Apr 16, 2020 | Essays, Online Scholarship
By: Megan Ma
This Post is the fourth 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]
The relationship between law and language has always been one born of necessity. Language is often conceived as the vehicle in which legal norms could embed itself; the house but not the home. Consequently, language is important to the law, but only as a tool through which the law is realized. In confrontation with legal automation, technologies that harness algorithms to perform banal tasks translate “legalese” from common standards into code. Effectively, machines are interpreting the language of legal processes into its own understandable terms. This begs the question: how does the “code-ification” of legal language differ from existing legal practice? More importantly, does this change the inherent character of the law? This paper proceeds by first giving a technological background and continues by exploring how code may shape the law.
Technological Background
I begin first with a drawing of the technological landscape. In The Age of Surveillance Capitalism, Shoshana Zuboff describes the “mandate of the prediction imperative,”[1] a pursuit of certainty that regards complete and total information as ideal. Machine intelligence becomes the restoration of “humankind to the Garden of Eden.”[2] The result: a utopia of certainty.
Equally, the model of “legal singularity” presents striking similarities.[3] Legal singularity associates the law as precise, predictable, and certain in its function.[4] Precision has often been described as an essential component of legal language. Nevertheless, new factual circumstances create room for interpretation. Consequently, legal indeterminacy is perceived as a threat, a tell that the law’s current state is one of incompleteness.[5]
The rise of artificial intelligence (“AI”) suggests that legal singularity could be achievable. Anthony Casey and Anthony Niblett argue that existing legal forms will become irrelevant as machines enable the development of a new type of law: the micro-directive. The micro-directive is perceivably a new linguistic form, offering “clear instruction to a citizen on how to comply with the law.”[6] In this futuristic construct, lawmakers would only be required to set general policy objectives. Machines would then examine its application in all possible contexts, creating a depository of legal rules that best achieve this objective. The legal rules generated would be converted into micro-directives that, subsequently, regulate how actors should comply with the law.
Imagining the legal order as a system of micro-directives, the law finds itself drawn to a linguistic structuralist framework, carrying forth the jurisprudential work of Hans Kelsen and the pure “science of law.”[7] Just as a norm expresses not what is, but what ought to be, the micro-directive draws attention to the semiotics of legal argument. Like Kelsen’s norms, the micro-directive rests on the principle of effectiveness. The legal order relies on the assumption of being efficacious, such that its citizens conduct themselves in pure conformity with it.[8] Seated within the technological authority of AI,[9] the micro-directive distorts the realities of legal reasoning by removing value judgments from the adjudication process. The presumption that machines are able to generate neutral sets of information, then translate such information into perfectly comprehensible instruction, is evidently misinformed. It stands on the premise that translation operates without interpretation. More importantly, it strategically excludes the actors involved in the translation; inadvertently, conferring the rule of law to code. The process of transforming a general standard to a micro-directive is, therefore, a process of subverting politics in its linguistic casing.
Language games are employed to fix meaning, remove connotation, and delineate value. The use of standards complements the language games played: having the appearance of removing subjectivity, opting for “mechanical solidarity,”[10] and capturing “reality unmediated by human intervention.”[11] Arguably, code satisfies the conditions of standards and with increased precision. Nevertheless, we return to the problem of translation. The law hinges on complicated sociopolitical relationships; metaphors that require latent understanding of temporal societal constructs.[12] Consequently, as articulated by legal scholarship,[13] AI could work complementary to, rather than substitutive of, legal systems.
How Code Could Shape the Law
So, how then could code shape the law? The most obvious example is speed regulation. Traffic lights “communicate the content of a law to drivers at little cost and with great effect.”[14] The traffic light is regarded as translating legal complexity to a simple command. The content of the law is produced by code, effectively reimagined as a comprehensive list of instructions communicated to the citizens. Just as green means go, and red means stop, these simple commands are passively understood as progress towards increased efficiency and utility in the law.[15] It extends beyond law as fact; establishing, instead, that code is an indisputable truth. The purpose of the micro-directive then is a purification of language, a shift away from discourse. The boundaries of law governed by language are removed. Words not only would lose their meaning; they would have no meaning. Code becomes the sole bearer of value and semiotic vessel in which the law embeds itself.
The underlying assumption is that law and its language exist in a state of universality and is logically reducible. Most fascinating, though, is the belief that description is distinct from interpretation; that in describing the law, the language is seen as quantitative and objectifiable. But, is descriptive formal language purely dissociative? Or, could we challenge the premise that linguistic form is in fact integral to the formation of legal knowledge?
Ferdinand de Saussure, the father of modern linguistics, viewed language as a system; an institution of the present, but also a product of the past.[16] Saussure spoke of linguistic evolution—or rather, changes in interpretation. Linguistic changes are signaled by the emergence of analogical forms.[17] Analogy replaces the “old, irregular formations by new ones of greater regularity.”[18] Though not itself a process of change, analogy is a product of it.
Ludwig Wittgenstein regarded language as a form of life,[19] and linguistic expression as constructive of its being. Conceivably, language could be no more than a list of orders and classifications. In abiding by the rules of association—or, to play the game—is to accept the inherent authority of its practice. Meaning is found in the performance of the word, and not in the understanding of it. Geoffrey Samuel states that the “true meaning of a legal text is hidden within the language employed.”[20] That is, should language be employed in a new space, the meaning will naturally differ. Relative to AI, how could a technological artifact perform as a legal language?
