CITIZENSHIP AND INTERNATIONAL OBLIGATION: GENDER DISCRIMINATION AND RELATIONAL FEMINISM

The final direction for research I propose is what a gender perspective might bring to the historical understanding of membership in the state and of interstate obligation in international law.

Domicile and Discrimination⁶¹

Following Mancini, the Institut de droit international endorsed nationality as the link for purposes of private, as well as public, international law.⁶² Nonetheless, its members were divided over whether nationality should be the connecting factor that determined which state's laws governed an individual's status and capacity, family relations and corresponding rights and obligations. In particular, domicile was the connecting factor used by common-law systems of private international law and also advocated by Friedrich Carl von Savigny, who equalled Mancini as a giant in the field. Whereas nationality reflected a political bond, domicile was ‘the fact of

Feminist Approach to Private International Law', Commentaries on Private International Law 3

(1) (2017), 21, available at www.asil.org/sites/default/files/documents/PIL_vol3_issuei_v2%2o% 28i%29.pdf.

⁶¹ This section draws on Knop, ‘Lorimer's Private Citizens of the World' and Knop, ‘Citizenship, Public and Private', Law and Contemporary Problems 71(3) (2008), 309-41.

⁶² See ‘Conclusions et Resolutions Proposees a l'Institut par M.M. Mancini et T.C. Asser', Revue de droit international et de legislation comparee, ist ser. 6 (1874), 582-4, at 583.

homeness, as the law gathers it'.^[985] An 1869 House of Lords case defined domicile as:

a residence freely chosen... and it must be residence... general and indefinite in its future contemplation. It is true that residence originally temporary, or intended for a limited period, may afterwards become general and unlimited, and in such a case so soon as the change of purpose... can be inferred, the fact of domicil is established.^[986]

Thus an individual could change domicile sometimes even simply by changing his mind, whereas the acquisition and loss of nationality was a process involving the state.

On one hand, the common-law rules on domicile clearly reflected discrim­inatory European and imperial attitudes of the time. For instance, nineteenth­century jurists were divided over whether an Englishman could acquire domicile in a non-European nation such as China, India or Turkey, with the British courts dismissing the possibility by the end of the century. Among the underlying reasons were the notion of immiscibility and the incentives created for British nationals to incorporate foreign areas into the British empire.^[987] On the other hand, domicile's history also shows its role as a more contextual and cosmopolitan form of private citizenship - perhaps even its suggestiveness for present-day citizenship.^[988] Notably because nationality and domicile did not always align, in times of war an enemy national could be a British domiciliary, and vice versa.

There are also obvious historical relationships between domicile and gender discrimination. As with nationality, the domicile of a married woman depended on the domicile of her husband. Thus, for instance, a husband could desert his wife and move to another country, and the wife's domicile would follow his even if she had never set foot there. However, the campaign to abolish dependent nationality for married women was one of the early transnational feminist causes, along with suffrage, whereas dependent domicile was abolished only much later and still exists in some countries.^[991]

While marked by a history of gender discrimination, domicile is potentially less discriminatory than nationality as a conception of belonging.

Comity and Relationality

A second concept illuminated by seeing public international law together with private international law historically is the ‘comity of nations'.^[993] While comity is a notoriously indeterminate and multifaceted idea, the United States Supreme Court in Hilton v. Guyot provides a well-known late nineteenth­century formulation:

‘Comity,' in the legal sense, is neither a matter of absolute obligation, on the one hand, nor of mere courtesy and goodwill, upon the other. But it is the recognition which one nation allows within its territory to the legislative, executive, or judicial acts of another nation, having due regard both to international duty and convenience, and to the rights of its own citizens or of other persons who are under the protection of its laws.^[994]

In public international law, comity plays a relatively minor and interstitial role, whereas some schools of private international law see comity as the basic reason that one state would apply another state's law.^[995] Contemporary public international lawyers tend to decry comity's softer nature as a poor second best to legal obligation, and a disdain for comity can also be found among those nineteenth-century international lawyers who subscribed to the unity of public and private international law. Arguing that states had a duty to recognize one another's private law, James Lorimer, for example, dismissed comity as ‘[t]he old woman's fable of a sort of international civility called the comitas gen- tium'.^[996] Modern commentators are often skeptical that judges' references to comity accomplish anything, although recent scholarship in a number of common-law countries seeks to account for its prominence in judicial reasoning.^[997]

A gender perspective has the potential to add historical context to the two concepts with which the US Supreme Court contrasts comity in Hilton v.

