"We must disconcert the conditions for creativity; concentrate; accept conflict and tension; be born every day; to have a sense of self."
Erich Fromm.
Prof. Dr. Carmelo Borrego
Exordium
The theory of statutes is an old doctrine that sought to confront those conflicts of laws that could arise concerning the spatial application of norms. Although this theory was key to the classification of legal norms, such as personal and real statutes, and even hybrid situations, it also paved the way for the formation of Private International Law, while also maintaining a relationship with Public International Law. It is said that this theory emerged between the 12th and 17th centuries and is attributed to the so-called glossators and post-glossators, who were generally represented by Italian authors, especially Sassoferrato and Ubaldi. From this historical development, a constant growth of this theory is observed, and despite current relations that involve the virtual, digital, and new models of knowledge and intelligences, it serves to understand the most salient aspects of this theory which, it seems, does not lose validity, although trends seem to be in concentric enclosures.
Elements of the theory of statutes or laws in the passage of dynamic relations
The theory paved the way to resolve, as stated, those conflicts, for which a sort of classification of norms was established. For example, the personal statute focused on persons according to their origin, followed by the local law like an umbrella, but the situation of extraterritoriality also arose, which led to the understanding of the principle of personality (passive or active). On the other hand, this statute also focused on property, which especially comprised rights over immovable property, and with that, it could only apply the principle of territoriality. The focus also covered complex or mixed situations in which it was necessary to understand those norms that affected property or things and persons, best represented in the theory of contracts.
However, in this long historical development, what is important or perhaps acquires more importance for this article is the spatial question of validity, which we have already addressed in another work on this same blog. But this time, the specific issue forces us to reduce the determination of the territorial or extraterritorial authority of the different legal precepts. For this, we take up the idea presented in the previous paragraph and will begin by highlighting that three types of logically possible principles were manifested, under the conception of the expressed Theory, namely: a) the principle of absolute territoriality; b) the principle of absolute extraterritoriality; c) the principle of extraterritoriality and territoriality combined in a sort of mixed system.
The unfolding of the doctrine and the applicable principles
Under the principle of territoriality, many relations occur; the word itself invites one to think that the laws of a State apply exclusively within its territory. This embraces all persons, property or things, and even legal relations, whether they involve nationals or foreigners (natural or legal persons). This formula seems to exclusively close the field to other options, but in theory, it works that way (not necessarily), and seen this way, it seems that any possible conflict is settled and in reality, little or nothing can be said about conflicts of laws, creating, as Rodemburgh says, a state of uncertainty about the existence, validity, and persistence of rights.
From the closed perspective, the need to enter a different dimension with greater flexibility was observed, for which Fiore recognizes that the comitas Gentium would serve as a relief to stalled tensions, and nothing better than the so-called doctrine of international comity to recognize legislative, executive, and judicial acts of other States and thus observe international mutual convenience without the need to be strict under the field of absolute obligations. In this way, as Huber says, the principle of absolute sovereign independence is balanced with the facilitation of international cooperation. From here, the strict rule or national enclosure is broken.
Therefore, although Bartolus also raises the problem of spatial validity to resolve conflicts of territorial validity, the theory that initially carries more weight is the French theory of international comity. The authors Rodenburgh and Burgundius argue that the concept of sovereignty is an absolute state entity, where the application of foreign norms was an exception, not a legal obligation; this is a reciprocal courtesy that also depends on the compliance of the other parem. Niboyet said: Judges are not legally obliged to observe foreign laws, as this is contrary to the independence of States; whenever it is convenient, foreign laws will be applied, and only if, by international comity, those foreign laws are used to obtain reciprocity, to the extent that it is considered necessary from others.
The ideas expressed starting from Bartolus raise the issue of the spatial validity of legal norms, opening up to surrounding spaces beyond the local soil. The statute was nothing more than a law and especially acquires the virtue of attending to when or not to apply a law in other territorial spaces. Thus, from these approaches, the bases are offered to resolve conflicts of laws in a context of growing multicentric personal relations and cross-border trade, today increasingly circumscribed to relativity and more universal spaces, connected by digital entities based on information technology (network).
