Introduction to Public International Law

International Law is a body of principles & rules commonly observed by States in their mutual relationship with each other. It includes the law relating to States & International organizations and also International Organisations inter se. The term “International Law” was coined by British Jurist Bentham. Before this nomenclature, the International Law was known as the “Law of Nations”. The primary purpose of the Public International Law is to maintain a just system of international relations, and not merely an ordered system of such relations

States are the main subjects of international law. At first, international law only regulated relations between independent states and mainly within diplomatic relations and war. Nowadays, there are more subjects of international law and its content has expanded as well.

Defining International Law:

• According to Bentham’s classic definition, international law is a collection of rules governing relations between states.
• According to Oppenheim, International Law is a “Law of Nations or it is the name for the body of customary law and conventional rules which are considered to be binding by civilized States in their intercourse with each other.”
• According to Kelson, “International Law, or the Law of Nations, is the name of the body of rules which regulate the conduct of states in their intercourse with one another.
• According to Dr. Lawrence, International Law is the body of rules which determine the conduct of the general body of civilized states in their mutual dealings.
• According to Hackworth, “International law consists of a body of rules governing the relations between states.”

Criticism to Above Definitions:

• All the above definitions take into account the relations of States’ only. This definition also omits individuals and international organizations, the two of the most dynamic and vital elements of modern international law.
• In modern international law, some international organizations have been given the rights and duties of nations under international law. Certain activities of multinational corporations are also regulated by this branch of law.
• Modern International Law also provides certain rights and duties to individuals.
• The phrase used “body of rules” indicates that the International law is static but in actual practice, it is dynamic and changing with the passage of time and situations.
• Some of these definitions include the phrase “body of customary law and conventional rules”. But in practice, a number of rules of International Law are derived from the general principles of law recognized by civilized nations.
• In modern times certain activities of multinational corporations are also regulated by International law. This aspect is not covered in the above definitions.

Oppenheim’s Revised Definition:

In the Ninth Edition of the book “International Law” by Oppenheim, edited by Sir Robert Jennings and Sir Arthur Watts, the revised definition is as follows: “International Law is the body of rules which are legally binding on States in their intercourse with each other. These rules are primarily those which govern the relations of States, but States are not the only subjects of international law. International organizations and, to some extent, also individuals may be subjects of rights conferred and duties imposed by international law.”

The revised definition has the wider scope.

Starke’s Definition:

According to J G Starke : “ International law may be defined as that body of law which is composed for its greater part of the principles and rules of conduct which states feel themselves bound to observe, and therefore, do commonly observe in their relations with each other, and which includes also:

1. The rules of law relating to the functioning of international institutions or organisations, their relations with each other, and their relations with states and individuals; and
2. Certain rules of law relating to individuals and non-state entities so far as the rights or duties of such individuals and non-state entities are the concern of the international community.

Advantage of Starke’s definition:

This definition goes beyond the traditional definition of international law. Law is a process, and this is equally true for International Law. It is now well established that the principle components of International Law is no more confined to binding customary and conventional rules but also consists of “general principle of Law” which are constantly enriching the International Jurisprudence.

Classification of International Law:

On the Basis of Application:

On the basis of application, the International Law can be classified into two categories: (a) General International Law and (b) Regional International Law.

The rules of International Law which are of universal application are called general rules of international law, and those rules which have developed in a particular region of the world as between the States located there without having universal characteristics are known as regional rules of International law.

Colombian Peruvian Assylum case (1950):

The subject of a dispute between Peru and Colombia which were the Parties to the case, where a Peruvian national, Victor Raúl Haya de la Torre, a political leader accused of having instigated a military rebellion had been granted a diplomatic asylum in the Colombian Embassy at Lima. The Colombian Ambassador confirmed that Torre was granted diplomatic asylum in accordance with Article 2(2) of the Havana Convention on Asylum of 1928 and requested safe passage for Torre to leave Peru. 

The Pan-American Havana Convention on Asylum (1928) laid down that, subject to certain conditions, asylum could be granted in a foreign embassy to a political refugee who was a national of the territorial State. The Court was asked to decide whether the territorial State was bound to afford the necessary guarantees to enable the refugee to leave the country in safety.

In this case. The International Court of Justice discussed the nature of the regional rules. According to judgment:

1. Regional rules are not necessarily subordinate to general rules of International law, but may be, in sense, supplementary or correlated thereto.
2. An international tribunal must, as between states in the particular region, give effect to such regional rules as are duly proved to the satisfaction to the tribunal.

