration giers

RNUie Sae cam tiua: eiin n ae A/18 Case in decision tribunal: claims States IRAN–United A/18 Case in decision tribunal: claims States IRAN–United A/18 Case in decision tribunal: claims States IRAN–United A/18 Case in decision tribunal: claims States IRAN–United LILLICH, Richard B.; BEDERMAN, David J. Jurisprudence of The United States took the position that as the Al the as that position the took States United The the before frequency some with arose that issue An The tribunal embarked on an international law tribunal embarked on aninternational The neitherposition. tribunalaccepted The 2. 1. and purposes. its aims their context and inthe light of of be given meaninginterms their ordinary the Algiers Declaration must of terms The (VCLT). Vienna Convention Treatieson the Law of accordance withthe in to beinterpreted is and treaty a is declaration Algiers The Int’l Legal Materials Int’l Legal Materials Int’l Legal Materials Int’l Legal Materials claimant andrespondentstates. boththe persons whopossess the nationality of diplomatic protection clearly prohibits claims by to the exercise law pertaining of International The 81 , v. 23,p. 489,1984.atp. 496. , v. 23,p. 489,1984. atp. 496. , v. 23,p. 489,1984. atp. 493. , v. 23,p. 489,1984.atp. 491. 77 80 78 79 Iran’s position AJIL , v. 91, - - - -

297 AREVALO-RAMIREZ, Walter; MACLEAN, Robert Joseph Blaise. Dual Nationality and International Law in times of Globalization. Challenges and Opportunities for Consular Assistance and Diplomatic Protection in recent cases. Revista de Direito Internacional, Brasília, v. 17, n. 2, p. 287-307, 2020 dual nationality. persons with jurisdiction over claims of the question of concerning 85 dual nationality. persons with jurisdiction over claims of the question of concerning 84 dual nationality. persons with jurisdiction over claims of the question of concerning 83 dual nationality. persons with jurisdiction over claims of the question of concerning 82 tribunalsaid: theory.”The nationality effective the tribunals, national […] is,‘actually dominant theory’ atleast before inter literature concluded “[…] that the and legal prudence plomatic protection, which has been expanded. concept di of havechanges sincetheconcept then in occurred a treaty to which only 20 States are parties, but great

RNUie Sae cam tiua: eiin n ae A/18 Case in decision tribunal: claims States IRAN–United RNUie Sae cam tiua: eiin n ae A/18 Case in decision tribunal: claims States IRAN–United A/18 Case in decision tribunal: claims States IRAN–United A/18 Case in decision tribunal: claims States IRAN–United The tribunal thenconcludedthat: The recent juris tribunal, following an analysis The of Not only is it more than50 years oldandfoundin 1. 4. 3. individuals. that itdealtwithrightsof observing fromsuch issues by distinguished itself is a matter between states. tribunal The still appliestodiplomaticprotectionthat doctrine “non-responsibility” the if Even very interpreted be must cautiously because: 4 Art. that parties. tribunalcautioned, however, The bothstate the individual wasof anational dualnationalitywhere afforded incases of 4, that diplomatic protection could notbe Art. in principle, the upheld Convention It recognized that the 1930 Hague parties”. to therelationsbetweenapplicable the law international of any “relevant rules VCLTdirects tribunals totake into account the of (c) 31 Article doing, so In Int’l Legal Materials Int’l Legal Materials Int’l Legal Materials Int’l Legal Materials interpretation, interpretation, as directed by Article 31, paragraph 3 the Tribunalmay take of purposes intoaccount for law which international Thus, of the relevant rule which theyarenationals. theStateof against protection toindividuals, law toaccordlegal even international contemporaneous development of asit is consistent with the scarcely surprising search for the and effectivedominant nationality is the Hague by non-responsibility of of rule Convention modification toward trend This 82 83 , v. 23,p. 489,1984.atp. 501. , v. 23,p. 489,1984. atp. 500. , v. 23,p. 489,1984. atp. 498. , v. 23,p. 489,1984.atp. 497. 85 84 - - -

ternational law purposes.ternational Feeley writes: nationalityforin anobjective test of the existence of theUnited States. period was thatof nationals whose effective nationality during the relevant overby Iran United States-Iranian dual claimsagainst tional law 90 supra note31atp. 314. lawtional 89 at p. 216. with persons dual nationality. of claims over jurisdiction of question the concerning A/18 Case in 88 dual nationality. persons with jurisdiction over claims of the question of concerning 87 dual nationality. persons with jurisdiction over claims of the question of concerning 86 tion which wouldinternatio their nationalityfor regard purposes, posi this does the not change international havenicipal courts jurisdiction over them, domestic for Mrs. and Mr.Kazemi, the muCelil and others. Even if law toindividuals the internal such as of the application nationality.”dual recognize not do that country laws of theinternal nationality if non-dominant of state binding action tothecountry of nationality law toapplythe lawsistent with international below. discussed be will VCCR the under situations tionality question arises whether this may be appliedtodualna theeffective nationalitytest, of their application

UHOE Aa I Psprs n ntoaiy n interna in nationality and Passports I. Adam MUCHMORE, interna in nationality and Passports I. Adam MUCHMORE, Tribunal:decision Claims States SCOTT,Iran–United Michael. A/18 Case in decision tribunal: claims States IRAN–United A/18 Case in decision tribunal: claims States IRAN–United h infcneo ti eiini h seto f of assertion the is decision this of significance The Accordingly, the tribunal held that it had jurisdiction Muchmore points out that it would be “[…] incon “[…] be would it that out points Muchmore in consistent been have tribunals international As . .

