3.
The uncertainty about the specific rules which govern the personal status of an alien
creates difficulties not only for the alien but also for all persons who maintain legal relations with
him (for instance, in making a contract with a married woman or a person under age). For these
reasons, all pre-Second World War conventions dealing with refugees contained a specific rule
defining their personal status.
4.
The applicable law need not necessarily be that of the country where the stateless
person finds himself at a given moment or where his status must be determined: if a stateless
person is settled in country A but is either temporarily in country B or has dealings there, his
status will be governed by the law of country A, not of country B. But if he establishes a
permanent domicile in another country, his personal status changes. It may not always be easy to
determine when the former domicile was given up and a new one established because domicile is
usually characterized by one objective (residence) and one subjective (intention of remaining
indefinitely in a given place) element. The same difficulty may arise if it cannot be established
with certainty whether the stateless person has a domicile or none. Furthermore, “domicile” does
not mean the same thing in various legal systems, especially in Anglo-Saxon and in continental
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law. There is therefore a possibility of having a domicile in several countries or a domicile in
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one country and a residence in another. In order to avoid these difficulties, at least in part, Art.
12 provides that the law of the country of domicile is to be applied in the first instance and the law
of the country of residence only if the country of the refugee’s domicile was unknown or the
refugee has no domicile. The notion of residence was introduced because residence is often
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easier to establish than domicile.
As a rule, each state will decide, in accordance with its own law, when a domicile exists
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and when it does not.
The difference between the various concepts of domicile may provoke certain conflicts,
especially when a stateless person moves from the area of one concept to that of another
or when the personal status of a stateless person residing in one area is to be established
in another. In doubtful cases, the law of the country of the habitual residence of the
stateless person must be decisive.
5.
Article 12 does not deal with cases where there exist different laws governing the
personal status of a person in one and the same state based on either geographical units (federal
or other states with different civil codes) or on the religious law of the person involved (for
instance, the Moslem countries). The first category of cases does not represent any difficulty
because domicile or residence is established in a certain locality and the status of a stateless
person would depend on the locality of domicile. More difficult is the second contingency, which
could be resolved on the basis of the religious affiliation of the stateless person, provided this
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particular religious faith prevails in the given country.
6.
Despite all the possible difficulties, the principle applied in this Article is the most simple
because in the majority of cases a stateless person adopts the country of residence as his
domicile and thus the personal status will easily be established and reference to foreign law will
be avoided. It also has the advantage of freeing stateless persons from the application of the law
of the country of whose nationality they were deprived or whom they have repudiated (in the case
of de facto stateless persons).
111
Under British law every person has a domicile (E/AC.32/SR.8, para. 19) because domicile in English law is equivalent
to permanent residence (SR.9, para. 2 of the Refugee Conference).
112
The representative of Israel in the Ad Hoc Committee (SR.8, para. 19) pointed this out in connection with the
Secretariat's draft and the French proposal (E/AC.32/L.3).
113
E/AC.7/SR.8, para. 14.
114
This view was held by the framers of the Refugee Convention (E/AC.32/SR.9, paras. 2 and 10).
115
This problem was touched upon by the Egyptian representative in the Refugee Conference, but, owing to its
complexity, was not even discussed (SR.7, p. 10).