Private International Law Draft

PRIVATE  INTERNATIONAL L AW P ROJECT  D RAFT

ELATIONSHIP UNDERSTANDING THE R ELATIONSHIP

BETWEEN P RIVATE

INTERNATIONAL L AW AND  PUBLIC I NTERNATIONAL L AW Godhuli Nanda

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ABSTRACT

 Although public international law is usually defined as the body of norms binding upon 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  than in individual States. While at first blush a consideration of the relationship of   private international law to this body of norms may seem of purely theoretical and  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 needs of the international community. The relation between private international law and   public international law has gained little attention. Indeed, in legal education, the two discip disciplin lines es are are treat treated ed as two comple completel telyy separa separate te subec subects ts and, in my e!peri e!perienc ence, e, comparisons of the two ordinarily fall outside the curriculum. This practice has always been unfortunate, but is becoming untenable in light of Internet technology. 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  of the Internet.

I.

TRACING THE  G ENESIS

While While they they may very very well well origin originate ate in intern internati ational onal instru instrumen ments, ts, rules rules of privat privatee 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 e!ercise "urisdiction over a dispute, when a court may decline to e!ercise "urisdiction over a dispute falling  #

 The author is a $ th %ear &.'..& (ons). Student from *IIT aw School, &hubaneswar (+disha) and can  be reached at godhuli.nandagmail.com godhuli.nandagmail.com..

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PRIVATE  I NTERNATIONAL L AW P ROJECT  D RAFT 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  S COPE OF  P RIVATE I NTERNATIONAL 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;Iagdalene Schoch, 'merican Society of  International aw at Its 'nnual >eeting(-?1-2-?@?), ichael '3ehurst, urisdiction in International #aw, $@ &rit. %.&. Int -$6 (-?A4), at -A@.

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PRIVATE  I NTERNATIONAL L AW P ROJECT  D RAFT 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.

r Dutnic3s favour, allowing him to bring his claim in 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@-.  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?-. 1G

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PRIVATE  I NTERNATIONAL L AW P ROJECT  D RAFT 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.