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The Relationship of Private International Law to Public International Law

Author(s): John R. Stevenson


Source: Columbia Law Review, Vol. 52, No. 5 (May, 1952), pp. 561-588
Published by: Columbia Law Review Association, Inc.
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Vol. 52 MAY, 1952 No. 5

THE RELATIONSHIP OF PRIVATE INTERNATIONAL LAW


TO PUBLIC INTERNATIONAL LAW
JOHN R. STEVENSON

Although public international law is usually defined as the body of


norms binding upon civilized States in their relations with one another,' a
more accurate definition would include all norms having their source in the
international community of States rather than in individual States.2 While
at first blush a consideration of the relationship of private international law
to this body of norms may seem of purely theoretical and abstract interest,
it is in actuality the starting point in determining the framework within
which individual States can develop rules of private international law
responsive to the needs of the international community. Discussion of the
relationship of private to public international law is meaningful, however,
only if private international law is carefully delimited. Many of the dif-
ferences among scholars regarding this relationship can be explained in
terms of their varying views, either explicit or implicit, as to the scope of
private international law. An examination of the scope of private inter-
national law is therefore a useful introduction to the discussion of the re-
lationship.
I. SCOPE OF PRIVATE INTERNATIONAL LAW

By private international law is meant the body of norms applied in


international3 cases to determine the judicial jurisdiction4 of a State, the

1. Compare BRIERLY, THE LAW OF NATIONS 1 (4th ed. 1949).


2. The more widely accepted definition does not take account of the increasing number
of instances where public international law imposes obligations directly upon individuals-
for example, the norms of public international law prohibiting piracy or war crimes. See
KELSEN, GENERAL THEORY OF LAW AND STATE 343 (1945). Moreover, the international
personality of some international organizations has been expressly recognized. See Repara-
tion for Injuries Suffered in the Service of the United Nations, International Court of Justice
Advisory Opinion, I.C.J. REP. 174 (1949).
3. "International" is used in a broad sense to include all cases in which some important
element is foreign to the forum, as, for example, the nationality of one of the parties, the
place of making a contract, or the situs of property.
Strictly speaking, private international law should probably be limited to situations
in which international as opposed to interstate jurisdiction, choice of law, or foreign judg-
ment questions are present. Such limitation, it may be noted, does not exclude problems
involving the law of a state and some foreign State, or even the law of two states, if subject
to different States. (The terms "state" and "interstate" are used to refer to dependent
states, whereas "State" describes an independent nation.)
4. By "judicial jurisdiction" is meant the power of a State to empower one of its

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562 COLUMBIA LAW REVIEW

choice of the particular system or systems of law to be applied in reaching a


judicial decision, and the effect to be given a foreign judgment. This defini-
tion does not differ greatly from the definitions postulated by many writers
on private international law.5 There is considerable disagreement, however,
as to the matters which can be brought within this or similar definitions.
Most continental6 and some Anglo-American7 writers include the rules of a
particular State governing the acquisition and loss of nationality. Such
rules, it is true, are important in deciding a private international law case in
a jurisdiction where personal law is governed by a person's nationality. But
nationality, in contrast to a "localizing" factor like domicile, is determined
without regard to the policy considerations of private international law.8
Moreover, nationality rules alone do not determine either judicial jurisdic-
tion, choice of law, or the effect of a foreign judgment. Consequently, they
will not be considered as forming part of private international law.
The status of aliens under the entire body of municipal law of a given
country is also frequently discussed in continental treatises on private in-
ternational law.9 All rights accorded foreign nationals are related to public
international law, for public international law establishes certain broad
standards for the treatment of foreign nationals to which municipal law
must conform. But only those municipal law norms affecting aliens which
relate as well to judicial jurisdiction, choice of law, or foreign judgments
are properly included within private international law. Matters such as
the right of aliens to engage in certain occupations or to own land present
problems and suggest policy considerations entirely different from those in-
volved in jurisdictional, choice of law, and foreign judgment questions.
The assistance rendered by the courts of one nation to those of another
is a further topic sometimes included within private international law.'0 Al-
though clearly of practical importance to the international lawyer, the rules

governmental instrumentalities to hear a particular controversy and give judgment in the


premises. The question whether under the municipal law of the State a given state agency
has been so empowered is not here relevant. That question is more properly designated as
one of the competency of the court. A similar distinction is often made between the judicial
jurisdiction of an American state under the United States Constitution and the competency
under state law of one of its courts.
5. See WESTLAKE, PRIVATE INTERNATIONAL LAW 4 (7th ed., Bentwich, 1925): "Private
international law . . . finds its unity in a certain class of questions which may arise in any
action, those namely in which it is sought in what national jurisdiction an action ought to be
brought, or by what national law it ought to be decided."
6. See 1 PILLET, TRAITA PRATIQUE DE DROIT INTERNATIONAL PRIVA 177-284 (1923).
7. See DICEY, CONFLICT OF LAWS 164-91 (2d ed. 1908).
8. "[Nationality rules] fall into a category of rules which must be different in and
peculiar to each state, and can find no place in a system of rules which, in theory at any rate,
in contradistinction to the purely territorial law of a country, can and should be more or
less the same in every state and are considered pre-eminently those which must be worked
out by legal science." Beckett, What is Private International Law?, 7 BRIT. Y.B. INT'L L.
73, 88 (1926).
9. See PILLET, op. cit. supra note 6, at 310-33.
10. See NUSSBAUM, PRINCIPLES OF PRIVATE INTERNATIONAL LAW 223 (1943).

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PRIVATE AND PUBLIC INTERNATIONAL LAW 563

(or practices) pertaining to judicial assistance have only a tenuous connec-


tion with judicial jurisdiction, choice of law, or foreign judgments, and the
propriety of their inclusion is questionable.
On the other hand, the norms concerning the immunity of foreign
sovereigns, diplomats, and State property from judicial jurisdiction def-
initely should be included within private international law. No reason ap-
pears for excluding these norms except an unwillingness on the part of some
writers to admit any relation between private and public international law;
they must, of course, concede that public international law regulates this
aspect of judicial jurisdiction."I
The question whether the rules governing judicial jurisdiction and
choice of law in criminal cases ought to be included within private inter-
national law is a difficult one. The role of choice of law rules in criminal cases
is very limited. Generally a State will refuse to enforce in its courts the
criminal law of another State;"2 if a court finds that the criminal law of the
forum cannot be applied-that is, that the State of the forum lacks legisla-
t:ive jurisdiction over the crime alleged"3-the court will not proceed with
the case even though it has judicial jurisdiction over the accused. This is to
be distinguished from the usual practice in civil actions. There the courts of
t:he forum will apply the law of a foreign country in accordance with ordinary
choice of law principles, at least where it is not contrary to the public policy
of the forum to do so. The difference, however, is one of degree and not of
kind, for the decision to apply or not to apply the law of the forum in a
criminal case is essentially a matter of choice of law.
An argument can be made that the word "private" in "private inter-
national law" excludes criminal cases since criminal law must be regarded as
public law. This points up a disadvantage in using "private international
law" to cover the areas of judicial jurisdiction, choice of law, and foreign
judgments in international cases. Nevertheless, the term and its synonym

11. See Beckett, supra note 8, at 90.


12. See The Antelope, 10 Wheat. 66, 122 (U.S. 1825); 1 OPPENHEIM, INTERNATIONAL
LAW 296 (7th ed., Lauterpacht, 1948).
13. This finding will usually take the form of interpreting a municipal statute in such a
way that it does not violate the limits set by public international law on the legislative jur-
isdiction of States. See Murray v. The Schooner Charming Betsy, 2 Cranch 64, 118 (U.S.
1804).
"Legislative jurisdiction" is used to mean the power to provide the substantive law
governing a given fact situation. In this sense legislative jurisdiction sets the outer limits
for choice of law. The choice must be made among the laws of those States having legisla-
tive jurisdiction-assuming there is more than one, though there need not be. In a criminal
case municipal courts will usually apply the law of the forum if the State of the forum has
legislative jurisdiction; if not, they will either dismiss or, by persisting in applying the law
of the forum despite the lack of legislative jurisdiction, run the risk of subjecting the State
to an international claim. Here legislative jurisdiction does not merely set the outer limits
as in the ordinary civil case where the law of another State may be applied, but is itself
determinative of the only choice of law question open to the court-whether or not it will
apply the criminal law of the forum.

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564 COLUMBIA LAW REVIEW

"international conflict of laws," which present


linguistic difficulties,'4 have been so generally i
that to coin a new term seems hardly worth the candle. This is certainly not
the only instance in which a term compounded of words in common usage
has been given a technical meaning distinct from the ordinary connotations
of its components.
To the more substantial argument that the "whole set of principles and
considerations by which jurisdiction or choice of law in criminal matters is
said to be governed is entirely different from those postulated in the realm
of private law,"'5 the best answer is that while there are differences, both
the private and criminal law norms are concerned with what Beale called
"the application of laws in space."'6 To treat this body of criminal law norms
as a separate field entitled "international penal law" tends to obscure the
real similarities of jurisdictional and choice of law questions in both criminal
and civil cases. Again the suspicion creeps in that those who insist on such a
separation are the prisoners of their own hypothesis that public international
law is utterly unrelated to private international law. For they must acknowl-
edge'7 that public international law regulates a State's legislative'8 and
judicial'9 jurisdiction in criminal cases.

