This blog piece is based on a conference held in Ljubljana on 26 April 2024. This seminar was co-organised by the Centre for Private International Law of the University of Aberdeen, the Faculty of Law of the University of Ljubljana and the Pax Project (co-funded by the European Commission). The speakers, and the authors of this blog, were Sandrine Brachotte (UCLouvain (Saint-Louis, Brussels)), Robin Cupido (Faculty of Law, University of Cape Town), Gyooho Lee (School of Law, Chung-Ang University) Tena Hoško (Faculty of Law, University of Zagreb), and Thalia Kruger (University of Antwerp) as chair.
Scholars of TWAIL (third-world approaches to international law) and of public international law have written much about decolonisation, and of the colonial origins of public international law. Private international law has in this sense lagged behind, with many fewer scholars engaging with these issues. Yet, a part of the criticism of TWAIL scholars is directed at the way in which globalisation took place, and for that purpose private international law was instrumental.
Private international law is often endearingly called difficult and technical; to some its technical nature is proof that it is objective and neutral, merely acting as the innocent hand distributing the cards according to strict rules of the game. Yet, the time has come to acknowledge that this is not an accurate depiction and that if the rules were made to a large extent by dominant world powers pretending that all States are equal, there is no truth in calling them neutral.
Sandrine Brachotte attempted to answer the question of whether colonial thought is embedded in the structure of private international law. Having regard to postcolonial studies and decolonial theory, she defined the colonial thought as the fact of considering the occidental view of the world, ways of living, and hierarchisation of sources of knowledge as universal. On that basis, she argued that Western private international law, like the rest of Western state law, carries out the colonial thought to the extent that it reflects modern legal theory, including the paradigms of legal monism (according to which state law is the ultimate source of normativity) and universalism (according to which it is possible to take one all-encompassing point of view to determine what is best for all human beings). Its ‘intellectual style’ (Knop, Riles, & Michaels) however makes it potentially more open to legal pluralism (Muir Watt, Berman, Teubner) and pluriversalism (Michaels) than other branches of law. Yet, not all Private International Law techniques and methods equally hold the potential of being inclusive of non-Western worldviews: some due to their technicity (e.g. the method of recognition of foreign situations is a priori more inclusive than the conflict rules), others due to substantive elements (e.g. the chosen connecting factor can appear to have more or less detrimental or beneficial effects on the oppression or empowerment of citizens claiming colonised or postcolonial worldviews).
Robin Cupido addressed the matter of decolonising education, beginning from the premise that decolonisation entails deconstruction and a willingness to re-examine how we as teachers understand our subject areas. Referring to Fanon's writing, she highlighted that decolonisation is necessarily disruptive, forcing us to consider our own positionality in terms of gender, race, socio-economic status and politics, to name but a few factors. The key thing to remember when approaching the decolonisation of education is that the predominant or accepted knowledge that we teach comes from a particular worldview, and that worldview must be examined more closely. By asking why a particular knowledge system is dominant we can also discover the gaps in that system and by doing so begin to make room for other epistemologies. When asked how this would take practical effect in the teaching of Private International Law, Robin Cupido included suggestions such as prescribing authors from other parts of the world than Europe and considering using cases and examples for case studies that are not Euro-centric. She also recommended forming ties with colleagues in the global south and making room for different understandings of Private International Law in both research and teaching. She acknowledged that transforming a curriculum and indeed transforming how law is taught often solicits resistance, but also explained that it is a necessity in a world that is still grappling with the consequences of colonialism.
Tena Hoško showed how the rules on inter-country adoption have allowed children to be exported from certain parts of the world and imported largely to Europe as true relics of colonialism. Destination countries, while they have the structures and means to do so, have been far too passive (if not reluctant) to perform due checks of whether birth parents truly consented to adoptions and of whether the proper procedure had been followed. Recent scandals in various European countries (including Belgium, the Netherlands, and Croatia) have showed that the legal framework for international adoption has not always been able to address the inequalities created by colonialism. Flanders (which has the devolved competence over adoption in Belgium) as well as the Netherlands have placed intercountry adoptions on hold.
Gyooho Lee referred to the gender-neutral revision of Korean private international law, which was one element of decolonising the legacy of the Japanese colonial era. He then focused on the more than 220.000 art objects that have left the Republic of Korea. Of these, more than 40% of these objects (109.801 objects) are now located in Japan, a former colonial power, and approximately 26% (65.355 objects) in the United States of America, which had military rule over the Republic of Korea from 1945 to 1948 and from 1950 to 1953. The Royal Seal of the second Queen Jangyeol of King Injo (of 1676, at the time of the Chosun Dynasty) is one of these many objects. It was stolen, together with 46 other such seals, in the 1950s and illicitly exported to the US. It was sold in an online auction by a seller in Virginia, US to a Korean buyer. When the buyer offered to sell it to the National Palace Museum of Korea, the museum refused to return the seal, arguing that it belonged to the Korean State. The question arose of which law should be applied. Under Korean law, the good faith acquirer would have become the owner, while ownership would not have passed through good faith possession under the law of Virginia. The Seoul Central District Court found that according to the Private International Law rules of the Republic of Korea, the law of Virginia applied. This judgment was subsequently confirmed by the Seoul High Court (Decision of 20 September 2018, Case No. 2017 Na 2053997) and the Korean Supreme Court (Decision of 31 January 2019, Case No. 2018 Da 279835). The case shows how, even though Korean civil law under the initial Civil Act of 1958 had a retroactive effect, this was not the case for the subsequent civil acts. The retroactivity could address the colonial past, but it no longer existed. However, the courts managed to find a solution through private international law. In this instance it was the colonial origins not of Private International Law but of private law that were the problem.
In sum, several main points came out of the meeting that are keys to the debate about decoloniality and private international law:
- Private International Law's so-called neutrality is a fiction and embedded in a very specific liberal and Euro-centric worldview. A move out of this fiction that could be more inclusive of colonised and postcolonial worldviews would be to consider the legality not only of state law but also of indigenous, religious, and customary norms of precolonial origin.
- We have to continue questioning our certainties and stay open for new learning. Decolonial thinking moves beyond the empowerment of colonised and postcolonial worldviews, identities, and practices. It is a call to pluralise the conception of shared notions, as various as the state, law, gender, individualism, and freedom.
- We should also be critical of the way in which we teach private international law, and not allow rigid world views to impoverish our knowledge transfer and communal learning.
- In some areas of the law more than others Private International Law has been contributing (and is still contributing) to the continuation of colonial mindsets.
- Private law is sometimes also set in a rigid colonial past, and if Private International law mediates between various of these sets of private law, it can be a perpetuator of dominance, or an agent of change.
