Difference Between Public International Law And Private International Law.docx

Difference between public international law and private international law

Introduction Public international law (or the law of nations) is a body of customary or conventional rules which are considered as legal binding by civilized states in their intercourse with one another and cares solely with the rights and obligations of sovereign states. Private international law (or the conflict of laws) could also be defined because the rules voluntarily chosen by a given state for the choice of cases which have a ‘foreign’ element or complexion. Thus, where two Englishmen make a contract in Portugal for the sale of products situated in Lisbon, payment to be made in London, an English court would definitely recognize and apply Portuguese law as far because it affected the validity of the contract. The private international law forms a part of municipal laws of a state and is supposed for purpose of deciding whether a given case involving “foreign’ element (i shall be adjudicated upon by its own domestic laws or by laws of another state; and (ii) shall be subject of its courts of another state. Thus, private international law deals with cases during which some relevant fact features a geographical reference to a foreign country and should thereon ground raise an issue on the appliance of Indian or another appropriate foreign law to the determination of the difficulty or on the exercise of jurisdiction by Indian or foreign courts. The public international law cares solely with rules concerning the rights and obligation of the states (i.e. countries) interest. Whereas, generally, speaking individuals and their dealings are the only concerns of personal international law. Thus within the case of private international law, the disputes are of a private character ,though one among the dispute ,may be a sovereign state .Moreover ,unlike public law of nations , private international law of each state is different. Also there are as many systems of private international law as there are systems of municipal law, thus, we've rules of private international law within the fields of birth, marriage, divorce insolvency, wells contracts death and therefore the like.

P Tandon says: "Private international law may be a body of principles determining questions on jurisdictions and questions on selection of appropriate law, in civil cases which present them selves for decision before a court of 1 state or country, but which involves a far off element i. e. which effect foreign persons or foreign or transactions that are entered during a foreign country or with respect of foreign system of law" Pitt Cobbett’s view: "Private international law is that the body of rules for determining questions on selection of appropriate law, in civil cases which present themselves for decision before the courts of 1 state or country, but which involve a far off element i. e, which effect foreign persons or foreign things or transactions that had been entered into wholly or partly during a foreign country or with regard to some foreign system of law." Private international law could also be defined because the rules voluntarily chosen by a given state for the choice of cases which have a ‘foreign’ element or complexion. Thus, where two Englishmen make a accept Portugal for the sale of products situated in Lisbon, payment to be made in London, an English court would definitely recognize and apply Portuguese law as far because it affected the validity of the contract. The private international law forms a part of municipal laws of a state and is supposed for purpose of deciding whether a given case involving “foreign’ element (i) shall be adjudicated upon by its own domestic laws or by laws of another state; and (ii) shall be subject of its courts of another state. Thus, private international law deals with cases during which some relevant fact features a geographical reference to a far-off country and should thereon ground raise an issue on the appliance of Indian or another appropriate foreign law to the determination of the difficulty or on the exercise of jurisdiction by Indian or foreign courts.

Is Private International Law is the distinct part of Law? Private international law may be a separate and distinct unit the maximum amount because the law of tort or of contract, but possesses the unity, not because it deals with a specific topic

but because it's always concerned with one or more of three questions namely, jurisdiction, choice of law and recognition of foreign judgment. PIL doesn't provides a final judgment. it's comparable a railway inquiry room. By approaching the inquiry room you'll only a ascertain the platform from which a specific train leaves. it's the train that reaches you to your destination not the enquiry room. Comity, convenience and therefore the desire of courts to try to justice form the idea of personal law of nations. We cannot say it as a full-fledged law. the most aim of private international law is that the desire of the courts to try to justice. it's quite distinct than law. it's essentially a system of indicating choice, choice of jurisdiction, choice of law and rules for recognition and enforcement of foreign judgement of a far-off court. Private international law only decides the rule of choice then indicate the convenient law that's to be applied. It doesn't contain the essential feature of law. there's no conclusiveness and imperative obligation to require one and particular view in PIL just like the real law. The degree of boundness, obligation is somehow very low just in case of PIL. The very purpose of private international law is to avoid conflicts of law. PIL is considered law and therefore the reason somehow is that it's a neighbourhood of municipal law of a specific state. It varies from state to state. States legislative action is important for the evaluation of PIL. So, we may say that PIL may be a distinct a part of law which meanwhile contain the notion of law and justice. Somehow the essence of law is present in PIL though it's very distinctive one.

Public international law Traditionally, the State has been the most subject of public international law. Modern public law of nations has definitely evolved out of the thought of the (nation) state and its sovereignty. The law regulating relations between states was once referred to as the jus gentium or the law of countries. Although public international law is primarily concerned with relations between states, it also has individuals and organizations as its subjects. The growth of multinational companies, with a number of them producing higher annual sales over several years than some nations’ gross national product (GNP), poses key

concerns. Corporations also found out networks and alliances, and codes of conduct that make norms in themselves. By giving out control, companies can form state actions. In certain countries like the us, especially, companies play a big role within the legislative process. It refers to rules and regulations governing international relations between different states and international institutions. It sets rules concerning all mankind: the environment, international business, the ocean, human rights, etc. Public international laws apply to international organizations like the United Nation (UN) and the World Trade Organization (WTO). Aspects of Public International Law: 

Custom – consistent state practices relying on opinion Juris, that is, belief, that is to be carried out there is a legal obligation to do so.

