Not that long ago, international family law (IFL) referred to a series of multilateral conventions basically concerned with conflicts of law questions. It could be studied as part of a course on family law or as part of a course on conflicts of law. But IFL, or family law in which more than one State has an interest, has grown up and become a subject of its own.
This is not merely a curricular development. Rather, it reflects and reinforces two of the most powerful trends of the last fifteen years: globalization and the spread of human rights. Globalization is transforming families. The global migrations of capital, and the vast migrations of labor that have accompanied, it have torn families apart, created new families, and radically changed the meaning of family. Borders have become more porous, allowing adoptees and mail order brides to join new families and women fleeing domestic violence to escape from old ones. People of different nationalities marry, have children, and divorce, not necessarily in that order.
There are powerful trends and countertrends everywhere, and competing norms of IFL are at the core of each. International human rights law plays a growing role in mediating these competing norms. Many States have outlawed polygamy and child marriage, for example, at least in part to show the rest of the world they are "modern." IFL is where the enormous abstract forces of globalization and human rights become real, immediate, and personal. IFL, in short, is where globalization hits home.
"Above all, relationships are changing."
--Kwame Anthony Appiah (1)
TABLE OF CONTENTS I. INTRODUCTION--WHEN GLOBALIZATION HITS HOME II. How GLOBALIZATION AFFECTS IFL A. How Mobility Reconfigures Families B. How Income Shifts Power 1. The Transformation of Women's Roles 2. Transnational Support C. How Culture Changes Everything III. HOW HUMAN RIGHTS LAW AFFECTS IFL A. How Human Rights Norms Apply in General 1. In Theory a. Human Rights of the Family b. Human Rights Within the Family 2. In Practice B. Two Crucial Norms 1. Gender Equality 2. Economic Rights IV. INTERNATIONAL FAMILY LAW COMES OF AGE A. Why IFL Matters B. Substantive Laws and How They Function 1. Family Law 2. International Law 3. Comparative Law C. The Impact of IFL 1. On Globalization 2. On Human Rights a. Changing the Laws Defining Families b. Changing the Normative Landscape V. CONCLUSION I. INTRODUCTION--WHEN GLOBALIZATION HITS HOME
Not that long ago, international family law (IFL) referred to a series of multilateral conventions basically concerned with conflicts of law questions. (2) It could be studied as part of a course on family law or as part of a course on conflicts of law. But IFL, or family law in which more than one State (3) has an interest, (4) has grown up and become a subject of its own. Within the past few years, there have been panels on the topic at the Annual Meetings of the Association of American Law Schools, (5) the American Society of International Law, (6) and the International Law Association, American Branch. (7) A major text was published in 2003, (8) and the Family Law Quarterly published a symposium on the subject in 2004. (9) An Introduction appeared in 2005. (10)
This is not merely a curricular development. Rather, it reflects and reinforces two of the most powerful trends of the last fifteen years: globalization and the spread of human rights. Globalization is transforming families. The global migrations of capital and the vast migrations of labor that have accompanied it have torn families apart, created new families, and radically changed the meaning of family. Borders have become more porous, allowing adoptees (11) and mail order brides (12) to join new families and women fleeing domestic violence (13) to escape from old ones. People of different nationalities marry, have children, and divorce, not necessarily in that order. (14) They file suits in their respective home States or third States, demanding support, custody, and property. Otherwise law-abiding parents risk jail when they try to abduct their children from foreign ex-spouses. (15) Local laws alone cannot resolve these matters. Rather, lawyers increasingly draw on a wide range of international treaties, national laws, religious laws, and local traditions.
Even as ties to such traditions become increasingly attenuated, their appeal may become stronger for some. Local leaders may insist on even stricter adherence to local customs, especially those related to marriage, divorce, and children, as their authority is challenged by international norms. (16) In some States, such as Israel, family law has historically been left to religious authorities. (17) In others, such as Nigeria, the authority of religious courts over family law matters is relatively recent. (18) The relegation of family law to religious authorities reflects both its relatively low importance to national governments (compared to foreign investment, for example) and its paradoxically high importance to those who seek to shape the national identity. (19) There are powerful trends and countertrends everywhere, and competing norms of IFL are at the core of each.