Beyond what has been stated, and facing more contemporary doctrines, Pillet emphasizes the discussion to counteract the concept of applying norms by mere international comity. He considered that conflicts of laws were, in essence, conflicts of sovereignty between States. He argued that the application of foreign laws should not be based on mere international comity, but on an analysis of the state interests involved and the social purpose pursued by each norm (this is a more transcendent and open approach).
For this reason, respect for the sovereignty of States cannot be considered a gracious concession or an act of pure kindness towards others; they are mandatory norms that States must attend to. Pillet maintained that rights validly acquired under a foreign law should be recognized if they met two express conditions, one related to respect for public order – the foreign law cannot affect the public order (fundamental principles) of the receiving State – and on the other hand, the foreign norm, if it has a legitimate purpose and is coherent with the prevailing legal system, must be applied by the State where the foreign norm is invoked.
Extraterritoriality and Renvoi
From this perspective, the thesis of the extraterritoriality of norms is given course, that is, how much generality and permanence the laws that contain them have. Laws must exist and be constant; they should not be temporary or with interruptions so that they can have relevance of recognition. Thus, through a coherent normative system, such as that relating to minors, they must always accompany from the beginning of life (conception when it concerns their well-being) towards adulthood. On the other hand, they are general norms since they are compatible with the entire universe of persons and their legal relations, as expressed by Niboyet regarding the law in England.
The problem lies in the fact that one cannot simultaneously be permanent with respect to generality when faced with a conflict of laws under the spatial criterion. For the latter refers more to the territorial aspect, while normative permanence encompasses both the territorial and the extraterritorial. Perhaps an example serves to understand this dichotomy. In the specific case of a minor or minors, their permanence speaks of their transcendent preservation; if this is not fulfilled, the social purpose of that instrument would not be achieved; it matters little whether it is the law of Spain or another country, the truth is that their norms are linked in their purposes, whether regarding rules of incapacities that normally maintain a common pattern. However, it is useful to establish the due relations of preponderance.
In another order, the case of criminal or fiscal matters is different; such norms belong to the world of generality and, therefore, embrace everyone; when the legislator promulgates such instruments, he does so without regard to the nationalities of individuals, so the objectivity of the problem is relevant, as Niboyet refers (in this sense, in tax matters, it has been recognized not nationality but tax residence, for which the criterion of the person's stay in a territorial space sets the guideline for generating tax obligations). In the case of criminal law, its validity transcends through international mutual assistance, within which extradition is included. However, in criminal matters, which is generally circumscribed to territoriality (generality), particular situations of extraterritorial application are also revealed, somewhat in the manner of normative permanence. For example, criminal law may pursue nationals of a State when the crime is committed in that territory; in this sense, a principle of nationality is attended to, whether active or passive, whether the person pursued criminally commits the crime (active nationality) or if it is a victim of the crime (passive nationality). It may also occur that a crime committed in the territory of another State transcends or has effects in the other State; the vicarious criterion prevails consequently (where the action is performed or the result occurs), or when a foreigner performs acts to the detriment of a State or against its nationals (passive nationality), in which case, the law of the place where the subject is found or apprehended, or the place of residence of the prosecuting State, or where the criminal action is managed, will be attended to. Similarly, territorial criminal law transcends in the case of diplomats of the accrediting State if, when committing a crime in the accredited State, they cannot be judged due to diplomatic immunity, for which, if the State decides by international comity, it can waive that immunity of the diplomat pursued criminally (ius revocandi domus).
If the phenomenon is well observed, a distinction must be made between particular interest and collective interest. If a certain legal precept focuses on the particular or singular question (private relations), it will be a norm that can be relative to permanence; if the question transcends to the collective and tends to the protection of property of this character or diffuse, it is advised to generality and possible transcendence through mechanisms of international cooperation.