U.C. JInt’l. Davis L.andPol’y U.C. JInt’l. Davis Pol’y L.and Int’l Legal Materials Int’l Legal Materials state without expressly infringing state sovereignty. theclaimantvis-à-vis the the individual rightsof tribunal therebybefore the tribunal. The advanced the claimant the nationality of when determining refused to rely exclusively rules on such internal domestic laws but simultaneously bothparties’ of acknowledged tribunal thevalidity The Iran. and the United States laws of considering the internal nationalitywhile upheld anobjective test of In adoptingthe theStateswhosenationalityisinvolved”. of andone factual ties between the person concerned effective nationality, and the search for“stronger the from the Vienna (c) Convention, of is the that rule flows dictum o of 90 Nottebohm Harv. Int’l L.J. , v. 23,p. 489,1984. , v. 23,p. 489,1984. The issue, however, The isnot Nottebohm , v. 301,p. 316,2003/2004. , v. 301, p. 316, 2003/2004. 87 doctrine, the tribunal , v. 26, p. 208, 1985. v.208, p., 26, h ueo realand of , the rule 86 89 the 88 ------

298 AREVALO-RAMIREZ, Walter; MACLEAN, Robert Joseph Blaise. Dual Nationality and International Law in times of Globalization. Challenges and Opportunities for Consular Assistance and Diplomatic Protection in recent cases. Revista de Direito Internacional, Brasília, v. 17, n. 2, p. 287-307, 2020 referred toasVCCR.referred 92 toas VCCR.referred 91 Relations 1963 “receiving State”. of the officials with difficulty legal in themselves find or arrested been havemay who State” “sending the of those relatingtoassistance to beprovided to nationals theirnationalsinneed. any of to services certain extend to officials consular through states, and includes,other things, among the right of Relations Consular on Convention Vienna assistance. Consular assistance is provided for under the consular their homecountries may avail themselves of 4 nationality. nal law purposes, as being the dominant andeffective

nationality new challenges ontheconcept of Consular assistance underthe NTD NATIONS. UNITED NTD NATIONS. UNITED Article 36 of the Vienna Convention on Consular on Convention Vienna the of 36 Article bycontemplated VCCR the are services the Among outside themselves find who individuals Normally, sending State: the consular functionsof relatingtonationals 1) 36 Article intended. are whichfor the rights accordedunderthisarticle must enable full effect to begiven tothe purposes proviso, however, thatthe said laws and regulations the receiving State, subject to the and regulationsof with the laws shall beexercised article in conformity 2) judgment […] a detentionor intheirdistrict in pursuance of custody the sending State prison, who isin of have shallalso They therighttovisit anynational representation. for hislegal with him andtoarrange custody detention,or to converse correspond and the sending State who isinprison, of a national c) b) access tothem[…] the sending Stateto have and of with nationals a) 92 includesthefollowing provisions: ih ve t fclttn te xrie f of exercise the facilitating to view a With The rights referred to in paragraph 1 of this of 1 paragraph in to referred rights The tovisit right the have shall officials Consular […] Consular officials shall be free to communicate Treaty Series Treaty Series Treaty , v. 596, p. 261, hereinafter , v. 596, p. 261, hereinafter (VCCR) 91

gration of people. It is not difficult to imagine that, as that, imagine to difficult not is It people. of gration Yet weincreasing globalization liveand mi in a time of states do notrecognize dual nationality. a majorityof earlier noted as indeed, nationals; own their consider personsthey do notrecognizeadoptednationalitiesof is alsoanational. which the victim a state of its nationals against one of “protect” to seeks state a when Protection Diplomatic assistance.exists also in the context problem of This seeks to providenationalization with consular him/her his nationality, hisbirth the state and of the state in of difficulty legal faces national dual accused an which in situations tend to ariseincases The abroad. nationals their tives seeking judicial proceedings to monitor of representa consular to rights 36 Article limited even in arisen have to the conventionwhich parties are refusing to grant situations Yet rights. unambiguous, in April 2010 in relation to suspicion of espionage. Cossio is a dual a is Cossio espionage. of suspicion to relation in 2010 April in Luis Carlos Cossio is an example. Cossio was detained by Venezuela in which recent case of he/she is not anational.The in acountry 96 andtheUnitedStateshaswithdrawn fromit. not aparty note 54 pra at 95 94 ParticipationStatus.aspx Disponível em: Secretary-General. the With Deposited treaties Multilateral See: July1979. 2 VCCRon 93 lawnational obligations. Mrs. Kazemi and Mr. Celil may have violated their inter to recognize, domestically, China the adopted nationalities of and Iran of failure the Accordingly, purposes. law nationalitymay beinadequate international for of June 1975. Disputes, having acceded on 5 Settlement of pulsory Com the Concerning VCCR the to Protocol Optional law.national the VCCR continue to be governed by inter customary by addressed expressly not matters those further, law; international customary of codification a considered is VCCR the to parties are China and Iran come morefrequent. second nationalities may be non-recognitionof from more peopleadoptdualnationalities, problemsarising

The problem does not arise when the dual national is detained does notarisewhenthedualnational problem The su Secretary-General, the With Deposited treaties Multilateral VCCR supra,note2, openingaverments. the to acceded China 2975; June 5 on VCCR the ratified Iran This problemarises because there are states that This and clear but limited, very provides Article The As stated, a state´s application of its own definition own its of application state´s a stated, As Regardingthe cases noted in the Introduction, both 95 http://untreaty.un.org/ilc/texts/getter.asp 94 Iran, but not China, is also a party to the to party a also is China, not but Iran, . Acessoem:26nov. 2013. 96 Further, and specifically as to http://treaties.un.org/Pages/ 93 . The VCCR The . . Canada is ------

