PUBLIC INTERNATIONAL LAW VS PRIVATE INTERNATIONAL LAW A PRESENTATION BY Chaity Chattopadhyay & Raveesha Gupta Students of I.L.S. Law College, Pune (4 th. - презентация

1 PUBLIC INTERNATIONAL LAW VS PRIVATE INTERNATIONAL LAW A PRESENTATION BY Chaity Chattopadhyay & Raveesha Gupta Students of I.L.S. Law College, Pune (4 th & 3 rd B.S.L. L.L.B.) 4 th November, 2011

2 According to Benthams 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 actorsi.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 followed.

3 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 Institutions. It may be Universal or general. For e.g. The practice of diplomatic asylum that has developed to its greatest extent in Latin America.

4 SOURCES:- 1. Conventions, 2. Customary international law, 3. General principles of law, 4. Judicial decisions and Scholarly opinions.

5 SUBJECTS :- 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 States Political entities legally proximate to States Condominium Internationalized Territories UN administration of territories immediately prior to independence International Organizations Agencies of States 2. Special Types of Personality Non-self-governing peoples National Liberation Movements States in statu nascendi Legal Constructions Belligerent and Insurgent communities Entities sui generis Individuals 3. Controversial Candidature

6 SCOPE:- 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 sovereign States. Areas ordinarily dealt with within the scope of Public International Law include for example : 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 States court can claim jurisdiction including prescriptive jurisdiction adjudicative jurisdiction and enforcement jurisdiction

7 JURISDICTION :- Domestic Jurisdiction Legislative, Executive or Judicial Jurisdiction Civil Jurisdiction Criminal Jurisdiction: The territorial principle The nationality principle The passive personality principle The protective principle The universality principle Jurisdictional immunity

8 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 organizations demonstrates. 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.

9 STATE PRACTICES :- India The United States of America The United Kingdom European Union

10 SOURCES:- 1. Major Treaties 2. Important International Bodies 3. By Subject Business Commercial Arbitration Families Property

11 SUBJECTS:- 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.

12 SCOPE :- The scope of private international Law includes the following three branches : Jurisdiction - Whether the forum court has the power to resolve the dispute at hand. 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.

13 JURISDICTION :- 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 common-law countries.

14 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 1950s. Curries 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.

15 STATE PRACTICES :- Applications in India Applications in the United States Applications in EU member countries Applications in other countries Other considerations

16 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 interdependence. 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.

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