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Eighty years ago, in 1935, a major step was taken in international law; the Harvard Research Draft Convention on Jurisdiction with Respect to Crime (“Harvard Draft”) was published in the American Journal of International Law. The influence of the Harvard Draft has been nothing but phenomenal and must surely have exceeded the drafters’ wildest ambitions. Indeed, it is fair to say that the structure put forward in the Harvard Draft has represented public international law’s approach to jurisdiction ever since.
What follows is a private international lawyer’s response to the thought-provoking ideas put forward by Professor Svantesson on international jurisdiction from a criminal law perspective. This stance may in itself seem (and certainly feels!) paradoxical, since much contemporary academic effort (my own included) has been directed towards a rejection of the public/private distinction in international law. This rejection has been championed both as a normative matter, because so much would be gained from reaching ‘beyond the schism” to overcome the personality split from which the discipline has suffered for over a century, as well as a descriptive matter, since multiple issues, debates, myths and concepts straddle the divide, even if they give rise to specific disciplinary understandings on either side. Both of these observations apply to jurisdiction in all the forms mentioned by Professor Svantesson. Moreover, the need for an intradisciplinary conversation is particularly acute in respect of international limits on criminal jurisdiction, which, as Professor Svantesson’s paper seems to demonstrate, fall somewhere in-between the public and the private models (perhaps seen as logically public, but considered private in France!).
Dan Svantesson is quickly establishing himself as a leading voice in the field or jurisdiction. Coming to this field from Internet and data protection law, he is surely well placed to criticize the current legal framework of international jurisdiction in light of technological evolution, which has made territoriality lose its salience as the cornerstone of jurisdiction. I myself have recently been characterized as one of the border guards of territoriality, on the basis of my earlier monograph on Jurisdiction in International Law. Accordingly, the informed reader might believe that I will severely criticize as iconoclastic such a proposal as Svantesson’s namely, doing away with territoriality as the very linchpin of jurisdiction. As it happens, however, I largely concur with Svantesson’s ideas, at least to the extent they apply to cross-border transactions via the Internet. In this contribution, I argue that the reality of a de-territorialized Internet necessitates jurisdictional rethinking, but that this rethinking in fact heavily relies on previous scholarship, predating the Internet era. The advent of the current era, however, has lent particular urgency to those earlier proposals.
Dan Svantesson has introduced an important proposal to reformulate the way we allocate jurisdiction in the international community. Rather than asking whether a proposed assertion of jurisdiction falls into one of the canonical principles identified in the Harvard Research Draft Convention on Jurisdiction with Respect to Crime of 1935, Svantesson proposes to subject claims of jurisdiction to three “core” principles: (1) whether there is a substantial connection between the matter and the State seeking to exercise jurisdiction; (2) whether the State seeking to exercise jurisdiction has a legitimate interest in the matter; and (3) whether the claim of jurisdiction is reasonable given the balance between the state’s interests and other interests that might be asserted. He sees the first two of these as being implicit in the Harvard Draft paradigm, and the third a helpful addition to resolve conflicts in an increasingly interdependent world.