PRIVATE INTERNATIONAL LAW PROJECT DRAFT

UNDERSTANDING THE RELATIONSHIP BETWEEN PRIVATE

INTERNATIONAL LAW AND PUBLIC INTERNATIONAL LAW
Godhuli Nanda

ABSTRACT
Although public international law is usually defined as the body of norms binding upon
civilized States in their relations with one another, a more accurate definition would
include all norms having their source in the international community of States rather
than in individual States. While at first blush a consideration of the relationship of
private international law to this body of norms may seem of purely theoretical and
abstract interest, it is in actuality the starting point in determining the framework within
which individual States can develop rules of private international law responsive to the
needs of the international community. The relation between private international law and
public international law has gained little attention. Indeed, in legal education, the two
disciplines are treated as two completely separate subjects and, in my experience,
comparisons of the two ordinarily fall outside the curriculum. This practice has always
been unfortunate, but is becoming untenable in light of Internet technology.
This paper makes some observations as to the connections between public international
law and private international law. In doing so, particular reference is made to the context
of the Internet.
I.

TRACING

THE

GENESIS

While they may very well originate in international instruments, rules of private
international law (or conflict of laws as the area often is referred to in common law
countries) are domestic. They are rules, in one way or another, decided by each State, and
are in place to regulate essentially four questions: when a court may exercise jurisdiction
over a dispute, when a court may decline to exercise jurisdiction over a dispute falling

The author is a 4th Year B.A.LL.B (Hons). Student from KIIT Law School, Bhubaneswar (Odisha) and can
be reached at godhuli.nanda@gmail.com.

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within its jurisdiction, which countrys law the court should apply in a dispute falling
within its jurisdiction, and under what circumstances a court may recognise and/or
enforce a foreign judgment.1
Public international law is an enormously diverse discipline. In its strictest, and now
arguably outdated, sense, it could be said to be concerned with legally binding rules and
principles regulating the relationships between sovereign States. 2 Areas ordinarily dealt
with within the scope of public international law include, for example, the law of treaties,
issues relating to territory, statehood and State responsibility, international dispute
settlement and international use of force. However, this fascinating area of law does also
include rules regarding when a States court can claim jurisdiction (including,
prescriptive jurisdiction, adjudicative jurisdiction and enforcement jurisdiction), and it is
this potential overlap, or connection, with the rules of private international law that is in
focus in this paper.
II.

THE SCOPE OF PRIVATE INTERNATIONAL LAW

Private international law in its broad sense does indeed involve both conflicts of law and
the unification of substantive law. The issues addressed affect a broad spectrum of legal
concerns. They include such diverse areas as child abduction, wills and trusts, sales contracts, negotiable instruments, the enforcement of foreign judgments, and the taking of
evidence abroad. These concerns are not limited to attorneys with an international
practice.3
Private international law has come to mean both the development of multilateral
international agreements (conventions) to set out rules concerning applicable law, as well
as efforts by conventions or other means to unify and harmonize substantive law.4
By private international law is meant the body of norms applied in international 5 cases to
determine the judicial jurisdiction of a State, the choice of the particular system or
1

CONFLICT OF LAWS AND PRIVATE INTERNATIONAL LAW , Magdalene Schoch, American Society of
International Law at Its Annual Meeting(1921-1969), Vol. 33 (APRIL 27-29, 1939), pp. 81-94.
2
Cheshire, Private International Law (2d ed., 1938), pp. 6, 7; cf. Gutzwiller.
3
United States Participation in International Unification of Private Law, 19 Int'l Law. 505 (1985)
[hereinafter Pfund (1985)]; Pfund, International Unification of Private Law: A Report on United States
Participation, 1985-86, 20 Int'l Law. 623 (1986); Pfund, International Unification of Private Law: A Report
on U.S. Participation - 1986-87 21 Int'l Law. 1245 (1987).
4
The Relationship of Private International Law to Public International Law, John R. Stevenson, Columbia
Law Review, Vol. 52, No. 5 (May, 1952), pp. 561-588.

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systems of law to be applied in reaching a judicial decision, and the effect to be given a
foreign judgment. This definition does not differ greatly from the definitions postulated
by many writers on private international law.6 There is considerable disagreement,
however, as to the matters which can be brought within this or similar definitions. Most
continental6 and some Anglo-American writers include the rules of a particular State
governing the acquisition and loss of nationality. Such rules, it is true, are important in
deciding a private international law case in a jurisdiction where personal law is governed
by a person's nationality. But nationality, in contrast to a "localizing" factor like domicile,
is determined without regard to the policy considerations of private international law.7
III.

