Jurisdiction of States in the metaverse

Severgin Aleksandr Dmitrievich Postgraduate student; Faculty of Law; St. Petersburg State University 77 Savushkina St., Saint Petersburg, 197183, Russia st085649@gmail.com

Introduction

Jurisdiction in international law is usually understood as the state's authority to regulate or otherwise influence people, property, and circumstances ^{[23, p. 645]}. It is based on state sovereignty ^{[41, p. 19]}. The fact that states will establish their jurisdiction in the metaverse is not disputed, but on the contrary, it is increasingly being raised in the scientific literature ^{[5, P. 32]}. Therefore, we would like to consider the possibility of the State establishing its jurisdiction in the metaverse.

The metaverse should be understood as a special kind of virtual space characterized by: 1) convergence of real and virtual space; 2) closer connection with the real world; 3) unprecedented interoperability ^{[33, pp.50-51]}. In our opinion, it can be considered as a "space", i.e. a place where the power of the state can exist. In other words, it can be considered as a continuation of the state territory, for the following reasons.

Firstly, approaches to the concept of "state territory" in international law have never been homogeneous, as clearly evidenced by historical experience: in international law, territory has long been considered as a kind of "object" in the sense of private law, which was subject to the right of ownership of the sovereign (dominium) ^{[35, 845-846]}. Later, international legal science gradually began to reject this approach: the state territory was no longer considered through the categories of private law, and began to be viewed through the prism of public law - as a place in which there is a sovereign authority. In other words, the territory began to be considered as the environment of the imperium's existence ^{[14, p.66]}.

Secondly, the content of the concept of the territory of the State has also evolved. The traditional approach assumed that the State territory was a natural, geographical environment. However, consensus on the content of the concept of the territory of a state did not always exist: for example, airspace began to be considered as a state territory only when States discovered the possibility of using such space for civil or military purposes ^{[26, p. 182]}. Up to this point, airspace in Roman law was considered as res communis ^{[31, p.165]}. I.V. Leksin notes that with the development of technology and economic activity, it became customary to include sea cables, underground and aboveground spaces in the territory of the state. In other words, the content of the concept of a state territory is not constant or absolute, it depends on external circumstances and the general context of human development ^{[30, p.458]}.

The understanding of the concept of the territory of a State not in a geographical context, but as a socio-political category is clearly illustrated by modern international legal studies. This understanding of the concept of the territory of a state is increasingly being addressed in matters of "disappearing states" ^{[40, pp.64-65]} or in relation to virtual space (cyberspace) ^{[2, pp.23-25]}. Let us make a reservation that in this work the terms "cyberspace" and "virtual space" are used synonymously by us, since they denote an environment generated by computer means within which social interaction is possible ^{[33, p.46]}.

For example, L.V. Terentyeva argues that "[due to] the immutability of the legal meaning of the concept of "territory", its substantive components are changing due to the inclusion of new virtual spatial units that do not have a territorial, tangible, planar aspect. The inclusion of cyberspace in the concept of the territory of the state is justified both by the fact that cyberspace as a sphere of realization of public relations cannot be outside the sovereignty and jurisdiction of the state, and by the fact that if the supremacy of the state is established in relation to a particular spatial unit, then this unit should be attributed to the territory of the state, since its legal significance lies in designation of the spatial sphere of competence of the state" ^{[34, p.147]}.

It is difficult to agree with L.V. Terentyeva that "cyberspace as a sphere of realization of public relations cannot be outside the sovereignty and jurisdiction of the state," since from her words it follows that public relations cannot exist outside state sovereignty. However, history has known cases when a certain space within which social relations existed was not under the sovereignty of the state. Such spaces were designated in international law as terra nullius, i.e. literally "no man's land". The very fact of their existence confirms that the presence of social relations in the space itself cannot indicate the presence of a "state presence" in the space. It seems that the inclusion of virtual space in the territory of the state is possible not because it acts as a "sphere of implementation of public relations", but for other reasons that lie in the very nature of power. It is no coincidence that its nature, revealed through different approaches and in different cultural paradigms, is associated with space.

