Dr Shakuntala Misra National Rehabilitation University, Lucknow

Faculty of Law

(Private International Law)

Assignment on
“Private International Law in relation with
Human Rights”

By :
Shailesh kumar
8th semester
Roll no:164140060

Under the guidance of:

Shambhavi ma’am
 INDEX

S.NO TITLE PA TEACHER’S

. GE SIGN.
NO.
1 Introduction 1
2 What is private international law 2
3 What are human right 2-3
4 Conceptual framework for their 3-4
interaction
5 Relationship between human 4
right and private international
law
6 Effect of human right on private 4-6
international law
7 Conclusion 7
8 Bibliography 8
 Acknowledgement

This project is as result of dedicated effort. It gives me immense pleasure to prepare this project report
on “Private International Law in relation with Human Rights”

I Would like to thank our project guide Shambhavi Ma’am for consultative help and constructive
suggestion on the matter in this project . I would like to thanks our parents and our colleagues who
have helped me in making this project a successful one.

Thanks

INTRODUCTION
“ Private International Law in a spectrum of Human Rights .The private ordering and public
regulation of private international law situations has never been an easy task, and it is one to
which legislatures generally have not paid a lot of attention. However, our ‘open societies’ do no
longer allow for this lack of interest. This is evident from ongoing debates on a range of private
international law matters that have attracted attention beyond the originally somewhat
secluded private international law scholarship and which regularly receive media
attention, especially the corners of Human Rights held by this discipline.

While the political principles dating back to the Treaty of Westphalia established, on the one hand,
the correlation between international law and State law and, on the other, the
sovereignty principle and that of non-interference in other State’s matters, the global society
challenges the whole system to the extent that it is transforming the concept of State. Against this
background read with the principles of Human Rights, the role of private international law
in contemporary society has challenged as well, especially when it comes to legal scenario. The
neutral stance of private international law on governance matters has served the purpose of paying due
respect to the said principle of non-interference in other State’s matters. However, the process of
globalization makes clear that ‘other State’s matters ‘is a concept that is in a restructuring process
itself. The global village generates a market of legal products where individuals and companies may
vote with their feet for the law best suited to their interests. Accordingly, pressure is put on States to
issue such a law subsequent risk of legislating just to please one party disregarding other
members and interests of society. Furthermore, while the interdependence of economies does not
allow States to solely follow their own path, migration brings into their core cultures, religions,
ethnics and, in the end, values that collide with those of the host State, the same is interlinked through
inclusion of Human Rights. This development highlights the simple fact that States are not self-
contained areas, but that they are closely interrelated, for which reason the quest for a better global
governance has to be on their legislative agenda as a primary goal. That brings private international
law and its mediating role to the forefront.

The Private International Law and the Human rights have been considered to exist in a separate
matrix ever since their related researches began to evolve and progress. Human Rights and Private
International Law is the first title to consider and analyze the numerous English private international
law cases discussing human rights concerns arising in the commercial law context, alongside
high profile cases dealing with torture and same sex marriage .The right to a fair trial is central
to the intersection between human rights and private international law, and is considered in depth
along with the right to freedom of expression; the right to respect for private and family life; the right
to marry; the right to property; and the prohibition of discrimination on the ground of religion,
sex, or nationality. Focusing on, though not confined to, the human rights set out in the ECHR, the
work also examines the rights laid down under the EU Charter of Fundamental Rights and other
international human rights instruments. This work portrays the interaction between the rights
guaranteed in the European Convention of Human Rights (ECHR) and private international law
has been analyzed by examining the case law of the European Court of Human Rights (the Court) and
selected national courts. In doing so the work focuses on the impact of the ECHR on the three main
issues of private international law: Jurisdiction, Applicable law and the Recognition and enforcement
of foreign judgments. Examining the impact, both actual and potential, of human rights
concerns on private international law as well as the of the overlooked topic of the
impact of private international law on human rights, this work represents the cumulative
correspondence of these multifaceted disciplines.

What Is Private International Law?

Private international law is a body of rules used to resolve legal disputes between private individuals
who cross international boundaries. Where a dispute is between two parties indifferent countries
with different legal systems, private international law helps a court determine which
country's substantive law will be used to decide the matter. Although it is called 'international law' it
is in fact a body of domestic law, and each country has its own set of private international law. It is
distinguished from public international law, which is the law which governs relations between States
(nations).

Although private international law is a domestic body of law, a lot of work has been done by various
international bodies to try to harmonize private international law around the world. This
harmonization effort is designed to minimize the impact of international legal disputes and in so doing
to promote international trade and commerce.

