Private International Law Draft

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Godhuli Nanda Godhuli Nanda∗∗

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ABSTRACTBSTRACT

 Although

 Although public public international law international law is is usually defined usually defined as as the the body body of of norms norms binding binding uponupon civilized States in their relations with one another, a more accurate definition would  civilized States in their relations with one another, a more accurate definition would  include all norms having their source in the international community of States rather  include all norms having their source in the international community of States rather  than in individual States. While at first blush a consideration of the relationship of  than in individual States. While at first blush a consideration of the relationship of   private

 private international international law law to to this this body body of of norms norms may may seem seem of of purely purely theoretical theoretical and and  abstract interest, it is in actuality the starting point in determining the framework within abstract interest, it is in actuality the starting point in determining the framework within which individual States can develop rules of private international law responsive to the which individual States can develop rules of private international law responsive to the needs of the international community. The relation between private international law and  needs of the international community. The relation between private international law and   public

 public international international law law has has gained gained little little attention. attention. Indeed, Indeed, in in legal legal education, education, the the twotwo dis

discipciplinlines es arare e trtreateated ed as as two two comcomplepleteltely y sepseparaarate te subsubecects ts and, and, in in my my e!pe!perieriencence,e, comparisons of the two ordinarily fall outside the curriculum. This practice has always comparisons of the two ordinarily fall outside the curriculum. This practice has always been unfortunate, but is becoming

been unfortunate, but is becoming untenable in light of Internet technology.untenable in light of Internet technology.

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

of the Internet.

I.

I. TTRACINGRACING THETHE G GENESISENESIS

Whi

While le thethey y may may ververy y welwell l orioriginginate ate in in intinternernatiational onal insinstrutrumenments, ts, rulrules es of of priprivatvatee international law (or conflict of laws as the area often is referred to in common law 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 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 e!ercise "urisdiction are in place to regulate essentially four questions when a court may e!ercise "urisdiction over a dispute, when a court may decline to e!ercise "urisdiction over a dispute falling over a dispute, when a court may decline to e!ercise "urisdiction over a dispute falling  # # _{The author is a $ The author is a $}thth_{%ear &.'..& (ons). Student from *IIT aw School, &hubaneswar (+disha) and can%ear &.'..& (ons). Student from *IIT aw School, &hubaneswar (+disha) and can}

 be reached at

 be reached at godhuli.nandagmail.comgodhuli.nandagmail.com..

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-within its "urisdiction, which countrys law the court should apply in a dispute falling within its "urisdiction, and under what circumstances a court may recognise and/or  enforce a foreign "udgment.

-0ublic 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 States.1 _{'reas ordinarily dealt}

with within the scope of public international law include, for e!ample, the law of treaties, issues relating to territory, statehood and State responsibility, international dispute settlement and international use of force. owever, this fascinating area of law does also include rules regarding when a States court can claim "urisdiction (including,  prescriptive "urisdiction, ad"udicative "urisdiction and enforcement "urisdiction), and it is this potential overlap, or connection, with the rules of private international law that is in focus in this paper.

II. THE SCOPE OF PRIVATE INTERNATIONAL LAW

0rivate international law in its broad sense does indeed involve both conflicts of law and the unification of substantive law. The issues addressed affect a broad spectrum of legal concerns. They include such diverse areas as child abduction, wills and trusts, sales con2 tracts, negotiable instruments, the enforcement of foreign "udgments, and the ta3ing of  evidence abroad. These concerns are not limited to attorneys with an international  practice.4

0rivate international law has come to mean both the development of multilateral international agreements (conventions) to set out rules concerning applicable law, as well as efforts by conventions or other means to unify and harmoni5e substantive law.$

&y private international law is meant the body of norms applied in international6 _{cases to}

determine the "udicial "urisdiction of a State, the choice of the particular system or 

1

7+89I7T +9 'WS '8: 0;I<'T= I8T=;8'TI+8' 'W, >agdalene Schoch, 'merican Society of 

International aw at Its 'nnual >eeting(-?1-2-?@?), <ol. 44 ('0;I 1A21?, -?4?), pp. B-2?$.

