Atractivos socioculturales de la ciudad.
MUNICIPIO SANTA CLARA Ciudad de Santa Clara.
As former Vice-President Reding underlined, a Member State should grant citizenship on the basis that there is a link or connection between an individual and a state, such as the individual’s political or societal participation in the polity and attachment to the country. Furthermore, the importance of prior attachment and a certain connection in the context of nationality has been highlighted by the ICJ, especially in Nottebohm.16
Nottebohm who had resided in Guatemala from 1905 to 1943 gave up his German
13 Džankić, 2015, supra note 2, p. 8.
14 P. Cooke, ‘Austria Denies Having Citizenship by investment programme’, Times of Malta, 2014. 15 According to Austria, Art.10 (6) of the Austrian Citizenship Act (BGBl. No. 329/1985) has not been
invoked for granting citizenship for years.
Article 10 (6) states prior residence will not be acquired “if the Federal Government confirms that the granting of nationality is in the particular interests of the Republic by reason of the alien’s actual or expected outstanding achievements.”
16Nottebohm Case (Liechtenstein v. Guatemala); Second Phase, International Court of Justice (ICJ),
120 nationality, and applied for Liechtenstein (which he visited a few times) citizenship in 1939, in order to avoid a sanction as a German citizen since Guatemala and Germany had a hostile relation due to the Second World War. He did so notwithstanding that he had a chance to become a citizen of Guatemala, but never applied for Guatemala citizenship. After being granted Liechtenstein citizenship, he visited Guatemala. However, he was denied entry and had his possessions confiscated because the authority determined that the naturalisation process was not legitimate, thereby considering Nottebohm a German. The Liechtenstein government provided diplomatic protection to Nottebohm since the confiscation was regarded as unjust treatment by submitting a claim to the ICJ. In response to the claim, the Guatemala government insisted that Nottebohm’s naturalisation did not occur in accordance with international principles on nationality. While the ICJ in its judgement recognised the prerogative for every state to implement its own legislation on nationality, the court agreed with Guatemala that the naturalisation process must comply with international principles.17 While this notion has been widely accepted and confirmed in international tribunals as well as in the literature of citizenship and been operationalised in legal frameworks of most countries, the determination of the effectiveness of nationality based on the genuine link test has room for criticisms. The dissenting opinions of Judges Klaestad, Read and Guggenheim of Nottebohm questioned the validity of the link theory/the test of effective connection. In particular, Judge Read criticised the notion of genuine link for its vagueness and subjectivity, which could allow states to have more discretionary power in the process of naturalisation, advocating objective tests for naturalisation for increased certainty.18 Judge Guggenheim also noted that international law does not contain any rule on “the effectiveness of nationality depending on a bond between the naturalising state and the naturalised individual.”19 He further pointed out that the permanent residence could create more rights and duties of an individual to the state of his permanent residence than those to the state of which he is a national,20 which attests to a close link between the state and the individual. This dimension of
17 Even in the Nottebohm case, despite that the diplomatic protection claimed by Lichtenstein was not
upheld, the nationality of Lichtenstein was recognised since it is the state’s prerogative to determine who can obtain its citizenship.
18Nottebohm Case, supra note 14, Dissenting Opinion of Judge Read p. 46. 19 Ibid, Dissenting Opinion of M. Guggenheim, Judge “Ad hoc”, p. 57. 20 Ibid.
121 citizenship thus leads to questioning the applicability of the genuine link test in the process of naturalisation.
Frequently, citizenship-by-investment schemes are compared to fast-track citizenship opportunities for talented people, such as Olympians, given that they do not require prior residence. Conversely, it is also argued that citizenship-by-investment schemes are fundamentally different from the conferral of citizenship on sports players. There is an expectation that sports players granted expedited citizenship should be loyal to the conferring state since the main reason for conferring the citizenship was to earn the state a global reputation. According to Jelena Džankić,21 the naturalised citizen having a sports talent can quickly win the state a collective pride flying its national flag. Hence, a bond with other citizens which replaces a prior residence requirement for solidarity. On the contrary, the contribution of an investor does not trigger solidarity or a social bond in the same manner. Thus, lack of solidarity, where naturalised investors face difficulty in operating their business and generating profits in the country, can result in disavowal, instead of continued, citizenship, their citizenship. It could be argued that requiring an investor to invest €150,000 in stocks or bonds, in the Maltese case may cause a future connection in a longer term. Yet, the connection is only based on economic profits, devoid of the ability to display allegiance and continue the connection. Therefore, the citizenship-by-investment scheme is highly controversial regarding the connection between an applicant and the county in question. Since the essential purpose of the citizenship-by-investment scheme is attracting economic resources into the country, whereby the investors who apply for citizenship are expected to make an economic contribution in the country by donation or investment at present and in the future, the type of allegiance or connection expected for the investors differs from other naturalised citizens or citizens by birth.
Despite the difference between the two fast-track citizenship schemes, both types of citizenship schemes have some commonality in that both lack a prior attachment. The reason why a sports player chooses another nationality is not that the player is attached to the particular country; but because the player can benefit from citizenship rights such as economic incentives or a better sports environment. Moreover, even if sports
21 J. Džankić, ‘Citizenship with a Price Tag: The Law and Ethics of Investor Citizenship
122 players may have renounced their previous citizenship, it does not mean that the “genuine” connection with the state whose citizenship is given up has been eliminated. Accordingly, where the legitimacy of citizenship-by-investment schemes is questioned, for lack of prior attachment or the difficulty to create a bond in society, it is inevitable to question the legitimacy of fast-track citizenship programmes for sports players.
