We cannot doubt that Miss Hamlyn would have been intensely proud of the liberties and protections afforded by our domestic law, common law and statute, to those living in these islands. But it seems unlikely that the expression ‘human rights’ would ever have crossed her lips, or that the concept loomed at all largely in her consciousness. To the extent that it did, she would have thought in purely national terms. Magna Carta and the Petition of Right 1628, after all, important though they were, had no extra-territorial application, and were in any event more concerned to constrain the power of the Crown than confer rights on individuals. The French Declaration of the Rights of Man and the Citizen 1789 and the United States Bill of Rights 1791 certainly did have the object of conferring rights on individuals, but they too had no extra-territorial application. Miss Hamlyn’s outlook was largely shared by her first lecturer, Sir Alfred Denning (as he then styled himself), in his justly celebrated 1949 lectures Freedom under the Law (which, amazingly as it now seems, earned him a rebuke by the Lord Chancellor of the day for exceeding the bounds of judicial reticence). Lord Justice Denning did, it is true, acknowledge that in some respects the French system of administrative law afforded the citizen better protection than our own system, but he was doubtful if this system would suit us here. In the main he referred to foreign systems in order, as Miss Hamlyn would have wished, to highlight the advantages which British citizens enjoyed under our own law. If he addressed the substance, he did not use the language, of human rights, let alone the international language of human rights.

It was in 1948, with the Universal Declaration of Human Rights, that human rights went global. The importance of the Universal Declaration is easy to underestimate, partly because it lacked any means of enforcement, partly because some of its articles were somewhat lame; Professor Sir Hersch Lauterpacht described Article 14, on asylum, as ‘artificial to the point of flippancy’. But these drawbacks should not blind us to the momentous implications of the Declaration: the adoption by the General Assembly of the newly formed United Nations, with forty-eight votes in favour, eight abstentions and no votes against, of a common standard of rights to be universally observed and secured.

Introduction

Caveat emptor – buyer beware! and pacta sunt servanda – contracts are binding once formed. These were the classical paradigms of contract law. The underlying assumptions were that contracting parties are, in principle, on an equal footing, and that each party is able to collect necessary information and then negotiate a favourable bargain. In fact, this classical idea of contract law has long ceased to reflect reality. For many reasons, including technical and societal development, information asymmetries have come to exist between the traders of goods and services and their customers. These are particularly striking where traders contract with consumers, but they can also exist in commercial relationships. As a consequence, the customer is at risk of making an uninformed and, therefore, unfavourable decision, and it is for the law to decide whether that risk could be reduced. The tool to reduce the risk is to place pre-contractual information obligations on the contracting partner who has, or is deemed to have, superior knowledge, due to being specialised in the particular field of business, in order to restore the balance of power in contracting. The functioning of this tool presupposes that the customer is ‘informable’, that is, that he or she is able to digest information and is on a par with the trader afterwards.

While information obligations are aimed at ensuring that contracts are, under normal circumstances, the result of informed decision-making processes, withdrawal rights offer the contracting partner an additional period of reflection after the conclusion of the contract. In other words, without necessarily considering the doctrinal fit, they render contracts binding only after the withdrawal period has expired, and thus operate against the principle of pacta sunt servanda. Obviously, withdrawal rights are not the rule but the exception, and they have been introduced to deal with situations in which the decision-making process of one party, usually a consumer, is regarded as incomplete at the time that the consumer has concluded the contract. The reasons are manifold, and they range from situations in which the consumer was surprised by the trader, or put under psychological pressure, or where the consumer could not have full information about a product (for example, Internet sales), to the purchase of particularly complicated and complex services (for example, financial services; see Chapter 23).

Introduction

‘European’ contract law comes in two forms: the ‘hard’ law comprising the regulations and the directives that Member States are required to implement, the so-called acquis communautaire; and the ‘soft’ law in the form of sets of ‘principles’, or restatements of the rules that the compilers think are, or should become, common to the various laws of contract within the EU. These are described as ‘soft’ law because they have no legal force; but, as we will see, they can be used in various ways by contracting parties, judges or arbitrators and legislators. To date these restatements have been academic products with no official status, just one output of the projects examining the extent to which the European laws of contract have anything in common. However, if the European Commission’s plan for a Common Frame of Reference (CFR) is implemented, it will constitute a semi-official ‘soft-law’ instrument.

