The crucial role of the states and private international law treaties: a model for accommodating globalization.

• Author: Ku, Julian G.

1. INTRODUCTION

   This brief essay highlights the central and important role that state governments play in the development and integration of private international law treaties into the United States legal system. States play this central role even though, as some of the papers in this symposium have concluded, there are few, if any, constitutional constraints on the ability of the federal government to sign, ratify, and implement treaties that would displace state law.

   The primacy of states in the integration of private international law, this essay argues, points the way to a model of accommodation of other kinds of treaties affecting traditional areas of state control. The model of state government control over the integration of private international law offers a healthy, if modest, alternative to the sometimes reflexive nationalism pervading scholarship in this area that, in its most extreme form, has suggested that federalism is "largely irrelevant to the conduct of foreign affairs." (1)

2. THE UNITED STATES AND PRIVATE INTERNATIONAL LAW

   As the U.S. Supreme Court has explained,

   International law, in its widest and most comprehensive sense--includ[es] not only questions of right between nations, governed by what has been appropriately called the law of nations; but also questions arising under what is usually called private international law or the conflict of laws, and concerning the rights of persons within the territory and dominion of one nation by reason of acts, private or public, done within the dominions of another nation. (2) Private international law is thus concerned with relations between individuals of different states, as opposed to public international law, which is concerned with relations between the different states themselves. Beginning in the twentieth century, however, nations began to use the tools of public international law, especially treaties, in order to unify rules of private international law. The Hague Conference on Private International Law, for instance, was established to foster unification of rules governing conflicts of law, contracts, wills, domestic relations, and commercial transactions via international agreements. Thirty-nine treaties have been negotiated under the auspices of the Hague Conference. Similarly, the United Nations Commission on International Trade Law has sponsored nine such treaties, and the International Institute for the Unification of Private Law has sponsored eleven treaties.

   The United States, however, is a party to only a small proportion of these private international law treaties. Of the roughly fifty-nine major conventions to which the United States could have acceded, it has only joined the following seven treaties: the United Nations Convention on the International Sale of Goods, the New York Convention for the Recognition and Enforcement of Judgments, the Hague Convention on the Civil Aspects of International Child Abduction, the Hague Convention on Intercountry Adoption, the Hague Convention on Service Abroad, and the Hague Convention on Taking Evidence Abroad, and the Hague Convention on the Legalization of Foreign Public Documents.

   This short list is notable for what it leaves out. The United States is not a party to treaties governing private international law questions such as the recognition of foreign court judgments, marriages, divorces, trusts, wills, family support, and maintenance obligations, or foreign private law instruments such as wills, adoptions, and divorces. The United States is also not a party to commercial law treaties such as those codifying rules of e-commerce, standby-letters of credit, factoring, commercial finance, and other commercial law rules.

   In most cases, the failure of the United States to join the private international law treaty systems leaves these matters to state law. For instance, there is no federal law governing the recognition of foreign judgments, nor is there a federal law creating national rules for resolving conflicts of laws. All of these matters, without a treaty, are entirely left to the states.

3. STATE IMPLEMENTATION OF PRIVATE INTERNATIONAL LAW TREATY OBLIGATIONS

   Even in those cases where the federal government has joined a private international law treaty, states often play a major role in the...