An Analysis of Public & Private International Law in Maritime Law

This essay examines the intersection of maritime law with public and private international law, highlighting their distinct features and interconnectedness. Public international law, governing relations between nations, influences maritime law through customs, treaties, and conventions, particularly in areas like state jurisdiction and the law of the seas. Private international law, or conflict of laws, addresses legal disputes involving foreign elements, often arising in maritime transactions due to the diverse nationalities of involved parties. The essay discusses how courts resolve conflicts of law by applying either the law of the forum (lex fori) or the law of the transaction's location (lex loci). Ultimately, the analysis emphasizes the crucial role of both public and private international law in shaping and governing the complex landscape of maritime law, ensuring a framework for resolving disputes and maintaining international maritime order. Desklib offers a platform to explore this essay further, providing access to study tools and related resources for students.

Running head: MARITIME LAW
Maritime Law
Name of the student
Name of the university
Author note

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Abstract
Just like domestic law governs the rules, regulations and relationship between the citizens in a
domestic jurisdiction, international law governs the rules, regulations and relationship between
different states and their citizens. International law can be divided into both public and private
international law. The paper discusses the concept of public international law and conflict of
laws (private international law) in the light of Maritime law. Maritime law is derived from both
public international land and private international law and thus is related to them. The paper also
provides the various features of public international law and private international law.

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Table of Contents
Introduction......................................................................................................................................2
Public International Law..................................................................................................................2
Conflict of laws................................................................................................................................4
Conclusion.......................................................................................................................................5
References........................................................................................................................................7

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Introduction
International law can be divided into both public and private international law. The
purpose of this paper is to discuss the concept of public international law and conflict of laws
(private international law) in the light of Maritime law. Maritime law is derived from both public
international land and private international law and thus is related to them. In addition Maritime
law is different from other forms of law. The paper discusses the features of both public and
private international law.
Public International Law
Public International law is define as a set of provisions which are generally accepted and
considered as binding with respect to the relationship between nations and states. Through this
form of law a stable and organized framework with respect to international relation is
established. Public international law is primarily applicable towards governing the relationship
between states rather than individuals (Malanczuk 1997). Public international law is primarily
based on consent governance. This signifies that the states do not have an obligation to
mandatorily comply with the provisions of this law unless they have expressly consented to the
compliance. This is because all states are sovereign and imposing and law on them would
compromise with the situation. There are few aspects of international law which is not consent
based and the states have mandatory obligations to comply with them, these include peremptory
norms and customary international law. Maritime law as stated by Hill and Kulkarni (2017) is a
bit different from other forms of law. As stated by Maraist et al. (2016) along with domestic
statues and case laws various aspects of maritime law are also taken from public international
law (White 2014). International law is derived from customs, treaties and international

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conventions. Through public international law the criteria and framework for the purpose of
indentifying states in from of the primary factor in international legal system is set out.
The few areas with which public international law deals in the light of state presupposes
jurisdiction and control over territory are state immunity, acquisition of territory and the
responsibility the states have towards each other legally. Thus in the same way as maritime law
is derived from private international law the application of public international law working of
maritime law is also of the same significance. There are multiple sectors which public
international law governs such as international human rights law, international trade law,
international environment law, international humanitarian law, international criminal law and
law of the seas. There is a relationship between international law and domestic law which is to be
viewed as consisting of symbiosis and cooperation. In this situation doctrines and concepts
which have been created by domestic law has to be identified by international law as well and in
the same way the provisions of the international law has to be applied in domestic law as well.
Thus domestic law decision has to be taken into consideration by the international courts. In
addition national domestic law is also derived from the provision of international law. Domestic
law is at times framed in a manner which would ensure compliance with public international law
provision. Thus in the situation where there is a clear relationship between public international
law and domestic law and were maritime law is also directly related to private international law,
there is a clear relationship between public international law and maritime law (Maraist et al.
2016).
The features of public international law are as follows
 It is the law which governs relationship between states rather than individuals

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 Its purpose is to ensure the immunity of states, peace and govern the responsibilities
which states have towards one another
 It sets out a legal framework to address a situation of dispute between states
 The law is not binding unless it has been consented to by the states unless it is a custom
or peremptory norms
Conflict of laws
The term conflict of law and private international law are the terms which are used in an
interchangeable manner which govern relationship across various legal jurisdictions between
individuals and at times other organizations. Conflict of law can also be defined as a set of
procedural law provisions which are used to identify the legal system and the jurisdiction which
would be applicable for the purpose of governing the dispute (Fawcett & Carruthers 2008).
Conflict of law is primarily applicable in situation where the dispute consists of a foreign
element. Thus conflict of law or private international law can be stated to be a branch of
international law and international interstate law by which all legal proceedings in relation to a
foreign law factor is controlled. The situation of conflict of law arises from a state where the
final result of a legal issue is depending upon the law which is to be made applicable and the
manner in which the common law courts resolves the conflict arising between the laws.
However, it has to be noted that private international law is also a part of domestic law which is
different from country to country (Mortensen, Garnett & Keyes 2015).
The existence of various legal rules which are often subjected to variance makes the
concept of conflict of laws highly important. When courts face an issue in relation to the conflict
of laws they have two choices. The court can apply to the dispute the law of forum (lex fori)

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which is mostly done when what law is to be applied is a procedural question, or the court has
the option of applying the law of site of the transaction which means the occurrence through
which the litigation is initiated (Lex Loci). When the matter is substantive this is option is mostly
selected by the courts as the governing law. In case of maritime transactions mostly the parties
and companies who are involved belong to a different country and thus the conflict of law
situation is often brought into the context. Thus public international law deals with states and
private international law deals with individuals and artificial persons. However public
international law is indirectly applicable on individuals and artificial persons as well. Public
international law is consistent and is same for all those who accept it. However in relation to
private international law a conflict of law situation takes place and application of law is done
based on the above discussed rules. A person can take an action in relation to a maritime dispute
in “rem or in personam” which means in public or in private. The claim can be in relation to the
overall law which affects the maritime community or only the person who has been affected
because of an issue (Cremean 2015).
Conclusion
Thus from the above discussion it is clear that Maritime law has a clear relationship with
Public international law and private international law. The states do not have an obligation to
mandatorily comply with the provisions of this law unless they have expressly consented to the
compliance. This is because all states are sovereign and imposing and law on them would
compromise with the situation other than laws which arise from customs. The existence of
various legal rules which are often subjected to variance makes the concept of conflict of laws
highly important. When courts face an issue in relation to the conflict of laws they have two

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choices which are to apply to the dispute the law of forum (lex fori), or the court has the option
of applying the law of site of the transaction (Lex Loci).

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References
Cremean, DJ 2015, Admiralty jurisdiction law and practice: Australia, New Zealand, Singapore,
Hong Kong, and Malaysia, 4th edn, Federation Press, New South Wales, pp. 20–28.
Fawcett, J & Carruthers, JM 2008, Cheshire, North & Fawcett private international law, 14th
edn, Oxford University Press, Oxford, pp. 3–10 & 16–18.
Hill, C. and Kulkarni, Y., 2017. Maritime law. Taylor & Francis.
Maraist, F.L., Galligan Jr, T.C., Maraist, C.M. and Sutherland, D.A., 2016. Cases and Materials
on Maritime Law. West Academic.
Mortensen R, Garnett R & Keyes M 2015, Private international law in Australia, 3rd edn,
LexisNexis Butterworths, Chatswood, Australia, pp. 47-71, 89-107 & 415-429
White, M 2014, Australian maritime law, 3rd edn, Federation Press, New South Wales, pp. 1–40