Mar 18, 2021 | Essays, Online Scholarship
By: Luís Roberto Barroso
Patrícia Perrone Campos Mello
Abstract: The Amazon Forest is approaching a point of no return from which it will enter an irreversible process of savannization, with the loss of most of the environmental services it provides to the world, and great damage to life quality on the Planet. According to environmentalists and scientists, Brazil is failing to combat deforestation, which has grown at an alarming rate in recent years. This essay demonstrates that ineffective legislative initiatives and a deficient legal framework are in part responsible for allowing this failure. It proposes solutions including: (i) a constitutional amendment to prohibit the regularization of public land invasions that favor land grabbers, (ii) strategies to confront executive inaction through the demarcation of conservation units and indigenous reserves, and (iii) improvement and better enforcement of laws punishing environmental crimes.
[Click here for PDF]
Introduction
Any meaningful effort to mitigate climate change has to start with the Amazon Forest. The Amazon makes up 67% of the world’s tropical forest.[1] It is the world’s largest, most biodiverse reserve, hosting a remarkable concentration of plants, animals, fungus, bacteria, and algae.[2] Its role in capturing carbon, impact on rainfall patterns, and relevance as a source of fresh water all play a critical role in ensuring climate stability in the region and worldwide.
The Amazon is also the natural habitat to a wide variety of peoples and cultures. It covers 40% of South America[3] and comprehends the territory of nine countries,[4] although 60% of the Forest is in Brazil. Around 27 million Brazilians live in the so-called Legal Amazon (“BLA”),[5] including dozens of indigenous peoples, some of whom are still uncontacted tribes.[6] These indigenous peoples depend on the Amazon for the preservation of their culture, religion, nutrition, and health.
Deforestation began meaningfully in the 1960s with the onset of governmental initiatives, such as infrastructure construction and agricultural and settlement subsidies.[7] From then onwards, it increased progressively until it reached its peak in 2004.[8] After that, government initiatives kept deforestation in check until 2012,[9] but with the loss of political will to protect the Amazon and Brazil’s economic downturn in 2015, deforestation levels started to rise again with each passing year. By 2015, the accumulated deforestation of the last 40 years added up to a total of 20% of the Brazilian Amazon,[10] an area equivalent to the territories of Spain and Italy together. The situation turned dire in 2019 when deforestation[11] increased by 34.4%,[12] and indigenous lands and conservation units were affected to an unprecedented extent.[13] Forest burning increased by 67.9% in 2019 compared to 2018.[14] These numbers continued to grow in 2020, when deforestation increased by 9.5% and fires by 6.7% compared to 2019.
Deforestation can have unpredictable systemic consequences on the environment.[15] Scientists estimate that if 40% of the forest territory is destroyed, we will arrive at an irreversible tipping point, with a significant portion of the region beginning to develop into a savanna-like area.[16] The consequences of a world without the Amazon are catastrophic not only for Brazil, but for the planet we inhabit. Besides loss of animal and plant species, there would be a drastic reduction in rainfall levels, which are essential for Brazilian agribusiness and electric power generation.[17] The water shortage would also impact industry, the supply of basic needs, and urban life.
According to a growing number of critics, the increase in deforestation is a byproduct of the Brazilian government’s lack of interest towards environmental protection[18] and apparently debilitating public policies,[19] which have been read as a green light for even more daring unlawful conduct.[20] The oldest causes of deforestation, aggravated in recent years, point to the reduction of command-and-control actions,[21] the expansion of livestock and agricultural activities, illegal logging and mining, the lack of economic alternatives for the poor, the unsatisfactory functioning of some relevant Brazilian institutions, corruption, and, finally, deficiencies in the legal framework.
The latter is precisely the object of this essay. It will demonstrate that ineffective legislative initiatives and obsolete legislation encourage illicit behaviors. It will also propose changes to the regulatory framework to address these problems. The essay attempts to fill an important gap in the literature. It seeks to make a comprehensive diagnosis of the different legal problems that interfere with the fight against deforestation and offers an original proposal (constitutional amendment), in addition to other relevant measures already explored by the literature,[22] to discourage land grabbing in the Amazon.
I. Existing Legal Framework
Like many countries in Latin America, Brazil was under an authoritarian government between 1964 and 1985. In the process of re-democratization, the current Constitution of 1988 was promulgated. This Constitution restored the rule of law, the balance between powers, contemplated a wide range of rights—including the right to a healthy environment—and conferred broad powers to the judiciary to make it effective. It was responsible for a deep change in the way law is practiced in Brazil.[23] Almost any question of relevance to the country can give rise to a constitutional debate and the environmental crisis follows this rule.
A. Public Land in Brazil
In order to understand the deforestation problem in Brazil, it is crucial to access the public land categories in the Amazon, principally conservation units, indigenous lands, and non-allocated lands. These classifications have different impacts on the greater protection or vulnerability of the forest, due to their different legal regime and to the infrastructure settled to protect them.
The creation of large conservation units[24]—including national parks, biological reserves, national forests, and environmental protection areas—are an effective way of protecting the biodiversity and habitat of traditional communities. The conservation units can be (i) of full conservation, aimed at keeping ecosystems free of any human intervention;[25] or (ii) of sustainable use, allowing for the exploitation of nature’s goods in a manner that ensures perpetuity of the resources and the environmental processes, in a socially fair and economically viable manner.[26] According to the Brazilian Constitution, conservation units can only be suppressed or have their legal regime modified by law.[27]
The indigenous lands[28] formally belong to the federal government but, according to the Constitution, indigenous communities are entitled to the areas that they have traditionally occupied and have the right to their perpetual use and possession.[29] It is the federal government’s responsibility to demarcate and protect these areas.[30] As of 2019, 424 territories in the Brazilian Amazon were designated as indigenous land. The exploitation of hydraulic resources and hydroelectric potential as well as the search for and exploitation of mineral resources in these lands require (i) previous congressional authorization, (ii) consultation with the interested communities, and (iii) guaranteed sharing of revenues.[31] The demarcation of these areas limits the uncontrolled advance of economic activities, protecting the life and immemorial rights of communities, and contributing to environmental conservation.
Areas that are not privately owned and that the government has not designated as indigenous reserves or conservation areas are referred to as “non-allocated public areas.” Approximately 45% of the Amazon’s territory falls into this category.[32]
Deforestation is significantly lower in conservation units and demarcated indigenous reserves due to their constitutional and legal regimes, which make it impossible for a land grabber[33] to acquire ownership of the land.[34] In addition, conservation units[35] and indigenous reserves[36] are managed by governmental bodies specifically responsible for protecting their integrity. Indigenous lands also count on the presence and surveillance of indigenous peoples and each benefit from the shared monitoring of non-governmental organizations (“NGOs”).[37] On the other hand, non-allocated public areas are vast tracts of land, very difficult to monitor, and are not submitted to any special legal regime or surveillance scheme. Worse than that, they are subject to mistaken public policy, as discussed below.
B. Crimes in the Amazon
1. Illegal Land Appropriation
The Brazilian Constitution provides that the ownership of public lands may not be transferred to private individuals based solely on claims that they have been using the land uninterruptedly and with no opposition, even if for a long period of time.[38] Rather, the alienation of public lands typically depends on public bidding.[39] Moreover, the invasion and/or exploitation of public lands is a crime.[40]
Public land grabbing in the Amazon follows a pattern. First, invaders[41] take over the land and convert it into pastures and plantations by extracting selective trees and burning and/or cutting the remaining plant cover. Next, they attempt to legalize land ownership. They do so by soliciting fake ownership deeds, in collusion with registry offices and public officers.[42] Finally, they sell the land in allotments for agricultural use or cattle-raising. In short, the illegal appropriation of public lands typically initiates a vicious cycle that leads to deforestation and other crimes, such as illegal logging, burning, and forgery of public documents.[43]
2. Environmental Crimes
Environmental crimes are currently listed among the most lucrative forms of transnational criminal activities, not least because of their low risk of punishment.[44] When practiced on a large scale, they rely on well-structured criminal organizations and networks that include not only producers, but also intermediaries and buyers of gold, logging, cattle, meat, and agricultural products. They are often connected to other illegal activities, such as money laundering, corruption of government officials, smuggling, and slavery. The most important environmental crimes in the Amazon region and their criminal framework are presented below.
a. Deforestation
Deforestation without the permission of a public authority is a crime, leading to prison sentences of up to four years in regular public lands, and up to five years in the case of conservation units, plus fines.[45] The main cause of deforestation in the Amazon Rainforest is cattle-raising.[46]
b. Burnings
Burnings are typically the cause and consequence of deforestation. On the one hand, burnings enable the fast suppression of vegetation, clearing areas for the development of economic activities. On the other, deforestation exposes the soil and the remaining forest to sunrays, drying it up and increasing the risk of fires, deliberate or natural. Under Brazilian law, setting fire to woods and forests without public authorities’ permission is a crime that carries a sanction of two to four years in prison and fines. [47]
c. Illegal logging and trade
Illegal logging and trade is also a very common crime in the Amazon region.[48] It accounts for an estimated 80% of timber production in Brazil.[49] Illegal loggers typically hide the unlawful origin of the timber by paying bribes to obtain fake documents attesting that their timber was extracted from certified areas.[50] Forest degradation occurs when illegal loggers select the most valuable trees in a given area for extraction. Its effects are very similar to deforestation effects.[51]
d. Illegal mining
Illegal mining, especially of gold, occurs in nearly all the States of the BLA. It is a crime,[52] the third most important cause of deforestation, after cattle-raising and logging, and further harms the environment by causing serious river pollution due to the use of mercury. Between 2005 and 2015, more than 90% of deforestation caused by mining occurred on illegal sites.[53] Like illegal logging, illegal mining is also an activity that requires significant scale. There are currently 450 illegal mining areas in the BLA region. [54]
II. Problems with the Existing Framework
Problems of a different nature contribute to the persistence of deforestation in the Amazon, and may be grouped into: poor initiatives concerning rules applicable to public lands, deficiencies of the rules applicable to environmental crimes, and political, cultural, and contextual issues which interfere with the proper functioning and improvement of the legal framework. These are the main subjects addressed below.
A. Rules Concerning Public Lands
One of the primary incentives for deforestation and illegal appropriation of public lands in the Amazon comes from the government itself.[55] Under pressure from land grabbers who are politically well-connected, the federal government from time to time pardons the criminal acts of invaders and allows for the regularization of public land appropriation with the transfer of their ownership. Examples of this practice include Laws n. 11.952/2009, during the presidency of Luiz Inácio Lula da Silva, and n. 13,465/2017, during the presidency of Michel Temer, and also Provisional Measure n. 910, issued on December 11, 2019, by current President Jair Bolsonaro.[56]
These rules progressively extended the size limits of regularizable areas and the deadlines for lands occupied up until 2004 (Law n. 11.952/2009), 2008 (Law n. 13.465/2017) and, most recently, 2014 (2019 Provisional Measure).[57]The Provisional Measure also removed the limits on the number of regularizable properties per person or entity.[58] Fortunately, this last rule was not approved by the Congress and lost its effects.[59]
These laws are indicative of a Brazilian logic whereby wrongdoings that have gradually become the status quo are subsequently legalized. More than merely legitimizing the appropriation of public lands, these practices translate into incentives for the continuity of land grabbing, fostering the vicious cycle of invasion, deforestation, and posterior legalization. The referenced 2019 Provisional Measure, similar to previous laws, intended to allow for the acquisition of lands through payments, notably set at sums significantly below market value,[60] losing billions of Brazilian Reais to the federal government.[61] It also fosters new invasions, for it confirms the expectation that these lands will eventually be legalized.[62]
Finally, the progressive legalization practice leads to the concentration of lands in the hands of land grabbers and large landowners, as well as violence and disputes in rural areas. Although the Provisional Measure has not been approved by Congress, regularization is still possible for invasions up to 2008 and for very low prices, based on Law n. 13.465/2017.
Additionally, the current government openly refuses to demarcate indigenous reserves or to recognize the property of traditional communities over the land they occupy,[63] despite it being their constitutional duty.[64]
B. Rules Concerning Crimes
Impunity is also the general rule when it comes to crimes related to land grabbing and deforestation of the Amazon. As already mentioned, land grabbing and environmental crimes involve very low prison penalties. Therefore, they do not perform a strong deterrent function. Low penalties favor the extinction of criminal liability, since the statute of limitations is calculated based on the maximum penalty prescribed by law.[65] They can also be replaced by alternative sanctions of social services to the community or to government entities,[66] with less moral impact over the offender. Furthermore, only a very low percentage of the fines applied are actually enforced and collected.[67]
Secondly, the identification of invasions of public land and/or of deforestation in the Amazon rely mainly on satellite images, which depend on climate conditions. Illegal logging is even more difficult to uncover because satellite monitoring only detects areas that have been fully cleared.[68] In addition, these crimes often occur in dense forest areas, which are difficult to access by the police. Finally, there is a great deficiency in the infrastructure needed to uphold the State apparatus, with a lack of experts, inspectors, police, and prosecutors required for timely investigations, accusation and judgements, and a widespread perception of delay in the judicial response.[69]
C. Lack of Political Will
As the above considerations already seem to point out, the fight against deforestation and other crimes in the Amazon lacks an essential element: the political will of the Brazilian government. Deforestation, illegal timber, and mining generate jobs in many regions with poor economic alternatives. Some towns have up to twenty illegal sawmills, responsible for the employment of hundreds of workers and their families. Because of the scale of these illegal operations, many perpetrators of environmental crimes are elected as mayors, town council members, and state assembly representatives, thereby shaping local politics.[70]
When bribes do not work, illegal loggers and miners frequently resort to intimidation and employ armed militias to escape punishment.[71] According to a Human Rights Watch report, out of three hundred murders of forest defenders recorded by the Pastoral Land Commission since 2009, only fourteen were taken to trial.[72]
This reluctance is reflected in a common conception that tackling illegal logging and mining will create a social problem as a result of job losses. In this regard, the regularization of public land invasion is defended on the ground that it is necessary to officialize rural settlements[73] for low-income people, who arrived in the region, following encouragement from the government at the beginning of its occupation during the seventies, and still lack formal access to their rural property.[74] Likewise, it is also said that formalizing property stops deforestation because the owner becomes responsible for any environmental damage.[75] However, regularizations are evidently not targeted to low-income families and the privatization of public lands encourages new invasions.
According to environmentalists and scientists, the current environmental policy of the federal government worsens the situation. It is characterized by: (i) an apparent dismantling of environmental institutions, including the suppression of environmental agencies,[76] the alteration of the composition of collegiate environmental bodies in order to control their decisions,[77] and the dismissal of civil servants committed to environmental protection;[78] (ii) repeal of rules concerning the protection of areas for permanent preservation;[79] (iii) alleged non-use of budgetary resources directed to public environmental policies;[80] and, finally, (iv) alleged paralysis of funds responsible for financing actions against climate change and deforestation.[81]
In fact, in 2019, the federal government did away with the Amazon Fund Steering Committee, which was responsible for establishing the criteria for the monitoring of the use of the fund’s resources.[82] This measure deepened the diplomatic crisis between Brazil, on the one side, and Germany and Norway on the other, the two most important donor countries for conservation initiatives in the Amazon region, leading to the suspension of donations. The situation undermines the operation of the fund which was one of the main financiers of actions to protect the Amazon and aggravates the setbacks already experienced. Despite (but possibly because of) international pressure, new command-and-control operations in the Amazon have been recently triggered.[83] However, it is important to measure its effectiveness in terms of reducing deforestation.
III. Solution
Although the proper conservation of the Amazon goes beyond merely reforming the existing legal framework, some changes in the Brazilian legal framework can contribute in a very relevant way to this objective. In the first place, a constitutional amendment should be passed establishing a prohibition against the regularization of any and all invasions of public areas that resulted in environmental damages, except for old and low-income occupations. This measure would remove from ordinary politics any possibility of professional land grabbing regularization and would limit it to old properties of low-income people.[84] In addition, the latter should be subjected to a prohibition on transferring ownership or land exploration to third parties for an extended period of time, in order to avoid real estate speculation over the low-income areas. Constitutional amendments in Brazil depend on a qualified quorum of 3/5 of the votes of all Congress members and on a two-round voting procedure in the Chamber of Deputies and in the Senate.[85] It is a process that is much tougher than the one to approve regular laws, but that already proved to be viable with adequate political coordination and mobilization.[86] In the past, the Brazilian Congress had successfully passed measures designed to protect the Amazon, without which significant environmental setbacks might have been experienced.[87] That being said, a robust amendment setting such protections on a constitutional footing would certainly face resistance from significant rural political forces in the parliamentary body. For this reason, international criticism will likely be an important influence for moving the agenda forward. In addition, any reversal of a constitutional amendment, once approved, would need the same qualified quorum and procedure, and any repeal would face high political costs on the international stage that any new government would seek to avoid.
The protection of public areas also depends on their legal destination as conservation units or as indigenous reserves. The government’s resistance to concluding demarcation processes is a grave problem, depending principally on the executive branch. Undoubtedly, it is not a matter of political whims, but a constitutional duty. In this regard, the Constitution allows for lawsuits to overcome government omissions that violate constitutional rights.[88] In fact, most recently, lawsuits have been filed before the Brazilian Supreme Court, seeking to hold the executive to its constitutional duties, and to challenge ostensibly unconstitutional omissions of protective action.[89] Additionally, the Constitution also provides for class action lawsuits that can be filed before trial level courts by an even broader group of representative entities in defense of the environment.[90] Although the option for litigation is not ideal and should be understood as the last resort, absent other solutions, these lawsuits could challenge the government’s regrettable inactions.
Further, other essential reforms for tackling impunity include amending relevant laws to increase prison sentences for environmental crimes and crimes related to the invasion of public lands. The measure would not only impose more proportional penalties in view of the seriousness of the offenses, but also make it more difficult to extinguish criminal liability through statutes of limitation and replace prison sentences with alternative penalties. Finally, when the latter are inevitable, they must be related to damage restoration or environmental protection. It is possible to foresee a resistance from the rural parliamentary representation on this matter, but it can be overcome with adequate political mobilization and international interest. In fact, the attitude from the international community and consumer markets are likely to significantly weigh in on the matter.[91]
IV. Conclusion
The Amazon forest is approaching its tipping point from which an irreversible process of savannization will take place, with immeasurable losses for the planet and for Brazil. There is no more time to be lost in its protection. Part of the problems faced in the fight against deforestation are related to: (i) laws that provide for the regularization of deforested public lands in favor of land grabbers; (ii) the omission of the federal government to conclude the demarcation of indigenous reserves and conservation units, legal destinations which have proved to reduce deforestation; and (iii) deficiencies in the legislation aimed at punishing environmental crimes and its enforcement.
This essay proposes to face this scenario by: (i) a constitutional amendment prohibiting the regularization of deforested public lands (except for old occupation of low-income people, who deserve a special treatment); (ii) judicial actions aimed at addressing unconstitutional omissions on the demarcation of indigenous lands and conservation units; and (iii) improvement and better enforcement of laws punishing environmental crimes.
Other initiatives concerning public policies should be associated with those proposed above to fully address deforestation in the Amazon. It is imperative to strengthen institutions dedicated to environmental protection, providing them with adequate personnel, resources and structure, and ensuring their independent performance. It is important to restore public policies of monitoring and command-and-control actions, and to commit with zero deforestation. Finally, it is necessary to produce an “economy of the forest” that offers sustainable jobs to the local population and technological support for small producers, develops the bioeconomy of the forest, and makes it more valuable to have the Amazon protected than destroyed. These are themes for a future essay, but the solutions proposed here will be an essential start to this journey.
Luís Roberto Barroso: Justice at the Brazilian Supreme Court. Professor of Law at the Rio de Janeiro State University. L.L.M., Yale Law School. S.J.D., Rio de Janeiro State University. Post-doctoral studies as Visiting Scholar at Harvard Law School. Senior Fellow at Harvard Kennedy School.
Patrícia Perrone Campos Mello: Clerk at the Brazilian Supreme Court. Professor of Law at the University Center of Brasília – UniCeub. Visiting Researcher at the Max Planck Institute for Comparative Public Law and International Law. L.L.M. and S.J.D., Rio de Janeiro State University.
[1] A Amazônia em números, Imazon – Instituto do Homem e Meio Ambiente da Amazônia [Amazon Institute of People and the Environment] (Aug. 1, 2013), https://imazon.org.br/imprensa/a-amazonia-em-numeros/.
[2] The region hosts an estimated 60,000 plant species (of which 30,000 are superior plants and 2,500 are tree species), 2.5 million arthropod species (insects, spiders, centipedes, etc.), 2,000 fish and 300 mammal species. Sarita Albagli, Amazônia: fronteira geopolítica da biodiversidade, Parcerias Estratégicas, Sept. 2001, at 5, 10.
[3] Luiz C. Barbosa, Guardians of the Brazilian Amazon Rainforest 1 (2015).
[4] Bolivia, Brazil, Colombia, Ecuador, French Guiana, Guyana, Peru, Suriname, and Venezuela.
[5] The Brazilian government created the “Legal Amazon” (Amazônia Legal) which covers the Northern states of Brazil (Acre, Amapá, Amazonas, Pará, Rondônia, and Roraima), Mato Grosso and Tocantins (Midwest region), and the eastern part of Maranhão (in the Northeast). See Lei No. 5.173, de 27 de Outubro de 1966, Diário Oficial da União [D.O.U.] de 31.10.1966 (Braz.); Lei Complementar No. 124, de 3 de Janeiro de 2007, Diário Oficial da União [D.O.U.] de 4.1.2007 (Braz.). The region called Brazilian Legal Amazon (“BLA”) includes not only the tropical rainforest biome, but also the “Pantanal” and savanna areas.
[6] Out of a total of 170 indigenous peoples in the region, 46 are totally isolated or have limited contact with civilization. See Ricardo Abramovay, Amazônia: por uma economia de conhecimento da natureza 55 (2019).
[7] Danielle Celentano et al., Welfare Outcomes and the Advance of the Deforestation Frontier in the Brazilian Amazon, 40 World Development 850, 850 (2012).
[8] PRODES – Monitoramento do Desmatamento da Floresta Amazônica Brasileira por Satélite, INPE – Instituto Nacional de Pesquisas Espaciais [National Institute of Space Research] (Nov. 11, 2020), http://www.obt.inpe.br/_OBT/assuntos/programas/amazonia/prodes.
[9] A process of substantial reduction in resources to fight deforestation started in 2011. At the same time, developmental arguments have gained force. Projects with considerable environmental impacts have been approved, while sustainable initiatives that could serve local communities have been neglected. SeeThiago Bandeira Castelo et al., Governos e mudanças nas políticas de combate ao desmatamento na Amazônia, 28 Redibec. 125, 138 (2018).
