Before starting, kindly understand that I am reluctant to accept that a system of law can be excluded in such a manner from the intendment of the Regulation on a simple basis of a literal interpretation of the term State in a non-substantive article, out of context.
Forgive me Paul, I am merely setting out the other side of the coin. Bear with me whilst I do so. There may be ramifications for those UK nationals wityh a UK domicile of origin acquiring a domicle of Choice in the Channel Islands.
Is there such a thing as a citizen of the United Kingdom?
The answer is no.
The concept is that of British citizenship. That concept is clearly articulated in the 1972 Accession Treaty, which also incidentally redefines Channel Islanders and Manxmen as British citizens not citizens of the United Kingdom - a concept which does not exist.
A passport technically is sufficient evidence of but not absolute proof of nationality.
If a British citizen, perhaps for the sake of simplicity, born within the United Kingdom, then settles in Jersey and obtains a British Islands Passport, I am in that position, and for example is domiciled within the Bailiwick, then I do not see how your argument that the British national would be limited to the choice of England or Wales or Northern Ireland holds up.
The term “State” even capitalised is not defined in the Regulation, and deliberately so. What is more, it is used indifferently so as to determine another Member State in relation to the Member State having control of the succession. Considerant 23 for example. The Regulation itself makes no attempt to reduce the status of other jurisdictions to non-existence, particularly those outside the scope of the Regulation.
I therefore do not find your literal statement correct within the fullness of the Regulation, albeit superficially correct.
To my mind whilst the term “State” here would include for example the principality of Monaco, and also those of other Non-EU territories, such as Andorra, it would not be limited to as to exclude the Dependencies so as to remove the choice of law in the manner you propose. A colourfull thought to emphasise the point: perhaps a citizen of Andorra will be stuck between two thrones, one Spanish and the other French?
If you look carefully at the manner in which the Bailiwicks have had their independence, and I do not in any way venture a thought on the Isle of Man, which has its own crown, it is evident that John I (Sansterre) rendered them privileged to be governed by their own laws and customs, not by English law. At the time, 1359, the English common law simply did not exist as a coherent body of law, and was in fact administered partly in Norman French. See The Statute of Westminster (the First) 1275. .
On that basis, it is clear that the reality runs against your argument, as that was one of the bases upon which the Islands’ specific status was negotiated with Europe in the first place. The British negotiator Lord Rippon was very clear on that when he presented the Island’s position in relation to the Single European Act proposal to the IOD in Spring 1992.
Your proposed assumption if correct, is such as to effectively subject the non-domiciled individual to a choice of the law of his domicile of origin, which could mean that technically the domicile of origin would revert despite the domicile of choice.
I stress here that the Jersey British citizen is at present a citizen of the European Union by virtue of his British Citizenship and is therefore entitled, whether a Channel Islander under the arrangements or not, to assert that his succession be addressed under the law of Jersey were he so to choose.
It is insufficient to simply assume that the Regulation is as arbitrary as you make out.
Without getting ghoulish, in the old days, the choice of English law in a will was sufficient to render a non domiciliary domiciled ante mortem, as not having severed all links with the legal system governing his personal legal position as of origin: the will being evidence of an intention not to take a domcile of choice…
I agree that it is likely that a disgruntled French otherwise forced heir might take the point that you are making, but to argue that a Jerseyman is unable to opt for the law where he lives and which is a historic privilege granted to him by the British Crown simply does not hold up to practical analysis; all the more so in that the European Union is not able to legislate for all the varying degrees of statehood and quasi statehood known to man.
I agree that the Regulation attempt to distinguish statehood by reference to a single point is simplistic, but I do not agree that it is universal to the point of wiping a system of law of equal historic, if not more senior age as the English common law “off the map”.
I stress here that the Crown Dependencies are not on the United Nations List of non-Self Governing Territories, Gibraltar is on that list as are the Cayman Islands and the Falklands.
I am standing up for the Granite Rock of my abode and the legal system which Lady Hale had no difficulty in recognising as such in the Barclay case. It may be indifferent to a Channel Islander living in the UK who can break a domicile of choice in the United Kingdom, but not in the contrary sense.
Peter Harris
www.overseaschambers.com