Understanding Public and Private International Law
1. Public and Private
Public international law and private international law are two branches of international law. Generally, there is no distinction between public international law and private international law, but it is very necessary that one should not confuse public international law and private international law.
2. Definitions of International Law:
Oppenheim
International law is a body of customary and conventional rules, which are considered binding on civilized states in their relations with each other.
3. Basis of International Law:
There are two principal theories regarding the basis of international law.
(i) Theory of fundamental rights or natural law theory.
(ii) Consent theory or positivism.
I. Natural Law Theory:
Natural law theory is also known as the theory of fundamental rights. The followers of this theory believe that the basis of all laws is natural law. This theory is traced back to Greek civilization; Grotius rationalized natural law and applied it in international law.
II. Consent Theory:
According to consent theory, international law consists of the rules which the states have consented to observe. The consent may be express or implied; the exponent of consent theory is Kershoek.
4. Definition of Public International Law:
Oppenheim
“Public international law is a body of customary and conventional rules, which are considered binding on civilized states in their relations with each other.”
5. Definition of Private International Law:
M. P. Tandon:
“Private international law is a body of principles determining questions as to jurisdictions and questions as to the selection of appropriate law, in civil cases which present themselves for decision before a court of one state or country, but which involve a foreign element, i.e., which affect foreign persons or foreign transactions that have been entered in a foreign country or with respect to a foreign system of law.”
6. Distinction Between Public International Law and Private International Law:
I. As to Consent:
Public international law is based on the consent of the state.
Private international law is not based on the consent of the states.
II. As to Object:
Public international law regulates the relationship of states inter se and determines the rights and duties of the subject states in the international sphere.
Private international law determines which law will apply of two conflicting laws in a particular case having a foreign element.
III. As to Conflict of Laws:
Public international law does not involve conflicts of laws.
Private international law involves conflicts of laws.
IV. As to Nature:
Public international law is the same for all states.
Private international law may be different in various states.
V. As to Sources:
Public international law has its sources in treaties, customs, etc.
Private international law has its sources in the legislation of the individual state to which the litigant belongs.
VI. As to Application:
Public international law is applicable to criminal as well as civil cases.
Private international law is applicable to civil cases only, which present themselves for accession of courts of the state.
VII. As to Subject:
Public international law deals with the states.
Private international law deals with individuals.
VIII. As to Municipal Law:
Public international law is not part of municipal law.
IX. As to Jurisdiction:
Public international law does not involve determination on the question of jurisdiction.
Private international law determines which court will have jurisdiction to decide the issue in question.
X. As to Scope:
Public international law has a wider scope; it is of universal character.
Private international law has a lesser scope.
7. Conclusion:
To conclude, it can be said that public international law and private international law are branches of international law. Public international law is known as the conflict of laws. These are different from each other, but in some exceptional cases, rules of private international law may become rules of public international law.
1. Principal Sources
International law is a body of rules that regulates relations among states. It comprises mainly the rules recognized by states in their relations with each other and mostly arises out of international customs and treaties. At present, Article 38 of the Statute of the International Court of Justice is an authoritative text of the source and evidence of international law.
2. Definitions of International Law:
Oppenheim
International law is a body of customary and conventional rules, which are considered binding on civilized states in their relations with each other.
3. Sources of International Law:
Although there is no international legislature and court to which the international community must compulsorily submit, still under Article 38 of the Statute of the International Court of Justice, rules of international law can be pragmatically found in international conventions, international customs, etc.
4. Meaning of Sources:
Starke:
“By sources of international law, we mean the actual materials from which an international lawyer ascertains the rule applicable to a given situation.”
5. Classification of Sources:
Sources of international law may be classified into two categories.
(i) Formal sources.
(ii) Material sources.
I. Formal Sources of International Law:
A formal source is that source from which a rule of law derives its force and validity. There are no formal sources of international law, and one of the main criticisms of international law is that it does not have a legislature of its own; thus, its laws cannot have any sanction.