II. DIVERSE VIEWS OF THE RELATIONSHIP

The views of legal scholars on the relationship of private to public in-


ternational law run the gamut from subsuming private international law
as an integral part of public international law to denying any connection
whatsoever between the two bodies of norms. The extreme positions will be
considered first.
The basic proposition of what has been characterized by Nussbaum as
the "law of nations doctrine" of private international law is that the rules
of private international law are derived from and sanctioned by public in-
ternational law.20 The doctrine received its initial impetus from the writings

14. "Conflict of laws" is descriptive of choice of law problems, rather than of problems
involving judicial jurisdiction or the effect of a foreign judgment, though in technical usage
it embraces all three. Moreover, even in the choice of law area various legal systems do not
really conflict; they merely differ, with the "conflicts" norm providing the basis for choice
among them.
15. Beckett, supra note 8, at 94.
16. BEALE, CONFLICT OF LAWS ? 1.1 (1935).
17. See Beckett, supra note 8, at 92.
18. The S.S. Lotus, P.C.I.J., Ser. A, No. 10 (1927); HARVARD RESEARCH IN INTERNA-
TIONAL LAW, JURISDICTION WITH RESPECT TO CRIME Arts. 3-11 and Comments (1935).
19. HARVARD RESEARCH IN INTERNATIONAL LAW, JURISDICTION WITH RESPECT TO
CRIME Arts. 12, 13 and Comments (1935). For proposed further public international law
limitations on judicial jurisdiction in criminal cases, see id. Arts. 14-17 and Comments.
20. Nussbaum, Rise and Decline of the Law-of-Nations Doctrine in the Conflict of Laws,
42 COLUMBIA L. REV. 189, 192 (1942).

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PRIVATE AND PUBLIC INTERNATIONAL LAW 56t5

of Savigny in the nineteenth century. Savigny found evidence in the prac-


tice of States of an "international common law of nations" designed to en-
sure that in private international law cases the same legal relations would

produce the same decision regardless of the forum in which a case was
litigated.2' In accordance with his jurisprudential theory of the primacy
of customary law over legislation, he regarded international treaties on
private international law questions merely as the "expression of the com
rnunity of legal feeling" and "attempts to make it more clearly appre-
fiended."22
The law of nations doctrine has won adherents mainly on the Con-
tinent.23 With one or two exceptions,24 Anglo-American jurists have em-
phatically rejected its basic proposition; indeed, the majority has even
clenied that there is any connection at all between private and public in-
ternational law.25 Dicey, the most influential English private international
lawyer, took the position that the rules governing choice of law and jurisdic-
tion are rules of municipal law exclusively, "as much [a] part of the law of
E ngland as the Statute of Frauds *,"26 and that foreign law, or as he
preferred to put it, "rights acquired under foreign laws,"27 can be enforced
only by permission of the territorial sovereign. Austinian jurisprudence
simplified for him the problem of defining the relation between private and

21. SAVIGNY, CONFLICT OF LAWS ? 348 (2d ed., Guthrie's transl., 1880).
22. For the parallel doctrine developed by Mancini and his followers, see Farrelly, The
Basis of Private International Law, 9 L.Q. REv. 242, 245 (1893).
The leading twentieth century expositor of the "law of nations" doctrine was Antoine
Pillet. For a summary of his views, see PILLET, op. cit. supra note 6, at 18-21: "Toute ten-
tative faite pour isoler le droit international prive du droit international public contient en
germe une erreur de methode. . . . Tous les conflits de lois sont des conflits de souver
ainetes. ... Si dans un pays on hesite a doniier effet 'a un acte passe dans un autre pays,
c'est qu'on se demande si un droit obtenu sous 1'egide d'une souverainete peut avoir son
effet au dela du territoire ou domine cette souverainete, et lorsqu'a l'effet international ainsi
reconnu on apporte certaines exceptions, c'est g6neralement pour menager les droits et les
devoirs de sa propre souverainete qu'on le fait. Donc les questions du domaine de notre
science touchent toutes au rapports des souverainetes entre elles et ses precepts n'ont,
quant 'a leur nature, rien qui les distingue des lois du droit international public. Il n'en est
pas autrement en matiere de conflits de comp6tence, car le droit de juger est un attribut
essential de la souverainet'e.
23. Ibid.
24. E.g., STOWELL, INTERNATIONAL LAW 299-300 (1931): "The system of laws, known
as conflict of laws or private international law, is administered by national courts and is a
part of the national system of administration of justice. Nevertheless, in the discharge of this
duty the national courts fulfill an international function analogous to that fulfilled by prize
courts, which are national courts. . . . The rule applied is, it is true, a part of a national
system of law, but the obligation to apply the rule identical with that of the foreign juris-
diction is none the less an international obligation which rests upon the state."; Brown,
P'rivate versus Public International Law, 36 Am. J. INT'L L. 448, 449 (1942): "Private in-
ternational law must no longer be relegated to a separate and inferior status. There is no
clear line of demarcation between it and public initernational law. Both are integral parts of
the law of nations."
25. See Lorenzen, The Theory of Qualifications and the Conflict of Laws, 20 COLUMBIA
L. REV. 247, 269 (1920).
26. DICEY, op. cit. supra note 7, at 3.
27. Id.atll.

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566 COLUMBIA LAW REVIEW

public international law. He dismissed the nor


law as not "in the proper sense of the term 'laws,' " because they are not
"commands proceeding from any sovereign."28 Private international law,
on the other hand, is law "in the strictest sense of that term,"29 for it pro-
ceeds from the sovereign of a given State. Since in his view public inter-
national law imposed no legal restraints on an independent State, Dicey
could include even such topics as diplomatic immunity30 within private in-
ternational law and still consistently maintain that it was not related to
public international law.3'
Other writers, while disagreeing with Dicey in that they recognize the
legal character of public international law, nevertheless have denied that it is
related to private international law. They have argued that the adjudica-
tion of a private international question has never been held to violate public
international law-or even to constitute a ground for international protest.32
To maintain this position with a degree of plausibility, they must, of course,
eliminate from private international law such topics as diplomatic immunity
and criminal jurisdiction.33
Many jurists have taken the middle position that while some aspects
of private international law are intimately related to public international
law, others have no significant connection therewith. Beale, for example,
conceded that jurisdiction has international law aspects,34 but maintained
that in general the doctrines of conflict of laws have no international legal
sanction.3 Although Niboyet treats matters involving aliens' rights and
diplomatic immunity as governed by public international law, he regards
private international law otherwise as strictly national law.3" Cheatham
grants public international law a definite place with respect to judicial
jurisdiction, but tends to minimize its relation to choice of law unless specific

28. Id. at 14.


29. Ibid.
30. Id. at 195-201.
31. It is interesting to note that in the 1949 edition of Dicey's treatise, edited by a dis-
tinguished group of English private international lawyers headed by J.H.C. Morris, public
international law is referred to as "the species of law governing the relations between na-
tions." DICEY, CONFLICT OF LAWS 7 (6th ed., Morris, 1949). Diplomatic immunities are
still included as part of private international law. Id. at 131-41. Yet private international
law is regarded as "without any vital connection with international law as ordinarily under-
stood. . . ." Id. at 8.
32. Beckett, supra note 8, at 84; Aubry, De la Notion de Territorialite en Droit In-
ternational Prive, 28 JOURNAL DU DROIT INTERNATIONAL PRIvk 643, 651 (1901): "Malgre
toutes les solutions arbitraires ou fantaisistes qu'ils ont pu recevois, ils [les conflits des lois]
n'ont jamais trouble les relations de la politique exterieure ni provoques meme le plus leger
froncement de sourcil d'un diplomate."
33. Beckett, supra note 8, at 90-94.
34. BEALE, op. cit. supra note 16, ? 1.10.
35. Id.B?T5. 1.
36. 1 NIBOYET, TRAITA DU DROIT INTERNATIONAL PRIvk FRANgAIS 55-65 (2d ed. 1947)

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PRIVATE AND PUBLIC INTERNATIONAL LAW 567

rules have been established by treaty.37 Starke sees in public international


law only the most general guidance except where a treaty provides explicit
rules or where a case is before an international tribunal.38

III. PUBLIC INTERNATIONAL LAW AS PROVIDING VARYING DEGREES OF


GUIDANCE TO PRIVATE INTERNATIONAL LAW

Much of the difficulty in discussing the "relationship" of private to


public international law springs from the variety of relationships which may
be considered. Private and public international law are, for example, ob-
viously related as to purpose; they are both:
ultimately concerned with the possibility of maintaining a unified
economic and social order for the conduct of international trade
and intercourse among independent political units of diverse cul-
tures and stages of civilization, different legal and economic sys-
tems and varying degrees of physical power and position.39

The relationship with which this article is concerned however, is somewhat


more narrow. Inquiry is directed primarily to the question whether or
not there is a relationship of dependency or identity between the norms of
private international law and those of public international law and to the
nature of the dependency if found.