[10] Beto Veríssimo, Let’s Cut Amazon Deforestation to Zero. Here’s How, Americas Quarterly (Nov. 9, 2015), https://www.americasquarterly.org/fulltextarti_cle/lets-cut-amazon-deforestation-to-zero-heres-how/.
[11] Deforestation implies the suppression of land cover by means of cutting vegetation, while forest burning is carried out by means of fire. There are three main types of fire in the Amazon: (i) fires to clear primary forest in order to prepare the area for agriculture and pasture; (ii) fires to rid pastures of weeds in areas that have been previously cleared as well as fires used in farm-fallow systems; and (iii) fires that invade standing forests, as a consequence of the loss of control over the other two types of fire. Jos Barlow et al., Clarifying Amazonia’s Burning Crisis, 26 Global Change Biology 319, 319 (2019).
[12] But see Desmatamento na Amazônia cresce 85% em 2019, DW (Jan. 14, 2020), https://www.dw.com/pt-br/desmatamento-na-amazônia-cresce-85-em-2019/a-52006186 (indicating a significantly higher volume).
[13] Destruição de áreas protegidas na Amazônia explode com Bolsonaro, ISA – Instituto Socioambiental [Social-Environmental Institute] (Dec. 22, 2020), https://www.socioambiental.org/pt-br/noticias-socioambientais/destruicao-de-areas-protegidas-na-amazonia-explode-com-bolsonaro.
[14] The percentage of forest burning is calculated based on squared kilometers of burnt areas officially reported by the Brazilian government. See Programa Queimadas, INPE – Instituto Nacional de Pesquisas Espaciais [National Institute of Space Research], http://queimadas.dgi.inpe.br/queimadas/aq1km/ (last visited Jan. 11, 2021).
[15] See Dalila Ventura, O grupo de cientistas que descobriu as regras que orientam a vida no planeta e mudou nossa visão do mundo, BBC News Mundo (Jan. 20, 2020), https://www.bbc.com/portuguese/geral-51092849.
[16] Carlos Nobre et al., Land-use and Climate Risks in the Amazon and the Need of a Novel Sustainable Development Paradigm, 113 PNAS 10759, 10763 (2016). In fact, there are two tipping points: the destruction of 40% of forest cover or a temperature increase around 4º C. However, new studies suggest that the Amazon tipping point could be reached earlier at 20-25% of deforestation. Thomas E. Lovejoy & Carlos Nobre, Editorial, Amazon Tipping Point, Science Advances, Feb. 2018, at 1.
[17] João Moreira Salles & Bernardo Esteves, O mundo sem a Amazônia, Piauí magazine (Oct. 17, 2019), https://piaui.folha.uol.com.br/o-mundo-sem-amazonia/.
[18] See Megan Darby, Brazil: Bolsonaro Threatens to Quit Paris Climate Deal, Climate Home News (Aug. 14, 2018, 6:09 PM), https://www.climatechangenews._com/2018/08/14/brazils-bolsonaro-threatens-quit-paris-climate-deal/ (reporting on public statements by the Brazilian president about abandoning the Paris Agreement); Ana Laura Stachewski, Bolsonaro mantém Ministério do Meio Ambiente, mas esvazia pasta, Época Negócios (Jan. 22, 2019), https://epocanegocios.globo.com/_Brasil/noticia/2019/01/bolsonaro-mantem-ministerio-do-meio-ambiente-mas-esvazia_-pasta.html (on the de facto dismantlement of the Ministry of the Environment); Pedro Rafael Vilela, Bolsonaro defendeu não realizar COP-25 no Brasil, Agência Brasil (Nov. 28, 2018), https://agenciabrasil.ebc.com.br/politica/_noticia/2018-11/bolsonaro-defendeu-nao-realizar-cop-25-no-brasil (on the country’s refusal to host the UN Conference on Climate Change (COP-25) in 2019). See also Abramovay, supra note 6, at 13 (stating that since January 2019, the federal government has been sending signals that are locally interpreted as a green light for the grabbing of public lands and as halts to governmental initiatives to combat those criminal practices).
[19] See Human Rights Watch, Máfias do Ipê (Sep. 17, 2019) at 10, https://www._hrw.org/sites/default/files/report_pdf/brazil0919pt_web.pdf (noting actions by the Bolsonaro Administration to limit enforcement of Brazil’s environmental laws). See also Ministério do Meio Ambiente reduz verba de combate à mudança climática, Exame (May 7, 2019), https://exame.com/brasil/ministerio-do-meio-ambiente-reduz-verba-de-combate-a-mudanca-climatica/ (on the statements of Carlos Nobre, an internationally known environmentalist, regarding the government’s lack of interest on the environment); André Borges, Ministério do Meio Ambiente quase zera verba de combate à mudança climática, Estadão (May 2, 2019), https://sustentabilidade._estadao.com.br/noticias/geral,ministerio-do-meio-ambiente-quase-zera-verba-de-com_bate-a-mudanca-climatica,70002818539/.
[20] Abramovay, supra note 6, at 13.
[21] Command-and-control actions relate to operations to prevent and combat deforestation and other criminal activities in the Amazon, involving the use of intelligence, several state bodies, and usually the Armed Forces.
[22] For examples of such literature see Brenda Brito et al., Stimulus for Land Grabbing and Deforestation in the Brazilian Amazon, Environmental Research Letters, June 2019, at 1, 7 (concerning the problems related to land grabbing regularization and the importance of allocating more areas for conservation);Helen Ding et al., Climate Benefits, Tenure Costs: The Economic Case for Securing Indigenous Land rights in the Amazon 4-5 (2016), https://files.wri.org/s3fs-public/Climate_Benefits_Tenure_Costs.pdf (regarding secure tenure of indigenous lands, achieved through demarcation, as a strategy to reduce deforestation); Paulo Barreto & Marília Mesquita, Imazon, Como prevenir e punir infrações ambientais em áreas protegidas na Amazônia? 39-40 (2009) (concerning the necessity of command-and-control operations and measures to make criminal prosecution more effective, among others); Carlos Nobre et al., Land-use and Climate Risks in the Amazon and the Need of a Novel Sustainable Development Paradigm, 113 PNAS 10759, 10764-10766 (2016) (proposing a new development model for the Amazon).
[23] Luís Roberto Barroso, Curso de Direito Constitucional Contemporâneo 383-84, 403-07 (2020); Patrícia Perrone Campos Mello, El Papel del Juez Transformador en Brasil: Ius Constitutionale Commune, Avance y Resiliencia (Max Planck Institute for Comparative Public Law and International Law, Research Paper No. 2020-05, 2020) (demonstrating how the new Constitution and a strong judiciary had a transformative role in Brazil), https://papers.ssrn.com/sol3/papers._cfm?abstract_id=3672658.
[24] Conservation units account for 22% of the BLA. See Elis Araújo et al., Imazon, Unidades de Conservação mais desmatadas da Amazônia Legal (2012-2015) 8 (2017), https://imazon.org.br/PDFimazon/Portugues/livros/UCS%20mais%20_desmatadas%20Amazonia_2012-2015.pdf.
[25] Lei No. 9.985, de 18 de Julho de 2000, Diário Oficial da União [D.O.U.] de 19.7.2000, arts. 7(I), 8-13 (Braz.) (The full conservation units are composed of ecological stations, biological reserves, national parks, natural monuments, and wildlife refuges, each one of them with specific features).
[26] Id. arts. 7(II), 14-21 (The conservation units of sustainable use are composed of areas of environmental protection, areas of relevant environmental interest, national forests, extractive reserves, fauna reserves, sustainable development reserves, and natural patrimony reserves).
[27] Constituição Federal [C.F.] [Constitution] art. 225(para. 1)(III) (Braz.).
[28] Indigenous lands account for 23% of the BLA. 98.25% of all Brazilian indigenous lands are located in the Amazon. See Localização e extensão das TIs, ISA – Instituto Socioambiental [Social-Environmental Institute] (Jan. 25, 2021), https://pib.socioambiental.org/pt/Localização_e_extensão_das_Tis.
[29] Constituição Federal [C.F.] [Constitution] art. 231.
[30] Id. Indigenous lands are recognized through an administrative demarcation process carried out by the federal government, which ends up with a formal act declaring the status and limits of those lands. See Decreto No. 1.775, de 8 de Janeiro de 1996, Diário Oficial da União [D.O.U.] de 09.01.1996, art. 5 (Braz.).
[31] Constituição Federal [C.F.] [Constitution] art. 231(para. 3).
[32] José Heder et al., Instituto de Pesquisa Ambiental da Amazônia [Amazon Environmental Research Institute], A Grilagem de terras públicas na Amazônia brasileira 17 (2006).
[33] Land grabbers are offenders who seek to appropriate lands by means of invasion and falsification of documents.
[34] Ding et al., supra note 22, at 4. See also Abramovay, supra note 6, at 55-56; Claudia Azevedo-Ramos et al., Lawless Land in no Man’s Land: the Undesignated Public Forests in the Brazilian Amazon, 99 Land Use Policy 1, 1-3 (2020); Oswaldo Braga, Invasores promovem maior desmatamento em Terras Indígenas em 11 anos, ISA – Instituto Socioambiental [Social-Environmental Institute] (Nov. 18, 2019), https://www.socioambiental.org/pt-br/noticias-socioambientais/invasores-prod_uzem-maior-desmatamento-em-terras-indigenas-em-11-anos (stating that only 1.3% of deforestation of the Brazilian Amazon takes place in indigenous lands, after examining 207 out of 424 of the mentioned lands).
[35] Lei No. 9.985, de 18 de Julho de 2000, Diário Oficial da União [D.O.U.] de 19.7.2000, art. 6(III) (Braz.).
[36] Lei No. 5.371, de 5 de Dezembro de 1967, Diário Oficial da União [D.O.U.] de 6.12.1967, art. 1(I), (II), (VII) (Braz.).
[37] Sue Branford, Brazil’s Bolsonaro Presses Anti-indigenous Agenda; Resistance Surges, Mongabay (Jun. 27, 2019), https://news.mongabay.com/2019/06/brazils-bols_onaro-presses-anti-indigenous-agenda-resistance-surges/.
[38] Constituição Federal [C.F.] [Constitution] art. 191 (stating that real public property may not be acquired by usucapio).
[39] Lei No. 8.666, de 21 de Junho de 1993, Diário Oficial da União [D.O.U.] de 22.6.1993, art. 17(I) (Braz.).
[40] Lei No. 4.947, de 6 de Abril de 1966, Diário Oficial da União [D.O.U.] de 11.04.1966, art. 20 (Braz.) (concerning public lands); Decreto-Lei No. 2.848, de 7 de Dezembro de 1940, Diário Oficial da União [D.O.U.] de 31.12.1940, art. 161(para. 1)(II) (Braz.) (concerning lands in general).
[41] Invaders are those who appropriate lands for their own use or for speculation and selling to third parties.
[42] Heder et al., supra note 32, at 17-19.
[43] The involvement of political and economic power makes it difficult to fight against such a system. Illegal activities generate jobs and help in the election of representatives, who ensure their permanence in power. See discussion infra section III(C). In addition, these activities involve strong networks of organized crime. See Human Rights Watch, Rainforest Mafias (Sep. 2019) at 30-39, https://www.hrw.org/_sites/default/files/report_pdf/brazil0919_web.pdf.
[44] Environmental Crimes Are on the Rise, So Are Efforts to Prevent Them, U.N. Environment Programme (Sep. 21, 2018), https://www.unenvironment.org/news-and-stories/story/environmental-crimes-are-rise-so-are-efforts-prevent-them (stating that environmental crimes rank most likely fourth among criminal activities in the world, behind drugs, counterfeiting and human trafficking, with an estimated annual income between $91 billion and $259 billion).
[45] Lei No. 9.605, de 12 de Fevereiro de 1998, Diário Oficial da União [D.O.U.] de 13.2.1998, arts. 38, 38-A, 50, 50-A (Braz.).
[46] See Ministério do Meio Ambiente [Ministry of the Environment], Plano de Ação para a Prevenção e Controle do Desmatamento na Amazônia Legal, Primeira Fase 10 (2004), http://redd.mma.gov.br/images/publicacoes/PPCDAM__fase1.pdf; Ministério do Meio Ambiente [Ministry of the Environment], Plano de Ação para a Prevenção e Controle do Desmatamento na Amazônia Legal, Segunda Fase 34 (2009–2011), http://redd.mma.gov.br/images/publicacoes/PPCDA_M_fase2.pdf.
[47] Lei No. 9.605, de 12 de Fevereiro de 1998, Diário Oficial da União [D.O.U.] de 13.2.1998, art. 41 (Braz.) (“To set fire on woods and forests. Sanction – two to four years of imprisonment, and fines”).
[48] Id. arts. 45, 46 and single paragraph. See Human Rights Watch, supra note 43 (concerning the crimes of illegal logging and trade).
[49] See INTERPOL-UNEP, Strategic Report: Environment, Peace and Security – A Convergence of Threats, p. 43 (Dec. 2016), https://www.unep.org/resources/report/_strategic-report-environment-peace-and-security-convergence-threats (download document). See also Elaíze Farias, Amazônia em chamas: 90% da madeira exportada é illegal, diz Polícia Federal, Brasil de Fato (Sep. 16, 2019), https://www.brasil_defato.com.br/2019/09/16/amazonia-em-chamas-90-da-madeira-exportada-sao-ilegais-diz-policia-federal/ (reporting higher estimates).
[50] See Human Rights Watch, supra note 43, at 35-36.
[51] Clara Roman, Na Amazônia, a destruição é muito maior do que conseguimos ver, ISA – Instituto Socioambiental [Social-Environmental Institute] (Nov. 22, 2019), https://www.socioambiental.org/pt-br/noticias-socioambientais/na-amazon_ia-a-destruicao-e-muito-maior-do-que-conseguimos-ver; Scott Wallace, Inside the Faltering Fight against Illegal Amazon Logging, National Geographic (Aug. 28, 2019), https://www.nationalgeographic.com/environment/2019/08/brazil-logging/.
[52] Lei No. 9.605, de 12 de Fevereiro de 1998, Diário Oficial da União [D.O.U.] de 13.2.1998, art. 44 (Braz.).
[53] Ana Ionova, Illegal Gold Rush Causing “Irreversible Damage” to Rivers in the Brazilian Amazon, Mongabay (Dec. 20, 2019), https://news.mongabay.com/2019/12/il_legal-gold-rush-causing-irreversible-damage-to-rivers-in-the-brazilian-amazon/.
[54] See id.
[55] Brenda Brito, Governo não deve premiar os ladrões de terra na Amazônia, El País Brasil (Sep. 9, 2019), https://brasil.elpais.com/brasil/2019/09/09/opinion/156_8042120_747554.html (reporting that regularization laws of invaded lands, upon payment of insignificant amounts, were passed by State legislative bodies of the States of Pará, Mato Grosso and Amazonas).
[56] Provisional measures are issued by the President, have the status of law, but have to be confirmed by Congress. If they are not confirmed within 60 days (extendable for another 60 days) they expire. See Constituição Federal [C.F.] [Constitution] art. 62(para. 3). Provisional Measure n. 910/2019 expired on May 19, 2020. As a result, the 2014 occupation deadline was not met. It is important, however, to take the rule into account in order to understand the broader picture described in this section. See Ato Declaratório No. 36, de 20 de Maio de 2020, Diário Oficial da União [D.O.U.] de 21.05.2020 (Braz) (regarding the expiration of Provisional Measure n. 910/2019).
[57] Lei No. 11.952, de 25 de Junho de 2009, Diário Oficial da União [D.O.U.] de 26.06.2009, art. 5(IV) (Braz.) (amended by Lei No. 13.465, de 6 de Setembro de 2017, Diário Oficial da União [D.O.U.] de 8.9.2017 and by Provisional Measure No. 910, de 10 de Dezembro de 2019, Diário Oficial da União[D.O.U.] de 11.12.2019). Law n. 11.952/2009 and Law n. 13.465/2017 were both object of lawsuits before the Brazilian Supreme Court. Law n. 11.952/2009 was held to be partially unconstitutional on the grounds that it permitted regularization without any kind of inspection or control over the lands. The problem concerning land grabbers was not addressed (S.T.F., Pleno, ADI 4,269. Relator: Min. Edson Fachin, 18.10.2017, Diário Oficial da União [D.O.U.] de 01.02.2019 (Braz.). In the second lawsuit plaintiffs argue that Law n. 13.465/2017 favors the illegitimate transfer of public goods on behalf of people of medium and high income, and is still pending judgement (S.T.F., Pleno, ADPF 708, Relator: Min. Luís Roberto Barroso, first petition of the plaintiffs (June 5, 2020).
[58] Lei No. 11.952, de 25 de Junho de 2009, Diário Oficial da União [D.O.U.] de 26.06.2009, art. 1 (Braz.).
[59] See supra note 56.
[60] Id. art. 12.
[61] The prices vary from 10% to 50% of the value attributed by government officials to the bare land value (“valor da terra nua”), i.e., the value of the land without vegetation.
[62] Brenda Brito et al., supra note 22, at 2.
[63] The current Brazilian president has declared that in his government he would not demarcate any centimeter of indigenous lands or of other traditional people lands. Demarcation is understood as an obstacle to the expansion of the agribusiness. See What Brazil’s President, Jair Bolsonaro, Has Said about Brazilian Indigenous Peoples, Survival, https://www.survivalinternational.org/articles/3540-Bolsonaro (last visited Jan. 11, 2021); Joelmir Tavares, Bolsonaro Reaffirms his Power over the Demarcation of New Indigenous Territories, Folha de São Paulo (Jun. 24, 2019, 1:34 PM), https://www1.folha.uol.com.br/internacional/en/brazil/2019/06/bolsonaro-reaffirms-his-power-over-the-demarcation-of-new-indigenous-territories.shtml.
[64] See supra section I(A).
[65] Decreto-Lei No. 2.848, de 7 de Dezembro de 1940, Diário Oficial da União [D.O.U.] de 31.12.1940, art. 109 (Braz.).
[66] Id.
[67] Tribunal de Contas da União [Federal Audit Court], Arrecadação de multas administrativas (2009) (reporting that between 2005 and 2009 less than 1% of the fines applied by Ibama were effectively collected), https://portal.tcu.gov.br/tcu/_paginas/contas_governo/contas_2009/ (click on the tab “Versao simplificada,” then click on “Arrecadação de multas administrativas” report on the top right corner). The situation has not improved much over time. See Bárbara Libório, Por que o IBAMA arrecada só 5% das multas ambientais que aplica, Aos Fatos (Jan. 31, 2019, 6:25 PM), https://aosfatos.org/noticias/por-que-o-ibama-arrecada-so-5-das-multas-ambientais-que-aplica/. Ibama – Instituto Brasile-_iro do Meio Ambiente e dos Recursos Naturais [Brazilian Institute for Environment and Natural Resources] is a federal environmental agency responsible for environmental licensing, authorization for the use of natural resources, and environmental inspection, monitoring and control. Lei No. 7.735, de 22 de Fevereiro de 1989, Diário Oficial da União [D.O.U.] de 23.02.1989, art. 2(II) (Braz.).
[68] Human Rights Watch, supra note 43, at 31.
[69] Paulo Barreto & Marília Mesquita, Instituto do Homem e Meio Ambiente da Amazônia, Como prevenir e punir infrações ambientais em áreas protegidas na Amazônia? 30 (2009).
[70] See Human Rights Watch, supra note 43, at 34-35.
[71] See Human Rights Watch, supra note 43, at 34.
[72] See Human Rights Watch, supra note 19, at 5-6.
[73] A rural settlement is formed by a set of independent agricultural units, installed by the government, generally favoring poor families, small farmers and/or rural workers who are unable to acquire rural property on their own, enabling their access to land. See Assentamentos, Ministério da Agricultura, Pecuária e Abastecimento [Ministry of Agriculture, Livestock and Food Supply] (Jan 28, 2020), https://www.gov.br/incra/pt-br/assuntos/reforma-agraria/assentamentos.
[74] Ministério da Agricultura, Pecuária e Abastecimento [Ministry of Agriculture, Livestock and Food Supply], Regularização Fundiária: cenário e legislação 1 (2020), https://www.gov.br/agricultura/pt-br/assuntos/noticias/cart_ilha-explica-processo-de-regularizacao-fundiaria-na-amazonia/regularizacaofundiari_acenariolegislacao.pdf.
[75] See id. at 10-11.
[76] Decreto No. 9.672, de 2 de Janeiro de 2019, Diário Oficial da União [D.O.U.] de 2.1.2019 (Braz.) (extinguished the Secretariat of Climate Change and Forest of the Ministry of Environmnet); Decreto No. 9.683, de 9 de Janeiro de 2019, Diário Oficial da União [D.O.U.] de 10.1.2019 (Braz.) (extinguished the Subsecretariat of Environment, Energy, Science and Technology of the Foreign Ministry). One year and a half later, Decreto No. 10.455, de 11 de Agosto de 2020, Diário Oficial da União [D.O.U.] de 12.8.2020 (Braz.) repealed Decreto No. 9.672, de 2 de Janeiro de 2019 (replacing the old Secretary of International Relations of the Ministry of Environment by a Secretary of Climate and International Relations). The concrete results of this measure are still unclear.
[77] Decreto No. 9.806, de 28 de Maio de 2019, Diário Oficial da União [D.O.U.] de 29.5.2019 (Braz.).
[78] Id.
[79] Resolução CONAMA/MMA No. 500, de 19 de Outubro de 2020, Diário Oficial da União [D.O.U.] de 21.10.2020 (Braz.).
[80] Suely Araújo, Observatório do Clima [Climate Observatory], (In)execução dos recursos orçamentários do MMA – Administração Direta (2020), at. 3, 20.
[81] S.T.F., ADPF 708, Relator: Min. Luís Roberto Barroso, first petition of the plaintiffs (June 5, 2020) (concerning the government’s omission to use the resources of the National Fund for Climate Change); ADO 59, Relator: Min. Rosa Weber, first petition of the plaintiffs (June 5, 2020) (regarding the paralysis of the Amazon Fund, whose purpose is to finance the fight against deforestation in the forest). Both lawsuits, yet to be decided, held public hearings with considerable visibility. At the public hearing of the first lawsuit, the government informed the release of the resources of the first fund.
[83] Operação Verde Brasil aplica cerca de R$ 142 milhões em multas e combate 1.835 focos de incêndio, Governo do Brasil (Oct. 30, 2019), https://www.gov.br/pt-br/noticias/meio-ambiente-e-clima/2019/10/operacao-verde-brasil-aplica-cerca-de-r-142-milhoes-em-multas-e-combate-1-835-focos-de-incendio.
