Dominant nationality and the Commonwealth

Fri, Oct 23rd 2015, 09:05 PM

The fiction that the British Baroness Patricia Scotland is a Dominica candidate for the post of Commonwealth secretary general has been further eroded in recent days by reports that Britain is showing its hand as the real country behind her candidacy. And why wouldn't it? By the rule of "dominant and effective nationality", Baroness Scotland is in fact British- first and exclusively. Having her presented as Dominican provides a convenient way for Britain to evade convention and agreement that it cannot have both the Commonwealth Secretariat in London and the secretary generalship.

At the same time, Britain's Prime Minister David Cameron has recently publicly proclaimed a policy of "re-engaging the Caribbean". However, such re-engagement cannot be taken seriously when, for his government's own purposes, it attempts to deprive the region of an office to which it has a right.

Baroness Scotland's nomination is a matter of deep embarrassment to Commonwealth Caribbean governments, which know that the British baroness is just that - British. The fact that she was born in Dominica and left that island when she was two years old is not denied. However, to all intents and purposes in fact and in law, Baroness Scotland is British. Dominica and any other government that might be supporting her are doing nothing more than allowing the Caribbean to be used for someone else's purpose.

Baroness Scotland is an active member of the British Parliament. For this and many other reasons, her nomination is contrary to the legally established principle of dominant and effective nationality under international law.

A person may have multiple nationalities, but the "dominant" and "effective" nationality is the one where "he/she is habitually and presently resident" or the one "in which he/she appears to be in fact most closely connected". This principle has been laid down and respected since the 1930 Hague Convention. Thus, the United Nations system applies this principle to persons of multiple nationalities when he/she is considered for any post.

The International Court of Justice (ICJ) has demonstrated its acceptance and approval of the search for an individual's "real" and effective nationality based on the facts of the case which include the habitual and present residence of the individual concerned, their family ties, and participation in public life.

The dominant and effective nationality approach - articulated by the ICJ in a number of cases- embodies the two fundamental principles that bear on the contemporary view of a person's nationality:

First, nationality is a "legal bond having as its basis a social fact of attachment, a genuine connection of existence, interests and sentiments, together with the existence of reciprocal rights and duties." It is, by nature, incapable of division between two or more states.

Second, nationality is a product of personal choice and action. The conduct of the individual furnishes a sound legal foundation for recognition of a single nationality. Customary international law has dictated that arbitral tribunals, tasked with resolving the conflict of dual nationality, look to those factors indicating a "genuine link" to one country more than the other.

Baroness Scotland's dominant and effective nationality is patently and obviously British. She has lived by far the greatest part of her life in Britain, she still resides in Britain, she pays her taxes in Britain, her law practice is in Britain, her husband and children are British and, in Britain, she has been a member of the British government, and still serves the British government. Importantly, she is a lawmaker in Britain as a sitting member of the British Parliament- a position she had adamantly refused to give-up.

By convention, the position of secretary general is rotated among the organization's various regions and, when current secretary general, Kamalesh Sharma of India demits office after two terms on March 31, 2016, it is the Caribbean's "turn" when his successor is selected at the next Commonwealth heads of government meeting in Malta in November.

Baroness Scotland is not going to be elected as the next Commonwealth secretary general. African, Asian and Pacific country representatives have made it clear that they regard her as a British candidate "by the back door".

The persistence of any Caribbean country in support of her candidacy will produce nothing except disunity and embarrassment for the region, particularly in light of the revelations in the House of Lords last July of the funding of her campaign by parties with no ostensible connection to either the Caribbean or the Commonwealth.

o This column first appeared as an editorial on Caribbean News Now and is published here with the permission of that entity.

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