In any case, in matters of conflict of laws, the thesis of renvoi must be considered, which refers to the application of extraterritorial norms or local norms, and in such cases, conflicts of origin arise, that is, the law of one State orders the application of the law of another State and vice versa, or it may occur that a renvoi is made to a third State. This matter becomes more complex when it involves multiple situations, not so in the case of a simple renvoi or partial renvoi when only certain situations or partialities of the case are affected, for example, the validity of marriage (although this topic in many States is considered a matter of public order).
The main sense of renvoi is to avoid contradictions and safeguard the legal system, avoiding endless and contradictory cycles. Each State specially regulates each context of renvoi, and in particular, the Convention on the Application of Private International Law establishes the necessary rules for the solution of conflicts of laws that may arise to operate. This conventional determination is assumed by each State in a particular way to create analogy and reconcile into a coherent legal system capable of resolving and not hindering contradictions.
Hierarchies and criteria for resolving conflicts of laws
However, in the idea of Bartolus, which in principle denies absolute territoriality, a framework of hierarchies for the purposes of renvoi must be considered. There are norms that must transcend based on legal security. As stated, personal matters take precedence over real ones; cross-border conflicts are in the first and not in the second, which governs generality. Judges can accept and evaluating foreign law to resolve the conflict. Rules on successions normally follow the law of the locality, while commercial matters should follow the course of the law of the place of celebration, which in most cases is the law of the creditor. These formulas for resolving conflicts are being understood and applied with similar criteria, for example, lex patriae (nationality) or lex loci contractus to affirm the locality of the signing of the contract (in the case of virtual or distance contracts, the will of the parties must be considered - Rome I Regulation of the European Union - whether consumer or commercial contracts, or it is also manifested by the law of residence or establishment of the parties). In this way, the spatial application of foreign norms is balanced, weighing territorial sovereignty and the needs of international commerce. In the case of renvoi, it tends to be avoided (consumers are protected) and the description of the applicable law prevails without referring.
Today, as Domoulin says, we speak of: the nature of the legal relationship and the interest of the State. Furthermore, European legislation goes in that direction, for example, as stated in the EU Rome I Regulation, applicable to contractual obligations, or in the Spanish Civil Code itself in articles 9 to 12 concerning conflict of laws, which are similarly alike to those of the Venezuelan Civil Code. Specific examples thus:
Regarding the status and capacity of persons
Art. 9 of the Spanish CC: The Laws relating to family rights and duties, or to the status, condition and capacity of persons, bind Spaniards, even if they reside in a foreign country.
Art. 9 of the Venezuelan Civil Code: The laws concerning the status and capacity of persons bind Venezuelans, even if they reside or have their domicile in a foreign country.
It is evident that the foreign judge is enabled to understand and apply the law of nationality.
Regarding movable and immovable property, the law of the place or the owner of the thing will or will not be applied:
Art. 10 Spanish CC: Movable property is subject to the Law of the nation of the owner; immovable property, to the Laws of the country where they are located.
However, legitimate and testamentary successions, both regarding the order of succession and the quantum of succession rights and the intrinsic validity of their provisions, shall be governed by the national Law of the person whose succession is concerned, whatever the nature of the property and the country in which it is located.
Art 10 of the Venezuelan Civil Code: Movable or immovable property, situated in Venezuela, shall be governed by Venezuelan laws, even if foreigners have or claim rights over them.
Movable property follows the relation of the owner (law of the owner) and immovable property is governed by the law of the place.
Regarding contractual relations, wills, and others
Art. 11.
The forms and solemnities of contracts, wills and other public instruments are governed by the Laws of the country where they are executed.
When the referred acts are authorized by diplomatic or consular officials of Spain abroad, the solemnities established by Spanish Laws shall be observed in their execution; in such a case, territorial law applies.
