Rethinking Flow Beyond Control – An Outreach Legal Essay

Jean-Sylvestre Bergé who is a law professor at Université Côte d’Azur (CNRS GREDEG) and a former member of the Institut Universitaire de France has recently published a new open access essay titled Rethinking Flow Beyond Control – An Outreach Legal Essay (ed. DICE, coll. Confluence des droits collection, 2021, 154 p., already announced here).

This work is the continuum of his previous legal essay titled “Situations in Motion and The Law – A Pragmatic Epistemology” (Les situations en mouvement et le droit – Essai d’une épistémologie pragmatique, Dalloz, 2021, announced here) which examines a number of legal constructs in national, international or European contexts and the way they respond each time they are faced with “situations in motion”. As explained by the author, “it was an attempt at deconstruction and reconstruction with the aim of offering a series of tools that could improve our understanding of both ordinary and complex circulation phenomena”.

Since the very inspiring work of Jean-Sylvestre Bergé is about circulation across territories, following a global approach, I have interviewed Jean-Sylvestre to know more about his new essay from a private international law perspective.

 — Can you share with us the central idea of your work? 

First of all, I would like to make it clear that this book is written for a wide audience, not just lawyers, and writing it in English allows me to capture all the exchanges I had during its preparation and now to share them as widely as possible.

The book is divided in two parts.

The first part is an epistemological analysis of circulation and law through the lens of circulation. The approach is therefore different from the one traditionally chosen, particularly by private international law scholars, who study the “law of circulation” (e.g. legal aspects of movement of goods or persons). I reverse the perspective: how does the phenomenon of circulation question the constructions of law and in particular those of private international law?

For example, when we study the cross-border circulation of judgments or civil status documents, there is a disciplinary pre-understanding. The analysis is made under the rules and methods of the subject. The book proposes to “decompartmentalize” knowledge and analysis, by taking various examples in several disciplinary fields.

The second part of the book aims at characterising circulation and pushing it to a point of paroxysm: this is the figure of “rupture” that I call the “total loss of control in circulation”. I think about flows produced by all of us in the everyday life and the loss of control of the stakeholders, such as a family, a company or even the whole world. This figure of loss of control is interesting because it is a “clash of the titans” with the law. Law is dominated by the control of situations and, for my part, I work on the loss of control of flows. This is not an unknown object of study, but lawyers find it difficult to accept! Think of the nuclear risk and its legal treatment. Control is certainly not total…

 — If we take the example of cross-border circulation of civil status documents, when do we reach a situation of “loss of control”? Can private international law regulate the situation “beyond control”?

Let’s take the specific case of children born of surrogate motherhood abroad (where it is legal), and then the request for transcription of the child’s birth certificate in the country where the parents live and which prohibits this method of procreation, such as France. In this context, the core issue could be the circulation of the child. There are mechanisms that allow for the circulation of the child; consequently, this infers all subsequent constructions, including those of private international law, which deal with and regulate the circulation of civil status records of these children born of surrogate motherhood.

In France, this circulation was liberated by the “Taubira” circular concerning travel documents allowing the child to leave his/her State of birth for France, even though surrogate motherhood is prohibited in France. If we want to fight surrogate motherhood (from the point of view of its opponents), we must attack the circulation, block it, prohibit it… Can we ban these children from circulation and how can we do it? There is a “reading template” to respect, starting with the respect of the fundamental rights of the child with regard to circulation or non-circulation.

This is another way of considering this topic, renewing the usual debate on the prohibition (or not) of this mode of procreation and the cross-border “recognition” of the parent-child relationship; it is the prism of circulation beyond control, following an epistemological approach of private international law.

 — What is the main contribution of your work to private international law theory and practice?

The book invites us to revisit the legal acquis (including private international law acquis) by using the language of an epistemology of circulation and of a total loss of control, such as internationality, extraneity, mobility or relocation (see the index of the book). There are well-known concepts in private international law that could allow the issue of circulation to be brought back to the center of the proposed analysis. For example, in France, the “Matter doctrine” according to which a contract is international if it involves the interests of international trade through the ebb and flow of financial values across borders.  In my opinion, this doctrine is not sufficient to consider that the issue of the international dimension of a situation is settled. It has not provided for a conceptual framework for circulation phenomena under private international law. It can usefully be rethought through the concept of flow in the context of situations in motion.

To this end, I propose new notions, such as a distinction between cases in which the law tackles situations in motion from a “consequential perspective” (i.e. looking at its causes and effects) or “in and of itself” (i.e. from end to end). This distinction is very interesting because it allows to study mechanisms of private international law to see whether they deal with mobility from beginning to end or, on the contrary, whether they only deal with its causes or effects. It is often the latter answer that prevails because it is the easiest way for the law in general. Let us think of the expulsion of an individual from a territory: it is a question of apprehending an incoming flow. There is a legal apparatus that deals with the issue only by its causes or effects in this case.