A. Private International Law Norms Applied by International Tribunals


Initially a distinction should be made between the norms of private in-
ternational law applied by international tribunals and those applied in
municipal courts. The private international law norms applied by an in-
ternational tribunal in determining its jurisdiction generally find their
source in its constitutive treaty or agreement and are therefore clearly norms
of public international law.40 With respect to choice of law, on the other

37. Cheatham, Sources of Rules for Conflict of Laws, 89 U. OF PA. L. REV. 430, 432-36,
444 (1941).
38. Starke, The Relation between Private and Public International Law, 52 L.Q. REV.
395, 400 (1936).
39. DUNN, THE PROTECTION OF NATIONALS 1 (1932).
40. See JESSUP, A MODERN LAW OF NATIONS 124 (1948): "It is a common lay error to
draw a sharp distinction between treaties and international law in general. Many who are
not aware of the operation of the international legal process are wont to assert that 'there
isn't any international law,' but that treaties are something different. . . . This reasoning
overlooks the fact that no agreement has legal significance except against the background
of a system of law which attaches legal consequences to the contractual act. . . . The con-
fusion in the lay mind has not been dissipated by the common practice in the United States
of referring to international law as embracing only customary law, which, to be sure, in-
cludes the law of treaties but not the treaties themselves. Thus it is frequently said that
international conduct is regulated by international law and treaties. The European practice
of distinguishing between customary and contractual international law and including both
types when the term 'international law' is used alone is more helpful."
Treaties and other international agreements clearly come within the definition of public
international law employed in this article since they have their source in the international
community, rather than in the unilateral legislative act of a single State.

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568 COLUMBIA LAW REVIEW

hand, international tribunals are rarely guided by treaty provisions and


must find the pertinent norms elsewhere.
1. The Serbian and Brazilian Loan Cases. The Permanent Court of
International Justice was presented with choice of law problems, without
treaty guidance, in Cases of Serbian and Brazilian Loans.41 The issue was
whether service of pre-World War I Brazilian and Serbian bonds issued in
France should be effected on the basis of the French paper franc or the gold
franc. In both cases the court ruled that the bondholders were entitled to
payment in gold francs. Two choice of law questions were passed on: in
regard to the substance of the debt and the validity of the contractual provi-
sions defining it, Serbian and Brazilian law respectively were found to be
controlling.42 French law, however, was held to determine the currency in
which payment must or might be made in France.43
What were the choice of law norms applied in reaching these con-
clusions and what, if any, was their relation to public international law?
As for the choice of law rules applied, the court indicated that in general
it would ascertain the law governing a contractual obligation "by reference
to the actual nature of these obligations and to the circumstances attendant
upon their creation, though it . . . [might] also take into account the ex-
pressed or presumed intention of the Parties."44 But "it may happen that
the law which may be held by the Court to be applicable to the obligations
in the case, may in a particular territory be rendered inoperative by a
municipal law of this territory-that is to say, by legislation enacting a
publih policy the application of which is unavoidable even though the con-
tract has been concluded under the auspices of some foreign law [and] . . .
even apart from rules of public policy, it is quite possible that the same law
may not govern all aspects of the obligation."45 In particular, though some
foreign law may be held applicable to the substance of a debt, it is "a gen-
erally accepted principle that a State is entitled to regulate its own cur-
rency," and the law of the place of payment may be applied as to method of
payment at least where this "does not affect the substance of the debt to be
paid and does not conflict with the law governing such debt."46
These quotations are set forth not to evaluate from the standpoint of
private international law theory or practice the appropriateness of the
particular choice of law principles enunciated,47 but to establish beyond cavil

41. P.C.I.J., Ser. A, No. 20/21 (1929).


42. Id. at 40-44, 120-22.
43. Id. at 44, 122.
44. Id. at 41; cf. id. at 121.
45. Id. at 41.
46. Id. at 44.
47. For an incisive criticism of the court's reasoning and the choice of law principles
applied, see NUSSBAUM, MONEY IN THE LAW 417 (rev. ed. 1950).

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PRIVATE AND PUBLIC INTERNATIONAL LAW 569

that the court did apply choice of law rules in reaching its decision. Such a
conclusion is necessarily a preliminary to the inquiry into the source of the
choice of law rules applied. Unfortunately the opinion does not give an
equally unambiguous answer as to the source of these rules,48 though it does
discuss the problem in general terms:

Any contract which is not a contract between States in their


capacity as subjects of international law is based on the municipal
law of some country. The question as to which this law is forms
the subject of that branch of law which is at the present day usually
described as private international law or the doctrine of conflict of
laws. The rules thereof may be common to several States and may
even be established by international conventions or customs, and
in the latter case may possess the character of true international
law governing the relations between States. But apart from this,
it has to be considered that these rules form part of municipal
law.49

The court thus admitted that, as a theoretical possibility, the choice of


law rules applied by international tribunals might be norms of public inter-
national law when "established by international conventions or cus-
toms. . . ." But what if-as in the case before it-there are no choice of
law rules stipulated by international agreement between the parties and the
court cannot find any clearly established customary rule? The last sentence
of the quotation might be read to indicate that in this kind of situation an
international tribunal should apply municipal private international law
norms. But this opens up the further question: the private international law
norms of what State? The opinion of the Permanent Court in no way sug-
gests that the private international law norms of the Netherlands or of any
other particular jurisdiction were being applied, nor does it indicate the
underlying criteria by which the appropriate jurisdiction should be selected.
It is hardly reasonable to assume that the conflict of laws norms of the juris-
diction in which the international tribunal is sitting should be applied on
some strained analogy to the practice of United States federal courts exer-
cising diversity jurisdiction.50 Such a practice would often lead to the ap-
plication of the private international law norms of a State having no con-
nection whatsoever with the facts of the controversy. Moreover, it might
prevent an ad hoc tribunal from sitting in the most convenient forum, or
even lead to a party's refusal to submit a given controversy to an established

48. As a matter of fact, the opinion is not really lucid on either point. Indeed, by reason
of its lack of clarity, the opinion has provided grist for the mill of the nationalist school. See
Beckett, Decisions of the Permanent Court of International Justice on Points of Law and
Procedure of General Application, 11 BRIT. Y. B. INT'L L. 1, 17-21, especially 18 n.1 (1930).
49. Cases of Serbiani and Brazilian Loans, P.C.I.J., Ser. A, No. 20/21 at 41 (1929).
50. See Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487 (1941).

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570 COLUMBIA LAW REVIEW

international tribunal because it was sitting in a jurisdiction whose private


international law rules were unfavorable to that party's case.
A more plausible interpretation of both the court's language and con-
clusions is that it was applying, as authorized by its constitutive statute,
"the general principles of law recognized by civilized nations. . . ."5 In
that event, municipal private international law rules would be relevant-not
the rules of any one jurisdiction chosen on some arbitrary basis such as the
situs of the tribunal, but the rules of all civilized nations as evidence of a
generally accepted principle to be applied by an international tribunal as a
norm of public international law.52 That this was the approach actually
taken by the court may be inferred from its statement that the principles
of law it chose to follow "would seem to be in accord with the practice of
municipal courts in the absence of rules of municipal law concerning the
settlement of conflicts of law."53
The dissenting opinions of Judge de Bustamante also suggest that the
private international law norms applied were norms of public international
law as herein defined, though they were not such under de Bustamante's own
terminology in which public and private international law are defined as
coordinate branches of international law,54 with "the conjunction of prin-
ciples determining the limits in space of the legislative competence of
states"55-namely, legislative jurisdiction and choice of law rules-regarded
as private international law whether applied in a municipal or an inter-
national forum. If one puts to one side the broad statements as to the in-
applicability of public international law which his definition of that subject
requires,56 it appears that de Bustamante, like the majority did not in fact
apply the private international law norms of any one jurisdiction (though
he implied that he might) ;57 rather, to the extent that he was not frankly
legislating, he applied the "general principles of law recognized by civilized

51. STATUTE OF THE PERMANENT COURT OF INTERNATIONAL JUSTICE Art. 38; cf.
STATUTE OF THE INTERNATIONAL COURT OF JUSTICE Art. 38. The articles are identical in
this particular.
52. This is not to suggest that an international tribunal can never apply municipal law
as such. The purpose of the choice of law inquiry in Cases of Serbian and Brazilian Loans
was to find the applicable municipal substantive law.
53. Cases of Serbian and Brazilian Loans, P.C.I.J., Ser. A, No. 20/21 at 41.
Similarly, the court stated that the rule entitling a State to regulate its own currency
was a "generally accepted principle." Id. at 44, 122. So far as this rule was concerned, the
court might have been looking directly to established principles of public international law
rather than to a generally recognized principle of municipal law to be applied as public
international law. In either event, however, the public international character of the norm
applied is demonstrated.
54. See DE BUSTAMANTE, MANUEL DE DERECHO, INTERNACIONAL PUBLICO 11 (1947);
DERECHO INTERNACIONAL PRIVADO 18 (3d ed. 1943).
55. DE BUSTAMANTE, MANUEL DE DERECHO, INTERNACIONAL PUBLICO 11 (1947).
56. See Cases of Serbian and Brazilian Loans, P.C.I.J., Ser. A, No. 20/21 at 52 (1929).
57. See id. at 129.

