On 7 July 2016, during a visit to Beijing, United Nations (“UN”) the then Secretary-General Ban Ki-moon met with Chinese President Xi Jinping and Foreign Minister Wang Yi. The timing was unfortunate, owing to the imminent ruling of the United Nations Convention on the Law of the Sea (“UNCLOS”) Arbitral Tribunal on the South China Sea, handed down less than a week later.
The politics of nuclear disarmament have, in recent times, simmered as a threat to the international order, enlivened every so often by a new round of talks or a major push for reform. On rare occasions, the issue has spilled into the international legal sphere.
Whilst many dream of claiming their own island slice of paradise, few would have ever done so with the same verve as Alexander Francis Ure. In 1970, Ure claimed the islands of Elizabeth and Middleton Reefs — some 80 miles north of Lord Howe Island — in order to exploit the substantial hydrocarbon deposits he believed to lie beneath.
In many ways, the territoriality principle represents the jurisprudential core of our current thinking on jurisdiction in both public and private international law. However, its flaws and inadequacies are increasingly obvious and its application is particularly problematic in relation to the online environment. Further, there is an increasing appreciation that, in a globalised world, State responsibilities do not end at States’ territorial borders. This is particularly clear in areas such as human rights law, environmental law and space law.
A recent symposium issue of the American Journal of International Law Unbound explores a proposal I have put forward, aimed at reforming our thinking on jurisdiction. Put succinctly, my proposition is that the proper jurisprudential core of jurisdiction in both public and private international law can be summarised in the following principles:
In the absence of an obligation under international law to exercise jurisdiction, a State may only exercise jurisdiction where:
- there is a substantial connection between the matter and the State seeking to exercise jurisdiction;
- the State seeking to exercise jurisdiction has a legitimate interest in the matter; and
- the exercise of jurisdiction is reasonable given the balance between the State’s legitimate interests and other interests.
Although these principles may not have been presented and emphasised in this way before, they are of course not new. Rather they can be found throughout the body of public and private international law.
Using these principles as our point of departure, we should construct more detailed — field of law specific — norms. In other words, these principles are not intended to be directly applied as such by the courts. Instead, they will be important as a tool in the interpretation of the mentioned field of law specific norms to which they should give rise.
Furthermore, the practical consequences of the shift from our current territoriality focus to the proposed framework, if conducted carefully and diligently, will be minimal in noncontroversial areas of jurisdiction. For example, a State would obviously have a substantial connection to, and a legitimate interest in, a traffic offence occurring within its territory. The balancing principle between that State’s legitimate interests and other interests ought not to cause any complications in such instances.
The absolute majority of cases, whether or not they involve the internet, would not augur a conflict between territoriality on the one hand, and a substantial connection and legitimate interest on the other hand. At the same time, the proposed reform would make us much better equipped to address what are now controversial areas. It would allow us to think more creatively rather than just in a mechanically binary fashion. It would, for example, free us from the thinking that a State must always have a possible jurisdictional claim over all aspects of data that happen to be located on a server located within its borders (consider e.g. the ongoing dispute between Microsoft and the US Government).
As part of the symposium issue, three internationally recognised experts — Professors Cedric Ryngaert of Utrecht University, Tom Ginsburg of University of Chicago and Horatia Muir Watt of Sciences-Po Paris — wrote insightful pieces commenting on my proposal.
I will continue working on this issue and would welcome feedback. I can be contacted by email at firstname.lastname@example.org.
Dan Jerker B Svantesson, Professor and Co-Director, Centre for Commercial Law, Faculty of Law, Bond University; Researcher, Swedish Law & Informatics Research Institute, Stockholm University; Australian Research Council Future Fellow. The views expressed herein are those of the author and are not necessarily those of the Australian Research Council.