299 AREVALO-RAMIREZ, Walter; MACLEAN, Robert Joseph Blaise. Dual Nationality and International Law in times of Globalization. Challenges and Opportunities for Consular Assistance and Diplomatic Protection in recent cases. Revista de Direito Internacional, Brasília, v. 17, n. 2, p. 287-307, 2020 ance with international legal obligations have obligations arisen. legal ance withinternational Chinese compli Kovrig is yet another matter in which questions of 97 shtml sal.com/2010/04/09/pol_ava_canada-solicita-visi_09A3718813. 2010. online edition. Disponível em: indication thatVenezuela has denied access. See: to provide consular assistance on his behalf. To date there is no sought has Canada accordingly, and, national Colombia-Canadian six considerations: VCCR?yes,upon the Arguably based under nationality Does the dominantnationalitytest apply tothe issue of as tonationality.nal law is notbound by domestic rules anything, it stands for thethat internatio proposition law. international customary If embodying convention, international an is VCCR The dual nationalsareentitled to receive consular assistance. ought to havethe issue on bearing astowhether no argued is nationality here thatthe domestic regarding position it “nationality” of treatment international VCCR obligations. its violated has China whether to as questions raises ce theirconsularassistan upon them in the exercise of Mr. Spavor as Canadian nationals, the limitations placed China, though they have acknowledged Mr. Kovrig and

And, of course, the Diplomatic Immunity issue as regards Mr. regards as issue Immunity Diplomatic the course, of And, Based upon theBased discussion upon above astotheevolving . Acessoem:27nov. 2013. 3. 2. 1. 4. Even if the “doctrine of non-responsibility” overtaken by time, been likely than more has responsibility” made decision non- it clear that the “doctrine of Tribunal Claims States diplomatic protection, – United the Iran the issue have beeninthe context of the cases involving the majority of Even if the dominantandeffective nationalitytest. tribunalsto apply international trend of The the interests of ”[…] the sending state sending the ”[…] of interests the protecting include to defined is functions” “consular of definition the above, noted As individual. an of right the or State a of the right to consular assistance is a right In this context, the issue arises whether nationality” testshouldbeapplied. is at issue, the “dominantandeffective aState individual an against the claim of diplomatic protection. When the areaof it survives, it is in took the view that if Tribunal Claims States United – Iran The it seems to beonits last legs.has survived, 97 http://calidaddevida.eluniver Nottebohm El Universal, means 9 Apr. and - - - - 99 98 peoples. It byand increasingmobility of globalization multipleor engendered nationalitiesisanew problem 5.1 Context andexamples 5 Analysis andcontext ms tribunal,butthatisthesubjectforanotherpaper. Clai States Iran-United the before cases individual the Tests in are suggested with which state such anindividual had the closest links. the individual inquestion to assess life and situation of tribunal would fact. The have to examine the tion of the end,becomes ques in a individualquestion. in That, the of effectivenationality and dominant the as VCCR the of purpose the for “national” interpret to law nal ty, however,clear thatisopentointernatio it appears

Supra, note 45 Art. 2(a). Supra, note45Art. Supra, note6. twudb ncuaet setta h su fdual It would thatthe issue of be inaccurate to assert right tohave thereisno dual nationali a Even if 6. 5. s oe, nentoa lw a been has law the rightsof its recognitionof expanding international noted, As and itsnationals”. the sending state the rights and interests of functions the “protecting and securing of which includes as a consular agreement Consular China – Canada the interpreting sameanalysis ought to applyin The effective nationalitytest”. recognizing the “dominant and favour of wouldlanguage have to be resolved in the in ambiguity any tribunal), the by it was (as applied is analysis Treaties of Law the on Convention Vienna the of 32 and aSection 31 circumstances, if particularly individual nationals have interests. In such mean that notonlythestate but the inclusiveThis would language seem to its nationals of right toadualnationalityisright. have the been view propounding that the noted, as scholars, Other test. nationality deciding upon the dominant andeffective was onereasonthatthe Tribunalgave for individuals’ vis-à-vis states. Indeed, this Nottebohm […]” 99 98 adi ubro andinanumber of epai added). (emphasis - - - -

300 AREVALO-RAMIREZ, Walter; MACLEAN, Robert Joseph Blaise. Dual Nationality and International Law in times of Globalization. Challenges and Opportunities for Consular Assistance and Diplomatic Protection in recent cases. Revista de Direito Internacional, Brasília, v. 17, n. 2, p. 287-307, 2020 matic-protection-jailed-mother-wont-make-things-easier 102 office-grants-nazanin-zaghari-radcliffe-diplomatic-protection 101 denationalized nationality beyond the nation state in BOSNIAL, Linda. Citizenship 100 law is clear that, for municipalinternational purposes, as such cases from clear is Specifically, as law thatoughttobeencouraged. international ment of the authors that this would be a progressive develop for adifferent result in this case. It is the position of law couldopenthe door purposes international for lution towards aneffective or dominant nationality test Diplomatic protection, the evo the applicability of of law.tes international and that the UK claim for Diplomatic Protection viola saysnational she hasbeentreated as anyotherIranian nationality.UK Iran her recognize not does Iran Thus, tection. Pro Diplomatic for claim the supporting wrong” nal access to her own doctor is the “internatio denial of medical care and medicine as well denial as the necessary of the that view the taken has UK The national. Iranian-UK dual a is Ratcliffe Zaghari Ms. point. this in question. the individual the dominant andeffective nationalityof Diplomatic the Protection purpose of and the VCCR as for “national” interpret to law international to open is that the foregoing clear from dual nationalityitappears unwelcome surprises. may,shed, and these concepts time from to time, create individual’san basis upon placeintheworldis establi 18 the in ved nationalitywhich evol of escape the fact that concepts world” the of “citizens as ourselves sion envi to pleasant be may it while But Village”. “Global individuals,for to referthe itisbecomingcommon dispute states,resolution notonly for but methods of transnational commerce theevolutionde and and of tra of neous communication, globalization interms tudes towards personalmobility. atti nationality comes as areaction to modern issue of is fairtosay, however, approach tothe that the modern

While the Iranian position reflects the classical view classical the reflects position Iranian the While illustrates above noted case Zaghari-Ratcliffe The a have to se per “right” no be may there Though mobilepopulations,In today’s instanta worldof e o xml icsino h osblt fextending See for example a discussion on the possibility of https://www.france24.com/en/20190312-iran-says-uk-diplo https://www.theguardian.com/news/2019/mar/07/foreign- 101 But Iran does not recognizedualnationality. But Iran .