Thus, E. Fitzmaurice argues that even in early Roman sources, "the connection between political society and the place where people lived became tangible due to the occupation (of space)" ^{[6, P.22]}. A. Brett, critically examining the category of "space" in the work of G. Grotius "De iure belli ac pacis" He writes that "the spaces of the globe, bounded by natural features, are a territory, a place subject to sovereignty, a place that must be defended by state weapons from state enemies" ^{[3, p.8]}. I.A. Isaev considered space in a similar way, pointing out that "[and] the Empire has always lived in space and at the expense of space" ^{[36, p.15]}. K. Schmitt, quoting D. Locke, also noted that "the essence of political power lies primarily in jurisdiction over the earth. By jurisdiction, he [...] understands any domination based on force and any supreme authority in general" ^{[42, p.15]}. M. Foucault, in relation to the three forms of social structure – discipline, sovereignty and security, spoke about the problems of space uniting them, where sovereignty "from the very beginning is something realized within the boundaries of a certain territory" ^{[39, p.28]}.

It follows from the above that space is always immanent in power: it is impossible to imagine a sovereign apart from a place where his power would exist (some sociologists consider space through the metaphor of a "container of power") ^{[38, p.13]}. In this regard, the conclusion is also true that any government is always characterized by expansion.

Thus, the very argument of L.V. Terentyeva, justifying the inclusion of virtual space in the concept of the territory of the state, seems inaccurate. In our opinion, it is precisely the interest and the ability of the state to exercise its power in the virtual space that makes it possible to consider it as the territory of the state.

At the same time, the main problem of virtual space for the purposes of its reduction to the concept of the territory of the state is the impossibility of its geographical surveying. This feature does not allow us to fully identify the specific limits of the jurisdiction of States. The metaverse, in turn, allows such lines of demarcation to be drawn more clearly. The metaverse involves giving information data a "visual" form, i.e. the metaverse "materializes" the Internet and involves "copying" real-world objects into virtual space, as evidenced, among other things, by reports of international organizations ^[10]. Thus, it is assumed that one of the key features of the metaverse – the convergence of real and virtual space – causes the creation of "virtual twins" of states, or in D. Friedman's terminology, "mirror worlds" ^{[7, p.14]}. The existence of cities or, possibly, entire states in the metaverse supports the idea expressed by professors O. Korhonen, M. Bruntsevich, M. Arvidsson that virtual and analog spaces may have become twins ^{[13, P.158]}.

The presence of such "virtual counterparts" of states, in our opinion, allows us to talk about the creation of a "virtual spatial unit", or the manifestation of the imperium of the state in the metaverse. If there are "virtual counterparts" of states, we can also talk about legislative and executive jurisdiction in the metaverse.

The emergence of new jurisdictional problems in the metaverse leads us to believe that in order to solve them, we need appropriate legal instruments that would allow us to resolve issues of State jurisdiction in the metaverse with a greater degree of certainty. It should be noted that international law knows two types of jurisdiction: territorial, i.e. the exercise of power within a state territory; and extraterritorial, i.e. the exercise of power outside a geographical territory ^{[20, pp. 5-6]}. And if the basis for establishing territorial jurisdiction is state sovereignty over the territory, then there are various grounds for establishing extraterritorial jurisdiction, which, as a rule, are associated with the interests of the state. In this regard, we will find out to what extent some of the principles already known to international law apply when a State establishes its jurisdiction over the metaverse.

Territorial jurisdiction

The possibility of establishing jurisdiction by the state has historically been associated with its geographical territory, which does not raise questions in science and practice ^{[17, p.537]}. At the same time, the problem of applying territorial jurisdiction to the virtual space, which is the metaverse, is difficult due to the fact that it is difficult to link the relevant legal relations to a specific place due to the lack of territorial boundaries in the virtual space. This fact justifies the existence of different approaches to substantiating territorial jurisdiction in the virtual space.