Computable contracts are a helpful start. Harry Surden argues that contracts may be represented as computer data; that ordinary language is merely assumed as the dominant form of legal expression.[21] The “contract as data” approach, as he articulates, expresses contractual obligations as structured and precisely defined information that is “machine-readable.”[22] Contract terms are made “understandable” through a process of translation: from descriptive language to consonant computer instructions. Conditions of agreements are not explained but listed as structured data records. Equally, these records are given semantic content to substantiate meaning to its terms.[23] Surden contends that contracting parties are able to delineate intentions within the “strictures of computer constraints.”[24] Parties encode contract terms in a pre-defined fashion,[25] allowing a computer to reliably extract information for later processing. As a result, conformance testing in contracts could be rendered automatic. There remains, however, an existing gap. Despite the capacity to express contracts in an alternative computable form, there is no means for interpretation. Rather, the interpretation of contractual obligations is perceived as irrelevant. Surden concedes importantly that the use and purpose of data-oriented contracts is communication, and not interpretation nor understanding.
Nevertheless, what Surden reveals is an ancestry of code as a legal language. Surden’s discussion on the translatability of contracts, from descriptive language to structured data, is indicative of a broader history on the “code-ification” of law. Surden attempts to demonstrate that a seamless translation exists between law and code, and particularly, one that reduces transaction costs by eliminating uncertainty and communicating precisely. A deeper epistemological struggle surfaces: is the aim of the law merely to signpost?
Duncan Kennedy considered the import of structural linguistics in law. He conceived argument as systematically formulaic, “a product of the logic of operations.”[26] That is, legal argument can be broken into components and manipulated through operations. Operations diagnose and assume the circumstances, or relationships, in which the component is to be “deployed.”[27] The conundrum is whether the process of reducing legal argument to a system of operations sufficiently describes the function of the law. One thing is certain; as Kennedy writes, “language seems to be ‘speaking the subject,’ rather than the reverse.”[28]
The reimagination of legal language as code, or even law as an inventory of structured data records, tests the aforementioned conundrum. Interestingly, Jacques Derrida questioned natural language and the medium of writing as the accepted form of communication. Derrida considers how writing is perceived as the original form of technology; that “[t]he history of writing will conform to a law of mechanical economy.”[29] Independent of structure or meaning, writing was a means to conserve time and space by way of “convenient abbreviation.”[30] Is legal writing then not merely a method of notation? Would this suggest that the use of code advances the notion of convenience, communicating in a manner that further conserves time and space?
Pairing speech-act theory with the mathematical theory of information, Mireille Hildebrandt investigates the performativity of the law and legal judgments when applied to computing systems. In her analytical synthesis of these theories, she dwells on meaning. “Meaning,” she states, “…depends on the curious entanglement of self-reflection, rational discourse and emotional awareness that hinges on the opacity of our dynamic and large inaccessible unconscious. Data, code…do not attribute meaning.”[31]
Consequently, the inability of computing systems to process meaning raises challenges for legal practitioners and scholars. Hildebrandt suggests that the shift to computation would necessitate a shift from reason to statistics.[32] Learning to “speak the language” of statistics would become important in the reasoning of biases inherent in AI-driven legal technologies.[33] Hildebrandt addresses precisely the anxiety and evolutionary pressures imposed by the onset of AI in law. These tensions indicate a fundamentally linguistic shift that bears the epistemic flavors of both legal formalism and realism.
Reflecting back to Zuboff, the notion of formal indifference strikes a chord. Zuboff describes a “form of observation without witness,” interpreting the intangible as measurable.[34] A dichotomous process occurs where impenetrable complexity is met with simplicity: a “robotized veil of abstraction.”[35] Connecting then initial observations towards the “code-ification” of law, the migration from descriptive language allows the legal actor to be “removed from responsibility for the worldly consequences of his actions.”[36] Surden’s machine-readable contracts, as an alternative form of legal writing, is already challenging the use of descriptive language as the legal language.
The recent interdisciplinary paper, “Coin-Operated Capitalism,”[37] teases this premise by investigating the translation of contracts to code. While the study is focused on its failures to fully reflect contractual promises, the investigation further demonstrates that an analogical form of the legal language not only has emerged but is thriving. Its existence and presence are indicative of a desire for legal singularity and a turn towards the science of law. The legal language then is at the cusp of evolution; one where statistics and code would find its place.
Conclusion
Saussure conceived of linguistic evolution through analogy; specifically, the appearance of analogous forms as a signal of change. Code as a legal language would in theory resolve legal indeterminacy, producing incontestable truths as algorithms and code provide answers without questions. However, algorithmic governmentality runs the risk of increasing opacity by falsely interpreting abstraction as verity. Moreover, it exposes a technocratic shift that necessarily warrants further analysis of its potential implications. Nonetheless, its emergence is perhaps revealing of a larger battlefield, that the path of law is being shaped by its linguistic trajectory. Should linguistic signs leave epistemic traces, artificial legal intelligence becomes ripe for realizing the legal dream.
Megan Ma is a PhD candidate in Law at Sciences Po Law School, where her research focuses on the impact of artificial legal intelligence on the function of law.
[1] Shoshana Zuboff, The Age of Surveillance Capitalism: The Fight for a Human Future at the New Frontier of Power, 399 (2019).
[2] Id. at 401.
[3] Benjamin Alarie, The Path of the Law: Towards Legal Singularity, 66 U. Toronto L.J. 443, 445 (2016).
[4] See Michael Freeman, Lloyd’s Introduction to Jurisprudence (9th ed. 2014) (discussing stare decisis as the “life-blood of legal systems,” requiring precision in addition to stability and certainty).
[5] See Katharina Pistor and Chenggang Xu, Incomplete Law, 35 N.Y.U. J. Int’l L. & Pol. 931, 932 (2003).
[6] Anthony J. Casey and Anthony Niblett, The Death of Rules and Standards, 92 Ind. L.J. 1401 (2017).