[84] As for the latter group, as well as in cases of land reform in favor of low-income groups (“reforma agrária”), which are not the object of this paper, specific public policies need to be developed. These are groups whose families have been encouraged by the government to migrate to the region in the past and/or who are in irregular situations in part due to poverty and lack of government support. See supra section II(C), concerning low-income settlements.
[85] Constituição Federal [C.F.] [Constitution] art. 60(para. 2).
[86] The Brazilian Constitution has undergone 116 amendments in the 32 years that it has been in force.
[87] As an example, it rejected a Provisional Measure that provided for the transfer of the authority to demarcate indigenous lands from the National Indian Foundation (“FUNAI”) to the Ministry of Agriculture, which is in charge of agribusiness interests. See Congresso cancela trecho de MP que pôs demarcação de terra indígena na Agricultura, Câmara dos Deputados [Chamber of Deputies] (Jun. 26, 2019), https://www.camara.leg.br/noticias/560846-congresso-cancela-trecho-de-mp-que-pos-demarcacao-de-terra-indigena-na-agricultura/. It also approv-_ed the Paris Agreement, the Biologic Diversity Statute and the National Policy on Climate Change. See Decreto Legislativo No. 140, de 16 de Agosto de 2016, Diário Oficial da União [D.O.U.] de 17.08.2016, art. 1 (Braz.); Lei No. 13.123, de 20 de Maio de 2015, Diário Oficial da União [D.O.U.] de 14.05.2015 (Braz.); Lei No. 12.187, de 29 de Dezembro de 2009, Diário Oficial da União [D.O.U.] de 30.12.2009 (Braz.).
[88] Constituição Federal [C.F.] [Constitution] arts. 102(para. 1), 103(para. 2); Lei No. 9.868, de 10 de Novembro de 1999, Diário Oficial da União [D.O.U.] de 11.11.1999, arts. 12-A, 12-B (Braz.); Lei No. 9.882, de 3 de Dezembro de 1999, Diário Oficial da União [D.O.U.] de 6.12.1999, art. 1 (Braz.).
[89] See supra note 81. Recently, a BBC News report denounced that plots of the Amazon Forest located in indigenous lands were being sold through Facebook. See João Fellet & Charlotte Pamment, Amazon Rainforest Plots Sold via Facebook Marketplace Ads, BBC News (Feb. 26, 2021),https://www.bbc.com/news/technology-56168844. The justice rapporteur of the related constitutional lawsuit determined to the Attorney General’s Office and to the Ministry of Justice and Public Security to investigate the facts. S.T.F., Pleno, ADPF 709, Relator: Min. Luís Roberto Barroso (March 2, 2021). This lawsuit is also pending final judgement.
[90] Constituição Federal [C.F.] [Constitution] art. 129(III); Lei No. 7.347, de 24 de Julho de 1985, Diário Oficial da União [D.O.U.] de 25.07.1985, arts. 1(I), 3, 5 (Braz.).
[91] For examples of the strength of the international community on the matter, it is worth noting the cases related to the soy and beef moratorium, in which the international pressure has led to the execution of agreements by means of which soy and meat producers committed themselves to abolish deforestation from their production chains. See Holly Gibbs et al., Brazil’s Soy Moratorium, 347 Science 377 (2015); Daniel Nepstad et al., Slowing Amazon Deforestation through Public Policy and Interventions in Beef and Soy Supply Chains, 344 Science 1118 (2014); Christian Brannstrom et al., Compliance and Market Exclusion in Brazilian Agriculture: Analysis and Implications for “Soft” Governance, 29 Land Use Policy 357 (2012).
Editors: Celia Reynolds & Trinidad Alonso Quiros
Jan 25, 2021 | Essays, Online Scholarship
By: Eliav Lieblich*
[Click here for PDF]
Introduction
So, you want to do research in international law? Good choice. But it can be difficult, especially in the very beginning. In this brief guide for students taking their first steps in legal research in international law, I will try to lay down the basics—just enough to nudge you towards the rabbit-hole of research. This guide is about how to think of and frame research questions, primary sources, and secondary sources in the research of international law. Or, to be precise, it is about how I think about these things. It is not about how to write in the technical sense, how to structure your paper, or about research methods (beyond some basic comments). This guide also focuses mostly on questions that are especially pertinent when researching international law. For this reason, it does not address general questions such as how and when to cite authorities, what are relevant academic resources, and so forth.
As you begin your work, you will find that legal research in international law is both similar to and different from legal research in domestic law. Research in international law and domestic law are similar in their basic requirements: 1) you need a research question, 2) you need to understand the problem you are approaching (both in terms of the legal doctrine and its underlying theory), 3) you need a method to answer your question. and 4) you need to rely on primary and secondary sources. Research in international law is different because international law, in its quest to be universal, is practiced everywhere. There is no “single” international law, and for this reason it is an area of law that is almost always contested. Furthermore, international law is not hierarchical unlike most domestic legal systems, and many times, several legal frameworks might apply to one single question (“fragmentation”).[1] Additionally, international law’s sources include customary law, which is notoriously difficult to pinpoint.[2] This makes describing “the law” as an object of research much trickier. This guide attempts to give you the initial tools to navigate this terrain, but rest assured that it is also difficult for experienced researchers.
The guide is structured as follows. Section 2 is about research questions. It first offers a simplified typology of research question, including a few words on theory and method, and then suggests some thoughts about thinking of and framing your question. Section 3 is about secondary and primary sources in the research of international law. It includes some advice about the way to approach international legal scholarship in a world of hegemony and information overflow. The guide then becomes a bit more technical, offering tips about finding primary sources relevant for the research of international law.
A caveat is in order. This guide does not seek to offer the most theoretically robust or comprehensive introduction to international legal research. Rather, it should be viewed as practical advice to help you take your first steps into the field. The guide, of course, reflects my own understanding. Other researchers might approach these issues differently.
I. Research Questions
A. Types of Research Questions: Descriptive, Normative, and Critical
Finding a research question will be one of the most important and challenging parts of your research. Every research has a question at its foundation. The research question is simply the question that your research seeks to answer. In all fields of legal scholarship, there are basically three families of research questions: 1) descriptive research questions, 2) normative research questions, and 3) critical research questions. Very broadly speaking, descriptive questions seek to tell us something about the legal world as it is. Normative questions ask what ought to be the state of things in relation to law. Critical questions seek to expose the relations between law and power, and, as I explain later, are somewhat in the middle between descriptive and normative questions. In truth, there is a lot of interaction between all three types of questions. But for our sake, we keep it simple, and as a starting point for research, it is better to think about research questions in these terms. Thinking clearly about your research question will help you frame your work, structure your paper, and look for relevant sources.
Descriptive research questions are questions about the state of things as they are. Much of traditional international legal scholarship is descriptive in the sense that it seeks to describe “the law” as it is, whether in abstract (e.g., “what is the content of the Monetary Gold principle in international adjudication?”) or in relation to a specific situation. For instance, in their excellent writing on Yemen, Tom Ruys and Luca Ferro look at the Saudi-led intervention in the Yemeni Civil War and ask whether that intervention is lawful.[3] From a theoretical standpoint, this type of research can be broadly described as positivist, in the sense that it looks only into legally relevant sources (the lex lata), as autonomous bodies of knowledge. We can call such questions descriptive doctrinal research questions since they seek to analyze and describe the doctrine from an internal point of view. Of course, some doubt whether it is at all possible to describe authoritatively what the law “is,” beyond very basic statements, without making any normative judgments about what “the law” should be. It could even be said that the mere decision to discuss law as an autonomous sphere is a value-laden choice. These and related critiques have been levelled against doctrinal scholarship for over a century by legal realist and critical approaches, both domestically and internationally.[4] This resulted in the gradual marginalization of such research questions, at least in the United States. Yet, from a global perspective, doctrinal research into international law remains a central strand of research.
Doctrinal questions are not the only type of descriptive research questions. Descriptive questions can also follow the tradition of law and society approaches. This type of research looks at the law from the outside and is mostly interested in law’s interaction with society, rather than in legal doctrine per se. Historically, the emergence of this way of thinking relates to the insight, first articulated by legal realists, that law does not exist in an autonomous sphere and gains meaning only with its actual interaction with society. Research questions of this type might ask whether and when law is effective, how people think about the law, or how judges make decisions. For instance, in her recent book, Anthea Roberts asks whether international law is truly “international” by looking at how it is studied in different parts of the world.[5] This type of scholarship can also seek to explain law from a historical point of view. For example, Eyal Benvenisti and Doreen Lustig inquire into the interests that shaped the origins of modern international humanitarian law (“IHL”) and argue that the law was shaped more by the interests of ruling elites than by humanitarian impulses.[6] For the purposes of this guide, these are socio-legal research questions.
Normative research questions, in general, ask what the law ought to be, whether in general or in a specific instance. For example, in “The Dispensable Lives of Soldiers,” Gabriella Blum asks what ought to be the rules for the targeting of combatants in armed conflict.[7] As she suggests, these rules should consider the specific threat they pose and not only their legal status as combatants. The difficulty in normative questions—and from my own experience, this is one of the major challenges for students in their first research papers—is that to answer them, we need external parameters for assessing law. In other words, we need a theory on what is considered “good,” in light of which we can present an argument about what the law should be. Otherwise, we run into a classic problem: we cannot draw from facts alone (what law “is”) what ought to be (what law should be).[8] It is here where theory plays a key role. Normative legal theories are there to help us articulate our benchmarks for assessing what law should be. Returning to Blum’s article as an example, she uses insights from ethics to consolidate her point. She argues from an ethical, extra-legal vantage point, that since soldiers’ lives have moral worth, law should be understood in a manner that best reflects this moral idea.
Now, there is a myriad of normative approaches to international law, which I will not address here. A good place to start on theories of international law, including normative ones, is Andrea Bianchi’s excellent and accessible book on international legal theories.[9] Just to give you a sense of things, older natural law theories would simply identify law with morality and would inquire into morality—either as handed down by God or as exposed by reason—in order to ascertain law.[10] In newer scholarship, it is much more common to use ethics as a way to criticize positive law or to read moral standards into the interpretation of law itself—in accordance with the moral theory to which we subscribe.[11] This, for instance, is Ronald Dworkin’s approach, when he urges to interpret law “in its best light.”[12] In international law, for instance, a notable example for such thinking is Thomas Franck’s theory of legitimacy and international law.[13] Franck—although careful not to frame his theory in explicitly moral terms—argues that legal rules should have certain characteristics, such as clarity and coherence, in order to enjoy a “compliance pull” that induces state compliance. If, for example, we were to adopt Franck’s theory, we would assess law in light of his standards of legitimacy.
Normative theories can also be utilitarian. The best known example for such way of thinking, of course, is law and economics.[14] Another family of instrumental normative theories can be roughly described as policy approaches to international law. In the simplest sense, policy approaches ask what the law should be, in terms of its ability to bring about good policy consequences. The New Haven School of International Law, for instance, analyzed international law from the point of a global standard of human dignity.[15] It is safe to say that almost all current scholarship on international law, especially in the United States, utilizes policy approaches, even if not explicitly.[16] To sum this point, when framing normative research questions, we should be aware that at some point, we will need to commit to a yardstick through which to assess our normative conclusions.
Critical research questions inquire into the power relations that shape law or into the relations between law and politics in the broad sense of the term. In this sense, they aim to be descriptive: they seek to describe law as a product of power relations and expose the manner in which law conceals and neutralizes political choices.[17] Like normative scholarship, critical research questions also rely on theories (“critical theories”). For example, Martti Koskenniemi seeks to describe how the structure of the international legal argument collapses into politics, using insights from Critical Legal Studies (“CLS”).[18] Aeyal Gross inquires whether the application of international human rights law might harm rather than benefit Protected Persons in occupied territories, on the basis of theoretical tools from CLS and Legal Realism.[19] Anthony Anghie asks how colonialism shaped the origins of international law, on the basis of postcolonial theory (and specifically in international law, Third World Approaches to International Law).[20] Ntina Tzouvala considers whether and how the 19th century standards of civilization in international law continue to live on in the international system through its capitalist underpinnings, by applying Marxian analysis.[21] From a feminist approach, Fionnuala Ní Aoláin explores what are the gendered aspects of the law of occupation.[22] It should be emphasized that critical research questions are also normative in the deeper sense: by seeking to expose power relations, they imply that something is wrong with law. Some critical research proceeds, after exposing power dynamics, to offer solutions—and some simply conclude that the project of law is a lost cause.
It is crucial to understand that both normative and critical research questions usually have descriptive sub-questions. For instance, Blum’s normative claim is that the current rule on targeting combatants is no longer tenable and should be changed. But to do so, she first has to give a proper account of the current understanding of law. And that is, of course, a descriptive question. The same applies to critical questions. Good critical scholarship should give a valid account of its object of critique. For example, in Tzouvala’s piece, a significant part offers a description of the standards of civilization, before the main critique is applied.
B. A Note about Theory and Methods
The term theory has been used quite liberally in the previous section. Now, there are several ways to understand this term. Here, theory is used in the sense of the general intellectual framework through which we think about law or a certain legal question. It is our view on the world, if you will—the prism through which we analyze or assess a question. The term theory must be distinguished from method. Methods, in legal research, encompass at least two meanings. The first, more common in descriptive socio-legal research, refers to the way in which we seek to find and arrange the information required to answer our question. For instance, if my question is “do judges in international courts cite scholarship from the Global South,” my method would be the manner in which I gather and arrange the data about judges’ citation practices. Do I search all relevant decisions for citations and create a large dataset (empirical quantitative methods)? Do I conduct interviews with prominent judges and extrapolate from their positions (qualitative methods)? Descriptive doctrinal research, too, has its version of methods in this sense. When we analyze treaties, legislation, state practice, or case law, we apply a method of collecting, analyzing, and categorizing this information.
The second manner in which the term method is used, is more pertinent in normative and critical legal research. For example, in an American Journal of International Law symposium on methods in international legal research, “methods” were defined as “the application of a conceptual apparatus or framework—a theory of international law—to the concrete problems faced by the international community”.[23] Meaning, methods are defined here as the way in which we apply theory to specific instances—or in other words, as applied theory. It is in this sense that you will hear terms like “feminist methods” or “critical methods” used.
In truth, much of legal research—with the exception of certain strands of law and society research—is quite loose in its awareness to methods and in its use of them. This is perhaps because most of us are socialized, in our earliest days as law students, into the general method of doctrinal approaches to law—legal interpretation, case analysis, analogy, and allusions to consideration of “legal policy” in order to solve dilemmas. The extent to which you will be required to be strict about methods in legal research, would probably differ between instructors and their own backgrounds.
C. Framing and Finding Your Research Question
What is expected from a research question, at least in the initial stage of your work? Of course, this differs between instructors and advisors. Here, I offer some insights that I think are generally applicable, with specific reference to international law.
First, a lot depends on the stage of your studies. In most seminars at the J.D. or LL.B. level, instructors do not necessarily require that your question be entirely novel, in the sense that no one has asked it before. Of course, most instructors value originality and would be happy if you come up with a reasonably original question (provided that you can answer it, but more about that in a bit). On the Master’s or Ph.D. levels, this might be very different. Framing a question that would be “an original contribution to the field” is one of the crucial parts of writing a dissertation at that level. But since this is a beginners’ guide, do not worry about that.
Second, a research question must be tailored to the scope of your work, or in other words, it must be a question that you can reasonably answer within the space you have been given. Most seminar papers are around 10,000 words, inclusive of footnotes. This length suits a question like “should the duty to take precautionary measures under IHL require risking soldiers’ lives?” but probably not “the legal history of proxy wars during the Cold War.” The unfortunate nature of seminars is that you will usually have very limited time to think of a research question, and since you are new in the field, you would probably have trouble figuring out whether your question fits the scope of your paper. Most instructors (I hope) would be happy to let you know if your question is too wide.
Third, a research question should be one that you are capable of answering with the skills you have, or with skills—the methodological proficiency –that you have the time to reasonably acquire during your research (whether independently or with the assistance of your instructor). By the time students write seminar papers, most have a reasonable grasp of how to do legal reasoning from an internal-legal point of view and accordingly have the basic skills to answer descriptive doctrinal questions. Concerning most normative and critical research questions, the basic skills required—at least at the level required in seminar papers in most law schools—can be acquired during your research: to me, learning new theories and the ways to apply them is precisely what seminars should be about! The trick is to find the question and the normative or critical approach that you would like to explore. However, things get much trickier if you select a descriptive socio-legal question. These require, sometimes, research methods that most law students do not possess at this stage. If you are thinking about such questions, consult with your instructor to see whether she can or is willing to instruct you about the method you need.
But wait! We said nothing about how to actually find your research question. Here, I might disappoint you: there is no way around some of the difficulties we encounter when looking for a question. Finding a research question is hard, in particular when you are just starting out and have a limited grasp on the field. In truth, there is no one way—if there is even a way—to find a research question. A research question begins from an idea, and we cannot really control how our ideas emerge. Even the most experienced researchers will probably tell you that they get their ideas serendipitously when taking a shower, walking the dog, or folding the laundry. “Eureka” moments rarely pop-up when we summon them. So rather than attempting to give (a futile) account on a sure-shot way to find your research questions, I suggest ways that might be conducive to spark the creative thought process needed to get a good idea.
First, ask yourself what interests you, in the most intuitive way, in terms of specific fields of international law. If you are enrolled in a thematic course, such as International Trade Law, or International Criminal Law, then this narrows your selection of course. But even within fields, there are numerous sub and sub-sub fields and questions. In international criminal law, for example, there is a world of difference between questions of jurisdiction and theories of punishment. Start by opening a general textbook in the field. Scan the contents. See the types of issues and dilemmas that arise. See what direction triggers your interest. Most textbooks will highlight controversial issues. Ask yourself whether any of these issues both interest you and can be phrased as a research question that conforms to the requirements discussed above.
Second, follow blogs in the field. There are many high quality blogs on international law, which offer good analysis on current events and legal dilemmas. These blogs can help you to map burning and interesting questions. Leading blogs such as EJIL: Talk!, Just Security, Legal Form, Opinio Juris, and Lawfare are good places to start. For those of you really willing to take the plunge, there is a very vibrant community of international law scholars on Twitter (although it might lead you to question the general sanity of the field). International legal institutions and organizations also maintain active Twitter profiles, and so do states.
Third, it is ok to begin with a somewhat general or imprecise research question, and narrow it down and refine as you go. For instance, let’s assume that you begin with “should the duty to take precautionary measures under IHL require risking soldiers’ lives.” As you read, you will find that there are several different precautions under IHL. Depending on the scope of your research, you might want to refine your question to something like “should the duty to give advance warning to civilians require exposing soldiers to potential harm?” In other words, it is perfectly fine to make adjustments to your question as you go.
Fourth, be proactive in your communications with your instructor. There are different types of instruction on the seminar level, but most instructors would be happy to participate with you in a ping-pong of ideas on your research question—as long as you have done some thinking and come with ideas to discuss, even if these are half-baked.
II. Secondary and Primary Sources in International Legal Research
A. General
Once we have the research question, we need information to answer it. This information is found in research sources. In academic research, it is common to differentiate between primary and secondary sources. In simple terms, primary sources comprise raw information or first-hand accounts of something. By way of example, these include diary entries, interviews, questionnaires, archival data, and meeting records. In basic legal research, primary sources can include black letter law, rulings, and so forth. Another way to look at primary sources is that they give you direct, unmediated access to the objective of your research. Secondary sources, conversely, are writings about primary sources: they interpret primary sources for you. These include primarily academic books, book chapters, and journal articles. Of course, there are dialectics between primary and secondary sources. Sometimes, secondary sources can become primary sources, depending on our perspective. If, for example, I want to write about the international legal philosophy of Hans Kelsen, then Kelsen’s writings become my primary sources. Other people’s writings about Kelsenwould be my secondary sources. Similarly, a judicial decision can be a primary source when we study what the law “is,” but it can also be secondary source when it describes other things, such as facts, opinions, or ideas.
In international law, there is another idiosyncrasy. If we want to know what the law “is,” secondary sources might be considered primary, to an extent, because according to international law itself, “the teachings of the most highly qualified publicists” are subsidiary means to determine the positive law.[24]
B. The Intricacies of Secondary Sources of International Law: Managing Hegemony and Information Overload
Is there something special that we need to know about secondary sources in international legal research? On its face, secondary sources on international law are not much different from such sources in any other field. For this reason, I will not get into questions that are relevant to all fields of research, such as how to account for newspaper stories, the value of Wikipedia for research (very limited), etc. Rather, I will point out some things that are especially important to consider when approaching secondary sources in international law.
First, since international law presumes to apply everywhere, there might be relevant literature on your question in any language you can imagine. At the seminar paper level, most instructors will expect you to rely on literature in languages reasonably accessible to you. In more advanced levels of research, things might be different. As a rule of thumb, if you cannot access writings in at least English or French, your research will unfortunately be limited. Of course, we can criticize this situation in terms of the hegemony it reflects;[25] however, this is the reality as it stands. A possible exception is if your question focuses on the application of law in a specific jurisdiction. But here, too, you will be limited since without access to literature in other languages, your comparative ability will be diminished.
Second—and this is an understatement—there are differing perceptions of international law, both in general and on specific questions, across different legal cultures. Risking pandering to stereotypes, U.S. scholarship tends to be more inclined towards policy approaches to law, while continental European scholarship might be more positivist.[26] Scholarship from the Global South might view law from postcolonial perspectives. It is crucial to be aware of these differences, in the sense that no single perspective can give you the entire picture. This is not to say that you cannot focus on one specific legal culture—depending on your research question—just be aware that you might be getting a particular point of view.
Third, even within a specific legal culture, there are interpretive “camps” on most questions of international law. Very roughly speaking, writers affiliated with state institutions might interpret law in a manner more permissive of state action, while others might be more suspicious of states and approach law from a more restrictive perspective. For instance, in the field of IHL, David Luban identifies “two cultures” of interpretation—military and “humanitarian” lawyers—that differ almost on every legal question.[27] You will find comparable divisions on international trade, investment arbitration, and international environmental law—and in any other field for that matter. Here, too, it is very important to be aware of the “camp” of the author you are reading. You will not get a complete view if all of your secondary sources belong to this or that camp.