Thus, States provide territorial jurisdiction through: localization of data, prohibition (restriction) of access to certain information, localization of operators' activities on the territory of the relevant state (the so-called "landing") ^{[37, pp. 98-104]}. For example, the African Union Convention on Cybersecurity and Personal Data Protection, which entered into force on June 8, 2023, proceeds from this. According to the sub-item. "c" paragraph 1 of Article 9 of this Convention, it applies to the processing of personal data that takes place exclusively on the territory of a State party to the Convention. In other words, national legal systems link the emergence of their jurisdiction in the virtual space with the question of whether the physical infrastructure is located on their territory.

It is impossible not to mention separately approaches based on the territorial principle of jurisdiction, but at the same time having extraterritorial consequences. We are talking about the so-called "territorial extension" ^{[19, p.6]} of jurisdiction over personal data. We can find such an approach at the EU level in paragraph 1 of Article 3 of the GDPR, which reflects provisions that are actually extraterritorial in nature: "[h]this regulation applies to the processing of personal data in the context of the activities of the controller's organizational unit (according to Article 4 of the GDPR, a controller is any natural or legal person, government agency, institution or another body that independently or jointly with others determines the purposes and means of processing personal data) or a processor in the Union, regardless of whether the processing is carried out in the Union or not."

As a result, which of these approaches can be applied to the metaverse?

The approach related to the physical localization of personal data is applicable to the metaverse only to a limited extent. This is due to several problems. The first is that this approach involves extending jurisdiction exclusively to personal data (excluding other data that may exist in the metaverse). The second problem is that the work of the metaverse on the blockchain assumes that nodes, which, in fact, are capable of acting as a repository of personal data, may be located on the territories of other states and thereby complicate or completely exclude the possibility of influencing such data. We also note that the GDPR approach eliminates the second problem, since it links jurisdiction not to the location of the infrastructure, but to the personal data itself. In other words, regardless of where such data is processed, if it concerns citizens of the Union, the EU will have jurisdiction over them.

As for the prohibition (restriction) of access to certain information in the metaverse, this measure may be dictated by the desire of the state to protect its territory from "undesirable" foreign online activities. However, there are also some problems related to the effectiveness of these measures in relation to the metaverse. The first problem is rather general, and is the possibility of circumventing locks through certain services. The second problem also lies in the fact that the metaverse will run on the blockchain, and therefore, the possibilities for imposing appropriate restrictions will directly depend on the degree of impact of the organization controlling the metaverse on it and users.

The second problem also concerns the establishment of territorial jurisdiction of a State based on the "landing" of organizations controlling the metaverse on the territory of the respective States, i.e. it is directly related to the degree of decentralization. Definitely, through such actions, the state can establish territorial jurisdiction in the metaverse through an "intermediary" ^{[21, p.59-60]}. At the same time, the degree of effectiveness of such jurisdiction will be directly related to the ability of such organizations controlling the metaverse to influence relations in it.

Some authors also put forward the thesis that the territorial jurisdiction of the state can be ensured through the doctrine of effect (consequences) in the metaverse ^{[25, pp.54-55]}, even taking into account its traditional criticism ^{[1, pp.106-107]}. We agree that the establishment of territorial jurisdiction in the metaverse is possible through the application of this doctrine, i.e. the establishment of State jurisdiction over actions in the metaverse that have consequences on its physical territory. On the one hand, this approach eliminates the contradiction associated with the non-physical nature of the metaverse, since intangible consequences can act as a territorial reference. On the other hand, it is impossible not to take into account its really fair criticism: as noted by D. Norton, "the "doctrine of the effect" of territorial jurisdiction, [whatever meaning it may have and whatever criteria it may be guided by, is the subject of considerable disagreement" [16, p.385]. The disagreements mainly concern the extent of the consequences that took place on the territory of the state.: Without defining clear criteria, it is likely that situations will arise in which several States will consider themselves competent, which will lead to conflicts of jurisdiction. In our opinion, this option does not contribute in any way to cooperation between States in this area.