‘Restatements’ of contract law

Soft law statements of principles of contract law are not just a European phenomenon. In 1980 the International Institute for the Unification of Private Law (UNIDROIT) began work on the Principles of International Commercial Contracts. These are aimed at encouraging international trade between parties in different countries with different laws of contract: rather than having to agree to the contract being governed by the law of one party, or by the law of some third country, they can agree to these ‘neutral’, ‘international’ principles. Similarly, the principles may be applied by a court or an arbitrator if the parties have agreed that their contract should be governed by ‘generally accepted principles’ or the like, without specifying in detail what those principles are. This does not wholly displace national law. The contract must always be subject to a national law, either chosen by the parties or determined by the rules of private international law; but as in a business-to-business contract most laws allow considerable freedom of contract and apply few mandatory rules, the practical effect of ‘binding the principles into the contract’ will be that most disputes will be governed largely by the principles.

Territorial sovereignty was an elusive dream of Ottoman rulers: From the 1856 Paris Conference to 1914, Western states continuously refused numerous Ottoman pleas to end extraterritoriality. The last rejection so frustrated the Ottoman government that they resorted to a policy option that the Japanese government never attempted. The Ottomans gave a memorandum to the extraterritorial powers on September 9, 1914, notifying these powers that extraterritoriality was to be abolished effective October 1, 1914 – a month before the Ottoman Empire declared war on the Allies. The Ottoman memorandum stressed the incompatibility of extraterritoriality with territorial jurisdiction and national sovereignty. The memorandum further enumerated the injustices and humiliation suffered by the Ottoman Empire because of extraterritoriality. The Allies, Austria, and Germany rejected the Ottoman unilateral abolition. It was not until 1917 that Austria and Germany accepted the abolition of extraterritoriality in the Ottoman Empire. It would take the Allies several more years; the Lausanne Treaty – the last peace treaty of the First World War – finally ended the extraterritoriality rights of the Allies in 1923.

Similar to discussions in Japan and China, the debates and negotiations about sovereignty and extraterritoriality in the Ottoman Empire/ Turkey focused on the Ottoman Empire's legal system. Apart from this similarity, however, the Turkish case offers novel insights about the relationship between sovereignty, extraterritoriality, international society, and domestic legalization. Earlier incarnations of extraterritoriality (under the rubric of capitulations) were developed within Ottoman-European relations; later, Western states reproduced these unequal extraterritorial relations in their encounters with other non-Western states, including China and Japan.

Although Mao claimed to have ended foreign imperialism in China in 1949, in fact, the most important imperialist practice in China, extraterritoriality, had been ended by the Guomindang in 1943. China engaged in a long and painful struggle for its territorial sovereignty during the period between the 1842 Opium War settlement and the conclusion of wartime treaties with the United States and Britain in 1943. When comparing the abolition of extraterritoriality in China to that of Japan and the Ottoman Empire, several factors appear different. To begin with, despite a vehement and occasionally violent Chinese nationalist opposition to extraterritoriality, Western states succeeded in maintaining extraterritoriality in China until the comparatively late date of 1943. This lengthy extraterritorial regime ended as a result of an Anglo-American initiative at a time when there was not much Chinese lobbying for its abolition. China is the only case in which the abolition of extraterritoriality occurred during wartime; in Japan it occurred during peacetime and in Turkey as a part of a peace treaty.

Scholars offer different explanations for why the United States and Britain abolished extraterritoriality in China in 1943. One group of historians links the abolition decision to the Allies’ support of China. The historian Nicholas R. Clifford suggests that the abolition of extraterritoriality was the United States’ and Britain's “gesture of support to their wartime ally.” Similarly, another historian, Akira Iriye, argues that the abolition of extraterritoriality was a “symbolic gesture to counter Japanese propaganda about Anglo-American imperialism.” A second group of historians ties the abolition decision to the de facto eradication of extraterritoriality during the Second World War.

Mainly through legal institutionalization, non-Western states secured the abolition of extraterritoriality, achieved their sovereignty on Western foreigners and commercial interest, and integrated themselves into Westphalian international society as formal equals. The Meiji rulers’ legal codification and the spread of the Japanese state court system led to the early abolition of extraterritoriality in Japan in 1899. While the legal reforms of the Ottoman elite failed during the reorganization period, the legal reforms of the Kemalist elite in the early 1920s emerged as a bargain between Turkey and Western states over the abolition of extraterritoriality in the Lausanne Treaty of 1923. The Chinese leaders’ failures to codify rules and consolidate legal authority in the 1920s explain the Western states’ retention of extraterritoriality in pre-Guomindang China. The Guomindang legal reforms in the 1930s and normative change in the United States against extraterritoriality created the conditions for the abolition of extraterritoriality in 1943.