On the Basis of Area of Operation:

On the basis of area of operation, the International law is classified into two types: (a) Public International law and (b) Private International law.

Public International Law:

 Public International law is the body of legal rules, which applied between Sovereign States and other International Personalities.  It is regulated by the treaties and globally accepted norms and customs. It regulates the relationship between those nations and peoples that are prone to be affected by a particular law as they are bound by these legal codes and rules.

Private International Law:

Private International Law also Called as Conflict of Laws’ regulates private conflicts between individuals rather than the States. It seeks to resolve disputes in the domestic municipal body which involves an issue revolving beyond its domestic jurisdiction. It has also been suggested that the doctrine of comity of nations is the basis for applying the principles of conflict of laws. Comity means the accepted rules of mutual conduct between states, which each state adopts in relation to other states and expects other states to adopt in relation to it. 

The main concept of private international law is the “foreign element”. Private international law is the area of law that comes into play whenever a court is faced with a question that contains a foreign element, or a foreign connection. The mere presence of such a foreign element in a legal matter raises a number of questions and it is the function of private international law to provide an answer to these questions and to ensure just solutions.

Private International law concerns itself mainly with three following circumstances:

• Choice of Jurisdiction: When there is a case having a foreign element, whether the municipal courts of a State can exercise jurisdiction over such a case. For example, there is a contract between two parties for sale of machinery, one party is Indian and the other is American. They both came in contract of sale of machinery from India. Now if any dispute arises between the two parties. Then the question comes whose court has the jurisdiction to handle the matter Indian Court or the US Court.
• Choice of Law: On account of the foreign element, if the legal dispute is connected with different systems of law, which system is to be applied. In above example, when the case comes before a Court then the court is faced with a dilemma as to what should be the applicable law, whether the laws of India or the US.
• Recognition and Enforcement of Foreign Judgments: If there has been a judgment of a foreign court, under what conditions should the court of a State recognize, give effect to, and enforce, such foreign judgment.

In Stephens vs. Falchi, [1938] 3 DLR 590 case, the court held that “Whether or not the conditions are such as to require the application of the rules of law of another country is a question that must be decided by the court under their own law”

Traditional Rules Of Private International Law

1. The formal validity of a marriage is governed by Lex loci Celebrationis. Lex loci celebrationis is a Latin term for a legal principle in English common law, which means “the law of the land (lex loci) where the marriage was celebrated”. 
2. The essential validity of marriage or capacity to marry is governed by Lex domicilii of parties. Lex domicilii is the Latin term which means “law of the domicile”.
3. The title of movable property is governed by Lex loci rei sitae or simply Lex situs at the time of transfer (mostly in cases of sale, transfer). Lex situs, is the Latin term which means “law of the place where the property is situated”.
4. Succession to movable property is governed by Lex domicli of deceased on the date of death.
5. Succession to immovable property is governed by Lex situs i.e. law of the place where the immovable property is situated.
6. The Law of the procedure is governed through Lex fori. Lex fori is the Latin term which means the law of the country in which an action is brought.
7. In cases of contract, liability is governed by “applicable law” or “proper law of contract.”
8. The Law of liability in tort is governed by lex loci delicti commissi or simply Lex loci delicti. Lex loci delicti  is the Latin term which means “law of the place where the delict [tort] was committed”.

Public International Law	Private International Law
Public International Law has universal character.	Private International Law has a local or municipal status.
Public International law is the body of legal rules, which applied between Sovereign States and other International Personalities.	Private International Law regulates relationship between Private persons (Natural or Legal) of two different States.
It deals with the relationship between the states.	It deals with civil rights and duties of individual.
Public International law rules are outcome of international custom and treaties.	Private International law rules are framed by the State Legislature.
Public International law is enforced by international pressure and fear.	Private International Law is enforced by the concerned State executive.
In public International Law there is no Predetermined Court.	It is administered by the courts of nation, or the land,
Public International Law is applied uniformly to all the states.	Private International Law differs from state to state.

Conclusion:

International Law is defined as a body of principles & rules commonly observed by States in their mutual relationship with each other. It; includes the law relating to States & International organisations and also International Organisations inter se. It also includes the rules of law relating to international institutions and individuals, and non-State entities and individuals.

It is a tool for international trade. International Law includes rules governing international communications, postal services, the carriage of goods and passengers by sea and air. It also regulates use of sea, outer space and Antarctica. It also deals with nationality, aliens, extradition, human rights, environmental protection, and the security of nation.