Fourth, be aware and critical of hierarchies. Traditionally, secondary sources of international law were organized around major treatises (which are textbooks that deal systematically with an issue), such as Oppenheim’s international law.[28] This tendency derives from the special status that major scholarship enjoys in the formation of international law, as mentioned above. Of course, major “classic” textbooks are still invaluable tools to get into the field and at least to understand its mainstream at a given moment. However, many canonical treatises—to be blunt—have been written by white western men from major empires, with certain perspectives about the world. Often, these writers went in and out of diplomatic service and might be generally uncritical of their states’ legal policies. Many newer versions of these textbooks internalize these critiques and are much better in terms of incorporating diverse authors and views. Nonetheless, in order to get the fuller picture on your question, diversify your sources.
Fifth, and notwithstanding the need to take into account the problem of hierarchies, it is still important to get a good grasp of the “important” writings on your research question, in order to understand the predominant views on the issue. In an age of information overload, this is particularly difficult to do. There are, however, several (imperfect) ways to mitigate this problem. One way to do so is by using Google Scholar and Google Books as entry portals into your subject. These search engines allow you both to search for titles and specific phrases within titles. They are free, simple and fast, and Google Books even allows you to preview most books. Google Scholar and Books also present a citation count for each source. Citation counts refer to the number of times a work has been cited by other authors, which gives you a rough measure of the centrality of the work. However, Google’s search engines should be taken with a grain of salt. Google is a data-for-profit company, and its effects on academic research have been criticized.[29] The basic problem is that nobody knows how Google arranges its results and what interests it serves by doing so. In other words, Google creates a new hierarchy of sources, and we do not know exactly how to account for it.
Another way to get a sense of the important writings relating to your question is to look at general, introductory works on your subject. These textbooks usually provide a good overview of the major discussions and dilemmas relating to the fields they cover, and when doing so, they present the central views on these questions. See which writings they discuss and cite. A good place to start, in order to gain access to initial secondary (and sometimes primary) sources on a specific question, is the Max Planck Encyclopedias of International Law or the Oxford Bibliographies of International Law.
Still, always be mindful that the “central views” on a question are not necessarily the best views. For instance, many times, citation practices simply reproduce geographic, institutional, racial, or gendered hierarchy. They are not meaningless, but be critical about them. After you get the “central views” on the question go to more “neutral” search engines such as your library’s general database or commercial databases such as Hein and Westlaw that arrange scholarship in a more transparent manner. One radical suggestion is to visit your library physically (!) and go to the relevant shelf. Libraries are nice, and you will often find titles that you missed in your electronic search.
C. Primary Research Sources of International Law: What are They and Where to Find Them
What are the primary sources for research in international law? The answer, of course, flows from the type of your research question. The sources for doctrinal research questions would generally follow material that would be relevant for the study of the legal sources of international law, namely those found in Article 38(1) of the Statute of the International Court of Justice (“ICJ”): 1) treaties, 2) state practice and opinio juris (as elements of customary law), 3) general principles of law, and 4) as subsidiary means, judicial decisions and scholarly work.
However, even when conducting doctrinal research, not everyone subscribes to an exclusively formalist understanding of legal sources. For instance, there are many forms of formal and informal regulation in various global governance frameworks. Non-binding resolutions of international organizations, for example, and instruments of “soft law” can also be viewed as part of the doctrine, broadly speaking.[30] Additionally, legal realists might argue that whatever is perceived by international actors as authoritative and controlling in specific instances can be analyzed as a legally relevant source.[31] The important takeaway is that the primary sources for doctrinal research follow the author’s approach to the sources relevant for international law, and this changes between legal formalists and realists. This complicates your work, but even as a beginner, you would need to decide which way to go in terms of identifying relevant primary sources. If you are confused about this, consulting with your instructor is probably wise here.
As discussed earlier on, normative and critical research questions tend to have descriptive doctrinal sub-questions. For the doctrinal parts in normative and critical research, the above primary sources are relevant also. The normative and critical parts of such research, conversely, would usually rely on the application to the descriptive findings of theory found in secondary sources (and recall the definition of method as applied theory, suggested in the AJIL symposium).[32]
For socio-legal research questions, primary sources can extend much wider, depending on the specific research method selected. Since the challenges of identifying sources for socio-legal research are not unique in the context of international legal research and require treatment beyond this limited guide, I do not address them here.
After clearing that up (hopefully), we now move to a more technical part: where can we find primary sources for doctrinal research in international law (or doctrinal parts within otherwise non-doctrinal research)? Of course, there are virtually endless options. Here, I seek only to give an overview of some of the best ways to look for such sources, or at least, those that I prefer. Note, that I do not get into the nitty-gritty of each search engine or database, such as how to run searches and where to click. They are usually quite easy to get a handle on, and if not, most law school libraries have very capable personnel to assist in the more technical aspects of things. In the same vein, I do not get into the specifics of document indexing systems of various institutions (see, for instance, here).
1. Curated Collections of Important Primary Sources
Before delving into specific primary sources and where we can find them, it is good to know that some publications select especially important sources and publish them with commentary. These publications do not include all primary sources, but if you want to search for especially pertinent sources on your subject, they can be helpful. For example, International Legal Materials (“ILM”) is a publication of the American Society of International Law that periodically selects important primary sources, with expert commentary. Although ILM is a very old publication, it is fortunately online, and you can search its database.
2. Treaties and Treaty Bodies
Moving on to treaties. In general, you can access the text of almost every treaty directly from any internet search engine. For comprehensive research, however, the United Nations Treaty Collection (“UN Treaty Collection”) has a sophisticated search page, allowing you to find treaties by title, signatories, dates, and many other categories. When you click on a treaty, you can also find the list of state parties, including reservations, declarations, etc. Take note of that the UN Treaty Collection includes only treaties registered with the United Nations. The most important treaties are indeed registered. Those that are not might be found in secondary sources, in governmental websites, and so forth. Last, Oxford Historical Treaties is a great source for older treaties.
Treaties can also be found in the homepages of relevant international organizations. For instance, the World Trade Organization website includes all of the organization’s founding agreements and other relevant treaties. Regional organizations, also, mostly follow this practice. The International Committee of the Red Cross (“ICRC”) website has an index of all historical and in-force IHL treaties. These are only examples.
For the purpose of your research, you might want to look at the travaux préparatoires—which include the official negotiation records of the treaty, its drafting history, and other preparatory documents. These are important both to interpret and understand the history and rationales of the treaty. There is no single way in which these records are published. Many times, they can be found in official volumes, whether online or in hardcopy. For example, the travaux of the European Conventions of Human Rights can be found online here. You can find more information about finding travaux at the UN Library on this page.
Many treaties establish organs that oversee their execution or interpret their provisions (“treaty bodies”). These organs, in turn, create their own documents, decisions, and comments. This is a particularly important feature of international human rights law treaties. Luckily, the UN keeps a searchable treaty body database in which you can search for virtually any type of document produced by these bodies. For example, you can find various reports submitted to these bodies by states; you can also find decisions (“jurisprudence”) of treaty bodies, as some of them are empowered to decide on individual and interstate claims. For more information about research in human rights law, Georgetown Law produced this great guide (on both secondary and primary sources).
3. Judicial Decisions
Judicial decisions constitute important primary sources in international legal research like in any legal research. However, as opposed to domestic jurisdictions, the terrain of international legal tribunals is heavily fragmented.[33] As you probably know by now, there is no “supreme court of the international community” to which all other courts are subject. Most tribunals are limited in their jurisdiction to a certain subject matter or to a certain group of states or individuals. To make things even more complicated, domestic courts also frequently rule on international legal questions or refer to international law in their decisions. A crucial point when conducting your research is to figure out whether there is an international tribunal that might have jurisdiction over issues relating to your question and whether these issues were addressed in a substantial way by domestic courts.
Fortunately, there are search engines that allow us to search for specific things across many international tribunals and dispute settlement mechanisms. The Oxford Reports on International Law, for instance, allows you to search across virtually all international tribunals and arbitration mechanisms (as well as treaty bodies). It includes not only ICJ rulings, but also rulings and decisions of subject-area specific dispute settlement mechanisms such as the International Tribunal on the Law of the Sea (“ITLOS”) and others. Furthermore, the search engine allows you also to look for domestic rulings that apply international law in many jurisdictions. Be mindful, however, that the database on domestic rulings is not comprehensive, and many times does not include the newest rulings since it takes time for the regional reporters to report them. The Cambridge Law Reports is another very reputable and established source for international case law and domestic rulings relating to international law.
It should be noted that in addition to these databases, most tribunals have their own websites. Just by way of example, the ICJ, the European Court of Human Rights, the International Criminal Court (“ICC”), and the WTO Dispute Settlement mechanism all have very helpful sites with their own advanced search engines. Similarly, the International Center for Settlement of Investment Disputes (“ICSID”) allows you to search for decisions in investment-state arbitrations. Many other tribunals and dispute settlement arrangements have similar systems. The added value of the tribunals’ own sites is that they usually include not only decisions, but also oral and written proceedings and other documents of interest for in-depth research. Moreover, it might be that they are updated faster with new decisions.
Note, however, that many questions are never resolved by any tribunal. International law is more of an ongoing process than a system of adjudication,[34] and the fact that a dispute or dilemma has not been formally addressed by courts does not mean that it is not important or that there are no highly relevant primary sources on the issue. Ironically, often the opposite is true: some important questions do not come up for adjudication precisely because actors do not want to risk losing in adjudication.
4. United Nations Documents
Documents produced by the different organs of the UN—as well as by states when interacting in and with the UN—are of special importance for international legal research. Resolutions by the UN Security Council (“UNSC”) can be binding; resolutions by the UN General Assembly might reflect the international consensus, can be declarative of customary international law, or crystallize into binding law as time passes. Reports by the UN Secretary General and by Special Rapporteurs are also important in this sense, not to mention the work of the UN International Law Commission (“ILC”). Letters by states and their statements in various UN fora are also crucial as sources for state practice and opinio juris. Fortunately, The UN’s Official Document System allows you to run searches into the majority of publicly available UN documents. Additionally, the UN Library provides another, more guided, entry point to the universe of UN documents.
Sometimes, if you know the specific type of document you need, it can be helpful to head to the website of the relevant UN organ. For example, the UNSC’s site has all of the UNSC’s resolutions, presidential statements, reports and meeting records by year (as well as documents relating to sub-organs such as Sanctions Committees). You can find, for instance, a specific meeting and its full verbatim records (what states said). The same holds for the UN General Assembly, Human Rights Council and other organs of interest. These websites are generally self-explanatory, although they might be clunky sometimes, and the UN tends to move pages around for mysterious reasons. Explore a bit, and you will usually find what you need.
Last, sometimes you would want to get a general picture about how a specific incident, event, or issue was dealt with across the UN in a specific time. The best place to get this information is the Yearbook of the United Nations. Just look in the specific yearbook for the year in which your event of interest took place, and you will find summaries of the discussion of the issue across the UN. A huge bonus is that the yearbooks include an index of documents for each issue or event that you can then retrieve—using the document’s symbol—from the UN’s Official Document System. Note, however, that unfortunately the Yearbook is only published several years after the relevant year. As of 2020, the 2015 Yearbook hasn’t been released yet.
5. Practice and Statements
State practice and statements are important in order to ascertain customary international law, but also to understand general international approaches towards your question. At least for the latter purpose, the same holds with regard to practice and statements by international organizations and NGOs. Now, since state practice and statements can manifest in endless forms—from Twitter rants to official statements by heads of states (which are, nowadays, sometimes one and the same)—there is no one-stop shop for this type of primary source. Much can be found in UN documents, but this is by no means a comprehensive source because a lot of relevant interactions take place outside of the UN.
Nevertheless, some publications and other databases collect important pieces of (mainly state) practice. Just by way of example, each issue of the American Journal of International Law has a section on contemporary U.S. practice on international law. The U.S. State Department compiles an annual digest on U.S. State Practice, accessible here. German practice in international law can be found here (in English). Some other digests of state practice are listed by the Institute of Advanced Legal Studies library.
Additionally, after you select a research question, it is helpful to run a search and see if there is a subject-matter digest of practice relating to your question. For example, the Journal on the Use of Force and International Law includes, in each issue, a digest of practice on the use of force, divided by regions. The ICRC Customary Law Study website contains an updating database of practice on IHL. But again, these are only examples.
Unfortunately, a lot of relevant material is not compiled or indexed anywhere, and you will have to look for it in other places. Beyond the UN databases, you can find states’ positions in their governmental websites (typically the ministry of foreign affairs). NGO reports can be found in the specific organization’s website. A lot of information can be found in trustworthy media outlets (and we leave the discussion of what is “trustworthy” for another day). The New York Times’ searchable archive is a formidable tool for finding different positions of various actors in relation to current and historical events. For delving deeper, access into institutional archives might be needed.
Furthermore, sometimes, to gain access to relevant practice, you will need to search domestic legislation and rulings, beyond those found in the general databases mentioned above (such as the Oxford databases). Domestic legislation and rulings are especially pertinent when looking for “general principles of law,” which form a part of the sources of international law.[35] There is no single way to look for sources in domestic jurisdictions: each jurisdiction has its own system and databases. For instance, for English-speaking jurisdictions, Westlaw and Lexis are leading databases.
Last, nowadays, it is important not to neglect social media. For better or for worse, states and other international actors often share positions (and, ahem, insults) on Twitter.[36] These might also be relevant for your research.
III. Conclusion
All in all, there is no single way to think about any of the issues discussed in this guide. Some researchers will contest many of the definitions and suggestions offered here. This just serves to emphasize that determining the “best” way to approach research has a strong individual component. At least in legal research, beyond strict methodological requirements that might apply in socio-legal research, each researcher develops her own way and understandings as she gains knowledge and experience. I hope that this guide helps you to begin to find your own.
* Associate Professor, Tel Aviv University Buchmann Faculty of Law.
[1] See, e.g., Martti Koskenniemi & Päivi Leino, Fragmentation of International Law? Postmodern Anxieties, 15 Leiden J. Int’l L. 553 (2002).
[2] Compare Monica Hakimi, Making Sense of Customary International Law, 118 Mich. L. Rev. 1487 (2020) with Kevin Jon Heller, Customary International Law Symposium: The Stubborn Tenacity of Secondary Rules, Opinio Juris (Jul. 7, 2020).
[3] Tom Ruys & Luca Ferro, Weathering the Storm: Legality and Legal Implications of the Saudi-Led Military Intervention in Yemen, 65 Int’l & Comp. L.Q. 61 (2016).
[4] Felix S. Cohen, Transcendental Nonsense and the Functional Approach, 35 Colum. L. Rev. 809 (1935).
[5] Anthea Roberts, Is International Law International? (2017).
[6] Eyal Benvenisti & Doreen Lustig, Monopolizing War: Codifying the Laws of War to Reassert Governmental Authority, 1856–1874, 31 Eur. J. Int’l L. 127 (2020).
[7] Gabriella Blum, The Dispensable Lives of Soldiers, 2 J. Leg. Analysis 115 (2010).
[8] For an explanation, see Scott J. Shapiro, Legality 47–49 (2011).
[9] Andrea Bianchi, International Law Theories: An Inquiry into Different Ways of Thinking (2016).
[10] See Emmerich de Vattel, The Law of Nations, bk. I, ch. IV, §§38–39 (Béla Kapossy & Richard Whatmore eds., 2008) (1758).
[11] See, e.g., Adil Ahmad Haque, Law and Morality at War (2017).
[12] Ronald Dworkin, Law’s Empire (1986).
[13] Thomas M. Franck, Legitimacy in the International System, 82 Am. J. Int’l L. 705 (1988)
[14] Jeffrey L. Dunoff & Joel P. Trachtman, Economic Analysis of International Law, 24 Yale J. Int’l L. 1 (1999).
[15] W. Michael Reisman, The View from the New Haven School of International Law, 86 Am. Soc’y Int’l L. Proc. 118 (1992).
[16] See Harlan Grant Cohen, Are We (Americans) All International Legal Realists Now?, in Concepts on International Law in Europe and the United States (Chiara Giorgetti & Guglielmo Verdirame, eds., forthcoming), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3025616.
[17] Martti Koskenniemi, What Is Critical Research in International Law? Celebrating Structuralism, 29 Leiden J. Int’l L. 727 (2016).
[18] Martti Koskenniemi, The Politics of International Law, 1 Eur. J. Int’l L. 4 (1999).
[19] Aeyal M. Gross, Human Proportions: Are Human Rights the Emperor’s New Clothes of the International Law of Occupation?, 18 Eur. J. Int’l L. 1 (2007).
[20] Antony Anghie, Francisco de Vitoria and the Colonial Origins of International Law, 5 Soc. & Leg. Stud. 321 (1996); see also Sundhya Pahuja, The Postcoloniality of International Law, 46 Harv. J. Int’l L. 459 (2005).
[21] Ntina Tzouvala, Civilization, in Concepts for International Law: Contributions to Disciplinary Thought 83 (Jean d’Aspremont & Sahib Singh eds., 2019).
[22] Fionnuala Ní Aoláin, The Gender of Occupation, 45 Yale J. Int’l L. 335 (2020).
[23] Steven R. Ratner & Anne-Marie Slaughter, Appraising the Methods of International Law: A Prospectus for Readers, 93 Am. J. Int’l L. 291, 292 (1999).
[24] Statute of the International Court of Justice, Art. 38(1)(d), June 26, 1945, 59 Stat. 1055, 33 U.N.T.S. 933.
[25] See Justina Uriburu, Between Elitist Conversations and Local Clusters: How Should we Address English-centrism in International Law?, Opinio Juris (Nov. 2, 2020), https://opiniojuris.org/2020/11/02/between-elitist-conversations-and-local-clusters-how-should-we-address-english-centrism-in-international-law/.
[26] See Cohen, supra note 15. See also William C. Banks & Evan J. Criddle, Customary Constraints on the Use of Force: Article 51 with an American Accent, 29 Leiden J. Int’l L. 67 (2016).
[27] David Luban, Military Necessity and the Cultures of Military Law, 26 Leiden J. Int’l L. 315 (2013); see also Eyal Benvenisti, The Legal Battle to Define the Law on Transnational Asymmetric Warfare, 20 Duke J. Comp. & Int’l L. 339, 348 (2010).
[28] 1 Lassa Oppenheim, International Law: A Treatise (1912).
[29] Jake Goldenfein, Sebastian Benthall, Daniel Griffin & Eran Toch, Private Companies and Scholarly Infrastructure — Google Scholar and Academic Autonomy (Oct. 28, 2019), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3476911.
[30] See, e.g., Kenneth W. Abbott & Duncan Snidal, Hard and Soft Law in International Governance, 54 Int’l Org. 421 (2000).
[31] For this type of thinking, see Hakimi, supra note 2.
[32] See Ratner, supra note 23.
[33] See Koskenniemi, supra note 1.
[34] Harold Hongju Koh, Is there a “New” New Haven School of International Law?, 32 Yale J. Int’l L. 559 (2007).
[35] See, e.g., M. Cherif Bassiouni, A Functional Approach to “General Principles of International Law”, 11 Mich J. Int’l L. 768 (1990).
[36] Francis Grimal, Twitter and the jus ad bellum: threats of force and other implications, 6 J. Use of Force & Int’l L. 183 (2019).
Nov 20, 2020 | Content, Essays
By: The Hon. Paul C. Ney, Jr.*
* General Counsel, U.S. Department of Defense. This Essay is based on remarks given at the U.S. Cyber Command Legal Conference on March 2, 2020. Footnotes have been added and updated as of the date of publication of this Essay. I am grateful to Charles A. Allen, Eliana V. Davidson, Thomas H. Lee, Guillermo R. Carranza, Commander Robin Crabtree, Karl S. Chang, Matthew McCormack, John L. Muelheuser, Gary Corn, and Lieutenant Commander Lynn M. Cherry, for their assistance in preparing this Essay.
[Click here for PDF]
General Nakasone, Colonel Smawley, distinguished panelists, and guests, thank you for the opportunity to speak with you today. Since its inception in 2012, the U.S. Cyber Command legal conference has provided the Department of Defense (DoD), other U.S. Government agencies, our Allies and partners, and interested members of the academy and the general public, with a unique opportunity to explore some of the complex legal issues facing our military and our Nation in cyberspace.
I have two objectives today. First, I’ll offer a snapshot of how we in DoD are integrating cyberspace into our overall national defense strategy. Second, I will summarize the domestic and international law considerations that inform the legal reviews that DoD lawyers conduct as part of the review and approval process for military cyber operations. We at DoD now have considerable practice advising on such operations and are accordingly in a position to begin to speak from experience to some of the challenging legal issues that cyber operations present.
To set the scene, when I talk about “cyberspace,” I am referring to “the interdependent networks of information technology infrastructures and resident data, including the Internet, telecommunications networks, computer systems, and embedded processors and controllers.”[1] Physically, and logically, the domain is in a state of perpetual transformation. It enables the transmission of data across international boundaries in nanoseconds—controlled much more by individuals or even machines than by governments—spreading ideas to disparate audiences and, in some cases, the generating of physical effects in far-flung places.
I. Today’s Cyber Threat Environment and DoD’s Response
As we enter the third decade of the twenty-first century, people are imagining, developing, and creating new technologies and devices at a faster rate than ever before. These new technologies update on a near daily basis—think of the software update that your phone automatically uploaded today.
Sophisticated technologies are now a part of nearly all aspects of military operations, creating opportunities and challenges. A recent Brookings paper makes the point well: “By . . . building Achilles’ heels into everything they operate, modern militaries have created huge opportunities for their potential enemies. The fact that everyone is vulnerable . . . is no guarantee of protection.”[2]
Constantly changing vulnerabilities exist not only within our Armed Forces but also in the private and public sectors, which provide critical support to our operations. This includes contractors that manage networks and other services; the defense industrial base that is the foundation of the United States’ military strength; and critical public infrastructure upon which the entire country, including the Armed Forces, relies for water, electricity, and transportation.
From a strategic competition perspective, too, cyberspace is increasingly dynamic and contested, including as a warfighting domain. In the past few years, other nations, in part to make up for gaps in conventional military power vis-à-vis the United States, have developed cyber strategies and organized military forces to conduct operations in cyberspace. China’s Strategic Support Force, for example, provides its People’s Liberation Army with cyberwarfare capabilities to “establish information dominance in the early stages of a conflict to constrain [U.S.] actions . . . by targeting network-based [command and control,] . . . logistics, and commercial activities.”[3] Russia consistently uses cyber capabilities for what it calls “information confrontation” during peacetime and war.[4] All of this is unsurprising because cyber is a relatively cheap form of gaining real power, especially for impoverished adversaries like North Korea: a cyber operation can require nothing more than a reasonably skilled operator, a computer, a network connection, and persistence.