The rise and demise of nineteenth-century extraterritoriality reveal how certain conceptions and practices of law and sovereignty sometimes served the Western imperial interests. The practices of extraterritoriality, however, had some beneficial consequences for non-Western societies, in particular for their reformist elites. These practices stimulated the transformations of indigenous legal systems, speeding their “modernization” and the “positivization” of these legal systems, which bolstered rulers’ claim to legal centralization. By means of imposing extraterritoriality and conditions to end it, Western imperial states spurred non-Western states’ adaptation of positivist legal ideas, categories, and practices. Western demands reflected both the legal positivist worldview prevalent in the West since the early nineteenth century and the belief that legal institutionalization of non-Western states could open new commercial and investment opportunities for Western merchants.

Although they differ on many points about the emergence and function of sovereignty in the international system, international relations scholars seem to agree that sovereignty emerged as a product of intra-European thought and practices. This Eurocentric consensus ignores the role Western imperial ideology and the colonial encounter played in the construction of sovereignty. In these encounters, Western state practices and judicial discourses clarified, crystallized, and consolidated the elements of sovereignty doctrine. In particular, jurists defined, identified, and categorized sovereign and nonsovereign entities. Sovereignty criteria then conditioned, shaped, and legitimized Western colonial domination by excluding all non-Western entities from the sphere of sovereignty. In important ways, the articulation of sovereignty is embedded in the domestic legal episteme of the leading imperial state(s). Jurists, statesmen, and diplomats of the imperial states articulated sovereignty norms and practices to deal with legal and political problems the colonial encounter created within the parameters of “law.” I call these parameters of law, specifically the collective understandings and discourses determining the scope, application, and underlying values of the laws, legal episteme, and I argue that the nineteenth-century British imperial legal episteme, shaped within legal positivism, is key to the construction of “Westphalian” sovereignty.

Imperialism has been a nonissue for most international relations scholars who study sovereignty. Yet, imperialism has been the most durable, visible, and significant violation of the Westphalian sovereignty of non-Western states. Scholarly neglect of this issue is particularly troubling as the norms and practices of both Westphalian sovereignty and nineteenth-century imperialism emerged around the same time, and international jurists provided the legal framework for both.

Great powers have commonly used law as an imperial tool. During the late nineteenth and early twentieth centuries, Western powers imposed a system known as extraterritoriality in Japan, the Ottoman Empire, and China. Western extraterritorial courts – not local courts – had jurisdiction over Westerners in Japan (1856–1899), the Ottoman Empire/Turkey (1825–1923), and China (1842–1943). During the mid- 1880s, for example, forty-four Western extraterritorial courts operated in Japan's treaty ports. In 1895, thiry-two British courts operated in the Ottoman Empire. Three decades later (circa 1926), twenty-six British, eighteen American, and eighteen French courts dotted China's ports and cities. Even though Japan, the Ottoman Empire/Turkey, and China were not formal colonies of the West, Western states used extraterritorial courts to extend their authority, making these countries, in Mao's term, semicolonies. In so doing, these states limited, and eventually eliminated in collaboration with groups in the local elite, the authority of indigenous legal systems. They replaced them with Western legal categories and practices. This book examines the emergence, function, and abolition of this system of extraterritoriality and offers a new perspective on the development of sovereignty in the nineteenth century. This historical perspective integrates Western colonial expansion and jurisprudence with non-Western political development and legal institutionalization.

Extraterritorial courts had jurisdiction over cases involving Western foreigners. Some cases became notorious examples of Western imperial injustices from the perspective of local people. For example, on October 24, 1886, a storm caught the British freighter Normantonoff the coast of Oshima Island, Japan, whereupon the freighter hit a rock and sank. All of the Japanese passengers drowned, but the British officers and crew took the two lifeboats and survived.

