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Vol. 52 MAY, 1952 No. 5
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562 COLUMBIA LAW REVIEW
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PRIVATE AND PUBLIC INTERNATIONAL LAW 563
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564 COLUMBIA LAW REVIEW
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
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
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PRIVATE AND PUBLIC INTERNATIONAL LAW 567
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
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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:
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
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:
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
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572 COLUMBIA LAW REVIEW
The quotation suggests that the Commission regarded the choice of law
norms to be applied by international tribunals as norms of public inter-
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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
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
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576 COLUMBIA LAW REVIEW
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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
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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:
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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:
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:
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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
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
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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
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PRIVATE AND PUBLIC INTERNATIONAL LAW 585
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:
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PRIVATE AND PUBLIC INTERNATIONAL LAW 587
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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
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