DO THE JURISDICTIONAL RULES OF PUBLIC INTERNATIONAL LAW AFFECT

THE

RULES OF PRIVATE INTERNATIONAL LAW

The first, and perhaps most obvious, objection to acknowledging a connection between
public international law and private international law is that civil disputes between two
private parties, the core area of private international law, falls outside the scope of public
international law. It is, however, submitted that this objection rests upon an
oversimplification.
Sovereignty, or jurisdictional sovereignty as it sometimes is referred to, is a central
feature of each individual State and pertains to a States sovereign right to exercise
authority over persons, things and events by use of its domestic law and its State
organs8. In illustrating the type of jurisdictional sovereignty that public international law
concerns itself with, Hall gives the example of a court of State A convicting a citizen of
State B for exceeding the road speed limits set by State A, while driving in State B. By
doing so, the learned author argues, the court in State A would call into question the
[jurisdictional] sovereignty of State B to exercise authority over persons, things and
events within its own territory by use of domestic law 9, and this would be a scenario to
5

"International" is used in a broad sense to include all cases in which some important element is foreign to
the forum, as, for example, the nationality of one of the parties, the place of making a contract, or the situs
of property.
6
PILLET , TRAITA PRATIQUE DE DROIT INTERNATIONAL PRIVA 177-284 (1923).
7
DICEY , CONFLICT OF LAWS 164-91 (2d ed. 1908).
8
Stephen Hall, Public International Law (LexisNexis Butterworths; Chatswood, 2003), at 209.
9
Stephen Hall, Public International Law (LexisNexis Butterworths; Chatswood, 2003), at 209.

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which customary international law would be applicable. Now imagine an example where
a court of State A exercises civil jurisdiction over a national of State B, who have
engaged in conduct in his home country, causing harm in State A. In such a case, the
court of State A is undeniably calling into question the [jurisdictional] sovereignty of
State B to exercise authority over persons, things and events within its own territory by
use of domestic law, much the same as in the example given by Hall. While the court in
the latter example may be more justified in doing so, the fact that, in this latter case, the
dispute is civil rather than criminal does in no way alter the fact that the court is, in a
sense, competing with the sovereignty of State B.
Following the same line of reasoning, we can compare the task that faced a French court
in the Yahoo case, and the task that faced the High Court of Australia in the Gutnick case.
In International League Against Racism & Anti-Semitism (LICRA) and the Union of
French Jewish Students (UEJF) v. Yahoo! Inc.10, the defendant was operating a website
which, amongst other things, contained an auction service where Nazi memorabilia/junk
was frequently on offer.11 The website could be described as the Yahoo familys
flagship, and in contrast to the country-specific Yahoo sites (e.g. www.yahoo.fr), this
site was said to be aimed at the world at large. 12 When LICRA and UEJF requested that
Yahoo remove the Nazi material from the auction service, in accordance with French
penal Code13, Yahoo refused. In Dow Jones & Company Inc v Gutnick 14, the High Court
of Australia had to decide whether a Victorian businessman, Joseph Gutnick, was allowed
to sue a US publishing company, Dow Jones & Company Inc, in a Victorian court over an
allegedly defamatory article available in large parts of the world on Dow Jones website.
Further it was for the High Court to decide whether Victorian law would be applied.
While the Yahoo case related to criminal law and the Gutnick case related to civil law, the
tasks the respective court was faced with was essentially the same it had to decide
whether it was entitled to exercise its powers in respect of a foreign company having
engaged in conduct in its home country, causing harm in the State where the court was
10

County Court of Paris, interim court order of 20 th of November 2000 (English translation available at:
http://www.cdt.org/speech/international/001120yahoofrance.pdf).
11
However, the auction service was not at all specifically designed for the purpose of auction Nazi material.
12
A notion backed by the fact that country-specific advertisement was provided on the site.
13
Section R645-1.
14
[2002] HCA 56.

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located. It is undisputed that the rules of private international law are of relevance only in
relation to the Gutnick case, and not in relation to the Yahoo case. However, to conclude
that the rules of public international law are of relevance only in relation to the Yahoo
case, and not the Gutnick case, seems unjustified. It is submitted that the jurisdictional
rules of public international law imposes limits, not only in relation to when a State can
exercise jurisdiction in relation to criminal matters, but also in relation to when a State
can exercise jurisdiction in relation to civil matters. After all, in both cases the court is
exercising its powers over a foreigner and thereby competes with the sovereignty of the
other state.
IV.

