Report No. 65
At this stage, a brief history of nationality in the context of conflict of laws would be of interest. Nationality as the basis of personal law is not older than the Code Napoleon,1 and has acquired its predominance in many countries of the civil law orbit only since the time of Mancini. Since then, in these countries the analysis of the concept of nationality has become one of the most important topics of conflicts law.2
On the other hand, the Commonwealth and the United States, like many civil law countries, have adhered to the ancient rule of domicile as distinguished from the comparatively new concept of nationality. Even between countries of the English-speaking world, important differences have been created by the continued English emphasis on the domicile of origin,3 in contrast to the domiciles of choice and domiciles by operation of law which are solely relevant in the U.S.A.
1. q para. 2.16, supra.
2. Rabel Comparative Conflict of Laws, Vol. I, pp. 161-172 discusses the various rationale (tradition, politics, economics, practicability), and p. 171, the shortcomings of the nationality principle.
3. Rabel Comparative Conflict of Laws, (1958), Vol. I, p. 118.
2.20. Recent trend.-
A remarkable advance has been conceded to the principle of "domicile" in recent international treaties. The Codige Bustamante1 proclaimed international jurisdiction for divorce to be at the matrimonial domicile, in contrast with the general policy of the Convention not to specify the personal law and despite the protest of Brazil, which then followed the nationality principles.2 The Franco-Italian Treaty of June 3, 1900, on the enforcement of Judgments (Article 11, part. 1) secured recognition for the decisions of the court of the domicile or, in their absence, decisions at the residence of the defendant, without excepting matters of status, and the same devices have been adopted in other European treaties,3 despite the fact that all the countries involved are traditional-followers of the nationality principle.
1. Article 52, Bustamante Code.
2. Rabel Comparative Conflict of Laws, (1958), Vol. I, p. 532.
3. (1934) 153 League of Nations Treaty Series, 135, 141.
2.21. Scandinavian law.-
In the "Scandinavian Union"1 as to family law,2 signed by Sweden, Norway, Denmark, Finland and Iceland, the principle of nationality has been replaced by a reference to the law of an individual's domicile-which recognizes that the life of a person centres largely around the country of his domicile.3
1. Convention an Marriage, Adoption, and Guardianship, of Feb. 6, 1931, 5 Hudson International Legislation, 877 (1936), Convention on Inheritance and Succession of Nov. 19, 1934, 6 Hudson 947 (1937).
2. See J.P. Niboyet Professor of Private International Law, Paris, Territoriality in the Conflict of Laws, (1952) 65 Harvard Law Review 582, 583.
3. Rabel Comparative Conflict of Laws, (1958), Vol. I, p. 33, Note 85.
2.22. Venezulean draft.-
It may be noted5 that the most striking feature of the Venezulean draft on conflict of law is that nationality is replaced by domicile as a connecting factor in matters of personal law. "This shift emphasises the steady loss of favour that the idea of the lex natrias has suffered since the war, both in legislative workshops and in scholarly circles."1
1. De Nova Developments of Private International Law, (1964), 13 AJCL 542 (562).
2.23. It has been stated1 that an even more portentous sign of this crisis of nationality as a criterion for jurisdiction and choice of law is the challenge and keen competition that it faces from "habitual residence"' at the latest Hague Conference.
"Residence habituelle"2 it is stated, is domicile in modem garb, for international consumption.
1. De Nova Developments etc., (1964), 13 AJCL 542 (500); R.H. Groveson Comparative Aspects of the General Principles of Private International Law, Academic de Droit International, 109. Recueil des Cours (1963, 2) 7, at 68 ff.
2. Para. 2.30, et Sea, infra.
2.24. International Conventions-Habitual residence an emerging test.-
In 1960, during the debates that took place at the ninth session of the Conference on the subject of guardianship,1 and in 1963, when a group of experts worked out a preliminary draft on adoption,2 and again in 1964, at the tenth session of the Conference, when a text on international adoption was agreed upon, some sort of balance was struck between the competence of the courts and the law of the country of nationality, and the competence of the courts and the law of the country of habitual residence. But the scales were often tipped in favour of the latter.
1. See R. De Nova, "Le IX Conference dell "Aja," (1960) 14 Diritto Internationals 305 (309) ff.
2. See R. De Nova, "II progette preliminare dell' Aja aull' adozione internationale," (1963) 17 Diritto International 199.