“The regulation of cyberspace and the loss of national sovereignty”
Dr Noel Cox[1]
Auckland University of Technology
Socio-Legal Studies Association, 2002 Annual Conference
University of Wales Aberystwyth, Aberystwyth, Wales, United Kingdom 3rd-5th April 2002
ABSTRACT
The practicalities of international trade meant that most business was conducted at a distance, with only limited opportunities for face-to-face contact between merchants. Such trade was governed by rules of private international law, the Law Merchant, or lex mercatoria. This required agreements to be honoured despite the absence of personal contact, provided the proper forms of authentication and agreement were present.
The modern commercial law grew out of the custom and usages of the merchants, the Law Merchant. Some of these customs were written down, and became a code of international commercial customs. In the Statute of the Staple 1352-3 this was recognised as part of the law of England, though it is unclear to what extent it was systematised in England. Gerard de Malynes regarded Law Merchant as customary law approved by the authority of all kingdoms and not as law established by the sovereignty of any prince. Like the canon law-based ecclesiastical law, it was the “law of all nations”.
Although the substantive law and procedures of the common law world broadly reflected the international character of trade, it was also influenced by the insular tendencies of the law. The advent of modern electronic trade conducted through cyberspace,[2] and the dissolution of territorial borders has however meant that the law has once again been required adopt a more international perspective, through the adoption of international treaties and conventions. This paper concentrates on the authentication of documents for use abroad, as applied in New Zealand.
The United Nations Commission on International Trade Law (UNCITRAL)[3] Model Law on Electronic Commerce provides that an electronic signature may be legally effective as a manual signature, but does not define an electronic signature. The Electronic Transactions Act 2000 (NZ) is based on work carried out by the Law Commission, and closely follows both the Model Law on Electronic Commerce prepared by UNCITRAL in 1996 and the Australian Electronic Transactions Act 1999 (Cth).[4]
The purpose of the Act is to facilitate the use of electronic technology. This it does by reducing uncertainty regarding the legal effect of electronic communications, and allows certain paper-based legal requirements to be met by using functionally equivalent electronic technology. It also provides that every enactment passed before or after the commencement of the Act shall be read subject to Part 3 of the Act.
The principles applicable to the making of a contract by electronic means should be no different to the principles applicable to contracts formed orally or in writing on paper. Indeed, the decided cases appear to have accepted that proposition as self-evident. But, this legislation reflects the way in which national laws are increasingly determined by international imperatives. Ultimately it must be accepted that in this there is little new, for the law was long influenced by international practices and principles, particularly in the law of nations, and mercantile or commercial law.
1 Introduction
Throughout the course of human history practicalities of international trade meant that most business was conducted at a distance, with only limited opportunities for face-to-face contact between merchants. Such trade was governed by rules of private international law, the Law Merchant, or lex mercatoria. This required agreements to be honoured despite the absence of personal contact, provided the proper forms of authentication and agreement were present.
The modern commercial law grew out of the custom and usages of the merchants, the Law Merchant.[5] Some of these customs were written down, and became a code of international commercial customs. In the Statute of the Staple 1352-3[6] this was recognised as part of the law of England, though it is unclear to what extent it was systematised in England. Gerard de Malynes regarded Law Merchant as customary law approved by the authority of all kingdoms and not as law established by the sovereignty of any prince.[7] Like the canon law-based ecclesiastical law, it was the “law of all nations”.[8]
Although the substantive law and procedures of the common law world broadly reflected the international character of trade, it was also influenced by the insular tendencies of the law. Municipal or state law is dependent upon internal, or national, control.[9] As a general rule of construction, any statute is presumed to operate within the territorial limits of the sovereign state.[10] But international trade required international laws, and such were recognised by the common law, albeit at the instigation of Parliament.
The advent of modern electronic trade conducted through cyberspace, and the dissolution of territorial borders has however meant that the law has once again been required to adopt a more international perspective, through the adoption of international treaties and conventions.[11] The internet is not a novel phenomenon.[12] International trade will always require international laws.
This paper will use one facet of commerce, evidencing or authenticating documentation, to highlight some of the effects of the technology revolution, and to emphasis the parallels with earlier practice.
2 Evidencing trade
The types of agreements entered into in the course of international trade were many. Bills of exchange, for example, were and are unconditional orders in writing, addressed by one person to another, requiring the person to whom it is addressed to pay on demand, or at a fixed or determinable future time, a sum to, or to the order of, a specified person, or to the bearer.