Ind. J. St., GlobalLeg. th , 19 th and20 102 th centuries still provide the v. 7,p. 447,1999/2000. 100 Nottebohm we cannot . . ------, came intobeing. Convention Hague 1930 the since years the in tection DiplomaticPro the remedy of of theexpansion ged Iran – United Status Claims Tribunal which acknowled enhancedby the views cited aboveview is further inthe ch clearly applied inthe famous approa plane, an international the upon definition that that state. It would onlyprevent its imposition of of mine,its own for purposes, national is nota is or who on any state’sno infringement sovereign right to deter is the measure itwillstandard apply. would This entail law, international “effectivethe that and nationality” of purposes whatnationalityisfor itself for will determine nality. law has been clear that it Indeed, international natio of definitions municipal accept to obligation no law, international there is plane, of and forpurposes their own sovereign purposes. the But international on recognize, andwhonottorecognize,for asnationals nationality.states may determine decide who to They Doc. E/CN.4/62/Add 2,para.74. sion. on Human Rights on the Right Opinion to and Freedom Expres of 105 Iran v.public of Hashemi 12 August 2012 2012 QCCA 1449, p 3-5. ReIslamic in Appeal of Court Quebec the of decision the to refer 104 103 forensic investigation Special couldbeconducted. The proper a that so and burial for Canada to body her of her son’s request, sought unsuccessfully the return of she hadinfactdiedfrombeingbeaten. authorities suffered that shehad the a stroke,Iranian by representations earlier despite that, 2003 July 16 on acknowledged Abhati Ali Mohammad President Vice 2003. July 11 on died Teheran.She in prison a outside photos taking for 2003 June 23 on thorities happening at the time. by She was au Iranian arrested traveled in Spring2003 to Iran to cover student riots had and in custodyShe was inIran. aphotojournalist 54 years, died while citizen nadian who, of atthe age 5.1.1 adopted: nationality to be evolution inrecognition of ggested

After her death, Canadian authorities, in support support in authorities, Canadian death, her After Ca naturalized Iranian-born an was Kazemi Ms. following cases illustrate The the need the for su LIGABO, Ambeyi. Special Rapporteur. U.N. High Commission Ms. Karemi’s death please the facts of For a full description of Supra, note59. Rpr nMsint h sai eulco Iran. onMission tothe Islamic Republic of Report Zahra Kazemi 103 Nottebohm 105 12 Jan. 2004. U.N. case. This 104 Iranian ------

301 AREVALO-RAMIREZ, Walter; MACLEAN, Robert Joseph Blaise. Dual Nationality and International Law in times of Globalization. Challenges and Opportunities for Consular Assistance and Diplomatic Protection in recent cases. Revista de Direito Internacional, Brasília, v. 17, n. 2, p. 287-307, 2020 109 Terrorism Act. theJustice forVictims of of onlytwo states whose immunity has been lifted for the purposes of 108 107 Doc. E/CN.4/62/Add 2,para.74.at para80. sion. on Human Rights on the Right Opinion to and Freedom Expres of 106 with born Chinese nationality. Ethnically, he is a Uighur 5.1.2 Huseyincan Celil tive nationalitydefinitionshouldapply. jurisdiction. In such circumstances,legal nian the effec Ira under falling as Iran by regarded themselves find he orshe may Iranian, father was unexpectedly born ble. Ministers, is the almost Council completely of unavaila consent of lization, which requires the rarely granted impossible. Evention isvirtually denationa voluntary thatinvoluntary denationaliza reports Service tigations Inves Management Personnel of Office States United its acts. Iranian state from the consequences of state sovereigntyThus ultimately applied to shield the the though clearly sympathetic to the family, that determined Court, The rejected. also was Canada of Court Supreme the to appeal Plaintiffs.final the for success The without but Courts, Quebec the in begun was case The re-death. caused by fordamages her tortu the Iraniangovernment Quebec sought to sue living in the Canadian province of Kazemi Ms of members Familyproceedings. judicial or investigations,involvementany Canadian in allow to sed to recognize Ms. Kazemi’s Canadian nationality and refu totheCommissionhewrote: port had been received about the situation there. In hisre complaints that authorities Iranian aboutanumber of Rights, Human Ambeyi Ligabo, traveled to Iran in 2003 to consult with of Commission Nations United the by appointed Expression of Freedom for Rapporteur

