International Law in Domestic Courts: A Conflict of Laws Approach

The relationship between international law and domestic law is rarely understood as a conflict of laws. Understanding it in this way opens up a parallel with the field of conflict of laws: the field for which the relationship between legal systems, especially the role of another system\u27s jurisdiction, laws, and judgments vis-à-vis the domestic legal system, are exactly the bread-and-butter issues. We argue for such an approach to international law in domestic courts: an approach that we elaborate as theory through technique. In our view, conflicts should be seen broadly as the discipline that developed to deal with conflicts between laws, without necessarily being committed to any one method or policy. Surprisingly, we demonstrate that it is precisely the seemingly negative features of conflicts - the field\u27s high degree of technicality disparaged as a conflict-of-laws machine and the multitude of theories famously deemed a dismal swamp - that figure among the advantages of a conflict-of-laws approach to international law in domestic courts. A conflict-of-laws approach offers ways to respect the nature of international law as law, without simplifying that nature by characterizing it exactly as domestic law. In addition, seeing the parallel with conflict of laws brings a wealth of experience that can enrich and refine the debate on international law in domestic courts. Finally, the parallel with conflicts changes international law in domestic courts from a specific problem addressed by international and constitutional lawyers into a general problem of relativism - which, we argue, conflict of laws is uniquely positioned to address

From Multiculturalism to Technique: Feminism, Culture and the Conflict of Laws Style

The German chancellor, the French president and the British prime minister have each grabbed world headlines with pronouncements that their state’s policy of multiculturalism has failed. As so often, domestic debates about multiculturalism, as well as foreign policy debates about human rights in non-Western countries, revolve around the treatment of women. Yet there is also a widely noted brain drain from feminism. Feminists are no longer even certain how to frame, let alone resolve, the issues raised by veiling, polygamy and other cultural practices oppressive to women by Western standards. Feminism has become perplexed by the very concept of “culture.” This impasse is detrimental both to women’s equality and to concerns for cultural autonomy. We propose shifting gears. Our approach draws on what, at first glance, would seem to be an unpromising legal paradigm for feminism – the highly technical field of conflict of laws. Using the non-intuitive hypothetical of a dispute in California between a Japanese father and daughter over a transfer of shares, we demonstrate the contribution that conflicts can make. Whereas Western feminists are often criticized for dwelling on “exotic” cultural practices to the neglect of other important issues affecting the lives of women in those communities or states, our choice of hypothetical not only joins the correctives, but also shows how economic issues, in fact, take us back to the same impasse. Even mundane issues of corporate law prove to be dizzyingly indeterminate and complex in their feminist and cultural dimensions. What makes conflict of laws a better way to recognize and do justice to the different dimensions of our hypothetical, surprisingly, is viewing conflicts as technique. More generally, conflicts can offer a new approach to the feminism/culture debate – if we treat its technicalities not as mere means to an end but as an intellectual style. Trading the big picture typical of public law for the specificity and constraints of technical form provides a promising style of capturing, revealing and ultimately taking a stand on the complexities confronting feminists as multiculturalism is challenged here and abroad

From Multiculturalism to Technique: Feminism, Culture and the Conflict of Laws Style

The German chancellor, the French president and the British prime minister have each grabbed world headlines with pronouncements that their state’s policy of multiculturalism has failed. As so often, domestic debates about multiculturalism, as well as foreign policy debates about human rights in non-Western countries, revolve around the treatment of women. Yet there is also a widely noted brain drain from feminism. Feminists are no longer even certain how to frame, let alone resolve, the issues raised by veiling, polygamy and other cultural practices oppressive to women by Western standards. Feminism has become perplexed by the very concept of “culture.” This impasse is detrimental both to women’s equality and to concerns for cultural autonomy. We propose shifting gears. Our approach draws on what, at first glance, would seem to be an unpromising legal paradigm for feminism – the highly technical field of conflict of laws. Using the non-intuitive hypothetical of a dispute in California between a Japanese father and daughter over a transfer of shares, we demonstrate the contribution that conflicts can make. Whereas Western feminists are often criticized for dwelling on “exotic” cultural practices to the neglect of other important issues affecting the lives of women in those communities or states, our choice of hypothetical not only joins the correctives, but also shows how economic issues, in fact, take us back to the same impasse. Even mundane issues of corporate law prove to be dizzyingly indeterminate and complex in their feminist and cultural dimensions. What makes conflict of laws a better way to recognize and do justice to the different dimensions of our hypothetical, surprisingly, is viewing conflicts as technique. More generally, conflicts can offer a new approach to the feminism/culture debate – if we treat its technicalities not as mere means to an end but as an intellectual style. Trading the big picture typical of public law for the specificity and constraints of technical form provides a promising style of capturing, revealing and ultimately taking a stand on the complexities confronting feminists as multiculturalism is challenged here and abroad

International Law in Domestic Courts: A Conflict of Laws Approach

The relationship between international law and domestic law is rarely understood as a conflict of laws. Understanding it in this way opens up a parallel with the field of conflict of laws: the field for which the relationship between legal systems, especially the role of another system\u27s jurisdiction, laws, and judgments vis-à-vis the domestic legal system, are exactly the bread-and-butter issues. We argue for such an approach to international law in domestic courts: an approach that we elaborate as theory through technique. In our view, conflicts should be seen broadly as the discipline that developed to deal with conflicts between laws, without necessarily being committed to any one method or policy. Surprisingly, we demonstrate that it is precisely the seemingly negative features of conflicts - the field\u27s high degree of technicality disparaged as a conflict-of-laws machine and the multitude of theories famously deemed a dismal swamp - that figure among the advantages of a conflict-of-laws approach to international law in domestic courts. A conflict-of-laws approach offers ways to respect the nature of international law as law, without simplifying that nature by characterizing it exactly as domestic law. In addition, seeing the parallel with conflict of laws brings a wealth of experience that can enrich and refine the debate on international law in domestic courts. Finally, the parallel with conflicts changes international law in domestic courts from a specific problem addressed by international and constitutional lawyers into a general problem of relativism - which, we argue, conflict of laws is uniquely positioned to address