Such documents were necessary to expedite trade, but presupposed a degree of trust being reposed in both one’s opposing merchant to honour the agreement, and that a written agreement purporting to come from another actually originates from that person. This latter may require authentication. Authentication is a certificate of an act being in due form of law, given by proper authority. In the course of international business it is frequently necessary to attest to the authenticity of a document. The form required however varies according to the nature of the document to be attested, and, to some extent at least, from country to country. In this paper we will look at the influences which have affected the rules governing the authentication of documents, in particular, the international requirements and domestic rules of New Zealand.
A document has been judicially defined as “any writing or printing capable of being made evidence, no matter on what material it may be inscribed”.[13] Documents may, for evidential purposes, be roughly classed as public (both in respect of their usual method of proof being by copy), and their contents being evidence of the facts stated against strangers, as well as parties and privies; judicial (public as to method of proof, but admissible for the most part between parties and privies only); and private (both as to their usual method of proof being by production of the original document, and their admissibility being restricted for judicial documents).
“Writing” is now defined as
includ[ing] representing or reproducing words, figures, or symbols-
(a) In a visible and tangible form by any means and in any medium:
(b) In a visible form in any medium by electronic means that enables them to be stored in permanent form and be retrieved and read.[14]
Thus a statutory requirement for “writing” will now be met by communication through electronic means. Where the statute provides that the “writing” must be signed, there is an additional impediment to overcome.
Many public and judicial documents being judicially noticed are admissible in evidence without any authentication whatever, while others need no further authentication than that of appearing in a Government gazette, or purporting to be printed by the official printers, or purporting to be certified, stamped, sealed, or signed by certain officers or departments. The effect is to render such documents prima facie admissible, so far as their genuineness and validity (as distinct from their truth) go, and to throw upon the opponent the onus of impeaching them in these respects if he or she can.
The statutes which enable the contents of public documents to be proved by means of copies also dispense with the necessity of proving that the documents have been properly executed. In the case of a public document, therefore, the mere production of the appropriate copy will suffice to put it in evidence. But the court will require to be satisfied by evidence that a private document was duly executed, unless it is more than twenty years old and comes from the proper custody, in which event there is a presumption of formal validity. The due execution of a private document is proved by showing that it was signed by the person to whom it purports to have been signed, and, when attestation is necessary, that it was attested. In civil cases the due execution of a document is frequently the subject of a formal admission for the purposes of a particular trial. Proof of due execution is dispensed with when the document is in the possession of the opponent who refuses to produce it on notice[15]. Special provisions are applicable to the verification of documents executed outside New Zealand[16].
International trade normally involves private individuals rather than governments, and private documents rather than public or judicial. They now come in electronic form, as well as on the traditional paper. In particular, the advent of the internet, and electronic communications generally, have required national laws to be accommodating.
There appear to be no legal difficulties in authentication which are unique to electronic documents. Indicia of authenticity such as signatures may have technological equivalents, such as digital signatures. It may also be comparative straightforward to determine the date or accuracy of contents of an electronic document.[17] There is nothing in the current law which requires a specific change to be made to accommodate any difficulties in the authentication of computer documents. Specific difficulties caused by legislative provisions requiring “documents” to be “in writing” and “signed” by the parties to a contract may require alteration to pre-existing laws.[18]
The use of signatures as a physical manifestation of consent or as a requirement of law presents an immediate difficulty for those who would prefer to transact business electronically.[19] In particular, physical borders can no longer function as signposts informing individuals of the obligations assumed by entering into a new, legally significant, place, because individuals are unaware of those borders as they move through virtual space.[20]
3 CONTROL OF ELECTRONIC COMMERCE
The internet, what we call “cyberspace”, is an interconnected electronic communications network. It has no physical existence as a whole, though comprised of a large number of individual networks.[21] In essence the internet exists in a virtual world, cyberspace, rather than in the real, geographical, world.[22]
The internet has no controlling body,[23] though it does have a common language, allowing different operating systems to speak to one another.[24] There has been a tendency to claim that the changes we observe in sovereignty, the state, jurisdiction and law are caused by the internet.[25] But as we have seen, globalisation of commerce is not a new phenomenon.[26]
Our existing international laws are predicated on the existence of the sovereign state. The notions of sovereignty and statehood were once among the most important aspects of public international law. Its heyday was perhaps in the late nineteenth century, when sovereign states enjoyed almost unfettered independence of action. These were subject only to the regulation of their diplomatic and military action, principally by the Law of Armed Conflict, or the Laws of War.[27]
The traditional juristic theory of territorial sovereignty, with the King being supreme ruler within the confines of his kingdom, originated as two distinct concepts. The King acknowledged no superior in temporal matters, and within his kingdom the King was emperor.[28] If the Holy Roman Emperor had legal supremacy within the terrae imperii, the confines of the empire, theories of the sovereignty of kings were not needed, for they had merely de facto power.[29] Sovereignty remained essentially de jure authority.[30] This was not merely power without legitimacy.[31] Mediæval jurists cared not whether the emperor had jurisdiction and authority over kings and princes, but focused on his power to usurp the rights of his subjects. Whether this power was de facto or de jure was unimportant.[32]
But to have sovereignty, a state must have a permanent population,[33] it must have a defined territory,[34] it must have a government, and it must have the capacity to enter into diplomatic relations.[35] No other entity could be regarded as a sovereign state, whatever its de facto power. Yet, this definition is increasingly meaningless.