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PRIVATE AND PUBLIC INTERNATIONAL LAW 571

nations." The following excerpts from his opinion in the Brazilian Loans
case make this clear:

As regards the [law applicable to contracts], there is a universal


consensus of opinion as to the will of the Parties being para-
mount. . . . In my opinion . . [when the parties are silent and a
contract of adhesion is in question] the law which, generally speak-
ing, should be applied is the law of the borrower.

There are always matters which are outside the will of the
Parties and which require the application of imperative and terri-
torial legal provisions. Amongst these matters, according to the
almost unanimous opinion of authors, are classed the form, the
currency and the method of payment.58

De Bustamante cited as authority for this last proposition the Code of


Private International Law.59 This international treaty, popularly known as
the Bustamante Code, though ratified by Brazil, had not been signed or
ratified by France. Consequently, de Bustamante obviously was not em-
ploying it as an "international convention," the first source of public in-
ternational law listed in Article 38 of the Statute of the Permanent Court of
International Justice. Its relevance must therefore be predicated on its
probative value as evidence of "the general principles of law recognized by
civilized nations."
2. The Illinois Central Railroad Case. The opinions in the Serbian and
Brazilian Loans cases constitute the most authoritative considerations of
the source of the choice of law rules applied by international tribunals and,
as has been shown, they adopt, either expressly or by necessary implication,
the principle that the private international law rules to be applied are norms
of public international law. Their discussion of this problem, however, is by
no means free from obscurity. A somewhat more lucid treatment of the
same subject is contained in the opinion of the United States-Mexican Gen-
eral Claims Commission in the Illinois Central Railroad case.10
Involved in that case was a claim by the United States on behalf of the
Illinois Central Railroad for the balance alleged to be due on locomotive
58. Id. at 130 (Emphasis added).
The opinions of authors referred to presumably were not concerned with the choice of
law rules to be applied by international tribunals-though the "teachings of the most highly
qualified publicists of the various nations" were regarded as a "subsidiary means for the
determination of rules of [International] law" [STATUTE OF THE PERMANENT COURT OF
INTERNATIONAL JUSTICE Art. 38; cf. STATUTE OF THE INTERNATIONAL COURT OF JUSTICE
Art. 38. The articles are identical in this respect.]-but rather with those to be applied by
their respective municipal courts in local as well as international cases irrespective of the
nationality of the parties. The opinions were relevant not as an independent source of public
international law, but as an indication of "the general principles of law recognized by
civilized nations."
59. Id. at 131.
60. United States (Illinois Central R.R.) v. Mexico, United States-Mexico General
Claims Comm'n, OPS. COMM'RS 15 (1927).

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572 COLUMBIA LAW REVIEW

engines sold and delivered to the Mexican Railway Administration. The


Mexican Agent moved to dismiss on the ground that the claim was based on
the non-performance of a contractual obligation and hence was not within
the jurisdiction of the Commission. In denying this motion, the Commission
looked primarily to the language of the Claims Convention. Article I of
the Convention clothed the Commission with jurisdiction to hear, examine,
and decide "all claims against one Government by nationals of the other for
losses or damages suffered by such nationals or by their properties,"'" and
further provided that claims be decided "in accordance with the principles
of international law."62 In the Commission's view, the issue was whether
"all claims" included claims for which either Government would be re-
sponsible according to international law. If it did, the Commission would
have been faced with the additional issue of whether or not the breach by a
government of a contract which it had made with an alien is, without more,
a violation of public international law. The Commission, however, avoided
passing on this question63 by construing the requirement that claims be
decided in accordance with international law to mean merely that the claims
before it be "of an international character"-that is, claims in which some
issue of public international law was present, though there might be munic-
ipal law issues as well, and though liability might ultimately be a matter of
municipal rather than international law:

International claims, needing decisions in "accordance with the


principles of international laws," may belong to any of four types:
a. Claims as between a national of one country and a na-
tional of another country. These claims are international, even in
cases where international law declares one of the municipal laws in-
volved to be exclusively applicable.
b. Claims as between two national governments in their own
right.
c. Claims as between a citizen of one country and the govern-
ment of another country acting in its public capacity.
d. Claims as between a citizen of one country and the govern-
ment of another country acting in its civil capacity. These claims
too are international in their character, and they too must be de-
cided "in accordance with the principles of international law,"
even in cases where international law should merely declare the munic-
ipal law of one of the countries involved to be applicable.64

The quotation suggests that the Commission regarded the choice of law
norms to be applied by international tribunals as norms of public inter-

61. Id. at 16-17.


62. Id. at 17.
63. Id. at 20. With respect to this question, see FELLER, THE MEXICAN CLAIMS COM
MISSION 174 (1935).
64. United States (Illinois Central R.R.) v. Mexico, United States-Mexico General
Claims Comm'n, OPS. COMM'RS 17-18 (1927) (Emphasis added).

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PRIVATE AND PUBLIC INTERNATIONAL LAW 573

national law;65 (a) and (d) state that it is public international law which is
determinative of the appropriate municipal law. Moreover, the reasoning
of the Commission on the jurisdictional issue compels the same conclusion.
For the Commission conceded that in breach of contract cases the breach
itself might involve no violation of public international law and be solely
a question of municipal law, yet maintained that the claim, if submitted to
an international tribunal, would possess an "international character and
be decided in accordance with public international law." What would give
the claim an "international character"? The fact that the choice of the ap-
plicable municipal law would be made in accordance with public inter-
national law principles.
3. The General Practices of International Tribunals. The Serbian and
Brazilian Loans and Illinois Central Railroad cases are the landmarks in
the treatment of choice of law problems by international tribunals. The
conclusion reached from their examination-that the choice of law rules
applied by international tribunals are norms of public international law-is
supported by the practices of international tribunals in general, including
the mixed arbitral tribunals set up after World War I under the provisions
of the Treaty of Versailles. These practices may be conveniently grouped
into four categories: (1) avoidance of the choice of law problem entirely by
synthesizing the rules of substantive law of the countries concerned; (2)
synthesis of the choice of law rules; (3) application of a particular municipal
choice of law rule selected on the basis of some principle such as the law of
the debtor's domicile; (4) formulation of choice of law rules on the basis of
principles generally recognized by civilized nations.66 The last practice-
which was, of course, followed by the Permanent Court of International
Justice in the Serbian and Brazilian Loans cases-clearly leads to the de-
velopment of public international law norms governing choice of law ques-
tions. Even in the cases-principally those before the mixed arbitral tri-
bunals67-in which the choice of law problem was handled somewhat differ-
ently, there was at least a preliminary reference to a public international
law norm. In the cases falling in category (3), the principle according to
which the tribunal exercises its primary choice-that is, choice of a municipal
choice of law rule-is a norm of both private and public international law;
the municipal rule employed for the purpose of making a secondary choice of

65. When using the term "international law," the Commission was referring to public
international law as herein defined rather than to private international law.
66. For a comprehensive summary of these practices, see Lipstein, Conflict of Laws
before International Tribunals, 27 TRANS. GROTIUS SOC'Y 142 (1942), 29 TRANS. GROTIUS
Soc'y51 (1944).
67. Lipstein, Conflict of Laws before International Tribunals, 27 TRANS. GRO
142 (1942) passim.

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574 COLUMBIA LAW REVIEW

law, like the rule of substantive law ultimately applied, remains a rule of
municipal private international law. As for categories (1) and (2), the under-
lying grounds on which a tribunal adopts either of these approaches in a
particular case might, if stated in imperative form, be regarded as norms of
public international law, and, at the same time, since they are concerned
with the method of determining the applicable law, as norms of private
international law.
The conclusion with respect to the norms of private international law
applied by international tribunals is that these norms, both those dealing
with judicial jurisdiction and those dealing with primary choice of law,68 are
norms of public international law. In other words, the relationship is one of
identity.69

B. Private International Law Norms Applied in Municipal Courts


What is the relation, if any, between the norms of private international
law applied in municipal courts and public international law? In the first
place, the mere fact that a municipal court is applying the norm does not
render public international law irrelevant. It is true that under the munic-
ipal law of many States the court must apply municipal law when conflict
arises between municipal and public international law.70 In so doing, how-
ever, the court commits an international delict and subjects the State to
diplomatic representations or the possible award of damages or other repar-
ation by an international tribunal.7' Municipal constitutions or consti-
tutional practice, moreover, may provide that public international law shall
take precedence over municipal law72 or that conflicts shall be resolved ac-
cording to the principle of lex posterior derogat priori.73

68. International tribunals have not as yet had occasion to deal with the problem of the
effect to be given foreign judgments, the third principal branch of private international law.
It should be noted in passing that the choice of law with which international tribunals
may be confronted is not confined to a choice among various systems of municipal law but
extends to the possibility of a choice between municipal and international law. For example,
an agreement between two States may be regarded as either a treaty or a municipal law
contract. See JESSUP, op. cit. supra note 40, at 142.
69. In fairness to those writers who see no connection between private and public in-
ternational law, it should be pointed out that the private international law with which they
are usually concerned is that applied in municipal courts. No position one way or the other
can accurately be attributed to most of them with respect to the jurisdiction and choice of
law rules applied by international tribunals. Beckett, however, appears to be an exception.
See Beckett, supra note 48.
70. See Mortensen v. Peters, 43 Scot. L.R. 872 (High Court of Justiciary 1906).
71. Beckett, supra note 8, at 75.
72. "The general rules of international law shall form part of federal law. They shall
take precedence over the laws and create rights and duties directly for the inhabitants of the
federal territory." Basic Law for the Federal Republic of Germany ["Bonn Constitution"]
Art. 25, DEP'T STATE PUBLICATION, No. 3526 (1949).
73. United States courts adhere to this principle in the event of a conflict between a
federal statute and a self-executing treaty. Cook v. United States, 288 U.S. 102, 118 (1933).

