US (ALEXANDER TELLECH) v AUSTRIA AND HUNGARY
Tripartite Claims Commission; May 25, 1928.
FACTS:
This claim is put forward by the United States on behalf of Alexander Tellech for compensation for time lost and for alleged suffering and privation to which he was subjected, first through internment in Austria, and then through enforced military service in the Austro-Hungarian army.
The claimant was born in the United States of Austrian parents on May 14, 1895. Under the Constitution and laws of the United States he was bv birth an American national. Under the laws of Austria he also possessed Austrian nationality by parentage. This created a conflict in citizenship, frequently described as "dual nationality". When the claimant was five years of age he accompanied his parents to Austria, where he continued to reside. In August, 1914, the claimant, while residing in Austria a short distance from the Russian border, was subjected to preventive arrest as an agitator engaged in propaganda in favor of Russia. After investigation he was interned and confined in internment camps for 16 months. He then took the oath of allegiance to the Emperor of Austria and King of Hungary and was impressed into service in the Austro-Hungarian army. A decision of the sharply controverted claim that this oath was taken under duress and that he protested that he was an American citizen is not necessary to a disposition of this case. It appears that in 1915 and later representatives of the Government of the United States in Austria interested themselves in securing his release, but the application was denied. In July, 1916, the claimant deserted from the Austro-Hungarian army and escaped into Russia, where he was arrested and held by the Russian army authorities as a prisoner of war until the outbreak of the Kerensky revolution, when he was released and thereupon returned to Prague, where he still lives and where he is practicing medicine. The action taken by the Austrian civil authorities in the exercise of their police powers and by the Austro-Hungarian military authorities, of which complaint is made, was taken in Austria, where claimant was voluntarily residing, against claimant as an Austrian citizen.
ISSUE: Does the law of Austria apply despite the dual citizenship of Alexander Tellech?
RULING: YES. His arrest in August, 1914, of claimant, a national of Austria and United States, residing in Austria, as an agitator, followed by his internment and his being impressed into service in Austro-Hungarian army. Held that claim for compensation for lost time, suffering and privation falls outside terms of the Treaty of Vienna. Citizenship is determined by rules prescribed by municipal law. Under the law of Austria, to which claimant had voluntarily subjected himself, he was an Austrian citizen. The Austrian and the Austro-Hungarian authorities were well within their rights in dealing with him as such. Possessing as he did dual nationality, he voluntarily took the risk of residing in Austrian territory and subjecting himself to the duties and obligations of an Austrian citizen arising under the municipal laws of Austria. Assuming that the claimant suffered the loss and injury alleged and had not lost his American citizenship by taking the Austrian Army oath, the Commissioner finds no provision of the Treaty of Vienna or of Budapest obligating Austria and/or Hungary to make compensation therefor. Wherefore the Commission decrees that under the Treaty of Vienna and the Treaty of Budapest the Government of Austria and the Government of Hungary are not obligated to pay to the Government of the United States any amount on behalf of the claimant herein.
Canevaro Case
PCA; 3 May 1912
FACTS:
Raphael Canevaro has on several occasions conducted himself as a Peruvian citizen, both by standing as a candidate for the Senate, where none are admitted except Peruvian citizens and where he went on to defend his election, and also especially in accepting the office of Consul General of the Netherlands, after having solicited the authorization of the Peruvian Government and then of the Peruvian Congress.
The firm of José Canevaro & Sons was a Peruvian company which held payment drafts in the amount of 77,000 pounds sterling, issued by the Peruvian government in December 1880 in order to settle a previous debt to this firm. These drafts were not paid at the date fixed for payment.
In 1889 Peru enacted legislation concerning the settlement of its domestic debt, which provided that the debt would be paid in the form of bonds bearing interest at the rate of one per cent. In reliance on this law, Peru refused the full payment of the Canevaro firm’s claim. The Canevaro firm transferred the payment drafts to two of the heirs of José Canevaro, who were Italian nationals, who in turn sought payment.
Italy and Peru agreed to submit to arbitration the questions of this case.
ISSUE:
1. Did the Canevaro Brothers have the right to demand the total of the amount claimed and was the Peruvian government obligated to pay in cash or in accordance with the 1889 legislation?
2. Did Rafael Canevaro have the right to be considered as an Italian claimant?
RULING:
1. NO. Rafael Canevaro, was Italian jus sanguinis and Peruvian jus soli. The tribunal held (1912) that “Peru has a right… to deny his status as an Italian claimant” because “as a matter of fact, Rafael Canevaro has on several occasions acted as a Peruvian citizen” by running as a candidate for the Peruvian Senate and defending his election thereto and by securing the authorization of the Peruvian Government and Congress for his acceptance of the office of Consul General of the Netherlands.
2. NO. Whereas, according to Peruvian Legislation (34 of the Constitution), Rafael Canevaro is a Peruvian by birth because born on Peruvian Territory, and, whereas, on the other hand, according to Italian legislation (Article 44 of the Civil Code) he is of Italian nationality because born of an Italian father; whereas, as a matter of fact, Rafael Canevaro had on several occasions acted as a Peruvian citizen, both by running as a candidate for the Senate, where non are admitted except Peruvian citizens and where he succeeded in defending his election, and, particularly, by accepting the office of Consul-General for the Netherlands, after having secured the authorization of both the Peruvian Government and the Peruvian Congress; under these circumstances, whatever Rafael Canevaro’s status as a national may be in Italy, the Government of Peru has a right to consider him a Peruvian citizen and deny his status as an Italian claimant.
The Nottebohm Case
ICJ Reports; April 6, 1955
FACTS:
Friedrich Nottebohm was born in Hamburg, Germany, and was a German citizen, although he moved to Guatemala in 1903, and conducted a business in trade, banking and plantations with his brothers, but never became a citizen of Guatemala.
In 1939, he applied to become a citizen of Liechtenstein. His application was approved and he became a citizen, even though a requirement was that he be in residence there for at least 3 years, but there was an exception and he became a citizen of Liechtenstein. When he tried to re-enter Guatemala in 1943, he was refused entry. Liechtenstein offered Nottebohm protection against the government of Guatemala and sued Guatemala in the International Court of Justice. However, the government of Guatemala argued that Nottebohm did not gain Liechtenstein citizenship for the purposes of international law.
ISSUE: Is the conferment of the Lichtenstein citizenship contrary to international law?
RULING: NO. The court agreed with Guatemala and held that claims by Lichtenstein were inadmissible. Although the Court stated that it is the sovereign right of all states to determine its own citizens and criteria for becoming one in municipal law, such a process would have to be scrutinized on the international plain in questions of diplomatic protection. The Court upheld the principle of effective nationality, where the national must prove a meaningful connection to the state in question. This principle was previously applied only in cases of dual nationality to determine which nationality should be used in a given case. However, Nottebohm had forfeited his German nationality and thus only had the nationality of Liechtenstein.
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