7.
The second paragraph is an exception to the first, inasmuch as it decrees the validity of
certain rights acquired under another law (very often the law of the former home country of the
stateless person).
Paragraph 2 is the result of the generally accepted validity of “acquired [or vested] rights”
which ought not be disturbed, except in specifically described cases where the acquired
right of the stateless person would not have been recognized by the law of the given state
if he had not become stateless. Such is the case where certain rights are contrary to the
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“public order” of the state where they are claimed; for example, rights resulting from
polygamy invoked in a country where it is prohibited, divorce in countries in which divorces
are not recognized, etc.
Paragraph 2 speaks of “the law of that state”, meaning the law of the Contracting State
where the right is to be exercised. Since there may be a difference between the “public
order” of the various Contracting States, the acquired rights may be recognized in some
cases and not be recognized in others.
Paragraph 2 speaks of “rights previously acquired by a stateless person and dependent on
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personal status, more particularly rights attached to marriage”.
These “rights attaching
to marriage” are the matrimonial régime, the legal capacity of married women, and the right
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to succession.
To safeguard these rights, the stateless person may have, if the domestic law so
prescribes, to comply with certain formalities. For instance, the law of the country is which
recognition is sought may prescribe that foreign adoptions have to confirmed by local court
or that the special matrimonial regime (separation of property or the right of the husband to
administer the property of his wife) have to be registered in certain records.
8.
Article 12 deals with the law governing the personal status of stateless persons not with
the law governing the conclusion or dissolution of legal acts. Thus it refers to the capacity to
contract a marriage, but does not deal with the celebration or dissolution of marriage, wills, etc.
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This is left to the law of the country where such action is performed.
Article 13
Movable and immovable property
The Contracting States shall accord to a stateless person treatment as favourable as
possible and, in any event, not less favourable than that accorded to aliens generally in
the same circumstances, as regards the acquisition of movable and immovable property
and other rights pertaining thereto, and to leases and other contracts relating to movable
and immovable property.
1.
This article reproduces literally the provision of the same article in the Refugee
Convention. It provoked no discussion in the conference nor any outright opposition, except that
the representatives of the Latin American countries abstained from voting because, in their view,
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Reference to public order or other grounds of non-recognition (in the case of refugees) was made in the Ad Hoc
Committee (SR.41, p. 8) as something which need not be written into the Convention.
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The Ad Hoc Committee considered that this paragraph (in regard to refugees) also included rights resulting from acts
of religious authorities if performed in countries recognizing the competence of such authorities (SR.9, para. 61 ff). This
rule must also be considered as applicable here.
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The question was raised in the Refugee Conference (SR.7, p. 18) whether the right of children to obtain support from
their parents was also an acquired right in the sense of para. 2. Although no decision was reached, it would appear that
the view was held that this might be the case if the law of the state in question regarded such right as part of the personal
status.
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It must be noted that, while the problem of celebration of marriages, produces no difficulty because the law in the place
of celebration is applicable, the question of dissolution of a marriage is complicated by the fact that many countries refuse
to grant a divorce if the national authorities of the persons involved do not recognize the decision.