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JURISDICTION ISSUE IN CYBERSPACE AND
INTERNATIONAL PRINCIPALS
Dr.
Ganesh Dubey
(Professor & Supervisor)
Director,
school of Law,
Jiwaji
University, Gwalior
Ritu
Gautam
(Asst.
Prof.)
Research
Scholor,
School
of Law, Jiwaji University, Gwalior
Abstract
This
paper tried to emphasis on the most crucial issue in cybercrime, which is
jurisdiction. Exponential growth of cybercrime is a big problem for any
developed or developing nation these days but the most problematic area is there
jurisdiction. This research paper is an ex-post facto research and based on
various theories and judgments take in international platform related to
jurisdictional Issue. Recently in the case of Kulbhushan Jadhav, this issue was
raised in international corridor that weather Pakistan got jurisdiction to
heard and decide this case or not. In this case International court of justice
hold the decision of the Pakistan Supreme Court. This paper is not concern
about Kulbhushan case but only focusing on the fundamentals which work behind
the jurisdictional issues in cyberspace. This paper is the attempt of an
outcome to gauge the scope of state and international Jurisdiction in cyber
space.
Key word: Jurisdiction,
Cybercrime, Jurisdictional Enforcement.
Introduction
Jurisdiction is the
power of a judicature to decide a case and resolve a dispute involving person,
property and subject matter. These principles of jurisdiction are enshrined in
the Constitution of a State and part of its jurisdictional sovereignty[1].
All sovereign independent States, possess jurisdiction over all persons and
things within the territorial limits and all causes, civil and criminal,
arising within these limits[2].
The Issue of
Jurisdiction
The issue of
jurisdiction has to be looked into from three perspectives: (a) Prescriptive
jurisdiction and (b) Enforcement jurisdiction (c) Judicial Jurisdiction
Prescriptive Jurisdiction
This principal
describes a State’s competency to define its own laws in respect of any matters
State wants. As a general rule, a State’s prescriptive jurisdiction is
unlimited and a State may make law for a subject matter irrespective of where
it occurs or the nationality of the persons involved.
Enforcement
Jurisdiction
A State’s ability to
enforce those laws is necessarily dependent on the existence of prescriptive
jurisdiction.
However, the sovereign
equality of States means that one State may not exercise its enforcement
jurisdiction in a concrete sense over persons or events actually situated in
another State’s territory irrespective of the reach of its prescriptive
jurisdiction. That is, a State’s enforcement jurisdiction within its own
territory is presumptively absolute over all matters and persons situated
therein[3].
Hence; the State
legislative enhancements primarily reflect its prescriptive jurisdiction. For
example, the Information Technology Act, 2000 provides for prescriptive
jurisdiction. Its section 75 states[4]:“75
Act to apply for offence or contravention committed outside India. –
(1) Subject to the provisions of
sub-section (2), the provisions of this act shall apply also to any offence or
contravention committed outside India by any person irrespective of his
nationality.
(2) For the purpose of sub-section (1),
this Act shall apply to an offence or contravention committed outside India by
any person if the act ro conduct constituting the offence or contravention
involves a computer, computer system or computer network located in India.
It is the legislative
function of the Government to enact laws and judicial function (and/or
administrative) to enforce those laws. It is important to note that the
principles of jurisdiction followed by a State must not exceed the limits which
international law places upon its jurisdiction.
Judicial
Jurisdiction
This is the ability of
judicial system of a country to try and decide a case. Judicature can try only
those cases in his court, for which they have territorial jurisdiction. The
similar issue was recently raised in International court of Justice in the case
of Kulbhushan Jadhav. International court holds the decision passes by Pakistan
court by saying that Pakistan court does not have jurisdiction to decide the
case of Kulbhushan Jadhav, although it’s a matter of territorial jurisdiction
but the same principal will also be implemented in cyberspace.
International Law
International
law governs relations between independent sovereign States. It is the body of
rules, which are legally binding on States in their intercourse with each
other. The rules are not only meant only for the States but also for
international organizations and individuals. Furthermore, it attempts to
regulate to extent to which one State’s enforcement jurisdiction impinges or
conflicts with others.[5]
International
law is also referred to as ‘public international law’ as it governs the
relations of States. And in case of a private dispute, if any, settlement
mechanism is increasingly being provided by the ‘private international law’.
