CECS seminar with LERU Law PhD Exchange student Nicole Stybnarova

“Recognition of personal statuses under Private International Law and Migration Law – critical reconstructive perspective on the role of sovereignty”

Nicole Stybnarova is based in the University of Helsinki as a PhD. fellow. Her project entitled: ‚‚Recognition of a personal status under Private International Law and Migration Law – historical reconstructive critical approach’’, presents an intersection between Private International Law and Migration Law. Prior to joining legal research, Nicole worked in the field of Migration Law for 4 years, including a work in diplomatic services of Czech Republic in Denmark. She takes part in international research projects, such as the CUREDI project of the Max Planck Institute of Social Anthropology, where she contributes as a national correspondent for the Czech Republic, or ‚‚Young PIL Scholar’’ – a joint comparative project of the University in Bonn and University in Gratz. She is teaching and coordinating a course entitled Migration Law and Human rights.

Nicole Stybnarova will be staying at CECS for 6 weeks as a part of the LERU research programme scheme under the supervision of prof. Hanne Petersen.

Summary of her research:
The research compares recognition of personal status in the fields of Private International Law (PIL) and Migration Law (ML). Doctrinally, the method of recognition consisting of registering and admitting effects of foreign change of personal status, is anchored in PIL. It, however, is applied also within the field of Migration Law as a part of assessing family reunification cases. The doctrinal principles for recognition as a part of family reunification are under-studied, which prevents the legal scholarship from analysing e.g. if the double standard for recognition of personal status as a part of family reunification under EU Family Reunification Directive, adopting different approach to recognition of polygamous marriages and recognition of same-sex marriages (imposed on countries where these unions are not regulated), is having a justifying doctrinal foundation. Additionally, it prevents scholars from assessing whether the development of ECtHR adjudication of human rights limits in recognition of personal status under the scheme of PIL can apply to cases regulated under ML and to what extent.

The research examines if these two recognitions are sharing the same doctrinal roots, in terms of what methods are used and how interests are balanced in adjudication argumentation. For this examination, the research adopts internal and external comparison of recognition in PIL and ML cases in three countries – Czech Republic, Denmark and England.

After identifying the intersections and differences between the two recognitions as applied in the three countries, the research employs historical reconstructive approach to analyse the systematic and teleological premises for recognition under the two legal fields and how these premises reflect in the up to date law application. In particular, the research investigates the role of sovereignty. Firstly, its internal aspect in the positioning of the state towards the individual, where the research scrutinizes sovereignty from the post-colonial perspective of interconnection of culture and sovereignty and of sovereignty as an exclusive agent. Secondly, the research investigates the external aspect of sovereignty reflecting in recognition, through revisiting of the doctrine of vested rights and its historical rejection in continental jurisdictions. The research examines how the international enactment of human rights and the country-of-origin principle in the EU possibly in fact eroded the territorial understanding of sovereignty and pathed a way for a revival of the vested rights theory.

The aim of Nicole’s research stay in Denmark is to collect data from Danish administrative and court decisions and compare how Danish law is interpreted and applied in cases of recognition of personal status falling into the fields of Migration Law and Private International Law. Then interpret and compare the Danish doctrine in a historical reconstructive perspective.

All parties are welcome - registration is not necessary.