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More on the Hague Convention
RadioheadKid writes: "An article at Cnet news discusses the implications of the Hague Convention on Jurisdiction and Foreign Judgments. According to Richard Stallman of the Free Software Foundation, "People don't realize what a disaster this could be." It appears that the treaty may not make it to ratification, but "we can't assume it will die of its own accord," Stallman said. "We have to stop it." One of the examples of the implications of this treaty is US based web sites having to comply with the narrow laws of countries like China or Morocco." Quite an informative article about the current state of the treaty. CPT has a set of pages with lots of background information on the treaty.
The author of the article forgets one key component of enforcing a judgment: jurisdiction. He makes it sound as if all one has to do is go to France--for example--sue someone there, and bring the judgment to any Hague Treaty signatory to get the judgment enforced. However, the Hague Treaty is about jurisdiction, too. It has detailed rules governing how courts can establish jurisdiction over foreign parties.
There are two things which prevent judgments from being enforceable in foreign countries. The first is the simple idea of sovereignty: France cannot send its police over into the United States to seize the bank account of a person who has a French judgment against him. France has no power to enforce its laws outside its own borders (and the Hague Treaty will not change this). The second thing is related to sovereignty: a French court does not have jurisdiction to resolve questions of my rights unless I am within France's borders or have established some kind of contact with France that makes France's jurisdiction over me reasonable. In other words, if I am not within France's borders, France does not have the sovereign power to decide my rights, because France's sovereignty stops at the border. However, theoretically, if I have established some kind of sufficient contact with France (opening a store there, or selling goods over the internet specifically to people in France), then it sould be reasonable for France to decide my rights (even if they cannot force me to show up) and have that decision, or judgment, be enforceable.
Things do not work this way now. Right now most countries generally have laws governing jursidiction over foreign parties. For example, French law says that if you are a French citizen, you can obtain a judgment over a foreign party for a dispute that arose anywhere in the world just by bringing the case in French court. Then god help that foreign party when they show up in France and the French citizen gets to enforce that judgment. Further, in the United States we give respect to foreign judgments based on the principle of comity. Comity is basically reciprocal respect: the U.S. will enforce French judgments if France will enforce U.S. judgments. (Note that in practice, right now, the U.S. has more respect for French judgments than France has for U.S. judgments.) However, this principle of comity is limited by our notions of due process of law. The U.S. will not enforce judgments that fail to meet a minimum standard of due process protections. For example, I doubt if a U.S. court would enforce a judgment from a secret, Iranian military court (where people are tried without even being allowed to be present to mount a defense or confront their accusers).
The Hague Treaty will change all this for its signatories. First, of all, it provides general rules for jurisdiction. Thus, France would not be able to keep its law that any French citizen can sue any foreign party in a French court and get an enforceable judgment. Each country would have to provide reasonable rules for jurisdiction. Second, the principle of comity (as between signatories) would drop out of the picture. In the U.S., we would already have adequate assurance that a foreign judgment meets our standards of due process. France would be forced to give the same respect U.S. judgments as the U.S. gives to French judgments.
The upshot is that the article ignores the concept of jurisdiction. Just because a French business obtains a judgment against me in France, even under the Hague Treaty, that judgment is not automatically enforced unless it is valid, i.e., the French court had jurisdiction over me. If the French court did not follow the Hague Treaty rules on jurisdiction, which should be fair to all countries, then that judgment will not be valid (think of it as an ultra vires exercise of sovereignty) and it will not be enforceable in other Hague signatory nations.
For those of you with access to Westlaw or Lexis, you can read more about the concept of jurisdiction and the Hague Treaty in a Cornell Law Review article, Jurisdictional Salvation and the Hague Treaty, by Professor Kevin Clermont, published in issue 1 of Volume 85 (November 1999). This is the legal cite: 85 Cornell L. Rev. 89. (You can also read my article for some background on the law of jurisdiction in the U.S., 85 Cornell L. Rev. 1742 (Sept. 2000).)The author of the article forgets one key component of enforcing a judgment: jurisdiction. He makes it sound as if all one has to do is go to France--for example--sue someone there, and bring the judgment to any Hague Treaty signatory to get the judgment enforced. However, the Hague Treaty is about jurisdiction, too. It has detailed rules governing how courts can establish jurisdiction over foreign parties.
There are two things which prevent judgments from being enforceable in foreign countries. The first is the simple idea of sovereignty: France cannot send its police over into the United States to seize the bank account of a person who has a French judgment against him. France has no power to enforce its laws outside its own borders (and the Hague Treaty will not change this). The second thing is related to sovereignty: a French court does not have jurisdiction to resolve questions of my rights unless I am within France's borders or have established some kind of contact with France that makes France's jurisdiction over me reasonable. In other words, if I am not within France's borders, France does not have the sovereign power to decide my rights, because France's sovereignty stops at the border. However, theoretically, if I have established some kind of sufficient contact with France (opening a store there, or selling goods over the internet specifically to people in France), then it sould be reasonable for France to decide my rights (even if they cannot force me to show up) and have that decision, or judgment, be enforceable.
