Public international law and the
conflict of laws
The distinctions between the fields of operation and the sources of public international law on the one hand and private international law (or conflict of laws) on the other have already been briefly mentioned. But further discussion is called for, since some doctrinal writers have put forward arguments saying that in some way private international law is regulated by overriding rules of public international law, that there are rules of the latter bearing on the former or that the latter is a source of the former.
A tribunal which exercised jurisdiction in the field of public international law, and whose authority was paramount in the enunciation of the rules of that system, clearly drew the distinctions between the two disciplines. In the Serbian and Brazilian Loans cases (1929)1 the Permanent Court of International Justice2 said with respect to a dispute between France, on behalf of French holders of Serbian state loans, and Yugoslavia, that
[a]ny contract which is not a contract between states in their capacity as subjects of international law is based on the municipal law of some country. The question as to which this law is forms the subject of that branch of law which is at the present day usually described as private international law or the doctrine of the conflict of laws. The rules thereof may be common to several states and may even be established by international conventions or customs, and in the latter case may possess the character of true international law governing the relations between states. But apart from this, it has to be considered that these rules form part of municipal law.
Nevertheless, some writers,3 sometimes referred to as 'internationalists', have explored the relationship between the two systems further, in an____________________