CYIL Vol. 7, 2016
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 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. 74 DE WINTER, Louis, op. cit. , p. 430. 75 Ibid ., pp. 430-431.
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