Cultural Identity in Private International Family Law

The era of globalization is characterized by the dynamic
movement of people across borders and migration in various parts of the world. The
juxtaposition and coexistence of different ethnic, cultural or religious groups
within society poses the challenge of accommodating divergent legal, religious
and customary norms. Of key concern is how far the fundamental values of the
receiving state ought to be imposed on all persons on the soil, and to what
extent the customs, beliefs and the cultural identity of individuals belonging
to minority groups should be respected. This challenge arguably requires reconsidering
and reevaluating the conventional methods of private international law that are
grounded in the territorial “localization” of legal relationships. Against this
background, Yuko Nishitani (Professor
at Kyoto University, Japan) envisaged studying various conflict of laws issues
from the viewpoint of cultural identity in private international family law and
delivered a lecture at the Hague Academy of International Law on “Identité culturelle en droit international
privé de la famille”, which has been published in Recueil des cours, Vol. 401 (2019), pp. 127-450.

In her lecture, Nishitani first analyzes the notion
and meaning of cultural identity in private international law, after
comparatively delineating legal developments in major legal systems (Chapter I).
The author posits that, while the notion of cultural identity should not be
understood as its own legal category, it serves as a guiding principle and
theoretical foundation in justifying certain solutions in private international
law (Chapter II).

In multiethnic and multicultural societies, the
belonging of individuals to states, regions, communities or other groups is
gradually relativised and redefined. In light of the recent effects of
globalization, the author contemplates the appropriate methods for determining
the personal law to cater for the cultural identity of individuals, overcoming the
conventional dichotomy between the principle of nationality and the principle
of habitual residence (Chapter III). Considering the multiplication of relevant
legal and social norms, the author also considers the interaction between state
law and customary, religious or cultural non-state norms to seek solutions for
“conflict of norms” in a broader sense (Chapter IV).

On the other hand, for the sake of coherence and security
of the legal system, the state exercises control, where necessary, to preclude
effects of foreign legal institutions. It is essential to define the
functioning of public policy and fundamental rights so as to set limits to
respect for cultural identity (Chapter V). Finally, the author reflects on
alternative conflict of laws methods geared toward administrative and judicial
cooperation between sovereign states, with a view to accommodating the cultural
identity of individuals (Chapter VI).

At the end of her lecture, the author highlights the importance of constructive dialogue between different cultures, given that humanity has a long history of success in mutually developing, exchanging and enriching its diverse cultures.

More information about the author and the book are available here (in French).