A key element of the U.S. military’s strategy in the face of these cyber-threats is to “defend forward.”[5] Implementing this element of the strategy begins with “continuously engaging and contesting adversaries and causing them uncertainty wherever they maneuver”—which we refer to as “persistent engagement.”[6] “Persistent engagement recognizes that cyberspace’s structural feature of interconnectedness and its core condition of constant contact creates a strategic necessity to operate continuously in cyberspace.”[7] As General Nakasone has said, “f we find ourselves defending inside our own networks, we have lost the initiative and the advantage.”[8] In short, the strategy envisions that our military cyber forces will be conducting operations in cyberspace to disrupt and defeat malicious cyber activity that is harmful to U.S. national interests.[9]
Cyber operations are also becoming an integral part of other military operations. As the 2018 National Defense Strategy emphasizes, “[s]uccess no longer goes to the country that develops a new technology first, but rather to the one that better integrates it and adapts its way of fighting.”[10] For example, during operations in Iraq in 2017, U.S. forces used cyber and space capabilities to disrupt communications to and from the enemy’s primary command post, forcing the enemy to move to previously unknown backup sites, thereby exposing their entire command-and-control network to U.S. kinetic strikes.[11] Operations like this will become increasingly common.
Because of the complexity and dynamism of the domain and the threat environment, the need for persistent engagement outside U.S. networks, and the critical advantage that cyber operations provide our Armed Forces, DoD must develop, review, and approve military cyber operations at so-called “warp-speed.” To this end, the U.S. Government has made meaningful strides. You heard in 2018 that the President had issued National Security Presidential Memorandum-13, United States Cyber Operations Policy, or “NSPM-13” for short, which allows for the delegation of well-defined authorities to the Secretary of Defense to conduct time-sensitive military operations in cyberspace. Congress also has clarified that the President has authority to direct military operations in cyberspace to counter adversary cyber operations against our national interests and that such operations, whether they amount to the conduct of hostilities or not, and even when conducted in secret, are to be considered traditional military activities and not covert action, for purposes of the covert action statute.[12]
Even as the United States takes action to secure its vital national interests and to support its Allies and partners in this complex environment, it is a Nation dedicated to the rule of law. Consequently, we must ensure that our efforts are not only effective but also consistent with law and wider U.S. Government efforts to promote stability in cyberspace and adherence to the rules-based international order. DoD lawyers have an important role to play as the Department develops and executes cyber operations to meet these mandates.
Let me turn now to providing you a sense of how DoD lawyers analyze proposed military cyber operations for compliance with domestic and international law.
II. Framework for Legal Analysis
To evaluate the legal sufficiency of a proposed military cyber operation, we employ a process similar to the one we use to assess non-cyber operations. We engage our clients to understand the relevant operational details: What is the military objective we seek to achieve? What is the operational scheme of maneuver and how does it contribute to achieving that objective? Where is the target located? Does the operation involve multiple geographic locations? What is the target system used for? How will we access it? What effects—such as loss of access to data—will we generate within that system? How will those effects impact the system’s functioning? Which people or processes will be affected by anticipated changes to the system’s functioning? Are any of those likely to be impacted civilians or public services? Answers to these questions will drive the legal analysis.
A. U.S. Domestic Law
Let’s take up considerations of U.S. domestic law first. We begin with the foundational question of domestic legal authority to conduct a military cyber operation. The domestic legal authority for the DoD to conduct cyber operations is included in the broader authorities of the President and the Secretary of Defense to conduct military operations in defense of the nation. We assess whether a proposed cyber operation has been properly authorized using the analysis we apply to all other operations, including those that constitute use of force. The President has authority under Article II of the U.S. Constitution to direct the use of the Armed Forces to serve important national interests, and it is the longstanding view of the Executive Branch that this authority may include the use of armed force when the anticipated nature, scope, and duration of the operations do not rise to the level of war under the Constitution, triggering Congress’s power to declare war.[13] Furthermore, the Supreme Court has long affirmed the President’s power to use force in defense of the nation and federal persons, property, and instrumentalities.[14] Accordingly, the President has constitutional authority to order military cyber operations even if they amount to use of force in defense of the United States. Of course, the vast majority of military operations in cyberspace do not rise to the level of a use of force; but we begin analysis of U.S. domestic law with the same starting point of identifying the legal authority.
In the context of cyber operations, the President does not need to rely solely on his Article II powers because Congress has provided for ample authorization. As I noted earlier, Congress has specifically affirmed the President’s authority to direct DoD to conduct military operations in cyberspace.[15] Moreover, cyber operations against specific targets are logically encompassed within broad statutory authorizations to the President to use force, like the 2001 Authorization for the Use of Military Force, which authorizes the President to use “all necessary and appropriate force” against those he determines were involved in the 9/11 attacks or that harbored them.[16] Congress has also expressed support for the conduct of military cyber operations to defend the nation against Russian, Chinese, North Korean, and Iranian “active, systematic, and ongoing campaigns of attacks” against U.S. interests, including attempts to influence U.S. elections.[17]
In addition to questions of legal authority, DoD lawyers advise on the Secretary of Defense’s authority to direct the execution of military cyber operations as authorized by the President and statute,[18] “including in response to malicious cyber activity carried out against the United States or a United States person by a foreign power,”[19] and to conduct related intelligence activities.[20] Our lawyers ensure that U.S. military cyber operations adhere to the President’s specific authorizations as well as the generally applicable NSPM-13.
After concluding that the operation has been properly authorized, DoD lawyers assess whether there are any statutes that may restrict DoD’s ability to conduct the proposed cyber operation and whether the operation may be carried out consistent with the protections afforded to the privacy and civil liberties of U.S. persons. To illustrate, I am going to talk about two statutes and the First Amendment as examples of laws that we may consider, depending on the specific cyber operation to be conducted.
First, let’s look at federal criminal provisions in Title 18 of the U.S. Code that prohibit accessing certain computers and computer networks “without authorization,”[21] or transmitting a “program, information, code, or command,”[22] that intentionally causes “any impairment to the integrity or availability” of the computer or data on it [23]—provisions found in the Computer Fraud and Abuse Act or “CFAA,” as amended.[24] These provisions contain exceptions for lawfully authorized activities of law enforcement agencies and U.S. intelligence agencies but do not refer to U.S. military cyber operations.[25] Common sense and long-accepted canons of statutory interpretation suggest, however, that the CFAA will not constrain appropriately authorized DoD cyber operations.[26]
The CFAA was enacted to protect U.S. Government computers and critical banking networks against thieves and hackers,[27] not vice versa; it expresses no clear indication of congressional intent to limit the President from directing military actions;[28] and the more recent statutes I mentioned earlier specifically authorize or reaffirm the President’s authority to direct DoD to conduct operations in cyberspace. In light of these considerations, it would be unreasonable and counterintuitive to interpret the CFAA as restricting properly authorized military cyber operations abroad against foreign actors.[29]
Second, DoD lawyers typically analyze whether the proposed cyber operation may be conducted as a traditional military activity—or “TMA”—such that it would be excluded from the approval and oversight requirements applicable to covert action under the Covert Action Statute.[30] Because the statute does not define TMA, we look to the legislative history and a provision in the National Defense Authorization Act for Fiscal Year 2019 that clarifies that in general clandestine military activities in cyberspace constitute TMA for purposes of the Covert Action Statute, and reaffirms established congressional reporting requirements for military cyber operations.[31]
Third, DoD lawyers must assess whether a proposed operation will impact the privacy and civil liberties of U.S. persons. The practical reality of cyberspace today is that U.S. military cyber operations aimed at disrupting an adversary’s ability to put information online or to distribute it across the worldwide web have the potential to affect U.S. persons’ rights and civil liberties in ways that operations in physical domains do not.
Let me give you a concrete example. A core part of DoD’s mission to defend U.S. elections consists of defending against covert foreign government malign influence operations targeting the U.S. electorate. The bulk of DoD’s efforts in this area involve information-sharing and support to domestic partners, like the Department of Homeland Security and the Federal Bureau of Investigation. But what about a U.S. military cyber operation to disrupt a foreign government’s ability to disseminate covertly information to U.S. audiences via the Internet by pretending that the information has been authored by Americans inside the United States? Can we conduct such an operation in a manner that contributes to the defense of our elections but avoids impermissible interference with the right of free expression under the First Amendment—including the right to receive information?[32] The analysis often turns on the specifics of the proposed operation—but, in short, we believe we can.
Few precedents address this issue directly; but, U.S. case law does provide a framework with at least three key strands. First, there are judicial decisions that stand for the proposition that the U.S. Government, in carrying out certain appropriately authorized activities, may incidentally burden the right to receive information from foreign sources without violating the First Amendment.[33] Second, courts have recognized a compelling government interest in protecting U.S. elections from certain types of foreign influence—especially when that influence is exercised covertly.[34] Third, government action based on the content of the speech will be suspect.[35]
In light of these precedents, DoD lawyers analyzing particular cyber operations for First Amendment compliance will consider a number of factors, including: whether the operation is targeting the foreign actors seeking to influence U.S. elections covertly rather than the information itself; the extent to which the operation may be conducted in a “content neutral” manner; and, the foreign location and foreign government affiliation of the targeted entity.
We at DoD realize that military involvement in protecting U.S. elections is a sensitive mission, even when conducted in compliance with First Amendment protections and consistent with congressional intent. Virtually any military involvement in U.S. elections implicates the bedrock premise of maintaining civilian control of the military and our long tradition of keeping the military out of domestic politics. Accordingly, in assessing proposed operations related to elections, DoD lawyers pay particular attention to whether the proposed operation may be conducted consistent with legal and regulatory limits on the use of official positions to influence or affect the results of U.S. elections or to engage in, or create the appearance of engaging in, partisan politics.[36]
B. International Law
Those are some highlights of U.S. domestic law considerations that may be implicated by proposed military cyber operations; let me turn now to international law.
We recognize that State practice in cyberspace is evolving. As lawyers operating in this area, we pay close attention to States’ explanations of their own practice, how they are applying treaty rules and customary international law to State activities in cyberspace, and how States address matters where the law is unsettled. DoD lawyers, and our clients, engage with our counterparts in other U.S. Government departments and agencies on these issues, and with Allies and partners at every level—from the halls of the United Nations to the floors of combined tactical operations centers—to understand how we each apply international law to operations in cyberspace. Initiatives by non-governmental groups like those that led to the Tallinn Manual can be useful to consider, but they do not create new international law, which only states can make. My intent here is not to lay out a comprehensive set of positions on international law. Rather, as I have done with respect to domestic law, I will tell you how DoD lawyers address some of the international law issues that today’s military cyber operations present.
I will start with some basics. It continues to be the view of the United States that existing international law applies to State conduct in cyberspace. Particularly relevant for military operations are the Charter of the United Nations, the law of State responsibility, and the law of war. To determine whether a rule of customary international law has emerged with respect to certain State activities in cyberspace, we look for sufficient State practice over time, coupled with opinio juris—evidence or indications that the practice was undertaken out of a sense that it was legally compelled, not out of a sense of policy prudence or moral obligation.
As I discussed a few minutes ago, our policy leaders assess that the threat environment demands action today—our clients need our advice today on how international legal rules apply when resorting to action to defend our national interests from malicious activity in cyberspace, notwithstanding any lack of agreement among States on how such rules apply. Consequently, in reviewing particular operations, DoD lawyers provide advice guided by how existing rules apply to activities in other domains, while considering the unique, and frequently changing, aspects of cyberspace.
First, let’s discuss the international law applicable to uses of force. Article 2(4) of the Charter of the United Nations provides that “All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.”[37] At the same time, international law recognizes that there are exceptions to this rule. For example, in the exercise of its inherent right of self-defense a State may use force that is necessary and proportionate to respond to an actual or imminent armed attack.[38] This is true in the cyber context just as in any other context.
Depending on the circumstances, a military cyber operation may constitute a use of force within the meaning of Article 2(4) of the U.N. Charter and customary international law. In assessing whether a particular cyber operation—conducted by or against the United States—constitutes a use of force, DoD lawyers consider whether the operation causes physical injury or damage that would be considered a use of force if caused solely by traditional means like a missile or a mine.[39] Even if a particular cyber operation does not constitute a use of force, it is important to keep in mind that the State or States targeted by the operation may disagree, or at least have a different perception of what the operation entailed.
Second, the international law prohibition on coercively intervening in the core functions of another State, such as the choice of political, economic, or cultural system,[40] applies to State conduct in cyberspace.[41] For example, “a cyber operation by a State that interferes with another country’s ability to hold an election” or that tampers with “another country’s election results would be a clear violation of the rule of non-intervention.”[42] Other States have indicated that they would view operations that disrupt the fundamental operation of a legislative body or that would destabilize their financial system as prohibited interventions.[43]
There is no international consensus among States on the precise scope or reach of the non-intervention principle, even outside the context of cyber operations. Because States take different views on this question, DoD lawyers examining any proposed cyber operations must tread carefully, even if only a few States have taken the position publicly that the proposed activities would amount to a prohibited intervention.
Some situations compel us to take into consideration whether the States involved have consented to the proposed operation. Because the principle of non-intervention prohibits “actions designed to coerce a State . . . in contravention of its rights,”[44] it does not prohibit actions to which a State voluntarily consents, provided the conduct remains within the limits of the consent given.[45]
Depending on the circumstances, DoD lawyers may also consider whether an operation that does not constitute a use of force could be conducted as a countermeasure. In general, countermeasures are available in response to an internationally wrongful act attributed to a State. In the traditional view, the use of countermeasures must be preceded by notice to the offending State, though we note that there are varying State views on whether notice would be necessary in all cases in the cyber context because of secrecy or urgency.[46] In a particular case it may be unclear whether a particular malicious cyber activity violates international law. And, in other circumstances, it may not be apparent that the act is internationally wrongful and attributable to a State within the timeframe in which the DoD must respond to mitigate the threat. In these circumstances, which we believe are common, countermeasures would not be available.
For cyber operations that would not constitute a prohibited intervention or use-of-force, the Department believes there is not sufficiently widespread and consistent State practice resulting from a sense of legal obligation to conclude that customary international law generally prohibits such non-consensual cyber operations in another State’s territory. This proposition is recognized in the Department’s adoption of the “defend forward” strategy: “We will defend forward to disrupt or halt malicious cyber activity at its source, including activity that falls below the level of armed conflict.”[47] The Department’s commitment to defend forward including to counter foreign cyber activity targeting the United States—comports with our obligations under international law and our commitment to the rules-based international order.
The DoD OGC view, which we have applied in legal reviews of military cyber operations to date, shares similarities with the view expressed by the U.K. Government in 2018.[48] We recognize that there are differences of opinion among States, which suggests that State practice and opinio juris are presently not settled on this issue. Indeed, many States’ public silence in the face of countless publicly known cyber intrusions into foreign networks precludes a conclusion that States have coalesced around a common view that there is an international prohibition against all such operations (regardless of whatever penalties may be imposed under domestic law).
Traditional espionage may also be a useful analogue to consider. Many of the techniques and even the objectives of intelligence and counterintelligence operations are similar to those used in cyber operations. Of course, most countries, including the United States, have domestic laws against espionage, but international law, in our view, does not prohibit espionage per se even when it involves some degree of physical or virtual intrusion into foreign territory. There is no anti-espionage treaty, and there are many concrete examples of States practicing it, indicating the absence of a customary international law norm against it. In examining a proposed military cyber operation, we may therefore consider the extent to which the operation resembles or amounts to the type of intelligence or counterintelligence activity for which there is no per se international legal prohibition.[49]
Of course, as with domestic law considerations, establishing that a proposed cyber operation does not violate the prohibitions on the use of force and coercive intervention does not end the inquiry. These cyber operations are subject to a number of other legal and normative considerations.
As a threshold matter, in analyzing proposed cyber operations, DoD lawyers take into account the principle of State sovereignty. States have sovereignty over the information and communications technology infrastructure within their territory. The implications of sovereignty for cyberspace are complex, and we continue to study this issue and how State practice evolves in this area, even if it does not appear that there exists a rule that all infringements on sovereignty in cyberspace necessarily involve violations of international law.
It is also longstanding DoD policy that U.S. forces will comply with the law of war during all armed conflicts, however such conflicts are characterized, and in all other military operations.[50] Even if the law of war does not technically apply because the proposed military cyber operation would not take place in the context of armed conflict, DoD nonetheless applies law-of-war principles.[51] This means that the jus in bello principles, such as military necessity, proportionality, and distinction, continue to guide the planning and execution of military cyber operations, even outside the context of armed conflict.
DoD lawyers also advise on how a proposed cyber operation may implicate U.S. efforts to promote certain policy norms for responsible State behavior in cyberspace, such as the norm relating to activities targeting critical infrastructure. These norms are non-binding and identifying the best methods for integrating them into tactical-level operations remains a work in progress. But, they are important political commitments by States that can help to prevent miscalculation and conflict escalation in cyberspace. DoD OGC, along with other DoD leaders, actively supports U.S. State Department-led initiatives to build and promote this framework for responsible State behavior in cyberspace. This includes participation in the UN Group of Governmental Experts and an Open-Ended Working Group on information and communications technologies in the context of international peace and security. These diplomatic engagements are an important part of the United States’ overall effort to protect U.S. national interests by promoting stability in cyberspace.
Of course, the real work of analyzing specific military cyber operations in light of the domestic and international legal considerations I have mentioned falls to judge advocates and civilian attorneys at the tactical and operational levels—which is to say, many of you. As one of my predecessors, Jennifer O’Connor, noted in a speech in 2016, military operations—including cyber operations—are subject to a rigorous targeting process that involves both policy and legal reviews to ensure that specific operations are conducted consistent with the relevant authorization, domestic and international law, and any additional restraints imposed by the applicable orders. Particularly in areas like this one, in which not only the law but the domain itself is constantly evolving, I am extremely proud of the legal work many of you do for the Department of Defense and am humbled every day by your dedication to our Nation’s defense.
Thank you all for what you do and for the opportunity to speak with you today.
[1] Dep’t of Def., DOD Dictionary of Military and Associated Terms 55 (June 2020), https://www.jcs.mil/Portals/36/Documents/Doctrine/pubs/dictionary.
pdf [https://perma.cc/E428-M2FP].
[2] Michael O’Hanlon, The Brookings Inst., Forecasting Change in Military Technology, 2020-2040 16 (2018), https://www.brookings.edu/wp-content/uploads/2018/09/FP_20181218_defense_advances_pt2.pdf [https://perma.cc/
YKA6-5FQL].
[3] Def. Intelligence Agency, China Military Power: Modernizing a Force to Fight and Win 46 (2019), https://www.dia.mil/Portals/27/Documents/News/
Military%20Power%20Publications/China_Military_Power_FINAL_5MB_20190103.pdf [https://perma.cc/R53S-NMFN].
[4] Def. Intelligence Agency, Russia Military Power: Building a Military to Support Great Power Aspirations 38 (2017), https://www.dia.mil/Portals/27/
Documents/News/Military%20Power%20Publications/Russia%20Military%20Power%20Report%202017.pdf [https://perma.cc/ATQ8-DLEB] (citations omitted).
[5] Dep’t of Def., Summary: Department of Defense Cyber Strategy 1 (2018), https://media.defense.gov/2018/Sep/18/2002041658/-1/-1/1/CYBER_
STRATEGY_SUMMARY_FINAL.PDF [https://perma.cc/N9F9-GKWZ] [hereinafter DoD Cyber Strategy].
[6] C. Todd Lopez, Persistent Engagement, Partnerships, Top Cybercom’s Priorities, Defense.gov (May 14, 2019), https://www.defense.gov/Explore/
News/Article/Article/1847823/persistent-engagement-partnerships-top-cybercoms-priorities/ [https://perma.cc/RV8Z-G6GE]. See also id.; Securing the Nation’s Internet Architecture: Hearing Before the H. Armed Services Subcomm. on Intelligence & Emerging Threats & Capabilities & the H. Oversight & Reform Subcomm. on Nat’l Sec. (Statement of Edwin Wilson, Deputy Assistant Secretary of Defense for Cyber Policy at 3) (Sep. 10, 2019), https://docs.house.gov/meetings/AS/AS26/20190910/
109894/HHRG-116-AS26-Bio-WilsonB-20190910.pdf [https://perma.cc/T4S7-5NFG] [hereinafter Hearing]; U.S. Cyber Command, Achieve and Maintain Cyberspace Superiority: Command Vision for US Cyber Command (2018) https://www.
cybercom.mil/Portals/56/Documents/USCYBERCOM%20Vision%20April%202018.pdf?ver=2018-06-14-152556-010 [https://perma.cc/7866-EHZY].
[7] Michael P. Fischerkeller & Richard J. Harknett, Persistent Engagement and Tacit Bargaining: A Path Toward Constructing Norms in Cyberspace, Lawfare (Nov. 9, 2018), https://www.lawfareblog.com/persistent-engagement-and-tacit-bargaining-path-toward-constructing-norms-cyberspace [https://perma.cc/U4W2-LE4U].
[8] An Interview with Paul M. Nakasone, Joint Forces Q. (Jan. 2019), at 4, 7, https://ndupress.ndu.edu/Portals/68/Documents/jfq/jfq-92/jfq-92_4-9_Nakasone-Interview.pdf [https://perma.cc/CCP7-9RBD].
[9] See Hearing, supra note 6, at 3 (U.S. Armed Forces “defend forward by conducting operations that range from collecting information to gain insight about hostile cyber actors and their intent, to exposing malicious cyber activities and associated infrastructure publicly, to disrupting malicious cyber activities directly.”).
[10] Dep’t of Defense, Summary of the 2018 National Defense Strategy of the United States of America 10 (2018), https://dod.defense.gov/Portals/1/
Documents/pubs/2018-National-Defense-Strategy-Summary.pdf [https://perma.cc/
R5KF-EXG7].
[11] See Matthew Cox, US, Coalition Forces Used Cyberattacks to Hunt Down ISIS Command Posts, Military.com (May 25, 2018), https://www.
military.com/dodbuzz/2018/05/25/us-coalition-forces-used-cyberattacks-hunt-down-isis-command-posts.html?utm_source=Mike%27s+Daily+Blast&utm_campaign=
8d4307f510-EMAIL_CAMPAIGN_2018_04_27_COPY_02&utm_medium=email&
utm_term=0_beae3dbeb1-8d4307f510-51475081) [https://perma.cc/7Z8G-J6YU].
[12] See John S. McCain National Defense Authorization Act for Fiscal Year 2019, Pub. L. No. 115–232 (2018) [hereinafter “NDAA for FY 2019”]. Several provisions in the NDAA for FY 2019 provide authority and express support for the conduct of cyber operations to disrupt, defeat, and deter “active, systematic, and ongoing campaign[s] of attacks against the Government or people of the United States in cyberspace, including [attempts] to influence American elections and democratic political processes” by Russia, China, North Korea, or Iran. Id. § 1642. The NDAA for FY 2019 also affirms the authority of the President and Secretary of Defense to conduct clandestine military operations in cyberspace, including operation short of hostilities (as such term is used in the War Powers Resolution) or in areas in which hostilities are not occurring. Id. § 1632.
