Is Adjudicatory Jurisdiction a Category of Public International Law?

[Ralf Michaels is the Arthur Larson Professor of Law at Duke University School of Law.]

The new Restatement on Foreign Relations has not yet been published, and already it creates vibrant discussions. This is a testament to the excellent work with which the reporters put it together, but also to both the importance of its themes and the controversial nature of some of its claims. One such controversial claim is that “[w]ith the significant exception of sovereign immunity, modern customary international law generally does not impose limits on jurisdiction to adjudicate.” Austen Parrish has recently taken issue with this proposal, pointing to a number of authors (myself included) that hold otherwise. Bill Dodge, Anthea Roberts and Paul Stephan, the drafters of the relevant section, responded, pointing out that state practice and opinio iuris, which they view as the only relevant source for customary public international law, does not allow for this claim. States do not protest the assertion of jurisdiction, they argue, and where states do confine their own adjudicatory jurisdiction they do so without a sense of legal obligation.

Inherent in this substantive question is a conceptual question—whether adjudicatory jurisdiction is a separate category that deserves separate treatment, or not. Parrish suggests that the answer is no: “[p]ublic international law constrains state action, regardless of the form in which the power is exercised.”. Dodge et al. disagree: The 1927 Lotus decision, they say, already distinguished between jurisdiction to enforce (which was strictly territorial) on the one hand and jurisdiction to prescribe or to adjudicate, both of which had no relevant general limits under international law, on the other. Since then, they suggest, public international law has developed limits for prescriptive, but not for adjudicatory, jurisdiction. Consequently, the Restatement requires a “genuine connection” for prescriptive jurisdiction only (§ 211).

Now, for it to be true that the limits public international law developed apply only to prescriptive and not to adjudicatory jurisdiction, presumes that those are separate categories. Dodge et al. claim that they are: “State practice today distinguishes among jurisdiction to prescribe, jurisdiction to adjudicate, and jurisdiction to enforce.” But this is far from certain, not least because categorization can hardly be called state practice. Their tripartite division of jurisdiction, mirrors, ostentatiously, the tripartite division of the field of conflict of laws, into jurisdiction, choice of law, and enforcement of judgments. But that is not the same. Thus, although adjudicatory jurisdiction has an independent existence under private international law, it is not clear at all whether it does under public international law.

In this sense, F.A. Mann considered adjudicatory jurisdiction “merely an emanation of the international jurisdiction to legislate” (Further Studies in International Law 51). Vaughan Lowe has suggested that the issues of adjudicatory jurisdiction can be analyzed in terms of prescriptive and enforcement jurisdiction.“ (in International Law 329, 333 [Evans ed., 2008]). Several other authors in public international law distinguish only two types of jurisdiction: prescription and enforcement (e.g. Lowe 171; Boas 246; more sources for both views are in Rest. (4^th) § 101 Reporter’s note 2). And most importantly, the Restatement (2^nd) also allowed only for these two types (§ 6). (Dodge et al. are right to state that the Restatement “did not separately treat jurisdiction to adjudicate,” but they should also have conceded that it treats it implicitly, as the illustration makes clear.) There is some logic to that: a distinction between normative and factual measures. In this sense, tertium non datur.

It was the Restatement (3^rd), presumably under Andy Lowenfeld’s influence, that introduced the tripartite structure. That was undoubtedly under the influence, borrowed from private international law, that adjudicatory jurisdiction and applicable law are different questions—indeed, that a US court might have jurisdiction and not be allowed, under international law, to apply US law to the dispute (Lowenfeld, 245 Rec. des Cours 311, 327-38). The Restatement justifies the separate category in somewhat similar ways: “Recognizing a separate category of adjudicative jurisdiction is useful because it provides a place for international and domestic laws that limit a state’s authority to subject persons or things to the processes of its courts or administrative tribunals” (§ 101 Reporter’s note 2). But this is a curious argument if those international laws are then said to be nonexistent. The special category of customary international law for immunity (which the Restatement recognizes) would not require a separate general category of adjudicatory jurisdiction. And most importantly, a category decision cannot alone substitute for a policy decision.

This question of categorization matters for the proper assessment of state practice. It may be true that diplomatic protests against the exercise of adjudicatory jurisdiction are rare. (But they are not nonexistent; see e.g. the examples in Akehurst, 46 Brit. Yb. Int’l L. 145 ff. And one might also query whether the numerous protests that have been voiced against judicial proceedings in areas of criminal law, antitrust law, etc., are really neatly confined to the aspect of prescriptive jurisdiction). Further, it may also be the case, as Dodge et al. suggest, that when states restrict their bases of civil jurisdiction, they rarely do so out of a sense of a legal obligation. (Although I am aware of at least one counterexample, namely the German Federal Court of Justice insisting that the provision on quasi in rem jurisdiction must be interpreted in accordance with public international law: 115 BGHZ 90). But the absence of protest proves only, at best, that existing law complies with limits, not that such limits do not exist. Dodge et al. make much of the fact that exorbitant bases of jurisdiction do not create diplomatic protests. But exorbitant does not automatically mean in violation of international law. Arguably, even existing so-called exorbitant bases of jurisdiction typically rest on a “genuine link” and can thus be characterized as acceptable under the personality principle (Arts. 14, 15 French Civil Code) or the territoriality principle (quasi in rem jurisdiction).

The existing law of adjudicatory jurisdiction is to a large extent a creature of private, not public international law. This could mean that public international law has nothing to say about it. But it could also mean, as Alex Mills has recently suggested that private international law, is the area in which public international law concerns are taken care of through doctrinal technique instead of diplomatic processes. Indeed, the fact that every existing jurisdictional provision appears to rest on some kind of connection to the forum, however detached, might be more plausibly interpreted as evidence for a state practice and opinion iuris in favor of some kind of genuine link.

In short, I think the question of public international law limits on adjudicatory jurisdiction remains open. The Restatement (3^rd) has been criticized for going too far in what it posited as the content of public international law in the area of jurisdiction. The Restatement (4^th) is now being criticized for not going far enough. It seems that more work will need to be done before we find consensus on this question.