From Autonomy to Dignity: Redefining Private International Law in a Globalized World

What comes next?

That is the question in private international law. It is the same question my son asked me many times as he tried to race ahead of bedtime stories when he was four, hoping to get to the end before the story's heart had even developed. The eager anticipation of youth and the pacing of the world at times do not match.

But in this case, today, let us bring the pace and the question together. Doing so, we can ask what will be the future "form" of international law that will emerge from our past, our values, and our crisis-prone present.

As we cross the mid-point of our final week of the General Course and the accompanying directed studies in private international law, I thought it might be useful to draw together the various dialectical opposites that constitute the current state of private international law, as clearly explained by Professor Haris Pamboukis, and consider the future of both private international law and public international law in light of this functional explanation that places the source of morphea and the components subject to transformation and evolution in perspective.

In this short essay, written tonight to focus my thinking, there is nothing profound or novel that originates with me. It is not the information, the recitation of the formulas and cases we use for solutions, that holds the key. It is instead the combination and culmination of the fields themselves made clear by a focus on what they hope to accomplish and why we seek to understand those goals. When we see through the formulaic rules we are asked to memorize, only then can we understand the nature of the topic itself.

The traditional bifurcation of public international law and private international law has long served as a foundational paradigm in the global legal order. However, I would argue that this distinction may itself be a dialectical opposition, one that is increasingly giving way to emergent conceptions of global governance rooted in fundamental human rights. Among these rights, the principle of dignity, encompassing the autonomy of individuals and entities within society, stands as a cornerstone. The next metamorphosis of international law, therefore, should not merely seek to expand beyond the territorial-extraterritorial divide or reconcile harmonization and coordination with governance. The next point of inflection for evolution is not a test of the balance between autonomy and heteronomy. Instead, the metamorphosis that results from the tensions within both private and public international law should embrace a radical restructuring of the international system, akin to the seismic shifts following the world wars, aiming to transcend artificial distinctions and focus on underlying principles.

The Dialectical Opposition of Public and Private International Law

Professor Haris Pamboukis, in his exploration of the evolution of private international law (PIL) these past two and a half weeks at the Hague, has highlighted the tension between autonomy and heteronomy, reflecting a broader dialectical relationship within international law itself. Traditionally, public international law has been concerned with the relations between sovereign states, governed by principles of state sovereignty and territoriality. In contrast, PIL has dealt with cross-border relationships between private parties, emphasizing party autonomy and the ability to select applicable laws. This division, while functional, increasingly appears as an artificial construct that fails to capture the complexity of global legal interactions in a world where the lines between public and private, domestic and international, are blurred.

The metamorphosis of international law, as framed by Horatia Muir Watt, for example, underscores how globalization has challenged these traditional categories. Globalization has brought about a "disconnection" between the practice of PIL and the phenomena it is supposed to regulate, particularly as private actors, such as multinational corporations, operate beyond the reach of traditional state-based legal systems (Muir Watt, 2014). The rise of global governance, with its focus on human rights and transnational regulatory frameworks, further complicates this picture, as it requires a rethinking of the very foundations of international law (Krisch, 2022).

Autonomy vs. Heteronomy: The Struggle for Legal Self-Determination

Central to this dialectic is the opposition between autonomy and heteronomy. Autonomy in PIL allows parties to choose the applicable legal framework for their transactions, thereby exercising control over their legal environment. This principle is a manifestation of the broader philosophical commitment to individual and collective self-determination, a key aspect of human dignity. Heteronomy, by contrast, represents the imposition of external legal norms by states or international bodies, often through extraterritorial application of laws. This imposition can be seen as a necessary response to the challenges of globalization, where the actions of private entities in one jurisdiction can have significant impacts across borders (Buxbaum, 2019).