[7] Hans Kelsen, Pure Theory of Law 1 (1967).
[8] See Hans Kelsen, What is Justice? 290 (1971).
[9] Algorithms are seen as providing a “convenient” source of authority, and humans thus trust tasks to be controlled by technology and delegate responsibility. See Hannah Fry, Hello World: Being Human in the Age of Algorithms 16 (2018).
[10] Sergio Sismondo, An Introduction to Science and Technology Studies 138 (2d ed. 2010).
[11] Sheila Jasanoff, Science and the Statistical Victim: Modernizing Knowledge in Breast Implant Litigation, 32 Soc. Stud. Sci. 37, 51 (2002).
[12] See Neil M. Richards and William D. Smart, How Should the Law Think About Robots?, in Ryan Calo et al., Robot Law 16–18 (2016).
[13] See, e.g., Frank Pasquale, A Rule of Persons, Not Machines: The Limits of Legal Automation, 87 Geo. Wash. L. Rev. 1, 6 (2019); see also Alarie, supra note 3.
[14] Casey and Niblett, supra note 6, at 1416; see also Sheila Jasanoff, The Ethics of Invention: Technology and the Human Future (2016).
[15] This includes, for example, the interpretation of micro-directives as improving on inefficient and costly legal rules. See Casey and Niblett, supra note 6, at 1410–12.
[16] See Ferdinand de Saussure, Course in General Linguistics 64–65 (Bloomsbury Revelations ed. 2013).
[17] An analogical form, as defined by Saussure, is a form made in the image of one or more other forms according to a fixed rule. See id. at 190, 201.
[18] Id. at 202.
[19] See Ludwig Wittgenstein, Philosophical Investigations 11 (2d ed. 1953).
[20] Geoffrey Samuel, Is Legal Reasoning Like Medical Reasoning?, 35 Legal Stud. 323, 334 (2015).
[21] See Harry Surden, Computable Contracts, 46 U.C. Davis L. Rev. 629, 632–33 (2012).
[22] Id. at 647.
[23] For example, inputs of key contract phrases such as “the parties hereby agree” are heuristic patterns that a computer is able to identify. See id. at 641, 644.
[24] Contracts expressed as “this contract giving the right, but not the obligation to purchase, shall no longer be valid after the 18th of January in the year 2015” would have the data-oriented approach: <Option_Expiration_Date:01/18/2015>. See id. at 647–49.
[25] Surden includes other examples of contract terms, such as price and quantity that are defined ahead of time (i.e. <Exercise_Price: $400>). See id.
[26] Duncan Kennedy, A Semiotics of Legal Argument, 3 Collected Courses of the Academy of European Law 309, 343 (1994).
[27] Kennedy describes relating argument-bites (components) to one another by operations to confront legal problems. See id. at 351.
[28] Id. at 350.
[29] Jacques Derrida, Limited Inc. 4 (1988).
[30] Id.
[31] Mireille Hildebrandt, Law as Computation in the Era of Artificial Intelligence: Speaking Law to the Power of Statistics, 68 U. Toronto L.J. 12, 26 (Supp. 1 2019).
[32] See id. at 28.
[33] Id. at 30.
[34] Zuboff, supra note 1, at 377.
[35] Zuboff describes a form of power derived from a way of knowing that dehumanizes qualitative means of evaluation and produces instead “equivalence without equality.” She sees “objectification [as] the moral milieu in which our lives unfold.” See id.
[36] Pierre Schlag, The Aesthetics of American Law, 115 Harv. L. Rev. 1047, 1060 (2002).
[37] Shaanan Cohney et al., Coin-Operated Capitalism, 119 Colum. L. Rev. 591 (2019).
Apr 11, 2020 | Essays, Online Scholarship
By: Roxana Vatanparast
This Post is the third 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]
Ninety-nine percent of global data moves through undersea cables. Should their usage be interrupted for any reason, the entire global economy would be disrupted, as an estimated $10 trillion in financial transfers are dependent upon them.[1] Undersea cables, or as Surabhi Ranganathan terms them, the “out-of-sight arteries of globalization,”[2] are critical infrastructure for the digital economy and the movement of capital around the world. Undersea cables are what make global “flows” and exchanges of data as a commodity possible.[3] They have enabled the growth of the “global data economy,” or the economy that trades in personal information,[4] by providing the material basis for corporations to profit from data collection and processing.[5]
In connecting distant territories around the world, cables often implicate international law. Yet much of the international legal literature on digital data in relation to territoriality asserts that it is something immaterial, intangible, unterritorial, or post-territorial.[6] While these conceptualizations illustrate some of the complexities that have arisen in trying to map digital data onto extant international legal frameworks, they might also have a blackboxing effect.[7] Imagining data as deterritorialized obscures its underlying histories and power dynamics, including the territorial politics, ecological extraction, labor, and forms of knowledge that went into constructing its underlying infrastructures.
Conceptualizing data as intangible or immaterial also renders it seemingly ubiquitous, evenly spread around the world, or nowhere in particular. This obscures the unevenness of where data comes from and where it travels, who has access to and exercises control over data, and who can use it for what purposes. Data is not collected, distributed, or accessible equally. The paths data travels often depend on algorithms, corporate decision-makers and engineers, regulatory environments, geographies of trade, development projects, and material hardware—none of which have even geographic configurations. The paths data travels are also subject to path dependencies created by initial overlays of cables for the telegraph that were motivated by imperial ambitions, as many undersea cables today follow similar paths. For example, as undersea cable networks are typically constructed within already existing routes,[8] many of which were developed for telegraphic cables as part of colonial projects, they tend to “reinforce existing global inequalities.”[9]
The global data economy, cloud computing, and wireless technologies are thus grounded in tangible cables,[10] the uneven geographies of which affect the speeds and costs at which data travels around the world, the availability of information and communications technologies (“ICTs”) in different parts of the world, and the sites where communications can be either intercepted for surveillance purposes or cut off entirely.[11] As the global data economy becomes an increasingly significant part of global economic activity, the uneven geographies of cables can have significant impacts on global economic distribution.
