Svantesson, Dr Dan Jerker B --- "The relation between Public International Law and Private International Law in the internet context" [2006] NZYbkNZJur 10; (2006) 9 Yearbook of New Zealand Jurisprudence 153

Last Updated: 22 April 2015

The Relation Between Public International Law And

Private International Law In The Internet Context

Dr Dan Jerker B. Svantesson^*

i. intrOdUctiOn

The relation between private international law and public international law has gained little attention. Indeed, in legal education, the two disciplines are treated as two completely separate subjects and, in my experience, comparisons of the two ordinarily fall outside the curriculum. This practice has always been unfortunate, but is becoming untenable in light of Internet technology. When the Australian High Court had to decide whether a Victorian court could claim jurisdiction over a US publishing company based on allegedly defamatory material available online, it was faced with essentially the same dilemma as a French court was when it had to decide whether or not to claim criminal jurisdiction over a US web auctioneer – private international law and public international law face the same problems in the Internet context.

This article makes some observations as to the connections between public international law and private international law. In doing so, particular reference is made to the context of the Internet.

ii. the BackgrOUnd

While they may very well originate in international instruments, rules of private international law (or conflict of laws as the area often is referred to in common law countries) are domestic. They are rules, in one way or another, decided by each State, and are in place to regulate essentially four questions: when a court may exercise jurisdiction over a dispute, when a court may decline to exercise jurisdiction over a dispute falling within its jurisdiction, which country’s law the court should apply in a dispute falling within its jurisdiction, and under what circumstances a court may recognise and/or enforce a foreign judgment.

Public international law is an enormously diverse discipline. In its strictest, and now arguably outdated, sense, it could be said to be concerned with legally binding rules and principles regulating the relationships between sovereign

* Assistant Professor, Faculty of Law Bond University, Queensland, Australia. Research Associate, Cyberspace Law and Policy Centre - Contributing Editor, World Legal Information Institute (www.worldlii.org) - National Rapporteur (Australia), Data Protection Research and Policy Group (The British Institute of International and Comparative Law).

States. Areas ordinarily dealt with within the scope of public international law include, for example, the law of treaties, issues relating to territory, statehood and State responsibility, international dispute settlement and international use of force. However, this fascinating area of law does also include rules regarding when a State’s court can claim jurisdiction (including, prescriptive jurisdiction, adjudicative jurisdiction and enforcement jurisdiction), and it is this potential overlap, or connection, with the rules of private international law that is in focus in this paper.

iii. dO the JUriSdictiOnaL rULeS OF pUBLic internatiOnaL Law

aFFect the rULeS OF private internatiOnaL Law

The first, and perhaps most obvious, objection to acknowledging a connection between public international law and private international law is that civil disputes between two private parties, the core area of private international law, falls outside the scope of public international law. It is, however, submitted that this objection rests upon an oversimplification.

Sovereignty, or ‘jurisdictional sovereignty’ as it sometimes is referred to, is a central feature of each individual State and “pertains to a State’s sovereign right to exercise authority over persons, things and events by use of its domestic law and its State organs.”¹ In illustrating the type of jurisdictional sovereignty that public international law concerns itself with, Hall gives the example of a court of State A convicting a citizen of State B for exceeding the road speed limits set by State A, while driving in State B. By doing so, the learned author argues, “the court in State A would call into question the [jurisdictional] sovereignty of State B to exercise authority over persons, things and events within its own territory by use of domestic law,”² and this would be a scenario to which customary international law would be applicable. Now imagine an example where a court of State A exercises civil jurisdiction over a national of State B, who have engaged in conduct in his home country, causing harm in State A. In such a case, the court of State A is undeniably ‘calling into question the [jurisdictional] sovereignty of State B to exercise authority over persons, things and events within its own territory by use of domestic law,’ much the same as in the example given by Hall. While the court in the latter example may be more justified in doing so, the fact that, in this latter case, the dispute is civil rather than criminal does in no way alter the fact that the court is, in a sense, competing with the sovereignty of State B.

1 Stephen Hall, Public International Law (2003) 209.

2 Ibid.

Following the same line of reasoning, we can compare the task that faced a French court in the Yahoo case, and the task that faced the High Court of Australia in the Gutnick case. In International League Against Racism & Anti- Semitism (LICRA) and the Union of French Jewish Students (UEJF) v. Yahoo! Inc.,³ the defendant was operating a website which, amongst other things, contained an auction service where Nazi memorabilia/junk was frequently on offer.⁴ The website could be described as the Yahoo family’s “flagship”, and in contrast to the country-specific Yahoo sites (e.g. www.yahoo.fr), this site was said to be aimed at the world at large.⁵ When LICRA and UEJF requested that Yahoo remove the Nazi material from the auction service, in accordance with French penal Code,⁶ Yahoo refused. In Dow Jones & Company Inc v Gutnick,⁷ the High Court of Australia had to decide whether a Victorian businessman, Joseph Gutnick, was allowed to sue a US publishing company, Dow Jones

& Company Inc, in a Victorian court over an allegedly defamatory article available in large parts of the world on Dow Jones’ website. Further it was for the High Court to decide whether Victorian law would be applied.