Bearing in mind that the metaverse presupposes a close connection with the real world, as well as a range of possible legal relations close to the real world, is it possible to say that territorial jurisdiction fully covers them? In our opinion, however, not the entire range of legal relations that may arise in the metaverse is covered by territorial jurisdiction. As we pointed out earlier, international law is also known for extraterritorial jurisdiction, that is, the extension of State power beyond its territory. In this regard, we will consider some of the reasons for its establishment in relation to the metaverse.

Extraterritorial jurisdiction

Universal jurisdiction

Universal jurisdiction in international law refers to the ability of a State to apply national law in relation to certain crimes, regardless of the place of commission of the crime or the nationality of the accused ^{[28, pp.274-275]}. It should be noted that these proposals are not something new: to one degree or another, modified forms of universal jurisdiction were proposed as a solution to the problems of jurisdiction at the early stages of the development of the Internet ^{[15, p. 230]}.

However, this approach is not widespread in the doctrine for the following reasons. Firstly, the concept of universal jurisdiction is a unique basis for the state to establish its jurisdiction, related to the desire of the international community to promote the punishment of crimes that affect all of humanity; the conditions of its application, as a rule, imply a violation of the norms of jus cogens (for example, violation of the prohibition of genocide or torture) ^{[28, p.221-222]}. Secondly, the establishment of universal jurisdiction as a general rule would lead to a situation in which the courts of any State would be competent to consider disputes arising on the Internet in the absence of any jurisdictional link between such a State and the corresponding action on the Internet ^[2].

A universal jurisdiction limited to a list of crimes dangerous to all mankind is clearly not intended to extend to the numerous and diverse, including civil, legal relations that arise on the Internet and will arise in the metaverse. In this regard, the Geneva Center for the Settlement of International Disputes rightly notes that the use of universal jurisdiction in the metaverse is more likely to "confuse" public relations, due to the possibility of lawsuits in any state ^[2].

As the metaverse evolves, we do not exclude the possibility of applying universal jurisdiction in the future, with respect to acts committed in the metaverse. However, at the moment, given the current state of international law regarding the range of situations in which States can exercise universal jurisdiction, it seems that the grounds for its application to relations in the metaverse will either be absent or extremely rare.

The protective principle of jurisdiction

The protective principle of jurisdiction means the extension of the legislative, executive or judicial jurisdiction of a State to crimes committed outside its territory, if such crimes threaten the essential interests of the State ^{[12, p.311]}. In the literature on jurisdiction in the virtual space, the protective principle is usually not considered: the authors, as a rule, limit themselves to issues of territorial jurisdiction and personal data ^{[5, p.33-34]}. However, even in the materials prepared by the Secretariat of the UN International Law Commission, it was pointed out that the protective principle "may be of particular importance for new types of cybercrime and terrorist acts" ^{[28, p.277]}, therefore, its consideration seems appropriate in the context of the metaverse.

In our opinion, the protective principle of jurisdiction can be applied in the metaverse, since encroachment on the essential interests of the state in such a space can be carried out in many ways. In his study, M. Garrod, based on an analysis of the legislation of 160 states, provides a list of crimes for which protective jurisdiction is provided ^{[8, p.269-270]}. In particular, he identifies 62 categories of such crimes, including crimes against national security, terrorism crimes, drug trafficking crimes, and others. Many of the crimes listed in this list can be committed in the metaverse.

In a number of States, the protective principle of jurisdiction is established in relation to actions related to the insult (destruction) of the national flag or other state symbols ^{[8, p. 270]}. One can imagine a situation in which one of the users in some way desecrates the flag or coat of arms of the corresponding state in the metaverse. In our opinion, the application of the protective principle of jurisdiction in this case is possible because, firstly, there are rules of substantive law prohibiting the commission of certain actions (regardless of the place of commission); secondly, states are interested in suppressing actions related to the desecration of their sacred symbols; thirdly, the realism of the metaverse will lead to a situation when the public danger of crimes in the metaverse can be comparable to the public danger of crimes in the real world. As an example, the Ministry of Foreign Affairs of the Russian Federation expressed a demarche to Finland due to the fact that the Finnish authorities did not take any action during the burning of the National Flag of the Russian Federation.