This short article will foreground the material infrastructure underlying the global data economy to highlight its entanglement with technological, legal, and social orders.[12] It will trace how cables helped shape political thought in the nineteenth century and were in turn shaped by imperial dynamics. Then it will discuss the material turn in international law and how it provides ways for reimagining international law’s effects on everyday life. Finally, it will discuss how cables have become sites where power and contestation play out, the relationship of international law to undersea cables, and how they have mutually shaped each other. It will end with some thoughts on denaturalizing the relationship between undersea cables, international law, and the global data economy.
Cables and Spatial Relations
For Marshall McLuhan, the medium is the message and “the ‘message’ of any medium or technology is the change of scale, pace, or pattern that it introduces into human affairs.”[13] In this view, the content of the communications and data that travel through the medium of a cable matters less than the possibilities or limitations offered by the medium. The medium of cables helped shape and restructure social relationships and conceptualizations of space, and thereby shaped conceptualizations and practices of governance.
In the nineteenth century, with the advent of the telegraph during the height of the British Empire’s power, it was thought that the new communications technology could “annihilate” space. Engineers and statesmen thought that cables linking imperial territories around the world could overcome the challenges of maintaining a global empire and a durable polity that lacked homogeneity.[14] As Duncan Bell argues, global telegraphic communications, which moved through undersea cables, altered imperial governance as well as ways of thinking about political association along racialized lines rather than territorial boundaries, allowing Victorians to imagine a “politically-integrated Angloworld [which] was inconceivable without a dense communication infrastructure to bind it together.”[15] Thus, more than the economic, political, and strategic possibilities offered by the advent of the submarine telegraphic cable, the altered perceptions of time and distance that undersea cables motivated transformed nineteenth-century political thought. In doing so, they enabled the imagination of unified political communities such as nations,[16] and governance along new spatiotemporal scales.
Materiality and International Law
While the social sciences have focused for some time on the significance of objects and materiality and their entanglement with political and social orders,[17] international legal scholarship has recently started to engage with this mode of analysis in more depth. For example, Jessie Hohmann and Daniel Joyce describe the possibilities offered by engaging with objects and materials rather than classic texts and normative frameworks: “n revealing the deep entanglements of international law and the material things around us, we can begin to understand how international law structures and disciplines its subjects—and sets the contours for the possibilities and limits of our lives—through objects.”[18] International law’s authority is often founded on material objects.[19] Luis Eslava and Sundhya Pahuja also consider that the material world is what gives international law meaning and effect, and it is in and through the material world, mundane objects, and artifacts that international law unfolds.[20] Moreover, Benedict Kingsbury argues for “thinking infrastructurally” in international law to account for the ways in which infrastructures can have regulatory effects.[21] For him, infrastructure refers to “a set of relations, processes and imaginations” and brings together technical, social, and organizational elements in relation to law and governance.[22]
As Jessie Hohmann notes, the distinction between the passive object and the agentive subject is a weak one, and our abilities to categorize and distinguish between things as belonging to one or another of those categories are often hampered by those qualities of things which are always unknowable.[23] These categorizations are also resisted by the very politics of those artifacts.[24] As Bruno Latour has noted, the idea that objects or things can be actants with agency creates possibilities to overcome conceptual binaries and distinctions, as well as abandon the idea that the natural and the social worlds are separate.[25] It challenges the notion that there are “distinct ontological zones” which create distinctions between humans and non-human actants, for example.[26] In this way, Latour’s concepts have been particularly useful in helping international legal scholars rethink some of the common assumptions upon which international legal doctrines rest.[27] Nevertheless, this article proposes moving beyond a Latourian conception of objects as actants with agency on par with humans. It seeks to emphasize the exercises of power and forms of politics that the materiality of cables enable and their entanglement with technological, legal, and social orders.[28]
Cables as Sites of Power and Contestation
It is important to consider not only how material objects and infrastructures help shape international law and affirm its authority, but also how international law helps facilitate their construction, and how the interaction between law and materiality helps produce social orders.[29] Undersea cables became the site of political, economic, and legal contestation by a variety of actors, including states, individual developers, and corporations—struggles which continue today.[30] These contestations involved issues of ownership, control and access, sovereignty, and territorial claim-making.[31]
In the nineteenth century, for example, the high demand for gutta percha, a natural plastic used as insulating material for cables, changed economic, social, and ecological conditions for native people in Southeast Asia,[32] sparking territorial contestations that have shaped borders which still exist today.[33] Moreover, cables and access to telegraphic communications not only played a role in territorial conflicts between colonial powers, but also provided the impetus for territorial claim-making over island territories.
International legal regimes both facilitated and helped construct the development of undersea cable networks. Limitations on state claims of sovereignty in the high seas gave significant leeway for the laying of cables on the seabed, as authorized by the United Nations Convention on the Law of the Sea (“UNCLOS”) and customary international law. At the same time, state claims of sovereignty and partnerships with private corporations in early developments of telegraphic cable infrastructures paved the way for corporations to play a significant role in having control over undersea cables today. This was due to the fact that some states did not want supranational oversight or regulation by international organizations or foreign state-owned cables to come into their sovereign territorial space, including their territorial space in the sea. These dynamics show how international legal regimes and state claims of sovereignty helped shape the submarine cable networks we have in place in today, as well as how cables helped shape territorial borders, disputes, and politics.
