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 compares and contrasts the international legal regime which regulates the nationality of both a physical and a legal person. The authors 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 non-citizens 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.