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saerTaSoriso samarTlis Jurnali, #1, 2008 JOURNAL OF INTERNATIONAL LAW, N1, 2008
tant role in further decision making process in
relations to dual nationality, for instance numerous
decisions were made by Italian-American
Tribunal as well as by Iran-American Tribunal
under the principle of effective nationality.
64 In A/18 case Iran-American Tribunal,
relying on decisions on Mergi and Nottebohm
cases, established that issue of dual nationality
should be solved according to particular
circumstances of each case by defining effective
nationality of a citizen. 65 The principle of
effective nationality was frequently used in
future by the Tribunal, among them, in one of
the cases the Tribunal declared that in present
case the theory of effective nationality was the
way of solution which was mostly in conformity
with the principles of public international
xlaw. 66
Thus, as we see the contemporary international
law practice aims at making exception
from the oldest doctrine on "exclusion of
responsibility". Furthermore, the International
Law Commission included these exceptions
also in draft Articles. In accordance with Article
7 "a State of nationality may exercise diplomatic
protection in respect of a person
against a State of which that person is also a
national unless the nationality of the former
State is predominant, both at the date of injury
and at the date of the official presentation
of the claim". 67 It is obvious that, apart from
effective nationality necessary requirement is
to establish dominant bond of nationality at
the date of injury and at the date of the official
presentation of the claim. 68 Numerous factors
may be taken into consideration while determining
effective nationality. As it was mentioned
in one of the cases by French-German
mixed Tribunal, a person shall be considered
as a national of that country to which he/she
has not only legal but factual bond as well. 69
This may include the living period in the country,
date of acquiring nationality, place of education,
language of education, employment
and financial interests, place of family life, family
ties in the State, participation in social and
public life, taxation, bank accounts, insurance,
visits in other State of nationality, possession
and use of passport, military service, etc. 70 In
order to establish effective tie Permanent
Court of Arbitration in "Canevaro" case took
into consideration the fact that the person was
standing for candidacy of the Senate of Peru
and later agreed to become honorary consul
of Peru in the Kingdom of Netherlands. 71 However
it shall be mentioned that none of the
abovementioned factors is decisive and the
weight and importance attributed to each factor
will vary according to the circumstances of
each case. 72
3.3. Principle of "Continuous Nationality"
Second problem concerning the nationality
is the principle of "continuous nationality".
The core of the principle is that only nationality
tie between the State and a person is not
enough to legitimate exercise of diplomatic
protection by the State, but a person shall be
a national of a State both for the moment of
committing crime and particular stage of legal
proceedings. One of the aims of this rule is to
avoid delivering the right of initiating dispute
by the nationals of small States to big States. 73
According to opinions of highly qualified
scholars of international law the States give
the obligatory nature the rule that nationality
tie must exist both for the moment of injury
and particular stage. Ian Brownlie noted that,
there is no agreement on the second part of
this rule; in particular, how long the continuity
of nationality must last. 74 There are several
approaches regarding this issue, in particular,
a phase, up to which the continuous nationality
principle must be protected is different:
initiation of diplomatic negotiations, filing
of the claim, signature, ratification or entry into
force of the agreement referring the dispute
to arbitration, conclusion of the oral hearing,
delivery of judgment and execution of award,
etc. 75 In the opinion of Feller and Oppenheim,
following the practice of States, more acceptable
for States is to retain nationality until the
official presentation of the claim. 76 Though, it
shall be mentioned that several years ago in
2003 International Center for Settlement of Investment
Disputes (ICSID) arbitral tribunal in
its decision declared that continuity of nationality
must last until the final judgment of the
Court. 77
As we see the abovementioned provision
is one more restricting factor for exercising of
diplomatic protection. In addition if we take into
consideration that a national has to attempt
to resolve a dispute by internal remedies, further
to wait for the decision of the State to exercise
diplomatic protection on his/her behalf,
initiation of the dispute and conclusion of a
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