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PRIVATE AND PUBLIC INTERNATIONAL LAW 575

Secondly, this problem should be distinguished from the question


whether the norms of public international law are directly applicable in
municipal courts or must first be transformed into norms of municipal
law with the same content-a question over which the monist and dualist
schools of international law have broken many a jurisprudential lance,74 but
one which it is unnecessary to answer here. If a formal relationship exists
between the private international law norms applied and public interna-
tional law, under the monist view it is one of identity or dependency, ac-
cording to the degree of specificity of the public international law norms;
under the dualist view, the relationship is one of dependency, regardless of
the degree of specificity.
A further jurisprudential stumbling block remains, however, before an
inquiry can be made into the existence and nature of the relationship. If
Hans Kelsen's position that all norms of municipal law ultimately derive
their validity from public international law be accepted as a useful analytical
hypothesis, then, of course, there must be a relationship of dependency
between all norms of private international law applied in municipal courts
and public international law.
Kelsen argues that all norms of a given municipal legal order are deriv-
able from the basic norm of that order in the sense that they have been
created in accordance with it, and that the basic norms of the various munic-
ipal legal orders are derived from a norm of public international law. Trac-
ing the derivation of an individual municipal law norm from the existent
constitution of a particular municipal legal order presents no special prob-
lem. Whenever a lawyer considers whether a given norm is constitutional
he in effect considers whether it was created in accordance with the consti-
tution and hence derived from it.75 This constitutional norm, according to
Kelsen, is in turn derived from a norm of public international law-"the
principle of effectiveness" which stipulates "that an individual or a group of
individuals who are able to obtain permanent obedience for the coercive
order they establish are to be considered as a legal and legitimate author-
ity. . . . 9976 The basic norm of the international legal order is that "[t]he
St:ates ought to behave as they have customarily behaved."77 Since if
Kelsen's theory is accepted all municipal law norms are thus derived from
public international law, all the norms of private international law applied
in municipal courts have at least a minimal connection with public inter-
national law.
But as to some of the norms of private international law, there is a more
74. BRIGGS, THE LAW OF NATIONS 52 (1938).
75. See KELSEN, op. cit. supra note 2, at 115.
76. Id. at 367.
77. Id. at 369.

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576 COLUMBIA LAW REVIEW

direct relationship, a relationship which can be demonstrated even if I<el-


sen's thesis is rejected. This relationship may be stated as follows: All
norms of private international law applied in cases in which at least one of
the parties is a national of some State other than the forum have their con-
tent determined to some extent by public international law. The remainder
of this article will be devoted to an analysis of the theoretical considerations
and legal authority pointing to this conclusion.
If a case concerned with judicial jurisdiction, choice of law, or the effect
of a foreign judgment, involves a foreign element such as a foreign place of
making of a contract but the parties are nationals of the forum, it is a private
international law case. Public international law, however, affords no binding
directives as to the content of the private international law norms to be ap-
plied, for it has not yet developed to the point where it sets limits on a State's
treatment of its own nationals in private international law matters. Ac-
cordingly, the norms applied in a private international law case involving
only nationals of the jurisdiction are within the sole discretion of the State.78
There is some evidence, however, that public international law may not
long keep silence in this area. The Universal Declaration of Human Rights
approved by the Assembly of the United Nations in December, 1948, though
not laying down norms legally binding on U.N. members,79 indicates the
trend, as does Article 87 of the United Nations Charter which provides for
petitions to the Trusteeship Council presumably by the inhabitants of the
trust territories.80 Dr. Jessup relying primarily on the "general provisions
of the Charter relative to human rights'"81 suggests: "It is already the law,
at least for Members of the United Nations, that respect for human dignity
and fundamental human rights is obligatory,"82 and "it would no longer be
possible for a state to brush aside international representations concerning a
violation of those rights on the ground that the victims were its own cit-
izens. *."83 But even if one agrees with Dr. Jessup that this is the present
status of public international law, the limits allegedly set by it on a State's
treatment of its own nationals deal largely with civil liberties and other
fundamental questions. These limits would not affect such technical lawyer's
law as the norms of private international law to be applied in municipal
courts.
78. Compare Farrelly, supra note 22, at 249.
79. "[The Declaration of Human Rights] . . . is not and does not purport to be a
statement of law or of legal obligation. It is a declaration of basic principles of human rights
and freedoms . . . to serve as a common standard of achievement for all peoples of all
nations." Statement by Mrs. Franklin D. Roosevelt, Chairman, United Nations Committee
on Human Rights, 19 DEP'T STATE BULL. 751 (1948).
80. For instances of such petitions, see UN YEARBOOK 761-76 (1949).
81. JESSUP, op. cit. supra note 40, at 88.
82. Id. at 91. For a conflicting view, see Kunz, The United Nations Declaration of
Human Rights, 43 AM. J. INT'L L. 316, 317 (1949).
83. JESSUP, op. cit. supra note 40, at 87.

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PRIVATE AND PUBLIC INTERNATIONAL LAW 577

The situation differs sharply when a national of a State other than the
forum is a party to a private international law case; public international law
then governs the content of all the private international law norms applied.
The only question is the degree of specificity of the guidance. In some in-
stances the exact content of the norm is determined by public international
law; the best example is a treaty such as the Bustamente Code or the Geneva
Convention for the Settlement of Certain Conflicts of Law in Connection
with Bills of Exchange, in which the private international law norms to be
applied are specified by the signatories. Examples are also to be found in the
customary law of nations. Public international law determines with a high
degree of specificity the content of many of the norms governing diplomatic
and sovereign immunity from judicial jurisdiction,84 and of the norms lim-
iting legislative jurisdiction and hence choice of law in criminal cases.85 In
such instances of detailed guidance the formal relationship between public
and private international law is, as already noted, that of identity or de-
pendency, according to whether the norm of private international law ap-
plied is regarded as a norm of public international law applied directly by a
municipal court or as a municipal law norm identical in content with a norm
of public international law from which it is derived.
A word of caution should be interjected. The mere concurrence of the
private international law rules of many different States does not necessarily
indicate that the precise content of these rules has been specified by inter-
national law. This concurrence may result from the use of comparative law
techniques and the frequent similarity or identity of legal answers which
municipal courts give to similar problems, within the bounds of discretion as
to content left in them by public international law. There is no gainsaying
the fact, however, that long and continuous international usage is often
transformed into international customary law as a conviction of the obliga-
tion to follow past usage develops.86 And even if the usage does not harden
into custom, a widely-observed practice of municipal courts may be treated
by an international tribunal as one of "the general principles of law recog-
nized by civilized nations" and hence applied as a norm of public inter-
national law in deciding a private international law question before it.
Nevertheless, despite recognition of the principle by an international tri-
bunal, there may be no international legal obligation compelling a municipal

84. BRIERLY, Op. Cit. supra note 1, at 164-68.


85. See p. 563, notes 13 and 18 supra; see also p. 580 infra.
86. See OPPENHEIM, Op. Cit. supra note 12, at 26: "As usages have a tendency to become
custom, the question presents itself, at what time does a usage turn into a custom? The
question is one of fact, not of theory. All that theory can say is this: Wherever and as soon
as a line of international conduct frequently adopted by States is considered legally obliga-
tory or legally right, the rule which may be abstracted from such conduct is a rule of custom-
ary International Law."

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578 COLUMBIA LAW REVIEW

court to apply the identical norm when faced with the same private inter-
national law question. Just because an international tribunal regards a
principle as a norm applicable to a case before it, public international law
does not insist that the same principle be observed as a norm in a municipal
court. The present relationship between public international law and the
norms of private international law applied in municipal courts is more com-
plex than the relationship of identity existing between public international
law and the private international law norms applied by international tri-
bunals.
Thus far consideration has been given only to those still exceptional
cases in which public international law indicates with a high degree of spe-
cificity the content of the private international law norm to be applied in a
municipal court. It may be that public international law also affords guid-
ance by furnishing certain concepts, especially that of sovereignty,87 which
have been urged upon municipal courts as a basis for reasoning in private
international law cases. It is certainly questionable whether "absolute
sovereignty" can be regarded as a public international law concept at all,
since, if the norms of public international law are legally binding on States,
they are pro tanto a restriction on their sovereignty. The attempts of the
dualists to ground all such norms in the express or "implied" consent of the
State are not convincing. Implied consent does not explain customary law,
which is observed not because of any consent but because of a sense of ob-
ligation. Moreover, as Brierly points out:

in the practical administration of international law, states are


continually treated as bound by principles which they cannot,
except by the most strained construction of the facts, be said to
have consented to . . . . a state which has newly come into exist-
ence does not in any intelligible sense consent to accept inter-
national law."