Private International Law or International Private Law governs the choice of law to apply when
there are conflicts in the domestic law of different countries related to private transactions.
This means that there is a dispute or transaction that involves one of thefollowing:

a) what jurisdiction applies - choice of court, forum selection, renvoi (transfer

ofproceedings)

b) choice of applicable law and

c) Recognition or enforcement of a foreign judgment

In the United States, Canada, and Great Britain it is also known as conflict of laws. National laws are
the primary sources of Private International Law. Private International Law is also embodied in
treaties and conventions, model laws, legal guides, and other instruments that regulate
transactions. Private International Law deals with a variety of topics, such as (international)
contracts, torts (lex loci delicti), family matters, recognition of judgments, child adoption and
abduction, real property (lex rei sitae), intellectual property.

What are Human Rights?

Human rights are moral principles or norms4 that describe certain standards of human
behavior, and are regularly protected as legal rights in municipal and international law. They
are commonly understood as inalienable fundamental rights "to which a person is inherently entitled
simply because she or he is a human being", and which are "inherent in all human beings" regardless
of their nation, location, language, religion, ethnic origin or any other status. They are applicable
everywhere and at every time in the sense of being universal, and they are egalitarian in the
sense of being the same for everyone. They are regarded as requiring empathy and the rule of
law and imposing an obligation on persons to respect the human rights of others, and it is
generally considered that they should not be taken away except as a result of due process based on
specific circumstances; for example, human rights may include freedom from unlawful
imprisonment, torture and execution. The doctrine of human rights has been highly influential within
international law, global and regional institutions. Actions by states and non-governmental
organizations form a basis of public policy worldwide. The idea of human rights suggests that "if
the public discourse of peacetime global society can be said to have a common moral language, it is
that of human rights". The strong claims made by the doctrine of human rights continue to provoke
considerable skepticism and debates about the content, nature and justifications of human rights to
this day. The precise meaning of the term right is controversial and is the subject of
continued philosophical debate; while there is consensus that human rights encompasses a
wide variety of rights such as the right to a fair trial, protection against enslavement, prohibition of
genocide, free speech, or a right to education (including the right to comprehensive sexuality
education, among others), there is disagreement about which of these particular rights should be
included within the general framework of human rights; some thinkers suggest that human
rights should be a minimum requirement to avoid the worst-case abuses, while others see it
as a higher standard. Many of the basic ideas that animated the human rights movement
developed in the aftermath of the Second World War and the events of the Holocaust,
culminating in the adoption of the Universal Declaration of Human Rights in Paris by the
United Nations General Assembly in 1948. Ancient peoples did not have the same modern-day
conception of universal human rights. The true forerunner of human rights discourse was the concept
of natural rights which appeared as part of the medieval natural law tradition that became prominent
during the European Enlightenment with such philosophers as John Locke, Francis Hutcheson
and Jean-Jacques Burlamaqui, and which featured prominently in the political discourse of the
American Revolution and the French Revolution. From this foundation, the modern human rights
arguments emerged over the latter half of the 20thcentury, possibly as a reaction to slavery, torture,
genocide and war crimes, as a realization of inherent human vulnerability and as being a
precondition for the possibility of a just society .

Landscape of Private International Law and Human Rights

In their contemporary manifestation, human rights are a set of individual and collective rights that
have been formally promoted and protected through international and domestic law since
the 1948 Universal Declaration of Human Rights. Arguments, theories, protections, and
violations of such rights, however, have been in existence for much longer, but since the Universal
Declaration, the evolution of their express legal protection has grown rapidly. Today, the numerous
international treaties on human rights promulgated since the Universal Declaration to which an
increasingly large number of nation states are a party define the core content of human
rights that ought to be protected across categories of civil, political, economic, social, and
solidarity rights. In the era of globalization, liberalization and privatization. Natural persons are
moving from one part of the world to other for tourism, for medical treatment, for education and for
employment and other commercial purposes (e.g., Four Modes of GATS). Foreign investment are
made in host countries (through BITs, TRIMs, etc.).Information technology – especially through
social medias, the people all around the world exchanges their ideas; and the culture of different
people has been visualized and exchanged through internet, movies, and other audio- visual medium
across the borders Marriages are taking place irrespective of any nationality. One national adopts a
child of another nation or region (irrespective of race, religion, language, or place of
birth).People of one country buy and sell movables, immovable, shares and security bonds are often
being purchased in foreign companies. If anything goes wrong, then the need for application of PIL
arises. The private international law comes into operation only when a court is faced with a claim
involving foreign element/citizen.

Conceptual framework for their interaction

After Globalization the state barriers are getting more and more porous. The flow of people and
properties across state boundaries have increased manifold. So the possibilities of
unexpected problem for legal solution before Indian Courts have increased. We cannot
therefore adopt mechanically the rules of Private International law evolved by other countries.
Justice Sinha says “Our judges should now feel at liberty to lay down and follow their own rules with
regards to Private International law and in this regard we are in a very fortunate position since we can
adopt the rules laid down in various countries as accord best with our sense of justice equity
and good conscience. We can profit by their experience and avoid their errors”.

