The identity and continuity of personal status in contemporary private international law

In an ‘open society’, the different status that contribute to shaping the identity of a person – his or her name, sexual orientation, the “status filiationis” etc. – require analysis from a new perspective. The life of an individual no longer fits entirely into a single legal order. Moreover, individuals enjoy to a growing extent the possibility of affecting, by the very fact of moving from one country to another, the identification of the law applicable to their personal status. The status of an individual derives from the domestic legal order which “creates” it, according to its national rules and international obligations especially in the field of human rights protection. Some States display particular favour towards the self-determination of individuals, granting generous opportunities of access to justice to individuals and thus offering more chances for applying the “lex fori”. At the same time, as far as conflicts of laws are concerned, States are increasingly inclined to make use of personal connecting factors, namely habitual residence, that are particularly apt to ‘follow’ the individual as he or she moves across national borders. In addition, individuals are now entitled, in a variety of situations and subject to different conditions, to choose by themselves the law governing their personal status, or particular situations relating thereto. As rules in this area gradually lose some of their traditional features of exclusivity and objectivity, the issue arises of the way, or ways, in which international uniformity may be achieved. The cross-border continuity of personal status is best achieved through international rules capable of identifying – also in the light of the relevant rules on fundamental human rights – shared values and shared protocols of cooperation, in particular as regards the recognition of foreign judgments and public acts. The so called “adaptation technique” of foreign rules or foreign public documents assists the coordination among the different State legal orders involved.