GDPR's Connection to Extraterritoriality Effect on Public International Law
Tagged: Academic Law Writing
Introduction
This section examines the grounds for extraterritorial jurisdiction under the principles of international law by examining the conceptual underpinnings of extraterritorial jurisdiction, types of extraterritorial jurisdiction, challenges in exercising extraterritorial jurisdiction, and potential existing mechanisms for resolving challenges in exercising extraterritorial jurisdiction, such as legal hierarchies/balancing tests, discretionary doctrines, cooperation/mutual recognition and harmonization of laws. The inherent difficulties of enforcing it constrain the GDPR's claim of universal jurisdiction. This does not mean that there won't be extraterritorial GDPR compliance. Some overseas companies may voluntarily comply with the GDPR to build a positive market reputation and adopt sound data protection procedures. Others will abide by warnings from E.U. data protection authorities and follow orders or rulings from E.U. courts, despite enforcement issues, out of concern about reputational harm. However, in the remaining situations, enforcement actions might be required to guarantee a high level of protection for the fundamental rights and liberties of E.U. data subjects in line with the GDPR's guiding principle (Greze, 2019).
Theoretical Basis for Extraterritorial Jurisdiction
The law of extraterritorial jurisdiction has been heavily influenced by the territorial aspect of sovereignty when formulating prohibitive as well as permissive rules; the assertion of a state in terms of jurisdictions would refer to actions carried out within their territory, which would be lawful in principle, whereas arguments that refer to activities carried out outside of their region are suspect, and even presumptively illegal (Ryngaert & Siccama, 2018). This emphasis on territoriality reflects a persistent Westphalian tendency in international law, which established a territoriality system to distinguish between nation-states with full and distinct sovereignty over their territory and no jurisdiction over the part of another state. However, territoriality would not be logically essential to the law of jurisdiction. Finally, it is understood that territoriality depends on a historical perspective. Customary law is the applicable international law. Its organizational principles include consent, acquiescence, and state-based practice. Acknowledging a specific jurisdictional basis as law and acting following it throughout international law's evolution is what gives it legitimacy. Therefore, it should be no surprise that governments can determine whether or not to adopt new legal doctrines based on how those doctrines may affect their interests.
Nevertheless, they define those interests (Akande, 2003). For example, suppose the idea of incremental development of customary law is to have any relevance at all. In that case, it must imply that any development could only be considered cumulative if it did not fundamentally change how the law affected the state's interests.
Each of the three categories of jurisdictions listed below has the potential for worldwide applicability, at the very least conceptually. Extraterritoriality is typically understood to refer to a state's jurisdictional procedures concerning behaviour outside its borders. Although jurisdiction to practise frequently extends into foreign countries, this kind of extension is usually the result of executive police or military action. An evaluation of extraterritorial prescriptive jurisdiction is more about the jurisdiction itself and its capacity to extend federal laws to foreign objects or people (Lee, 2018).
Bases for Extraterritoriality
In the well-known Google Spain case from 2014, the Court of Justice of the E.U. (CJEU) notoriously applied E.U. data protection law to a Foreign Service provider. Because Google, a U.S. firm, had an establishment in an E.U. member state, among other reasons, it was determined that the DPD applied to Google (Frantziou, 2014). The case established a data subject's right to erasure (often known as the "right to be forgotten"), which may have significant repercussions for internet users outside the European Union. The GDPR strengthened this extensive reach of E.U. data protection law. Public international law nevertheless identifies jurisdictional bases for the "extraterritorial" application of E.U. data protection regulation. First, it could be argued that the extraterritorial reach of E.U. data protection law, triggered by a person or activity having a territorial connection to the E.U., is based on territoriality (Ryngaert & Taylor, 2020). Territoriality may even be the guiding concept of the GDPR, wherein targeting or monitoring individuals "in the Union" by entities headquartered outside the Union causes the Regulation to apply to those firms. The phrase "territorial extension" has been used in the literature to describe this process (Scott, 2014). Second, the extensive geographic scope of E.U. data protection laws is connected to personal freedoms predicated on a person's verifiable E.U. membership, typically citizenship or residence. Therefore, the E.U.'s claims may be supported by the passive personality concept, which enables the E.U. to defend its citizens or residents, such as when data transfers involving E.U. subjects are made to less-than-ideal countries. Finally, the fact that a data subject must demonstrate a "Terri-national" affiliation to the E.U. to submit a request to a website for the deletion of her data serves as an example of how frequently the E.U.'s claims are based on a combination of the territoriality and the passive personality principles.