The extraterritorial application of law, as illustrated in cases like Google Spain SL v. Agencia Española de Protección de Datos and Morrison v. National Australia Bank, reflects this tension. In these cases, courts grapple with the extent to which a state's legal norms can and should apply to activities occurring outside its territory. The European Union's approach, which I find enlightening coming from a long practice of law in the United States, particularly in the Google Spain case, exemplifies a move towards asserting legal norms globally, often at the expense of the autonomy of foreign entities (Scott, 2014). United States courts, in contrast, have tended to limit the extraterritorial reach of their laws, as seen in the Morrison case, thereby upholding a more traditional notion of territorial sovereignty and autonomy (Morrison v. National Australia Bank, 2010).

Territoriality vs. Extraterritoriality: The New Legal Geography

The debate between territoriality and extraterritoriality further reflects the shifting landscape of international law. Territoriality, the principle that a state’s laws apply only within its borders, has been the bedrock of international legal order. However, in a globalized world, where economic, environmental, and social issues transcend borders, the limitations of this principle become apparent. Extraterritoriality, the extension of a state’s laws beyond its borders, represents an attempt to address these global challenges. Yet, as Krisch (2022) argues, this approach raises significant questions about the legitimacy and effectiveness of such legal extensions, particularly when they conflict with the legal norms and sovereignty of other states.

Professor Pamboukis suggests that the move towards global governance, especially in areas like human rights, may require a rethinking of these concepts. The focus on human dignity as a fundamental right, one that underpins other rights including autonomy, points to the need for a legal framework that transcends traditional notions of territoriality. Such a framework would recognize the interconnectedness of global society and the need for legal norms that reflect this reality, even if it requires a fundamental restructuring of the international system.

Towards a New Conception of International Law

Let me hazard a proposal. The next metamorphosis of international law should aim to move beyond the dialectical oppositions of public and private, autonomy and heteronomy, and territoriality and extraterritoriality. It should focus on the principle of dignity, which integrates autonomy within a broader commitment to human rights and global justice. As Muir Watt (2014) suggests, this may require a shift from viewing international law as a set of rules governing state behavior to understanding it as a framework for managing global relationships in a way that respects the autonomy and dignity of all actors, whether states, corporations, or individuals.

This transformation would involve more than just legal reforms; it would necessitate a reimagining of the international legal system itself. Much like the restructuring that occurred after the world wars, this new paradigm would need to address the realities of a globalized world where legal norms must be both flexible and inclusive. It would require legal scholars, practitioners, and policymakers to move beyond artificial distinctions and engage with the principles that underlie these norms, particularly the principle of dignity.

The Next Form

The traditional division between public and private international law, along with the dialectical oppositions of autonomy versus heteronomy and territoriality versus extraterritoriality, reflects a legal order that is increasingly out of step with the realities of a globalized world. The next metamorphosis of international law should focus on the principle of dignity, which includes autonomy as a core component, and should aim to create a legal framework that is capable of addressing the challenges of the 21st century. This will require a fundamental restructuring of the international legal system, one that moves beyond existing categories and embraces a new conception of global governance based on human rights and justice.

I commend my classmates at the Academy, and in the directed studies program, the guardians of our philosophical justifications and legal history, the keepers of rules, and the guides for peace. Let's see this transformation through to the end.

References (with apologies since the list could be greatly expanded based on our essential and recommended readings)

Buxbaum, H. (2019). Public Regulation and Private Enforcement in a Global Economy: Strategies for Managing Conflict. Recueil des cours / Collected Courses, 399, 267-336.

Krisch, N. (2022). Jurisdiction Unbound: (Extra)territorial Regulation as Global Governance. European Journal of International Law, 33(2), 481-514.

Morrison v. National Australia Bank, 561 U.S. 247 (2010).

Muir Watt, H. (2014). Globalization and Private International Law. In J. Basedow et al. (Eds.), Encyclopedia of Private International Law (pp. 845-852). Edward Elgar Publishing.

Scott, J. (2014). Extraterritoriality and Territorial Extension in EU Law. The American Journal of Comparative Law, 62(1), 87-125.

The Hague Academy of International Law - Académie de droit international de La Haye Haris Pampoukis Jacco Bomhoff Fabien Marchadier Andrew Dickinson Eva Lein