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.