Difference Between Private and Public International Law free essay sample

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. We will write a custom essay sample on Difference Between Private and Public International Law or any similar topic specifically for you Do Not WasteYour Time HIRE WRITER Only 13.90 / page 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 are, however, supposed to apply law, not decide cases based on their intuitions. If a judge decides a case based purely on their preferred outcome, then their decision does not reflect the law, but the personal preferences and even prejudices of the judge. This is the ‘rule of the judge’, not the ‘rule of law’ – in the common law, ‘the judge’s duty is to interpret and to apply the law, not to change it to meet the judge’s idea of what justice requires’. Even in the context of amore ‘politicised’ judiciary in the US legal system, this level of discretion is still difficult to reconcile with basic ideas concerning the powers and function of the courts. This analysis suggests that the usual sense in which the word ‘justice’ isused is unable to help as a justification for choice of law rules. The idea that ‘justice’ could operate as a justification for applying foreign law seems to be question-begging – since the problem is determining which idea of ‘justice’ should be applied. The usual meaning of ‘justice’ may tell us little about choice of law rules, but choice of law rules reveal something about our ideas of justice. The application of a foreign law on the grounds of justice presupposes an underlying acceptance that the outcome determined by a foreign law and perhaps a foreign court may, depending on the circumstances, be more ‘just’ than local law. It acknowledges that the ‘just’ outcome of a claim for damages for an accident in England, governed by English substantive law, would not be the same as the ‘just’ outcome of a claim for damages for the same accident, if it occurred in a foreign territory and was thus governed by foreign law. This reveals an underlying commitment to what is referred to in this book as ‘justice pluralism’. The underlying justification for the application of foreign law must therefore be a question of context – of determining the appropriate circumstances for the application of local or foreign standards of justice, the appropriate ‘connections’ between the dispute and the forum or legal system. This determination cannot be based on ordinary principles of national law, because the point is to determine which national law ought to apply. A central problem in choice of law, is thus the determination of what standards could be applied to identify when the application of a foreign law is ‘just’. Justice and jurisdiction There are two fundamentally different concerns in an exercise of national judicial jurisdiction. The first is the existence of state power: whether the state has regulatory authority over the dispute. If the state has authority, a second concern arises: whether the state court will exercise this power. This distinction is not the same as the distinction between jurisdictional rules and discretions at the national level. Some rules of jurisdiction may determine, instead of or in addition to discretionary powers to stay proceedings, whether state power is exerted. Equally, the exercise of apparently discretionary rules could mask an underlying objective of compliance with international limitations on judicial authority. It may not be left to the courts to determine, as a matter of judicial restraint, whether regulatory authority is exercised; but equally, it may be left to the courts to determine whether regulatory authority even exists. In the common law tradition, the two different concerns behind rules of jurisdiction are obscured by the fact that these theoretical considerations have been amalgamated in broad discretionary tests. The distinction is important because rules which are concerned with the existence of state power involve fundamentally different considerations from those concerned with its exercise, although this is often difficult to detect in practice because the two objectives are frequently addressed in (and obscured by) a single rule. Rules concerned with the exercise of jurisdiction will frequently draw on national conceptions of the balance between the rights of plaintiffs and defendants, and the domestic evaluation of practical considerations such as the cost of the proceedings to the state – matters which are part of each national conception of ‘justice’. By contrast, rules concerned with the existence of jurisdictional authority cannot reflect national policies or values, because this would beg the question as to whether there is power to apply those policies. This component of the determination of jurisdiction cannot be based on a national conception of private rights, because no national system could provide authority for a decision that such rights exist; it must therefore be international in character. The divergence between public and private international law has, however, always been greater in theory than in practice, particularly aspublic international law has re-expanded to encompass private relations. Despite the dominance of the positivist perspective, private international law rules continue to reflect and replicate underlying ideas of international order, in the context of private law – they constitute a hidden (private) international law. The decisions of national courts in private international law are a particular example of the phenomenon of an international order constructed by a distributed global judicial network – an example of ‘peer governance’. As long as this ordering is unrecognised and unanalysed, its justness goes unexamined. For this examination to occur, the flow of the divergent streams of public and private international law theory must be channelled back towards confluence. Perhaps the most obvious sign of the continued influence of an international perspective on private international law is in the work of international institutions concerned with its harmonisation. A number of well-known international legal organisations are at least formally interested in private international law, including the International Law Association, Institute of International Law and International Law Commission, although in practice their focus has been almost exclusively on public international law. The General Assembly of the United Nations showed an interest in the subject at one time, but diverged towards a focus on the competing strategy of substantive harmonisation of private law. The work of the Hague Conference on Private International Law, which has been meeting regularly since 1893 and became a permanent intergovernmental organisation in 1955, is thus particularly prominent and important in this field. Its purpose, as defined in Article 1 of its Statute, is ‘to work for the progressive unification of the rules of private international law’. Numerous treaties on awide range of subject matters have been stablished under its auspices, both codifying existing international agreement on private international law and pushing for progressive development in the law, although their success in attracting widespread ratification has been variable. Public international law rules of jurisdiction The limits on the regulatory authority of states are expressed in public international law through the concept of ‘jurisdiction’. The boundaries of ublic international law jurisdiction are a matter of some controversy, but there is broad agreement on its general framework. In public international law the term ‘jurisdiction’ is used in a much broader sense than in private international law. In the context of the rules on the regulatory authority of states, three types of public international law jurisdiction are usually