Mr. Celil is another naturalized Canadian citizen, but lawIranian does not recognize dual nationality. The Iran denied these requests. Irandidnot Throughout, 109 Supra note15at p. 97. result today couldwellThe bedifferent since nowis one Iran R.S.C., 1985,c. S-18. LIGABO, Ambeyi. Special Rapporteur. U.N. High Commission Rpr nMsint h sai eulco Iran. onMission tothe Islamic Republic of Report State Immunity Act Immunity State Tu f esni onIain ree ftheir evenor Iranian, if is born person a if Thus r. aeis o, tpe Hcei ad her and Hachemi,mother, EzzatKazemi. Stephen son, Kazemi’s of Mrs. wish express the with accordance in in Canada, buried be to Kazemi Mrs. allow to authorities appeals to the […] the Special Rapporteur 107 shielded Iranfromliability. 106 12 Jan. 2004. U.N. 108 ------ig nte ntoaiy Atce o h Nationality the of 9 Article nationality, another ting tionality related charges.na where he was put on trialforterrorist Canada, but Uzbekistan, instead, extradited him to Chi to return his sought Canada arrest. the of aware made were officials Canadian and authorities, Uzbek by ted arres was wife.He his relativesof visiting 2006 March Mr. Celilwas soughtforprosecution. with the result that terrorism, of accused these groups have authorities Chinese movement. this in active was Celil Mr. that appears It autonomy. greater for China dian citizenship. Cana receivedhis he that after Sometime refugee. a as 2000 in wife his with Canada to came but China in sed rai and born was He group. minority Muslim largely a taking anothernationality. out that, generally, Chinese automatically lose their citizenship upon an-activist-1.762192 news/canada/family-seeks-whereabouts-of-jailed-chinese-canadi ist. 113 Acesso em:28nov. 9. 2013.Article em: 112 Acesso em:28nov. 3. 2013.Article em: 111 detainee.ap/index.html 110 related charges. the procee and terrorist Throughout zen, heissubjecttoChineselaws. agreements.position they take The is that, as adualciti consular to subject not is case the viewpoint, Chinese the from citizenship.Thus, Canadian his recognize not do they that basis the on authorities Chinese by nied attempts to provideassistance consular have beende provisions,tance. Despite the foregoing however, all consular assis of providehearings and other forms judicial his attend to Celil, Mr. with meet to tempted Chinaprovides thePeople’s that: RepublicLaw of of

CBC Canada Chinese nationality law does not recognize dual na dual recognize not does law nationality Chinese According to reports, Mr. Celil was in Uzbekistan in within agitating been have Uighurs Chinese Some Mr. Celil was convicted in April 2007 of “splitism” of 2007 April in convicted was Celil Mr. at repeatedly have China in diplomats Canadian FAMILY seeks whereabouts of jailed chinese-canadian activ chinese-canadian jailed of whereabouts seeks FAMILY the People’s China. Disponível Nationality Law Republicof of the People’s China. Disponível Nationality Law Republicof of http://us.cnn.com/2007/WORLD/americas/07/10/canada. http://www.china.org.cn/english/LivinginChina/184710.htm http://www.china.org.cn/english/LivinginChina/184710.htm 111 ; further, as regards Chinese nationals adop nationals Chinese regards as further, ; , 28 Mar.28 Disponívelem: , 2008. shall automaticallyloseChinesenationality. hisown freewill nationality of acquired foreign has who hasbeen naturalized asaforeignnationalor and abroad settled has who national Chinese Any 110 Aes e: 6 o. 03 Te ril points article The 2013. nov. 26 em: Acesso . . (DEADLINK). 113 http://www.cbc.ca/ 112 ------. .

302 AREVALO-RAMIREZ, Walter; MACLEAN, Robert Joseph Blaise. Dual Nationality and International Law in times of Globalization. Challenges and Opportunities for Consular Assistance and Diplomatic Protection in recent cases. Revista de Direito Internacional, Brasília, v. 17, n. 2, p. 287-307, 2020 leagues escapefrom IrandisguisedasCanadians. theirUnitedStates col diplomats succeeded in helping anumber of Canadian students, Iranian by Teheran in Embassy States United the have been tense since 1979 when, during the occupation of 118 china em: the People’sand the China. GovernmentDisponível of Republic of 117 2013. govtrack.us/congress/bills/110/hres497/text 116 Mar. 2008.copyonfilewiththeauthor. 115 ic/6574517.stm. Acessoem:26nov. 2013. http://news.bbc.co.uk/2/hi/asia-pacifem: Disponível 2007. Apr. welfare. man’s Burlington on silent remains China 114 Foreign by stated was position China’s Nevertheless, so is services, position. thanthe Iranian mewhat more surprising consular offer to desire Canada’s of disregard its least at or Celil, Mr. of China’streatment Thus, services. consular to entitles those of definition does itexcludenationality nor the from dual nationals dual recognize not does China that document that thin each country. nationals of to services consular of provision the to relating China ties, there is a Consular Agreement between Canada par and are China and Canada both which to VCCR, the to addition in Secondly, government. Canadian the by China rather than returning him to Canada as requested to him extradited authorities Uzbek Uzbekistan; in was he apprehension; his of time the at China in not was reasons. First, he tionality is disturbing for a number of allow himtorejoin hisfamilyinCanada”. and (sic) Celil Huseyin citizen Canadian release diately imme should “[…] China that said which “resolution the House Representatives passed a “sense of House of behalf. Celil’s Mr. on efforts government Canadian further requesting matter the on Harper Stephen Minister Prime Canadian then quiries. en make to standing has one no and citizen Chinese a new locations was denied on the basis that Mr. Celil was his about information for request the MacLeod, Chris lawyer, Canadian Celil’sMr. to According is. he where to a new prison, and Chinese officials refuse to disclose moved been has mystery.He a are Celil’swhereabouts ding no Canadian diplomat was permitted to attend. Mr.

China’s non-recognition of Mr.Celil’s na Canadian China’sof non-recognition to letter a wrote (Canada) International Amnesty It is to be noted in this regard that Canada’sthat regard this in noted be to is It Iran with relations Canada CONSULAR BetweenAgreement the Government of H.Res 497 Passed. 2007. Disponível 17 Sept. em: 28 dated P.M. Harper to Stephen letter International Amnesty - Local - TheSpec.com sentence” Uighur at angry “Canada . Acessoem:26nov. 2013. http://travel.gc.ca/about/assistance/consular/framework/ 114 115 Inaddition,theUnitedStates 117 There isnomentionwi There . Acesso em: 26 nov.26 em: Acesso . 116 BBC News https://www. , 20 118 ------

