International Law Guide

Interational law can refer to three distinct legal disciplines.  Public international law involves for instance the United Nations, maritime law, international criminal law, and the Geneva conventions.  Private international law or conflict of laws addresses the question of which legal jurisdiction usually derived from contracts between parties.  The law of supranational organizations concerns at present regional agreements where the special distinguishing quality is that laws of nation states are held inapplicable when conflicting with a supranational legal system.

Public International Law

Public international law concerns the structure and conduct of states and international organizations. To a lesser degree, international law also affects multinational corporations and individuals, an impact increasingly evolving beyond domestic legal interpretation and enforcement. Public international law has increased in use and importance vastly over the twentieth century, due mainly to the increase in global trade, armed conflict, environmental deterioration on a worldwide scale, human rights violations, rapid and vast increases in international transportation and a boom in global communications.

Public international law is sometimes called the "law of nations".  It should not be confused with private international law, which is concerned with the resolution of conflict of laws.  In its most general sense, international law consists of rules and principles of general application dealing with the conduct of states and of international organizations and with their relations inter se, as well as with some of their relations with persons, whether natural or juridical.

Public international law establishes the framework and the criteria for identifying states as the principal actors in the international legal system. As the existence of a state presupposes control and jurisdiction over territory, international law deals with the acquisition of territory, state immunity and the legal responsibility of states in their conduct with each other. International law is similarly concerned with the treatment of individuals within state boundaries. There is thus a comprehensive regime dealing with group rights, the treatment of aliens, the rights of refugees, international crimes, nationality problems, and human rights generally. It further includes the important functions of the maintenance of international peace and security, arms control, the pacific settlement of disputes and the regulation of the use of force in international relations. Even when the law is not able to stop the outbreak of war, it has developed principles to govern the conduct of hostilities and the treatment of prisoners. International law is also used to govern issues relating to the global environment, the global commons such as international waters and outer space, global communications, and world trade.

While municipal law is hierarchical or vertical in its structure (meaning that a legislature enacts binding legislation), international law is horizontal in nature. This means that all states are sovereign and theoretically equal. As a result of the notion of sovereignty, the value and authority of international law is dependent upon the voluntary participation of states in its formulation, observance, and enforcement. Although there may be exceptions, it is thought by many international academics that most states enter into legal commitments with other states out of enlightened self-interest rather than adherence to a body of law that is higher than their own. As D. W. Greig notes, "international law cannot exist in isolation from the political factors operating in the sphere of international relations".

Breaches of international law raise difficult questions for lawyers. Since international law has no established compulsory judicial system for the settlement of disputes or a coercive penal system, it is not as straightforward as managing breaches within a domestic legal system. However, there are means by which breaches are brought to the attention of the international community and some means for resolution. For example, there are judicial or quasi-judicial tribunals in international law in certain areas such as trade and human rights. The formation of the United Nations, for example, created a means for the world community to enforce international law upon members that violate its charter through the Security Council.

Traditionally, states and the Holy See were the sole subjects of international law. With the proliferation of international organizations over the last century, they have in some cases been recognized as relevant parties as well. Recent interpretations of international human rights law, international humanitarian law, and international trade law (e.g., North American Free Trade Agreement (NAFTA) Chapter 11 actions) have been inclusive of corporations, and even of certain individuals.

Private International Law

Conflict of laws (or private international law or international private law) in common law systems, is that branch of international law and intranational interstate law that regulates all lawsuits involving a "foreign" law element where different judgements will result depending on which jurisdiction's laws are applied as the lex causae.

In civil law systems, private international law is a branch of the internal legal system dealing with the determination of which state law is applicable to situations crossing over the borders of one particular state and involving a "foreign element" [élément d'extranéite], (collisions of law, conflict of laws). Lato sensu it also includes international civil procedure and international commercial arbitration (collisions of jurisdiction, conflict of jurisdictions), as well as citizenship law (which strictly speaking is part of public law).

There are two major streams of legal thought on the nature of conflict of laws. One group of researchers regard Conflict of Laws as a part of international law, claiming that its norms are uniform, universal and obligatory for all states. This stream of legal thought in Conflict of Laws is called "universalism". Other researchers maintain the view that each State creates its own unique norms of Conflict of Laws pursuing its own policy. This theory is called "particularism" in Conflict of Laws.

Private international law is divided on two major areas:

1. Private international law "sensu stricto" comprising conflict of laws rules which determine the law of which country (state) is applicable to specific relations.
2. Private international law "sensu lato" which comprises private international law "sensu stricto" (conflict of laws rules) and material legal norms which have direct extraterritorial character and are imperatively applied (material norms of law crossing the borders of State) - usually regulations on real property, consumer law, currency control regulations, insurance and banking regulations.

In common law systems, conflict of laws, firstly, is concerned with determining whether the proposed forum has jurisdiction to adjudicate and is the appropriate venue for dealing with the dispute, and, secondly, with determining which of the competing state's laws are to be applied to resolve the dispute. It also deals with the enforcement of foreign judgments.

State Department Adviser for Private International Law

The Office of the Assistant Legal Adviser for Private International Law (L/PIL) at the U.S. Department of State provides information on treaties in force for the United States, other international instruments, and information on current negotiations and projects covering the private international law of such areas as trade and commerce, finance and banking, trusts and estates, family and children matters, and international judicial assistance.

The web site offers links to documents summarizing the current state of negotiations or ratification efforts concerning multilateral private international law conventions. The site also advertises upcoming negotiating sessions, and posts documents setting forth U.S. Government positions, proposals, and studies related to ongoing negotiations. Moreover the site provides information on meetings at which members of the public and private industry can offer their commentary on projects under way.

The web site also offers a convenient location to find links to the web sites maintained by the major intergovernmental organizations concerned with the unification and development of private international law: the U.N. Commission on International Trade Law (UNCITRAL), the Hague Conference on Private International Law, the International Institute for the Unification of Private International Law (UNIDROIT), and the Organization of American States (OAS), as well as national organizations with which the Legal Advisor's office works closely: the National Conference of Commissioners on Uniform State Laws (NCCUSL) and the American Law Institute (ALI). Links to additional bibliographic information on the conventions and related case law are also provided.

The database is organized into four general areas: Trade and Business Transactions Law; Family Law; International Judicial Assistance; and the law governing Wills, Trusts, and Estates. There is also a section with General Resources and Related Sites.  Each major section contains, where applicable, the following information:

PIL Conventions to Which the U.S. is a Party. This section lists multilateral conventions for which the United States has deposited an instrument of ratification, and which are currently in force for the United States.

PIL Conventions -- U.S. Ratification Under Consideration. This section lists multilateral conventions that the United States has not yet ratified, but which are currently under consideration with respect to eventual ratification and passage of domestic implementing legislation.

Other PIL Conventions of Note. This section lists significant multilateral treaties and conventions to which the United States is not a party. These instruments are not currently under consideration for eventual ratification.

Other PIL Instruments and Work in Progress. This section includes the text of other international instruments, such as model laws, agreed principles, and guides. It also contains drafts, background reports, U.S. Government position papers and proposals, and other working documents concerning conventions and other international instruments that are currently under negotiation.

Contact Information

Persons or organizations wishing to comment on this web site or on any document may contact L/PIL by one of the following means:

Fax: (202) 776-8482
Mail: Jeffrey D. Kovar
Assistant Legal Adviser for Private International Law (L/PIL)
Suite 357, South Building
2430 E Street, NW
Washington, DC 20037-2800
E-mail: pildb@his.com ATTN: Rosalia T. Gonzales