Neo-Nottebohmian 21st Century Genuine Links and Australia’s Indigenous Non-Citizens

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Abstract

[Extract]
The International Court of Justice, in its 1955 judgment of Nottebohm, stated that nationality requires a ‘legal bond having at its basis a social fact of attachment, a genuine connection of existence.’These famous yet contested words, if anything, presuppose an exclusively state-centric view, fixating the decision over in- and exclusion as being solely vested in reference to the sovereign power and control of the nation state.

What if this case was decided today? The ‘social facts’ of attachment making a connection between citizen and state ‘genuine’ may since likely have changed. Individual, personal, as well as supranational collective or global perspectives, pertinent to the 21st century, are missing in Nottebohm. The same is true for the flexibility to accommodate transformations of legal membership mechanisms such as on the example of direct sale of citizenship or for any evolving understandings of statehood as such.

Neo-Nottebohmian genuine links (‘NNGL’) may then serve as a conceptual lens to infusing membership rules and policy with a new vision, contributing to a focus on existing and emerging social-legal concepts that may well include municipal references, but can also enrich and add to citizenship’s in-and exclusion paradigm, in effect confronting municipal citizenship with references to the world at large. Possibly reconciling the local and the global, Nottebohm itself contains an open formula of ‘genuineness’ that could be extended by the state’s acknowledgement of references to the social or humanitarian facts of the new perimeters in our complex, globalizing world.

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