curity crimes”. In a statement released after her return return her after released statement a In crimes”. curity “se of suspicion on beating) receivedfatal her Karemi was she and arrested sent to formally Evin Prison (where Zahra 2007 May 9 on but arrest house under kept crimes”. “security of suspicion on 2008 September until custody Iranian in being her to Teheran fromavisit to her motherled while returning nent” foreign policy think tanks. Washington’sWashington Post as oneof “most promi Institute nal for Scholars the Woodrow Wilson Internatio of East Programme Middle the of Director Iranian-American, an was 2006 5.1.3 HalehEsfandiari right tointerfere.” no has Canada and affair, internal an is Celil seyincan Hu of case “The Jianchao: Liu spokesman Ministry canadians-detained-in-china.html https://www.thestar.com/vancouver/2018/12/20/the-forgotten- China. in detained 124 id=1426&fuseaction=topics.item&news_id=285716 123 ment-dr-haleh-esfandiari-returns-home-0 wilsoncenter.org/article/after-months-uncertainty-and-imprison home. returns Esfandiari 122 AR2007050801276.html?nav=hcmodule washingtonpost.com/wp-dyn/content/article/2007/05/08/ arrest. 121 middle-east rest-tehran-haleh-esfandiari-director-the-woodrow-wilson-centers- 120 stm Disponível em: 119 cluding: in China in detention or arrest under westerners other 5.1.4 Others counsel. for 105 days, and denied visitors orcontact with legal confinement solitary in kept was she polite, were lers to the United States, she indicated that although herjai See:

. Acessoem:10abr. 2019. nte xml sta fHaleh Esfandiari Another who example in is that of There are approximately 200 Canadian citizens and citizens Canadian 200 approximately are There RUR Pri; HU Jan. h ‘ogte’ Canadians ‘forgotten’ The Joanna. CHIU, Perrin; GRAUER, Haleh Dr. imprisonment and uncertainty of months AFTER house long after scholar american iranian jails TEHRAN See: sentence. Uighur at angry CANADA http://www.wilsoncenter.org/index.cfm?topic_ Washington Post 123 . Acessoem:26nov. 2013. http://www.wilsoncenter.org/article/statement-the-ar • http://news.bbc.co.uk/2/hi/asia-pacific/6574517. in Beijing2017. arrested Canadian Chinese-born a Qian Sun The Toronto Star 119 9 a 20. ipnvl em: Disponível 2007. May 9 , Wilson Centre Wilson 120 . whichwas the described in , 20 Dec. 2018. Disponível em: Disponível 2018. Dec. 20 , . Disponível em: 124 121 . Acessoem:26nov. 2013. . Acesso em: 26 nov. 2013. Her sudden arrest in Hersudden arrest 122

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303 AREVALO-RAMIREZ, Walter; MACLEAN, Robert Joseph Blaise. Dual Nationality and International Law in times of Globalization. Challenges and Opportunities for Consular Assistance and Diplomatic Protection in recent cases. Revista de Direito Internacional, Brasília, v. 17, n. 2, p. 287-307, 2020 held-by-china-raise-stakes-for-trudeau-government.html thestar.com/politics/federal/2018/12/20/hundreds-of-canadians- ment. Trudeau’sfor stakes the govern raises China by held Canadians of custody.See: Chinese in held 128 detained-china-huawei-explainer/ em: cal feud so far. 127 canadians-detained-in-china.html https://www.thestar.com/vancouver/2018/12/20/the-forgotten- China. in detained 126 canadians-detained-in-china.html https://www.thestar.com/vancouver/2018/12/20/the-forgotten- China. in detained 125 provisions people’s may place certain in doubt. liberty these of application VCCR,the the of provisions clear thenewnationality. state of the non-recognition by the birth citizens as aresult of new nationality was unableto assist their the state of eachcase in and authorities the with difficulties legal their eachbirth, into had or run another) in the state of nationality or nationalities, each had ended up (one way new a adopted had them of eachThus, Canada. to not valid question as to why he was extradited to China and his He apprehension. was inUzbekistan and there is a of time the at China in not was Celil Mr. that fact the is course, of troubling, nationality.More Canadian ted adop his recognize not did it Celil, Mr. of case the in it isunclearwhy, dual nationalityand the recognitionof for mechanism a has paper, on China, above noted As the subject. not recognizedthe adopted nationality of and other similar ones these cases, prisoners. commonelement in allof The

Nonetheless, it is abundantly clear that, despite the These are just China, and do not include Iranian held According to the TorontoCanadians the 200 to least According at are there Star politi the who’sof a who justice: Chinese and CANADIANS Canadians ‘forgotten’ The Joanna. CHIU, Perrin; GRAUER, Canadians ‘forgotten’ The Joanna. CHIU, Perrin; GRAUER, The Toronto Star https://www.theglobeandmail.com/world/article-canadians- • • • The Globe andMail but whosewhereaboutsareunknown. who was diplomat taken intocustody former and novelist Australian an Henjun, Yang China. to removed and wheelchair by hotel Kong Canadian taken fromaHong reportedly billionaire Chinese-born a Jianhua, Xian tax- on related charges. held being BC Richmond from owner winery Taiwan-born a Chang, John The Toronto Star The Toronto Star , 20Dec. 2019. Disponível em: 126 128 MACCHARLES , is that the state of birth has birth , is that the state of , Toronto, 15 Jan. 2019. Disponível . . . , 20 Dec. 2018. Disponível em: Disponível 2018. Dec. 20 , em: Disponível 2018. Dec. 20 , 125 , Tonda https://www. . ‘Hundreds’ . 127 - - - as well. law,customary and so China and Iran are bound by that international the body of of Protection is alsoapart Disputes, having acceded on 5 June 1975. of Settlement Compulsory the Concerning VCCR the to Protocol Optional the to party a also is China, not law. international verned by customary go be to continue VCCR the by addressed expressly otherstates. Indeed, those matters not of to nationals assistance consular allow to bound are Iran and China law, international both customary of codification a red 5.2 thisambiguity. possesses ameansfortheresolutionof Law question to beasked The is whether International da is not a party andtheUnited Stateshaswithdrawn fromit. da isnotaparty supra note54 at: 131 130 ParticipationStatus.aspx Disponível em: Secretary-General. the with deposited treaties Multilateral See: 1979. July 2 on VCCR 129 Chi and Iran of failure the by that exists argument strong a then level, law international an at nationality” “effective remedies applied. necessary, nal law perspectiveand, if can be determined law, then that individual’sof rights from aninternatio fact and not which woulddetermined, be a question of is individual the of nationality effective the Once sis. ba nationality” “effective an upon assessed creasingly plane.it operates onthe international be obliged to apply the international law definition when nationality fordefinitions of municipal purposes, it must ses. astate hasthe sovereign While right to apply its own purpo law international for “nationality” define and ne equivalent how itwill determi competence to determine the to itself law reserves it isalsoclear that international national purposes, their own “nationality”, definitions of law purposes. it isclear that states may While adopt, for nationality may be inadequate for international nition of

