137 / 536
123
CYIL 7 ȍ2016Ȏ
THE CONCEPTUAL ROLE OF HABITUAL RESIDENCE
international law. A common concept was contrary to the uniform practice of
international law and its customs and did not correspond to the consensus achieved
at the Hague conferences.
Theoretical legal deliberations have brought various linguistic and conceptual
ideas. One of methods for consolidating the concept of habitual residence was
substitution of one term with another. De Winter considered the term ‘home’ to
be the synonym of ‘habitual residence’.
74
Nevertheless, the fact that a person has
his home in a particular country could not be changed by a hidden mental attitude
towards the place. A home is a place where a person dwells and where a centre of his
domestic, social and civil life rests.
75
Despite such a prepossessing explanation, the
concept of habitual residence could refer to different facts than the factual concept
of home could refer to.
The centre of domestic, social and civil life indeed should not be interpreted
restrictively in the geographical sense.The social bond of a person with the community
is a fundament of habitual residence. Some jurists therefore attached a qualifier ‘legal’
to the term of ‘community’. This way they returned to the syllogistic conclusion:
ubi homo
,
ibi societas
;
ubi societas
,
ibi ius
;
ergo
:
ubi homo
,
ibi ius
. However, it is nearly
the same as what was meant by the Roman jurists in respect to domicile. The legal
construct of domicile in Roman law required affiliation of an individual and his
family with an urban community, with its social and religious life.
Neither Roman jurists nor Savigny ever meant a social bond between an individual
and a state entity but meant the bond with an urban or local community. They
considered the real entering into a particular social community to be the necessary
conceptual component of
domicile – factum
.
76
De Winter elaborated on such
reasoning further in the field of private international law. He inserted a strong
sociological aspect into it. He identified habitual residence with the social domicile
of a person.
77
a connecting factor of habitual residence should conceptually mean
the same as a person’s social domicile.
78
The law of the country where a person lives
and has social ties should have applied to the personal status of an individual.
79
The Hague Conferences had gradually unified the approach of substitution of
legal concepts with the concepts of factual and thus descriptive form. As known,
a factual concept is less prone to the risks of divergent interpretation. Such a concept
74
DE WINTER, Louis,
op. cit.
, p. 430.
75
Ibid
., pp. 430-431.
76
See the case of
Tarwid v. Wirtensohn
, Cour de Cassation, 15 May 1961: «intégration au milieu social
par un établissement effectif.» ANSAY, Tugrul. Legal Problems of Migrant Workers.
Recueil des cours
.
Collected Courses of The Hague Academy of International Law.
Leyden: A. W. Sijthoff, 1980, III, p. 39.
77
CAVERS, David F. “Habitual Residence”: A Useful Concept?
The American University Law Review
,
1972, Vol. 21, Iss. 3, p. 485.
78
DE WINTER, Louis,
op. cit
., p. 431.
79
Ibid
., p. 433.