II. Material Sources of International Law:
Material sources of international law are those actual materials from which an international lawyer determines the rule applicable to a given situation. Article 38 of the Statute of the International Court of Justice enlists such material sources of international law. There are all kinds of sources in this statute, including primary and secondary. Paragraph two of Article 38 of the statute enlists secondary sources of international law.
7. Main Sources of International Law:
I. Primary Sources:
(i) International Customs:
International customs are one of the most important sources of international law. Article 38 of the Statute of the International Court of Justice recognizes international customs as a source of international law.
(a) Essentials of Valid International Custom:
The essentials of valid international custom are as follows:
(i) Long duration.
(ii) Uniformity and consistency:
Case law.
(iii) Generality of practice or observed.
(iv) Opinio juris et necessitatis.
(ii) Treaties:
Treaties are the most important source of international law.
(i) Definition of Treaty:
Article 2 of the Vienna Convention on the Law of Treaties 1960 defines a treaty:
“An agreement whereby two or more states establish or seek to establish a relationship between them governed by international law.”
(ii) Kinds of Treaties:
(a) Law-Making Treaties:
The provisions of law-making treaties are directly a source of international law. Law-making treaties perform the same functions in the international field as legislation does in the state field. They are the means through which international law can be adapted to changing times and circumstances, and the rule of law among the states can be strengthened.
(b) Treaty Contracts:
Treaty contracts are entered into by two or more states. The provisions of such treaties are binding on the parties to the treaty. Treaty contracts are an indirect source of international law.
(iii) General Principles of Law:
General principles of law recognized by civilized states are also an important source of international law. General principles of law are those rules which have been recognized by almost all states.
General Principles Recognized by the International Court:
The International Court has recognized the following principles in different decisions:
(i) Good faith.
(ii) Responsibility.
(iii) Prescription.
(iv) In the absence of any provision to the contrary, every court has the right to determine its own jurisdiction.
(v) A party to a suit cannot himself be an arbitrator or a judge in his own case.
(vi) Res judicata.
(vii) Estoppel.
(viii) Audi alteram partem.
(iv) Judicial Decisions:
Juristic works form the evidence of international law, yet it assumes importance when there are no established customs or treaties.
(v) Decisions of Determinations of the Organs of International Institutions:
Decisions on questions of jurisdiction of an organ of an international institution may have a law-making effect. Sometimes organs of international institutions are authorized to give binding determinations concerning the interpretation of their constituent instruments.
(vi) State Papers:
State papers other than treaties are also a source of international law. The archives of the foreign affairs department of every country contain a mass of valuable expert opinions which are useful for international law.
8. Subjects of International Law:
Following are the subjects of international law:
(i) States.
(ii) Political entities legally proximate to states.
(iii) Condominium.
(iv) International territories.
(v) International organizations.
(vi) International institutions.
(vii) International criminal law.
(viii) Treaties concerning international minorities and individuals.
(ix) Non-state entities.
(x) Insurgents.
9. Conclusion:
To conclude, it can be said that the sources are the name of historic fallout from which rules of conduct come into existence. Although there is no international legislature and court to which the international community must compulsorily submit, still under Article 38 of the Statute of the International Court of Justice, sources for international law are provided.
1. Nationality
Nationality is the status of a person who is attached to a state by the tie of allegiance. It is a relationship between a state and an individual. The fundamental basis of nationality is membership in an independent political community. The question of determination of nationality comes within the doctrine of municipal law. The Hague Conference (1930), while adopting the convention on the conflict of nationality laws, left it to each state to determine as to “who are its nationals under its own laws.”
2. Meaning:
The word nationality is derived from the word national, which simply means a subject of a particular state.
3. Definition:
According to Oppenheim:
“Nationality of an individual is his quality of being a subject of a certain state.”
Hyde:
“Nationality is a relationship between a state and an individual such that the former may regard the latter as owing allegiance to itself.”
4. Determination of Nationality
U.S. v/s Wong Kim Ark 1898:
It was held that a state may determine what type or class of people shall be entitled to citizenship.
