When Globalization Hits Home: International Family Law Comes of Age

Article excerpt

ABSTRACT

Not that long ago, international family law (IFL) referred to a series of multilateral conventions basically concerned with conflicts of law questions. It could be studied as part of a course on family law or as part of a course on conflicts of law. But IFL, or family law in which more than one State has an interest, has grown up and become a subject of its own.

This is not merely a curricular development. Rather, it reflects and reinforces two of the most powerful trends of the last fifteen years: globalization and the spread of human rights. Globalization is transforming families. The global migrations of capital, and the vast migrations of labor that have accompanied, it have torn families apart, created new families, and radically changed the meaning of family. Borders have become more porous, allowing adoptees and mail order brides to join new families and women fleeing domestic violence to escape from old ones. People of different nationalities marry, have children, and divorce, not necessarily in that order.

There are powerful trends and countertrends everywhere, and competing norms of IFL are at the core of each. International human rights law plays a growing role in mediating these competing norms. Many States have outlawed polygamy and child marriage, for example, at least in part to show the rest of the world they are "modern." IFL is where the enormous abstract forces of globalization and human rights become real, immediate, and personal. IFL, in short, is where globalization hits home.

"Above all, relationships are changing."

--Kwame Anthony Appiah (1)

TABLE OF CONTENTS

  I. INTRODUCTION--WHEN GLOBALIZATION HITS
     HOME
 II. How GLOBALIZATION AFFECTS IFL
     A.   How Mobility Reconfigures Families
     B.   How Income Shifts Power
          1. The Transformation of Women's Roles
          2. Transnational Support
     C.   How Culture Changes Everything
III. HOW HUMAN RIGHTS LAW AFFECTS IFL
     A.   How Human Rights Norms Apply in General
          1. In Theory
             a. Human Rights of the Family
             b. Human Rights Within the Family
          2. In Practice
     B. Two Crucial Norms
          1. Gender Equality
          2. Economic Rights
IV.  INTERNATIONAL FAMILY LAW COMES OF AGE
     A.   Why IFL Matters
     B.   Substantive Laws and How They Function
          1. Family Law
          2. International Law
          3. Comparative Law
     C.   The Impact of IFL
          1. On Globalization
          2. On Human Rights
             a. Changing the Laws Defining
                Families
             b. Changing the Normative Landscape
  V. CONCLUSION

I. INTRODUCTION--WHEN GLOBALIZATION HITS HOME

Not that long ago, international family law (IFL) referred to a series of multilateral conventions basically concerned with conflicts of law questions. (2) It could be studied as part of a course on family law or as part of a course on conflicts of law. But IFL, or family law in which more than one State (3) has an interest, (4) has grown up and become a subject of its own. Within the past few years, there have been panels on the topic at the Annual Meetings of the Association of American Law Schools, (5) the American Society of International Law, (6) and the International Law Association, American Branch. (7) A major text was published in 2003, (8) and the Family Law Quarterly published a symposium on the subject in 2004. (9) An Introduction appeared in 2005. (10)

This is not merely a curricular development. Rather, it reflects and reinforces two of the most powerful trends of the last fifteen years: globalization and the spread of human rights. Globalization is transforming families. The global migrations of capital and the vast migrations of labor that have accompanied it have torn families apart, created new families, and radically changed the meaning of family. …