This Essay seeks to answer two interrelated questions about regnant maritime choice-of-law analysis in the United States: Does it descriptively capture international law as the United States claims? And, if so, is such an approach a good one? In so doing, this Essay aims principally to provide national and international decision makers with a robust and fresh resource for resolving these disputes in a manner, I argue, beneficent to overall social welfare and peaceful relations among states. For only by analyzing the United States’ claim can we tell whether it is true and thus, whether it needs to be adhered to or modified. The answer to this latter inquiry is directly informed by whether we think an international law analysis is the best way forward, what that way forward may look like, and perhaps even to make recommendations to that analysis based on emergent practices.
The Essay argues that U.S. maritime choice-of-law rules largely reflect international law and practice and that this approach is a normative good because it promotes peace and trade among nations. More specifically, an international approach takes into consideration not just the forum’s interest in resolving the dispute according to its own parochial policies and choice-of-law methodologies, but also the interests of other involved states, thereby furthering the smooth working of the international system and peaceful relations among states. Furthermore, it provides a common choice-of-law methodology for all states, which increases primary predictability by legal actors engaged in behavior generally considered beneficent to overall social welfare, like international trade. These features of promoting peace and trade comport with a systems theory of international law under which rules evolve so as to perpetuate the system. Courts confronted with maritime conflicts cases should engage in deeper analysis of state and international interests with these objectives in mind.