If codes of masculinity strengthened obligation, as Coates argues, then a gendered history of international law might pursue whether and how associ­ation with femininity weakened courtesy and, by extension, comity. The US Supreme Court in Hilton v. Guyot refers to ‘mere courtesy'. Comity does not amount to an ‘absolute obligation', but neither is it reducible to politeness or amiability. But was courtesy always ‘mere'? More to the point, to what extent did jurists' impressions of comity as a source of behavioral expectations among states track ideas of courtesy as a class and gendered idea at the time? Historian Michael Curtin writes:

From the Renaissance to the French Revolution manners were an essential aspect of the ideal of civilization and were thought worthy of the serious attention of intelligent men. The literary vehicle for the discussion of manners was the courtesy book, a genre that for almost three hundred years, from Elyot to Chesterfield, remained a lively and important strand of English literature.

It was, in fact, only when manners came to seem trivial and unworthy of association with serious moral thought that the courtesy book was doomed.... Exiled from high culture, the discussion of manners was confined to the etiquette book, a genre that had existed for centuries under the shadow of courtesy.^[1001]

Courtesy literature, as Curtin traces, was almost entirely a masculine genre because its object was to teach readers how to get on ‘in the world', a sphere populated mainly by men. Pleasing others was a matter of self-interest. In contrast, in the Victorian era, etiquette books became ‘mere': they were addressed to women and stressed the importance of tact as a form of concern and kindliness toward others.^[1002] In this light, we could imagine expanding gender studies of the history of international law to include attention to contemporaneous understandings of manners and the ways in which they animated international law. Feminist international lawyers have already been critical of rape in wartime as an injury to honor, as opposed to an act of sexual violence,^[1003] and feminist historians have drawn connections between dueling and the regulation of diplomatic relations even into the twentieth century.^[1004] Because it deals with the nature of obligation, the relationship between comity and courtesy might be of even broader significance.

Finally, as Hilton v. Guyot also shows, judges may make assumptions about the shared priorities and cooperative behavior of states under the concept of comity. Thomas Schultz and David Holloway argue that Joseph Story, whose nineteenth-century conflict of laws treatise established private international law as a field in the United States, shifted the meaning of comity. Whereas earlier understandings had been more communal, Story made the idea of friendship between peoples much less intrinsic. His approach saw comity instead as bilaterally shared and reciprocated.^[1005] Schultz and Holloway differentiate Story's idea of comity from the conception that accompanied the emergence and consolidation of the Westphalian system. From a private international law perspective, that international order could be conceived of as organized, albeit unequally, around sovereignty, territoriality and comity: ‘from the existence of an international society flows the obligation that each of the member states not go as far as absolute territoriality'.^[1006] Some contemporary accounts, too, are adamant that ‘comity is not, in any intelligent sense, a form of reciprocity'.^[1007]

In this respect, comity is worth investigating as a potential historical counter­weight to feminist critiques that the state in international law replicates the image of the individual in classical liberalism as isolated, autonomous and/or self-interested.^[1008] In comity, we might find one litmus test for the state's social alter-ego, as Schultz and Holloway also seem to suggest. What would that alter­ego look like? ‘Positive comity', for instance, is identified with international cooperation going beyond the requirements of international law.^[1009] One modern commentator argues that although the impact of comity in international affairs has been reduced largely to ceremonial issues and processes involving interstate information, its scope could also be expanding with the rise of international solidarity in forms such as disaster relief, remission of foreign debt and other assistance to states in need.^[1010] In a somewhat similar vein, there is emerging interest in reassessing the history of ‘friendship' among nations as a concept in international relations, including in international law.^[1011]

This chapter has sought to identify dimensions of international law that have the potential to initiate counter-disciplinary conversations with historians about women as subjects of international law, transnational gender relations as a way of constructing the state through international law, and feminism as a lens on legal ideas of belonging to and cooperation between states that public international lawyers tend to overlook or dismiss. The proposed directions for research, it should be emphasized, are prompted by the particular debate about international lawyers doing history with which I began and are based on one particular private-law context in late-nineteenth-century European ideas of international law. Other contexts, and other feminisms, would undoubtedly suggest other directions for feminist histories of international law. Moreover, not only does context have many and different meanings in feminism, history and law, it is far from the only method in any of the three. In other words, this chapter is but one illustration of where new critical conversations might begin.