Conclusion
Conceptualizing data as immaterial, intangible, or unterritorial obscures the social construction of infrastructures such as undersea cables that enable it to move around the world. By rendering visible these seemingly invisible infrastructures, we might not only have a better understanding of how they were socially and legally constructed, but also the multiple sites of power, politics, and contestation they enabled, historically and today. Moreover, considering the material infrastructures underlying data might allow us to highlight issues that might otherwise be overlooked. For example, we might better understand how international legal regimes like UNCLOS facilitated the development of infrastructures that enable the global data economy today and the roles these regimes play in shaping their past, present, and future configurations, or how cables have long challenged the divide between the public and the private.[34]
Invisibilities are problematic when they naturalize the phenomena that they conceal. The “territorial trap” in international law risks masking how contemporary global political economy functions outside the confines of territorial borders and how it distributes power and authority.[35] By rendering these dynamics invisible, international law also obscures its own role in facilitating and constructing that political economy.
To counteract these invisibilities and naturalizations, this article proposes foregrounding the material infrastructures that make the global data economy possible as a way of highlighting how they have helped shape, and were shaped by, international legal regimes, everyday people, and broader social and political orders. In doing so, we might also raise different questions about how the material and international legal infrastructures of the global data economy shape global economic distribution. Rather than simply bringing more countries into the global data economy through new cable landings and assuming that will automatically bring economic development and social progress, we ought to step back and question the structures that facilitate the distribution of the value generated from the global data economy to just a small number of corporations, states, and individuals.
Roxana Vatanparast is a Visiting Researcher at the Institute for Global Law & Policy (IGLP) at Harvard Law School and a PhD Candidate at the University of Turin.
[1] See Douglas R. Burnett & Lionel Carter, International Submarine Cables and Biodiversity of Areas Beyond National Jurisdiction: The Cloud Beneath the Sea 4 (2017).
[2] Surabhi Ranganathan, The Out-of-Sight Arteries of Globalization, Visualizing Climate and Loss, http://histecon.fas.harvard.edu/climate-loss/lawofthesea/arteries.html (last visited Feb. 7, 2020).
[3] On international legal and policy-making writing emphasizing the value of “flows” of data, see Fleur E. Johns, The Deluge, 1 London Rev. Int’l L. 9, 16 (2013).
[4] Id. at 10 (citing Nils Zurawski, Local Practice and Global Data: Loyalty Cards, Social Practices and Consumer Surveillance, 52 Soc. Q. 509, 513 (2011)).
[5] See Nicole Starosielski, Introduction, in Signal Traffic: Critical Studies of Media Infrastructures 1, 5–6 (Lisa Parks & Nicole Starosielski eds., 2015).
[6] See, e.g., Jennifer Daskal, The Un-Territoriality of Data, 125 Yale L.J. 326 (2015); Kristen E. Eichensehr, Data Extraterritoriality, 95 Tex. L. Rev. 145 (2017); William J. Drake, Territoriality and Intangibility: Transborder Data Flows and National Sovereignty, in Beyond National Sovereignty: International Communication in the 1990s 259 (Kaarle Noerdenstreng & Herbert I. Schiller eds., 1993); Paul De Hert & Johannes Thumfart, The Microsoft Ireland Case and the Cyberspace Sovereignty Trilemma. Post-Territorial Technologies and Companies Question Territorial State Sovereignty and Regulatory State Monopolies, 4 (Brussels Privacy Hub Working Paper No. 11, 2018).
[7] Blackboxing is a concept in social science that refers to the ways in which a technology’s invisibility or opaqueness can be attributed to its success. See, e.g., Bruno Latour, Pandora’s Hope: Essays on the Reality of Science Studies 304 (1999).
[8] Nicole Starosielski, The Undersea Network 20 (2015).
[9] Id. at 12.
[10] See Nicole Starosielski, Fixed Flow: Undersea Cables as Media Infrastructure, in Signal Traffic: Critical Studies of Media Infrastructures, supra note 5, at 53.
[11] See id. at 61–66.
[12] See States of Knowledge: The Co-production of Science and the Social Order (Sheila Jasanoff ed., 2004).
[13] Marshall McLuhan, Understanding Media: The Extensions of Man 7, 8 (1964).
[14] See Duncan S. A. Bell, Dissolving Distance: Technology, Space, and Empire in British Political Thought, 1770–1900, 77 J. Mod. Hist. 523, 532 (2005).
[15] Duncan Bell, Cyborg Imperium, c.1900, in Coding and Representation from the Nineteenth Century to the Present: Scrambled Messages (Anne Chapman & Natalie Chowe eds., forthcoming).
[16] On the nation as an “imagined political community,” see Benedict Anderson, Imagined Communities: Reflections on the Origin and Spread of Nationalism (rev. ed. 2016).
[17] See, e.g., Langdon Winner, Do Artifacts Have Politics?, 109 Daedalus 121 (1980); Bruno Latour, Where are the Missing Masses? The Sociology of a Few Mundane Artifacts, in Shaping Technology / Building Society: Studies in Sociotechnical Change 225 (Wiebe E. Bijker & John Law eds., 1992).
[18] International Law’s Objects, 2 (Jessie Hohmann & Daniel Joyce eds., 2019).
[19] See id. at 2.
[20] See Luis Eslava & Sundhya Pahuja, Beyond the (Post)Colonial: TWAIL and the Everyday Life of International Law, 45 J.L. & Pol. Afr. Asia & Latin Am. 195, 203 (2012).
[21] See Benedict Kingsbury, Infrastructure and InfraReg: On Rousing the International Law “Wizards of Is,” 8 Cambridge Int’l L.J. 171 (2019).