Notwithstanding the provisions of this article and the previous one, prohibitive Laws concerning persons, their acts or their property, and those intended for public order and good morals, shall not lose their effect by Laws or judgments issued, or by provisions or agreements made in a foreign country.
Art.11 Venezuelan Civil Code: The form and solemnities of legal acts executed abroad, even those essential to their existence, for them to have effects in Venezuela, are governed by the laws of the place where they are made. If Venezuelan law requires a public or private instrument for their proof, such requirement must be fulfilled. When the act is executed before the competent official of the Republic, it must be submitted to Venezuelan laws.
Legal relations remain linked to the country of execution.
From the different previous legal prescriptions, the difference between the personal statute with respect to the real statute and even that concerning legal relations can be clearly deduced. It is evident how some transcend extraterritorially and others do not, which aligns with what has been pointed out from the doctrine starting from the theory of the statute (or theory of laws in space). Thus, these relations give rise to resolving, in principle, spatial conflicts and, furthermore, authorize the local judge to know and apply foreign law in its case. In Spain, for example, the question of possible conflicts is indicated in article 14 of the Civil Code by instructing: In accordance with the provisions of article 12, what is established in articles 9, 10 and 11, regarding the persons, acts and property of Spaniards abroad, and of foreigners in Spain, is applicable to the persons, acts and property of Spaniards in territories or provinces of different civil legislation. In Venezuela, there is a non-absolute inclination towards local legislation for generality (property and legal relations) and permanence (nationality) for matters of capacity and status of persons. In all cases of movable and immovable property, national law governs, and regarding public acts, proof of the instrument is required, whereby foreign law is applicable; however, if the act was executed in Venezuela, it must be submitted to national legislation.
Evolved Public Order
A separate point is that concerning public order or the so-called good morals. Both ideas are completely ethereal, with little anchorage and offer no direct elements to resolve difficulties; the truth is that in Venezuela, article 6 of the CC expressly states: Laws in whose observance public order or good morals are interested cannot be renounced or relaxed by private agreements. It should be noted that there are many derivations of the concept of public order, for which a better anchorage is offered by the legal text itself when it defines certain matters as of public order, for example, the CC with respect to null matrimonial contracts or in matters of contracts on the prohibition of contracting illicit or false matters, as this lacks legal effects.
Private International Law and its Normative Application
Another special point is that concerning the use or not of national laws with respect to the application of Private International Law. The Venezuelan Code of Civil Procedure itself orders that the application of (substantive) Law shall be attended to within the framework of preferences to the international treaty that has regulated some aspect on the matter; then, in the absence of a treaty, national legislation or laws of the Republic shall be attended to, and lastly, the general principles of Law. Being this way, the international regulation applicable to PIL must first be reviewed. This international framework legislation sets out the rules on nationality, personality, property, and contractual relations that generally govern all signatory states; in any case, the OAS summarizes: "The Convention establishes the primacy of international law over private international law of internal source. It is based on the ex officio application of foreign law, except when the law of a State Party has essential institutions not contemplated in another State Party. Interpretation must adhere to the legal system of the applicable law, not to the norms of the judge. In case of fraud on the law, States Parties may refuse to apply the law of another State Party. Procedural resources are determined according to the law of the forum (lex fori) and legal situations are reciprocally recognized. Finally, the most just solution is sought when a legal relationship is regulated by different laws" (compensations). Thus, the Inter-American Convention states: Judges and authorities of the States Parties shall be obliged to apply foreign law as the judges of the State whose law is applicable would do, without prejudice to the parties being able to allege and prove the existence and content of the invoked foreign law.
However, for this purpose, article 5 of the Venezuelan Private International Law Law states under exceptions: Legal situations created in accordance with a foreign law that attributes competence according to internationally admissible criteria shall produce effects in the Republic, unless they contradict the objectives of the Venezuelan conflict of laws rules, that Venezuelan law claims exclusive competence in the respective matter, or they are manifestly incompatible with the essential principles of Venezuelan public order. Therefore, the rules of foreign law, in accordance with article 8 of that Law, will be adaptable in Venezuela provided their application does not produce results manifestly incompatible with the essential principles of Venezuelan public order and, in general, they will be applied when there is a compatible procedure; otherwise, foreign Law will not be considered appropriate, unless there are pertinent analogous procedures. In the latter case, it is up to the judge and the parties to confront the situation to find a viable and just solution.