The notions of sovereignty and statehood are not easily defined or explained. To a large degree this is because they are principally political concepts, rather than merely legal principles. With the growth in both the (horizontal) extent and (vertical) reach of international agreements, treaties, conventions and codes, national independence is becoming less relevant. This tendency is becoming more noticeable in the modern commercial environment, and especially the internet.
As the concept of state sovereignty declines in relevance, so notions of racial sovereignty have grown. The idea that a given population group is, or ought to be, sovereign within a larger country is not confined to New Zealand.[36] Yet, sovereign states have clung tenaciously to their rights, rights which have become more precious as they become rarer.[37]
4 IMPOSITION OF INTERNATIONAL NORMS
Some legislative provisions have been made to accommodate this new grundnorm.[38] The limitations of paper-based evidential requirements when faced with the requirements of modern electronic communications, are a case in point. The United Nations Commission on International Trade Law (UNCITRAL) Model Law on Electronic Commerce provides that an electronic signature may be legally effective as a manual signature, but does not define an electronic signature.[39]
The Electronic Transactions Act 2000 (NZ) is based on work carried out by the New Zealand Law Commission, and closely follows both the Model Law on Electronic Commerce prepared by UNCITRAL in 1996 and the Australian Electronic Transactions Act 1999 (Cth)- itself heavily influenced by UNCITRAL.[40] The purpose of the Act is to facilitate the use of electronic technology. This it does by reducing uncertainty regarding the legal effect of electronic communications, and allows certain paper-based legal requirements to be met by using functionally equivalent electronic technology.[41] It also provides that every enactment passed before or after the commencement of the Act shall be read subject to Part 3 of the Act.[42]
The principles applicable to the making of a contract by electronic means should be no different to the principles applicable to contracts formed orally or in writing on paper. Indeed, the decided cases appear to have accepted that proposition as self-evident.[43]
Under article 7 of the United Nations Commission on International Trade (UNCITRAL) Model Law on Electronic Commerce, the elements of the functional equivalent to a signature are the need:
Article 7 only applies where a signature is a requirement of law. Where a signature is not required by law then the normal rules in relation to proving an agreement apply. Whilst it is not unusual for domestic laws to be influenced by international developments, it is perhaps true that New Zealand- and most other countries- had little choice but to adopt the UNCITRAL model, and alter its domestic laws accordingly. The nature of electronic commerce has some important differences from traditional trade, not least of which is its speed and universality.
5 THREAT TO SOVEREIGNTY
The jurisdiction of national courts are based upon the domestic laws of individual countries.[45] Similarly, the legislative jurisdiction of a state is limited to its territory.[46] The advent of cyberspace has not meant the decline of domestic law. But it has “pushed the boundaries”.[47] Border controls on the internet are not impossible to develop and implement.[48] Many governments already regulate cyberspace.[49] It may be that the most effective means to achieve this is to regulate the architecture of cyberspace.[50]
But for the most part the internet is international, nor are its users adequately served by existing laws with respect to conflict of laws.[51] And global computer-based communications cut across territorial borders,[52] creating a new realm of human activity and undermining the feasibility-[53] and legitimacy-[54] of applying laws based on geographic boundaries.[55]
Further, the internet itself threatens traditional political institutions and perhaps even the very concept of sovereignty itself.[56] Globalisation is not merely a notion, it is a fact. This is particularly so in the economic sphere. As Zekos has written, the real jurisdictional novelty of cyberspace is that it will give rise to more frequent circumstances in which effects are felt in multiple territories at once.[57] Traditional international legal rules on jurisdiction do not fit the internet context, nor do they facilitate international co-operation on international regulation. The limits of national control of the internet are exaggerated. Principally that is because nations are increasingly acting in concert to deal with the borderless nature of cyberspace by creating both relatively uniform laws across jurisdictions, and agreements for international co-operation in surveillance and investigation.[58]
As well as being a threat to sovereign authority, the internet may allow new opportunities for an increase in surveillance[59] and authority-[60] or for an increase in public participation in government. Increasingly, private, non-state parties are regulating cyberspace.[61]
The country has no choice but to promote vigorously the introduction of new technology in order to maintain and increase its international competitiveness.[62]
6 EVOLUTION OF INTERNATIONAL CYBERSPACE LAWS
The law merchant evolved over time, so that no particular country or time could be said to have had an excessive influence on its development. The process was evolutionary and, in so far as it was not imposed by a sovereign, was democratic. The same will not necessary be said of the internet, when its definitive history is written.[63] The almost instantaneous global reach of the internet, and the potentially adverse affects of the internet on countries- particularly economic- combine to ensure that governments have responded to the challenge of this emerging technology. But they have not responded consistently. The United States of America has chosen to rely on self-regulation,[64] rather than direct regulation. Another alternative is a balance of self-regulation and direct regulation, as advocated by the European Union.[65]
Unlike the lex mercatoria, which became recognised over time, just as customary international law has traditionally developed,[66] the internet may not permit the international community the luxury of time. For this reason states may have little choice but to defer to the views of the majority, or the stronger economic blocks, whatever implications that may have for the longer-term future of state sovereignty.