[22] Id. at 179.
[23] See Jessie Hohmann, The Lives of Objects, in International Law’s Objects, supra note 18, at 30, 31.
[24] See id. at 32.; Winner, supra note 17.
[25] See Bruno Latour, Reassembling the Social: An Introduction to Actor-Network-Theory (2005); Bruno Latour, We Have Never Been Modern (Catherine Porter tran., 1993).
[26] Latour, We Have Never Been Modern, supra note 25, at 10–11.
[27] See Kingsbury, supra note 21, at 174.
[28] See Jasanoff, supra note 12.
[29] See id.
[30] See, e.g., Jeremy Page, Kate O’Keeffe & Rob Taylor, America’s Undersea Battle With China for Control of the Global Internet Grid, Wall Street J. (Mar. 12, 2019), https://www.wsj.com/articles/u-s-takes-on-chinas-huawei-in-undersea-battle-over-the-global-internet-grid-11552407466.
[31] See Jill Hills, The Struggle for Control of Global Communication: The Formative Century 83 (2002).
[32] See John Tully, A Victorian Ecological Disaster: Imperialism, the Telegraph, and Gutta-Percha, 20 J. World Hist. 559–79 (2009).
[33] See Helen Godfrey, Submarine Telegraphy and the Hunt for Gutta Percha: Challenge and Opportunity in a Global Trade (2018).
[34] Cables are owned and operated by both private actors (some state-owned) and large conglomerates of public and private actors. See Stephen Humphreys, Data: The Given, in International Law’s Objects, supra note 18, at 199.
[35] See generally Nikolas M. Rajkovic, The Visual Conquest of International Law: Brute Boundaries, the Map, and the Legacy of Cartogenesis, 31 Leiden J. Int’l L. 267 (2018).
Apr 3, 2020 | Essays, Online Scholarship
By: Andrea Leiter
This Post is the second 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]
Introduction
This short article offers an overview of the most commonly held understandings of the notion of cyber sovereignty and attempts to push the research agenda with further questions. First, it outlines the regularly offered distinction between state sovereignty and platform sovereignty in cyberspace. However, instead of holding with this distinction, it presents cyber sovereignty as a techno-legal sphere characterized by claims to governance by states, companies, and individuals. With this angle, cyberspace appears as one of the most significant sites of our contemporary political and economic life. Second, while this contribution suggests that we should work with an analytic frame that embraces the intertwined character of cyberspace as techno-legal space governed by a multitude of different actors, the article argues that on a normative level, we still lack an in-depth understanding of the contradictory interests of the actors involved. We have not sufficiently grasped the power structures in cyberspace on either the economic or the political plane. The article suggests drawing on the tradition of critical legal scholarship to first map the field along a set of fundamental questions and then define legal strategies for redistribution and inclusion in cyberspace.
Jurisdiction in Cyberspace
The term cyber sovereignty stems from internet governance and usually means the ability to create and implement rules in cyberspace through state governance. One of the leading voices in internet governance, Bruce Schneier, has coined the term as the attempt of governments to take control over sections of the internet within their borders.[1] The 2017 Tallinn Manual 2.0 constitutes one of the most important attempts to outline how existing international legal norms apply to cyberspace.[2] Governments discuss the question of cyber sovereignty through the lens of international law with concepts such as intervention, use of force, due diligence, and state responsibility. However, the relationship between data and territoriality challenges some of the most basic assumptions of the international legal order. As Fleur Johns puts it, these are “changes that amount, actually and prospectively, to a reconfiguration of territoriality in international law.”[3] Rather than territorial boundaries and physical property, the new concerns relate to data access and technical proficiency.[4]
Yet, cyber sovereignty does not necessarily have to mean governance by a state. It first and foremost refers to the ability to create and implement rules in cyberspace. Alternatively, one could say it refers to the authority to speak the law, i.e., having juris-diction, in cyberspace. For the purposes of this article, I would like to challenge the assumption that sovereignty and jurisdiction are concepts exclusively reserved for states. I suggest understanding jurisdiction as a practice of claiming and engaging with law.[5] In cyberspace this means that protocols and codes in general are as much tools of lawmaking as is the regulatory apparatus of the state. This approach allows us to consider private legal arrangements, such as contracts (especially terms and conditions of large corporations), as exercises of jurisdiction. This idea is by no means new. As early as 1999, Lawrence Lessig published the book Code and Other Laws of Cyberspace in which he argues, by examples of copyright law, that a single dot is governed by the competing frameworks of law, norms, market, and architecture.[6] A more recent iteration of this idea can be found in Primavera De Filippi’s and Aaron Wright’s book Blockchain and Law: The Rule of Code, in which they suggest that “both public and private actors could potentially use blockchain technology to establish their own system of rules and regulations.”[7] Thus, on an analytic basis, we should understand cyberspace as hybrid techno-legal governance. According to Jake Goldenfein, “the idea of ‘law’ and ‘technology’ on alternate sides of a regulatory schematic needs replacing with an intertwined image of co-coordinating and co-constituting techno-legal regulation.”[8]
Where it is clear that we need an analytic approach that understands and embraces the intertwined nature of techno-legal governance, the normative and political sides are not as straightforward. Cyberspace has long been a place for libertarian-minded technologists dreaming of a world without government interference. A strong example is John Barlows’s A Declaration of the Independence of Cyberspace, published at the occasion of the World Economic Forum in Davos in 1996. He proclaims, “Governments of the Industrial World, you weary giants of flesh and steel, I come from Cyberspace, the new home of Mind. On behalf of the future, I ask you of the past to leave us alone. You are not welcome among us. You have no sovereignty where we gather.”[9] A version of this idea with less pathos can be found in the Bitcoin White Paper of 2008 that first introduced cryptocurrency. The author, under the pseudonym Satoshi Nakamoto, pins the desire for autonomy on the notion of trust: “What is needed is an electronic payment system based on cryptographic proof instead of trust, allowing any two willing parties to transact directly with each other without the need for a trusted third party.”[10] Both of these prominent statements about cyberspace draw a picture of “us” versus “them”; “us” being the revolutionary technologists, versus “them” being the establishment usually represented through government institutions and often legacy systems.