[13] See, e.g., April 2018 Airstrikes Against Syrian Chemical-Weapons Facilities, 42 Op. O.L.C. slip op. at 9–10 (2018); Authority to Use Military Force in Libya, 35 Op. O.L.C. slip op. at 8 (2011) (quoting Deployment of United States Armed Forces to Haiti, 18 Op. O.L.C. 173, 179 (1994)); see also The President’s Power in the Field of Foreign Relations, 1 Op. O.L.C. Supp. 49, 56 (1937) (describing President Thomas Jefferson’s actions leading to the Barbary War, the invasion of Mexico by Presidents Polk and Wilson, President McKinley’s agreement to suppress the Boxer Revolution, and President Roosevelt’s use of the military to support Colombia to acquire the Panama Canal Zone as examples of the exercise of presidential authority to use the military without Congressional approval.).
[14] See, e.g., The Prize Cases, 67 U.S. (2 Black) 635, 668–70 (discussing the authority of the President to resist foreign invasion and suppress insurrection); Fleming v. Page, 50 U.S. 603, 615 (1850) (“As commander-in-chief, [the President] is authorized to direct the movements of the naval and military forces placed by law at his command, and to employ them in the manner he may deem most effectual to harass and conquer and subdue the enemy.”).
[15] See National Defense Authorization Act for Fiscal Year 2012, Pub. L. No. 112-81 § 954, 125 Stat. 1298, 1551 (2011) (“Congress affirms that the Department of Defense has the capability, and upon direction by the President may conduct offensive operations in cyberspace to defend our Nation, Allies and interests, subject to—(1) the policy principles and legal regimes that the Department follows for kinetic capabilities, including the law of armed conflict; and (2) the War Powers Resolution (50 U.S.C. 1541 et seq.).”).
[16] Authorization for the Use of Military Force, Pub. L. No. 107–40, 115 Stat. 224 (2001).
[17] NDAA for FY 2019, supra note 12, § 1642 (2018).
[18] See 10 U.S.C. § 113(b) (2019) (the Secretary has “authority, direction, and control over the Department of Defense”).
[19] 10 U.S.C. § 394(a) (2018).
[20] See 50 U.S.C. § 3038 (2016).
[21] 18 U.S.C. § 1030(a)(2) (2018).
[22] Id. § 1030(a)(5)(A).
[23] Id. § 1030(e)(8).
[24] Id. § 1030.
[25] See 10 U.S.C. § 1030(f) (“This section does not prohibit any lawfully authorized investigative, protective, or intelligence activity of a law enforcement agency of the United States, a State, or a political subdivision of a State, or of an intelligence agency of the United States.”).
[26] See, e.g., Nardone v. United States, 302 U.S. 379, 383–84 (1937); Hancock v. Train, 426 U.S. 167, 179 (1976) (“Statutes which in general terms divest pre-existing rights or privileges will not be applied to the sovereign without a clear expression or implication to that effect.” (citations omitted)); Dibble v. Fenimore, 545 F.3d 208, 215 (2d Cir. 2008) (describing the “canon of construction that limits the reach of statutes of general applicability to military affairs when Congress has not explicitly provided for application to the military”); United States Assistance to Countries that Shoot Down Civil Aircraft Involved in Drug Trafficking, 18 Op. O.L.C. 148, 164 (1994) (explaining that statutes should not be “be construed to have the surprising and almost certainly unintended effect of criminalizing actions by military personnel that are lawful under international law and the laws of armed conflict”).
[27] See H.R. Rep. No. 98-894, at 4 (1984).
[28] See Nardone, 302 U.S. at 383–84.
[29] Cf. Application of the Neutrality Act to Official Government Activities, 8 Op. O.L.C. 58, 78–80 (1984) (reasoning that subsequent Congressional enactment of provisions regulating the use of the military and covert actions provided further evidence of Congressional intent that the Neutrality Act did not apply to the activities of the Department of Defense or the Central Intelligence Agency).
[30] See 10 U.S.C. § 3093(e) (2019); H.R. Rep. No. 102-166 at 29–30 (1991) (Conf. Rep.); see also S. Rep. No. 102–85 at 46 (1991).
[31] NDAA for FY 2019, supra note 12, § 1632.
[32] The First Amendment protects the rights of U.S. persons “to receive information and ideas, regardless of their social worth.” Stanley v. Georgia, 394 U.S. 557, 564 (1969); see also Martin v. City of Struthers, 319 U.S. 141, 143 (1943); Lamont v. Postmaster General, 381 U.S. 301, 306–07 (1960).
[33] See, e.g., Kleindienst v. Mandel, 408 U.S. 753 (1972); United States v. Alvarez, 567 U.S. 709 (2012) (plurality opinion).
[34] See Bluman v. FEC, 800 F. Supp. 2d 281 (D.D.C. 2011), aff’d by Bluman v. FEC, 565 U.S. 1104 (2012).
[35] See, e.g., R.A.V. v. City of St. Paul, 505 U.S. 377, 384 (1992) (explaining that content-based regulation of speech is permissible only when the content itself is “constitutionally proscribable”).
[36] See 5 U.S.C. § 7323(a)(1); Dep’t of Def., Directive 1344.10, Political Activities by Members of the Armed Forces, ¶ 4.1.2.2 (Feb. 19, 2008), https://www.esd.whs.mil/Portals/54/Documents/DD/issuances/dodd/134410p.pdf [https://perma.cc/775C-XAR5].
[37] U.N. Charter art. 2, ¶ 4.
[38] See Dep’t of Def., Department of Defense Law of War Manual § 1.11.5 (rev. Dec. 2016) [hereinafter DoD Law of War Manual], https://dod.defense.gov/Portals/1/Documents/pubs/DoD%20Law%20of%20War%20Manual%20-%20June%202015%20Updated%20Dec%202016.pdf?ver=2016-12-13-172036-190 [https://perma.cc/2KW4-MXVY].
[39] See Harold Koh, International Law in Cyberspace: Remarks as Prepared for Delivery by Harold Hongju Koh to the USCYBERCOM Inter-Agency Legal Conference Ft. Meade, MD, Sept. 18, 2012, 54 Harv. Int’l L.J. Online 1, 3–4, https://journals.law.harvard.edu/ilj/2012/12/online_54_koh/ [https://perma.cc/8GTK-7D8C]; see also DoD Law of War Manual, supra note 38, § 16.3.1.
[40] See Military and Paramilitary Activities in and Against Nicaragua (Nicar. v. U.S.), Judgment, 1986 I.C.J. 14, at 108 (June 27, 1986), https://www.icj-cij.org/files/case-related/70/070-19860627-JUD-01-00-EN.pdf [https://perma.cc/
9MPA-QE3F].
[41] See Brian J. Egan, International Law and Stability in Cyberspace, 35 Berkeley J. Int’l L. 169, 175 (2017). https://www.law.berkeley.edu/wp-content/uploads/2016/12/BJIL-article-International-Law-and-Stability-in-Cyberspace.pdf [https://perma.cc/9945-XV39].
[42] Id. at 175.
[43] See, e.g., U.K. Att’y Gen. Jeremy Wright QC, MP, Address on Cyber and International Law in the 21st Century (May 23, 2018) [hereinafter “U.K. Att’y Gen. Speech”], https://www.gov.uk/government/speeches/cyber-and-international-law-in-the-21st-century [https://perma.cc/L5N6-HKX8] (archived Sept. 26, 2019)) (“[T]he practical application of the principle [of non-intervention] in this context would be the use by a hostile state of cyber operations to manipulate the electoral system to alter the results of an election in another state, intervention in the fundamental operation of Parliament, or in the stability of our financial system. Such acts must surely be a breach of the prohibition on intervention in the domestic affairs of states.”).
[44] Memorandum from George H. Aldrich, Acting Legal Adviser, Dep’t of State, on Intervention in the Internal Affairs of Other States (Oct. 25, 1974).
[45] See, e.g., Int’l Law Comm’n, Draft Articles on Responsibility of States for Internationally Wrongful Acts, with commentaries, 72–74 (2001).
[46] See, e.g., U.K. Att’y Gen. Speech, supra note 43.
[47] DoD Cyber Strategy supra note 5, at 1.
[48] See, e.g., U.K. Att’y Gen. Speech, supra note 43.
[49] See, e.g., DoD Law of War Manual, supra note 38, § 16.3.2. That is not to say that a military cyber operation that is not analogous to traditional or counterintelligence activity is necessarily unlawful; such an operation may, however, warrant closer scrutiny and additional analysis.
[50] See Dep’t of Def., Directive 2311.01, DoD Law of War Program ¶ 1.2 (July 2, 2020), available at: https://www.esd.whs.mil/Portals/54/Documents/DD/
issuances/dodd/231101p.pdf?ver=2020-07-02-143157-007 [https://perma.cc/9NRH-Q2W6]; see also DoD Law of War Manual, supra note 38, § 18.1.1.
[51] DoD Law of War Manual, supra note 38, § 3.1.1.2.
Aug 6, 2020 | Content, Essays, Online Scholarship
By: Malik R. Dahlan
Abstract: China’s Belt and Road Initiative (“BRI”) is the largest transnational program of infrastructure investments in the world today. Works carried out under the rubric of BRI is expected to amount to several trillion United States (“U.S.”) Dollars by the 2030s and to take place in over 65 countries. This raises the question of how project disputes that arise with works carried out under the BRI will be settled, and whether a multilateral legal regime will arise to affect those settlements as an alternative to the usual methods of resolving investment disputes and enforcing international arbitration clauses supported by intergovernmental investment treaties. This Essay examines the increasing challenges facing investors and states given the lack of an overriding BRI authority nor multilateral framework. It seeks to provide a deeper legal understanding of how dispute resolution is carried out now; it further argues that the BRI will in time give rise to new legal norms and institutions, the outlines of which are already visible. One essential development will be the creation of a dispute resolution regime that responds to the array of challenges posed by projects carried out under the BRI badge, which may not be compatible with traditional dispute resolution mechanisms—most notably, investor–state dispute settlement.
[Click here for PDF]
Introduction
President Xi Jinping laid out the concept of the Belt and Road Initiative (“BRI”) as a connector between cultures on the Eurasian landmass in 2013. The aim, he said, was to establish an “interest,” a “destiny” and “liability” community through existing bilateral or multilateral mechanisms and regional cooperation platforms. The goals were to promote bilateral cooperation, form collaborative relations with other developed countries, and utilize existing multilateral institutions in new ways.
To the best of our knowledge, no national nor international legal instrument has been established to indicate the legal nature of the BRI. One can trace some declaratory origins in the 2015 “Vision and Actions” to Promote the Co-Construction of a “Silk Road Economic Belt” and a “21st-Century Maritime Silk Road” (the “B&R Document”) and working reports presented at the National People’s Congress, and a series of related speeches delivered by Chinese authorities on occasions. However, the B&R Document is best seen as a kind of guidance, as well as a form of proclamation paper. In 2017, at the inaugural Belt and Road Forum, another explanatory policy document, “Building the Belt and Road: Concept, Practice and China’s Contribution” (the “B&R CPCC”) was issued by the Office of the Leading Group for the BRI. The B&R CPCC is explicit in stating the cooperation goals, the focus on bilateralism, the importance of collaboration with other developed countries and the utilization of existing multilateral institutions, among other principles. In the words of one Chinese academic, the BRI is a “partnership-based approach,” which puts the emphasis on bilateral cooperation. This is fundamentally different from the usual basis of international economic cooperation carried out under multilateral treaties or shared rule-of-law principles. Some have gone as far as to argue that the vague legal status of the BRI might be one of its strengths, since soft law common aims are much easier to negotiate and agree upon than hard law treaties. This may help to alleviate concerns of the BRI Participating Members about doing business with a partner with China’s economic weight. It also suggests that China is learning by doing. How are disputes between contracting parties to BRI projects to be resolved? At present, the BRI is more a “grand strategy” than a coherent international program of investment overseen by overarching institutions. Rather, a particular program of Chinese investments in a particular country takes place as an ad hoc project or within the framework of an intergovernmental bilateral investment treaty (“BIT”) that does not provide a granular conceptualization of a rule of law construction or say how exactly conflicts are to be resolved on individual projects funded by Chinese investments. In particular, the BRI lacks: (1) a multilateral treaty covering all participating nation states; (2) a secretariat or other central body to standardize projects and provide a forum for deliberation and development; or (3) a dispute resolution system that offers an acceptable level of legal certainty.
Thus far, China has not provided legal determinacy in any theoretical context familiar to Western academia. Nor has the question of whether the BRI can continue to rely on existing legal instruments, or whether it requires its own institutional or legal arrangements, received much attention in the legal literature.
An added complication is the increasingly polarized international trade relations, within which BRI projects are taking place, particularly in Asia and Africa, where they are often portrayed as an expression of China’s attempts to gain influence, or even hegemony, over particular countries and regions. This polarization has, of course, been accelerated by the effects of the COVID-19 pandemic on the political economy of global trade and investment and has led to a further deterioration of relations between China and the United States (“U.S.”), with the latter still developing a clear articulation of its policy towards China. The breakdown in multilateralism and cooperation between the U.S. and China, which has disrupted investment and global supply-chains, adds extra political risk to many projects. It also places yet more emphasis on the need for legal certainty through dispute resolution.
At present, the designation of a project as “belonging” to the BRI does not have a great deal of substantive meaning beyond providing an incentive for China’s banks to provide it with funding. BRI schemes do not have to relate to the improvement of Eurasian trade routes, since a number of schemes have been carried out in Latin America. On the other hand, some projects, such as the $64 billion China–Pakistan Economic Corridor (“CPEC”), relate to vital geopolitical needs. In the first section of this Essay we put forward some reasons why the BRI should develop a more cohesive identity, above all through the implementation of a common framework of rules to resolve disputes. In the two sections that follow, we look at what that framework will be. In section two we argue that the use of mediation will increasingly replace international arbitration as the dispute resolution method “written in” to BRI contracts—a significant change to present practices. In section three we detail and evaluate Beijing’s attempts to establish an international commercial court system, following the example of the Delaware Court of Chancery and the London Commercial Court—but with Chinese characteristics.
I. The Urgent Need for an Overall Dispute Resolution Mechanism
The previous considerations may help us understand what makes a dialogic process attractive and what makes it unworthy. More specifically, those considerations may help us recognize what kind of dialogue could result worth pursuing in the area of International Human Rights Law. In what follows, I shall briefly illustrate these claims through three examples taken from the The Judicialization of Peace article.
At present, there is no set terms of BRI global engagement (accession) nor the mechanism to resolve disputes that arise out of such engagement. The use of national courts is possible, of course, but since BRI projects take place in countries with common law, continental, and Islamic hybrid legal traditions, many parties unfamiliar with these legal jurisdictions will be understandably nervous about allowing courts to safeguard their interests. The differences in Participating Members’ political, economic, and cultural environments mean that disputes could be resolved through a variety of mechanisms, which may lead to different outcomes for the same kinds of disputes. There is also a question of how experienced national systems are in handling large and complex construction cases. Projects carried out under the BRI mainly take the form of large-scale infrastructure ventures, so disputes can arise from a number of routes, such as market entry, the construction and financing of projects, and the implementation and coordination of environmental standards. Complications arise from the scale of projects, their many stakeholders (which may include the parties to the construction contract, the lender, the guarantor, and the host government), the complex technical issues thrown up by the construction process, and the operation of trade and maritime rules once the asset has been commissioned.
Meanwhile, and aside from the ongoing U.S.–China “trade wars,” challenges in establishing an effective dispute resolution mechanism are ever increasing with high stakes for wider conflict. These include time-consuming processes, a lack of transparency in decisions, dangers to state sovereignty, the high costs of international arbitration, and the inadequacy of the dispute resolution mechanism provided by the World Trade Organization (“WTO”). For example, the rules of the WTO provide a guide to resolving trade disputes but they are not always clearly applicable, partly because of sector coverage and the nature of the parties (i.e. states). This means that WTO rules cannot fully resolve disputes between Participating Members, especially those that are not members of the WTO.
Another channel for dispute resolution is provided by investor–state dispute settlement (“ISDS”) provisions, which are found in BITs or free trade agreements (“FTAs”). However, to date, China has yet to sign investment agreements with 12 of the countries along the Belt and Road. In the more than 30 BITs that China has concluded with Participating Members, the ISDS provisions only applied to compensation in the event of expropriation. As a result, the investor–state arbitration mechanisms are not applicable if the host country violated other provisions of the BIT, such as the principle of fair and equitable treatment.
The reluctance of parties to submit their disputes to national courts has led to a preference for writing arbitration clauses into international investment contracts. In terms of enforcement, among all the Participating Members of the BRI, around 60 are contracting parties of the “Convention on the Recognition and Enforcement of Foreign Arbitral Awards” (the “New York Convention”). This allows arbitration awards from a tribunal in a signatory state to be enforced in any of the others, and some 92% of states involved with BRI projects are members of the New York Convention. As a result, international arbitration is the resolution mechanism of choice for many parties with complex, high-cost, high-risk projects. The question is whether international arbitration will remain so in the future, or whether BRI will lead to the rise of another legal system, with more pronounced Chinese characteristics.
Today, the legal protection for foreign direct investment (“FDI”) under public international law is guaranteed not by a multilateral framework but by a network of more than 3,000 BITs. Most of these legal instruments provide foreign investors with substantive legal protection (including the right to “fair and equitable treatment,” “full protection and security,” “free transfer of means,” and the right not to be directly or indirectly expropriated without full compensation) and access to ISDS for redress against Host States for breaches of such protection. But what about the protections for the Host States that sit across Chinese investors at the negotiation table?
Firstly, problems arise if the Host State wishes to have a foreign judgment enforced in a Chinese court. Until July 2019, in practice, there were only two ways for the Chinese people’s courts to recognize and enforce such rulings: namely, bilateral judicial assistance treaties or the application of the reciprocity principle. In the case of the former, China has signed BITs with almost 40 countries. However, these do not include some of those with which it has the close economic relationships, such as the U.S., Singapore, and South Korea. Among the more than 65 Participating Members of the BRI, fewer than 10 have signed civil (commercial) judicial assistance treaties with China. In other words, domestic judgments or decrees will neither be recognized nor enforced by other BRI Participating Members in most circumstances. As for the latter, only a few foreign judgments have been recognized and enforced in accordance with the reciprocity principle, because of the “factual reciprocity” requirement. This means that Chinese courts only consider recognizing and enforcing foreign judgments when courts from the applying country have previously recognized and enforced judgement made by Chinese courts. With the deepening and evolution of the BRI, these two methods are clearly unable to the meet the requirements of the Chinese economy. In the future, parties may also have recourse to the Hague Choice of Court Convention, which would allow for the recognition and enforcement of court decisions in a way analogous to the New York Convention. At present, China, like the U.S., has signed but not ratified the convention. This is discussed in more detail below.
Secondly, Participating Members of the BRI institutionalize and explain international rules differently. Normative and practical approaches to the legal and regulatory frameworks are often divergent and mismatched. Therefore, it is becoming clear that current dispute resolution mechanisms cannot match the distinct development and nature of the BRI and its diverse composition. We also note that, given the nature of the BRI and the cultural and sociopolitical characteristics of the Chinese approach to dispute resolution, any approach that does not include soft dispute resolution mechanisms such as mediation or dispute boards will be problematic.
The absence of an institutionally established dispute resolution system, soft or hard, will pose problems for the overall success of the BRI and its underlying raison d’être. Without a neutral means to resolve disputes, and a way of integrating that with a coherent set of legal principles accepted by the Participating Members, any decision reached by Chinese courts, or by courts in the country where the project is located, risks being seen as prejudiced by national interests or the interests of national companies.
II. The Rise of Mediation
For international construction projects, arbitration is presently seen as the best available process for resolving disputes. As a recent report by Queen Mary University London and Pinsent Masons puts it, the combination of “neutrality, confidentiality, flexibility and [the] commercial nature of the process along with the facility to choose who will determine their dispute are paramount factors that continue to influence their selection of arbitration.” As a result, 71% of the survey’s sample of international disputes went to arbitration. Nevertheless, this dispute resolution method is inevitably lengthy, expensive, and just as adversarial as a court case.
It is likely that if the BRI gives rise to a global facilitative method of dispute resolution, it will include the incorporation of mediation, rather than arbitration, clauses. This is partly because mediation implies mutual compromise rather than maximal evaluative claims, so there is a cultural “fit” with Chinese notions of restoring “harmony.” More practically, mediation is quick compared with arbitration and offers a better chance of preserving commercial relationships than arbitral awards, which are often winner-take-all and may have the added sting of a costly award.
This likelihood is also suggested by recent developments in China: the Chinese People’s Court has promoted mediation in its “Opinions of the Supreme People’s Court (“SPC”) on Further Deepening the Reform of the Diversified Dispute Resolution Mechanism of the People’s Courts” and “Provisions of the SPC on Invited Mediation by the People’s Courts” promulgated in June 2016.
This is further evidenced by the speed with which the Chinese government signed the United Nations Convention on International Settlement Agreements resulting from Mediation (the “Singapore Convention”), which is due to enter into force in September 2020. China was one of the first countries to sign, in August 2019, along with the U.S., India and Singapore. The convention will provide a legal basis for the right to invoke and enforce settlement agreements resulting from mediation and may give greater confidence to the parties that mediation offers them a sufficiently robust alternative to arbitration.
A third indication is the memorandum of understanding that was signed on January 24, 2019 by the Singapore International Mediation Center and the China Council for the Promotion of International Trade. This established a panel of mediators tasked with the resolution of BRI disputes. The International Chamber of Commerce (“ICC”) has also established a commission and published mediation guidance specifically for the BRI.
Finally, the wider legal environment is becoming more accepting of mediation as a way of handling large, complex claims. For example, the International Bar Association (“IBA”) Rules on Investor–State Mediation now provides a legal framework for mediation in the investor–state (“IS”) context. Mediation has also been included in free trade and investment agreements, such as the EU–Canada Comprehensive Economic and Trade Agreement and the Trans-Pacific Partnership, and it also features in some BITs. In July 2016, the intergovernmental Energy Charter Conference (“ECT”) published a Guide on Investment Mediation to lead governments and companies in the energy sector through the mediation process, and the International Center for Settlement of Investment Disputes (“ICSID”) has also embraced mediation as part of its dispute resolution process, recognizing that its traditional conciliation process too closely mirrors arbitration and that a more pragmatic approach is needed.
