International human rights are important factors in the shaping of private international law in family matters. In fact, the latter has to measure up to the standards set by the former, like any domestic field of law should. Accordingly, respect for family and private life, as internationally guaranteed, shows that a self-contained regime merely defined by reference to the classic definitional categories and techniques of national law is less and less suitable to deal with cross-border cases. In essence this paper, while considering cross-border cases and international practice, argues that fundamental rights prescribe an inherent and positive obligation of result to recognize and enforce a family relationship lawfully created abroad. This approach entails, firstly, a derogation from the proceedings for recognition and enforcement set forth in the national system of PIL, and, secondly, a positive obligation to be fulfilled by public authorities. In this human-rightsbased perspective, PIL requirements must then be re-shaped, where possible by means of interpretation, to safeguard the fundamental rights of the individuals concerned.

Baratta, R. (2016). Recognition of foreign personal and family status: a rights based perspective. RIVISTA DI DIRITTO INTERNAZIONALE PRIVATO E PROCESSUALE, 2, 413-444.

Recognition of foreign personal and family status: a rights based perspective

BARATTA, Roberto
2016

Abstract

International human rights are important factors in the shaping of private international law in family matters. In fact, the latter has to measure up to the standards set by the former, like any domestic field of law should. Accordingly, respect for family and private life, as internationally guaranteed, shows that a self-contained regime merely defined by reference to the classic definitional categories and techniques of national law is less and less suitable to deal with cross-border cases. In essence this paper, while considering cross-border cases and international practice, argues that fundamental rights prescribe an inherent and positive obligation of result to recognize and enforce a family relationship lawfully created abroad. This approach entails, firstly, a derogation from the proceedings for recognition and enforcement set forth in the national system of PIL, and, secondly, a positive obligation to be fulfilled by public authorities. In this human-rightsbased perspective, PIL requirements must then be re-shaped, where possible by means of interpretation, to safeguard the fundamental rights of the individuals concerned.
Baratta, R. (2016). Recognition of foreign personal and family status: a rights based perspective. RIVISTA DI DIRITTO INTERNAZIONALE PRIVATO E PROCESSUALE, 2, 413-444.
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Utilizza questo identificativo per citare o creare un link a questo documento: http://hdl.handle.net/11590/385347
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