Generally, these rules already place a spatial reference framework for foreign laws in Venezuela or Venezuelan law abroad, with which the normative criteria exposed must be attended to, which are, in complex cases, very difficult to adapt to resolve conflicts of that nature. For now, what is evident is that the legislator prefers to exclude at once all those foreign norms that may affect the so-called principles of internal public order, which, preferably, under a progressive interpretation, are related to essential (constitutional rights and guarantees) property that are not extendable or negotiable by private agreement and their application would suppose a confrontation with the internal legal system; in that case, the work of interpretation is a desideratum.
Immunity of International Organizations and Private Entities
Regarding the exception of immunity of international organizations or private entities. Private entities, whether national or foreign, are subject to the same Venezuelan legal rules according to what is indicated in previous paragraphs (regime of legal persons), unless by way of special agreements it is preferred to exclude national jurisdiction and implement the norms that must be applied preferentially, as would be the case with many foreign investment agreements and foreign capital companies that, to cover themselves, these private entities prefer to negotiate for when a conflict situation arises; thus, the rules of national or international arbitration become relevant to preserve investment rights (of property or special services) (many matters and international lawsuits can be cited). In this sense, such international legal actions are commonly processed before ICSID or before the Permanent Court of Arbitration, institutions that have better accommodation and an international profile). However, they will be subject to national rules with the exclusion of movable property that can follow the law of the owner and immovable property insofar as they can dispose under also national rules (article 10 of the Venezuelan CC).
The case of international organizations is different, for which it must be understood that, in most cases, immunity from jurisdiction prevails, which exempts from compliance with certain national laws or norms, at least tax ones, which being general do not embrace these organizations, unlike contractual rules, except in the case of movable and immovable property insofar as they function for the purpose or objective agreed under the figure of the headquarters agreement, or concerning diplomatic or consular relations (international framework conventions). Furthermore, these organizations function with their own statutory rules, where applicable substantive law is compiled (for example, the UN and its related agencies in different countries). In turn, criminal rules may also not embrace their diplomatic representatives (qualified with that special treatment), although there is no absolute impunity, since diplomats must be judged in the accrediting State, unless immunity is waived and prosecution is facilitated in the local venue (ius revocandi domus). Generally, immunity does not embrace civil and administrative matters.
In this way, immunity from jurisdiction is a privilege by concession of the State and therefore operates as an exception, and judges must refrain from hearing or executing decisions against this prerogative against international organizations. However, it has been understood that immunity from jurisdiction, according to International Law, has two clearly differentiated aspects: one as iure imperio and another as iure gestionis. The former are subject to absolute rules of immunity, while the latter (gestionis) relativize that immunity (they pass to the regulation of Private Law or internal regulations in matters linked to legal relations or that are linked to regulations of internal public order).
In this regard, it is worth citing the UN Convention on jurisdictional immunity (not binding at the moment) which for analogical and customary purposes establishes the applicable exceptions to that exemption which include: commercial transactions, employment contracts, damages to property, ownership, possession and use of property, intellectual and industrial property, participation in companies or other collectivities, ships for commercial use, and arbitration agreements. This implies that the exclusions refer to iure gestionis and will depend on the agreements reached between States or between States and international organizations to manage immunity and its treatment in the local venue.