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Standard behaviour globally accepted, jus cogens.

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Legal Codes referred to as treaties.

For example, the Kyoto Protocol, a climate agreement, has many countries as signatories for reduction of their greenhouse gases emissions in order to protect the environment. We can take Convention on the Rights of the Child, a convention, ensuring the protection of child rights in the signatory countries.

Monism and dualism Two separate interpretations of the interaction between international law and national law are represented using the words “monism and dualism”. Many nations in their practical implementation of international law in their national structures are partly monist and partly dualist. Monism Monists admit that there's harmony between the national and therefore the international legal frameworks. Both national laws and international laws adopted by a State, for instance by an agreement, decide if some practices are right or wrong. within the so-called “monist” nations, a comparison are often made between international law within the form of treaties and customary international law. These countries may, therefore, be partly monist and partly

dualist. international law doesn’t need to be converted into national law during a strict monist society. It is clearly adopted and consequently has an influence on domestic or national legislation. The act of amending a world treaty automatically integrates the provisions into national legislation. Monist countries also recognize customary international law as a neighbourhood of national law. A court may consider a domestic rule unconstitutional if it violates international norms because international rules have precedence in certain nations. In many countries, treaties have an equivalent influence as laws and may only prevail over national laws passed before their adoption, by the concept of Lex posterior derogate priori i.e. later law replaces the sooner. In Monist nations, domestic law which violates international law is taken into account null and void, although the domestic law has been followed even before the existence of international law and is constitutional in its essence. The advantages of Monist law are applicable if a monist country has signed a treaty which deals with the protection of human rights. And if that country features a law which violates the essential right of freedom of speech and expression then, the citizen can appeal within the Court citing that the actual law violates the treaty which was signed and ratified by the govt. Dualism Dualist countries emphasize that the excellence between national and international law is important. They also demand that the latter be translated into the previous. Under this interpretation, there's no such thing as foreign law. international law should be included or translated into national law, otherwise, there's simply no law. If a nation recognizes a treaty but doesn't amend its domestic law to suits the treaty or doesn't establish a law that expressly implements the treaty, it violates international law. So, one can’t say that the treaty has become a part of national legislation and citizens can’t fully calculate that. consistent with dualists, judges in these countries don't enforce these laws. The national laws which are contradictory to the treaty are still effective. In regard to its commitment to international law, India has historically been identified as a dualist country. a minimum of generally, the assignment of the facility to assume international responsibilities rests with the chief, although its internal enforcement needs parliamentary approval. When responsibilities under law of nations are established, they're

transmitted through different channels into domestic legislation, most of which don’t involve approval from parliament. In fact, the Indian courts also implement quasi-domesticated obligations under international law in multiple ways in which represent reminder monism. While the Constitution encourages the state in Article 51 to ‘foster respect for international law and treaty obligations within the dealing of organized people with one another’. This directive is within the sort of the principle of governance which is enforceable. The parliamentary debates suggest that Article 51 is taken into account non-obligatory, and specifically intended to direct India’s policy and function the idea of its foreign relations, rather than just providing for a way India would handle its domestic obligations under international law. The Constitution grants legislative authority to the Parliament to enter into and perform international obligations. Article 246 confers legislative authority to the parliament in diplomacy, for getting into and executing treaties with foreign nations. Article 253 of the constitution clarifies that the parliament’s power to legislate for the fulfilment of international obligations applies to matters within the constitutional competence of States. In Ram Jawaya Kapur v. State of Punjab, Article 73 was interpreted by the Indian Supreme Court. It says that even within the absence of legislation the chief can exercise control over matters within the Union list as long because it doesn't conduct in violation of any statute.

Distinction between public international law and private international law  As to consent: Public international law based on the consent of the state. Private international law is not based on the consent of the states.  As to object: Public international law regulates relationship of states inter se and determine rights and duties of the subject states at international sphere. Private international law determines as to which law will apply of two conflicting in a particular case having foreign element.

 As to conflict of laws: Public international law does not involve in conflicts of laws. Private international law involves in the conflicts of laws.  As to nature: Public international is same for all the states. Private international may be different in various states.  As to sources: Public international law has its sources in treaties, custom etc. etc. Private international law has its sources in the legislation of the individual state to which the litigant belongs.  As to application: Public international law applicable to criminal as well as civil cases. Private international law is applicable to civil cases only, which present themselves for accession of courts of the state.  As to subject: Public international law deals with the states. Private international law deals with the individuals.  As to municipal law: Public international law is not part of municipal law but Private International law is a part of municipal law

 As to jurisdiction: Public international law does not involve determination on the question of determination. Private international law determines court which will have jurisdiction to decided issue in question. 

As to scope: Public international law has wider scope. it is of universe character. Private international law has lessor scope.

Conclusion In cases where an international dimension may be present, the court must look beyond the limits of its domestic law. International law must be recognized in cases where there is an international dimension since the application of local law of the court in which the case is brought for trial can result in gross injustice because it is in conflict with foreign law. As far as public international Law’s control is concerned, its growth and strengthening on a global scale are unquestioned. Additional development includes greater access of private individuals to international tools.

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