But assuming arguendo that "sovereignty" is a public international law


concept, it provides no criterion for the formulation of useful rules of deci-
sion89 in private international law cases; at best it is merely an attempt to
state succinctly the basic societal fact with which private international law
norms must deal-namely, that the world is organized territorially into in-
dependent States each with its own system of municipal law. Even as a
descriptive term "sovereignty" is deficient. It tends to imply not only that
States are independent in the sense that there is no external control over

87. See STORY, CONFLICT OF LAWS 21 (8th ed. 1883).


88. BRIERLY, op. cit. supra note 1, at 53.
89. Compare the views expressed in Newberg, Concept of Sovereignty and Conflict of
Laws, appearing in CHEATHAM, DOWLING & GOODRICH, CASES ON CONFLICT OF LAWS 296-
99 (lst ed. 1936); WESTLAKE, INTERNATIONAL LAW 247 (2d ed. 1910).

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PRIVATE AND PUBLIC INTERNATIONAL LAW 579

their foreign relations, but also that they are subject to no legal restraints
on their conduct vis-a-vis each other. The concept of sovereignty can thus
serve only to confuse a discussion of the relationship between the norms of
private and public international law.
In addition to the norms of public international law specifying the con-
tent of the private international law norms applied in municipal courts in
cases in which a foreign national is a party, there are other norms of public
international law which set general limits on the disposition of such cases.
It is not possible to state with any precision the exact extent of this limita-
tion on the norms of private international law applied. In general it is one
of reasonableness, comparable to that imposed by the Federal Constitution
upon the conflict of laws rules of the states.90
The broad outlines of the relationship between public international
and the norms of private international law applied in municipal courts have
now been set forth. At this point, it may be helpful to pass to a more de-
tailed consideration of the impact of public international law on each of the
three areas which comprise the subject matter of private international law.
As previously indicated, there are a few situations in the area of judicial
jurisdiction-for example, cases involving diplomatic or sovereign immun-
ity91--in which public international law by custom has come to determine
rather specifically the content of the private international law norms to be
applied by municipal courts. But when a question of judicial jurisdiction
over private individuals in an ordinary civil action is presented, the norms
of private international law applied may vary widely without occasioning
any international complaint. This does not mean, however, that public
international law places no limits on the jurisdictional rules formulated by
rnunicipal courts.
It has been intimated that a serious deviation from a reasonable stand-
ard such as that which occurred in Schibsby v. Westenholz92 may not violate
public international law.93 In that case a French court had given judgment
in favor of one of its domiciliaries against a foreigner who was neither a
resident nor a domiciliary of France, and who from the report had not been
in France at the time the obligation sued on was contracted or at any other
time, and who owned no property there. The English court refused to en-
force the judgment.
The fact that no diplomatic protest was made does not indicate that

90. Hartford Accident & Indemnity Co. v. Delta & Pine Land Co., 292 U.S. 143 (1934);
Home Insurance Co. v. Dick, 281 U.S. 397 (1930).
91. See, e.g., Bergman v. De Sieyes, 71 F. Supp. 334 (S.D.N.Y. 1946), aff'd, 170 F.2d
360 (2d Cir. 1948); The Schooner Exchange v. McFaddon, 7 Cranch 116 (U.S. 1812); see
also note 84 supra.
92. L.R. 6. Q.B. 155 (1870).
93. Cheatham, supra note 37, at 435.

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580 COLUMBIA LAW REVIEW

the French court's assumption of jurisdiction did not violate public inter-
national law. On the contrary, the non-recognition of the French judgment
by the English court may be viewed not merely as the application of a norm
of municipal private international law but as the application of such a norm
in accordance with the general limits set by public international law on
municipal rules of judicial jurisdiction. The British court in this instance
might be regarded as acting as an enforcement agency of the international
community. In the absence of an international law-enforcement agency, the
usual practice has been to enforce the norms of public international law
through the agencies of the States concerned.
Another example of the limits imposed by public international law on
the judicial jurisdiction of a State is suggested by Cheatham:

If . . . the court of a nation with no relationship to the parties or


the transaction were to entertain a suit against an absent foreigner
and were to enforce the resulting judgment against his property
later brought in, the opinion may be hazarded that the proceeding
would fall short of the minimum standard of "international pro-
cedural justice."94

The effect of public international law upon a State's choice of law rules
presents a somewhat more difficult problem. Proof that in the absence of
treaty provisions the application of specific choice of law rules is required
by public international law is fragmentary but not non-existent, despite the
contentions of the nationalist school to the contrary.95
First, as mentioned earlier, public international law determines legis-
lative jurisdiction and hence choice of law in criminal cases.96 For example,
in 1841 the American brig Creole was en route from Hampton Roads to New
Orleans with a cargo of slaves. On the high seas the slaves mutinied, wound-
ing several members of the crew and killing a passenger. Having obtained
control of the ship, they forced the mate to steer for the British port of
Nassau. Upon its arrival the authorities freed the slaves not implicated
in the mutiny. The others apparently were tried for piracy and acquitted.
In the United States-Great Britain Claims Arbitration of 1855, Umpire
Bates held that the conduct of the British authorities in Nassau violated
international law, and awarded compensation to the claimants for their
losses.97
In the course of his opinion, he stated, inter alia:

94. Cheatham, supra note 37, at 435.


95. See note 32 supra.
96. See p. 563 supra; authorities cited notes 13 and 18 supra.
97. The Creole, United States-Great Britain Comm'n of Claims, 1855, REP. DEC. 241
(1856).

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PRIVATE AND PUBLIC INTERNATIONAL LAW 581

"A vessel navigating the ocean carries with her the laws of her
own country, so far as relates to the persons and property on board,
and to a certain extent, retains those rights even in the ports of the
foreign nations she may visit. Now, this being the state of the law
of nations, what were the duties of the authorities at Nassau in re-
gard to the Creole? It is submitted that mutineers could not be
tried by the courts of that island, the crime having been com-
mitted on the high seas. All that the authorities could lawfully do,
was to comply with the request of the American consul, and keep
the mutineers in custody until a conveyance could be found for
sending them to the United States.
"The other slaves, being perfectly quiet, and under the com-
mand of the captain and owners, and on board an American ship,
the authorities should have seen that they were protected by the
law of nations; their rights under which cannot be abrogated or
varied, either by the emancipation act or any other act of the
British Parliament....
"The municipal law of England cannot authorize a magis-
trate to violate the law of nations by invading with an armed force
the vessel of a friendly nation that has committed no offence, and
forcibly dissolving the relations which by the laws of his country
the captain is bound to preserve and enforce on board.
"These rights, sanctioned by the law of nations-viz: the right
to navigate the ocean, and to seek shelter in case of distress or other
unavoidable circumstances, and to retain over the ship, her cargo,
and passengers, the laws of her own country-must be respected
by all nations; for no independent nation would submit to their
violation."98

Even in civil cases there are instances of diplomatic insistence on the


application of specific choice of law rules. In his 1868 correspondence with
Secretary of State William H. Seward,99 the United States Minister to Switz-
erland, George Harrington, reported his action in connection with the claim
of an American grandson to share in the estate of a Swiss decedent. A treaty
between the United States and Switzerland provided for equal treatment of
each other's nationals in determining succession. The child's mother, the
daughter of the deceased, had emigrated to the United States and married
an American citizen in Philadelphia where she died shortly before her father.
The authorities in the decedent's canton refused to deliver to her child the
portion of the estate she would have received if living, asserting that her
marriage could not be recognized since she had failed to comply with the
formalities prescribed by cantonal law and hence the claims of her son were
barred by his illegitimacy. Mr. Harrington "protested against the attempt
of the authorities of Aargau [the Swiss canton] to invalidate the marriage of an
American citizen so solemnized, and against their assumed right to declare

98. Id. at 245. In this case Great Britain exceeded the proper scope of both its legisla-
tive and judicial jurisdiction.
99. U.S. FOREIGN REL.: 1868, Part II at 189-97 (Dep't State 1869).