In a similar manner, regulatory authorities view their task as regulation of technology and not regulation through technology. One of the best examples for this understanding is the reaction of governments towards blockchain technology. Attempts at prohibition were followed by attempts to apply old tools to new developments, such as the legal treatment of crypto currencies as either financial assets, property, or securities in different jurisdictions. The perception in both communities was one of threat, rather than opportunity. This mutual suspicion of the technology developers on the one side and governments on the other leads to a competition over jurisdiction or competition of sovereignties, which is often framed as a struggle between platform sovereignty and state sovereignty.[11] The fundamental question is, who can claim to be the rulemaking authority?
Lines of Struggle in Cyberspace
Thinking about rulemaking along the lines of “them” and “us” and overlooking the co-constitutive potential might seem banal and simplified. But this lens is nevertheless important because it points to the political questions involved. We should ask about the relationship between consumers and big companies that has emerged around big data. Through the collection of data, companies are producing ever more comprehensive profiles of consumers and thereby not only sell products but profoundly shape choices and affect lives.[12] Despite these changes, the relationship is legally conceptualized through terms and conditions agreements that understand consumers and companies as on par with private citizens. Building on the liberal mantra of choice, companies argue that their customers can choose not to participate or can choose a different provider. This approach hides the power asymmetry and the sheer impossibility for any individual not to participate in digital life. Thus, one direction for further research will inquire into the conceptualization of the relationship between big companies and consumers and how consumers can be empowered towards meaningful choices and contributions.[13] Since nation states and local political organizations seem to operate on a mismatching scale vis-à-vis the corporate entities, this question would also involve the technical component and ask how new political communities could be organized to take advantage of new technologies.
In a similar vein, we should analyze the relationships established in cyberspace through the lens of political economy.[14] What would the lines of class struggle look like, if considered through the data economy? Access to knowledge, meaning an understanding of how algorithms work and how they can be changed, has become the privileged knowledge of very few. Yet, precisely this information determines the value production and wealth extraction. Who benefits at which stage of the value chains in cyberspace? How does the data economy map into the North-South divide? How does data extraction differ from resource extraction and which legal forms enable the production of wealth, and for whom?
Conclusion
Legal scholars and practitioners often find themselves as representatives of clearly defined interests, usually either on the side of the regulatory institutions or in the role of a compliance officer, trying to fit technology into the regulatory schemes. However, since the current moment seems to be marked by a struggle for understanding, rather than clear negotiations of interests, it is also a particularly fruitful moment for intervention. If we understand how legal knowledge is used for the concentration of wealth and power,[15] this knowledge can be used towards redistribution and subversion. Legal scholars and legal practitioners should therefore not only be concerned with the question of who the sovereign in cyberspace is and what rules govern it but also try to design cyberspace as a space of participation and access.
Andrea Leiter is a Fellow in the Berlin Potsdam Research Group, “International Rule of Law – Rise or Decline?”
[1] See Bruce Schneier, Data and Goliath: The Hidden Battles to Collect Your Data and Control Your World 134 (2015).
[2] See Tallinn Manual 2.0 on the International Law Applicable to Cyber Operations (2017).
[3] Fleur Johns, Data Territories: Changing Architectures of Association in International Law, in Netherlands Yearbook of International Law 109 (2016).
[4] See id. at 115.
[5] See generally Shaunnagh Dorsett & Shaun McVeigh, Jurisdiction (2012).
[6] See Lawrence Lessig, Code and Other Laws of Cyberspace 123 (1999).
[7] Primavera De Filippi & Aaron Wright, Blockchain and the Law: The Rule of Code 193 (2018).
[8] Jake Goldenfein, Monitoring Laws: Profiling and Identity in the World State 180 (2019).
[9] John Perry Barlow, A Declaration of the Independence of Cyberspace, Elec. Frontier Found. (1996), https://www.eff.org/cyberspace-independence.
[10] Satoshi Nakamoto, Bitcoin: A Peer-to-Peer Electronic Cash System 1 (2008) https://bitcoin.org/bitcoin.pdf.
[11] See Zi Xiang Tan, Platforms and States, Governance and Sovereignty, https://legaltechcenter.openum.ca/files/sites/159/2018/04/9.-Platforms-and-States-Governance-and-Sovereignty.pdf.
[12] See Frank Pasquale, The Black Box Society: The Secret Algorithms That Control Money and Information (2015).
[13] See, e.g., Annelise Riles, Financial Citizenship: Experts, Publics, and the Politics of Central Banking (2018).
[14] See generally Shoshana Zuboff, The Age of Surveillance Capitalism: The Fight for a Human Future at the New Frontier of Power (2018).
[15] See generally Katharina Pistor, The Code of Capital: How the Law Creates Wealth and Inequality (2019).
Mar 31, 2020 | Essays, Online Scholarship
By: Elliott Prasse-Freeman
This Post is the first 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]
Introduction
The sprawling refugee camp system in Cox’s Bazar, Bangladesh, is the world’s largest. It is home to over one million Rohingya, the minority group who have been driven from their homeland in Myanmar in successive waves of expulsion over the past 40 years. Life in these camps is dirty, dangerous, and dreary, but above all else, it is defined by the search for resources of both the material and informational variety. Refugees must maneuver to secure food packets or cash-for-work opportunities disbursed by humanitarian agencies while also trying to maintain connections across both the camps and with networks further afield (including with relatives who may remit much-needed cash).
