Difference Between Private and Public International Law

Page 1 of 12

Difference Between Private and Public International Law

By | May 2013
Page 1 of 12
Differences between private and public international law

In the study of international law, a sharp distinction is usually drawn between public international law, concerned with the rights and obligations of states with respect to other states and individuals, and private international law, concerned with issues of jurisdiction, applicable law and the recognition and enforcement of foreign judgments in international private law disputes before national courts. Private international law is viewed as national law, which is and ought to be focused on resolving individual private disputes based on domestic conceptions of justice or fairness. Some acknowledgment of the international dimension of private international law problems is given through the role played by the concept of ‘comity’, but its status remains ambiguously ‘neither a matter of absolute obligation, on the one hand, nor of mere courtesy and good will, upon the other. In turn, public international law traditionally neglects the analysis of private international interactions and disputes, which are viewed as outside its ‘public’ and ‘state-centric’ domain. Thus, public and private international law are viewed as distinct disciplines, as two separate intellectual streams running in parallel.

Justice and the application of foreign law

If a judge were to decide to apply foreign law because it is more ‘just’ inits substantive effect, they would be substituting their own views about justice for the judgment, the collective values, embodied in the law of their state. No English judge would approach the problem in this way – although some private international law rules in the United States controversially permit exactly this, suggesting that the ‘choice of law’ rules which determine the applicable law should not be blind to the outcome of the cases to which they are applied, and thus the courts should be allowed to take into consideration the substantive outcomes of choice of law decisions. Judges...