5. Right of Nationality:
According to Article 15 (i) of the Universal Declaration of Human Rights 1984, everyone has the right to a nationality. The Hague Convention on certain questions relating to the conflict of nationality laws 1930 provides that it is for each state to determine under its municipal law who are its nationals.
6. Importance of Nationality:
Strak’s Views:
(i) Protection of Rights:
Protection of the rights of diplomatic agents is a consequence of nationality.
(ii) Jurisdiction of State:
A state exercises jurisdiction over civil and criminal matters over the persons of its nationality.
(iii) Practice of State During War:
During war, the enemy is determined on the basis of nationality.
(iv) Refusal to Extradite:
A state can refuse to extradite its own nationals.
(v) Responsibility of State:
States shall be responsible for harmful acts committed by their nationals if they allow them to commit such harmful acts.
7. Modes of Acquisition:
Following are the modes of acquisition of nationality.
I. By Birth:
The chief mode of acquiring nationality is by birth. A person acquires the nationality of the state where he is born.
(i) Kinds of Nationality by Birth:
(a) Jus Soli:
It is nationality according to the territory or locality of birth.
(b) Jus Sanguinis:
It is nationality according to the nationality of the parents.
II. By Naturalization:
Naturalization is a process by which a person living in a foreign state acquires citizenship of that state or it takes place when a person becomes the subject of a state to which he was previously an alien. There are six ways of naturalization.
(a) Marriage:
The wife assumes her husband’s nationality if the latter is the national of another state.
(b) Legitimation:
A legitimate child acquires the nationality of his father.
(c) Option:
If a person fulfills the requisite conditions prescribed by the law of any state, he may be offered nationality by that state.
(d) Domicile:
If a person keeps domicile in a state, he also gets the nationality of that state.
(e) Government Service:
If a person gets government service in a state, he acquires the nationality of that state.
(f) Permission by State to Apply:
If the law of any state permits applications from persons for conferring nationality, such persons may get nationality if they prove their eligibility.
III. By Resumption:
It happens when a person resumes his nationality after losing it.
IV. By Subjugation:
It is acquired when a state is defeated or conquered, and when all citizens acquire the nationality of the conquering state.
V. By Cessation:
When a state has been ceded to another state, the people of that territory get the nationality of the state in which the territory has been merged.
VI. By Legislative or Administrative Act:
Nationality can also be acquired by the legislative or administrative act of the state.
8. Modes of Losing Nationality:
According to Oppenheim, nationality can be lost in the following ways.
(i) Release:
It is effected by submitting an application by the nationality holder. If the application is allowed, he may lose his nationality.
(ii) Deprivation:
Some states provide for deprivation of nationality in certain circumstances. If a national of a state gets his appointment in another state without seeking prior permission from his state, he will be deprived of nationality in that state.
(iii) Residence Abroad for Long Period:
If a person resides for a long period abroad, his nationality is lost.
(iv) Substitution:
Loss of nationality of substitution occurs when a person loses the nationality of one state and acquires the nationality of another state.
9. Conclusion:
To conclude, it can be said that nationality is a legal relationship between the state and its citizens. A person without nationality is stateless. The Universal Declaration of Human Rights 1984 provides that everyone has the right to nationality. There are different modes of acquiring and losing nationality.
1. Asylum
Asylum is the protection which a state gives on its territory or in some other place under the control of certain of its organs to a person who comes to seek it. It is the right of every state to refuse to extradite any refugee in certain circumstances.
2. Meaning:
The word asylum is Latin and derived from the Greek word “asylia,” which means inviolable place.
3. Definition:
Asylum is shelter and active protection extended to a political refugee from another state by a state which admits him on his request.
4. Basis of Asylum:
A state has a right to grant asylum to a person on the principle that it has a sovereign right to control over the individual found on its territory. The right of territorial asylum has been conferred to a state on the basis of its sovereignty over territory.
5. Elements of Asylum:
There are two main elements of asylum which are the following:
(a) Shelter.
(b) Active protection on the part of the authorities in control of the territory of asylum.
6. Reasons for Asylum:
Following can be the main reasons for granting asylum:
(a) To save a person from the jurisdiction of the local authority.