s ate t te VCCR the to parties As So in the cases noted above, if “nationality” means means “nationality” if above, noted cases the in So in is “nationality” purposes, law international For owndefi its of state byclear,a application is the As “Multilateral treaties Deposited With the Secretary-General”, Secretary-General”, the With Deposited treaties “Multilateral VCCR supra,note2,openingaverments. the to acceded China 2975; June 5 on VCCR the ratified Iran settlement nationality ininternational dispute Analysis: thecontinuing ofeffective impact http://untreaty.un.org/ilc/texts/getter.asp . Acessoem:26nov. 2013. 129 , which isalsoconside http://treaties.un.org/Pages/ 130 131 Iran,though Diplomatic . Cana . ------

304 AREVALO-RAMIREZ, Walter; MACLEAN, Robert Joseph Blaise. Dual Nationality and International Law in times of Globalization. Challenges and Opportunities for Consular Assistance and Diplomatic Protection in recent cases. Revista de Direito Internacional, Brasília, v. 17, n. 2, p. 287-307, 2020 nov. 2013. pol_ava_canada-solicita-visi_09A3718813.shtml Disponível em: tion that Venezuela has denied access. See: provide consular assistance on hisbehalf. To date there is no indica Colombia-Canadian national and, accordingly, Canada has sought to dual a is Cossio espionage. of suspicion to relation in 2010 April in Luis Carlos Cossio is an example. Cossio was detained by Venezuela in which recent case of he/she is not anational.The in acountry 132 pose hazards. As Mr. Celil discovered, neither his Cana may their birth, with close connections with the land of to states or theirbirth, visit to the land of a return Thus tionality, theirnewnationalitymay notberecognized. na the birth divestment of permits dual nationalitynor which neither recognizes apersonhasleft a country If their new nation’s this may not bethe case.theirs or of of fault no through Yetcitizens. fellow their of tions nationality, they expect to haveprotec the rights and mism andhope. Itislikely that, oncethey havenew a opti in anew land, undoubtedly do sowith a sense of anew beginning them, with the chance of majority of 6 Conclusions andrecommendations ms tribunal,butthatisthesubjectforanotherpaper. Clai States Iran-United the before cases individual the Tests in are suggested with which state such anindividual hadthe closest links. the individual inquestion to assess life and situation of the wouldhaveexamine tribunal to A fact. of question consular assistance is sought. Ultimately this becomes a Diplomatic Protection is claimedasaremedy when and dual nationality when apply this standard incases of the victim. the dualnationality of on the mere basisof fail not law.should violation a such from arising claim Any have violated another nationality based right at international Mr.Mr.to Kovrig and may tanceSpavor, this example, for China has effectively denied consular assis tion. Further, if Diplomatic Protec of claims under the rubric of assertion dualnationals may create openings forthe mistreatment of law,nationality-based remedies under international then effective Put another way, nationality isthe standard for if others they may have law obligations. violated their international and Zaghari-Ratcliffe Ms Celil, Mr. Kazemi, Ms. na to recognize, domestically, the adopted nationalities of

When individualsWhen adopt anew nationality the vast law should context, international Within that legal The problem does notarisewhenis detained the problem dual national The http://calidaddevida.eluniversal.com/2010/04/09/ Nottebohm adi ubro andinanumber of El Universal, Aes e: 27 em: Acesso . 9 Apr. 2010. 132 ------

following precautions: prevent hisending inaChineseprison. his presence nationality nor in Uzbekistan,didnot dian Brunswick LawJournal canadiansabroad. for diplomatic protection of 134 ler.gov.au/tips/dualnat.html#whats See: tion todualnationalsviathe Internet. 133 ply toconsularassistance. citizen. Canadian a of which states refuse to acknowledge the dual nationality all cases diplomaticprotectionin in toassert obligation legal a to subject be should government Canadian the context, Canadian the within that, written has Ottawa of University the of Forcese, theirna Craig citizens. of tionalized detriment the to field this in obligations some countries to ignore their international to permit they are going must decide if immigrants numbers of tional component to “nationality”. States receiving large affairs,in their internal it is clear that there is an interna sues. resist perceived states generally While interference level to betaken atthe to clarifysuchinternational is assist. to their new government limitations on the ability of homelands,face in travelingthe and totheirformer them may the risks some of advise their new citizens of havearguably many dualnationals onus an tocarefully andhavelia andothers, many immigrants who accept

Individuals whotake dualnationalityshouldtake the More delicate is the issue of the steps, which ought whichsteps, the of issue the is delicate More Austra States, United the Canada, as such States, FORCESE, Craig. The obligation to protect: the legal context legal the protect: to obligation The Craig.FORCESE, informa provides example, for Government, Australian The 133 h vn faproblem you need to besure that the the event of In etc). emails numbers, (phone information contact your trip, including they have of adetailed itinerary sure Make embassy. your with immediately register nationality and you do travel homeland, to your former (iii) at Foreignyour Relations,Ministry of or equivalent. out this find Youcan necessary? if nationality new allow it will consular assistance to be provided by the state of not If nationality? dual recognize it nationality vis-à-vis yournation. Does original (ii) in nationality isthenewlyadoptedone. assist will things these establishing thatyoureffectiveand dominant of all taxes; pay bank and Open nationality. of accounts, buy a house, maintainsteady employment state new the with (i) embassy can find you ora contact person.

