The legal fiction of a genuine link as a requirement for the grant of nationality to ships and humans - the triumph of formality over substance?

Abstract

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