(b) May be granted on extra-legal grounds, so on humanitarian grounds.
(c) For the sake of national security.
Corfu Channel Case 1949:
It was held by the ICJ that asylum may be granted on humanitarian grounds in order to protect political offenders against violent action.
7. Right of a Person to Claim Asylum:
In accordance with the Universal Declaration of Human Rights under Article 15, “everyone has the right to seek and enjoy in other countries asylum from prosecution.”
8. Types of Asylum:
Asylum has two types:
(i) Territorial asylum.
(ii) Extraterritorial asylum.
(iii) Neutral asylum.
I. Territorial Asylum:
Territorial asylum is granted within the territorial bounds of the state offering asylum and is an exception to the practice of extradition. It is designed and employed primarily for the protection of persons accused of political offenses such as treason, desertion, sedition, and espionage. It has become a widespread practice, however, to exclude from this category persons accused of the murder of a head of state, certain terrorist acts, collaboration with the enemy in time of war, crimes against peace and against humanity, and war crimes.
II. Extraterritorial or Diplomatic Asylum:
Extraterritorial asylum refers to asylum granted in embassies, legations, consulates, warships, and merchant vessels in foreign territory and is thus granted within the territory of the state from which protection is sought. Cases of extraterritorial asylum granted in embassies, legations, or consulates (generally known as diplomatic asylum) are often occasions for dispute.
(iii) Neutral Asylum: is employed by states exercising neutrality during a war to offer asylum within its territory to troops of belligerent states, provided that the troops submit to internment for the duration of the war.
1. War Crimes
There are certain rules of international law; if they are violated, it will constitute war crimes. If they are committed by soldiers or by other individuals, punishment is given not by an independent forum but by the victorious states.
2. Definition of War Crimes:
According to Schwarzenberger:
“War crimes are acts which strike at the very roots of international society, like genocide, piracy, violation of recognized rules of warfare.”
According to Oppenheim:
“War crimes are such hostile or other acts of soldiers or other individuals as may be punished by the enemy on capture of the offenders.”
According to Higgins:
“War crimes include the violation of the recognized rules of warfare by illegitimate hostilities in arms committed by individuals who are not members of the armed forces, espionage, war treason, and marauding.”
3. Classification of War Crimes:
Oppenheim classifies war crimes under the following four heads:
(i) Violation of recognized rules regarding warfare committed by members of armed forces.
(ii) All hostilities in arms committed by individuals who are not members of the enemy armed forces.
(iii) Espionage and war treason.
(iv) Marauding acts.
4. Responsibility for War Crimes:
Those persons or soldiers who commit war crimes are individually responsible for war crimes; such persons are called war criminals.
Disability of War Criminal:
A person committing war crimes cannot raise the plea that the crime was committed in pursuance of an order of the government or of a superior officer.
5. Who Commits War Crimes:
War crimes may be committed by:
i. Armed forces
ii. Political leaders having the power to control or authority to give directions.
6. War Crimes Trials:
Important war crimes trials are the following:
(a) Nuremberg trial (1946)
(b) Tokyo trial (1946)
(c) Peleus trial
(d) Eichmann trial (1962)
(e) My Lai trial
(f) Milosevic trial.
7. War Crimes and the United Nations:
The United Nations recognized those principles which have been laid down in different war crimes trials. The General Assembly also formulated certain principles relating to persons guilty of war crimes. According to a resolution of the General Assembly, it was laid down that states shall not grant asylum to any person with respect to whom there are serious charges for considering that he has committed war crimes. The United Nations has authorized every state to try its own nationals for war crimes or crimes against humanity.
8. Conclusion:
To conclude, I can say that war crimes are those acts which are violative of customs of war. The criminals may or may not be members of armed forces. Those persons who commit war crimes are personally responsible for their acts. The war crimes are against humanity and international peace, e.g., murder, deportation, imprisonment, rape, and other inhuman acts.
1. Geneva Convention
The rules of treatment of prisoners of war are governed by the Geneva Convention 1949. This convention is regarded as the most important convention on the protection of prisoners of war.