If your birth state does not recognize dual dual recognize not does state birth your If new your of status legal the of aware Be connections strong develop you that ensure , v. 57,p. 102,2007. 134 Logically, the same should ap . http://www.smartravel nvriyo New of University ------

305 AREVALO-RAMIREZ, Walter; MACLEAN, Robert Joseph Blaise. Dual Nationality and International Law in times of Globalization. Challenges and Opportunities for Consular Assistance and Diplomatic Protection in recent cases. Revista de Direito Internacional, Brasília, v. 17, n. 2, p. 287-307, 2020 ETE, ae. ujcs r iies A oe on Note A Citizens? or Subjects James. KETTNER, Nijhoff, 2019. Doni H. Christian KÄLIN, 2007. ad. canadians abro context for diplomaticprotection of legal the protect: to obligation The Craig. FORCESE, Doc. A/55/10. U.N.Law(2000) Commission International the of sion 52 the of Report The in published and Report”) UN Doc. A/CN. 4/506 R. DUGARD,John Geo. Wash. Int’l L.Rev, rent relevance to investor-state investment disputes. of-claims principle: its historical development and cur continuous-nationality- S.The Matthew DUCHESNE, Doc. A/CN.4/83, para.8. CÓRDOVA, Roberto. ed. Oxford:OxfordUniversity Press, 2003. Ian. BROWNLIE, 370, 2017. Internacional de Derecho Colombiano étrangers d’investissements matière en tieuses AUDIT, Mathias. La coexistence de procédures conten owed totheirnewest citizens. and to prevent anarchy. It would alsoseem to be a duty treaties because there is a need to uphold international their own nationality. Itisaduty they owe themselves tional law as well purposes asto defend the meaning of toclarifytheissue interna for take necessary steps all law, then arguably the state nationalizing has aduty to international those actions arguably areinviolationof otherstates if and from by the actions of be derogated citizenship are to of grants as theirfellow citizens. If plane nable expectation that they the are onsame legal humanrightstribunals.international tions at the International Law Commission and in other interven include could Justice, of Court International Once granted nationality, granted havereaso Once citizens a new Such steps, thoughpossiblyincluding actions at the nvriyo NewBrunswick Journal Law of University : Ius Doni in International Law Law.and EU : IusDoniinInternational Brill Principles of public international law. public international Principles of References First Report on Diplomatic Protection. onDiplomaticProtection. First Report v. 36,p. 783,2004. Key Contours of Citizenship and Ius and Citizenship of Key Contours Report onMultiple Nationality. Report , 7 Mar. 2000. (hereinafter “First (ACDI),v. p.333- 10, , v. 57, n. 102, .

Anuario nd U.N. Ses 6. ------ALA, . . lie Feh a fo od fields: old from hay Fresh Blaise. J. R. MACLEAN, Iran claims. the foreign claims settlement commission: dence of LILLICH, Richard B.; BEDERMAN, David J. Jurispru CN.4/62/Add 2,para.74. Iran. the Islamic Republic of Expression. and Opinion of dom Free to Right the on High Rights Human U.N.on Commission Rapporteur. Special Ambeyi. LIGABO, tion. protec diplomatic and F.Nationality I. Guy LEIGH, Law Review, perspective. legal and supranational international citizenship by investment in market control: the sale of and state beyond links GenuineB. KRAKAT,Michael Independence. British Views Respecting the Legal American Effects of vista de Direito Internacional vista de Direito do critério jus sanguinis nos casos de adoção internacional do aplicação de hipóteses das ampliação nacionalidade comodireito humano:danecessária Da Vasconcelos. de Pereira Mayara Hitala PEREIRA, Brasilia, v. 16,n.2,p. 225-242,2019. regras, velhos problemas novas Nacionalidade: Faria. Henrique Paulo NUNES, 316, 2003/2004. law ternational MUCHMORE, Adam I. Passports and nationality in in 1985/1986. ap proach to dual nationality new A Patricia. MCGARVEY-ROSENDAHL, Geo. Imm.L.J democratizing globe: between rejection and embrace a for nationality dual on rules New David. MARTIN, Vniversitas rights?. human of protection diplomatic for case radar: the under an dispute: border Colombia-Venezuela the resident nationals during colombian expulsionof The MACLEAN, Robert Joseph-Blaise; AREVALO, Walter. rio: Ed.Universidad delRosario, 2006.p. 230-246. liberr amicorum en homenaje a Cavelier.Germán Rosa temporáneo: (ed.). Abello GALVIS,Ricardo diplomaticprotection. the continuing usefulness of Int’l andComp. L.Q, , v. 68,n.138,2019. lo público, loprivado, losderechos humanos: v. 30,p. 145,2018. AJIL ., v. 14,n.1,1999/2000. . Va. L.Rev

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307 AREVALO-RAMIREZ, Walter; MACLEAN, Robert Joseph Blaise. Dual Nationality and International Law in times of Globalization. Challenges and Opportunities for Consular Assistance and Diplomatic Protection in recent cases. Revista de Direito Internacional, Brasília, v. 17, n. 2, p. 287-307, 2020 Para publicar na Revista de Direito Internacional, acesse o endereço eletrônico www.rdi.uniceub.br ou www.brazilianjournal.org. Observe as normas de publicação, para facilitar e agilizar o trabalho de edição.