international humanitarian law
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This article is written by Abhay, from Kirit P. Mehta School of Law, NMIMS. It deals with various aspects associated with Public and Private International law.

Introduction

Traditionally, public international law and private international law are viewed as two separate types of law; the former that regulates international relations between states and the latter between private individuals. Through their area of practice, the two types i.e. public international and private international law are often considered as having the role on a global level within developing the international community.

Public international law, or the rule of nations, is historically defined as the system of law regulating diplomatic affairs. So this system is subject to only governments, and general foreign organizations. The key emphasis is on creating a broad-scale and a basic minimum legal order. Private international law, or conflict of laws on the other hand, is a framework that combines the various laws from different countries. It addresses the issue of the applicability of international or domestic laws in the domestic courts. 

Public international law

Traditionally, the State has been the main subject of public international law. Modern public international law has definitely evolved out of the idea of the (nation) state and its sovereignty. The law regulating relations between states was once known as the jus gentium or the law of nations. Although public international law is primarily concerned with relations between states, it also has individuals and organizations as its subjects. 

The growth of multinational companies, with some of them producing higher annual sales over several years than some nations’ gross national product (GNP), poses key concerns. Corporations also set up networks and alliances, and codes of conduct that create norms in themselves. By giving out control, companies can form state actions. In certain countries such as the United States, in particular, companies play a significant role in the legislative process.

Private international law

Private International Law or the conflict of laws is the branch of legal service that is implemented when two or more sets of legal structures clash over a particular topic. It is a collection of procedural rules which determine which legal system and jurisdiction shall apply to a particular dispute. During colonial rule, India consisted of several states with distinct cultures and beliefs, often due to which there was a dispute between British law and personal laws in India, as various laws applied to citizens belonging to different beliefs.

Until independence and even till state recognition, India was a nation that had distinct legal structures between British India and native Indian princely states. In British India’s judicial system the judgment pronounced by the courts of princely states was considered as international judgments. During the British time, therefore, there was an inter-state conflict of laws. 

Also during the British era when the Indian merchants were trading outside India, there were cases of commercial litigation with an international dimension in it before the Indian courts. Since India was a British colony, it followed nearly all British rules concerning private international law. Nevertheless, the irony of the situation is that the Indian legislation has struggled to pass sufficient legislation in the field of private international law, even after so many years of independence.

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Legislation which addresses ties between private entities generally involved in cross-border transactions is known as Private International Law. Private International Law sets procedural rules relating to the substantive law applicable to the relationship between the parties. It includes the proper venue for resolving their conflicts and the effect that a foreign judgment is to be issued. It is primarily based on national or local legislation. Private International Law focuses primarily on individual-to-individual or business-to-business ties.

In a conventional context, “conflict of laws” is correlated with the rule which undertakes to resolve discrepancies between the laws of various countries, or to determine which law is applicable. For instance, if Infosys had to supply software to a Chinese buyer and the software failed, the buyer would probably want to sue Infosys in China. Private international law would recognize the relevant domestic law and resolve issues related to the dispute between the two laws, one, perhaps China’s law, and the other, perhaps India’s law, where Infosys has its headquarters.  Private international law also deals with the matter of the proper venue, such as whether a court may exercise personal authority over a foreign party and impose any judgment beyond the authority of the country in which it was entered. 

A crucial element of private international law is its understanding that states vary in their application of the law and that it is important to balance that variation. Every society, in reality, has its own rules that are dependent on its own conventional, religious, cultural, or societal values. 

Monism and dualism

Two separate interpretations of the interaction between international law and national law are represented using the words “monism and dualism”. Many nations in their practical implementation of international law in their national structures are partly monist and partly dualist. 

Monism

Monists admit that there is harmony between the national and the international legal frameworks. Both national laws and international laws adopted by a State, for example by an agreement, decide if some practices are right or wrong. In the so-called “monist” nations, a comparison can be made between international law in the form of treaties and customary international law. These countries may, therefore, be partly monist and partly dualist. International law doesn’t have to be converted into national law in a strict monist society. 

It is clearly adopted and consequently has an influence on domestic or national legislation. The act of amending an international treaty automatically integrates the provisions into national legislation. Monist countries also recognize customary international law as a part of national law. A court may consider a domestic rule unconstitutional if it violates international norms because international rules have precedence in certain nations.  

In many countries, treaties have the same influence as laws and can only prevail over national laws passed prior to their adoption, by the concept of Lex posterior derogat priori i.e. later law replaces the earlier. In Monist nations, domestic law which violates international law is considered null and void, although the domestic law has been followed even before the existence of international law and is constitutional in its essence.

The advantages of Monist law are applicable if a monist country has signed a treaty which deals with the protection of human rights. And if that country has a law which violates the basic right of freedom of speech and expression then, the citizen can appeal in the Court citing that the particular law violates the treaty which was signed and ratified by the government.