In addition, the protective principle of jurisdiction in several legal systems is established for crimes related to the broadcast or publication of propaganda in order to endanger public safety ^{[8, p. 274]}. Such a violation can also be committed in the metaverse. For example, any organization or user will be able to carry out unauthorized broadcasting aimed at the state. An analogy can be drawn with the case when the vessel "Goddess of Democracy", located on the high seas, planned radio broadcasts with expressions of support to persons arrested during demonstrations in Beijing, i.e. to carry out unauthorized broadcasting to the territory of China. China has said it will arrest the ship if such broadcasts are carried out. As a result, broadcasting was not carried out ^{[35, p.910]}. It seems to us that in the case of similar "unauthorized broadcasting" in the metaverse, States will have the opportunity to influence the violator if it is considered that such broadcasting poses a threat to public safety.

The conclusion about the possibility of the state establishing its jurisdiction in the metaverse through the protective principle is also valid for a number of other crimes, especially crimes of a terrorist nature – recruitment by terrorist organizations, financing of terrorism. All this indicates that it is possible to establish the jurisdiction of the State on the basis of the protective principle in the case of crimes committed in the metaverse that affect its essential interests.

Next, we will consider the question of how the transfer of parts (or as a whole) of the state to the metaverse may affect the possibility of exercising jurisdiction.

The metaverse as a territory for purposes of establishing jurisdiction

The literature notes that, in general, customary international law does not prohibit the exercise of extraterritorial legislative jurisdiction ^{[5, p.20]}. This can be illustrated, for example, by the regimes of so-called "common territories" enshrined in international law: for example, the United Nations Convention on the Law of the Sea (in the Context of the High Seas), the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies (in Relation to Outer Space). In this sense, the state penetrates into common spaces (extends its territorial jurisdiction) through certain objects (space objects or naval vessels), which is perfectly illustrated by the special regime of the latter: the UN Convention on the Law of the Sea recognizes the high seas as a state-free space (Articles 87, 89), but at the same time military vessels or vessels under the flag of a certain State on the high seas, they actually act as an extension of its territory (Articles 91-96).

It is in this regard that in the science of international law, many authors have considered naval vessels and space objects, as well as the territories of embassies, as "the territory of the state" ^{[27, p. 173]}. A jurisdictional relationship arises between the State and the relevant object (a space object or a marine vessel), which determines the spatial limit of power in the common space. Another illustration of extraterritoriality can be, for example, the decision of the Permanent Court of International Justice (hereinafter referred to as the ILJ) in the Lotus case (1927), when French and Turkish steamships collided on the high seas ^[11]. The key issue of the case was whether Turkey could institute criminal proceedings against the French lieutenant for his actions on the French vessel, based on the consequences of these actions for the Turkish vessel and crew (the Turkish vessel sank, killing 8 Turkish citizens). As a result, the PPMP concluded that by opening a criminal case against the French lieutenant, Turkey had not violated international law. Separately, the ILC pointed out, in particular, that "a consequence of the principle of freedom of the seas is that a vessel on the high seas is equated to the territory of the State under whose flag it sails, since, as in its own territory, this State exercises its authority on it" (paragraph 65 of the ILC decision).

Our proposed approach, which involves considering the metaverse as a space, can help solve the jurisdictional problem in a situation where it is a question of having a copy or part of the state in the metaverse. Recognizing the "virtual twins" of States in the metaverse as extensions of their territories, by analogy with the Lotus case, we can talk about the existence of grounds for the application of extraterritorial jurisdiction in the same categories in which it is established on the high seas and outer space.