A Market for Sovereignty? The Roles of Other States in Self-Determination

How can the popular sovereignty associated with international law’s regulation of self-determination (secession) be reconciled with the state’s traditional property-like prerogative to transfer (cede) territory regardless of the inhabitants’ wishes? Joseph Blocher and Mitu Gulati innovatively propose a “market” for sovereignty that would treat secession more like a sale of property, and cession, less. Existing international law does not conceive of states as potential bidders, buyers, backers, underwriters or investors in a people’s exercise of self-determination. However, international lawyers should not overestimate the differences with Blocher and Gulati’s unconventional proposal. Compared to their idea of market-generated options for sovereignty, the generation of options pursuant to a right of self-determination appears murky in international law. Questions about the rights and duties of other states and the limits on outside investment in a people’s independence were legally salient in colonial self-determination—a doctrinal category of self-determination that Blocher and Gulati neglect. These questions deserve renewed attention in any analytical and critical stock-taking of self-determination in international law

Remembering Chrystal MacMillan: Women\u27s Equality and Nationality in International Law

This article both continues and returns to the story of Chrystal Macmillan and the International Law Association. Some seventy-five years later, gender discrimination still exists in nationality law. For an American audience, Thailand\u27s offer of nationality to U.S. golfer Tiger Woods, whose mother is Thai, highlighted the inequality of Thailand\u27s laws on nationality. Although Thai women, as well as Thai men, can now pass their nationality to their children, the law continues to discriminate against women in other matters of nationality. Whereas the foreign wives of Thai men are specially entitled to apply for Thai nationality, the foreign husbands of Thai women are not. In practice, Thai women married to foreigners are also subject to discrimination in the ownership of land. All Thais married to foreigners are prohibited from owning property in Thailand, but this prohibition is more easily enforced against Thai women because their identity card reveals their marital status and their husband\u27s non-Thai surname. Thai men, whose marital status is not recorded on their identity card, can readily evade enforcement

From Multiculturalism to Technique: Feminism, Culture, and the Conflict of Laws Style

The German Chancellor, the French President, and the British Prime Minister have each grabbed world headlines with pronouncements that their states\u27 policies of multiculturalism have failed. As so often, domestic debates about multiculturalism, as well as foreign policy debates about human rights in non- Western countries, revolve around the treatment of women. Yet feminists are no longer even certain how to frame, let alone resolve, the issues raised by veiling, polygamy, and other cultural practices oppressive to women by Western standards. Feminism has become perplexed by the very concept of culture. This impasse is detrimental both to women\u27s equality and to concerns for cultural autonomy. We propose shifting gears. Our approach draws on what, at first glance, would seem to be an unpromising legal paradigm for feminism-the highly technical field of conflict of laws (conflicts). Using the nonintuitive hypothetical of a dispute in California between a Japanese father and daughter over a transfer of shares, we demonstrate the contribution that conflicts can make. Whereas Western feminists are often criticized for dwelling on exotic cultural practices to the neglect of other important issues affecting the lives of women in those communities or states, our choice of this hypothetical not only joins the correctives, but also shows how economic issues, in fact, take us back to the same impasse. Even mundane issues of corporate law prove to be dizzyingly indeterminate and complex in their feminist and cultural dimensions. What makes conflict of laws a better way to recognize and do justice to the different dimensions of our hypothetical, surprisingly, is viewing conflicts as technique. More generally, conflicts can offer a new approach to the feminism/ culture debate-if we treat its technicalities not as mere means to an end but as an intellectual style. Trading the big picture typical of public law for the specificity and constraint of technical form provides a promising style of capturing, revealing, and ultimately taking a stand on the complexities confronting feminists as multiculturalism is challenged here and abroad

International Law in Domestic Courts: A Conflict of Laws Approach

The relationship between international law and domestic law is rarely understood as a conflict of laws. Understanding it in this way opens up a parallel with the field of conflict of laws: the field for which the relationship between legal systems, especially the role of another system\u27s jurisdiction, laws, and judgments vis-à-vis the domestic legal system, are exactly the bread-and-butter issues. We argue for such an approach to international law in domestic courts: an approach that we elaborate as theory through technique. In our view, conflicts should be seen broadly as the discipline that developed to deal with conflicts between laws, without necessarily being committed to any one method or policy. Surprisingly, we demonstrate that it is precisely the seemingly negative features of conflicts - the field\u27s high degree of technicality disparaged as a conflict-of-laws machine and the multitude of theories famously deemed a dismal swamp - that figure among the advantages of a conflict-of-laws approach to international law in domestic courts. A conflict-of-laws approach offers ways to respect the nature of international law as law, without simplifying that nature by characterizing it exactly as domestic law. In addition, seeing the parallel with conflict of laws brings a wealth of experience that can enrich and refine the debate on international law in domestic courts. Finally, the parallel with conflicts changes international law in domestic courts from a specific problem addressed by international and constitutional lawyers into a general problem of relativism - which, we argue, conflict of laws is uniquely positioned to address