In
the most general terms, private international law is that body of law, which
comes into operation whenever a domestic (municipal) court is faced with a
claim that contains a foreign element. The resolution of such private disputes
is resolved through the law of ‘conflict of law’ – it is that part of the
private law of a country, which deals with cases having a foreign element. It
is a necessary part of the law of every country because different countries
have different legal systems containing different rules. The rules of the
conflict of laws are expressed in terms of judicial concepts or categories and
localizing element or connecting factors.[6]
Hence,
the public international law reflects the juxtaposition of States (as a legal
person) and subject their jurisdiction sovereignties to certain limitations,
i.e., there is a ‘general prohibition in international law against the
extra-territorial application of domestic laws[7]
Nevertheless,
it has been recognized under international law that a State may assert
extra-territorial jurisdiction under certain circumstance. The sources of these
extra-territorial jurisdiction are: (a) Territorial Principle (b) Nationality
Principle (c) Protective Principle (d) Passive Personality Principle (e) The
‘Effects Doctrine’ and (f) Universality Principle[8].
Territorial
Principal
A State’s territory of
jurisdiction purposes extends to its land and dependent territories, airspace,
aircraft, ships, territorial sea and, for limited purposes, to its contiguous
zone, continental shelf and Exclusive Economic Zone (EEZ). The principle as adopted
by the national courts has been that all people within a State’s territory are
subject to national law, save only for those granted immunity under
international law.
The territorial
principle has two variants: (i) ‘objective’ territorial principle, where a
State exercise its jurisdiction over all activities that are completed within
its territory, even though some element constituting the crime or civil wrong
took place elsewhere; and (ii) ‘subjective’ territorial principle, where a
State asserts itsjurisdiction over matters commencing in its territory, even
though the final event may have occurred elsewhere[9].
In S.S. Lotus case
(France v. Turkey)[10],
it was held by a Permanent Court of International Justice that “the first and
foremost restriction imposed by international law upon a State is that –
failing the existence of a permissive rule to the contrary – it may not
exercise its power in any form in the territory of another State. In this sense
jurisdiction is certainly territorial; it cannot be exercised by a State
outside its territory except by virtue of a permissive rule derived from
international custom or from a convention”.
The chances are that in
view of components of acts involving territories of two or more States, the
only way out to resolve the issue is through mutual negotiation, extradition to
the most affected State (if extradition treaty exists between them) or simply
by an exercise of jurisdiction by the State having custody of the accused.
Nationality
Principle
It is for each State to
determine under its own law who are its nationals. Any question as to whether a
person possesses the nationality of a particular State shall be determined in
accordance with the law of that State. Nationality serves above all to
determine that the person upon whom it is conferred, enjoys the rights and is
bound by the obligations, which the law of the State in question grants to or
imposes upon its nationals[11].
Under this principal a State can exercise its jurisdiction over its national
irrespective of territory.
Protective
Principle
Under this principal
every state got right to protect his national security and peace. A state has
all the right to protect itself from acts of international disturbance,
terrorism and abuse etc.
In
the case of Attorney-General of the Government of Israel v. Eichmann[12],
the District Court of Jerusalem held:“The State of Israel’s right to punish’
the accused derives, in our view, from two cumulative sources: a universal
source (pertaining to the whole of mankind), which vests the right to prosecute
and punish crimes of this order in every State within the family of nations;
and a specific or national source, which gives the victim nation the right to
try any who assault its existence”.
Passive
Personality Principle
This principal believes
that every national of a state carries the rights of its native country,
wherever he/she may be. When a citizen visited another country he/she takes
with him for his “protection” the law of his own country and subjects those,
with whom he comes into contact, to the operation of that law.
The jurisdiction aspect
of ‘passive personality’ has been elaborated further in the case of United
States v. Yunis[13],
where the US District Court, District of Columbia held: “This [passive personality] principle
authorized States to assert jurisdiction over offence committed against their
citizens abroad. It recognizes that each State has a legitimate interest in
protecting the safety of its citizens when they journey outside national
boundaries. Because American nationals were on board the Jordanian aircraft,
the government contends that the Court may exercise jurisdiction over Yunis
under this principle.”
