International Law_边永民编著_9787566304704

《国际法（英文版）（第2版）》编选的案例具有很强的多样性。首先案件的裁决机构十分广泛：本书收集了多个国际性司法机构的案例，诸如国际法院、国际常设仲裁法院、欧洲人权法院、海洋法法庭、审判前南斯拉夫战犯刑事法庭和临时仲裁庭裁决的案例。编者希望在向读者介绍案例的同时，也让读者有机会了解这些解决纠纷的国际机构，了解这些机构为和平解决国际争端、维护国际法和正义所作的贡献。

    These being the facts： the Court considered whether the naturalization thus granted could be validly invoked against Guatemala， whether it bestowed upon Liechtenstein a sufficient title to exercise protection in respect of Nottebohm as against Guatemala and therefore entitled it to seise the Court of a claim relating to him. The Court did not propose to go beyond the limited scope of this question. In order to establish that the Application must be held admissible， Liechtenstein argued that Guatemala had formerly recognized the naturalization which it now challenged. Examining Guatemala's attitude to wards Nottebohm since his naturalization， the Court considered that Guatemala had not recognized Liechtenstein's title to exercise protection in respect to Nottebohm. It then considered whether the granting of nationality by Liechtenstein directly entailed an obligation on the part of Guatemala to recognize its effect， in other words， whether that unilateral act by Liechtenstein was one which could be relied upon against Guatemala in regard to the exercise of protection. The Court dealt with this question without considering that of the validity of Nottebohm's naturalization according to the Law of Liechtenstein.
    Nationality is within the domestic jurisdiction of the State， which settles， by its own legislation. the rules relating to the acquisition of its nationality. But the issue which the Court must decide is not one which pertains to the legal system of Liechtenstein; to exercise protection is to place oneself on the plane of international law. International practice provides many examples of acts performed by States in the exercise of their domestic jurisdiction which do not necessarily or automatically have international effect. When two States have conferred their nationality upon the same individual and this situation is no longer confined within the limits of the domestic jurisdiction of one of these States but extends to the international field， international arbitrators or the Courts of third States which are called upon to deal with this situation would allow the contradiction to subsist if they confined themselves to the view that nationality is exclusively within the domestic jurisdiction of the State. In order to resolve the conflict they have， on the contrary， sought to ascertain whether nationality has been conferred in circumstances such as to give rise to an obligation on the part of the respondent State to recognize the effect of that nationality. In order to decide this question， they have evolved certain criteria. They have given their preference to the real and effective nationality， that which accorded with the facts， that based on stronger factual ties between the person concerned and one of these States whose nationality is involved. Different factors are taken into consideration， and their importance will vary from one case to the next： there is the habitual residence of the individual concerned but also the centre of his interests， his family ties， his participation in public life， attachment shown by him for a given country and inculcated in his children， etc.
    The same tendency prevails among writers. Moreover， the practice of certain States， which refrain from exercising protection in favour of a naturalized person when the latter has in fact severed his links with what is no longer for him anything but his nominal country， manifests the view that， in order to be invoked against another State， nationality must correspond with a factual situation.
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