DRAFT OHADAC MODEL LAW RELATING TO PRIVATE INTERNATIONAL LAW

Article 22

Enjoyment and exercise of rights

1. The attribution and the end of legal personality are governed by Caribbean law.

2. The exercise of civil rights is governed by the law of the domicile.

217. Article 22, in its first paragraph, governs the law applicable to the birth and the end of legal personality. The strength of personal law in some families of comparative law has led to consider that these aspects were being governed by this personal law, whether it is the law of the nationality or the law of the domicile of the person. This solution always gave rise to a particular logical and practical problem in relation to the birth of personality and other matters that have traditionally gone hand in hand with this birth, such as the problem of the legal protection of the rights that might apply to the conceived but not yet born child.

The real question addressed by this provision is: when is a being considered to be born and to have legal personality? The answers, as is well known, are not uniform in comparative law; various possible options exist, which we could summarise between those that are based on the notion of human life, including before the birth, and those based on the notion of birth. Among the first group, in the minority, the key priority in legal terms is the determination of the moment of conception. The second group shows important variations between the options that rely on mere vitality, the complete birth of the foetus, requiring not only the complete detachment from the mother's womb (with or without rupture of the umbilical cord), and the options which, additionally, require a birth that entails viability in survival, a certain vital autonomy that is projected onto the future of the birth. There are provisions that call for a particular and specific period of life after birth (24 hours, for example) and even some that require a particular human form, rejecting any provision that might consider so-called “abortive figures” as persons born - although this is no more than an insufficiently updated historical remnant.

In any event, the mere divergence between the regulations, however small it may be, requires the identification of the applicable law: for example a mere difference between requiring a period of independent life of 24 hours after birth or not requiring it already suggests a questio iuris in the live and viable birth, which, however, dies within those first 24 hours.

218. Given the distinct factual component that all of these positions possess and, ultimately, the significant public policy burden that likewise has the crucial issue to consider whether or not a living being is a person and consequently a subject with rights and obligations, the proposed provision opts for a simple and unilateral solution, which is none other than the application of the law itself. The nuclear concept of person and legal capacity may not be removed by a foreign legislation, whatever it may be.

219. This solution also facilitates the logical and practical problems that other alternatives could pose, notably recourse to the law of the nationality and the law of the domicile of the person. It is obvious that to consider the beginning of personality on the basis of the national law of the person leads to a certain vicious circle, which cannot even be broken adequately by introducing the presumption of having recourse to the hypothetical national law and to ratify it only if this considers that the personality has actually been born, or otherwise deny it. The same is true for the domicile. In any case, it is necessary to recognise that both possibilities would be viable when it is a question of verifying the birth of personality of an actually born being. But in cases affecting the conceptus or the concepturus and which have legal relevance in terms of rights and obligations, the solution to have recourse to a certain hypothetical personal law is practical.

In fact, provisions such as, for example, article 17 of the Venezuelan Civil Code determines that “The foetus will be deemed to be born where its wellbeing is concerned: and in order to be considered as a person, it is sufficient that it was born alive”; moreover, it not only refers to the nasciturus conceptus, but also to the concepturus, or not yet conceived child, when, for example, its article 1.443 states that “Unborn children of a certain person may receive gifts, although they have not yet been conceived...” Obviously, having recourse to a future national law or the law of the domicile is to have recourse to an uncertain factor: it is unknown what the national law of conceptus or concepturus is going to be until the birth of the child. In terms of nationality, it is not known for certain what will be the nationality of the parents at the time of the birth (in the case of transmission iure sanguinis) or even known what will be the place of birth (in case of transmission iure soli). The presumption at the time when the provision has to be adopted - for example the registration of any rights - is complex. Waiting for the birth is inefficient.

The application of the law of the forum is a safe and simple solution which, however, must cede its place in these latter cases described in favour of the law applicable based on the law at issue: thus, concerning inheritance rights, in favour of the law governing inheritance; concerning, for example, a donation in the terms of the cited article 1443 of the Venezuelan Civil Code, in favour of the law governing donations298.

220. Although the end of personality, which currently can only be associated with the physical death of the person, certainly could be regulated by the personal law of the individual (whatever that might be) without any technical problems at all, given that it would be entirely ascertainable (nationality, domicile, etc.). The choice of the law of the forum is equally simple and foreseeable and, above all, the most adequate option if we take into account the obvious proximity between the strictly medical or forensic data and any legal provisions that determine the time of the extinction of personality.

221. As regards the second paragraph, the application of the civil rights referred to does not affect those that have a constitutional guarantee, which we might call public policy rights within the meaning of article 3(ii) of the Bustamante Code, but rather those that refer to individuals or “internal public policy” rights, whose compliance with the law of the domicile is relatively common for purely operational reasons299.


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