Although the principle
is bit controversial one, as it extends the extra-territorial jurisdiction even
in the foreign territories’. Nevertheless, the principle has been adopted as a
basis for asserting jurisdiction over hostage takers[14].
The
‘Effect Doctrine’
‘The ‘effects doctrine’
is primarily a doctrine to protect American business interests and is
applicable where there are restrictive tradeor anti-competitive agreements
between corporations. In Hartford Fire Insurance Co. v. California[15],
the question was whether the London insurance companies refusing to grant
reinsurance to certain US businesses, except on terms agreed amongst themselves
are violative of the US anti-trust and tried in the United States. The US
Supreme Court held that eh US court did have jurisdiction and the there exists
no conflict between domestic and foreign law and “where a person subject to
regulation by two State can comply with the laws of both.”
It is an
extra-territorial application of national laws where an action by a person with
no territorial or national connection with a State has an effect on that State.
The situation is compounded if the act is legal in the place where it was
performed
Universality
Principle
The canvass of the
universality principle is quite vast. A State has jurisdiction to define and
prescribe punishment for certain offenses recognized by the community of
nations as of universal concern.
It includes acts of
terrorism, attacks on a hijacking of aircraft, genocide, war crimes, etc.
A
State may assert its universal jurisdiction irrespective of who committed the
act and where it occurred. The perspective is broader as it was deemed
necessary to uphold international legal order by enabling any State to exercise
jurisdiction in respect of offences, which are destructive of that order.[16]
The
principles of jurisdiction of international law take cognizance of both State
and international laws. If on one hand the objective of State (or municipal or
domestic) law is not only to ascertain the supremacy of its judicial
sovereignty domestically but also extra-territorially, then on the other the
international law itself imposes general prohibition against the
extra-territorial application of domestic laws.
INTERNATIONAL LAW AND
STATE LAW
This dichotomy
underlines the fat that there is a ‘tug-of-war’ between the State law and the
international law. Opposed to this ‘dualistic’ view is the ‘monistic doctrine’,
which States that it is international law, which determines the jurisdiction
limits of the personal and territorial competence of States.
Application
of International Law by Courts
In practice, it is the
application of ‘statutory elements’ of both the State and international laws,
which help the domestic (or municipal) courts to arrive at a decision.
In R. v. Bow Street Metropolitan Stipendiary Magistrate, ex parte
Pinochet Ugarte (No. 3)[17]
the House of Lords examined where Augusto Pinochet, the ex-President of Chile,
who ruled Chile from September, 1973 to March, 1990 wa eligible under State
Immunity Act, 1978 as the Kingdom of Spain had asked for his extradition.
Against the Division Court order, the Crown Prosecution Service and the Kingdom
of Spain appealed in respect of the determination that Pinochet was entitled to
immunity from proceedings as a former Head of State.
Earlier, in the House
of Lords in Ex parte Pinochet did not enjoy immunity from extradition proceedings
because no immunity arose under customary international law in respect of acts
of torture and hostage taking and also no personal immunity arose under Pt III
of the State Immunity Act, 1978.[18]
However, this judgment
was set aside by the House of Lords in Ex parte Pinochet Ugarte (No. 2), WLR
272 and the entire case was reheard in the House of Lords again Ex parte
Pinochet Ugarte (No. 3), [1999] 2 WLR 827 and it ruled by a majority of six to
one (Lord Golf dissenting) that in principle a head of State had immunity from
the criminal jurisdiction of United Kingdom for acts done in his official
capacity as head of State by the virtue of section 20 of the State Immunity
Act, 1978 when read the article 39(2) of Sch. 1 to the Diplomatic Privileges
Act, 1964. Also, that section 2 Extradition Act, 1989, required that the
alleged conduct, that was the subject of the extradition request, should be a
crime in a United Kingdom at eh time of offence was committed.[19]
The
House of Lords observed that the extra-territorial torture did not become a
criminal offence in the United Kingdom until section 134 of the Criminal
Justice Act, 1988 came into effect on 29 September, 1988; it therefore followed
that all allegations of torture prior to that date which did not take place in
Spain were not extraditable offences. That is, under the ordinary law of
extradition, Senator Pinochet cannot be extradited to face charges in relation
to torture occurring before 29 September, 1988.[20]
Application
of International Law by International Tribunals
The International
Tribunals have travelled a long way from the time of International Military
Tribunals (IMT) at Nuremberg and Tokyo after the Second World War toe
establishment of International Criminal Tribunal for the former Yugoslavia (1993)
and Rwanda (1994).