In contrast, the law can grasp the movement in its entirety, from start to finish: this is the case in extradition conventions, in the mechanism of the European arrest warrant, or in private international law of the legal regime for the return of illegally displaced children, in the Hague Convention on international child abduction. This text puts in place a very sophisticated mechanism based on a very high level of cooperation between public authorities, which makes it possible to apprehend the circulation and return of the child with immediate effect.

In this contrasting context, the question is which path the law chooses to take in its legal treatment of circulation? This is a legal policy choice with varying levels of construction. End-to-end mechanisms are fragile, often held in check and more complex to set up and implement because they require an understanding across territories of the complete mechanisms. The treatment of the subject by its causes or effects is easier, the law knows how to “receive” or “send” a situation in motion. It is a much more unilateral rationale and, whatever one may say, unilateralism is a key-component of private international law…

 — The book also develops a “modal analysis of circulations”, distinguishing between the forms of circulations that lead to different legal regimes.

Yes, this approach is well-known in transport law: depending on the type of transport by air, sea or road, there are adapted legal regimes. We can use this rationale to analyse some mechanisms of private international law.

For example, circulation in law is consubstantial with its subject. In private international law, is the person consubstantial with its object? People should be allowed to circulate without losing their status. This question has already been examined but the analysis can be renewed. We know that we cannot let everyone circulate freely. So as soon as we deal with movement, it is because we have the right to control it; if we deal with controlling movement, it is because movement is not free. In law, we do not talk about movement when it is free; if the law talks about it, it is because it controls it. Hence my counterpoint: loss of control!

 — The book proposes another concept, which could be very useful for international lawyers, that of the “normative space of flows”. Can you tell us more about it?

I start from the idea that it is the flow that designates the perimeter of actors in a field with cross-border implications, and brings them into contact (e.g. a buyer and a seller in an international contract). This flow is composed of a set of factual and legal data. Sometimes, this can give rise to collateral damage that is difficult to grasp and that draws new, global perspectives. In this context, my theoretical proposal is to say that the flow creates its own space and that this space is capable of producing its own law.

For example, a transatlantic air flight is a normative space of flow; it should be possible to study it as the ephemeral constitution of a legal order that federates around its object the movement of the plane from Paris to Toronto, a set of rules of private law, public law, soft law, hard law, requirements on corporate social responsibility, etc… All these rules have the flow as their object. If I put the flow back at the center of the legal order, I redraw the relationships between the legal norms at the start of the flow.

There are a large number of possible examples.

To return to the example of surrogate motherhood in an international context, the circulation of the child is a normative space of flows that disrupts the classic legal framework for understanding this phenomenon.

 — In this normative space of flows, where does control lie? Is the circulation always “beyond control”?

It depends! Circulation can be under control or beyond control for the law in a normative space of flows. In the hypothesis of a plane accident, its legal treatment can be analysed through the normative space of flows but the law will have difficulty in regaining control of the situation, given the complexity of the cross-border legal treatment of the situation (i.e. compensation for material and physical damage, search for the responsibilities of the parties involved, etc.).

The problem is that there is no “meta rule” of private international law to seize one single court with a unique applicable law at the global level. In the example of an air crash, there is inevitably a scattering of the procedure with victims who are culturally different, the evidence is spread over several territories, the area of the accident may even be a-national (on the high seas), etc.

Finally, we may wonder if the law – including private international law – is capable of dealing with the phenomenon of circulation. The answer is difficult. When it circulates, the answer is positive, but when the circulation is difficult or when there is no circulation at all, we wonder. This brings us to the limits of the legal treatment of situations in motion. Why is this so? Because the flow cannot produce its own normative space.

 — What about EU private international law? In what way does the unification of PIL rules in the European area contribute to the discourse on situations in motion and its legal treatment?

The European system of private international law is a normative space of flows. This may seem obvious, but it is no small thing to say! It is a legal system that modifies the reference system of private international law. This is huge! It was originally the (national) forum and sometimes we looked a little at the lex causae, but that remained rare. And now we have a supranational construction that anchors a space that is not a territory as a point of reference. This changes everything: it is a normative space of flows like a national forum.

In this context, the book proposes that lawyers and lawmakers take the flow as the object of normative construction. This could perhaps make it possible to overcome certain failures of the law to embrace situations in motion. But there is strong resistance because each legal order wants to keep its perimeter, its control and deal with the situation alone, even if it goes beyond its borders…

 

In conclusion, I would like to thank Jean-Sylvestre for this fascinating analysis of situations in motion, based on the concept of flow, and this invitation for lawyers, including experts in private international law, to rethink the “applicable law” (i.e. from its conception to its implementation).