By the same token, if the legitimacy of citizenship should be solely determined on the existence of a genuine link, it is inevitable to challenge citizenship of those who emigrated after being born in a country, whilst retaining their citizenship that country, since a country of origin does not effectively prove a genuine link. Notwithstanding, the idea that physical presence can bring about a particular link with the country to some extent cannot be questioned. Džankić highlighted that the duration of residency in the state transforms the “stockholder citizen” into a true stakeholder in the polity.22
Many scholars of citizenship have also emphasised the importance of physical existence.23 This is because the interaction during the presence in the polity enables an individual to act as a political equal, irrespective of economic class. However, given that a certain period of residence in a polity makes an individual a true stakeholder, when the person leaves the country and stays in another polity for a similar duration, the status of true stakeholder will be downgraded to a stockholder citizen again even if the person has not lost the “link” or connection with the country of origin. That is why, in a globalised world, the concern remains regarding how meaningful the history of physical presence can be. Although social assimilation of individuals into society is imperative and a prior attachment can help such assimilation; however, a prior attachment alone should not necessarily be determinative because a prior attachment can stem from various reasons such as parents or spouse, rather than participation in the society. In that sense, the notion of a prior attachment should not be used to oppose citizenship-by-investment schemes since every person creates a bond with particular society in a different way.
22 Ibid; the paper referred to Bauböck’s ‘stakeholder principle’ from R. Bauböck, ‘Stakeholder
Citizenship and Transnational Political Participation: A Normative Evaluation of External Voting’, Fordham Law Review, vol. 75, 2006.
23 P. Ochoa, ‘What Money Can’t Buy: Face-Face Cooperation and Local Democratic Life’, in A.
Shachar and R. Bauböck (eds.), Should Citizenship be for Sale? EUI RSCAS, no. 2014/01, 2014, p. 24.
123 Besides, depending on the country, the level of allegiance and attachment required for citizenship varies. For example, some countries permit dual or plural citizenship whereas other countries illegalise dual citizenship, i.e. a more exclusive approach to nationality. In granting citizenship, each country requires a different period of residence in the polity for regular applications although the prior residence requirement can be alleviated or even waived through expedited programmes or citizenship-by-investment programmes. This signifies that the understanding of a sufficient link between an individual and a state for the sake of citizenship varies by country. Further, the main reason why the meaning of a genuine link should be questioned is that scholars might have taken for granted the traditional understanding of a genuine link that is subject to adaptation and evolution as borders between countries have been blurred. By the time the concepts of dual citizenship, cosmopolitanism and transnationalism are recognised,24 the meaning of commitment or allegiance does not exclusively indicate the traditional notion of loyalty which is isolated and exclusive from other countries.
Stephen Hall suggests that conferral of nationality on a person without a genuine link to the state is not consistent with international rules on citizenship since the person’s interest could be ‘ephemeral or abusive’,25 which eventually violates the rules
enunciated in Nottebohm. While Hall highlights the importance of a genuine link in case of granting citizenship, according to Elspeth Guild, the notion of genuine link can be misused in order for a state to exclude certain groups of people from its citizens, i.e. violating non-discrimination rules, by applying standards such as social ties or assimilation tests based on culturally driven factors.26 Thus, emphasising the genuine link can lead to nationalism which again leads to a discriminatory approach in implementing naturalisation regulations.
24 P. Spiro, ‘Dual Citizenship as Human Rights’, International Journal of Constitutional Law, vol. 8,
no. 1, 2010.
25 S. Hall, Nationality, Migration Rights and Citizenship of the Union, Dordrecht: Martinus Nijhoff
Publishers, 1995.
26 E. Guild, The Legal Elements of European Identity: EU Citizenship and Migration Law, The
124 Magni Berton argues that those who invest in the future of the state are entitled to citizenship27 since an investment-based interest is sufficiently significant. Rainer
Bauböck criticises this idea because it can amount to arguing that a global investor is entitled to any types of citizenship since he/she invests the world over. He also argues that the idea undermines the value of citizenship by highlighting “the equal status of all members of a polity.”28 Bauböck noted that self-interested and impersonal
motivations, with a lack of solidarity and humanitarian commitment which can be created, during the period of residency, in every likelihood, will give rise to fragmentation within society. The residence in the country does not only indicate the physical presence in the society but also implies that an individual develops its “sense of belonging to community” “with inclusion in society and politics.”29 However, that argument precludes the possibility that an investor granted citizenship under the scheme will not belong to the community societally and emotionally in the future. Individuals applying for such a programme can look for a place which can provide a better quality of life with advanced infrastructure and education for their family. Such applicants are willing to be assimilated into society. This emphasises prior residency, but “a genuine link” could lead to excluding the possibility of building a future connection and solidarity in society. Due to the possibility of social fragmentation caused by a group of people who have difficulty in settling in a country and, of other illicit financial activities, such programmes constantly call for governmental scrutiny on applicant’s background and for a device for new settlers to be able to establish solidarity between them and the country concerned.