Public International Law Vs. Private International Law
PUBLIC INTERNATIONAL LAW VS PRIVATE
Chaity Chattopadhyay & Raveesha Gupta
Students of I.L.S. Law College, Pune
(4th & 3rd B.S.L. L.L.B.)
4th November, 2011
According to Bentham’s classic definition, International law is a collection of rules
governing relations between states. In its broadest
sense, international law provides normative guidelines as well as methods,
mechanisms, and a common conceptual language to international actors—i.e.,
primarily sovereign states but also increasingly international organizations and
some individuals. The range of subjects and actors directly concerned with
international law has widened considerably, moving beyond the classical
questions of war, peace, and diplomacy to include human rights, economic and
trade issues, space law, and international organizations. It is important that these
International laws that have been composed and agreed upon are properly
International Law itself is divided into Conflict of Laws (or Private International
Law) and Public International Law.
Private International Law
It deals with those cases,
within particular legal
systems, in which foreign
elements obtrude, raising
questions as to the
application of foreign law or
the role of foreign courts.
For e.g. If two Englishmen
make a contract in France to
sell goods situated in Paris,
an English Court would apply
French Law as regards the
validity of that Contract.
Public International Law
It covers relations between
states in all their myriad
forms, from war to satellites
and regulates the operations
of the many International
It may be Universal or
For e.g. The practice of
diplomatic asylum that has
developed to its greatest
extent in Latin America.
2. Customary international law,
3. General principles of law,
4. Judicial decisions and Scholarly opinions.
A subject of the law is an entity capable of possessing international rights and
duties and having the capacity to maintain its rights by bringing international
claims. The subjects of Public International Law are as follows:
1. Established Legal Persons
Political entities legally proximate to States
UN administration of territories immediately prior to independence
Agencies of States
2. Special Types of Personality
National Liberation Movements
States in statu nascendi
Belligerent and Insurgent communities
Entities sui generis
3. Controversial Candidature
Public International Law is an enormously diverse discipline.
In its strictest, and now arguably out dated sense, it could be said to be concerned
with legally binding rules and principles regulating the relationships between
Areas ordinarily dealt with within the scope of Public International Law include for
• the law of treaties
• issues relating to territory
• statehood and State responsibility
• international dispute settlement and
• international use of force.
However, this fascinating area of law does also include rules regarding when a
State’s court can claim jurisdiction including
• prescriptive jurisdiction
• adjudicative jurisdiction and
• enforcement jurisdiction
Legislative, Executive or Judicial Jurisdiction
The territorial principle
The nationality principle
The passive personality principle
The protective principle
The universality principle
CURRENT TRENDS :-
International Law has been transformed from a European-based system enabling
sovereign states to interact in a relatively limited number of areas to a truly
international order with profound and increasingly co-operative requirements.
Globalization has ensured that the doctrine of the sovereignty of states has in
practice been modified, as the proliferation of regional and global international
Furthermore, the growth of large trading blocks has underscored both regional and
international interdependence, though it also has stimulated and institutionalized
rivalries between different blocks.
In an increasing number of cases, certain sovereign powers of states have been
delegated to international institutions.
STATE PRACTICES :-
The United States of America
The United Kingdom
1. Major Treaties
2. Important International Bodies
3. By Subject
The two major systems of law, the common law and the civil law, differ from each
other as to the subject-matter of private international law.
Civil Law Countries: Few countries for example Germany restrict the scope of
private international law to problems of conflict of laws, and matters relating to
status of foreigners fall under separate branch called the law of foreigners while
few others like Soviet Union include within its ambit the rules of choice of law along
with all the connecting factors such as nationality and domicile, the place where the
contract was entered into or is to be performed.
Common Law Countries: The countries of the common law system include the
rules of jurisdiction as well as rules of choice of law within the scope of private
international law. Example – India.
The scope of private international Law includes the following three branches :
Jurisdiction - Whether the forum court has the power to resolve the dispute
Choice of Law – The law which is being applied to resolve the dispute.
Foreign judgements – The ability to recognize and enforce a judgement
from an external forum within the jurisdiction of the adjudicating forum.
The first question in an international case potentially involving conflict-of-laws
problems is which court has jurisdiction to adjudicate the matter.
Although the plaintiff decides where to sue, the courts in that location may not have
jurisdiction, or they may have jurisdiction but be unwilling to exercise it, for reasons
of forum non conveniens (Latin: “inconvenient forum”), as may happen in some
CURRENT TRENDS :-
New approaches to choice of law, starting with the governmental-interest analysis
developed by the American legal scholar Brainerd Currie, began to emerge in the
Currie’s approach sought to determine whether a “true” or “false” conflict exists
between the law of the forum state and that of the other involved state.
Another approach, known as the better-law approach, attempts to determine which
of two potentially applicable laws is better as a solution to the problem at hand.
STATE PRACTICES :-
Applications in India
Applications in the United States
Applications in EU member countries
Applications in other countries
PUBLIC INTERNATIONAL LAW :-
Law students can contribute towards redefining the core values and principles that
shape international law into a coherent and effective system for the promotion of
stability, peace and security, and justice in an era of globalization and
PRIVATE INTERNATIONAL LAW :-
Law students can not only analyze Private International Law but also look at the
concepts, institutions and substantive rules that are common to the discipline globally
or at least regionally.