Private International Law & Public International

Law
Mohammed Omer
Introduction

There are differences between public international law

and private international law that encompass a range of
legal dynamics extending beyond domestic borders.
International law emerges as a pivotal realm that
governs these interactions, incorporating both public and
private dimensions. Public International Law regulates
the relationships between states, international
organizations, and entities with global legal personalities,
while Private International Law, often referred to as
Conflict of Laws, navigates the complex web of legal
conflicts involving individuals and entities across various
jurisdictions. International law is a critical component of
the legal systems that govern relations among countries
and individuals across borders. This research paper aims
to explore the differences between Private International
Law and Public International Law by examining their
definitions, key features, and examples.
Contents hide

1. Meaning of Public International Law

2. Meaning of Private International Law
3. Difference Between Private and Public International
Law
3.1. The Nature of Law
3.2. Scope of the Law
3.3. Sources of the Law
3.4. Theories of Private and Public International Law
4. Enforcement and Jurisdiction for Private and Public
International Law
5. Relationship to Individuals
6. Drawbacks
6.1. Disadvantages of Private International Law
6.2. Disadvantages of Public International Law
7. Difference Between Public International Law and
Private International Law
8. Conclusion
Meaning of Public International Law
In the past, the main focus of international law was on countries or
states. Nowadays, international law has changed from being mainly
about individual countries and their power to include other subjects
like people and groups. This type of law used to be called “jus
gentium” or the law of nations.
Even though international law mainly deals with how countries
interact, it also involves individuals and organisations. This is
important because there are big companies that make more money
than some countries do in a year. These companies can even have
more influence than some nations. They form networks, work together
and create rules for themselves.
When these companies give up some control, they can act like
countries. This is especially true in countries like the United States,
where companies can have a big role in making laws.

Meaning of Private International Law

Private International Law, also known as conflict of laws, is a type of

legal service used when different sets of laws come into conflict on a
specific matter. It involves a set of rules that determine which legal
system and jurisdiction should be used to solve a particular
disagreement.
In the past, when India was under colonial rule, it had various regions
with their own cultures and beliefs. This sometimes led to conflicts
between British laws and personal laws in India. Different laws apply
to people from different beliefs.
Before India gained independence and even afterwards when it
became a recognised nation, it had different legal systems for British
India and the native Indian princely states. In the judicial system of
British India, judgments made by the courts of princely states were
seen as international judgments. This caused conflicts between
different regions.
During the time when India was a British colony, Indian merchants
traded internationally, leading to cases of legal disputes that had an
international aspect. India followed many British rules about private
international law because of its colonial status. However, interestingly,
even after gaining independence, India has struggled to create
enough laws in the field of private international law.
Difference Between Private and Public
International Law
The Nature of Law
Public International Law focuses on the relationships between
countries, international organisations and other entities that have
legal standing in the international arena. It deals with important
matters like the use of force, diplomatic privileges, human rights,
global trade and the rights and responsibilities of countries when they
interact. All nations are required to follow this type of law, which is
considered either customary or based on treaties.
However, there is a difference between differences public and private
international law in terms of the nature of these laws. Private
International Law handles the legal connections among private
individuals, businesses and other entities that do business across
different countries. It deals with issues such as acknowledging and
enforcing judgments from foreign countries, choosing which laws
apply and deciding which jurisdiction is appropriate. While countries
are not bound by Private International Law, their national legal
systems recognise it as a set of rules and principles that govern
international transactions.
As a result, Private International Law and Public International Law
have distinct legal foundations, guiding principles and ways of making
sure they are followed. Private International Law relies on the laws of
individual countries, international agreements and the principles of
comity. Public International Law is mainly built upon treaties and
established practices. Private International Law is enforced through
domestic courts and arbitration, while Public International Law is
enforced through diplomatic means, international courts and tribunals
and sometimes economic actions like sanctions.