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582 COLUMBIA LAW REVIEW

the issue of such a marriage an illegitimate issue."'00 In a memorandum to


the Swiss Federal Council he argued that the civil status of an American
citizen-here, legitimacy or illegitimacy-should be decided by American
and not Swiss law, a contention accepted by the Federal Council in reversing
the action of the cantonal officials.'0'
In 1851 Secretary of State Webster instructed the American Minister
to Mexico to discuss with the Archbishop of Mexico City and other author-
ities the problem created by Mexican church and lay officials who had de-
clared illegal marriages performed in the United States in accordance with
the law of the state where celebrated.'02 He was expressly directed to seek
relaxation of "the rule which forbids a priest from marrying a Protestant to
a Catholic and makes it obligatory upon the clerical and other authorities
to disavow and annul such marriage when it has taken place in the United
States." Webster pointed out that it is "the almost universal rule" that
"a marriage is valid if it has been contracted according to the laws of the
place where the ceremony was performed." The published correspondence
does not reveal the result of the negotiations with the Archbishop.
These instances of diplomatic protest over the application by a foreign
State of a particular choice of law rule are perhaps exceptions which prove
the rule that customary international law provides no detailed guidance in
ordinary civil cases. But they do indicate the possible future incorporation
into public international law of certain choice of law rules widely recognized
in the international community.'03 Although today there is a paucity of
100. Id. at 190.
101. Id. at 196.
The provision in the treaty between the United States and Switzerland read: "Any
controversy that may arise among the claimants to the same succession as to whom the
property shall belong, shall be decided according to the laws and by the judges of the country
in which the property is situated." Ibid. Harrington, and apparently the Swiss Federal
Council, regarded this as making the order of succession and shares therein a matter of
Swiss law with the civil status of the claimant remaining a matter of United States law.
Ibid. Secretary of State Seward took a broader view of the treaty; he interpreted it as taking
"the question altogether out of the domain of diplomacy." Id. at 193. No position, however,
can accurately be ascribed to Seward regarding the international legality, in the absence of
a treaty, of applying the Swiss law governing civil status in such a situation.
Professor Nussbaum contends that the question was solely one of the recognition of the
American nationality of the claimant by the Swiss authorities and hence not a matter of
private international law at all, since "[ejach government is supreme in determining whom
it counts among its nationals." NUSSBAUM, op. cit. supra note 10, at 25 n.26. There is no
indication in the published correspondence, however, that either the Swiss cantonal author-
ities or the Federal Council disputed the American nationality of the claimant.
102. 2 MOORE, INTERNATIONAL LAW DIGEST 484 (1906).
103. For an indication that at least some particular choice of law rules may already have
been incorporated in customary public international law see Article 4 of the Judicial Agree-
ment made under Article 9 of the Treaty of Alliance between Great Britain and Iraq of
October 10, 1922 (1924): "In matters relating to the personal status of foreigners or in other
matters of a civil and commercial nature in which it is customary by international usage to
apply the law of another country, such law shall be applied in manner to be prescribed by
law.' 4 TREATIES, CONVENTIONS, INTERNATIONAL ACTS, PROTOCOLS AND AGREEMENTS
BETWEEN THE UNITED STATES AND OTHER POWERS 1923-1937, 4361, 4363 (Trenwith ed.
1938).

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PRIVATE AND PUBLIC INTERNATIONAL LAW 583

public international law norms specifying in detail the content of the choice
of law rules to be applied in municipal courts, general limits are placed on the
municipal courts' discretion.
It is a well-established principle of public international law that the
persons and property of foreign nationals are to be respected. There is a
difference of opinion, however, as to the degree of respect required. The
majority of States and writers agree that a certain minimum international
standard of justice must be observed in the treatment of aliens and their
property,104 a view which has found favor with international tribunals.'05
On the other hand, an articulate minority, composed largely of Latin Amer-
ican States and jurists,'06 maintains that only equal treatment with nationals
is required. Acceptance of this doctrine of equality-which for the present
can be regarded as a proposed modification, rather than a competing inter-
pretation, of established international practice'07-would not invalidate
the thesis that public international law sets general limits on the choice of law
rules applied in municipal courts. Superficially, it might seem that under
the equality doctrine a municipal court could apply almost any choice of
law norm so long as it did not discriminate against foreigners in the applica-
tion thereof. A choice of law rule, however, could itself be the instrument of
discrimination even though uniformly applied. For example, a choice of
law rule to the effect that only the internal law of the forum would be applied
in determining the title to property would, by and large, have a much more
serious effect on foreign nationals entering the country with property
acquired abroad than on nationals of the forum.'08
To the request for evidence that any conceivable choice of law rule
could infringe either of the described standards, the answer must be that
States in practice have infrequently adopted a choice of law rule so unrea-
sonable as to violate either standard. Perhaps the explanation is "that the
question by the law of what country a given transaction shall be governed

104. See Borchard, The "Minimum Standard" of the Treatment of Aliens, 33 AM.
SOC'Y INT'L L. PROC. 51 (1938).
105. See United States (Roberts) v. Mexico, United States-Mexico General Claims
Comm'n, OPs. COMM'RS 100, 105 (1927).
106. See BRIGGS, op. cit. supra note 74, at 507.
107. See Borchard, supra note 104, at 60.
There is perhaps more support for the Latin American viewpoint in the case of general
legislative confiscations of private property-at least where such confiscation is part of a
comprehensive national social and economic program-than in the case of personal in-
juries to aliens or other impairments of private property rights. See BRIERLY, op. cit. supra
note 1, at 210; Williams, International Law and the Property of Aliens, 9 BRIT. Y.B. INT'L L.
1 (1928). But see Doman, Postwar Nationalization of Foreign Property in Europe, 48 COLUM-
BIA L. REV. 1125, 1132-36 (1948); Fachiri, International Law and the Property of Aliens,
10 BRIT. Y.B. INT'L LAW 32(1929).
108. It might also, of course, place at a disadvantage nationals of the forum engaged
in the import trade. The general tendency, however, would be to discriminate against
foreigners.

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584 COLUMBIA LAW REVIEW

is often a matter too plain to admit of doubt."' 09 But an illustration may be


given of the type of rule which, if ever applied, could and should be held to
violate the norm of public international law protecting a foreign national's
property. Suppose a transaction in State A, involving no foreign elements,
through which X, a national of A, acquires certain rights in a chattel under
the law of A. X and the chattel are later subjected to the jurisdiction of a
court in State B. The court holds that X did not acquire rights in the chattel
because the law of some jurisdiction other than A was applicable to the
transaction in question and under its law X acquired nothing."' To apply
such a norm of private international law would be to refuse the degree of
respect for a foreign national's property required by public international
law.111 Moreover, the application of this or a similar norm would contravene
the principles set forth by eminent publicists as the bases for a reworking of
traditional international law:

One may look upon the institution of diplomatic protection as


a device for allocating the risks of injuries and losses that are
necessarily associated with the normal conduct of international
trade and intercourse. . . The law ... would seek to dis-
tribute the risks where they can best be borne, with a view to
creating and maintaining the minimum conditions necessary for the
continuance of mutually profitable intercommunity relationships."2

Clearly such minimum conditions would not be maintained if public inter-


national law countenanced the application of norms of private international
law comparable to that applied in the hypothetical presented above.
With respect to the effect a State accords to foreign judgments, the role
of public international law is similar to the role it plays in regard to choice
of law. The point of view expressed in an early English case that customary
public international law in effect incorporates an international full faith and
credit clause binding on municipal courts"3 is difficult indeed to maintain,

109. DICEY, op. cit. supra note 7, at 13.


110. The situation described is to be distinguished from that wherein the court in
State B denies recognition to X's property rights not on the ground that he had not acquired
them, but on the ground that on entering State B he forfeited these rights, or that no private
property rights could attach to any chattel or document of title brought into B. The rule of
municipal law there applied might also be a violation of public international law, although
this might not be so if the equal treatment standard were followed, and no rights of private
property were recognized in B.
111. Compare Baty, The Private International Law of Japan, 2 MONUMENTA NIPPON-
ICA 54 (1939).
112. DUNN, op. cit. supra note 39, at 191-92; compare JESSUP, op. cit. supra note 40, c.
V; see FELLER, op. cit. supra note 63, at 121.
113. "[I]t is against the law of nations not to give credit to the judgment and sentences
of foreign countries, till they be reversed by the law, and according to the form, of those
countries wherein they were given. For what right hath one kingdom to reverse the judg-
ment of another? And how can we refuse to let a sentence take place till it be reversed?"
Kennedy v. Cassillis, 2 Swans. 313, 326, 36 Eng. Rep. 635, 640 (1818) [quoting Lord Notting-
ham in Cottingham's Case, 3 Car. 2 (H.L. 1678)].

