The Private is Political

Despite its enormous growth in importance over the last 20 years or so, the History of International Law as an academic sub-discipline has so far widely neglected private international law. León Castellanos-Jankiewicz argues that this is particularly true of the historiography of human rights. A conversation about the silence between public and private international lawyers, the adjacent possible, and Karen Knop’s legacy for probing the political implications of legal reasoning techniques.   

Dear León, in a recent article in the Journal of the History of International Law (2024), you argue for a new history of international human rights law in which the pivotal contributions of private international law/conflict of laws should be given greater consideration. Why have so few scholars been interested in the role of private international law in the history of human rights?

Because private and public international lawyers are no longer in conversation. Nowadays, human rights are generally studied by publicists, whose contemporary categories don’t readily extend to private international law and its histories. At the same time, conflict of laws does not deal frontally with human rights. However, this was not always the case. During the second half of the nineteenth century, for instance, scholars in both disciplines had common concerns, published in the same academic journals and used similar reasoning techniques and comparative methodologies. They even shared standard subjects antecedent to human rights like the treatment of aliens, and hybrid categories such as “fundamental private rights”. This started changing around WWI, when the sharp distinction between public and private law was uploaded from national to international registers of legal reasoning. Within a generation or two, public and private international lawyers eventually drifted apart.

This divergence was gradual. For example, when the Hague Academy of International Law opened in 1923, both disciplines were taught together. It was only in 1958 that the Academy started organizing separate sessions for private and public international law. So overall, the two fields have been steadily distancing themselves from each other for about a hundred years now. I think this has caused a lack of awareness about their shared origins, and eclipses the contributions that private law has made to public international law and human rights.

The history of human rights has expanded significantly over the past fifteen years. Why aren’t “fundamental private rights” and similar ideas featured in that body of work?

It comes down to fields of knowledge and how they develop. When public and private international lawyers parted ways, they retrofitted their textual canons with self-referential works to create the illusion of disciplinary completeness. In evolutionary terms, this meant that “fundamental private rights” quickly became a misnomer because its traits failed to be passed down through either canon. Why? Well, to continue with the Darwinian analogy, natural selection dictates that traits and mutations survive because they adapt well to new environments and are considered useful. But the idea of “fundamental private rights” likely undermined disciplinary self-containment because it straddled two scientific areas and was therefore considered too ambiguous and unfit for purpose: neither here nor there. This could explain why it was not preserved as a self-standing category and disappeared from view.

Histories that capture “fundamental private rights” would primarily require asking how public and private international lawyers developed separate applications and reasoning techniques to perform similar functions. Sadly, public and private international lawyers tend to think about their commonalities as exceptional and have normalized their differences. It should be the other way around. Ultimately, we cannot talk about “fundamental private rights” unless we think both fields together, as was done before they forked.

You refer to Karen Knop, particularly in relation to methodology, and quote her: ‘Private international law can sometimes be more cosmopolitan than public law’. Why is this the case?

A growing literature pioneered by Karen Knop suggests that conflict of laws was key in problematizing subjective rights in an inter-national register during the nineteenth century. In an article written with Ralf Michaels and Annelise Riles, Knop pointed to the counterintuitive ability of conflict of laws reasoning techniques to address cultural and political challenges. According to them, the very formulaic nature of “conflicts style” enables adjacent innovations in substance because of its ability to process complexity and acknowledge pluralism through a common language of rules and procedures. My own article embraces that idea by showing how the iterative recognition of status through nationality and alienage enabled private international lawyers to distil a baseline of standards bearing a family resemblance to human rights.

To frame the conceptual translation from conflict of laws to human rights – two distinct branches of law – I use the theory of the adjacent possible (TAP) as a theoretical metaphor. TAP was introduced by biologist Stuart Kauffman in the 1990s to describe evolutionary potential in the biosphere and the development of system complexity. Kauffman coined the term to explain how trillions of organic composites emerged from the mere hundred thousand compounds which constituted the entire molecular diversity of the Earth’s primordial soup. Thus understood, the adjacent possible gestures towards the unpredictable new products that can result from incrementally combining existing stuff. It is a relatively simple idea with great explanatory power. My claim is that the theory, practice and style of private international law in the nineteenth century, together with ethno-nationalism, state-based codification and transnational expertise networks, provided a new set of combinatorial conditions which created the adjacent possibility for international human rights law to flourish.

The starting point of your considerations is the stabilization of personal rights of Russians who had fled to Western Europe after the Bolshevik Revolution, all of them. Why were conflict of laws important in this context in particular?

Two million Russian refugees were stripped of their citizenship in 1921 and had their property seized without compensation. To avoid indigency and protect the refugees’ rights, Western policymakers resorted to the public order exception in private international law, which incorporates policy considerations of the forum to avoid unjust outcomes.

Contrary to human rights, conflict of laws offered a surefire way of validating entitlements across borders in the 1920s. Although several scholars had already written about the ‘rights of man’ in the nineteenth century, this idea did not exist in positive law to help individuals ‘carry’ rights-claims abroad. Private international law and its rules, on the other hand, were already recognized in national legal systems, and effectively mediated the transfer of individual rights through an epistemic style that projected personal status beyond the state. Today, human rights perform roughly the same function, but have a universal vocation as opposed to a transnational one.