DO THE RULES OF PRIVATE INTERNATIONAL LAW AFFECT THE

JURISDICTIONAL RULES OF PUBLIC INTERNATIONAL LAW

One important corollary of the conclusion that the jurisdictional rules of public
international law imposes limits also in relation to when a State can exercise jurisdiction
in relation to civil matters, is that also State practice relating to jurisdictional claims over
civil matters is of relevance in determining the current state of customary international
law. However, not all commentators would agree with this conclusion. In discussing the
effect public international law has on private international law, Akehurst notes that:
when one examines the practice of States, [] one finds that States claim jurisdiction
over all sorts of cases and parties having no real connection with them and that this
practice has seldom if ever given rise to diplomatic protests.15 I am, however, not
entirely convinced that the absence of diplomatic protests can be seen, as Akehurst does,
as a definite indication of acceptance of dubious jurisdictional claims. In fact, it would
seem quite possible that the absence of diplomatic protests simply is a consequence of the
concerned States instead choosing not to recognise and enforce foreign judgments based
on dubious jurisdictional grounds. Thus, the presence or absence of diplomatic protests
may perhaps not at all be the acid test of limits of jurisdiction in international law 16
Akehurst believes it to be. In conclusion, there does not appear to be any reason why
State practice relating to jurisdictional claims over civil matters would not be of
relevance in determining the current state of customary international law. Thus, a need for
15
16

Michael Akehurst, Jurisdiction in International Law, 46 Brit. Y.B. Int 145 (1973), at 170.
Michael Akehurst, Jurisdiction in International Law, 46 Brit. Y.B. Int 145 (1973), at 176.

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research into what effect such practice has on customary international law relating to
jurisdiction is established. However, such an examination lies outside the scope of this
paper.
V.

PUBLIC INTERNATIONAL LAW (IN THE SENSE OF HUMAN RIGHTS LAW)

KEEPING PRIVATE INTERNATIONAL LAW UNDER CONTROL

As noted by commentators, individuals have increasingly become subjects of [public]

international law in certain fields, as States have concluded agreements codifying and
conferring human rights and establishing direct individual responsibility for international
crimes17. Public international law is affecting the rules of private international law also
in this regard.
The background facts of the Internet defamation dispute between Dow Jones and Joseph
Gutnick have already been alluded to above. Interestingly enough, after the High Court of
Australia had decided in Mr Gutnicks favour, allowing him to bring his claim in Victoria
under Victorian law, the author of the disputed article, Bill Alpert, petitioned to the
United Nations Human Rights Committee (UNHRC) in an attempt to have the Australian
standpoint declared to be in violation of the International Covenant on Civil and
Political Rights (ICCPR). This was possible due to the fact that Australia, in contrast to
Mr Alperts home country, the United States of America, has signed the First Optional
Protocol (OP-1)18 of the ICCPR (which amongst other things guarantees that individuals
can petition to the UNHRC to hear alleged violations of the ICCPR). It may here be
mentioned that the OP-1 thus does not allow Dow Jones (a business entity) to lodge an
application, and an application can only be lodged against the conduct of State parties, in
this case Australia (in contrast to e.g. the plaintiff of the disputed action, Mr Gutnick).
The UNHRC has not yet dealt with the matter. However, a few things can be said about
the likelihood of success.
Article 19(2) of the ICCPR states that: Everyone shall have the right to freedom of
expression; this right shall include freedom to seek, receive and impart information and
ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form
of art, or through any other media of his choice.. Mr Alpert argued that the position
17
18

Stephen Hall, Public International Law (LexisNexis Butterworths; Chatswood, 2003), at 1.

The Optional Protocol to the International Covenant on Civil and Political Rights (CCPR-OP1).

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taken in the High Courts decision, on the extraterritorial reach of Australias
jurisdictional and prescriptive claims violates freedom of expression as established in
Article 19 of the ICCPR. On an initial level it is worth noting that international bodies
responsible for scrutinising compliance with human rights standards have increasingly
interpreted those obligations [e.g. freedom of expression as provided for under the
ICCPR] as also having an extraterritorial scope.19 So it would seem that Australia
potentially is obligated to respect, for example, freedom of expression of people also
outside the Australian territorial scope.20
To be successful, Mr Alpert needs to overcome several procedural hurdles. They are not
discussed here. However, in the event of the UNHRC hearing Mr Alperts substantive
arguments, it would seem he would have a chance of being successful. In more detail, for
Australias conduct (in this case, the judgment of the High Court) to have been in line
with the ICCPR, it must have been provided by law, restricted freedom of expression in
respect of one of the accepted rights and have been necessary. As to the lawfulness, the
question will be whether the judgment of the High Court is in line with (i.e. provided by)
Australian law21 the answer must obviously be yes. Further, any restriction of freedom
of expression that the High Courts decision resulted in was in respect of the reputation of
another person, and thus meets the second requirement. Turning to the necessity, Mr
Alpert could perhaps successfully argue that, the Australias jurisdictional claim (the act
alleged to violate ICCPR Article 19) was not in proportion, which is a component of the
necessity requirement, to the resulting restrictions of freedom of expression. In the
context of proportionality, a distinction between the substantive defamation law and the
jurisdictional claim is necessary. While it rather easily could be argued that laws
protecting individuals from severely defamatory statements are proportionate to the
restriction they inevitably place upon freedom of expression, it is much more difficult to
19