1 _{7heshire, 0rivate International aw (1d ed., -?4B), pp. @, AC cf. Dut5willer.}

4 _{Enited States 0articipation in International Enification of 0rivate aw, -? IntFl aw. 6G6 (-?B6)}

Hhereinafter 0fund (-?B6)C 0fund, International Enification of 0rivate aw ' ;eport on Enited States 0articipation, -?B62B@, 1G IntFl aw. @14 (-?B@)C 0fund, International Enification of 0rivate aw ' ;eport on E.S. 0articipation 2 -?B@2BA 1- IntFl aw. -1$6 (-?BA).

4

The ;elationship of 0rivate International aw to 0ublic International aw, John ;. Stevenson, 7olumbia aw ;eview, <ol. 61, 8o. 6 (>ay, -?61), pp. 6@-26BB.

systems of law to be applied in reaching a "udicial decision, and the effect to be given a foreign "udgment. This definition does not differ greatly from the definitions postulated  by many writers on private international law.@ _{There is considerable disagreement,}

however, as to the matters which can be brought within this or similar definitions. >ost continental@ and some 'nglo2'merican writers include the rules of a particular State governing the acquisition and loss of nationality. Such rules, it is true, are important in deciding a private international law case in a "urisdiction where personal law is governed  by a personFs nationality. &ut nationality, in contrast to a Klocali5ingK factor li3e domicile,

is determined without regard to the policy considerations of private international law.A

III. DO THE JURISDICTIONAL R ULES OF PUBLIC INTERNATIONAL LAW AFFECT THE R ULES OF PRIVATE INTERNATIONAL LAW

The first, and perhaps most obvious, ob"ection to ac3nowledging 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 ob"ection rests upon an oversimplification.

Sovereignty, or L"urisdictional sovereignty as it sometimes is referred to, is a central feature of each individual State and Mpertains to a States sovereign right to e!ercise authority over persons, things and events by use of its domestic law and its State organsNB_{. In illustrating the type of "urisdictional sovereignty that public international law}

concerns itself with, all gives the e!ample of a court of State ' convicting a citi5en of  State & for e!ceeding the road speed limits set by State ', while driving in State &. &y doing so, the learned author argues, Mthe court in State ' would call into question the H"urisdictional sovereignty of State & to e!ercise authority over persons, things and events within its own territory by use of domestic lawN?_{, and this would be a scenario to}

6_{KInternationalK is used in a broad sense to include all cases in which some important element is foreign to}

the forum, as, for e!ample, the nationality of one of the parties, the place of ma3ing a contract, or the situs of property.

@

0I=T,T;'IT' 0;'TIOE= := :;+IT I8T=;8'TI+8' 0;I<' -AA21B$ (-?14).

A

:I7=%,7+89I7T +9 'WS -@$2?- (1d ed. -?GB).

B _{Stephen all, "ublic International #aw (e!is8e!is &utterworthsC 7hatswood, 1GG4), at 1G?.} ? _{Stephen all, "ublic International #aw (e!is8e!is &utterworthsC 7hatswood, 1GG4), at 1G?.}

which customary international law would be applicable. 8ow imagine an e!ample where a court of State ' e!ercises civil "urisdiction over a national of State &, who have engaged in conduct in his home country, causing harm in State '. In such a case, the court of State ' is undeniably Lcalling into question the H"urisdictional sovereignty of  State & to e!ercise authority over persons, things and events within its own territory by use of domestic law, much the same as in the e!ample given by all. While the court in the latter e!ample may be more "ustified 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 &.