Let's assume that within the framework of the metaverse, a foreign company will create an urban metaverse of the Russian Federation by analogy with the metaverse of Seoul ^[22]. In the event of a violation of the Russian Federation's legislation, which does not imply the possibility of establishing protective jurisdiction within the metaverse, will the Russian Federation potentially have jurisdiction over such actions?

In our opinion, the creation of such a "virtual twin" of the Russian Federation suggests the possibility of establishing territorial jurisdiction over it. In contrast to the protective principle of jurisdiction, considering such "virtual doubles" as an extension of the state territory presupposes the exercise of jurisdiction not only in the event of a threat to the essential interests of the State, but also in the context of the State's exercise of public functions in the metaverse.

For example, Indian researcher A. Gupta, who asks the following question: can and to what extent the Vienna Convention on Diplomatic Relations (hereinafter referred to as the VKDS) and the Vienna Convention on Consular Relations (hereinafter referred to as the VKKS) be applied to embassies and consulates being opened within the metaverse? As a result of his research, the author comes to the conclusion that "diplomatic missions in the metaverse of countries such as Barbados are currently not covered by either the WCDS or the WCCS and, as a result, are not protected. In his article, he considers, among other things, the option related to the actual extension to embassies and consulates in the metaverse of the territorial jurisdiction of the accrediting state ^{[9, p.15]}. We agree with the author's idea about the possibility of extending territorial jurisdiction to embassies and consulates in the metaverse, since both the VKDS (art. 3) and VKKS (art. 4) contain references to the "accrediting state" and it seems logical to us that the state that opened such a "meta-embassy" should have jurisdiction over such embassies and consulates. consulates performing public functions of the State, and therefore, they will have diplomatic immunity from the jurisdiction of the host State.

Another interesting case is related to the state of Tuvalu, which is one of the so-called "disappearing" island states: due to climate change, it is gradually sinking under water. The Minister of Foreign Affairs of Tuvalu, in order to draw attention to this problem, announced a plan to create a digital copy of Tuvalu in the metaverse ^[4]. If the value of further recognition of Tuvalu as a State lies not so much in its land/territory as in preserving the nation's representation in international institutions and the global community, then considering a virtual copy of Tuvalu in the metaverse as "having a territory", albeit a virtual one, may make sense.

In these examples, we wanted to show that since states can use the metaverse as the setting for imperium, it is logical to assume that their jurisdiction in this space directly follows such a manifestation. In our opinion, extending the jurisdiction of states in the metaverse to their "virtual counterparts" is reasonable, since states are in any case interested in regulating activities that take place on their territory, even virtual ones. Hacker attacks on such a "virtual territory" leading to disruption of the activities of government agencies, visual distortion of such a "virtual territory" in order to discredit, or refusal to remove any prohibited materials within its framework (for example, Nazi symbols) – all this refers, one way or another, to the personality of the state, creating with it a jurisdictional link.

Conclusion

Based on the results of the study, we come to the conclusion that the theoretical consideration of the metaverse as a space, i.e. the place of existence of imperium, allows us to talk about the possibility of establishing various types of jurisdiction in it. The territorial jurisdiction of the state in the metaverse, depending on the legal relations that arise, can be established in several ways. First, the territorial jurisdiction of a State in the metaverse can be established by territorial binding to personal data that relate to its citizens. Secondly, the orientation of information in the metaverse to the territory of the state can act as a territorial reference. Third, States can establish territorial jurisdiction by "landing" organizations that control the metaverse on their territory. Fourthly, the effect (consequences) on the physical territory of the state, which arose as a result of actions committed in the metaverse, can serve as a territorial reference for establishing territorial jurisdiction. The universal principle can potentially be applied to actions committed in the metaverse, provided that the development of the latter makes it possible to violate the norms of jus cogens within its framework. It was also concluded that it is possible to establish jurisdiction over actions in the metaverse based on the protective principle, since the metaverse can provide opportunities for actions that may affect the essential interests of States. "Virtual twins" of States, by analogy with national space objects, with ships or aircraft flying the flag of a certain State, are extensions of the State territory for the purpose of establishing jurisdiction.