Academic journal article Duke Journal of Comparative & International Law

Children Crossing Borders: Internationalizing the Restatement of the Conflict of Laws

Academic journal article Duke Journal of Comparative & International Law

Children Crossing Borders: Internationalizing the Restatement of the Conflict of Laws

Article excerpt

                   TABLE OF CONTENTS  INTRODUCTION                                                       520 I. THE IMPACT OF HARMONIZATION ON CROSS-BORDER CHILD DISPUTES      524 A. The Work of The Hague Conference                                525 B. The ALI's Prior Work                                            529 C. Merging Hague and ALI Approaches                                532 II. THE CULTURAL, ETHNIC, AND RELIGIOUS DIMENSIONS OF CROSS-BORDER CHILD DISPUTES                                     534 A. Islamic and Religious Law and the Malta Process                 534 B. Morals and Mores and Cross-Border Surrogacy                     536 III. FOREIGN LAW IN U.S. COURTS                                    538 CONCLUSION 539 

"[I]nterstate transactions are importantly different from international transactions. Differences between state and foreign nation laws are greater than differences between sister state laws. The Constitution applies only in part to such conflicts. On the other hand, only international transactions are influenced by international law and by foreign relations and foreign commerce considerations." (1)

INTRODUCTION

Treating internal U.S. conflicts and international conflicts law the same, without distinguishing between them, has always puzzled non-U.S. lawyers and scholars. (2) Europeans often do not understand how we can treat transnational choice of law decisions as if they were between two domestic states in light of the inherent differences between legal systems and traditions. Nowhere today is this contrast between international legal cultures and purely domestic matters more evident than in the realm of family law and in particular issues relating to children, where religion, culture, ethnicity, and morals help shape decisions. And nowhere is the question of whether domestic and international conflicts should be treated the same more pressing than in the current work of the American Law Institute ("ALI").

The ALI is currently in the process of preparing a new Restatement of Conflicts (Third) and is faced with the issue of whether and how to address cross-border family law cases. (3) This decision is complicated by the fact that the ALI is at the same time preparing a new Restatement of Foreign Relations Law (Fourth). Many observers are uncertain about where private international law aspects of private law matters such as family law should be covered--in the Restatement of Conflicts (Third), the Restatement of Foreign Relations Law (Fourth), or both. One often thinks of the Restatement of Foreign Relations as being addressed primarily toward issues of public international law. For example, when faced with a choice of law question involving a foreign custody order, (4) few judges, and even fewer lawyers, would know to consult the Restatement of Foreign Relations Law (Third) (5) about how to treat the foreign judgment. Indeed, there are almost no cases relying on Section 485 of the Restatement of Foreign Relations Law (Third). (6) The dearth of references reflects in part the lack of familiarity by the U.S. bar and judiciary with the Restatement of Foreign Relations Law (Third) and the attendant need to incorporate different concerns when cross-border elements are involved.

More importantly, the Restatement of Conflicts (Third) is confronted with the overall question of how to incorporate international conflicts within rules for interstate conflicts. This question of how different "foreign" as opposed to "domestic" conflicts are treated pervades the entire project. (7) The current draft takes the position that international and interstate conflicts are generally to be treated the same:

c. International conflicts. For purposes of conflict of laws, the interstate and international contexts are broadly similar. The rules in this Restatement are also usually applicable to cases with contacts to one or more foreign nations. This is properly so since similar values and considerations are involved in both interstate and international cases. … 
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