Antonio Cassese, International Law (Oxford: Oxford University Press, 2001), at 361.
It seems possible to argue that the phrase to respect and to ensure to all individuals within its territory
and subject to its jurisdiction the rights recognized in the present Covenant (emphasis added) in Article 2
of the ICCPR expresses two separate requirements rather than a double requirement. See further: Sarah
Joseph et al. The International Covenant on Civil and Political Rights: Cases, materials, and commentary
(Oxford: Oxford University Press, 2000), at 58-65; Manfred Novak, U.N. Covenant on Civil and Political
Rights (Strasbourg; N.P. Engel, Publisher; 1993), at 26ff.
21
Manfred Novak, U.N. Covenant on Civuil and Political Rights (Strasbourg; N.P. Engel, Publisher; 1993),
at 351; Sarah Joseph et al. The International Covenant on Civil and Political Rights: Cases, materials, and
commentary (Oxford University Press; Oxford; 2000), at 391.
20

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say that the global effect of Australias wide jurisdictional claims are in proportion to the
desire to protect against severely defamatory statements.
After all, given the lack of limitations expressed in the High Courts decision, it would
seem that potentially anybody placing information on the Internet could be subject to
Australian jurisdiction. Then again, the facts of the Gutnick case were such that the rules
of private international law of many, not to say most, countries would have provided for
an extraterritorial jurisdictional claim can the UNHRC rightfully use the ICCPR to
prohibit this widespread practice? It must be questioned whether the UNHRC is the
appropriate forum for the sort of pure jurisdictional questions involved in deciding
whether the Australian jurisdictional claim is in proportion to the defamatory effect of a
foreign publication, on one of its citizens. The ICCPR was not designed for, and was
never intended for, solving purely jurisdictional disputes.
A UN decision to the effect that the UNHRC finds this type of dispute to fall outside its
competence would not change anything; it would merely maintain a status quo. If, on the
other hand, the UNHRC makes an unqualified decision in Mr Alperts favour, that would
mean that the ICCPR can be used to impose an unprecedented ban on all extraterritorial
jurisdictional claims affecting freedom of expression in fact, such a decision would
potentially mean that all extraterritorial claims in relation to areas such as defamation and
contempt would be prohibited. Further, we must ask whether Australia would have been
in breach of ICCPR Article 17(2) if the High Court had declined jurisdiction in the
Gutnick case. Against that background, it is hoped that, if the UNHRC decides in Mr
Alperts favour, they clearly qualify, and strictly limit, their decision. A lot is riding on
this question and hopefully the UNHRC realises that. In fact, what stands to be decided is
nothing less than the very extent to which public international law, in the sense of
international human rights law, imposes limits on the rules of private international law
relating to jurisdiction and choice of law.
VI.

CONCLUSION

This paper has illustrated that, in many ways, there are strong connections between public
international law and private international law, and some research areas of future interest
have been identified.
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It has been submitted that, the fact that the jurisdictional rules of public international law
impose limitations on the rules of private international law seems beyond intelligent
dispute. Further, it has been concluded that it is clear that State practice relating to
jurisdictional claims over civil matters is of relevance in determining the current state of
customary international law. In additions, it was demonstrated that public international
law, in the form of international human rights law, might have direct effect on rules of
private international law.
Unfortunately, the identified connections between public international law and private
international law have gained little academic attention and the subjects of public
international law and private international law are taught separately with little if any
attention being given to their respective effect on each other.
The answer to the question of the relationship between private and public international
law can be neither simple nor definitive. Changes in the scope of public international law,
such as its increasing concern with the individual irrespective of his nationality, will
effect important changes in the extent to which private international law is governed by
public international law. It may be well, however, at this point to summarize the
conclusions herein reached as to the present relationship between the two fields: The
norms of private international law applied by international tribunals are norms of public
international law, not of municipal law.
The relationship is one of identity. The relationship to public international law of the
private international law norms applied in municipal courts is more complex. Where no
national of a jurisdiction other than the forum is a party, public international law today is
silent as to the content of the private international law norms ap-plied. Where a foreign
national is a party, the degree of specificity of guidance varies. In some cases the content
of the norm of private international law applied is identical with that of a norm of public
international law. This can be viewed either as the direct application of a norm of public
international law by the municipal court or as the application of a norm of municipal law
identical in content with a norm of public international law. According to the view
adopted, the relationship between private and public inter-national law is one of identity
or dependency. Where, in a case to which a foreign nation is a party, public international
law does not specify the exact content of the norm of private international law applied, it
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at least sets limits of reasonableness. The norm of private international law applied is a
norm of municipal law and the relationship to public international law is one of
dependency.

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