Nuremberg and Tokyo
stood as symbols and signposts of change from the national State of the
nineteenth century to certain of a supranational body. It announced for the
first time that States were accountable to the world community and that
international tribunals had jurisdiction over individuals for their violations
of international law. But the major indictment of MT Code was that it was an ex
post facto law[21]
As
the Justice RadhaBinod Pal in his dissenting judgment[22]
had opined that:
“Victory does not invest the victor with unlimited
and undefined power. International laws of war define and regulate the rights
and duties of the victor over the individuals of the vanquished nationality.
Victor nation, under the international law, is competent to set up the tribunal
for the trial of war-criminals, but such a conqueror is not competent to
legislate an international law.”
Thus to have a wider
acceptance the International Criminal Tribunals (ICT) for former Yugoslavia and
Rwanda have been established by the Security Council Resolutions 827 (1993) and
955 (1994) respectively. The ICT for former Yugoslavia charged the individuals
with ‘crimes against humanity and violations of the laws or customs of war.’[23]
The need for having a
permanent criminal court under international law was partially fulfilled when
at a conference in Rome in 1998, 120 States voted in favor of the Rome Statute
for the International Criminal Court[24].
In their foreword to the book ‘Crimes Against International Law’, authors
Keenan and Brown write[25]: “It
is the authors’ contention that the Tokyo and Nuremberg War Crimes Trials were
a manifestation of an intellectual and moral resolution that will have a
profound and far-reaching influence upon the future of world society….. the
authors maintain that the international moral order must be regarded as the
cause, not the effect, of positive law; that such law does not derive its
essence from physical power, and that any attempt to isolate such law from
morals is a symptom of jurisdiction schizophrenia caused by the separation of
the brain of the lawyer from that of the human being”.
International law has
turn more a dynamic law. It has evolved over a period of time and is far more
international community centric now than it was fifty year ago. The traditional
principles of international jurisdiction that have developed and adopted over a
period of time are now being extended over to cyberspace to continuity of
established law and practice of world over.
JURISDICTION IN
CYBERSPACE
Cyber jurisdiction in
the extension of principles of international jurisdiction into the cyberspace.
Cyberspace has not physical (national) boundaries. It is an ever-growing
exponential and dynamic space. With a ‘click of a mouse’ one may access any
website from anywhere in the world. Since the website come with ‘terms of
service’ agreements, privacy policies and disclaimers – subject to their own
domestic laws, transactions with any of the websites would bind the user to
such agreements. And in case of a dispute, one may have recourse to be ‘provide
international law’. In case the “cyberspace offences” are either committed
against eh integrity, availability and confidentiality of computer systems and
telecommunication networks or they consist of the use of services of such
networks to commit traditional offences, then one may find oneself in the legal
quagmire[26].
The
question is not only about multiple jurisdictions but also of problems of
procedural law connected with information technology. The requirement is to
have a board based convention dealing with criminal substantive law matters,
criminal procedural questions as well as with international criminal law
procedures and agreements.
Convention
on Cyber Crime
The Convention on Cyber
Crime[27]
was opened at Budapest on 23 November, 2001 for signatures. It was the first
ever-interracial treaty on criminal offences committed against or with the help
of computer networks such as the Internet.
The convention deals in
particular with offences related to infringement of copyright, computer-related
fraud, child pornography and offences connected with network security. It also
covers a series of procedural powers such as searches of and interception of
material on computer networks. Its main aim, as set out in the preamble, it to
pursue “a common criminal policy aimed at the protection from society against
cybercrime, inter alia by adopting appropriate legislation and fostering
international co-operation.”[28]
Extraditable
Offences
Extradition procedures
are designed not only to ensure that criminals are returned from one country to
another but also to protect the rights of those who are accused of crimes by
the requesting country. Thus sufficient evidence has to be produced to show a
prima facie case against the accused and the rule of specially protects the
accused from being tried for any crime other than that for which he was
extradited.