Exercise of Extraterritorial Jurisdiction Challenges
Recent extraterritorial decisions by the European Court have not adequately clarified the parameters of extraterritorial jurisdiction under the Convention. This shortcoming jeopardizes the Court's institutional legitimacy as an arbiter of such disputes and makes it difficult for member governments to predict whether their actions comply with the Convention. Currently, the European Court has identified four main grounds for extraterritorial jurisdiction: instances were a signatory state exercises "effective overall control" over another territory; instances where state authorities act abroad or their actions have extraterritorial effects; extradition or expulsion cases involving the risk that an individual's rights will be violated once he leaves the territory of the signatory state; and instances where diplomatic, consular, and judicial proceedings are involved. However, the Court has provided conflicting justifications for the use of extraterritorial jurisdiction and left the boundaries of these exclusions unclear, leaving ambiguity about the scope of the Convention (Miller, 2009).
Arguments of a political, legal, practical, and legal nature have been made during the discussion. Based on the principle of nationality, several reasons could apply "mutatis mutandis" to the application of extraterritorial jurisdiction. First, however, the practice of extraterritorial jurisdiction based on active ethnicity would often be more popular than instituting universal jurisdiction. The principle of active race has a significantly older history than the notion of territoriality, which predominates in the modern international legal system (van den Herik, 2009).
Even though the principle of active nationality may be more widely accepted than the principle of universality, applying extraterritorial jurisdiction based on such principles would still present some inherent difficulties. These difficulties are similar to those that arise when exercising jurisdiction based on the principle of universality. Moreover, both cases' inherent challenges are, to a large extent, identical. This is especially true regarding the need for legal assistance when obtaining evidence abroad. Moreover, given that the claimed crimes were committed in different social, cultural, and geographic settings, this would go hand in hand with the increase in complexity for judges to reach an appropriate assessment of the facts (van den Herik, 2009).
It is typically known to occur when multiple states establish a claim to jurisdiction, which is one of the most challenging aspects of exercising extraterritorial jurisdiction. This problem raises the issue of how state authorities should handle situations where many states may have jurisdiction. In other cases, the fact that multiple states might theoretically exercise their power to jurisdiction would not result in conflict in terms of actuality because only one state would be eager to proclaim jurisdiction. Organizations and individuals might not always be aware of this in advance, but they might nevertheless be prepared to deal with conflicting claims of the jurisdiction from various states. In other cases, numerous states might have jurisdiction over the same organizations, actions, or people and be willing to enforce it. Moreover, it is well recognized that complexity rises, especially when states are eager to establish specific substantive laws or laws with wildly divergent penalties for the same offence.
Hierarchy of the law
Setting up mandatory guidelines for states to follow when determining whether or not jurisdiction was expected to be exercised in any given case would be a unique way to resolve conflicts among overlapping jurisdictional claims. For example, these regulations may adopt the form of a legal hierarchy or a collection of standards that ought to be considered when determining whether a state has or ought to exercise authority (Association, 2009).
Making Domestic Legal Order's Domestic Jurisdictional Rules Effective
Generally speaking, it has been recognized that public international law has not yet developed norms establishing different jurisdictional constraints between community members of a state. In cases when the issue of international jurisdiction is raised, the focus is on the fact that the litigation would include foreign parties rather than the source of the exercised authority. However, the assertion that there are currently no rules under general international law that offer this kind of restriction over a comparable transaction is predicated on the idea that states rarely go beyond the limits of their legal authority when exercising their jurisdiction, even when doing so on a case-by-case basis (Lenhoff, 1964).
From this angle, paying attention to international judicial assistance activities in a foreign country is essential. Servicing documents and evaluating witnesses in a foreign country often play a crucial role in this operation. For example, the judicial authority may appear unrelated when private individuals render services or when depositions are taken before them. However, when the action is pending to investigate in a foreign country, such as Italy, or in a state where a party asked the council to make an effort to serve summons, subpoenas, or notice on a witness residing overseas, it isn't easy to reach the same level of conclusion. If any of these responsibilities are carried out, they include the exercise of official authority within a foreign country.