While the Yahoo case related to criminal law and the Gutnick case related to civil law, the tasks the respective court was faced with was essentially the same

– it had to decide whether it was entitled to exercise its powers in respect of a foreign company having engaged in conduct in its home country, causing harm in the State where the court was located. It is undisputed that the rules of private international law are of relevance only in relation to the Gutnick case, and not in relation to the Yahoo case. However, to conclude that the rules of public international law are of relevance only in relation to the Yahoo case, and not the Gutnick case, seems unjustified. It is submitted that the jurisdictional rules of public international law imposes limits, not only in relation to when a State can exercise jurisdiction in relation to criminal matters, but also in relation to when a State can exercise jurisdiction in relation to civil matters. After all, in both cases the court is exercising its powers over a foreigner and thereby competes with the sovereignty of the other state.

Having reached this conclusion, the need for research into what effect the jurisdictional rules of public international law have on private international law has been established. However, such an examination lies outside the scope of this paper.

3. County Court of Paris, Interim Court Order of 20^th of November 2000 (English translation available at: http://www.cdt.org/speech/international/001120yahoofrance.pdf).

4 However, the auction service was not at all specifically designed for the purpose of auction

Nazi material.

5 A notion that is backed by the fact that country-specific advertisement was provided on the

site.

6 Section R645-1.

7 [2002] HCA 56.

iv. dO the rULeS OF private internatiOnaL Law aFFect the

JUriSdictiOnaL rULeS OF pUBLic internatiOnaL Law

One important corollary of the conclusion that the jurisdictional rules of public international law imposes limits also in relation to when a State can exercise jurisdiction in relation to civil matters, is that also State practice relating to jurisdictional claims over civil matters is of relevance in determining the current state of customary international law. However, not all commentators would agree with this conclusion. In discussing the effect public international law has on private international law, Akehurst notes that: “when one examines the practice of States, [...] one finds that States claim jurisdiction over all sorts of cases and parties having no real connection with them and that this practice has seldom if ever given rise to diplomatic protests.”⁸ I am, however, not entirely convinced that the absence of diplomatic protests can be seen, as Akehurst does, as a definite indication of acceptance of dubious jurisdictional claims. In fact, it would seem quite possible that the absence of diplomatic protests simply is a consequence of the concerned States instead choosing not to recognise and enforce foreign judgments based on dubious jurisdictional grounds. Thus, the presence or absence of diplomatic protests may perhaps not at all be the “acid test of limits of jurisdiction in international law.”⁹ Akehurst believes it to be. In conclusion, there does not appear to be any reason why State practice relating to jurisdictional claims over civil matters would not be of relevance in determining the current state of customary international law. Thus, a need for research into what effect such practice has on customary international law relating to jurisdiction is established. However, such an examination lies outside the scope of this paper.

v. pUBLic internatiOnaL Law (in the SenSe OF hUman rightS

Law) keeping private internatiOnaL Law Under cOntrOL

As noted by commentators, “[i]ndividuals have increasingly become subjects of [public] international law in certain fields, as States have concluded agreements codifying and conferring human rights and establishing direct individual responsibility for international crimes.”¹⁰ Public international law is affecting the rules of private international law also in this regard.

The background facts of the Internet defamation dispute between Dow Jones and Joseph Gutnick have already been alluded to above. Interestingly enough, after the High Court of Australia had decided in Mr Gutnick’s favour, allowing him to bring his claim in Victoria under Victorian law, the

8 Michael Akehurst, ‘Jurisdiction in International Law’ (1973) 46 BritYBInt’l 145, 170.

9 Ibid, 176.

10 Hall, supra n 1 at 1.

author of the disputed article, Bill Alpert, petitioned to the United Nation’s Human Rights Committee (UNHRC) in an attempt to have the Australian standpoint declared to be in violation of the International Covenant on Civil and Political Rights (ICCPR). This was possible due to the fact that Australia, in contrast to Mr Alpert’s home country, the United States of America, has signed the First Optional Protocol (OP-1)¹¹ of the ICCPR (which amongst other things guarantees that individuals can petition to the UNHRC to hear alleged violations of the ICCPR). It may here be mentioned that the OP-1 thus does not allow Dow Jones (a business entity) to lodge an application, and an application can only be lodged against the conduct of State parties, in this case Australia (in contrast to e.g. the plaintiff of the disputed action, Mr Gutnick). The UNHRC has not yet dealt with the matter. However, a few things can be said about the likelihood of success.