As Hall has noted, primarily international law governs the relations of independent states, but “to a limited extent ... it may also govern the relations of certain communities of analogous character”.[67] Lawrence also wrote that the subjects of international law are sovereign states, “and those other political bodies which, though lacking many of the attributes of sovereign states, possess some to such an extent as to make them real, but imperfect, international persons”.[68] Whereas these scholars tended to define subjects of international law as states and certain unusual exceptions, there are others who go further in opening up the realm of reasonable subjects of the law of nations.[69] Whether the internet can, or should, become subject to international law is a question the answer to which could be as seminal as the adoption of the Law of Oléron or the resolution of the Thirty Years War at the Treaty of Westphalia- the so-called Diet of Worms (1648)
7 Conclusion
The internet and the advent of almost instantaneous communications have had and will continue to have major effects upon international trade law. In particular, evidential rules founded on former paper-based procedures have proven to be not flexible enough to accommodate the advent of the internet and contracts made in cyberspace.
Traditionally, the formation of legal norms for conducting trade was by states, subject to certain principles accepted by the international community. But this has proven inadequate for the control of electronic commerce, because this can be said to be truly international, having no physical presence.
The new environment has necessitated an increased degree of international co-ordination, if not co-operation. Unlike the evolutionary development of the lex mercatoria, the advent of electronic communications has resulted in the enforced adoption of international norms, such as the UNCITRAL Model Law on Electronic Commerce.
This poses a threat to state sovereignty. It is no longer possible for the nation-state to be the sole, or even prime, regulator of economic norms.
The result could be the evolution of an international cyberspace law. But there are wider implications for national legal systems which cannot be ignored.
[1]LLM(Hons) PhD, Barrister of the High Court of New Zealand, and of the Supreme Courts of Tasmania, New South Wales, South Australia, and the Northern Territory, Lecturer in Law at the Auckland University of Technology, New Zealand.
[2]The internet began in the late 1960s as an adjunct to the American defence system; ACLU v Reno 929 F sup 824.
[3]G Hermann, Establishing a legal framework for electronic commerce: the work of the United Nations Commission on International Trade (UNCITRAL), 1 (6) WORLD TRADE AND ARBITRATION MATERIALS 45-57 (Kluwer, The Hague, 1999).
[4]UNCITRAL model laws has been adopted fully in New Zealand only for the Sale of Goods (International Convention) Act 1994, and the Arbitration Act 1996.
[5]Leon Trakman, The Law Merchant- The Evolution of Commercial Law (FB Rothman, Littleton, 1983); Bruce Benson, The Spontaneous Evolution of Commercial Law, 55 SOUTHERN ECONOMIC JOURNAL 644, 646-647 (1989).
[6]27 Edw III stat 2 (Eng).
[7]Consuetudo vel Lex Mercatoria, or the Ancient Law Merchant, London, 1622.
[8]Luke v Lyde (1759) 2 Burr 882; 97 ER 614, per Lord Mansfield, CJ.
[9]D Johnson & D Post, Law and Borders- The Role of Law in Cyberspace, 48 STANFORD LAW REVIEW 1367 (1996).
[10]All law is prima facie territorial; American Banana Co v United Fruit Co 213 US 347, 357 (1909).
[11]E.g. see J Clift, The UNCITRAL Model Law and electronic equivalents to traditional bills of lading, 27 (7) JOURNAL OF THE SECTION ON BUSINESS LAW OF THE INTERNATIONAL BAR ASSOCIATION 311-317 (1999); S Eiselen, Electronic commerce and the United Nations Convention on Contracts for the International Sale of Goods (CISG) 1980, 6 (1) EDI LAW REVIEW: LEGAL ASPECTS OF PAPERLESS COMMUNICATION 21-46 (Dordrecht, Netherlands, 1999).
