Abuse of rights and instrumental nationality: from Nottebohm to citizenship by investment

Building on Erpelding’s historical account of the instrumentalisation of nationality and its effects on inter-state relations, this paper examines the continued relevance of the principles underlying the ICJ’s Nottebohm judgment in contemporary forms of instrumental nationality. It argues that the ICJ’s ‘genuine link’ requirement should be understood as a manifestation of the abuse of rights principle, tacitly applied to neutralise the international effects of potentially prejudicial nationality ascriptions. The paper explores how this principle provides a normative framework to regulate instrumental nationality in other contexts, including strategic acquisitions of nationality by investors to access protections under international investment agreements, mass naturalisations, and CBI schemes. Using the CJEU’s decision in Commission v. Malta as a case example, the paper shows that, although the Court did not explicitly invoke the abuse of rights principle, its reasoning reflects the same concern as Nottebohm: limiting the extraterritorial effects of nationality practices that may prejudice other participants in the international or EU legal order. Taken together, these developments call into question whether the regulation of nationality should remain exclusively under the control of individual States. Keywords Nationality, abuse of rights, Nottebohm, EU citizenship, Citizenship by Investment