Setting up a Legal Hierarchy
A hierarchy within the reasonable grounds for jurisdiction may be established by adhering to the first strategy. For instance, if state A has custody of an accused who was alleged to have committed a crime on its territory, state A would have priority in prosecuting the accused over state B if state B's only connection to the crime would be that the victim was one of its citizens and that action would solely depend on the legal hierarchy. It may not be difficult to see the difficulties in defining and accepting a formal order. Although some jurisdictional grounds would typically be more reliable than others, it may be challenging to agree on a specific hierarchy among all jurisdictional grounds (Lenhoff, 1964).
Furthermore, implementing a rigid priority order would increase predictability, but it could compromise justice in some situations where a higher degree of flexibility is required. For example, it would be preferable to prioritize certain types of jurisdiction, such as those found on the traditional bases for jurisdiction, such as nationality and territoriality, and to make other types of jurisdiction subordinate rather than creating a hierarchy among all bases of jurisdiction. This would be connected to a legal system founded on the principles of inclusivity and protection. Instead of requiring a rigid hierarchical link among all bases, this would allow jurisdictional grounds to be aggregated jointly within broader categories that might likely be given subsidiary or principal status (Lenhoff, 1964).
The criminal committee has recently taken notice of techniques based on subsidiary and primacy in specialized situations. For instance, the Rome Statute of the International Criminal Court has established that the complementarity principle gives national courts with conventional links to a crime the initial opportunity to examine and prosecute alleged offenders under ICC prosecution provisions, coming into play where those states are unwilling or unable to proceed. A select few states have also included concepts of subsidiarity in their statutes or case precedents. For instance, Spanish courts have recognized and defined universal jurisdiction. They have, however, stated that it is subordinate to the territorial state's authority. Accepting the concepts of subsidiarity and primacy would sometimes result in injustice, much like adopting a strict hierarchy. In contrast to conflicts across categories, disputes over jurisdictional grounds within each category (both a subsidiary category and a primary category) would not be amenable to the subsidiarity and primacy approach. As a result, governments considering whether or not to exercise jurisdiction over such types would have more flexibility, but there would be less certainty (Lenhoff, 1964).
Application of a Balancing Test
A strict or arbitrary hierarchy is replaced by establishing guidelines that governments must follow when deciding whether to exercise jurisdiction. Such criteria are designed to determine whether the state should exercise its authority or yield to the exercise of jurisdiction by another state. According to this method, courts could, for instance, use a reasonableness test to decide whether to apply jurisdiction. This type of test would entail taking into account several variables, including connections between the conduct and the state, associations between the behaviour and other states eager to exercise jurisdiction, where there would be an opportunity to hear the case more conveniently, and the interests of justice (Lenhoff, 1964). Due to these characteristics, courts with traditional ties (such as nationality or territoriality) usually need a more substantial jurisdictional basis than governments without such links. However, in some situations, such as those where the interests of justice would suggest that this form of state may not be able to exercise jurisdiction in the matter, this may not be necessary.
Laws Harmonization
When multiple states are eager to assert authority, overlapping jurisdictional claims are the most difficult. But, then, the substantive rules start to diverge. To avoid having organizations and people face the weight of contradictory standards, regardless of which state or states would ultimately apply jurisdiction, one option to tackle this scenario would be to establish norms in terms of substantive laws. Instead of focusing on jurisdiction as a whole, this strategy would try to unify substantive laws to lessen the difficulties brought on by jurisdictional conflicts (Lenhoff, 1964). Conflicting legal standards and outcomes are a problem that is evident in many different contexts. For example, the antitrust committee has noted that there have been situations where one competition authority approves a merger while the other rejects it. The group has advised that states follow the Recommended Practices for merger control from the International Competition Network to get beyond such obstacles.
There is a chance for remedies to take place between states even when there has been a harmonization of substantive laws. For instance, in the context of bribery and corruption, the Norwegian government opened an inquiry into Statoil, a Norwegian company, for bribes they allegedly paid in Iran. As a result, the company was forced to pay a $3 million fine. Since the company was also listed on the U.S. stock exchange, the U.S. government soon opened an inquiry into the same behaviour, which led to the SEC and DOJ prosecuting the business. The organization agreed to pay a fine of US$21 million to the U.S. authorities as part of the settlement that ultimately ended the U.S. prosecution. This was after deducting the previously paid sum to Norwegian authorities. The antitrust authority has urged that enforcement agencies coordinate from the beginning of the remedy phase, taking into account their ability actually to enforce a particular remedy to avoid any unintended duplication.