Similar views were
expressed by the Supreme Court in Daya Singh Lahoria v. Union of India[29]“A
fugitive brought into this country under and Extradition Decree[30]
can be tried only for the offences mentioned in Extradition decree and for no
other offences and the criminal courts of India will have no jurisdiction to
try such fugitive for any other offence.”
“There is no rule of
international law which imposes any duty on a State to surrender a fugitive in
absence extradition treaty. The law of extradition, therefore, is a dual law.
It is ostensibly municipal law; yet it is a part of international law also,
inasmuch as it governs the relations between two sovereign States over the
question of whether or not a given person should be handed over by one
sovereign State to another sovereign State.This question is decided by national
courts but on the basic of international commitments as well as the rules of
international law relating the subject.”
It is significant to
note that despite the treaty, a State may refuse extradition. In Hens Muler of Nuremberg v. Superintendent Presidency Jail
Cal[31],
the court held that even if there is a requisition and a good cause for
extradition, the government is not bound to accede to the request, because
section 3(1) of the Indian Extradition Act, 1903 (based on Fugitive Offenders
Act, 1881 of the British Parliament) gives the government discretionary powers.
Extradition
is usually granted for an extraditable offence regardless of where the act or
acts constituting the offence were committed. It is not granted for a political
offence; the following shall not be considered to be political offences (and
hence are extraditable offences):
Murder
or other willful crime against a Head of State or Head of Government or a
member of their family, aircraft hijacking offences, aviation sabotage, crimes
against internationally protected personals including diplomats, hostage taking,
offense related to illegal drugs, or any other offences for which both
contracting States have the obligation to extradite the person pursuant to a
multilateral international agreement[32].
Cybercrimes
– Are the extraditable Offences?
The Convention on Cybercrime
has made cybercrimes extraditable offences. The offence is extraditable if
punishable under the law in both contracting parties by imprisonments for more
than one year or by a more severe penalty (article 24). It echoes the double
criminality rule which States that the conduct be an offence in both the
requesting State and the requested State[33].
The
aforesaid article 24 applies to extradition between parties for the criminal
offences established in accordance with articles 2-11 of this Convention,
provided that they are punishable under the laws of both parties concerned by
deprivation of liberty for a maximum period of at least one year, or by a more
severe penalty.
|
Extraditable Offences under the Convention |
Offences |
|
Title 1. Offences against the confidentiality,
integrity and availability of computer data and systems |
Illegal access (Art.2) Illegal interception (Art.3) Data interference (Art.4) System interference (Art.5) Misuse of devices (Art.6) |
|
Title 2. Computer-related offences |
Computer-related forgery (Art.7) Computer-Related fraud (Art.8) |
|
Titile3.
Content-related |
Offences related to child pornography (Art.9) |
|
Title4. Offences related to infringements of
copyright and related rights |
Offences related to infringements of copyright and
related rights (Art.10) Attempt and aiding or abetting (Art. 11) |
Table 34.1: The Extraditable Offences under the Convention
It is significant to note that
almost every kind of cybercrimes have been made extraditable under the
Convention. Moreover, the Convention has the force of international law behind
it. In other words, to investigate, search, seize, arrest, prosecute and
extradite cyber criminals for cybercrimes, a proper legal framework is already
in place[34].
India is still not a signatory to
the Cyber Crime Convention and the bilateral extradition treaties, which it has
signed with around 50 countries so far, do not mention ‘cybercrime’ as
extraditable offences. But it may not deter the Indian government from grating
extradition, as it was held in Rambabu
Sexena v. State[35],
that “if the treaty does not enlist a particular offence for which extradition
was sought, but authorizes the Indian government to grant extradition for some
additional offences by inserting a general cause to this effect, extradition
may still be granted”.