The rise and decline of Western legal imperialism in the nineteenth and early twentieth centuries suggests a different period and perspective to understand “Westphalian” sovereignty. Essentially, “Westphalian” sovereignty is related to two nineteenth-century developments: the dominance of legal positivism and European colonial expansion. Contrary to the Eurocentric consenus, sovereignty was not developed and consolidated solely within Western thought and practices, but rather in the encounters of Western colonial – particularly British – powers with Asian states. In the process of creating the British Empire's territorial rule in the forms of colonies, dependencies, and protectorates, and extraterritorial rule in the form of extraterritorial jurisdiction over British citizens, subjects, and corporations in Asia, British imperial practices clarified, crystallized, and consolidated the sovereignty doctrine. These practices were embedded in a legal episteme that excluded non-Western entities and understandings from the sphere of law and sovereignty. The conceptual gerrymandering of inclusion and exclusion around normatively powerful concepts such as law, courts, and sovereignty was intimately tied to imperial politics.

This chapter links the rise and decline of extraterritoriality to the rise and decline of positive law and British hegemony from the early nineteenth century to the mid-twentieth century. I develop my argument in three sections. First, I describe the rise of extraterritoriality and the denial of non-Western law and sovereignty. I also discuss how explanations solely grounded on material power and culture overlook the crucial role the legal episteme and domestic legal institutions played in nineteenth-century imperialism. Second, I detail how non-Western hostility toward extraterritoriality replaced the prior non-Western rulers’ reluctant cooperation with Western states over extraterritoriality.

Case

The politicians Smith and Jones exchanged emails in which they discussed a planned tax increase and agreed that this plan should be kept secret until after the election. An unknown person at the internet company which ‘delivered’ the emails copied them and sent the copies to a newspaper. The newspaper informs Smith that it plans to publish the emails.

1. (a) Is Smith entitled to an injunction against the imminent publication of the emails?

2. (b) Would it make a difference if the conduct of the unknown person constitutes a criminal offence?

Discussions

Austria

Operative rules

Smith cannot initiate any legal proceedings.

Descriptive formants

§ 77 UrhG provides for the protection of letters, diaries and similar confidential records against public reading and publication. Arguably, an email may be regarded as a similar confidential document, like a letter, since it serves the same purpose.

Only documents in written form are protected by § 77 UrhG. An email fulfils this criterion. Although its content is saved, transmitted and presented electronically, it can still be read from the monitor. As a consequence, § 77 UrhG is directly applicable.

§ 77 UrhG only prohibits the dissemination of confidential documents if the ‘legitimate interests of the writer are affected’ (cf. § 78 UrhG and Cases 7 and 10). The honour and privacy of an individual are undoubtedly ‘legitimate interests’.

Introduction

The remarkable story of the common-law tort of invasion of privacy in the United States begins with a piece of scholarship published in 1890, eventually hailed as ‘the outstanding example of the influence of legal periodicals upon the American law’. It urged courts to validate an individual's interest in avoiding exposure to unwanted, unwarranted publicity generated by an increasingly aggressive mass media, and argued that the common law could protect this interest by recognising a new cause of action that would provide compensatory damages for tortious infringements of an individual's right to remain out of the public eye. As a direct consequence of this single publication, the privacy tort wove its way into the tapestry of American jurisprudence.

However, in the almost dozen decades since the article appeared, the concept of privacy as an interest to be protected by tort law has proved to be both complex and elusive. Courts have had difficulty determining whether to impose liability for a variety of specific violations plaintiffs have alleged; commentators have struggled to extract from the evolving case law a workable definition of the new tort; and the United States Supreme Court has interpreted the constitutional barrier against restricting freedom of the press as seriously restricting the reach of the tort. At the same time, the technological capacity for invasions of privacy has expanded enormously, and societal attitudes about privacy are no longer what they were in 1890.

Case

After a famous statesman's retreat from politics, his former secretary published a biography revealing many details about his family life. Can the statesman sue the author and the publisher for damages and injunction?

Discussions

Austria

Operative rules

Whether the statesman is entitled to sue his former secretary and the publisher of the book for damages depends on particular circumstances.

Descriptive formants

In general, § 7 MedienG, which protects the right of ‘utmost intimacy’ (‘höchstpersönlicher Lebensbereich’), for example family life, health and sexual life, corresponds with Art. 8 ECHR. In principle, all persons – including politicians, statesmen and other ‘public figures’ – are protected against unlawful public exposure through media reports, books, etc.

If the allegations made are true, under § 7, subs. 2(2) MedienG, it is of central importance whether the published facts relating to the claimant's private life are strongly connected with his/her public life. In addition, the particular behaviour and intention of the party infringing the privacy of the claimant is relevant.

Austrian courts and scholars combine these elements in a flexible way: the less the private details (e.g. conjugal disputes between the statesman and his wife) are connected with the claimant's public life and the more malicious their description, the more plausible a claim for damages even if the story is true.