United States International Private and Public Law

The term “private international law” is rarely used in American legal literature, and has been almost entirely replaced by the term “conflict of laws”. The existence of forty-eight independent civil jurisdictions, to which must be added those of the federal courts, the possessions of the islands and the territories, has created characteristic situations that not even the multiplicity of European nations can equal.

The general principle in American doctrine on this subject is that the norms of “private international law” are internal and not international norms; each state, therefore, sovereignly determines which of them should apply and within what limits. Almost all states accept the doctrine that the validity of contracts is determined by the lex loci contractus and their fulfillment by the lex loci solutionis, that land disputes are subject to the lex loci rei sitae and the procedure is the subject of the lex foro. But many doubts and uncertainties arise when it comes to deciding whether one of these rules should be applied in a given case and serious discussions on these issues have not yet found a satisfactory solution.

A question of great importance in European debates, that of competence, does not exist in the United States. The greatest difficulty, as can be deduced from what has been said in this regard, is given by family relationships. The determination of a matrimonial domicile gave rise to a whole series of trials, many of which following the Haddock trial decided in 1906 by the Federal Supreme Court. In large numbers, the decisions were based rather on considerations of principle than on determined and universally accepted legal doctrines, and in no branch of law there was a more distinct and fundamental difference of opinion between the authors.

A step forward has been taken with the final publication of the Conflict of Law Report of the American Legal Institute. But while this will provide some clarity in this very complicated field, if the courts adopt the views expressed in that report, much remains to be done and much can be expected from a conscious effort by courts and parliaments to address these issues in a uniform manner.

As far as public international law is concerned, its evolution in the United States has undergone strange ups and downs. At the beginning of American history, questions of international law occupied the minds very much. International law was part of the general body of natural law, which was then a real rival to common law as the basis of American jurisprudence. Grotius, Pufendorf, J.-J. Burlamaqui, Vattel were widely read and studied. Indeed, it may be remembered that the first dispute in which a legislative act was declared unconstitutional, the Trevett-Weedon trial in New York, was decided on the basis of international law.

It was very natural that a new country, composed of a federation of autonomous and jealous members, would feel that its precarious existence required the sanction of great universally recognized principles. The American courts were quick to accept the doctrine attributed to Mansfield that international law was “part of national law” and not just a set of rules of reciprocity entrusted to uncontrolled discretion. J. Story’s treaties and the sentences he issued as a judge in federal courts were highly effective in making international law penetrate the conscience of jurists. One of the earliest and most influential treatises on international law in English is that of H. Wheaton, published in 1836 which has been translated into many languages ​​and republished in many editions.

But the importance of international law for the United States waned after the Iacksonian age. The middle years of the century The nineteenth century was a period of relative isolation for the United States and few matters of international law took on an urgent character. The Monroe doctrine met no serious opposition and border issues, especially with England, were resolved by treaties. The civil war, however, left a legacy of international issues that took some time to resolve, and after a slow postwar reconstruction, the United States rose so rapidly in power and wealth that international economic relations and international law resumed their former importance.

As the beginning of the new development, the Spanish-American war of 1898 is generally indicated, but in reality it was the European wars that began in 1912 that gave a real impetus to studies in this field. International law, which had hitherto been considered by jurists as a branch of political science, and therefore as a discipline basically foreign to the faculty of law, was introduced into many systems of law studies and American scholars and jurists collaborated vigorously in the attempts in the process of codifying and clarifying this part of the law.

Matters of international law have only rarely come to the attention of American courts. Generally, these were matters falling within the exclusive competence of the executive power and diplomatic agents. But the constitution itself stipulates that duly concluded treaties are the “supreme law of the country” and bind not only state governing bodies but also Congress. The recognition of the existence of a foreign government is, however, a matter for the executive only and will not be considered by the courts at all if the president has not acted.

One of the controversial points in international law, and in which American practice has differed from that of other countries, is the extent of recognition accorded to foreign sentences. It was governed entirely by the rules of reciprocity. Recognition was sometimes refused, not only when the jurisdiction of the foreign court was in doubt, but also when the nature of the legal claim or the character of the procedure was deemed to conflict with the supreme principles (policy: lit. “politics” but has rather the sense of “norms to which the activity of the state is informed”, “general rule of conduct”) of the local jurisdiction. The general rule that one government will not apply the tax laws of another has also generally been observed.

Questions of the law of prey, which once constituted the bulk of international law disputes before the courts, have ceased to be of great importance. The attempt to enforce the amendment to the constitution concerning the prohibition highlighted the need to revise those rules of international law which depended on temporary or accidental conditions. The three-mile limit for “territorial waters” was determined by the range of the century guns. XVII. The duty of guarding the coast to prevent the landing of contraband liquor required more space; a ten-mile limit was set by a treaty with Great Britain. Obviously, the difficulties deriving from this situation can only be resolved with an international agreement.

The fact that the United States is not a member state of the League of Nations and does not officially adhere to the international tribunal in The Hague has prevented them from participating in the same activity as European nations in the formation of a new kind of international law that is intended to be introduced. rest on a new type of international organization. But, although not appointed by his own government, often an American was a member of the international tribunal and thus enabled American international doctrine to closely follow the most recent developments created by the European situation after the world war.

United States International Private and Public Law