9ollowing the same line of reasoning, we can compare the tas3 that faced a 9rench court in the $ahoo case, and the tas3 that faced the igh 7ourt of 'ustralia in the %utnick case. In  International #eague Against &acism ' Anti(Semitism )#I*&A+ and the nion of   -rench ewish Students )/-+ v. $ahoo0 Inc.-G_{, the defendant was operating a website}

which, amongst other things, contained an auction service where 8a5i memorabilia/"un3  was frequently on offer.-- _{The website could be described as the %ahoo familys}

MflagshipN, and in contrast to the country2specific %ahoo sites (e.g. www.yahoo.fr), this site was said to be aimed at the world at large.-1 _{When I7;' and E=J9 requested that}

%ahoo remove the 8a5i material from the auction service, in accordance with 9rench  penal 7ode-4_{, %ahoo refused. In 1ow ones ' *ompany Inc v %utnick} -$_{, the igh 7ourt} of 'ustralia had to decide whether a <ictorian businessman, Joseph Dutnic3, was allowed to sue a ES publishing company, :ow Jones P 7ompany Inc, in a <ictorian court over an allegedly defamatory article available in large parts of the world on :ow Jones website. 9urther it was for the igh 7ourt to decide whether <ictorian law would be applied.

While the $ahoo case related to criminal law and the %utnick  case related to civil law, the tas3s the respective court was faced with was essentially the same Q it had to decide whether it was entitled to e!ercise 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 -G _{7ounty 7ourt of 0aris, interim court order of 1G}th _{of 8ovember 1GGG (=nglish translation available at}

http//www.cdt.org/speech/international/GG--1Gyahoofrance.pdf  ).

-- _{owever, the auction service was not at all specifically designed for the purpose of auction 8a5i material.} -1 _{' notion bac3ed by the fact that country2specific advertisement was provided on the site.}

-4 _{Section ;@$62-.}

located. It is undisputed that the rules of private international law are of relevance only in relation to the %utnick  case, and not in relation to the $ahoo case. owever, to conclude that the rules of public international law are of relevance only in relation to the $ahoo case, and not the %utnick  case, seems un"ustified. It is submitted that the "urisdictional rules of public international law imposes limits, not only in relation to when a State can e!ercise "urisdiction in relation to criminal matters, but also in relation to when a State can e!ercise "urisdiction in relation to civil matters. 'fter all, in both cases the court is e!ercising its powers over a foreigner and thereby competes with the sovereignty of the other state.

I<. DO THE R ULES OF PRIVATE INTERNATIONAL LAW AFFECT THE

JURISDICTIONAL R ULES OF PUBLIC INTERNATIONAL LAW

+ne important corollary of the conclusion that the "urisdictional rules of public international law imposes limits also in relation to when a State can e!ercise "urisdiction in relation to civil matters, is that also State practice relating to "urisdictional claims over  civil matters is of relevance in determining the current state of customary international law. owever, not all commentators would agree with this conclusion. In discussing the effect public international law has on private international law, '3ehurst notes that Mwhen one e!amines the practice of States, HR one finds that States claim "urisdiction 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.N-6  _{I am, however, not}

entirely convinced that the absence of diplomatic protests can be seen, as '3ehurst does, as a definite indication of acceptance of dubious "urisdictional 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 "udgments based on dubious "urisdictional grounds. Thus, the presence or absence of diplomatic protests may perhaps not at all be the Macid test of limits of "urisdiction in international lawN-@

'3ehurst believes it to be. In conclusion, there does not appear to be any reason why State practice relating to "urisdictional claims over civil matters would not be of  relevance in determining the current state of customary international law. Thus, a need for  -6_{>ichael '3ehurst, urisdiction in International #aw, $@ &rit. %.&. Int -$6 (-?A4), at -AG.}

-@_{>ichael '3ehurst, urisdiction in International #aw, $@ &rit. %.&. Int -$6 (-?A4), at -A@.}

research into what effect such practice has on customary international law relating to  "urisdiction is established. owever, such an e!amination lies outside the scope of this  paper.

<. PUBLIC INTERNATIONAL LAW (IN THE SENSE OF HUMAN R IGHTS LAW)

K EEPING PRIVATE INTERNATIONAL LAW UNDER  CONTROL

's noted by commentators, Mindividuals have increasingly become sub"ects of Hpublic international law in certain fields, as States have concluded agreements codifying and conferring human rights and establishing direct individual responsibility for international crimesN-A_{. 0ublic international law is affecting the rules of private international law also}

in this regard.