distinguished. These frequently overlap and thus the distinction is not always easy to maintain, n or is it universally accepted as reflecting international law. First, jurisdiction to prescribe or legislate, or roughly the limits on the law-making powers of government. The issue here is the permissible scope of application of the laws of each state; in private law disputes, this may be viewed as related to the private international law problem of the determination of the applicable law. Second, jurisdiction to adjudicate, or (roughly) the limits on the judicial branch of government. In private disputes, this is evidently closely related to the idea of jurisdiction in private international law. Third, jurisdiction to enforce, or (roughly) the limits on the executive branch of government. This limit is directly concerned with the acts of authorities implementing law, such as police or bailiffs. In the private law context, it is related to the pragmatic question of whether the court can enforce any judgment by exercising physical power over the defendant or their property. The limits on enforcement jurisdiction thus provide policy reasons why a national court might decide not to exercise jurisdiction, even when it had prescriptive jurisdiction under international law. If the judgment could not be enforced consistently with international law, because neither the individual nor their property were present in the territory, then a court might take this into consideration in deciding whether it is the appropriate forum to hear the dispute. Because the limits on enforcement jurisdiction mean that a judgment is only directly effective within the judgment state, they also necessitate mechanisms for the enforcement of foreign judgments in private international law. The correspondence in structure between the three aspects of public international law rules of ‘jurisdiction’ and the three basic components of private international law (jurisdiction, applicable law and the recognition and enforcement of judgments) suggests their underlying commonality. Public international law rules on jurisdiction are expressed as being applicable to the state as a whole. In practice, however, different aspects of the rules are directed to and typically restrain different branches of national government. In examining the development of these rules and questions of state compliance, the division between international and national law is patently unhelpful. Although public international law does not specify the structures of state governments, it is the actions of domestic institutions, including national legislative measures and judicialdecisions, that constitute the acts of the state for the purpose of these international obligations. The actions of national legislatures and courts can constitute state practice for the purposes of the development of international customary law or for the determination of ‘the general principles of law recognized by civilized nations’, as well as constituting acts of the state for the purposes of determining whether a breach of an international legal obligation has occurred. Their role in both international and national law reflects, as Scelle described it, their dedoublement fonctionnel. Territoriality in public international law It is sometimes claimed that the public international law rules governing jurisdiction are subject to an overriding requirement of ‘reasonableness’, although this is not universally accepted. The idea of a secondary requirement of ‘reasonableness’ has been criticised for giving courts too much flexibility. It may be better interpreted not as a separate test but as a consideration going to the degree of connection required to establish jurisdiction. Here the influence of territoriality is clear; the requirement of reasonableness is said to necessitate consideration of territorial connections such as ‘the link of the activity to the territory of the regulating state, i. e. , the extent to which the activity takes place within the territory, or has substantial, direct, and foreseeable effect upon or in the territory’. Territoriality in private international law The influence of territoriality in private international law is pervasive. The accepted grounds for the exercise of jurisdiction or the choice of a particular applicable law in national courts are predominantly territorial, although these can take a number of different forms. While territoriality is behind a variety of private international law rules, these rules may thus reflect a range of interpretations of what territoriality means in practice and in different contexts, and different views on the extent to which legislatures should decide these questions generally or leave them to the courts to work out in each case. The study of their interaction is not merely useful because public international law rules on jurisdiction help explain the rules of private international law, but also because the rules of private international law provide an important source of state practice for the development and understanding of the rules of public international law. An extreme example of a territorial approach is found in the common law and US rule that the presence of the defendant within the territory is sufficient to constitute jurisdiction, regardless of the tenuousness or transitory character of the link between the defendant and the territory. This idea of territoriality is rightly controversial, because it does not seem to reflect the public international law conception of territorial jurisdiction. The territorial connection on which jurisdiction is based is not in respect of the act or thing to which the dispute relates, but merely the subsequent presence of the defendant. Because presence is only required at the time of commencement of proceedings, not at the time of any events related to the dispute, it bears no necessary relation to the question of whether the proceedings are connected in any way with the forum state. Presence establishes only a physical capacity for effective jurisdiction, perhaps based on the outdated conception that an exercise of civil jurisdiction may necessitate the use of physical force against the person of the defendant. If this is a meaningful consideration at all, it is relevant only to the question of the enforcement of the judgment (which may ultimately depend on criminal sanctions), not to the assertion of jurisdiction. It seems to confuse the question of enforcement jurisdiction under international law, the capacity of a state to exercise physical control over its territory, with adjudicative jurisdiction, the capacity of the state to assert its authority to hear proceedings. Alternatively, it appears to reflect an old fashioned ‘positivist’ view of jurisdiction, based on absolute sovereignty – the only limits on state jurisdiction are practical or self-imposed limits; where jurisdiction is physically possible (because of the presence of the defendant) it is acceptable. Conclusion When viewed from a systemic perspective, the components of private international law, rules on jurisdiction, applicable law, and the recognition and enforcement of foreign judgments, are revealed to have a functional commonality that responds to this potential for regulatory conflict, in support of the principle of subsidiarity. They are each limited and imperfect techniques aimed at reducing the possibility of inconsistent legal treatment of disputes, by (respectively) reducing the number of states that can hear a dispute, increasing the likelihood that each state will apply the same substantive rules to resolve a dispute, and decreasing the likelihood that a dispute heard in one state will be re-heard in another state. Private international law is not merely a discipline of narrow professional interest for specialist national lawyers and academics.