PRIVATE LAW AND PRIVATE INTERNATIONAL LAW: LOCATING WOMEN

International lawyers are increasingly attentive to the systemic impact of private economic power and to the historical role of private law in empire.^[937] In his recent historiographical work, Martti Koskenniemi argues that histories of international law should expand from the law of sovereignty to include the law of property and their relationship with one other as the ‘yin and yang of global power'.^[938] By approaching the history of international law in terms of states - war, diplomacy, treaties, institution-building - international lawyers cordon off the private-law relations that underlie and support those actions.

Any international legal history would say something about the abolition of the slave trade but little if anything about the contractual form through which that trade was connected with Caribbean sugar production and the export of arms and manufactures to Africa. Its account of North American colonization would rarely include an analysis of the charters under which private companies and individual proprietors would rule the thirteen colonies.^[939]

That is, by neglecting private law, historians of international law produce only a partial account of how power operates through international legal concepts and institutions.

Feminists would add that expanding to the private sphere of the market is not enough - we must also expand to the private sphere of the family. Before the nineteenth century, in fact, the public/private dichotomy was not, or not fully, in operation, and most of the leading international law treatises included questions of civil status, marriage, succession and family law, all of which were occasion to invoke the status of women.^[940] According to Martin Gallic and Maxine Visotsky-Charlebois, questions of women's rights disappear from the main treatises at the end of the eighteenth century.^[941] When they reappear at the start of the twentieth century, it is squarely in public international law: issues of diplomatic immunity for the household (the diplomat assumed to be male) and the nationality of married women.

This nineteenth-century silence brings us back to Koskenniemi's case for expanding histories of international law to take account of private law. The way he frames the case implies that the private is outside international law, or perhaps blurs or doubles with it, as when the Dutch East India Company is both a private trading company and a representative of the sovereign.^[942] But this does not hold for private international law. In an unpublished work, Koskenniemi actually mentions, without pursuing, that his ‘men of 1873’ - as he calls the founders of the Institut de droit international - understood private international law as part of international law. They treated public and private international law as united, although not all agreed on how.^[943] Moreover, a number of them were also involved in efforts that led to the first meeting of the Hague Conference on Private International Law in 1893. Pasquale Mancini, the Institut’s first president, had spurred an earlier attempt, and the Conference was an initiative of Institut member Tobias Asser.^[944] The goal was a series of treaties that would remove legal obstacles to transnational private relations and transactions such that, for example, a contract valid in the state where it was concluded would not be held invalid by a court in the state where it was performed due to differences in the contract law of the two jurisdictions. As opposed to harmonizing the substance of private law across states, the objective was to harmonize private international law rules, such that states were agreed on which state’s private law regulated a given issue.

Since the unity of public and private international law has long ceased to figure in international law thought, the private side of international law has been lost, largely, to modern public international lawyers and requires histor­ical context to reconstruct. ‘[P]ublic international lawyers frequently ignore private international law’, notes private international lawyer Ralf Michaels, ‘whereas historians of private international law are usually very aware of the relation’.^[945] As Alex Mills, another private international law scholar, writes, this lack of context has implications for present-day international law as well:

The standard history of international law is a story of public international law as an expanding, developing discipline, only recently engaging with the domain of the ‘private’....

present development of international law, appear more natural, more pro­gressive, more inevitable. The engagement of international law with the private domain appears to be a sign of maturity, not a return to the past.^[946] Moreover, if private international law was treated as part of international law, whether in theory or in practice, then transnational family law was part of it as well, rather than merely a backstory.^[947] In other words, women and private­law gender relations did not disappear altogether from international law during the nineteenth century, contrary to what Gallic and Visotsky- Charlebois's survey of treatises indicates. Indeed, once public international lawyers think to look, this point is hiding in plain sight. Among the seven Hague conventions on private international law first concluded are conven­tions on marriage (1902), divorce (1902), guardianship (1902), the effects of marriage (1905) and the deprivation of civil rights (1905).^[948]

1 next suggest three ways in which recognizing private international law as part of the international law conversation in the late nineteenth century might open up new connections and inquiries between international lawyers and historians, particularly around women, gender and feminism.

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