1958

AT

Flegenheimer Claim US v Italy 25 ILR 91

Claim for the cancellation of forced sale at undervalue of certain property of the claimant in Italy. The father of the claimant was born in Germany but lived 8 years in the US so becoming American, however the last years before death he lived in Germany. The claimant was born in Germany; in 1937 he was compelled to sell his properties and was forced to leave Germany. He went to Italy but after certain anti Jews laws he went to Switzerland in 1938. In 1939 he claim to the US the recognition of the American nationality but it was negated. Under the 1947 Peace Treaty between the allied powers and Italy, claims could be brought against Italy on behalf of ‘UN nationals’. US brought this case

It is doubtful whether the IJC intended to establish a rule of GIL in requiring, Nottebohm, that there must exist an effective link between the person and the state in order that the latter may exercise its right of diplomatic protection in behalf of the former. The theory of effective or active nationality was established in the law of nations for the purposes of settling conflicts between two national states regarding persons simultaneously vested with both nationalities, in order to decide which of them is to be dominant, whether that described as nominal, or that describe as effective or active, confirmed by elements of fact. When a person has only one nationality the theory of effective nationality cannot be applied without the risk of causing confusion. The Tribunal found that the claimant was not US national so neither ‘UN national’. In fact he had been German but had forfeited his German nationality in 1940 under German law and was a stateless