[12]Jack L Goldsmith, “Regulation of the Internet: Three Persistent Fallacies” (1998) 73 Chicago-Kent law Review 1119-1131.
[13]R v Daye [1908] 2 KB 333. Section 2 Commerce Act 1986 states that
“Document” means a document in any form whether signed or initialled or otherwise authenticated by its maker or not; and includes—
(a) Any writing on any material;
(b) Any information recorded or stored by means of any tape- recorder, computer, or other device; and any material subsequently derived from information so recorded or stored;
(c) Any label, marking, or other writing that identifies or describes any thing of which it forms part, or to which it is attached by any means;
(d) Any book, map, plan, graph, or drawing;
(e) Any photograph, film, negative, tape, or other device in which one or more visual images are embodied so as to be capable (with or without the aid of some other equipment) of being reproduced.
[14]Interpretation Act 1999 s 29.
[15]Sir Rupert Cross, Evidence, ed DL Mathieson, 5th New Zealand edition, Wellington, Butterworths, 1989, p 597; Cooke v Tanswell (1818) 8 Taunt 450; Poole v Warren (1838) 8 Ad & El 582. This is also the case when the opponent produces the document but claims an interest under it; Pearce v Hooper (1810) 3 Taunt 605. The due execution of a document might be formally admitted in a criminal case under Crimes Act 1961 s 369.
[16]Evidence Amendment Act 1952 s 6; Evidence Amendment Act 1945 s 9.
[17]Law Commission, Electronic Commerce Part One, Wellington, Law Commission, 1998, Report 50, para 235.
[18]Law Commission, Electronic Commerce Part One, Wellington, Law Commission, 1998, Report 50, para 237.
[19]Law Commission, Electronic Commerce Part One, Wellington, Law Commission, 1998, Report 50, para 310.
[20]David R. Johnson and David G. Post, Law and Borders: The Rise of Law in Cyberspace, 48 STANFORD LAW REVIEW 1367 (1996). In a simple contract, for instance, the question of where an offer occurs may be critical. Yet, the determination of where this might be becomes very difficult when both parties are negotiating through the internet; Lewis D. Solomon and Louise Corso, The Impact of Technology on the Trading of Securities, 24 JOHN MARSHALL LAW REVIEW 299, 318-319 (1991).
[21]The result being a conceptual confusion; Jack Goldsmith and Lawrence Lessig, “Grounding the Virtual Magistrate” <http://mantle.sbs.umass.edu/vmag/groundvm.htm>.
[22]Georgios Zekos, Internet or Electronic Technology: A Threat to State Sovereignty, 3 JOURNAL OF INFORMATION, LAW AND TECHNOLOGY (1999) <http://elj.warwick.ac.uk/jilt/99-3/zekos.html>; David G. Post and David R. Johnson, “’Chaos Prevailing on Every Continent’: Towards a New Theory of Decentralized Decision-Making in Complex Systems” (14 June 1999) Social Science Research Network Electronic Library <http://www.papers.ssrn.com/paper.taf?ABSTRACT_ID=157909>. See also Dan Burk, Federalism in Cyberspace, 28 CONNECTICUT LAW REVIEW 1095 (1996); Joel Reidenberg, Governing Networks and Rule-Making in Cyberspace, in BORDERS IN CYBERSPACE, ed Brian Kahin and Charles Nesson 84, 85-87 (MIT Press, Cambridge, 1996).
[23] Though the ICANN (Internet Corporation for Assigned Names and Numbers) regulates some aspects of the net. This is the non-profit corporation that was formed to assume responsibility for the Internet Protocol (IP) address space allocation, protocol parameter assignment, domain name system management, and root server system management functions previously performed under United States Government contract by Internet Assigned Numbers Authority (IANA) and other entities. That no one country can regulate the internet is seen in the internationalisation of ICANN. See for instance, James S Fishkin, “Deliberate Polling As a Model for ICANN Membership” Study paper from the Berkman Centre for Internet and Society at Harvard Law School <http://www.cyber.law.harvard.edu/rcs/fish.html> (1999).
[24]At its highest level co-ordinated by the Internet Assigned Numbers Authority (IANA) and a central Internet Registry (IR); David R Johnson and David G Post, And How Shall the Net be Governed? A Meditation on the Relative Virtues of Decentralized, Emergent Law, draft paper at Cyberspace Law Institute Papers on Cyberspace Law, <http://www.cli.org/emdraft.html> (1996).
[25]It has been said that the very nature and growing importance of the net calls for a fundamental re-examination of the institutional structure within which rulemaking takes place; David R Johnson and David G Post, And How Shall the Net be Governed? A Meditation on the Relative Virtues of Decentralized, Emergent Law, draft paper at Cyberspace Law Institute Papers on Cyberspace Law, <http://www.cli.org/emdraft.html>.