Scope of the Law

Private International Law focuses on resolving legal conflicts and
providing certainty to parties involved in transactions that cross
borders. Its main goal is to prevent disagreements between different
legal systems that apply to a particular dispute. It does this by
creating a framework to bring these legal systems into harmony. This
field covers various important legal topics, including:
1. Jurisdiction: Private international law decides which legal
authority has the right to hear a case when parties come from
different countries.
2. Choice of law: Private international law establishes rules for
determining which set of laws should be used to resolve a question
involving parties from different legal jurisdictions.
3. Enforcement and recognition of foreign judgments: Private
international law outlines the conditions under which decisions made
in one country can be accepted and enforced by courts in another
country.
Public international law, on the other hand, deals with a broad range
of international relations and global governance issues. Hence, the
difference between differences public and private international law
arises in terms of the scope of these law.
Public international law includes several important subjects:
1. State sovereignty: Public international law manages how states
interact with their rights and responsibilities. It covers topics like the
use of force, creating and ending treaties and recognising new states.
2. International human rights: Public international law establishes
a system for protecting human rights globally. It sets up international
organisations to oversee and enforce human rights standards,
including how individuals like refugees and asylum seekers should be
treated.
3. International trade: Public international law guides the actions of
both states and international organisations in trade and investment. It
covers areas like intellectual property rights, trade barriers, tariffs and
protecting investments.
Sources of the Law
Private International Law, also known as the conflict of laws, draws its
main principles from the legal rules of individual countries. These rules
can be found in national laws and they can also be outlined in
agreements, conventions, model regulations, legal guidelines and
other tools that regulate international transactions.
The sources of private international law, which deals with cases
involving different legal systems or foreign elements, are as follows:
 National Laws: The foundation of private international law is
rooted in the laws of individual countries. These laws can differ
from one nation to another. Private international law rules are
integrated into each country’s legal system, either through
written laws or the development of legal principles through court
cases.
 International Conventions: In certain areas of private
international law, like international trade, family law or
international arbitration, international agreements or treaties
might establish consistent rules. These agreements are signed
 by states or international organisations. Examples include
conventions like the Hague Convention on International Child
Abduction and the New York Convention on Arbitral Awards.
 Modern Laws and Guidelines: Global organisations like the
United Nations Commission on International Trade Law
(UNCITRAL) have created model rules and guidelines for specific
aspects of private international law.
In contrast, public international law, which deals with matters among
nations on a global level, has its sources outlined as follows:
 Treaties: Agreements between states or international
organisations, called treaties, lay down legal responsibilities.
They cover a wide range of topics, including human rights, trade
and the environment. Treaties are highly important in
international law.
 Customary International Law: Over time, states have
followed unwritten rules and practices, leading to customary
international law. These rules become legally binding due to
consistent and widespread state practice.
 General Legal Principles: Legal principles acknowledged by
national legal systems and applicable internationally are termed
general principles of law. These principles include concepts such
as the right to a fair trial and the prohibition of discrimination.
Theories of Private and Public International Law
Private International Law is a complex and constantly changing field
influenced by various theoretical perspectives. The main theories of
Private International Law are:
 Theory of Territory: According to this theory, any legal
disputes occurring within a country’s borders should be subject
to that country’s laws, regardless of the parties’ nationality or
residence. This view sees private international law as a set of
rules that determine which country’s law should apply to a
particular dispute.
 Choice of Law Theory: This theory suggests that parties
involved in a dispute should have the freedom to choose which
law will govern their case. In other words, Private International
Law should be flexible enough to allow parties to select the legal
system they prefer, rather than being bound by the country
where the dispute originated.
 Theory of Harmonisation: This theory emphasises the
importance of creating uniform rules that apply across different
legal jurisdictions. The goal is to establish a consistent legal
 framework for international transactions, reducing the chances of
conflicts and disagreements.

