I read a few articles and opinions recently which promulgate the idea that international law does not ‘exist’. This blog begins by explaining the nature of private international law – the area I have chosen to focus – and the averments of its nonexistence. From there, I hope to forward my own views to counter these arguments.
Private international law (PIL) does not exist in a way that it creates substantive law (excluding EU law). PIL can be established on states contracting legislatively to international conventions or, through the common law of the given state. Generally, both frameworks only establish three things: which court has competent jurisdiction to hear the case; what law shall be applied to the proceedings; and where recognition and enforcement can be sought. Crucially, it is for the domestic courts of each state to decide these matters meaning PIL rests upon ideologies like mutual trust and reciprocity.
In my understanding, those who suggest that PIL does not exist found this view on a few grounds. Firstly, PIL does not create substantive laws. Secondly, no single court or legislature enforces these laws. Thirdly, political or legal consequences are not attached to ‘breaching’ PIL. I shall now take each argument in turn.
1. No substantive law
Today, the idea that the EU, the US and China would agree on substantive law is rather far-fetched. Therefore, PIL does not attempt to merge the law of individual states but creates ways for these legal systems to work together by recognising foreign courts’ jurisdiction, law and judgements. Expecting PIL to create substantive law is as naïve as attempting to create one world religion. This argument removes the law from the realities of the world in which it exists. Furthermore, a cornerstone of PIL is that no states' laws are ‘wrong’, each state develops law based on its unique history and culture. To me, this is reasonable and beneficial. One only has to imagine how fit American law is for Russia.
2. No Single Legislature or court
As PIL has no single legislature or court, many argue this invalidates its position as law. These individuals often contend that PIL also sits uneasily with the idea of state sovereignty. I argue that the law does not require a state to officiate it as law is intrinsic to humanity. Humans all have their own views of right and wrong, justice, equality and freedom. This does not mean that in a state of nature we are savage, but rather, we are very pertinacious beings. Law, in my view, is a purposeful attempt of people to cohabit peacefully and strive for improvement. Therefore, law does not require a state to validate it, instead, it rests upon the natural duty of people to see justice being done. PIL certainly meets those requirements as the improvement of global justice and tolerance is fundamental to its foundation.
3. Lack of Consequences
This final argument suggests that no negative consequences will follow should a domestic court choose to ignore PIL. This, I feel, is easy to refute. While PIL may not establish substantive law, rules of jurisdiction and enforcement are vital issues. For example, if company A is ordered to pay creditors in state X, and all of the company’s assets are held in state Y, paying the creditors will be nearly impossible if recognition and enforcement is not available in state Y. Therefore, PIL does play a vital role in ensuring judicial decisions hold transnational effect. While, of course, a domestic court could ignore rules of PIL and not be directly ‘punished’, consequences may still follow. The state who breaches PIL will be less likely to see their own judgements enforced in the future and could, theoretically, be subject to punishment through sanctions. Furthermore, the validity of law does not rest upon punishment – a rabbit hole I do not have time to discuss here.
Hopefully, this whistle-stop tour of jurisprudence and PIL will convince some readers to change their views on the nature of international law.