International organizations typically spearhead measures to unify legislation. For example, the International Organization of Securities Committee (IOSCO), for instance, has carried out work relative to the harmonization of rules linked to limits, disclosure, guidelines for regulators, and insider trading, as the Securities Committee has noted. In addition, the Committee of European Securities Regulators (CESR) was established inside the European Union to foster improved cooperation among securities regulators in the European Economic Area (EEA) and to encourage ongoing oversight and enforcement. The IBA Cross-Border Insolvency Concordat and the IBA Model International Insolvency Cooperation Act provided the first paradigm of cross-border insolvency law and the first model for multijurisdictional court-to-court cooperation and communication within the insolvency domain, have also received support from the Insolvency Committee. Additionally, these actions considerably impacted the Model Law on Cross-Border Insolvency created by the United Nations Commission on International Trade Law, which has been officially included in numerous countries' laws.
Doctrines with Flexibility
Setting up discretionary doctrines is another option to deal with disputes involving multiple jurisdictions. They do not, however, require a state to refrain from exercising authority in some circumstances. For example, a discretionary doctrine that is extremely frequent in a jurisdiction might not be used in a form if another state is keener to apply its law to the action. The antitrust committee advises states to rely on the doctrine of comity to respect antitrust rules, compete with other states, and prevent the extraterritorial application of their domestic laws. The criminal committee, however, has emphasized that it is unclear whether the notion of comity may be broadly applied in an unfair situation.
The phrase "forum non-convenient" refers to yet another discretionary theory that permits the suspension or dismissal of civil lawsuits in favour of those brought in a country with a more vital link to the defendant or where the defendant's burden of proof would be comparatively low. The Tort Committee has made clear that although this doctrine is commonly accepted in common law jurisdictions, it is not recognized in nations that follow the civil law system. However, the criminal committee has determined that neither the common law nor the civil systems appear to apply the notion of forum non-convenient to criminal cases (Lenhoff, 1964).
Mutual Assistance and Recognition
Instead of asking each state separately if they wish to apply jurisdiction, another tactic would be to demand or encourage states to organize their approaches or to put processes for mutual recognition in place, especially in cases where more than one state would have an interest. In this situation, cooperation would be advantageous in avoiding disputes over jurisdiction. This would be done in conjunction with dealing with some of the extraterritorial jurisdiction of the state's complications, such as assembling extraterritorial jurisdiction of the state's difficulties and the community of evidence outside the state's borders. Cooperative methods can be successfully created to circumvent jurisdictional barriers and handle overlapping proclamations. Systems involving mutual recognition serve as typical illustrations of the first tactic. Harmonizing substantive laws would not be the aim of mutual recognition. Instead, they create a system where one state's authority is given priority in terms of certain actors and behaviour, and other forms generally give that state's rulings the benefit of the doubt (Lenhoff, 1964).
Systems of mutual recognition or cooperation can be seen in various contexts. For example, the Securities Committee has underlined that the European Union's framework for securities regulation is one area where mutual recognition has been partially implemented. Much thought has also gone into mutual recognition within the U.S. and at the U.S. Securities Exchange Commission (SEC), where discussions have started with various authorities to direct mutual recognition of a restricted type. Cross-border securities market activity would take place based on authorizations and approvals that may have been obtained within the home member state if the person had an E.U. passport, as opposed to a host member state, which is only allowed to add certain additional restrictions. For example, a regulated firm with access would be able to meet the regulatory requirements of just one state while yet being able to provide services or implement projects across the European Union.
Once a case has been established, there is potential for cooperation, for example, the state that would be qualified to prosecute the case. The Organization for Economic Cooperation and Development's (OECD) convention for combating the bribery of foreign public officials during international business deals, for instance, has been noted by the Bribery and Corruption Committee to encourage states with extraterritorial jurisdiction to function by agreeing on a single prosecuting jurisdiction. In contrast, the U.N. treaty against corruption encourages states to coordinate their efforts but would not expect them to agree to a single, centralized investigation. Similarly, the securities committee recommends creating a system to identify a key regulator whose responsibility is to oversee and manage an inquiry to avoid duplication of information requests and regulator interviews (Lenhoff, 1964).
References
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