In the context of Public International Law, there are relevant

theoretical perspectives as well:
 Theory of Natural Laws: This theory proposes that there are
fundamental principles of right and wrong that exist
independently of human-made laws. Supporters of this theory
believe these principles should guide the development and
interpretation of public international law.
 Positivist View: This theory gives weight to state practice and
consent in shaping public international law. According to
positivists, international law is formed through the actions and
behavior of states, either explicitly or implicitly.
 Realist Theory: The realist perspective asserts that power and
self-interest are significant factors in the evolution of
international law. Realists argue that states are the primary
players in the global system and that international law reflects
the distribution of power among these states.
Enforcement and Jurisdiction for Private and Public
International Law
In the realm of public international law, there isn’t a single centralised
way to enforce it. Countries follow international law because they
agree to it and choose to participate voluntarily. This can involve
diplomatic discussions, economic penalties and the authority of
international courts and tribunals.
On the other hand, private international law doesn’t have specific
enforcement mechanisms. Instead, it assists courts in various
countries in figuring out the right legal rules to use when dealing with
cases that have international aspects. It aids in determining which
court should handle a specific dispute and which country’s laws should
be followed.
Hence, with respect to enforcement and jurisdiction, public and private
international law are different.
Relationship to Individuals
Public international law mainly centers around the rights and
responsibilities of nations and international groups. While it can have
an indirect effect on individuals through human rights and
humanitarian laws, individuals usually can’t directly make claims
based on public international law.
In contrast, private international law directly influences individuals and
private organisations tangled in legal conflicts that cross borders. It
assists in defining their rights and responsibilities and offers ways to
resolve disagreements between various legal systems.
Drawbacks
Disadvantages of Private International Law
 Lack of Consistency: Private international law relies heavily on
national laws, which can vary significantly from one country to
another. This lack of consistency can lead to uncertainty and
unpredictability in cross-border disputes, making it difficult to
foresee outcomes and resulting in uneven application of the law.
 Complexity: Private international law can be intricate and
complex, making it challenging for individuals without
specialised legal knowledge to understand and navigate. This
complexity can also lead to longer and costlier resolution
processes for cross-border disputes.
 Limited Scope: Private international law primarily deals with
resolving disputes between private individuals or businesses. It
doesn’t address broader issues of public policy or international
relations, which can sometimes be relevant in cross-border
cases.
Disadvantages of Public International Law
 Inability to Enforce: Unlike domestic laws, there isn’t a global
governing body or court with the authority to enforce
international law. Compliance with international law relies largely
on voluntary adherence, which can hinder its effectiveness in
resolving disputes and ensuring compliance.
 Power Imbalances: Public international law can be criticised for
reflecting the unequal power dynamics in the international
system. Smaller or less powerful states may have limited
influence in shaping international legal norms, while more
influential states can use international law to their advantage.
 Slow Development: Public international law can be slow to
evolve and international legal institutions might struggle to keep
up with rapidly changing global issues. This can be a challenge
when dealing with urgent matters like terrorism, cybercrime and
climate change, where international law might lag behind real-
world developments.
Difference Between Public International Law and Private
International Law
Aspect Public International Private International Law
Law (Conflict of Laws)
Scope Governs interactions Deals with legal conflicts
between states and involving private
international entities. individuals/entities across
different states.
Applicabilit
Applies to matters like Applicable to issues like
y diplomacy, human rights, jurisdiction, choice of law
treaties and state and enforcement of foreign
sovereignty. judgments.
Subject of Focuses on state conduct Focuses on private matters
Regulation in the global arena. involving individuals,
corporations and their legal
disputes.
Sources of Customary international National laws, conventions,
Law law, treaties and general model laws and principles
principles of law. of comity.
Formation Established through Set by individual states’
of Rules international consensus legislative bodies.
and agreements.
Enforceme Rely on diplomatic Determined by national
nt measures, economic courts and executive
Mechanism sanctions and enforcement.
s international
courts/tribunals.
Adjudicatio Cases may be heard in Cases are usually heard in
n international domestic courts.
courts/tribunals.
Individual Individuals generally lack Directly impacts individuals
Standing direct standing to bring and entities involved in
claims. cross-border disputes.
Role of Focuses on state rights, Deals with private rights
State obligations and and obligations, guided by
international cooperation. international norms.
Uniformity Strives for uniform Addresses conflicts of laws
application of across diverse legal
international norms. systems.
Objective Promotes global peace, Provides predictability and
security and cooperation. fairness in cross-border
legal disputes.
Institutiona Includes international Primarily relies on domestic
l organisations, treaties legal systems and
Framework and diplomatic international conventions.
negotiations.
Direct Directly affects states in Directly impacts individuals
Impact on their relations with one and entities engaged in
States another. international transactions.
Conclusion
Public International Law and Private International Law are distinct legal
branches that focus on different aspects of international law and egal
relations. There are differences between Public International Law and
Private International Law.
Public International Law centres on the relationships between
sovereign states, international organisations and entities with
international legal status. It deals with issues like diplomacy, treaties,
human rights and state sovereignty. While individuals are indirectly
affected by human rights provisions, they generally lack direct
standing to bring claims under public international law.
In contrast, Private International Law primarily addresses disputes
involving individuals, corporations or entities across different legal
jurisdictions. It guides courts in determining which laws apply,
jurisdiction and enforcement of foreign judgments. Unlike public
international law, private international law is grounded in national
laws, conventions and model regulations. It directly impacts
individuals and private entities engaged in cross-border transactions
and legal conflicts, striving to provide predictability and fairness in an
increasingly interconnected world.

References

Brownlie, I. (2008). Principles of Public International Law. Oxford University

Press.

Dicey, A. V., & Morris, J. H. C. (2012). Conflict of Laws. Sweet & Maxwell.
Shaw, M. N. (2017). International Law. Cambridge University Press.

Collier, J. G., & Lowe, V. (2000). The Settlement of Disputes in International Law.
Oxford University Press.

Crawford, J. (2019). Brownlie’s Principles of Public International Law. Oxford

University Press.