Zdroje a analogie soukromého práva v mezinárodním právu veřejném

Public international law seems to be, prima facie, a part of public law in a common meaning of the word. The present contribution, however, seeks to call into question this widely accepted misconception. It starts from the definition of the very concept of international law as the Law of Nations, which is different from national law, both public and private. The term “Public International Law” is meaningful only in contradiction to the notion of “Private International Law”, dealing with the conflicts of laws (I.). Surprisingly, public international law (PIL) has some common features with the systems of private law. PIL is a horizontal system based on the equality of subjects (i.e. states). From the historical perspective, PIL has been younger than national law and therefore influenced by the latter, in particular through the general principles of law recognized by civilized nations, having the origin in private law. The main sources of PIL (treaty and custom) are very different from the sources of national public law, but have some analogies in private law. Private law origins and analogies are also pertinent in the field of codification of PIL, State succession and the responsibility of States (II.). The last part deals with one of the areas of coexistence or concurrent regulation of PIL and private law, namely that of international investments and loans, where one party to a contract is a sovereign state, while the other party is a private person. The example of one arbitration case before the International Centre for Settlement of Investment Disputes shows a complex nature of such transactions and disputes. The law governing the international (State) contracts may be, according to the choice of law clauses, a combination of PIL and national private law (III.).