Things do not work this way now. Right now most countries generally have laws governing jursidiction over foreign parties. For example, French law says that if you are a French citizen, you can obtain a judgment over a foreign party for a dispute that arose anywhere in the world just by bringing the case in French court. Then god help that foreign party when they show up in France and the French citizen gets to enforce that judgment. Further, in the United States we give respect to foreign judgments based on the principle of comity. Comity is basically reciprocal respect: the U.S. will enforce French judgments if France will enforce U.S. judgments. (Note that in practice, right now, the U.S. has more respect for French judgments than France has for U.S. judgments.) However, this principle of comity is limited by our notions of due process of law. The U.S. will not enforce judgments that fail to meet a minimum standard of due process protections. For example, I doubt if a U.S. court would enforce a judgment from a secret, Iranian military court (where people are tried without even being allowed to be present to mount a defense or confront their accusers).
The Hague Treaty will change all this for its signatories. First, of all, it provides general rules for jurisdiction. Thus, France would not be able to keep its law that any French citizen can sue any foreign party in a French court and get an enforceable judgment. Each country would have to provide reasonable rules for jurisdiction. Second, the principle of comity (as between signatories) would drop out of the picture. In the U.S., we would already have adequate assurance that a foreign judgment meets our standards of due process. France would be forced to give the same respect U.S. judgments as the U.S. gives to French judgments.
The upshot is that the article ignores the concept of jurisdiction. Just because a French business obtains a judgment against me in France, even under the Hague Treaty, that judgment is not automatically enforced unless it is valid, i.e., the French court had jurisdiction over me. If the French court did not follow the Hague Treaty rules on jurisdiction, which should be fair to all countries, then that judgment will not be valid (think of it as an ultra vires exercise of sovereignty) and it will not be enforceable in other Hague signatory nations.
For those of you with access to Westlaw or Lexis, you can read more about the concept of jurisdiction and the Hague Treaty in a Cornell Law Review article, Jurisdictional Salvation and the Hague Treaty, by Professor Kevin Clermont, published in issue 1 of Volume 85 (November 1999). This is the legal cite: 85 Cornell L. Rev. 89. (You can also read my article for some background on the law of jurisdiction in the U.S., 85 Cornell L. Rev. 1742 (Sept. 2000).)
In the UK, the internationalisation war is basically being fought about the country's place in the EU. Unfortunately, much of the debate is drowned in Xenophobic rhetoric, and I'm not convinced this sort of article (or at least parts of it) are going to do anyone any favours. Whilst of course different people hold different viewpoints, many people go on record as saying this is going to be terrible for the US because the US (with their obviously perfect legal system) will have to follow other countries rules. In the context of a debate about coming under international juristriction, such US-centric moans are absurd, just as the UK-centric ones about the EU are absurd. Nobody is suggesting that the convention is trying to lump the bad bits of other countries laws onto the whole world - the problem with the convention is that people disagree about which parts /are/ bad (most legislators think their own country's laws are the way to go). I'm as much terrified of what I see as insane and dangerous laws about freedom of speech, bearing arms, etc. being forced upon the UK (/EU) as I am of having to obey the DMCA.
So basically, xenophobically claiming that this convention is going to hurt *MY* country doesn't engage with the debate, and if these people, even RMS, want to make a serious defence against it, they're going to have to do so on the basis that legislative imperialism is bad, not simply on the basis that US law or UK law is perfect and we don't want other countries screwing it all up for us. Accept that different countries do things different ways and you might show that this is bad - it's only those that think there's a perfect universal law that would support such legislation.
It was my understanding that Yahoo et all did this to prevent being kicked out of countries like France, etc. But for the vast majority of websites in teh US that DON'T have an international presence, I can't imagine the Hauge sending troops in to turn down my website on US soil and any attempt to do so will surely bring in teh Supreme Court on constitutional free speech issues. What am I missing?
Heck get real - if you don't like whats on a US site, block it like China does but leave me the hell alone. The who pull the network cable out of my PC over my dead body thing ;)
Top Most Bizarre/Disturbing Error Messages
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So in other words...Imagine that. The RIAA endorsing a forum that gives them complete control, regardless of what almost every other major business in the US wants. Hmmmm...
Random Musings
Despite all the objections we have, the main reason I see our legislators rejecting it is that it obligates US-based ISPs to be content police for every jursidiction on earth, which is clearly ridiculous. AOL, @Home, and Earthlink will scream bloody murder about this obligation, and they'll be fighting the good fight for once. If anything remotely like this is to be ratified, it should place the burden on China, Morocco, et al to reject content they find unacceptable, even if that means banning everything from outside thier borders... after all, I mean, if Morocco has a law against all depiction of nudity (for instance), I suppose I respect that law, but let THEM enforce it. That's not the job of my U.S.-based ISP, thank you very much.
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Or Europe based web sites having to comply with the narrow laws (concerning e.g. nudity, drugs, or cryptography) of hyporcrite US.
Pot, kettle, etc.
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OTTERS RULE.
Perhaps this is a good time for those of us who read /. to consider the reality of the US system of government. Senators, congresspersons, and even presidents cannot know absolutely everything about every issue. They simply haven't the time, energy, or desire. And we can't condemn our representatives for this.
Instead, we need to individually contact our representatives. They aren't all evil, and they actually do care about their constituents. But they have to make decisions based on the information that they receive. It is our responsibility as citizens to help our government make proper decisions.
It is irresponsible for us to simply complain when our government is on the brink of doing something terrible for our rights and needs. We must instead be an interactive force in government. The NRA and AARP are so successful as lobby groups because of their members. Perhaps it's time for geeks to think about membership in a similar lobbist group. Shoot, if the FSF gave out membership cards and bumper stickers for $50 a year, I'd do it.
Long, cute, or funny Sigs are just another form of over compensation, used by geeks, nerdz, etc.