Merge Claim (United States of America v Italy)

Facts

• Florence Strunsky Merge was born in the USA (acquiring US nationality by birth) and married an Italian (acquiring Italian nationality by marriage)
• She held both American and Italian nationality simultaneously
• The USA sought to exercise diplomatic protection on her behalf against Italy before the Italian-United States Conciliation Commission
• Italy argued that because she was also an Italian national, the USA could not bring a claim against Italy on her behalf
• The Commission had to determine which nationality prevailed

Issue

1. Whether the USA could exercise diplomatic protection over a dual national against Italy, one of her states of nationality.

Held

• The Commission held that the state of dominant and effective nationality prevails
• Where a person's genuine connection is stronger with one state, that state may exercise protection against the other
• The principle of sovereign equality means one state of nationality cannot normally claim against the other
• The exception is where nationality with the claiming state is clearly dominant and effective
• In this case, the claim was dismissed because Mrs Merge's effective nationality was Italian (she resided in Italy)

Ratio Decidendi

In cases of dual nationality, the general rule is that neither state of nationality can bring a diplomatic protection claim against the other. However, a claim may be admissible if the claimant state's nationality is the dominant and effective one. The test examines habitual residence, centre of interests, family ties, participation in public life, and other evidence of genuine attachment. The state with the stronger real connection prevails.