Putting all this together, it seems advisable for participants and consultants involved in BRI-badged schemes to familiarize themselves with the mediation process and the strategies that parties can adopt when they undergo it. However, unlike arbitration, there is no guarantee that the process will lead to a definite result, so there has to be a hard law process to deal with unresolved cases. This is where China’s domestic court system may play an increasingly important role.
III. The China International Commercial Court (“CICC”)
On January 23, 2018, the Communist Party’s Leading Group for Deepening Overall Reform proposed the establishment of a BRI Dispute Resolution Mechanism and Institution by means of international commercial courts. These have since been set up in Xi’an and Shenzhen and have commenced operation. The court in Xi’an deals with disputes involving the “silk economic belt,” and Shenzhen handles disputes arising from the “maritime silk road.”
Following the example of the Singapore International Commercial Court, among others, the aim is to establish a mechanism that offers a choice between litigation, arbitration and mediation—a “one-stop-shop” dispute resolution mechanism that will work with international commercial mediation and arbitration institutions such as the WTO, the Asia International Arbitration Center, and so on. The general aims is to bring a new internationalism and openness to the Chinese domestic legal system; the specific goal is to devise a Chinese mechanism for the mutual recognition and enforcement of judgments, thereby helping, it is hoped, to achieve the paramount aim of laying the foundations of a legal system throughout the BRI area.
The CICC hears cases that have “significant nationwide impact,” such those that involve the unification of international adjudication standards, have great social impact, or are significant in interpreting international treaties and rules. To increase the capacity of the courts, the system includes five international commercial arbitration institutions and two international commercial mediation institutions, including:
- The China International Economic and Trade Arbitration Commission (“CIETAC”)
- The Shanghai International Economic and Trade Arbitration Commission
- The Shenzhen Court of International Arbitration
- The Beijing Arbitration Commission
- The China Maritime Arbitration Commission
- The Mediation Center of China Council for the Promotion of International Trade, and
- The Shanghai Commercial Mediation Center
We should note that these institutions are essentially Chinese, located in China and act as branches of the Supreme People’s Court in Beijing. In order to enhance the international appeal of this nascent system, it would be advisable to include international commercial mediation and arbitration institutions from other jurisdictions when this list is expanded in the future.
Although the CICC has been described as “China’s Belt and Road court,” the jurisdiction of the CICC is not limited to disputes related to BRI. The CICC will deal with any trade and investment disputes over a threshold value of about $50 million, but may only hear commercial cases when one or both parties are foreigners, stateless persons, foreign enterprises, or other organization. That said, they will perform a number of important functions for the BRI projects. As noted by Mark Feldman, the CICC will provide fair and impartial dispute resolution services by pursuing a party consent-based model, thereby advancing the CICC’s ambition to build a reputation for impartiality and to extend its international influence, as well as establishing the International Commercial Dispute Prevention and Settlement Organization.
From the point of view of Chinese investors, the CICC offers a way to avoid the involvement of the courts in the country in which the project takes place, particularly if the host country has not yet developed a sophisticated commercial legal code. Rather, they will have access to proceedings carried out in accordance with Chinese civil law and in the Chinese language, with judges drawn from Chinese courts. The judgments will have the status of SPC judgments and be final, subject to an appeal to the Number Four Civil Division for a retrial.
From the point of view of the Chinese authorities, the CICC offers a means to establish the reputation of Chinese dispute resolution among foreign litigants, thereby providing an alternative to Western arbitral tribunals. It also provides a training ground for the Chinese personnel in the application of international legal principles, both from contact with the International Commercial Expert Committee (“ICEC”), set up to offer advice to the CICC, international commercial arbitration institutions, international commercial mediation institutions, and from the SPC’s issuing of judicial interpretations and its disclosure of the details of significant individual cases.
However, from the point of view of foreign litigants, what certainty do they have that the CICC will not give Chinese parties some kind of “home team advantage?” A recent report from President Trump’s Whitehouse included a number of criticisms of China’s “predatory” commercial practices, including a claim that Beijing is “seeking to arbitrate One Belt, One Road-related commercial disputes through its own specialized courts, which answer to the [Chinese Communist Party (‘CCP’)].” To some extent, perceived bias is a problem faced by all international commercial court systems, of which there are more than 10 around the world at the time of writing, and probably reflect the general opinion held about a political system (as in the above quote). To counter this, the CICC has set up the ICEC, made of up to 31 legal practitioners or academics chosen by the SPC from 14 foreign countries as well as Hong Kong, Macao, and Taiwan. The aim has been to choose leading figures in the areas of international trade and investment law with records of professionalism and neutrality. The panel will preside over mediation cases, provide advice on specialized legal issues, and offer policy advice to the SPC and the CICC. To reassure litigants of the court’s competence, the SPC chose 14 of its own judges based on their familiarity with international treaties, international practices, and international trade and investment practices, as well as their ability to hear testimony in English.
The question to be answered is whether foreign parties will choose to write clauses into their contracts providing for any disputes to be resolved in the CICC system rather than relying on international arbitration clauses. Furthermore, a weakness of the CICC is the question of whether their awards are enforceable outside China. While there are, as yet, only some 10 agreements on judicial cooperation, it is not clear if any BRI documents contain provisions requiring other governments to respect or enforce decisions from the CICC.
There are, however, some mechanisms that already exist: for example, in the Hong Kong Special Administrative Region of the People’s Republic of China (“P.R.C.”), domestic Chinese judgments could be enforced under the Mainland Judgments (Reciprocal Enforcement) Ordinance as well as the Arrangement Concerning Mutual Assistance in Court-ordered Interim Measures in Aid of Arbitral Proceedings by the Courts of the Mainland and of the Hong Kong Special Administrative Region, a measure that was passed in 2019. China could also apply the Hague Convention on the Recognition and Enforcement of Foreign Judgments, of which it is a signatory. It has been reported that China is considering ratifying the Hague Convention on the Choice of Court Agreements, which it signed in September 2017. The problem here is that the Hague Convention only includes 29 states, less than 20% of the New York Convention, which means court decisions cannot be enforced between some B&R countries. China has signed bilateral judicial assistance agreements or treaties with 39 countries, of which 37 have entered into force. Among these, four do not provide for the recognition and enforcement of judgments of foreign courts: Singapore, South Korea, Thailand, and Belgium. Nevertheless, reciprocal agreements or bilateral agreements, to some extent, help to realize the mutual execution of court judgments. The enforceability of CICC judgments is likely to be an important criterion of international commercial parties when deciding which dispute resolution clauses to include in their contracts. Here, the Chinese system is indirectly competing with the New York Convention, which facilitates arbitration recognition and enforcement in more than 150 states and regions.
Meanwhile, a development that is likely to reassure parties is the 2019 Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters (the “2019 Hague Convention”), which was adopted by the delegates of the 22nd Diplomatic Session of the Hague Conference on Private International Law (“HCCH”) on July 2, 2019. “[B]y offering certainty and legal security in cross-border transactions and litigation,” the 2019 Hague Convention “will inspire confidence in civil court judgments handed down in other member states.” “[A]n important gap in the landscape of private international law has finally been filled by the HCCH,” which has been signed by China, as noted by the Secretary General of the HCCH, Dr. Christophe Bernasconi. Nevertheless, it will take time for China to join the convention officially.
Conclusion
In the absence of a multilateral legal framework, an institutional organization (secretariat), and uncertainty regarding dispute resolution under the BRI, the rule of law is hardly visible. However, there are some promising signals made on the third front. On the one hand, there is visible progress in the Mainland and Hong Kong Closer Economic Partnership Arrangement (“CEPA”) which is the first free trade agreement ever concluded by the Mainland of China and Hong Kong. The main text of CEPA was signed on June 29, 2003 and, as of 2019, the Hong Kong Government has committed to train mediators and State officials under CEPA. This is key to this discussion as it demonstrates that China is already engaged in resolving investment disputes through mediation. BRI Participating States could equally make use of mediation in its B&R Agreements with China.
In addition, a breakthrough announcement, known as the Beijing Joint Declaration of BRI Arbitration Institutions, was made during the November 6–7 2019 Belt and Road Arbitration Institutions Roundtable Forum organized by CIETAC. In 2020, during the COVID-19 pandemic, CIETAC supplemented the declaration with the “Working Mechanism under the Beijing Joint Declaration” to expedite mediations. The Beijing Joint Declaration is a compact that states that the 47 undersigned institutions will work to speed up the construction of a sound legal and business environment for international arbitration services against the background of the BRI, establishing a platform for innovative legal cooperation and promoting the fusion and development of both legislation and enforcement in various jurisdictions, so as to construct the road towards the rule of law for the BRI and guarantee the steady and orderly advancement of the BRI.
Despite the widespread cynicism over its motives and criticisms of the indeterminacy of its rules and practices, the BRI offers little substantive challenges to the international order as we know it, because it is orientated towards increased trade and market access. In fact, what China seeks to capture are the twin benefits of improving its international environment through infrastructure and the employment of surplus capital in the form of FDI. In other words, Western scholars may have been essentializing a legal adversity with China without perhaps understanding or indeed defining other dimensions of challenges in China’s investment law and policy. The undefined BRI rules of engagement and other notions emanating from the Chinese national governance system may challenge rule of law notions accidentally, and this may have unintended consequences.
This notion is best explained by Lee Jones of Queen Marry University of London, who asks “Does China’s Belt and Road Initiative Challenge the Liberal, Rules-Based Order?” He states, “China seeks a way to cooperate across value divides by setting aside ideological and cultural differences and focusing on shared material gains.” He suggests that “the essence of the BRI as a spatial fix for Chinese capitalism, and party-state’s governance regime, will inevitably generate challenges to existing global rules, irrespective of the intentions of the authors of [the B&R Document] and [Building the Belt and Road: Concept, Practice and China’s Contribution (the “B&R CPCC”)] . . .”
This is not the end of the regionalism debate. It is not even the beginning of the end. Ever since it was put forward for the first time in 2013, the BRI has attracted attention, not just regionally, but all over the world. The BRI has been difficult to comprehend not only as a new kind of economic and political ordering created by the emergence of China as a regional hegemon, but also in terms of its classification within a spectrum of trade categories with a specific and technical meaning. The BRI is sui generisinitiative, focused mainly on infrastructure. It is governed, so far, by bilateral agreements and treaties backed up by a set of principles and guidelines that do not have an overall body of governing law or a coherent set of institutions to formulate, interpret, or enforce them.
The jurist John Jackson, who played a key role in the creation of the WTO, has argued that the international economic legal system can accommodate a multiplicity of systems and economic modalities. If this is so, then it can be argued that what the BRI would like to achieve is more than a free trade area but less than a common market. By providing an open, inclusive and balanced investment and trade cooperation platform, the BRI aspires to achieve a community of “common destiny.” During the construction process; investment, commercial, or trade disputes between individuals, undertakings, institutes, authorities, and states engaging within the BRI cannot be avoided. However, there is no simple dispute resolution mechanism that could efficiently resolve the above-mentioned conflicts.
Against the background of continuous controversy and massive investment flows, at a minimum, the BRI clearly requires an international dispute resolution mechanism. This could be affiliated with the Asian Infrastructure Investment Bank (“AIIB”), one of the few multilateral institutions within the BRI ecology, thereby giving it an international organization credibility, international law standards, and a form of governance that is not entirely Chinese. Mediation may provide the model form of dispute resolution for the BRI and the BRI Participating Members, deriving a spirit of access to justice and rule of law to accommodate their tremendous diversity, sensitivities, and peculiar political and legal complexities.
For the sake of renewed and enhanced internationalism, we should not expect that China will not remain the driver and engine behind the BRI. The time has come to define terms of engagement for this new spirit of pluralism even if anchored on the foreign-ness of traditional Chinese notions of “harmony” as long as they are smart, transparent, fair, and efficient. This needs to be premised on international standards and rules that allow for harmonization and the efficient resolution of disputes that arise along the BRI. Ultimately, grand strategies and visions must never jeopardize the long and promising road ahead for the future of a rule of law global order.
Apr 24, 2020 | Essays, Online Scholarship
By: Jannice Käll
This Post is the sixth in a new Frontiers series that critically explores the connection between international law and emerging technology, featuring the writing of scholars from a variety of disciplines affiliated with the Institute for Global Law and Policy (IGLP) at Harvard Law School.
[Click Here for PDF]
Today, we can barely remember a time when data was not thought of as a thing, both in a rhetorical sense and as something endowed with its own materiality. Yet now, it is already considered to be the new oil. Seeing data as an object of trade also connects to broader shifts in production and business models—from value chain orientation, to value networks, and, in its most popularized form, platform-based business models. In this shift, both in relation to production and in relation to the organization of economic value creation, data is understood and exploited as an economic resource. Such exploitation poses new questions for law. This is especially so because data is pursued as a capital asset in different and new ways, as compared to the currently dominant ways of conceptualizing things in general and property specifically through law.
In this article, I will examine some of the specificities of how data is being actively formed into a separable object, as well as an object of property. The aim is to denaturalize the stage that legal research and practice may find itself in when encountering the effects of data as a business asset—for example, by re-erecting boundaries to protect individual privacy. I will subsequently argue that data, just like other objects of property, did not become an object that could be captured as property alone. Instead, I will argue, data is consistently dematerialized and produced in order to be captured in ways that make it seem to be a coherent object for the economy, as well as law.
In doing so, I will follow what can broadly be described as a new materialist stream of theory. New materialist theory is often described to include many recent theoretical novelties where matter is foregrounded.[1] Examples of such streams are object-oriented ontologies and new realisms.[2] The stream of new materialist theory followed here is, however, the new materialism developed through and after Gilles Deleuze and Félix Guattari.
The significance of this stream of new materialism is that it combines a new focus on how matter comes into being with a critical endeavor to visualize which forces produce such materialization.[3] To put it simply, when new technologies are invented, one needs to be able to outline how they come into being and for whom. The question of how a technology materializes and which effects it has on society in a wider sense is therefore a vital new materialist question. In new materialist research, this has been expressed as a need to find ways to visualize how matter comes to matter.[4] Research relevant to opening up matters of digitalization from a new materialist angle has been carried out in media studies, for example.[5] This article’s emphasis on legal theory provides an example of how one can trace the materialization processes of digital phenomena as a shift in the balance between personhood, intellectual property rights, and law.[6]
The aim is to formulate a more radical starting point than other recent focuses on privacy or regulations of “personal data.” This point is to treat data as something that does not even need to have its own materiality. Subsequently, it is useful to compare data with oil—what would happen if oil stayed in the ground and thus did not become an object of property at all? The first question following new materialist theory therefore is: how can one theoretically show that data came from somewhere and subsequently did not need to be treated as an object of property at all? I argue that this is an important starting point from all perspectives of regulating data, whether one finds privacy laws pertinent or not, because it sheds light on what has already been compromised when we get to such a state. When personal data become part of regulation, the much bigger market that feeds on data as an object of trade is already there. Privacy laws can subsequently, at best, stop some of the minor intrusions that have already occurred. The materiality of data as an object is not questioned. The reason for this is that the commodification process of data in itself dematerializes it from the so-called natural person from which it is derived.[7] The same also applies when data is “extracted” from objects and spaces.[8] Individual rights, such as privacy rights, can only limit certain uses of said data, not the exploitation and trade in the data itself.
The question I pose here subsequently forms an attempt to instead start from a more fundamental question of how to make such materialization processes of data as property visible. Or in other words: which discourses contribute to the understanding of data as an object, or even as suggested more recently, a raw material?[9]
This is naturally a very broad question, and this short article will only offer brief answers. However, the aim is to refocus the idea about data as a separable legal object by pointing at questions of materiality and differences in relation to data, that to this stage are more or less lost to legal conceptualizations of data. By this, I further argue that a reconsideration and possible rematerialization of data, for means other than the market, demands ways to identify and avoid the discourses and processes utilized for market purposes. To achieve such a rematerialization, I subsequently here retrace some of the ways that data is produced as a conceptual category under advanced capitalism, and some of the broader challenges that law faces if a critical intervention is to be carried out.
Dematerialization
“…a defining characteristic of the present cultural moment is the belief that information can circulate unchanged among different material substrates.”[10]
Bodily disconnect is a prerequisite for considering data as an object separate from persons. Such disconnection, or dematerialization, is continuously produced in modern cultural narratives where the mind is considered to be separate from the body. The so-called Cartesian split makes for a pervasive philosophical basis for dividing the human mind from the body to prove that existence and superiority is based just on the capacity of the human mind. In more modern narratives, the mind takes on an even more expansive independent existence through sci-fi narratives where the mind is turned into a substrate that can circulate freely on its own, as N. Katherine Hayles argues.[11]
In the cultural sphere of the law, the concept of the legal subject sustains the old modern idea of the split between mind and body in several instances of the Western legal order. Legal subjectivity is in its simplest form founded on the idea that when someone may be considered as a human, that person’s actions can be transformed to produce legally binding commitments. When such human consciousness is lacking, contracts can be disregarded and other otherwise illegal acts can be left unpunished or ignored.
A similar tract can be found in the general ideas of intellectual property law. All intellectual property laws build on the premise that knowledge can be separated from the human mind and controlled (while limited in time, space, and other embodiments). An invention is here understood as a dematerialized form from the human mind that can be patented or copyrighted. In the ensuing debates to delimit proprietary control over code (which was made into a copyrightable work), famous narratives furthermore include popular slogans such as: information wants to be free![12] Yet, what is constantly reiterated also in these narratives is that information, indeed, has the capacity to be free. In this way, both knowledge and information are also continuously dematerialized in more recent discourses in law. The latest move in such dematerialization of knowledge and information is then to consider data as something that is not connected to something material. It is a resource that can be “extracted,”[13] or it is an object that can belong to a data subject (while of course being balanced against the “free flow of personal data”).[14]
In a similar manner, the dominant narratives of data, including those considering data as a raw material, tend to disconnect data from other types of physical matter—such as geological ones.[15] Subsequently in the construction of data as an individual object, it is dematerialized both from the human mind, as well as from other processes that are required for its production. However, as Jussi Parikka points out, the geology of data can be detected from the fact that cloud computing has very little to do with the cloud itself and everything to do with keeping servers cool.[16] Abstract metaphors of the seemingly immaterial kind—the data is in the cloud—can in this way be reconnected back to the way that data and the digital economy are thoroughly dependent on so called natural resources, just like any other commodity. When data is pictured as a resource that can be extracted in itself, such infrastructures necessary for its objectification are made invisible. This dematerialization of data is furthermore picked up through law when law related to data does not deal with, for example, the exploitation of minerals or labor.
Commodification
Dematerialization processes, where data becomes a separable object from the human, precedes, as well as are entangled with, how data is turned into a commodity. As Karl Marx expressed in Capital, the separation of something into a commodity is connected to perceiving the commodity as having vitalist capacities.[17] However, commodification is still distinct from dematerialization—it is the stage at which something becomes coded as property in law. This coding, in its simplest understanding, makes it possible to trade with an object and convert it into capital value. The exact expressions of data commodification are not obvious, as the legal concepts of data commodification are still being created.
However, data is also already commodified through ever-expanding intellectual property laws, as well as through contracts packaging pieces of data into pieces of trade. In intellectual property law, we have by now gotten used to thinking of computer programs—built up on code—as objects of copyright, and genetic information as something that can be extracted and captured as a patentable invention, as long as enough creativity can be invented so as to fulfill patent law’s criteria of moving the object from a discovery to an invention. The creation of data as an object of property is however also established through contracts, where companies in boilerplate contracts one-sidedly stipulate that individuals agree to data collection to access the service being offered. Property in data also comes about discreetly when it is stipulated that the free flows of data need to be weighed against privacy rights of data subjects.[18]
Subsequently, in the commodification of data, it is further distanced from the processes that are required for its production. This implies a flattening out of differences between the objects that may be considered as data, through law. If we think about copyright again, there is generally no difference made in law between whether a literary work is of core interest to the society and its cultural bindings, or if it is a work that no one will ever open. Copyright is granted to both works equally. This implies an equalizing between these two types of works, as they are made into objects of intellectual property.
Dematerialization of data is furthermore a process that should not necessarily lead to legal conceptualization of data as a property object. As is widely known, there are elements that have become dematerialized from personhood, but are not considered property. Examples of such objects include aspects related to the human body such as organs, which are not necessarily traded. Intellectual property law also teaches that objects can be private property first, but then return to a state of communal holding, such as when works pass over to the public domain as intellectual property rights expire. When data is treated as an object of property, just as it is not placed under any clear property category, there are no such specific ways of returning that data to a non-property state.
Affective Control
Another characteristic of data as a possible form of materializing property is that it is endowed with a capacity which is at least in theory unknown to traditional property objects. This characteristic can be described as “affective control.”[19] While humans often perceive physical things and property objects as passive, their liveliness in the market sphere is produced through marketing, including branding. Data, however, is an object that can produce and govern effects at the same time. This is apparent in the way that data is often collected to be repackaged as information about the consumer’s behavior in order to further nudge that behavior in a certain direction. As Brian Massumi argues, this type of person-product-marketing continuum is characteristic of an intangible economy where “[l]ife movements, capital and power become one continuous operation – check, register, feed-in, processing, feedback, purchase, profit, around and around.”[20] Furthermore, digital techniques facilitate how the product and the marketing sphere can converge. Not only are the feeds of social media personalized after one’s “personal” data, but influencers, who are neither just private persons nor strict commodities or advertisers, populate digital spheres to create both commercial and political effects.
Subsequently, data as an object has a clear capacity to transgress typical ideas about property objects. Data’s status as both an object and a means for affective control will provide novel legal challenges.
Rematerialization
The recent discourses on bringing back power to citizens over “their” data in the form of personal data protection could be understood as an answer to the dematerialization of data from those who produce it. The forms of law enabling such rematerialization, such as the General Data Protection Regulation (“GDPR”), can furthermore be understood to construct a legal concept that makes this possible. However, the question will still be whether such concepts can disrupt the processes of dematerialization, commodification, and affective control that currently make data into a very specific form of property (or property-to-be). Some will answer the question in affirmative, pointing at the strong potential that lies in privacy rights under, for example, the GDPR.[21] However, in relation to such quests for regulation of data privacy, we need to remember that this type of data regulation significantly iterates already taken for granted concepts of persons and things vested in the dominant concepts of law. As Roberto Esposito points out, entrance of objects “intermingled with human elements, solidified and made interchangeable for others,”[22] as “people are in their turn traversed by information, codes, and flows arising from the continuous use of technical objects,”[23] implies that a crack between persons and things might be appearing, putting into question fundamental assumptions about modern law and society.[24] A reification of personhood in the form of, for example, privacy rights as a boundary against things or commodifiable objects, may therefore only approach on a surface level the more fundamental challenge the digital economy poses.[25]
Subsequently, data, even when pictured as an object, has to be understood as much more pervasive in the way that it becomes both the prerequisite for, and result of, new materializations of our life-worlds. Accounting for such aspects of materiality of data is a primary role for law if the aim is to provide a response to the continuous dematerialization and commodification of information. A rematerialization of data as a critical response to the current technological and economic trends that run through existing forms of law can therefore only imply a partial change in how data is produced as a property object. A more critical form of rematerialization needs to be able to understand both the prerequisites for the production of data as well as its mechanisms for producing affective control.