[26]The analogy between the rise of a separate law of cyberspace and the Law Merchant has also been observed by Hardy; I. Trotter Hardy, The Proper Legal Regime for “Cyberspace”, 55 UNIVERSITY OF PITTSBURGH LAW REVIEW 993, 1020 (1994).
[27]International law has been called “the sum of the rules or usages which civilized states have agreed shall be binding upon them in their dealings with one another”; West Rand Central Gold Mining Co v. The King [1905] 2 KB 391 quoting Lord Russell of Killowen in his address at Saratoga in 1876. See also Sir Michael Howard, George J. Andreopoulos & Mark R. Shulman (eds.), The Laws of War- Constraints on Warfare in the Western World (Yale University Press, New Haven, 1994); J. llingham & J.C. Holt (eds.), War and Government in the Middle Ages (Boydell Press, Cambridge, 1984).
[28]Walter Ullmann, This Realm of England is an Empire, 30(2) Journal of Ecclesiastical History 175 (1979).
[29]In Roman law it was originally considered that the emperor's power had been bestowed upon him by the people, but when Rome became a Christian State his power was regarded as coming from God. In America also God had been recognized as the source of government, although it is commonly thought in a republican or democratic government “all power in inherent in the people”.
[30]J.P. Canning, Law, sovereignty and corporation theory, 1300-1450, in J.H. Burns (ed.), The Cambridge History of Mediæval Political Thought c.350-c.1450, 465-467 (Cambridge University Press, Cambridge, 1988). Emperor Frederick I Barbarossa saw the advantages of Roman law and legal science for his ambitions and his inception of absolutism. This led to the growth of royal absolutism, and eventually to the emergence of opposition to this, throughout Europe; See Kenneth Pennington, The Prince and the Law, 1200-1600, 12 (University of California Press, Berkeley, 1993).
[31]J.P. Canning, Law, sovereignty and corporation theory, 1300-1450, in J.H. Burns (ed.), The Cambridge History of Mediæval Political Thought c.350-c.1450, 467-471 (Cambridge University Press, Cambridge, 1988).
[32]Kenneth Pennington, The Prince and the Law, 1200-1600, 30 (University of California Press, Berkeley, 1993).
[33]See the judgment of the International Court of Justice in the Western Sahara case, International Court of Justice Reports 12, 63-65 (1975); 59 International Law Reports 30, 80-82.
[34]Which may however be very small, or even of varying extent; United States v Ray, 51 International law Reports 225; Chierici and Rosa v Ministry of the Merchant Navy and Harbour Office of Rimini, 71 International Law Reports 283; Re Duchy of Sealand, 80 International Law Reports 683.
[35]This was expressly outlined in the Montevideo Convention on the Rights and Duties of States, signed 26 December 1933; Manley Ottmer Hudson (ed.), International Legislation vol 6, 620 (Carnegie Endowment for International Peace, Washington, 1931-50). Although the application of the Convention is confined to Latin America, it is regarded as declaratory of customary international law. The Arbitration Commission of the European Conference on Yugoslavia, in Opinion No 1, declared that:
The state is commonly defined as a community which consists of a territory and a population subject to an organised political authority.
-92 International Law Reports 162, 165. On the Arbitration Commission generally see M. Craven, The EC Arbitration Commission on Yugoslavia, 66 BRITISH YEARBOOK OF INTERNATIONAL LAW 333 (1995).
[36]Richard Conley, Sovereignty or the Status Quo? The 1998 pre-referendum debate in Quebec 35 (1) JOURNAL OF COMMONWEALTH AND COMPARATIVE POLITICS 67-92 (1997); Paul Howe, Nationality and Sovereignty Support in Quebec 31 (1) CANADIAN JOURNAL OF POLITICAL SCIENCE 31-60 (1998); S. Krasner, Sovereignty: an institutional perspective 21 (1) COMPARATIVE POLITICAL STUDIES 66-94 (1988).
[37]For the impact of electronic commerce generally, see CC Nicoll, Electronic Commerce: a New Zealand perspective, 6 (1) EDI LAW REVIEW: LEGAL ASPECTS OF PAPERLESS COMMUNICATION 5-20 (Dordrecht, Netherlands, 1999).
[38]In Kelsen’s philosophy of law, a grundnorm is the basic, fundamental postulate, which justifies all principles and rules of the legal system and which all inferior rules of the system may be deduced; Hayback, Michael, “Carl Schmitt and Hans Kelsen in the crisis of Democracy between World Wars I and II” (1990) Universitaet Salzburg DrIur thesis.
[39]Art 7.
