Difference Between Private International Law and Public International Law

There are differences between public international law and private international law. The dynamics of legal interactions span beyond domestic borders. International law emerges as a pivotal realm that governs these interactions, encompassing both public and private dimensions.

Public International Law governs the relationships between states, international organisations and entities with global legal personalities, while Private International Law, often known as Conflict of Laws, navigates the intricate web of legal conflicts involving individuals and entities across diverse jurisdictions.

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 

The difference between public and private international law are:

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.