The bac3ground facts of the Internet defamation dispute between :ow Jones and Joseph Dutnic3 have already been alluded to above. Interestingly enough, after the igh 7ourt of  'ustralia had decided in >r Dutnic3s favour, allowing him to bring his claim in <ictoria under <ictorian law, the author of the disputed article, &ill 'lpert, petitioned to the nited 2ation3s 4uman &ights *ommittee (E8;7) in an attempt to have the 'ustralian standpoint declared to be in violation of the  International *ovenant on *ivil and   "olitical &ights (I770;). This was possible due to the fact that 'ustralia, in contrast to

>r 'lperts home country, the Enited States of 'merica, has signed the 9irst +ptional 0rotocol (+02-)-B _{of the I770; (which amongst other things guarantees that individuals}

can petition to the E8;7 to hear alleged violations of the I770;). It may here be mentioned that the +02- thus does not allow :ow Jones (a business entity) to lodge an application, and an application can only be lodged against the conduct of State parties, in this case 'ustralia (in contrast to e.g. the plaintiff of the disputed action, >r Dutnic3). The E8;7 has not yet dealt with the matter. owever, a few things can be said about the li3elihood of success.

'rticle -?(1) of the I770; states that M=veryone shall have the right to freedom of  e!pressionC this right shall include freedom to see3, receive and impart information and ideas of all 3inds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.N. >r 'lpert argued that the position -A _{Stephen all, "ublic International #aw (e!is8e!is &utterworthsC 7hatswood, 1GG4), at -.}

ta3en in the igh 7ourts decision, on the e!traterritorial reach of 'ustralias  "urisdictional and prescriptive claims violates freedom of e!pression as established in 'rticle -? of the I770;. +n an initial level it is worth noting that Minternational bodies responsible for scrutinising compliance with human rights standards have increasingly interpreted those obligations He.g. freedom of e!pression as provided for under the I770; as also having an e!traterritorial scope.N-?  _{So it would seem that 'ustralia}

 potentially is obligated to respect, for e!ample, freedom of e!pression of people also outside the 'ustralian territorial scope.1G

To be successful, >r 'lpert needs to overcome several procedural hurdles. They are not discussed here. owever, in the event of the E8;7 hearing >r 'lperts substantive arguments, it would seem he would have a chance of being successful. In more detail, for  'ustralias conduct (in this case, the "udgment of the igh 7ourt) to have been in line with the I770;, it must have been Mprovided by lawN, restricted freedom of e!pression in respect of one of the accepted rights and have been necessary. 's to the lawfulness, the question will be whether the "udgment of the igh 7ourt is in line with (i.e. provided by) 'ustralian law1- _{Q the answer must obviously be yes. 9urther, any restriction of freedom}

of e!pression that the igh 7ourts decision resulted in was in respect of the reputation of  another person, and thus meets the second requirement. Turning to the necessity, >r  'lpert could perhaps successfully argue that, the 'ustralias "urisdictional claim (the act alleged to violate I770; 'rticle -?) was not in proportion, which is a component of the necessity requirement, to the resulting restrictions of freedom of e!pression. In the conte!t of proportionality, a distinction between the substantive defamation law and the  "urisdictional 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 e!pression, it is much more difficult to

-? _{'ntonio 7assese, International #aw (+!ford +!ford Eniversity 0ress, 1GG-), at 4@-.}

1G _{It seems possible to argue that the phrase Mto respect and to ensure to all individuals within its territory}

and subect to its urisdiction the rights recogni5ed in the present 7ovenantN (emphasis added) in 'rticle 1 of the I770; e!presses two separate requirements rather than a double requirement. See further Sarah Joseph et al. The International *ovenant on *ivil and "olitical &ights5 *ases, materials, and commentary (+!ford +!ford Eniversity 0ress, 1GGG), at 6B2@6C >anfred 8ova3, .2. *ovenant on *ivil and "olitical   &ights (StrasbourgC 8.0. =ngel, 0ublisherC -??4), at 1@ff.