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PRIVATE AND PUBLIC INTERNATIONAL LAW 585

though substantially that result has been achieved by individual treaties."4


The practice of many States in reviewing foreign judgments on the merits
as of course,"' and the apparent acquiescence thereto of the States render-
ing the judgments, indicates that no such principle forms part of customary
international law. Moreover, public international law does not bar municipal
courts from insisting on reciprocity as a prerequisite to the recognition of
foreign judgments."16
It may be that in the absence of a general full faith and credit clause,
more limited norms requiring municipal courts to give effect to specific types
of foreign judgments will be embodied in public international law. A hint
of such a development is contained in the rather voluminous correspondence
during the years 1861 to 1863 between the British Foreign Office and the
British Charge in Lima, Peru, concerning the tribulations of Captain Henry
de Wolfe Carvell."7 Letters of administration had been granted to Carvell
as executor of the will of his father-in-law, Michael Winder, a British subject
domiciled and deceased in England. The will, which Winder had executed in
England, had been held valid and admitted to probate by the Court of Pro-
ba,te at Westminister. Carvell arrived in Peru in February, 1861, intending
to attach Mr. Winder's real and personal property in Peru for distribution in
accordance with the will. After a ludicrous series of events including de-
campment of Winder's illegitimate son with over $400,000 of his father's
personal property, refusal of the Peruvian authorities to interfere with the
"hospitality" afforded the absconder by a Peruvian judge, issuance of an

114. E.g., Denmark, Finland, Iceland, Norway anid Sweden, Convention regarding the
Recognition and Enforcement of Judgments, 139 LEAGUE OF NATIONS TREATY SER. 165,
181 (Copenhagen 1936); French Republic and United Kingdom, Convelntion regarding
Reciprocal Enforcement of Judgmenits on Civil and Commercial Matters (1936), GREAT
BRITAIN TREATY SER. No. 18 (Paris 1934).
115. See Lorenzen, The Enforcement of Aimerican Judgments Abroad, 29 YALE L.J. 188,
196 (1919).
116. For a listing of countries requiring reciprocity and a discussion of the problems
which this requirement raises, see Lorenzen, supra note 115, at 199-208.
The opinion of the United States Supreme Court in Hilton v. Guyot, 159 U.S. 113,
227 (1895), is specific on this point: "the rule of reciprocity has worked itself firmly into the
structure of international jurisprudence. . . . In holding such a judgment, for want of
reciprocity, not to be conclusive evidence of the merits of the claim, we do not proceed upon
any theory of retaliation upon one person by reason- of injustice done to another; but upon
the broad ground that international law is founded upon mutuality and reciprocity, and
that by the principles of international law recognized in most civilized nations and by the
comitv of our own country, which it is our judicial duty to know and to declare, the judg-
ment is rlot entitled to be considered conclusive. . . ."
Unless initernational conflict of laws matters are considered to be federal questions-
which they have not been to date-this decision was never binding on state courts. But cf.
Johnstoni v. Compagnie Generale Transatlantique, 242 N.Y. 381, 152 N.E. 121 (1926). Nor
has it been binding on federal courts since the "Erie Tonmpkinizing" of conflict of laws norms.
Klaxon v. Stentor Elec. Mfg. Co., 313 U.S. 487 (1941). The doctrine stated in Hilton v.
G6uot has not been repudiated by the Supreme Court, however, and remains a persuasive
authority for an American court presented with the p
rendered abroad.
117. GREAT BRITAIN: 66 AccoUNTS & PAPER S

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586 COLUMBIA LAW REVIEW

arrest order against Carvell and a further order for his imprisonment
frustrated only because the French and later the British legation granted
him asylum, Carvell sailed from Peru in September, 1862, having failed
despite tenacious persistence to recover the estate property stolen by the
illegitimate son or other property in the possession of Winder's Peruvian-
born widow, who had returned to Lima to live. In the course of his running
skirmish with the Peruvian authorities, Carvell had bitterly protested to the
British legation because a Peruvian lower court judge had entertained an ap-
plication by Winder's widow to declare null and void the will admitted to
probate in England. After the judge had taken this application under con-
sideration but before he had given judgment, the British Foreign Office in-
structed the Charge in Lima as follows:

you will, at all events, complain of the want of comity shown by


their legal authorities in not recognizing the law courts of the
place of domicile admitted to be in England as the competent court
to try the question of the validity of the will, at least so far as the
personal property is concerned; and you will press for a decision
on this point from the Peruvian Government, which contrary to
general usage, they have thought proper to try themselves.118

The published correspondence unfortunately does not disclose the ultimate


outcome in the Peruvian courts.
Needless to say, the correspondence in this case is a weak peg on which
to hang the contention that public international law requires the municipal
courts of other States to give full faith and credit to the determination of a
court of a decedent's last domicile as to the validity of his will executed
therein. Diplomatic practice of this sort, however, if more general, could lead
to the incorporation of such a rule into customary public international law.
Conceding for the moment that, in the absence of treaty law governing
the effect of foreign judgments, public international law specifies the content
of few if any of the private international law norms in this area, it never-
theless provides general guidance, as in the case of choice of law norms. The
limits here set by public international law on the discretion of municipal
courts are of two kinds. To begin with, there is a negative limitation which
enjoins municipal courts from enforcing the judgments of other States when
they have been rendered by courts exceeding the broad jurisdictional limits
imposed by public international law. The British case of Schibsby v. Westen-
holz has already been discussed as an example of a court's conforming to a
norm of public international law which proscribes the enforcement of
foreign judgments rendered without judicial jurisdiction.119 The positive

118. Id. at 450.


119. Cf. Sirdar Gurdyal Singh v. The Rajah of Faridkote, [1894] A.C. 670 (P.C.)
(effect in British India of ex parte judgment of court of independent native state).

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PRIVATE AND PUBLIC INTERNATIONAL LAW 587

limitation on the effect given foreign judgments parallels that placed by


public international law on choice of law in municipal courts. As previously
indicated, the principle has been established that the persons and property
of aliens are entitled to the degree of respect which is generally recognized
as a minimum standard by civilized nations. Flagrant refusal to recognize
an alien's rights arising from a foreign judgment undeniably may transgress
this standard.
Just where the line limiting a municipal court's discretion to deny
effect to a foreign judgment will be drawn is, of course, difficult to predict.
As with choice of law, States have rarely been grossly unreasonable in their
treatment of foreign judgments. Consequently, no body of international
case law or diplomatic practice precisely defining the scope of the limits set
has been produced. In Hilton v. Guyot'20 Mr. Justice Gray suggested at
least one situation in which the private international law norm applied might
violate public international law: "A judgment in rem, adjudicating the title
to a ship or other movable property within the custody of the court, is
treated as valid everywhere." 12' Assume that there has been such an in rem
judgment and that all proceedings were regular, with due notice to all in-
terested parties. If a municipal court were to apply a norm of private in-
ternational law denying effect to this judgment and not recognizing, as to
property subsequently brought within its jurisdiction, the title vested by the
judgment in a foreign national, this would surely constitute a denial of the
minimal rights guaranteed to aliens and their property by public interna-
tional law.'22
Thus with respect to the effect of foreign judgments, as well as choice of
law, we find public international law in some instances specifying the exact
content of the norms applied in municipal courts and, in all cases to which a
foreign national is a party, at least setting limits of reasonableness on the
rules of private international law. The criticism that the limits imposed by
public international law are on occasion so vague as to verge on the illusory
suggests the need for treaties specifying the content of private international
law norms or restricting within narrower limits the discretion of municipal

120. 159 U.S. 113 (1895).


121. Id. at 167.
"I admit, if there be a judgment in rem founded on a recognised law, and pronounced
by competent tribunal of the country where a moveable chattel then is, that that judgment
determines and changes the property everywhere and between all persons, as in the cases
of a condemnation of goods in the Exchequer, or of a ship in a lawful prize Court." Cammell
v. Sewell, 5 H. & N. 728, 751, 157 Eng. Rep. 1371, 1380-81 (Ex. 1860) (Byles, J.).
122. As with the choice of law hypothetical, it is necessary to distinguish the situation
wherein a foreign court deprives an alien of a title which it recognizes he has acquired under
a foreign judgment on some ground such as a general legislative confiscation of certain types
of private property within the foreign State's jurisdiction. Such action might itself consti-
tute an independent violation of public international law unless the equal treatment stand-
ard were adopted. See notes 107 and 110 supra.

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588 COLUMBIA LAW REVIEW

courts.'23 But it does not impeach the validity of the conclusions here adumn-
brated as to the formal relationship between the norms of public and private
international law.

IV. CONCLUSION

The answer to the question of the relationship between private and


public international law can be neither simple nor definitive. Changes in the
scope of public international law, such as its increasing concern with the
individual irrespective of his nationality, will effect important changes in the
extent to which private international law is governed by public international
law. It may be well, however, at this point to summarize the conclusions
herein reached as to the present relationship between the two fields:
The norms of private international law applied by international tri-
bunals are norms of public international law, not of municipal law. The re-
lationship is one of identity.
The relationship to public international law of the private international
law norms applied in municipal courts is more complex. Where no national
of a jurisdiction other than the forum is a party, public international law
today is silent as to the content of the private international law norms ap-
plied. Where a foreign national is a party, the degree of specificity of guid-
ance varies. In some cases the content of the norm of private international
law applied is identical with that of a norm of public international law. This
can be viewed either as the direct application of a norm of public interna-
tional law by the municipal court or as the application of a norm of municipal
law identical in content with a norm of public international law. According
to the view adopted, the relationship between private and public inter-
national law is one of identity or dependency. Where, in a case to which a
foreign nation is a party, public international law does not specify the exact
content of the norm of private international law applied, it at least sets limits
of reasonableness. The norm of private international law applied is a norm
of municipal law and the relationship to public international law is one of
dependency.

123. Compare JESSUP, op. cit. supra note 40, at 141.

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