Ad Hoc Committee on Statelessness and Related Problems, Memorandum From the International Refugee Organization on the Subject of Article 4 of the Draft Convention on Statelessness (E/AC.32/2)

E/AC.32/L.5

LAW APPLICABLE TO STATELESS PERSONS (Legislation and jurisprudence)

I. The rule of former nationality is applied:

i. by Article 29 of the Act bringing into operation the German Civil Code in its old version, in force until 1938

ii. in Montenegrin law.

(This principle has now been generally abandoned.)

II. The law of the domicile (or failing that, of the country of residence) is applied in most countries, cf. particularly:

China, Article 2, paragraph 20 Act of 20 August 1918

Greece, Article 30, Civil Code of 15 March 1940

Japan, Article 27, paragraph 2, Act of 15 June 1898

Principality of Liechtenstein, Article 31, Act of 20 January 1939

Poland, Article 1, paragraph 1, Act of 2 August 1929

Thailand, Article 6, paragraph 4, Act No. 2481

Switzerland, Article 2 and 7 a of the Federal Act of 25 June 1891

Protocol relating to a certain Case of Statelessness (The Hague, 12 April 1930)

No legislative provisions:

"French Jurisprudence".

III. The law of the country of habitual residence is applied in Article 29 of the Act bringing into operation the German Civil Code, version of 12 April 1938.

Article 29 "Introductory Provisions" of the new Italian Civil Code.

IV. The lex fori is applied:

in the Congo, Article 8

In French Morocco, Article 5

In Spanish Morocco, Article 4.

V. Article 52 of the Czechoslovak Act of 11 March 1948 runs as follows:

"Any person who at the appointed date, possesses no nationality, and any person who possesses more than one foreign nationality simultaneously and is unable to establish which of these was acquired last, shall be deemed to be a national of the State where he is domiciled or, if not domiciled, resident at the appointed date. In default of a State of domicile or residence Czechoslovak law shall be applied". (This means applying the law of the country of domicile, or, failing that, that of the country of residence and in the final analysis, the lex fori.)

VI. Under the new Egyptian Civil Code, the application of the law is left to the discretion of the court according to the circumstances of the case.

(Act No. 131 of 1948, Journal Official, 29 July 1948 No. 108 bis A).

In Tangier, Article 4.

VII. By a Decree of 13 March 1945, the French Government ordered that the 1933 Convention should apply to the Spanish refugees. Thus French law will be applied as the law of the country of domicile. Accordingly, the Paris Court, in a decision of 6 December 1947 ("Revue critique du droit international privé", 1948, page 106) granted a decree of divorce to Spanish refugees by applying French law, although under Spanish law divorce is not obtainable and these refugees have not lost their Spanish nationality.

VIII. Under an established principle of French jurisprudence, divorce is granted by the application of French law if the person filing the petition has French nationality. Thus a Frenchwoman, married to an Italian, may obtain a divorce even though under the domestic law of the husband's country, divorce is not admitted (cf., for example, the Seine Court, 17 March 1948, "Revue critique du droit international privé", page 112).

IX. Recently the Paris Court has extended this jurisprudence to stateless persons. In a recent case where the party filing the petition was stateless and the defendant still possessed Hungarian nationality, the Court applying French law as the law of the petitioner's country of domicile, granted the divorce, even though Hungarian law does not recognize the competence of foreign courts in divorce cases involving Hungarian citizens (Court of Paris, 7 June 1947 "Revue critique du droit international privé", 1948, page 527).

X. In Sweden, an Act to amend the Act of 8 July 1904 concerning international relations as regards marriage and guardianship was promulgated on 10 July 1947. The following passage occurs in this Act:

"If the national of any State not a Party to the Convention of 12 June 1902 for the regulation of conflicts of laws as to marriage has been domiciled in Sweden for not less than two years, he may request that the right to enter into the marriage be examined in the light of Swedish law in the event of his wishing to have the marriage ceremony performed by a Swedish authority." This provision makes it possible for the betrothed to avoid having to apply to the authorities of the country of origin for the certificate proving capacity to marry; furthermore, by virtue of this provision, impediments to the marriage arising under the law of the country of origin need not be taken into consideration. This legislation is all the more interesting since Sweden generally adheres to the nationality principle in matters relating to marriage and divorce.

XI. The Swedish Supreme Court has given two decisions, one concerning the divorce of Esthonians who became citizens of the USSR by the annexation of their country, the other concerning the legal separation of Esthonians in the same circumstances.

Nytt Juridiskt Arkiv, Book I, 1948, page 805; and 1949, page 82.

In the second decision the Court gives the following opinion:

"In the case of married persons who in 1944 fled from Esthonia to Sweden after the incorporation of their country into the Union of Soviet Socialist Republics and who are applying for a legal separation, Swedish law alone is applicable.

"It is obvious that the legislator, at the time of the promulgation of the law of 1904 concerning international relations in respect of marriage and guardianship, did not when dealing with cases of separation, contemplate a form of nationality such as occurs today in the case of refugees from Esthonia. The reasons which are generally decisive for regarding nationality as a point of attachment are no longer of any effect in the case of a nationality such as that of the Esthonians. On the contrary, one must start from the premise that the reasons which caused the law of the country of domicile to be applied to the personal status of stateless person, generally apply equally in the case of aliens such as the aforesaid Esthonians, who no longer have any real ties with their country."