[40]See JD Gregory, The authentication of digital records, 6 (1) EDI LAW REVIEW: LEGAL ASPECTS OF PAPERLESS COMMUNICATION 47-63 (Dordrecht, Netherlands, 1999); JD Gregory, Solving legal issues in electronic commerce, 32 (1) CANADIAN BUSINESS LAW JOURNAL 84-131 (1999).
[41]Explanatory Note to Electronic Transactions Bill.
[42]s 14.
[43]Databank Systems Ltd v Commissioner of Inland Revenue [1990] 3 NZLR 385 (PC); Corinthian Pharmaceutical Systems Inc v Lederle Laboratories 724 F Supp 605 (1989); Law Commission, Electronic Commerce Part One, Wellington, Law Commission, 1998, Report 50, para 52.
[44]Law Commission, Electronic Commerce Part One, Wellington, Law Commission, 1998, Report 50, paras 316-320, 344-345.
[45]David R. Johnson and David G. Post, Law and Borders: The Rise of Law in Cyberspace, 48 STANFORD LAW REVIEW 1367 (1996).
[46]See Ian Brownlie, PRINCIPLES OF PUBLIC INTERNATIONAL LAW 301-324 (5th ed, Clarendon Press, New York, 1998); OPPENHEIM’S INTERNATIONAL LAW 456-498 (Sir Robert Jennings and Sir Arthur Watts eds, 9th ed, Longmans, London, 1992); FA Mann, “The Doctrine of Jurisdiction in International Law”, 111 RECUEIL DES COURS 9, 10-13 (1964 I); FA Mann, “The Doctrine of Jurisdiction in International Law Revisited After Twenty Years”, 186 RECUEIL DES COURS 9, 20 (1984 III).
[47]See, for example, Tapio Puurunen, The Legislative Jurisdiction of States over Transactions in International Electronic Commerce, 18 J MARSHALL JOURNAL OF COMPUTER AND INFORMATION LAW 689 (2000).
[48]United States v Montoya de Hernandez 473 US 531, The Chinese Channel limited <http://www.chinese-channel.co.uk>. See also Anne Wells Branscomb, Jurisdictional Quandaries for Global Networks, in Linda M Harasim (ed), GLOBAL NETWORKS: COMPUTERS AND INTERNATIONAL COMMUNICATION 83, 103 (MIT Press, Cambridge, 1993).
[49]Framework for Global Electronic Commerce http://www.ecommerce.gov/ Management of Internet <http://www.ntia.doc.gov/>. Their legal right to do so is undoubted; US v Smith, 680 F 2d 255 (1st Cir. Mass 1982). See also President’s Working Group on Unlawful Conduct on the Internet, “The Electronic Frontier: The Challenge of Unlawful Conduct Involving the Use of the Internet” (March 2000) at <http://www.usdoj.gov/criminal/cybercrime/unlawful.html>.
[50]Graham Greenleaf, “An Endnote on regulating cyberspace: Architecture vs Law?” 21(2) University of New South Wales law Journal (1998).
[51]The efficacy of the concept of “closest and most real connection” (McConnell Dowell Constructors Ltd v Lloyd's Syndicate 396 [1988] 2 NZLR 257 (CA)) is also reduced, in that no part of the world is any more directly affected than any other by events on the web, as information is available simultaneously to anyone with a connection to the internet; David R. Johnson and David G. Post, Law and Borders: The Rise of Law in Cyberspace, 48 STANFORD LAW REVIEW 1367 (1996). Nor, in terms of the protection of intellectual property rights; Dan L. Burk, “Muddy Rules for Cyberspace” (25 May 2000) Social Science Research Network Electronic Library <http://www.papers.ssrn.com/paper.taf?ABSTRACT_ID=204188>.
[52]Location remains important, but it is virtual location, rather than physical location. There is no necessary connection between an internet address and a physical location. For a general description of the Domain Naming System, see Dan L. Burk, Trademarks Along the Infobahn: A First Look at the Emerging Law of Cybermarks, 1 UNIVERSITY OF RICHMOND JOURNAL OF LAW AND TECHNOLOGY 1 (1995).
[53]Something which may be related to the relative length of the virtual border; David R. Johnson and David G. Post, Law and Borders: The Rise of Law in Cyberspace, 48 STANFORD LAW REVIEW 1367 n17 (1996).