Conclusion
Ironically, the idea that data is the new oil might not be a bad metaphor from the perspective of critical studies of law. Just like oil, data is perceived of as something that is merely out there to be extracted for the human good, producing new materialities of value for society. In critical hindsight, we know that oil has carried both colonialist and destructive effects on life. In the same way, data as an object may further the end of what we consider as human subjectivity by producing a posthuman life-form as persons and things become increasingly mixed together.[26] As a possible property object, data furthermore has a pervasive capacity to produce positions of control over thinking as well as life, which may render legal ideas of the sovereignty of the free individual obsolete. The affirmative aspect of this development is that it may help us reconnect with those that suffered from preceding forms of colonialism and capitalism; that is, those who were previously considered non-human, and those who still remain as such.[27]
Jannice Käll is a post-doctoral fellow in Law and Artificial Intelligence in the Department of Sociology of Law at Lund University, Sweden.
[1] See, e.g., Rick Dolphin & Iris van der Tuin, New Materialism: Interviews & Cartographies (2012).
[2] For more on the similarities and differences between new materialist streams from the perspective of jurisprudence, see Andreas Philippopoulos-Mihalopoulos, Spatial Justice: Body, Lawscape, Atmosphere 3 (2014).
[3] For an example of such theoretical work based on Gilles Deleuze and Félix Guattari’s philosophy for our current conditions, see Rosi Braidotti, The Posthuman (2013).
[4] See id.; Karen Barad: Meeting the Universe Halfway: Quantum Physics and the Entanglement of Matter and Meaning (2007); Karen Barad, Posthumanist Performativity: Toward an Understanding of How Matter Comes to Matter, 28 Signs 801, 803 (2003).
[5] Jussi Parikka, A Geology of Media 1-28 (2015).
[6] Jannice Kall, Converging Human and Digital Bodies: Posthumanism, Property, Law (2017)
[7] See, e.g., Jannice Käll, A Posthuman Data Subject? The Right to Be Forgotten and Beyond, 18 German L. J. 1145 (2017).
[8] C.f. Nick Couldry and Ulises A. Mejias, The Costs of Connection: How Data is Colonizing Human Life and Appropriating It for Capitalism 88-91 (2019)
[9] See, e.g., Nick Srnicek, Platform Capitalism 39 (2016)
[10] N. Katherine Hayles, How We Became Posthuman 1 (1999)
[11] See id.
[12] The expression is almost impossible to give one source to, as it is used widely online and functions more as a meme or general critique of intellectual property than anything else. However, the expression has been credited to Stewart Brand for using it at a conference for hackers in 1984. Steven Levy, Hackers at 30: “Hackers” and “Information Wants to Be Free”, Wired, (Nov. 21, 2014), https://www.wired.com/story/hackers-at-30-hackers-and-information-wants-to-be-free/.
[13] Srnicek, supra note 9, at 40.
[14] Regulation 2016/679 of Apr. 27, 2016, on the Protection of Natural Persons with Regard to the Processing of Personal Data and on the Free Movement of Such Data, and Repealing Directive 95/46/EC (General Data Protection Regulation), 2016 O.J. (L 119) 1 (EU) [hereinafter GDPR].
[15] See generally Parikka, supra note 5.
[16] See id. at 24
[17] Karl Marx, Capital 46-47 (Wordsworth Classics 2013) (1867).
[18] See GDPR, supra note 14, at 3-6.
[19] Sarah Keenan puts forward a similar position of how property in general can be understood as holding up bodies as space, which implies a theory of affective belonging between bodies as a form of control rather than picturing property as ownership over a specific thing. Sarah Keenan, Subversive Property: Law and the Production of Spaces of Belonging (2014)
[20] Brian Massumi, Politics of Affect 28 (2015)
[21] See GDPR, supra note 14.
[22] See Roberto Esposito, Persons and Things: From the Body’s Point of View 136 (2015)
[23] Id.
[24] See id. at 3
[25] See Esposito, supra note 22.
[26] See generally Käll, supra note 6.
[27] See Braidotti, supra note 3, at 1; Donna Haraway, Simians, Cyborgs, and Women: The Reinvention of Nature 178 (1991)
Apr 20, 2020 | Essays, Online Scholarship
By: Elettra Bietti & Roxana Vatanparast
This Post is the fifth in a new Frontiers series that critically explores the connection between international law and emerging technology, featuring the writing of scholars from a variety of disciplines affiliated with the Institute for Global Law and Policy (IGLP) at Harvard Law School.
[Click here for PDF]
There is no small irony in the fact that a company sharing a name with the largest tropical rainforest in the world is significantly contributing to environmental destruction. While Amazon has announced intentions to be carbon neutral by 2040, its platform operations contribute to significant carbon emissions.[1] Amazon also contributes to environmental harms in indirect ways through its provision of cloud-computing services to the oil and gas industry,[2] and its donations to political candidates denying climate change.[3]
Amazon’s practices are just one example of the environmental impacts of data-driven technologies. They also reflect a broader phenomenon related to data-intensive commercial practices today. Empirical findings have shown that digital technologies contribute to 4% of overall greenhouse gas emissions, a number expected to double by 2025.[4] Other estimates indicate that training a single artificial intelligence (“AI”) model emits carbon dioxide in amounts comparable to that of five cars over their lifetimes,[5] and that bitcoin mining consumes more electricity than the country of Switzerland.[6]
While much legal scholarship relating to data collection and processing has focused on individual privacy and autonomy, far less attention has been paid to the environmental impacts of data. In this contribution, we highlight a phenomenon we call “data waste,”[7] or the carbon emissions, natural resource extraction, production of waste, and other harmful environmental impacts directly or indirectly attributable to data-driven infrastructures. These include platform-based business models, the programming and use of AI systems, and blockchain-based technologies.
We first describe data-driven infrastructures as reflecting an ideology of permissionless innovation and as producing network effects that tend toward monopolization. We then explain how these factors have shaped data-driven infrastructures’ impact on the climate. Next, we discuss how law and legal institutions have facilitated these developments and call for a more systemic understanding of the factors contributing to data waste. We end with a call to frame the issue of data waste as a sociotechnical controversy that raises broader questions about the power dynamics that underlie data-driven infrastructures and the need to imagine alternatives.
Data-Driven Infrastructures
Data-driven infrastructures are here defined widely as technologies that are fueled by data and that generate data. Data in other words is both an input and an output of these technologies, in that it is both produced by such infrastructures, and what allows them to function. Examples of data-driven infrastructures include content sharing platforms such as Facebook, YouTube, Twitter, Google, and Amazon; AI systems that both rely on data for their training and functioning and also produce new data, relying on the idea that “bigger is better”;[8] and blockchain-based systems which rely on and produce information in the form of ledgers. Data-driven infrastructures also depend on material infrastructures for storing, transporting, and processing data, such as data centers and data servers, which depend on intensive energy[9] and water[10] usage. Data-driven infrastructures therefore exist at multiple infrastructural layers.[11]
Data-driven infrastructures possess two specific characteristics which set them apart from most other infrastructures. The first is that they are based on logics of “permissionless innovation” and “generativity.”[12] Permissionless innovation is the principle according to which a given infrastructure allows others to innovate on top of it without asking those who develop or control the infrastructure for permission to do so. Generativity is the capacity to build upon an existing system in ways unforeseen by the original designers.[13] The second characteristic of data-driven infrastructures is that they facilitate the monopolization of digital markets. These infrastructures enable and incentivize business models based on connecting increasing numbers of people, capturing their attention, and using their data for profit. Data-driven infrastructures give rise to network effects; their functionality improves with the greater number of people using them and the greater amount of data collected through them, driving ever-increasing data collection. The success of these business models thus depends on market power concentration, achieved by ousting competitors for valuable user data and attention, and making other businesses dependent on their essential infrastructure.[14] In what follows, we explore these two aspects in turn, showing how they have contributed to data waste.
“Permissionless” Data Waste
The way the Internet was initially developed, including its layered end-to-end networked structure, enabled innovation to take place at the user-interface level without interference from those who control the physical backbones of the internet, including cables and transmission channels.[15] This led to a vision of the Internet in its early stages as an open ecosystem for permissionless innovation—a site where new entrants were able to develop projects and initiatives that were thought to significantly challenge the status quo, through peer-to-peer networks and collaborative platforms. A similar principle applies to blockchain technologies which rely on an open distributed ledger managed by a peer-to-peer network of distributed nodes. Behind the appearance of a frictionless infrastructure, however, these and other permissionless technologies hide a darker side. They have enabled a culture of unreflective innovation which, if left unchecked, is too often blind to long-term systemic effects. A culture of “moving fast and breaking things,” as expressed in the famous Facebook slogan,[16] can lead to negative externalities—including the harms on society and the environment imposed by data waste—while responsibility for those harms remains diffuse.
Network Effects and Market Power
A second aspect of data-driven infrastructures is their network effects. Network effects are the positive effects that adding a new user of a good or service can have on the value of the good or service itself.[17] For instance, the more individuals use Facebook, the more attractive it becomes to join and spend time on the site. Similarly, the more searches are performed on Google Search, the more accurate their search algorithms become. Network effects go hand-in-hand with so called multi-sided markets. These are markets where two complementary services become easier to offer through the intermediation function of a platform. For example, Amazon makes it less costly for buyers to find sellers, and also cheaper for sellers to find buyers. Similarly, on Google Search, advertisers and websites are a source of content for users, and users the source of attention that websites and advertisers seek. Google stands to gain from the transactions between websites/advertisers and users because it obtains both users’ data and advertisers’ money.
Network effects in multi-sided data-driven markets can lead to monopolization, as corporations increasingly compete for the data and scarce attention of individuals from which they can generate revenues and profits. Such monopolization leads to an attention-based economy.[18] In the attention economy, platforms try to outcompete each other by offering users appealing content, capturing their attention, collecting their data, and locking them into the habit of using their platform instead of another. The more data that a company can collect, the more successful they will be at locking-in users and driving out competitors.[19]
The combination of permissionless innovation and network effects that concentrate market power is driving ever-increasing data processing and storage, content (and particularly video) streaming in real-time, and complex data analytics systems—all of which require intensive energy usage.[20] To compete and generate revenues, tech giants such as Google and Facebook fuel an aggressive culture of constant virtual connection for all—a culture largely powered through video content, as made salient by the success of platforms such as YouTube, Instagram, and Twitch—one that may also be advancing in the Global South through cheap mobile devices and phone contracts.[21] The constant connection inherent to these business models comes with a substantial increase in data collection and waste.
Big tech companies’ market power also has other environmentally detrimental effects. Consider Amazon. Amazon Web Services is the largest provider of web storage and cloud services worldwide, far ahead of its largest competitors: Google, Microsoft, and IBM. Not only does the internet largely run on Amazon servers, but Amazon also provides cloud-computing services to the oil and gas industry, helping them extract fossil fuels more efficiently.[22] Amazon also donates to political candidates that deny climate change, thereby shaping public discourse on the issue.[23] Amazon’s example shows how network effects and concentrated market power are tied to environmental harms, as well as the power to shape public debates on climate change through political donations. Thus, data-driven infrastructures, market power, and the political discourse around environmental issues cannot be disentangled from data waste.
The Role of Law
The early history of permissionless innovation is linked to the ideology of “lawlessness,” or the idea that innovation flourishes in the absence of regulatory constraints and that there exists an independent lawless space called cyberspace.[24] Indeed, in the United States, for instance, the dominant discourse in the tech industry is that self-regulation and self-governance promote innovation. This might be attributable to the assumption that law perpetually lags behind innovation, and therefore law should take a reactive role and defer to the authority of technologists in order not to hinder innovation.[25]
This idea, of course, reflects a limited view on the interaction between law, technology, and society. Cyberspace and data-driven infrastructures are and have always been far from lawless. Lawyers use private law mechanisms to code assets into capital.[26] Tech companies, as owners of data-driven infrastructures, use these mechanisms to create and protect the wealth they obtain through data markets.[27] At the same time, legal rights, privileges, and immunities have assured the reproducibility of economic and political power through information technologies.[28] Changes in U.S. antitrust doctrine, and the challenges brought by technology corporations that no longer fit within the “consumer welfare” antitrust model based on short-term price effects, have also contributed to the concentration of market power of companies like Amazon.[29] Moreover, in the United States, campaign finance laws protect corporate financing of political candidates based on freedom of speech principles,[30] giving tech companies opportunities to shape public discourse and policy. At a more fundamental level, law affects the relative bargaining power between technology corporations and users,[31] which facilitates tech corporations’ endless accumulation of data from users and determines how gains from the data economy are distributed. Finally, international environmental law’s role in managing global waste and the externalization of waste by market mechanisms shapes the global distributive effects of data waste.[32] To say that data-driven infrastructures are self-regulated or that data waste is a result of lawlessness would therefore overlook a wide variety of legal mechanisms and institutions that have contributed to the phenomenon, and the broader legal arrangements which form part of the social fabric which technology embeds and in which it is embedded.[33]
Data Waste as Sociotechnical Controversy
The issues surrounding data waste reflect a sociotechnical controversy. The problem is not just how to rein in the harmful environmental effects of data processing by creating more so-called “sustainable tech” or “green tech,” or by creating newer and better legal and policy frameworks around these particular environmental harms. Rather, as a sociotechnical controversy, it raises broader questions.
Calls for technical fixes, such as moving to greener technologies to address climate change, reflect the same visions of social progress that are embedded in the very technologies that are contributing to harm in the first place.[34] The vision that technology can fix social and political problems without the need for social and political engagement is deeply flawed. What is needed instead as a first step toward political engagement on these issues is a systemic understanding of how data-driven infrastructures, the social and legal constructs that contribute to their flourishing, and the people building and designing them are collectively shaping futures for humanity and ecology. Data waste, at its core, is a democratic and distributional problem. It requires engagement not only from experts and policymakers, but also democratic publics. This political engagement should also consider the ways in which different ownership, production, and distribution models might impact data waste.
Conclusion
While many questions remain to be explored in future research on data waste, this contribution serves as a call to consider not only the environmental harms resulting from data-driven infrastructures, but also broader questions about the forms of social life we would like to promote. The technological and economic powers associated with data-driven infrastructures are also political powers. The issues they raise will not be solved through technical fixes. We must ask whether we want technology companies, data-driven infrastructures, and the people behind them to have the power to shape the social and ecological conditions for our futures, and if not, who ought to be exercising such power, and what role law and public political engagement can play in shaping alternatives.
Elettra Bietti is a Doctoral Candidate at Harvard Law School, a Kennedy-Sinclair Scholar, and an Affiliate at the Berkman Klein Center for Internet and Society.
Roxana Vatanparast is a Visiting Researcher at the Institute for Global Law & Policy at Harvard Law School (IGLP) and a PhD Candidate at the University of Turin.
[1] See Carbon Footprint, Amazon Sustainability—US (2019), https://sustainability.aboutamazon.com/carbon-footprint (last visited Oct. 6, 2019).
[2] See Brian Merchant, Amazon Is Aggressively Pursuing Big Oil as It Stalls Out on Clean Energy, Gizmodo, https://gizmodo.com/amazon-is-aggressively-pursuing-big-oil-as-it-stalls-ou-1833875828.
[3] See David McCabe & Karen Weise, Bezos and Zuckerberg Take Their Pitches to Washington, N.Y. Times, (Sept. 19, 2019), https://www.nytimes.com/2019/09/19/business/bezos-zuckerberg-washington.html.
[4] See Maxime Efoui-Hess, Climate Crisis: The Unsustainable Use of Online Video, Shift Project (2019).
[5] See Karen Hao, Training a Single AI Model Can Emit as Much Carbon as Five Cars in Their Lifetimes, MIT Tech. Rev., https://www.technologyreview.com/s/613630/training-a-single-ai-model-can-emit-as-much-carbon-as-five-cars-in-their-lifetimes/; Emma Strubell, Ananya Ganesh & Andrew McCallum, Energy and Policy Considerations for Deep Learning in NLP, Ann. Meeting Ass’n Computational Linguistics (2019).
[6] See James Vincent, Bitcoin Consumes More Energy Than Switzerland, According to New Estimate, The Verge (July 4, 2019), https://www.theverge.com/2019/7/4/20682109/bitcoin-energy-consumption-annual-calculation-cambridge-index-cbeci-country-comparison.
[7] On the wastefulness of the vast amounts of data generated on a daily basis, see Ron Bianchini, Are Data Centers the New Global Landfill?, Wired (Oct. 2012), https://www.wired.com/insights/2012/10/data-centers-new-global-landfill/. Others have referred to the generation of data as a “digital pollutant,” a “a new kind of trash for the information age.” Tyler Elliot Bettilyon, How Data Hoarding Is the New Threat to Privacy and Climate Change, Medium, (Aug. 1, 2019), https://onezero.medium.com/how-data-hoarding-is-the-new-threat-to-privacy-and-climate-change-1e5a21a49494. Nanna Bonde Thylstrup frames “digital traces” as a question of waste, which create social and environmental problems that “follow gendered and colonial structures of violence.” Nanna Bonde Thylstrup, Data Out of Place: Toxic Traces and the Politics of Recycling, Big Data & Soc., July-Dec. 2019, at 1, 2. Similarly, interdisciplinary workshops and research projects have been organized around addressing issues of waste in the context of big data. See, e.g., Workshop Data Associations in Global Law & Policy II: Making Waste, Talking Trash, Digital Humanitarianism: L. & Pol’y Challenges (Dec. 14, 2018), http://datapolicy.law.unsw.edu.au/resources.
[8] “Bigger is better” in this context refers to the belief that AI models that use mass computation are more accurate, and thus “better.” Roel Dobbe and Meredith Whittaker, AI and Climate Change: How They’re Connected, and What We Can Do About It, Medium (Oct. 17, 2019), https://medium.com/@AINowInstitute/ai-and-climate-change-how-theyre-connected-and-what-we-can-do-about-it-6aa8d0f5b32c.
[9] See Sean Cubitt, Finite Media: Environmental Implications of Digital Technologies 16–21 (2017).
[10] See Mél Hogan, Data Flows and Water Woes: The Utah Data Center, Big Data & Soc., July-Dec. 2015, at 1.
[11] See Yochai Benkler, From Consumers to Users: Shifting the Deeper Structures of Regulation Toward Sustainable Commons and User Access, 52 Fed. Comm. L. J. 561 (2000).
[12] See generally Jonathan Zittrain, The Future of the Internet and How to Stop It (2008).
[13] See id.; see also Jonathan Zittrain, The Generative Internet, 119 Harv. L. Rev. 1974 (2006).
[14] See Lina M. Khan, Amazon’s Antitrust Paradox, 126 Yale L.J. 710 (2017).
[15] See Yochai Benkler, The Wealth of Networks: How Social Production Transforms Markets and Freedom 59 (2006).
[16] See, e.g., Hemant Taneja, The Era of “Move Fast and Break Things” Is Over, Harv. Bus. Rev. (Jan 22, 2019), https://hbr.org/2019/01/the-era-of-move-fast-and-break-things-is-over; Jonathan Taplin, Move Fast and Break Things: How Facebook, Google, and Amazon Cornered Culture and Undermined Democracy (2017).
[17] See generally Carl Shapiro & Hal R. Varian, Information Rules: A Strategic Guide to the Network Economy (1999).
[18] See, e.g., Tim Wu, The Attention Merchants: The Epic Scramble to Get Inside Our Heads (2016).
[19] It has been argued extensively, for example, that users’ consent in digital environments is illusory, because platforms and other digital actors own infrastructures and impose the terms of their relationship on users without users’ ability to opt-out and look elsewhere. See, e.g., Julie E. Cohen, Turning Privacy Inside Out, 20 Theoretical Inquiries L. (2019); Elettra Bietti, Consent as a Free Pass: Platform Power and the Limits of the Informational Turn, 40 Pace L. Rev. 310 (2020). Further, once infrastructure owners have data about individuals, they can leverage that data to nudge and behaviorally manipulate users to remain on their platform. See, e.g., Mireille Hildebrandt, Smart Technologies and the End(s) of Law: Novel Entanglements of Law and Technology (2015); Shoshana Zuboff, The Age of Surveillance Capitalism: The Fight for a Human Future at the New Frontier of Power (2019).
[20] See Cubitt, supra note 9.
[21] Buying a Smart Phone on the Cheap? Privacy Might Be the Price You Have To Pay, Privacy Int’l (Sept. 20, 2019), https://privacyinternational.org/long-read/3226/buying-smart-phone-cheap-privacy-might-be-price-you-have-pay.
[22] See Merchant, supra note 2.
[23] See McCabe and Weise, supra note 3.
[24] See John Perry Barlow, A Declaration of the Independence of Cyberspace (1996), https://www.eff.org/cyberspace-independence.
[25] This idea refers to the “law lag” narrative prevalent in dominant discourses on law’s relationship to science and technology, which fails to take into account their interactive relationship in ordering society. See Sheila Jasanoff, Making Order: Law and Science in Action, in The Handbook of Science and Technology Studies 761–786, (Edward J. Hackett et al. eds., 3rd ed. 2008).
[26] See generally Katharina Pistor, The Code of Capital: How the Law Creates Wealth and Inequality (2019).
[27] See generally id.; Julie E. Cohen, Between Truth and Power: The Legal Constructions of Informational Capitalism (2019).
[28] See Cohen, supra note 27.
[29] See Khan, supra note 14.
[30] See Citizens United v. Federal Election Commission, 558 U.S. 310 (2010).
[31] See Duncan Kennedy, The Stakes of Law, or Hale and Foucault!, 15 Legal Stud. F. 327 (1991).
[32] See Olivier Barsalou & Michael Hennessy Picard, International Environmental Law in an Era of Globalized Waste, 17 Chinese J. Int’l L. 887 (2018).
[33] See Jasanoff, supra note 25; States of Knowledge: The Co-production of Science and the Social Order, (Sheila Jasanoff ed., 2004).
[34] See States of Knowledge, supra note 33.