These observations lead me to raise two questions addressed in the article: why did conflicts provide the vital mud for cosmopolitan thinking in the nineteenth century? And most importantly, how did this discipline’s techniques offer new conceptual adaptations for international law that supported the emergence of human rights law later on? Apologies for answering your question with more questions!

These are indeed very interesting questions! To get closer to answering them, let’s take a closer look at one of the protagonists in the highly political context of the Bolshevik Revolution: André Mandelstam (1869–1949), a former Russian diplomat who used the techniques of conflict of laws to protect individual rights.

Yes, Mandelstam is an interesting figure because he was proficient in both public and private international law. At the height of the Russian refugee crisis, he advised the League of Nations Secretariat to use conflict of laws techniques to preserve the legal personality of those who had been displaced. Mandelstam was primed to provide this guidance: he wrote his 1900 doctoral dissertation on the Hague Conference on private international law and published an important volume on the Ottoman Empire’s treatment of aliens while he was posted in Constantinople.

Today, however, Mandelstam is mainly remembered as a human rights forerunner because he drafted the New York Declaration of International Human Rights adopted by the Institut de Droit International in 1929. That document included the hallmarks of modern human rights law two decades before the adoption of the Universal Declaration. I’m quite convinced that Mandelstam leaned into his privatist training to develop human rights in the Declaration. René Cassin, another human rights precursor, had a similar professional trajectory: he was a successful conflict of laws scholar before launching his human rights career.

If I may, dear Hendrik, I can’t resist sharing some international law trivia which is relevant here: Antonio Bustamante was the only member of the Institut who voted against the New York Declaration because he insisted that the subject should be covered by private international law and the treatment of aliens. He probably feared the Declaration would overshadow his Code of Private International Law, which had been adopted a year earlier in Havana. The fact that a towering figure like Bustamante—by then a judge at the Permanent Court of International Justice—was so vocal about his discipline’s primacy suggests that human rights raised high political stakes for the epistemic relations between publicists and privatists. A good topic for further research!

This is particularly interesting when you consider that conflict of laws, at least in Savigny’s sense, should actually be legal and apolitical, if this differentiation makes any sense at all, which critical legal scholars doubt, of course. To what extent was Mandelstam’s action legally—and not rather politically—motivated?

Indeed, Savigny was against public codification because it politicized private legal relationships through the state. He thus sought to limit the prominence of territorial jurisdictions in the determination of individual rights, and postulated an interstitial legal space whose mere existence attenuated the competence of the territorial state in favor of functional legal relations—a sort of “private universalism”, as Karen Knop might have put it.

In contrast to Savigny’s ostensibly apolitical stance, I think Mandelstam had a clear political agenda when using private international law to protect his compatriots, even though he cloaked it in conflicts jargon. This tracks nicely with Knop’s emphasis on process and technique to understand the political: by following the seemingly value-neutral steps in conflicts analysis, Mandelstam could help policymakers process an explosive political situation.

Where do you see further paths for a history of human rights from the perspective of conflicts of law?

Martti Koskennniemi pointed out some years ago that international lawyers have paid little attention to the private law relations that have shaped their discipline. That is now changing, and there is an increasing awareness that conflicts and private law, particularly as they relate to political economy, have been incredibly influential in the making of international legal structures. I would add that historical studies linking the protection of private property in nineteenth-century international law to future human rights have until recently been absent, although Christopher Casey’s excellent monograph has now filled that gap. And more research is needed to examine the role which conflicts most certainly played in the protection and propagation of commerce during the era of capital and imperial ascendancy although, again, a budding literature is raising these questions. There is important work to do and that is exciting.

To conclude: can we learn anything from the history of conflict of laws and human rights for the current problems of this world?

One of the biggest insights I gained from writing this paper is that private international law can protect global public goods through legal and argumentative tools that are just as complex and (in)effective as those available to publicists. In addition to the need for broadening the conversations between the two disciplines, my main takeaway is that an increased situational awareness of both fields—each in its own terms—can help us become better scholars and practitioners.

I hasten to add that I’m not arguing for a return to disciplinary cohabitation. We cannot undo the past, but we can choose to lower our guard and be less apprehensive about policing our academic turf. Because today, the reality is that privatists and publicists inhabit different ecologies of knowledge, and independently exploit particular sets of niches and opportunities. Moreover, the chance that these fields will reunite is statistically insignificant because each is orders of magnitude more complex than what it was in the nineteenth century. And although both disciplines “carry” their accumulated experience within their makeup, they are not designed to “remember” their adaptive decisions when executing specific functions. They will each continue harnessing their own wherewithal to solve new problems until they are transformed by their environment or become subsumed into other systems of knowledge. These observations bring me back to the importance of being open to fields adjacent to (and far beyond) one’s own to enable and partake in innovation. The alternative—doubling down on epistemic segmentation—is obsolescence.

For now, those of us who struggle to navigate the plethora of intellectual stances in international legal scholarship can learn a lot from Karen Knop’s methodological openness and originality. She is among the few international law scholars who have probed the political implications of legal reasoning techniques instead of focusing—as most do—on ideology. Her works using feminist approaches to decode the grammar that underwrites exclusion are full of illuminating examples which help us become strangers to ourselves in wonderful and unpredictable ways. Whether you are new to her scholarship or a longtime fan, I highly recommend two symposia that were recently published in Karen’s honor: one in AJIL Unbound and another in the University of Toronto Law Journal. Karen sadly passed away in 2022, but her work has gently opened exciting new pathways for generations to come.