International human rights law plays a growing role in mediating these competing norms. The spread of human rights law is both a function of globalization and a counterweight to it. On one hand, the promotion of free market democracy opens both markets and cultures to the powerful appeal of free expression, political participation, and the promise of gender equality. States are also under increasing pressure from their global trading partners to assure basic human rights. (20) Many States have outlawed polygamy and child marriage, for example, at least in part to show the rest of the world that they are "modern." (21) At the same time, human rights law may soften some of the harsher effects of globalization. Even as the International Monetary Fund pressures States to slash social safety nets to be more competitive in global markets, (22) for example, the International Covenant on Economic, Social, and Cultural Rights (23) (Economic Covenant) imposes affirmative obligations on States to support families. (24)
IFL is where the enormous abstract forces of globalization and human rights become real, immediate, and personal. A New York Times reporter went to Ethiopia to cover the AIDS crisis and came home with an AIDS orphan. (25) Elian Gonzalez's mother tried to escape from Cuba with her six-year-old son. (26) After she drowned, his Miami relatives sought to prevent his return to Cuba and to the father who had joint custody of the boy. (27) His return, some claim, cost Al Gore Miami. (28) IFL, in short, is where globalization hits home.
Part II of this Article explains how globalization affects IFL. Part III explains how human rights law affects IFL. Part IV explains how, in response, IFL has come of age and how it is affecting globalization and human rights law.
HOW GLOBALIZATION AFFECTS IFL
Globalization is the "constant revolutionizing of production" and the "endless disturbance of all social conditions." (29) It is "everlasting uncertainty." (30) Everything "fixed and frozen is swept away," and "all that is solid melts into air." (31) As these quotes from The Communist Manifesto (written 150 years ago) indicate, globalization is nothing new. For most of Western history, capital has flowed freely. (32)
But the end of the Cold War, developments in finance, and developments in technology combined to qualitatively change the game during the past fifteen years. The failure of Soviet communism became the triumph of free market democracy (33) as formerly closed markets opened, and capital poured in at a previously unimaginable rate. "In a typical day, $1.5 trillion changes hands, an eight-fold increase since 1986, an almost incomprehensible sum, equivalent to total world trade for four months." (34) But globalization refers to more than the flow of capital. As economist Joseph Stiglitz defines it:
Fundamentally, it is the closer integration of the countries and peoples of the world which has been brought about by the enormous reduction of costs of transportation and communication, and the breaking down of artificial barriers to the flows of goods, services, capital, knowledge, and (to a lesser extent) people across borders. (35) Globalization transforms families in three major ways. First, the increased mobility of families, or of some family members, reconfigures families. Second, income shifts among different families, and among the individuals within families, alters social relations. Third, globalization transforms culture, and culture changes everything. The transformation of families, in turn, places new demands on IFL. The following Sections briefly explain how each of these three factors--mobility, income shifts, and the transformation of culture--affects a discrete aspect of IFL--divorce, support, and custody claims. These are not the only areas of IFL affected, nor are they necessarily the most important. (36) These three areas are targeted here because they suggest the range of issues affected by IFL, from marital status to the transnational flow of currency to the mundane details of children's lives. Each of these areas is a contested site of legal reform and counter-reform. Thus, they are useful, albeit problematic, contexts in which to analyze the ways in which globalization affects families and IFL.
How Mobility Reconfigures Families
As Stiglitz notes, globalization facilitates the mobility of people across borders. (37) This is supported by official data regarding global migration and by the best available data regarding illegal migration. (38) While there is little data disaggregated by family relationships, anecdotal evidence indicates that many of these migrants leave spouses and partners behind. (39) People migrate from poor, labor-exporting States to wealthy, labor-importing States to support...