Relationship between Private International Law and Human Rights

Both these disciplines share a very cordial relationship with each other. Even though they work in
their separate and distinct domains, still they are interdependent on each other forthe effective and
substantial delivery of justice in Private International cases. On one side, where human rights are
entrusted to every human being in this world and is universal in nature, on the other hand, private
international law differs from country to country but still mandates the application of basic human
rights in the trial proceedings and at the time of recognition and enforcement of foreign law as well as
judgments .Human rights are the part of the procedure adopted by the cases involving
foreign element, such as fair trial, opportunity to be heard, public policy, and various other
aspects. Without these human rights, the decisions given by the judges in such cases will not stand,
even if that court is competent and has jurisdiction. In the cases of marriage, divorce and adoption, the
court traces back to either UDHR or ECHR, for particular rights given to people related to these acts
and then follows up the matter accordingly. The age limit, capacity, financial independence, and
entitlements are some of the factors which are seen intrinsically woven with human rights and have to
be read or applied in consonance with the texts dealing with such human rights globally. The courts
are bound to follow principles of natural justice while trying the cases because without them, the trial
and the judgment both are meaningless. Both these fields overlap in such a way that one is not
possible to implement without the other in this era of globalization where borders are mere vitality
when it comes to trade and mobilization.

Effects of Human Rights on Private International Law

Private International law has previously dealt with the impact of human/ fundamental rights. The
public policy exception has historically been the instrument of private international law
used to deal with the impact of fundamental rights. Therefore, it deserves separate discussion. When
the application of a foreign law or the recognition or enforcement of a foreign judgment would
result in a violation of the fundamental values of the forum, the public policy exception or order
public will be invoked in order to set aside such a repugnant result. The public policy exception
is present in virtually all systems of private international law and can be found in statutes,
codes, and international conventions. It has even been referred to as a general principle of
international law by Judge Lauterpacht in his separate opinion in the Boll case.9He opined that:“In the
sphere of private international law the exception of order of public policy, as a reason for the
exclusion of foreign law in a particular case is generally – or, rather, universally recognized. On the
whole, the result is the same in most countries – so much that the recognition of the part of order
public must be regarded as a general principle of law in the field of private international law.” This
would indicate that the public policy exception may even be invoked in cases in which an
international treaty is silent on the matter. However, this is not to say that the public policy
exception cannot be consciously left out of a treaty. If a public policy exception has been
deliberately omitted in an international treaty, it cannot be invoked. This, incidentally, leaves
unanswered the question of whether it is possible to invoke one of the rights guaranteed in the ECHR
in such a situation. The public policy exception is clearly the safety valve, or the escape hatch, of
private international law. Private international law by its nature leaves room for judicial solutions that
are alien to the forum. Such flexibility is necessary in order to regulate cross-border affairs efficiently
and reasonably. However, this flexibility finds it limits in the public policy exception. The exact
composition of the public policy exception—its content—is necessarily vague, as it comprises the
fundamental values of the forum. This inevitable vagueness is exactly what some regard as a
fundamental problem of public policy. It should also be understood that public policy differs from
country to country, as values differ from country to country. At the start of the twentieth century
public policy was already being referred to as ‘the most evident principle of our science and at the
same time the one which is the most difficult to define and to analyze.’In addition to national
fundamental values, it has generally been accepted in most countries that human rights are
part of the public policy exception. This means that in the Member States of the Council of Europe,
the ECHR may be considered part of public policy which affects PIL in a vast manner. Compared
to the inherent vagueness of the content of public policy, the invocation and working of the
exception is relatively clear. The public policy exception will be invoked if the result of the
application of a foreign law or the recognition or enforcement of a foreign judgment would lead to an
untenable result. It should be noted that the exception is thus invoked against the actual
result of the application of the foreign law; it is not the foreign law in general that is tested, but
rather the result of the application of that law. Public policy should be used only
under exceptional circumstances, hence the frequent use of the expression of the public policy
exception. It has generally been accepted that it should not be used every time the
application of a foreign law would lead to an undesirable result, but only in cases in which such
application would lead to a truly unacceptable result. This cautious use of the public policy exception
is, in international conventions, often emphasized by the insertion of the expression ‘manifestly in
compatible’. An important characteristic of the public policy exception is its relative character. This
naturally stems from the goals of private international law, which include the respect for other legal
cultures. This relative character is manifested by the fact that it is generally observed that the
operation of the public policy exception is related to the proximity between the issue and
the forum. If a case has little or no connection to the forum, the public policy exception cannot be
invoked—with the exception of certain extreme cases, in which the applicable law is so
fundamentally against the values of the forum that the application of that law would never be
permitted in the forum. If a case has more connections or links with the forum, the threshold
for the application of the public policy exception is lower. This thus entails that if a case has a closer
connection to the forum, because, for example, the parties reside in the forum, then the public policy
exception is more likely to be successfully invoked than in the event of the parties residing abroad.
The following are the areas related to Human Rights which influence PIL drastically :