1- >anfred 8ova3, .2. *ovenant on *ivuil and "olitical &ights (StrasbourgC 8.0. =ngel, 0ublisherC -??4), at 46-C Sarah Joseph et al. The International *ovenant on *ivil and "olitical &ights5 *ases, materials, and  commentary (+!ford Eniversity 0ressC +!fordC 1GGG), at 4?-.

say that the global effect of 'ustralias wide "urisdictional claims are in proportion to the desire to protect against severely defamatory statements.

'fter all, given the lac3 of limitations e!pressed in the igh 7ourts decision, it would seem that potentially anybody placing information on the Internet could be sub"ect to 'ustralian "urisdiction. Then again, the facts of the %utnick  case were such that the rules of private international law of many, not to say most, countries would have provided for  an e!traterritorial "urisdictional claim Q can the E8;7 rightfully use the I770; to  prohibit this widespread practice It must be questioned whether the E8;7 is the

appropriate forum for the sort of pure "urisdictional questions involved in deciding whether the 'ustralian "urisdictional claim is in proportion to the defamatory effect of a foreign publication, on one of its citi5ens. The I770; was not designed for, and was never intended for, solving purely "urisdictional disputes.

' E8 decision to the effect that the E8;7 finds this type of dispute to fall outside its competence would not change anythingC it would merely maintain a status 6uo. If, on the other hand, the E8;7 ma3es an unqualified decision in >r 'lperts favour, that would mean that the I770; can be used to impose an unprecedented ban on all e!traterritorial  "urisdictional claims affecting freedom of e!pression Q in fact, such a decision would  potentially mean that all e!traterritorial claims in relation to areas such as defamation and

contempt would be prohibited. 9urther, we must as3 whether 'ustralia would have been in breach of I770; 'rticle -A(1) if the igh 7ourt had declined "urisdiction in the %utnick  case. 'gainst that bac3ground, it is hoped that, if the E8;7 decides in >r  'lperts favour, they clearly qualify, and strictly limit, their decision. ' lot is riding on this question and hopefully the E8;7 realises that. In fact, what stands to be decided is nothing less than the very e!tent to which public international law, in the sense of  international human rights law, imposes limits on the rules of private international law relating to "urisdiction and choice of law.

<I. CONCLUSION

This paper 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 "urisdictional rules of public international law impose limitations on the rules of private international law seems beyond intelligent dispute. 9urther, it has been concluded that it is clear that State practice relating to  "urisdictional 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.

Enfortunately, the identified connections between public international law and private international law have gained little academic attention and the sub"ects 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.

The answer to the question of the relationship between private and public international law can be neither simple nor definitive. 7hanges in the scope of public international law, such as its increasing concern with the individual irrespective of his nationality, will effect important changes in the e!tent to which private international law is governed by  public international law. It may be well, however, at this point to summari5e the conclusions herein reached as to the present relationship between the two fields The norms of private international law applied by international tribunals are norms of public international law, not of municipal law.

The relationship is one of identity. The relationship to public international law of the  private international law norms applied in municipal courts is more comple!. Where no

national of a "urisdiction other than the forum is a party, public international law today is silent as to the content of the private international law norms ap2plied. Where a foreign national is a party, the degree of specificity of guidance varies. In some cases the content of the norm of private international law applied is identical with that of a norm of public international law. This can be viewed either as the direct application of a norm of public international law by the municipal court or as the application of a norm of municipal law identical in content with a norm of public international law. 'ccording to the view adopted, the relationship between private and public inter2national law is one of identity or dependency. Where, in a case to which a foreign nation is a party, public international law does not specify the e!act content of the norm of private international law applied, it

at least sets limits of reasonableness. The norm of private international law applied is a norm of municipal law and the relationship to public international law is one of  dependency.