Right to a name: cross-border family-legal aspects of implementation

Abstract

The increase of cross-border contacts of individuals has shifted the emphasis in modern studies of the right to a name in Civil and Family law to Human rights and Private International Law. The article examines the problems of cross-border implementation of the right of an individual to a name, which are a consequence of state control over the circulation of names, as well as conflicts of national laws. The author offers to get acquainted with the practice of the European Court of Human Rights and the Court of the European Union, which serves as an illustration of the peculiarities of the implementation of the right to a surname in the context of convergence of legal systems. The proposed court decisions demonstrate new approaches to protecting the right of an individual to a surname and open the way to the formation of an internally consistent, coherent system of rules governing the right to a name. The article analyzes the international private legal aspects of the implementation of the right to a surname; special attention is paid to the conflicting principles of determining the law to be applied. The author concludes that domestic practice of assigning surnames should seek to achieve legal certainty. Such practice should not interfere with the exercise of the right to respect for private and family life, freedom of movement and choice of place of residence, or discriminate. Taking into account the results of international justice, national rules on names, conflict of laws norms require revision and updating. The consistent application of lex personalis in determining the applicable law can lead to situations in which the identity of the individual will be in doubt. The solution to this problem is seen not only in improving conflict of laws approaches, but also in the mechanism of recognition of foreign administrative acts. The implementation of this proposal will eliminate lame relationships, ensure legal certainty and stability of the person’s status. The author also proposes to distinguish between conflict of laws rules governing family status and conflict of laws rules governing civil status of an individual.