Next Article: United Nations and International Law
Back to: INTERNATIONAL LAW
What are the types of international law?
International law is commonly divided into two categories:
• Public International Law – Public international law examines relationships between nations and the rules that are binding upon countries in the international community. It also governs the relationship between states and international entities. Public international law originates largely from the direct agreements or treaties between nations. In some cases, an agreement among some nations may involuntarily subject other nations to that law. Such is the case with certain criminal laws. Fields of international law include criminal law, maritime law, the law of war, human rights law, refugee law, and the law established by treaties between nations. When conflicts exist between nations, these sources of international law (as applied within the substantive field) generally guide those nations in resolving the conflict. In some instances, nations will empower a common court or tribunal to resolve international disputes. These nations agree to submit disputes to these courts or tribunals, which are charged with applying the sources of international law (along with any codifications or common law derived by those courts or tribunals) in resolving the conflict. Resolution of conflicts between nations necessarily entails disparity in laws and ethical or moral principles. Therefore, public international law may employ principles present in international conventions, customs of the disputing nations, generally accepted community norms, principles of law recognized by civilized nations, and judicial philosophies or theories of jurisprudence in addressing conflicts between nations.
• Private International Law – Private international law primarily concerns disputes between individuals or businesses (not nations) in situations where the law of more than one nation may apply. This is often referred to as international conflict of law. These situations commonly arise through commercial transactions undertaken by parties from separate nations. Private international law addresses the questions of (1) which jurisdiction may hear a case, and (2) the law concerning which jurisdiction applies to the issues in the case. Parties typically utilize contracts to provide mutual understanding and some degree of continuity to international business transactions. In the event of conflict, in hopes of resolving the dispute, the parties may voluntarily or involuntarily submit the dispute to a legal system to interpret the agreement in accordance with the laws of either or both nations.
⁃ Note: When disputes arise as to the law that will apply to a specific transaction or situation, “conflict of law” rules are used to determine which country’s law will apply.
• Discussion: What do you think about the concept of international law? Does the voluntary nature of most international law affect your opinion? Can you think of situations in which the ethics and social norms adopted in one country’s law could conflict with those of another country? Why do you think that there is a distinction between public and private international law?
• Practice Question: What is the difference between public and private international law? Can individuals ever be the subject of public international law? Can governments ever be subject to private international law?