[54]With the dominance of democratic concepts of government, it might be thought that if the people believe that an institution is appropriate, then it is legitimate; Brook Cowen, Penelope, “New Liberalism” in Trainor, Luke (ed), Republicanism in New Zealand (Dunmore Press, Palmerston North, 1996). But this scheme leaves out substantive questions about the justice of the State and the protection it offers the individuals who belong to it; Which is illustrated by the study of the application of the model to Mummar Qadhafi’s Libya; Al Namlah, Saleh, “Political legitimacy in Libya since 1969” (1992) Syracuse University PhD thesis. It is generally more usual to maintain that a State’s legitimacy depends upon its upholding certain human rights; Rawls, John, Political Liberalism (Columbia University Press, New York, 1993); Honderich, Ted (ed), The Oxford Companion to Philosophy (Oxford University Press, Oxford, 1995) 477; Swanson, Matthew, “The Social extract tradition and the question of political legitimacy” (1995) University of Missouri-Columbia PhD thesis.
[55]David R. Johnson and David G. Post, Law and Borders: The Rise of Law in Cyberspace, 48 STANFORD LAW REVIEW 1367 (1996).
[56]W Lash, The Decline of the Nation State in International Trade and Development”, 18 CARDOZO LAW REVIEW 1001 (1996-97); B Sanford, Teaching an Old Dog New Tricks, 28 CONNECTICUT LAW REVIEW 1137, 1170 (1995-96); D Buck, Patents in Cyberspace: Territoriality and Infringement on Global Computer Networks, 68 TULANE LAW REVIEW 1 (1993-94); WALTER B. WRISTON, THE TWILIGHT OF SOVEREIGNTY (Scribner, New York, 1992) (examining the challenges to sovereignty posed by the information revolution).
[57]Georgios Zekos, Internet or Electronic Technology: A Threat to State Sovereignty, 3 JOURNAL OF INFORMATION, LAW AND TECHNIOLOGY (1999) <http://elj.warwick.ac.uk/jilt/99-3/zekos.html>.
[58]See AB Overby, Will cyberlaw be uniform?: an introduction to the UNCITRAL Model law on Electronuc Commerce, 7 TULANE JOURNAL OF INTERNATIONAL AND COMPARATIVE LAW 219-310 (1999); Graham Greenleaf, “An Endnote on regulating cyberspace: Architecture vs Law?” 21(2) UNIVERSITY OF NEW SOUTH WALES LAW JOURNAL (1998).
[59]Graham Greenleaf, “An Endnote on regulating cyberspace: Architecture vs Law?” 21(2) UNIVERSITY OF NEW SOUTH WALES LAW JOURNAL (1998).
[60]See, for instance, Qiu, Jack Linchuan, “Virtual Censorship in China: Keeping the Gate between the Cyberspaces” (1999/2000) 4 International Journal of Communications Law and Policy 1.
[61]Paul Schiff Berman, Cyberspace and the State Action Debate: The Cultural Value of Applying Constitutional Norms to ‘Private’ Regulation, 71(4) UNIVERSITY OF COLORADO LAW REVIEW (2000).
[62]Cf Shirley Serafini and Michel Andrieu, The Information Revolution and its Implications for Canada (Minister of Supply and Services, Ottawa, 1981) 96.
[63]For we may assume that the internet will evolve out of recognition, or be superseded, just as the law merchant was.
[64]See The White House, A Framework for Global Electronic Commerce (1 July 1997) <http://www.ecommerce.gov/framewrk.htm>.
[65]Common Position Adopted by the Council with a View to the Adoption of a Directive of the European Parliament and the Council on Certain Legal Aspects of Information Society Services, in Particular Electronic Commerce, in the Internal Market 14263/1/99 REV (February 28, 2000) (“Electronic Commerce Directive”). The Directive was adopted by the European Parliament 4 May 2000.
[66]A distinction must be drawn between private and public international law. It is perhaps more correct to regard public international law as a body of rules which binds states and other agents in world politics in their relations with one another and is considered to have the status of law; Hedley Bull, The Anarchical Society 127 (Macmillan, London, 1977); Sir Hersch Lauterpacht, The Subjects of the Law of Nations, 63 Law Quarterly Review444 (1947); Dame Rosalyn Higgins, The Development of International Law Through the Political Organs of the United Nations 1 (Oxford University Press, London, 1963); Philip Jessup, A Modern Law of Nations (Macmillan, New York, 1968); J.G. Castel, International Law: Chiefly as Interpreted and Applied in Canada 1 (3rd ed, University of Toronto Press, Toronto, 1976).
[67]William E. Hall, A Treatise on International Law (8th ed, Clarendon Press, Oxford, 1924). Nor is he alone, similar views being expressed by other writers- George Schwarzenberger, A Manual of International Law 48 (1st ed, 1947); Wolfgang Friedmann, The Changing Structure of International Law 213-215 (Columbia University Press, New York, 1964).
[68]T.J. Lawrence, The Principles of International Law 69 (7th ed, Macmillan, London, 1923).
[69]Sir Hersch Lauterpacht, The Subjects of the Law of Nations, 63 Law Quarterly Review 444 (1947).