2. Prisoner of War:
A prisoner of war is a status which is given to a person captured by a belligerent during a war or in an armed conflict; all the persons captured by the belligerents do not acquire this status.
3. Persons Treated as Prisoners of War:
Article 4 of the Geneva Convention enumerates certain categories of persons who have fallen into the hands of the enemy and shall be called prisoners of war, which are the following:
(i) Members of armed forces of a party to the conflict.
(ii) Members of militias and members of volunteer corps, which also fulfill the following conditions:
(a) That of being commanded by a person responsible for his subordinates.
(b) That they have a distinctive sign which can be recognized from a distance.
(c) That they carry arms.
(d) That they observe the laws and customs of war.
(iii) Members of the armed forces who profess allegiance to a government or an authority not recognized by the detaining power.
(iv) Persons who accompany the armed forces without actually being members of the armed forces.
(v) Inhabitants of a non-occupied territory who take up arms to resist the invading forces without having had time to organize themselves into regular armed units.
4. Sir Robert Phillimore’s Views:
According to Sir Robert Phillimore, the following classes of persons have no claim to the treatment of prisoners of war:
(a) Bands of marauders acting without the authority of the sovereign or the order of the military commander.
(b) Deserters captured among the enemy troops.
(c) Spies, even if they belong to the regular army.
5. Fundamental Principles Relating to Prisoners of War:
The Geneva Convention 1949 contains the following important provisions relating to the treatment of prisoners of war.
(i) Human Treatment of Prisoners:
Prisoners of war at all times must be humanly treated. International law protects the prisoners from punishment for hostile acts committed prior to capture.
(ii) Prohibition of Any Act Harmful to Health:
Any unlawful act or omission by the detaining power causing death or seriously endangering the health of the prisoners of war is prohibited.
(iii) No Physical Mutilation:
No prisoner of war may be subjected to physical mutilation or to medical or scientific experiments of any kind which are not justified by the medical, dental, or hospital treatment of the prisoners.
(iv) Protection Against Acts of Violation:
Prisoners of war must at all times be protected, particularly against acts of violation.
(v) Right to Respect of Their Persons and Their Honor:
Prisoners of war are entitled in all circumstances to respect for their persons and their honor.
(vi) Maintenance of Prisoners:
The detaining power shall be bound to provide free of charge for maintenance and medical attention required by their state of health.
(vii) Equality of Treatment:
The detaining power should treat prisoners equally without any distinction based on nationality, religious belief, or political opinion.
(viii) No Physical and Mental Torture:
No physical or mental torture or any other form of coercion may be inflicted on prisoners of war to secure from them information of any kind whatever. Prisoners of war who refuse to answer may not be threatened, insulted, or exposed to unpleasant or disadvantageous treatment of any kind.
(ix) Right to Possession of Articles of Personal Use:
All effects and articles of personal use, except arms, horses, military equipment, and military documents, shall remain in their possession; likewise, their metal helmets and gas masks, like articles issued for their personal protection.
(x) Quarter Facilities:
Prisoners shall be provided with quarter facilities similar to those of the detaining power. The premises should be protected from dampness. They should be adequately heated and lighted. All precautions must be taken against the danger of their life. The detaining power should provide separate dormitories for women prisoners. The detaining power shall also be bound to take all sanitary measures necessary to ensure the cleanliness of the camp and to prevent epidemics.
(xi) Identity Documents:
At no time should prisoners of war be without identity documents. The detaining power shall supply such documents to the prisoners of war who possess none.
6. Present Position Regarding Geneva Convention of P.O.W:
Presently, powerful states have ignored the Geneva Convention regarding P.O.W. For example, the U.S.A. violated these refugees in Afghanistan and Iran wars. P.O.W. were treated and are being treated inhumanely and tortured in Guantanamo.
7. Conclusion:
To conclude, it can be said that international law protects all prisoners of war from punishment for their hostile acts committed prior to capture. The detaining power is not free to enforce its own municipal law except as permitted by international law.