Article 19(2) of the ICCPR states that: “Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.” Mr Alpert argued that the position taken in the High Court’s decision, on the extraterritorial reach of Australia’s jurisdictional and prescriptive claims violates freedom of expression as established in Article 19 of the ICCPR. On an initial level it is worth noting that “international bodies responsible for scrutinising compliance with human rights standards have increasingly interpreted those obligations [e.g. freedom of expression as provided for under the ICCPR] as also having an extraterritorial scope.”¹² So it would seem that Australia potentially is obligated to respect, for example, freedom of expression of people also outside the Australian territorial scope.¹³

To be successful, Mr Alpert needs to overcome several procedural hurdles. They are not discussed here. However, in the event of the UNHRC hearing Mr Alpert’s substantive arguments, it would seem he would have a chance of being successful. In more detail, for Australia’s conduct (in this case, the judgment of the High Court) to have been in line with the ICCPR, it must have been “provided by law,” restricted freedom of expression in respect of one of the accepted rights and have been necessary. As to the lawfulness, the

11 The Optional Protocol to the International Covenant on Civil and Political Rights (CCPR- OP1).

12 Antonio Cassese, International Law (2001) 361.

13 It seems possible to argue that the phrase “to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant” (emphasis added) in Article 2 of the ICCPR expresses two separate requirements rather than a double requirement. See further, Sarah Joseph et al. The International Covenant on Civil and Political Rights: Cases, materials, and commentary (2000) 58-65; Manfred Novak, U.N. Covenant on Civil and Political Rights (1993) 26ff.

question will be whether the judgment of the High Court is in line with (i.e. provided by) Australian law¹⁴ – the answer must obviously be yes. Further, any restriction of freedom of expression that the High Court’s decision resulted in was in respect of the reputation of another person, and thus meets the second requirement. Turning to the necessity, Mr Alpert could perhaps successfully argue that, the Australia’s jurisdictional claim (the act alleged to violate ICCPR Article 19) was not in proportion, which is a component of the necessity requirement, to the resulting restrictions of freedom of expression. In the context of proportionality, a distinction between the substantive defamation law and the jurisdictional claim is necessary. While it rather easily could be argued that laws protecting individuals from severely defamatory statements are proportionate to the restriction they inevitably place upon freedom of expression, it is much more difficult to say that the global effect of Australia’s wide jurisdictional claims are in proportion to the desire to protect against severely defamatory statements. After all, given the lack of limitations expressed in the High Court’s decision, it would seem that potentially anybody placing information on the Internet could be subject to Australian jurisdiction. Then again, the facts of the Gutnick case were such that the rules of private international law of many, not to say most, countries would have provided for an extraterritorial jurisdictional claim – can the UNHRC rightfully use the ICCPR to prohibit this widespread practice? It must be questioned whether the UNHRC is the appropriate forum for the sort of pure jurisdictional questions involved in deciding whether the Australian jurisdictional claim is in proportion to the defamatory effect of a foreign publication, on one of its citizens. The ICCPR was not designed for, and was never intended for, solving purely jurisdictional disputes. A UN decision to the effect that the UNHRC finds this type of dispute to fall outside its competence would not change anything; it would merely maintain a status quo. If, on the other hand, the UNHRC makes an unqualified decision in Mr Alpert’s favour, that would mean that the ICCPR can be used to impose an unprecedented ban on all extraterritorial jurisdictional claims affecting freedom of expression – in fact, such a decision would potentially mean that all extraterritorial claims in relation to areas such as defamation and contempt would be prohibited. Further, we must ask whether Australia would have been in breach of ICCPR Article 17(2) if the High Court had declined jurisdiction in the Gutnick case. Against that background, it is hoped that, if the UNHRC decides in Mr Alpert’s favour, they clearly qualify, and strictly limit, their decision. A lot is riding on this question and hopefully the UNHRC realises that. In fact, what stands to be decided is nothing less than the very extent to which public international law, in the sense of international human rights law, imposes limits on the rules of private international law relating to jurisdiction and choice of law.

14 Novak, supra n 13 at 351; Joseph et al., supra n 13 at 391.

vi. cOncLUding remarkS

This article has illustrated that, in many ways, there are strong connections between public international law and private international law, and some research areas of future interest have been identified.

It has been submitted that, the fact that the jurisdictional rules of public international law impose limitations on the rules of private international law seems beyond intelligent dispute. Further, it has been concluded that it is clear that State practice relating to jurisdictional claims over civil matters is of relevance in determining the current state of customary international law. In additions, it was demonstrated that public international law, in the form of international human rights law, might have direct effect on rules of private international law.

Unfortunately, the identified connections between public international law and private international law have gained little academic attention and the subjects of public international law and private international law are taught separately with little if any attention being given to their respective effect on each other.