CYIL vol. 7 (2016)

118

DALIBOR JÍLEK – JANA MICHALIČKOVÁ

CYIL 7 ȍ2016Ȏ

emerging idea. Pierantoni was of the opinion that the concept of domicile

(domicile

du mineur)

cannot be used, as the minor does not have any different domicile than

that of his parents or guardian. Roguin shared his view stating that the concept of

domicile is governed precisely by the law of guardianship, so it turns in a vicious

circle. He proposed utilizing the domicile of the parents of the minor. The meeting

ended without a solution.

Madam Baron de Haan, rapporteur of the 4

Commission on Guardianship,

recapitulated that in their discussions the members admitted that they took into

consideration only instances when the nationality of the minor was known and

undisputed. But there might be cases where nationality is not clear. So the principle

on which the convention should be built must state a determination of applicable

law of the minor clearly and without exceptions. Because guardianship covers

the protection of a legally incapable minor, the applicable law should be the best

appropriate for the individuality of the person, for his needs and interests, his

desires and all other particularities which characterise him. Therefore the committee

implemented an approach that, where the law of nationality of the minor is not

applicable or national authorities do not intervene, the law of domicile shall apply.

After the end of the second session, the first and foremost principle of regulation

of guardianship was based on the national law. If it was not possible to establish

guardianship of a minor according to that national law abroad, diplomatic and

consular authorities should take appropriate steps to this purpose. Finally, if the

guardianship could not be established by either of the mentioned means, the law

of the residence of the minor should be applicable. So the proposed draft used the

notion of “residence” (still not habitual).

At the end of the second session, the

president of the conference claimed that members based an international entente in

relation to guardianship in order to stop the uncertainty and deplorable conflicts at

that time. Despite the fact that the conference was officially ending, the president

expressed the wish that the commissions might work further unofficially in order to

prepare ground for the next conference.

Based on the minutes of the third session, the work and negotiations proceeded

in between the second and third conference and were led by the Netherland

government. For this purpose, Netherland established a special commission charged

with preparatory work for the conference, and several other countries followed their

example.

Thus, before the third conference started, several amendments to the

drafted texts of 1894 were prepared and submitted in a file to all participants. The

conference adopted a method of work where no minutes of separate working sessions

Ibid.,

p. 94.

Actes de la Deuxième Conférence de La Haye chargée de réglementer diverses matières de droit

international privé (25 juin au 13 juillet 1894), Protocole Finale.

Actes de la Troisième Conférence de La Haye pour le droit international privé (29 mai au 18 juin 1900),

p. 79.