CONCLUSION
We can say that,
procedures of ‘Letter Regulatory’ (section 166A and section 166B of Cr.P.C)
that enable investigation of crime in a foreign country are not easy and are
hopelessly out of tune with the scope of computer crime and swiftness with
which the evidence can be destroyed. It is important to note that about 140
letters regulatory sent to different countries seeking their cooperation in
investigations have still remained unanswered. One of the reasons of unanswered
letters regulatory is the apprehension at the foreign court’s end that the
evidence may be used for capital punishment. In certain cases, courts have
demanded undertaking that the evidence would not be used to award death
sentences to the accused. It is thus imperative that there is a need to sign
mutual legal assistance treaties (MLTs) with more number of countries till
necessary amendments are made in the Cr.P.C. Currently, Indian has MLTs signed
with 19 countries to attain legal compatibility. Even section 188 of Cr.P.C
requires prior permission of the Central Government or inquire into or try
offences committed outside the country, which puts shackles on the
investigating agency’s work. As on 2009, the CBI has been struggling to get the
extradition clearance for 22 criminals, who have already been located[36].These
things are bound to affect the extra-territoriality application of the
Information Technology Act, 2000.Though we can say that jurisdiction of Indian
courts in cyberspace is prospective and enforcement bothwithin the reasonable
limits.
*************************
[1] Apart from judicial activity, a
State’s administrative, executive and legislative activity is also part of its
jurisdiction sovereignty.
[2] Lord Macmillan in Campania
Naviera Vascogado v. Steamship, ‘Cristina’, [1938] AC 485.
[3] Vakul Sharma information
Technology Law and practice- Cyber Laws and Laws regulating cyberspace, 5th
edition-Universal publication, 2015
[4] Information technology Act, 2008
[5] Supra note3 ,
[6] Ibid
[7] In the absence of municipal
laws, international treaties ratified by India can be taken into account for
framing guidelines in respect of enforcement of fundamental rights [Vishaka v.
State of Rajasthan, (1997) 6 SCC 241: 1997 SCC (Cri) 932; Lakshmi Kant Pandey
v. Union of India, (1984) 2 SCC 244 (para 10)].
[8] Ibid
[9]Supra note3
[10] PCIJ, SerA No. 9 (1927).
[11]Nottebohm case (Liechtenstein v.
Guatemala) (Second Phase), ICJ Rep 1955 4.
[12](1968) 36 ILR 5.
[13] 681 F Supp. 896 (1988).
[14] See, International Convention
Against The Taking of Hostage, 1979.
[15] 113 S. Ct 2891 (1993).
[16]
Supra note3
[17] [1999] 2 WLR 827 (HL).
[18] Ibid
[19]
Supra note3
[20] Ibid
[21] The Charter [of MT], which was
in itself influenced by the American Constitution, went against the spirit of
that very constitution, in as much as
there is a specific prohibition in it against ex-post-facto laws. Section 9 and
10 of article 1 of the American Constitution provide that …… “No ex post facto
law shall be passed by the Congress and on Stat shall pass any ex-post-facto
law”. Similarly, the General Assembly of the United Nations on December 9, 1948
adopted the “Declaration of Human Rights”, of which the article 11(2) provides
that: “No man shall be held guilt of any penal offence on account of any act or
omission which did not constitute a penal offence under a national or
international law, at the time when it was committed”.
[22] Nuremberg and Tokyo Trials, Vol.
2.
[23]
Supra note3
[24] The Statue (treaty) is in force
(more than 66 nations have already ratified it).
[25] Kennan and Brown, Crimes Against
International Law.
[26] Ibid
[27] Ministers or their
representatives from the following 26 Members States signed the treaty:
Albania, Armenia, Austria, Belgium, Bulgaria, Croatia, Cyprus, Estonia,
Finland, France, Germany, Greece, Hungary, Italy, Moldova, the Netherlands,
Norway, Poland, Portugal, Romania, Spain, Sweden, Switzerland, “The Former
Yugoslav Republic of Macedonia”, Ukraine and the United Kingdom. Other 4
members, Canada, Japan, South Africa and the United States, that took part in
the drafting, also signed the trety.
[28]
Supra note3
[29] (2001) 4 SCC 516.
[30] Section 21 of the Extradition
Act, 1962, provides that if a person is brought into India under an extradition
decree, he cannot be tried in respect of an offence, which does not from part
of the decree.
[31] 1955 AIR 367, 1955 SCR (1) 1284
[32]Supra
note3
[33] Ibid
[34]
Supra note3
[35] 1950 AIR 155, 1950 SCR 573
[36] Ibid
 Director, school of Law, Jiwaji University, Gwalior Ritu Gautam (Asst. Prof.) Research Scholor, School of Law, Jiwaji University, Gwalior){kind=link}
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