Now, international organizations have a very limited immunity from jurisdiction and it is related to the host State agreements and with the purposes that apply for their management on national soil; consequently, unlike the States that create them, they cannot perform acts outside their purposes, ergo, all their acts are oriented towards the exercise of their function and therefore, they enjoy partial immunity, and that limitation goes in the direction of preserving the public order enshrined in the States, and in particular to protect human rights; this undoubtedly implies the constitutional property that attends to citizens, whether national or foreign, and within these rights, labor, civil and administrative rights are outlined. In some way, the relativization of immunity from jurisdiction has been perceived in some countries, particularly France and Belgium, in whose cases the French Court rejected the immunity of the International Organization because otherwise the plaintiffs would lack a judicial instance and applicable substantive law to the case, within the framework of contractual legal relations. As well as in Belgium in September 2003, the decision was oriented in favor of national jurisdiction since the international organization did not guarantee due process, the members of the commission or Intergovernmental Council were not permanent, and the judicial forum was therefore non-existent.
In the case of the FAO regarding a joint work project between Venezuela and Cuba, it contracted some workers to develop a project; once the work was finished, the FAO did not recognize social benefits. The workers sued in Venezuela and obtained a judgment favorable to their petitions. Other cases brought before Venezuelan justice have given the same result, that is, the character of public order in labor matters is evident and therefore, Venezuelan courts are jurisdictionally competent to hear them; thus, the Political Administrative Chamber of the Supreme Court of Venezuela has marked a specific path.
So that immunity from jurisdiction for international organizations, specifically, national Labor Law prevailed over the rules of exclusion. These particular issues are palpable examples that immunity is not conceived in a full manner and the rules of Public or Private International Law in the terms analyzed in this article are not applicable to it either, which, as could be seen, do not protect it in an absolute manner, that is, there is no numerus clausus.
Conclusions
What has been presented so far leads us to the following reasons:
· The analysis of the theory of statutes and the spatial application of international norms addresses the historical and conceptual evolution of the conflict of laws, especially within the framework of Private and Public International Law. This theory, originating between the 12th and 17th centuries, was fundamental for classifying legal norms into personal, real, and hybrid statutes, and for establishing principles on the territoriality and extraterritoriality of laws.
· In this theoretical process, three key principles are identified: absolute territoriality, absolute extraterritoriality, and a mixed system combining both. Territoriality implies that the laws of a State apply exclusively within its territory, encompassing persons, property, and legal relations, whether national or foreign, although in practice exceptions and tensions arise that have led to the consideration of international comity to facilitate cooperation between States.
· International comity, understood as a voluntary and reciprocal exception to recognize legislative and judicial acts of other States, balances sovereign independence with international cooperation, avoiding a strict and rigid application of territoriality. It gives way to the rules of renvoi (simple, multiple, or partial). Nevertheless, international comity and reciprocity have their counterweight led mainly by two express conditions, one related to respect for public order – the foreign law cannot affect the public order (fundamental principles) of the receiving State.
· It is recognized that concepts like public order and good morals are ethereal and complex but have legal relevance to limit the application of foreign laws that contradict essential principles, especially in Venezuela where public order is protected by mandatory norms that cannot be derogated by private agreements.
· Private International Law establishes a hierarchical framework where international treaties prevail over national legislation and general principles of law. The Inter-American Convention emphasizes the primacy of international law and the obligation to apply foreign law in accordance with its legal system, except for exceptions based on public order or manifest incompatibility, at least with respect to Venezuelan law.
· The rules applicable to private entities and international organizations are differentiated. The former are subject to national legislation unless special agreements establish international arbitration to protect investments. International organizations enjoy limited immunity from jurisdiction, linked to headquarters agreements and specific purposes, with exclusions in commercial, labor, and contractual matters. Immunity is a state privilege and can be relative, especially in cases where human or labor rights are protected, as evidenced by judicial cases in France, Belgium, and Venezuela.
· In summary, the theory of statutes and the spatial application of international norms reflect a dynamic balance between territorial sovereignty, international cooperation, protection of fundamental rights, and adaptation to complex contemporary legal relations, regulated by principles of territoriality, extraterritoriality, and international comity, with special attention to normative hierarchy and exceptions derived from public order and immunity from jurisdiction and substantive legal immunity.
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