Dualism

Dualist countries emphasize that the distinction between national and international law is essential. They also demand that the latter be translated into the former. Under this interpretation, there is no such thing as foreign law. International law must always be included or translated into national law, otherwise, there is simply no law. If a nation recognizes a treaty but does not amend its domestic law to comply with the treaty or does not establish a law that expressly implements the treaty, it violates international law. So, one can’t say that the treaty has become part of national legislation and citizens can’t fully count on that. According to dualists, judges in these countries do not enforce these laws. The national laws which are contradictory to the treaty are still in force.

In reference to its commitment to international law, India has historically been identified as a dualist country. At least generally, the assignment of the power to assume international responsibilities rests with the executive, although its internal enforcement needs parliamentary approval. When responsibilities under international law are established, they are transmitted through different channels into domestic legislation, most of which don’t involve approval from parliament. 

In fact, the Indian courts also implement quasi-domesticated obligations under international law in multiple ways that represent shades of monism. While the Constitution encourages the state in Article 51 to ‘foster respect for international law and treaty obligations in the dealing of organized people with one another’. This directive is in the form of the principle of governance which is enforceable.

The parliamentary debates suggest that Article 51 is considered non-obligatory, and specifically intended to direct India’s foreign policy and serve as the basis of its foreign relations, instead of just providing for how India would handle its domestic obligations under international law. The Constitution grants legislative authority to the Parliament to enter into and carry out international obligations. 

Article 246 confers legislative authority to the parliament in international relations, for entering into and executing treaties with foreign nations. Article 253 of the constitution clarifies that the parliament’s power to legislate for the fulfilment of international obligations applies to matters within the constitutional competence of States. In Ram Jawaya Kapur v. State of Punjab, Article 73 was interpreted by the Indian Supreme Court. It says that even in the absence of legislation the executive can exercise control over matters in the Union list as long as it does not conduct in violation of any statute.

Incorporation of international law

The executive shall have the authority to conclude a plenary treaty and may not enforce international legal treaties nationally to the degree that they require any variance from established law, except with the authorization of Parliament. 

The “doctrine of transformation” is a corollary to the concept of dualism, which states that local courts can not impose foreign treaties locally unless followed by sufficient legislative development. Over the period, the Supreme Court of India has moved from a dualistic stance of transformation to the monistic doctrine of incorporation. 

The doctrine of incorporation enables courts to strictly apply international law without any legislative change unless they encounter a greater-value domestic rule which is contradictory to it. Although the Court has not yet considered international law standards obligatory on all entities in the very same way as domestic law. 

The Court certainly moved away from the doctrine of transformation to the doctrine of incorporation in the case of Gramophone Company of India Ltd. v. Birendra Bahadur Pandey. In this case, a clause on Indian Copyright Act had to be interpreted by the Tribunal. In trying to interpret the clause in a way compatible with India’s international commitments, the Court held that international law can be adhered to in municipal law, without expressing parliamentary approval, given that they do not clash with parliament’s laws. 

The doctrine of incorporation also recognizes the fact that international laws are integrated into domestic law and deemed to be part of national law unless they clash with a legislative act. While the Court had permitted the inclusion of international law in the Gramophone Company’s case without any need for prior legislative action, it remained dependent on the executive first to meet these obligations. 

However, in 1992, following the use of international law, the Court abolished this restriction. In the case of Nilabati Behera v. State of Orissa, the Court referred to Article 9(5) of the ICCPR as the ground for its judgment for granting damages in the event of a breach of fundamental rights, thereby dismissing India’s unique reservation to that clause.

In the case of Vishaka vs. State of Rajasthan, the Court stated that any International Convention that’s not incompatible with fundamental rights and in accordance with its purpose should be interpreted in such provisions in order to extend its scope and substance and encourage the intent of the constitutional guarantee.

Major differences

The term ‘private international law’ or ‘conflict of law’ means a collection of standards and rules applied to private parties concerning transboundary cases with at least one specific legal foreign dimension in it, while the term ‘public international law’ is used when a case involves the regulation of diplomatic relations between various states and international organizations.

The presence of various legal relationships in the world has contributed to the establishment of standards and rules of private international law, although, in the case of public international law, this is not so. Rules of international public law are the product of international conventions and treaties while rules of international private law are established by the legislature of the state. International public law is imposed through external pressure and fear, deterioration of diplomatic ties, sanctions, etc. while the executive of the state involved enforces private international law. There is no predetermined court in public international law, while tribunals are predetermined in private international law. For all Nations, public international law is the same while private international law is different from state to state.

Conclusion

In cases where an international dimension may be present, the court must look beyond the limits of its domestic law. International law must be recognized in cases where there is an international dimension since the application of local law of the court in which the case is brought for trial can result in gross injustice because it is in conflict with foreign law.

As far as public international Law’s control is concerned, its growth and strengthening on a global scale are unquestioned. Additional development includes greater access of private individuals to international tools.


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