 Right to Fair Trial

 Right to be heard
 Freedom of Expression
 Right to respect for private life
 Right to marry/ International marriages
 Prohibition on Discrimination
 Right to Property/ Cross border property disputes
 Sexual and reproductive Rights
It is because maximum cases covered by the Private International laws of various countries comprise
of these rights given by UDHR and ECHR. These rights are mandatory in nature.PIL too has a
considerable amount of influence and affect over Human rights. Following are the ways through
which it can happen :

 It helps in the transnational development of Human Rights;

 It influences the way human rights are implemented in different countries;
 It helps in the progression of such rights which have an effective sync with the current legal
and social mechanisms;
 It helps in the choice of an appropriate application mechanism for human rights, which
may result out of legal texts or judicial scrutiny;
 It helps in finding out the loopholes and possible conflicts in the application of human rights
across borders and in transnational cases.

The implementation and harmonization of this relationship is not that smooth and swift. It requires
a more deeper approach and broader perspective to carry out this relationship
harmoniously between human rights and PIL. There are various kinds of international and domestic
issues which play the role of an obstacle in maintaining the pace of legal application of their
interdependence successfully. The legal setup of each country is different and so is the understanding
of the Human Rights in each country. So, when it comes to the practical part, most legal schemas fail
because of multi-perceptive legal, social, political and economic systems of the states. This factor
causes an unnecessary and inevitable friction between the two disciplines. The following are the
difficulties which come out while applying PIL and Human Rights in the same matrix

a) The difference in the legal systems;

b) Variety in the theories of law and understanding of human rights across borders;

c) Different approaches applied by the judiciary of each country;

d) Various consolidated legal barriers arising out of codes;

e) Non-acknowledgement or non-acceptable way of dealing of certain kinds of disputes by lex fori;

f) Countries which are not the signatories of UDHR or ECHR may find problems in implementing
their PIL coupled with Human Right principles of universal acceptance;

g) The application mode gap between the Private International Laws of various countries creates a
hurdle in the uniform acceptance and application of human rights and the obstacles become severe
when the dispute is between nationals of civil and common law countries and there is non-consonance
between the human right pact they follow, if it is a European country, then they’ll follow ECHR and if
it’s not, then UDHR will come into play.

However, there are a lot of difficulties in tracing the visible path to the success but they can be
overcome by the judicial examination of legal precepts’. The idea of human rights being applied in
PIL cases is considered to be a modernized version of the doctrine of natural rights in Western
thought, which was developed by Hobbes and Locke. Though one can argue to establish some
close connection between the natural rights and the PIL procedural doctrines, it was the natural law,
and not the natural rights doctrine, which dominated Western thinking almost until the middle of
seventeenth century. As far as India is concerned, Indian courts follow UDHR along with PIL
proceedings and it has a good record of solving cases with humanistic approach and legal mode
together. In India, even the constitution provides for certain human rights in the fundamental rights
and other sections themselves to make our law self sufficient and compliant to the UDHR.

CONCLUSION

 Why is it important for Private International Law and Human Rights to share a positive and
cordial relationship at global platform?
 They need to maintain and share a positive and cordial relationship with each
other because of their inevitable interdependence for carrying on trials, to synchronize
with other associated codes, to reduce conflicts and multiplicity of cases.

 What is the role of the judges, of both domestic and international law forums, in the
application of these two disciplines together?
 The judges play the role of facilitators, interpretations and mediators during
the case disposal and application of law with human rights in persistence.

 What are the difficulties that are faced by the judges in such application?
 The irregularities in laws of various countries, multiple Human Rights code based on
continent, difference in legal and interpretative approach, and variety of judicial scrutiny
across borders are some of the major difficulties faced by the judges.

 Do regional and other sociological differences cause hindrance in their harmonizing

settlement?
 Yes, regional and sociological differences are sources of obstacles in such case because the
law and its implementation in that country highly depend on these factors.

 What are the mutual authorities that govern their relationship and how far they are
successful?
 There are no such universal mutual authorities which govern these disputes
directly, instead the PIL of each country is a role player here. However, bodies and codes
like ICANN, UDHR, ECHR, etc are of great importance as they control the global working
and harmonization of the said fields to a certain extent. But all this is subject to the assentof
the respective states.

BIBLIOGRAPHY
 http://shodhganga.inflibnet.ac.in/bitstream/10603/1349/10/10_chapter5.pdf
 https://pdfs.semanticscholar.org/5495/6387674aede72aa9e1f3a1eaf055de937129.pdf