The discipline of Private International Law (“PIL”) is often considered a maverick in legal science. Traditionally the discipline of PIL is attributed a high ivory-tower quality; PIL is known as a very abstract, legal-technical, esoteric and even inaccessible discipline.
Yet it is striking that PIL issues are noticeably often interwoven with a number of heated, topical socio-legal debates, such as the debate on transnational corporate social responsibility, the debate on the posting of employees from Eastern Europe to Western Europe, or the debate on residency and social-security entitlements of foreigners based on family relationships. Although at first glance the role of the discipline of PIL in discussions about how these subjects should be regulated may seem rather modest, on further consideration it turns out to be crucial how the PIL questions that can be recognised are identified (or not identified) and addressed.
So it is PIL rules that determine to what extent and on what basis a European parent company and its non-European subsidiary can be sued in an EU country under civil law; and it is PIL rules that determine which employment conditions must be respected in the case of an international posting; and it is PIL rules that determine to what extent international marriages, parentage relationships etc. can be considered valid, and hence could form the building block for entitlements to residence rights, child benefit etc. The manner in which PIL is regulated (including leaving possibilities of strategic use by e.g. multinationals that want to profit from differences in legal systems by operating in a country where the rules are less strict as regards environmental protection, safety regulations etc. or where the rules are not being implemented) – and the level at which this happens – has in any case an effect on, for instance, the possibilities for victims of international environmental pollution (pollution which has occurred both inside and outside Europe) for having recourse against European multinationals, or also, on the extent “competition on employment conditions” is possible within Europe.
In all aforementioned examples PIL unquestionably forms an important, if not decisive, but in any case guiding link; on further consideration the relevance of PIL each time manifestly emerges and it turns out that PIL can even exercise a “hinge function”, as I refer to it myself. Sometimes PIL even functions as a hinge between other legal branches, for example between family law and migration law.
Looking at current developments and tensions - in which PIL is, ultimately, questioned on both its internal foundations and its position between other legal branches - from the perspective of “social justice” might help to evaluate ongoing developments.
Looking from the perspective of social justice might be useful in establishing one’s position towards current attempts to “instrumentalize” PIL in certain areas - or the lack thereof in other areas: for example, what about tendencies in the Netherlands to model PIL into an instrument of restrictive migration policy? Or what to think about the idea of (further) modelling PIL on a European level into a genuine instrument in the fight against international environment pollution, or into a genuine instrument to guarantee labour protection? Where should PIL “resist” outside pressure to model it, where should PIL be “subservient”?
Both in situations governed by European PIL rules and situations that are not (yet) governed by European PIL rules, the question arises how PIL should position itself within the forces at play and to what extent PIL can or should adopt a “neutral” position.
To what extent is PIL “neutral” at this moment? Looking from the perspective of social justice: is PIL, in the current situation, not neutral in certain areas, in the sense that PIL is complicit to social injustice? Is there e.g. a risk that PIL is evolving in the Netherlands into an instrument to deny residence and social security claims of foreigners – and is PIL, thus, not “neutral” when it functions as a hinge between migration law and family law? Should PIL show more resistance here to pressure from outside? And to what extent can PIL be used as a power tool in the hands of multinationals – is PIL, thus, not a “neutral” discipline in issues of transnational corporate social responsibility? Can PIL instead guarantee or even further social justice, and if so how exactly can PIL rules be mobilised c.q. applied to achieve broader social justice in national and international society?
The three above-mentioned case studies may give a picture of the potential of PIL for the advocates of (transnational) social justice. Looking from the perspective of guaranteeing c.q. achieving social justice might help in finding one’s position regarding the role of PIL in these issues, including controversies on the instrumentalization of PIL, its “neutral” character etc. The issues matter, and PIL could make a difference in these issues. Ultimately, the potential of PIL to guarantee c.q. achieve social justice in these and other areas might be high.