The Life and Times of the Genuine Link
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Open Access
Type
ArticleAuthor/s
Thwaites, RaynerAbstract
The genuine link principle has become a standard-bearer for the view that citizenship is, or should be, substantive, in the sense that it is conditioned on the existence of certain "social facts". As such, it has become a source of inspiration in citizenship theory. It is seen to ...
See moreThe genuine link principle has become a standard-bearer for the view that citizenship is, or should be, substantive, in the sense that it is conditioned on the existence of certain "social facts". As such, it has become a source of inspiration in citizenship theory. It is seen to provide a benevolent framework for thinking about citizenship status. Against the tendency to treat "genuine link" as a guiding principle, I argue that it carries within it fundamental problems. These problems have been known for a long time. In particular, they were prefigured in dissents in the decision that introduced the principle, namely the International Court of Justice's (ICJ) decision in Nottebohm, delivered in 1955, in the initial academic legal commentary on that decision, and in the doctrine's subsequent legal reception. Drawing on these sources I argue that genuine link, as employed in Nottebohm, has in doctrinal terms been confined to a historical footnote. In a second strand of the argument, I develop the problems that attend using the genuine link as a beacon, both in theory and practice.
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See moreThe genuine link principle has become a standard-bearer for the view that citizenship is, or should be, substantive, in the sense that it is conditioned on the existence of certain "social facts". As such, it has become a source of inspiration in citizenship theory. It is seen to provide a benevolent framework for thinking about citizenship status. Against the tendency to treat "genuine link" as a guiding principle, I argue that it carries within it fundamental problems. These problems have been known for a long time. In particular, they were prefigured in dissents in the decision that introduced the principle, namely the International Court of Justice's (ICJ) decision in Nottebohm, delivered in 1955, in the initial academic legal commentary on that decision, and in the doctrine's subsequent legal reception. Drawing on these sources I argue that genuine link, as employed in Nottebohm, has in doctrinal terms been confined to a historical footnote. In a second strand of the argument, I develop the problems that attend using the genuine link as a beacon, both in theory and practice.
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Date
2018Source title
Victoria University of Wellington Law ReviewVolume
49Issue
4Publisher
Victoria University of WellingtonFunding information
ARC DE160101123Faculty/School
The University of Sydney Law SchoolShare