It is against this backdrop that two procedural changes instituted in the last year changed the fabric of the Rohingya community’s life. The first change was administered by the United Nations High Commissioner for Refugees (“UNHCR”), the UN agency responsible for disbursing aid. UNHCR rolled out a “Smart Card,” a digitally scannable ID card that encodes a holder’s biometric data. In an ostensible attempt to prevent fraud, UNHCR now requires refugees to present the card when receiving rations. The second change was implemented by the Bangladeshi government when it banned all use of mobile phones in response to a rally led by camp-based Rohingya civil society groups marking the two-year anniversary of their displacement from Myanmar. Since then, SIM card confiscations have proceeded along with new laws that prohibit Rohingya from holding a mobile phone. Any Rohingya caught in violation of this policy will face six months imprisonment and a 50,000 BDT (~$600 USD) fine.
Through these illustrations of the ways in which the Rohingya’s lives have been altered by technology, or the lack thereof, I introduce a number of points. First, pace recent rhetoric heralding how techno-governance solutions will transform refugee and stateless lives, the reality is that the few efficiency benefits enjoyed by refugees due to new tech are offset by the increased control over refugees’ lives. As Mirca Madianou argues, such “digital systems of migration management” end up constraining “refugee mobility by constituting new types of traceable, ‘digital bodies’ which are open to additional forms of intervention and surveillance.”[1] This fact is apparent to refugees themselves. In my anthropological fieldwork in the camps, I tracked resistance to the aforementioned Smart Card by a stunning cross-section of Rohingya, ranging from youths to widows, and political liberals to militant Islamists. They either articulated concerns over data insecurity (collusion between the UN and the Myanmar state), or highlighted how biometric systems would facilitate oppressive Bangladeshi state control. They also complained that the card, by not referring to them as Rohingya, effaced their identity (particularly painful against the backdrop of the genocidal campaign against them in Myanmar).
Second, these descriptions of Smart Card projects harvesting and controlling Rohingya data and of Rohingya being barred from accessing their online “selves” also demonstrate how the “data subject” that is constructed by the refugee/stateless person deviates significantly from the imagined “standard” data subject: the unmarked Northern bourgeois one. This bourgeois subject is invested with revolutionary promise even as it becomes the object of anxiety and regulatory response. For instance, in a recent piece, legal anthropologist Kamari Clarke argues that “average citizens engaged in justice-capture projects are now deploying new surveillance technologies that were once under the control of states.”[2] The “hash-tag publics” that materialize as these citizens circulate signs (photos, documents, memes) should be understood, Clarke insists, as heralding nothing less than a transformation in sovereignty itself. This is because “technology enables the body to ‘produce an image that is larger than itself,’” magnifying resistance and thereby destabilizing classic modes of domination.[3]
While I will not examine in detail Clarke’s claims regarding sovereignty, her argument is worth considering from the perspective of the refugee/stateless body, the one marked as non-standard. Indeed, taking into consideration its ability to “produce an image” of itself, the refugee body seems to be much smaller than itself, so small in fact that sometimes it is incapable of signifying at all. Rather than creating “hashtag publics,” the stateless person’s actions in the world fall mostly on deaf eyes and ears globally. Yet, when analysts discuss “the” data subject and its transformative potential, they often presume a citizen of a nation, one who has access to the legal affordances and symbolic capital associated with citizenship.
Relatedly, even as the Northern bourgeois body signifies potential, it is also exposed in a way which creates risk, a risk which must be mitigated and circumscribed. Concerns for this standard Internet user increasingly manifest over concerns about privacy – iconically represented in the European Court of Justice’s recognition of the “right to be forgotten” in Google Spain SL v. Costeja,[4] and the EU’s ensuing General Data Privacy Regulation (“GDPR”)[5] – as the standard subject’s putative autonomy is infested and invested by unseen data machinations. The “persistence, visibility, spreadability, searchability”[6] that constitute this subject as an object of data accumulation, micro-targeted advertisements, and general algorithmic governance[7] seem to reflect the relatively light touch of Gilles Deleuze’s control society.[8] In contrast, as the case of phone confiscation in Bangladesh illuminates, the insidious data control regime’s gentle touch is not able to be felt by the Rohingya; it is instead inaccessible due to the iron fist of the coercive state. To riff on the old joke about the lumpenproletariat, the only thing worse than being exploited by data capitalism is not being exploited by data capitalism. Hence for the stateless person the “right” they demand is to not be forgotten.
Of course, it would be fatuous to suggest that these two options – refugee or bourgeois – represent all of the possibilities for data subjectivity. However, by focusing on refugee/stateless subjects, I aim to explore what insights their uses and navigations of technology might provide.
In late October 2019, the Rohingya Project (“RP”), a Rohingya-led non-profit social enterprise delivering services to some of the 200,000 stateless Rohingya living in Malaysia, launched its “R-Coin,” a crypto-token “used to reward refugees performing certain volunteer tasks, such as teaching, counseling, soup kitchens, group cleanups, and tree planting.”[9] Yet according to Mohammed Noor, founder and Director of RP, the goal of the R-Coin goes beyond simple remuneration for community work. Instead, it seeks “to recognize and create a digital record of the service of refugees in the informal sector.”[10] Essentially, R-Coin’s ultimate objective is to use the affordances of digital technology (blockchain and biometrics) to circumvent state-based exclusions (whether in Myanmar or in recipient countries), creating not just a digital identity for refugees but opportunities for greater financial inclusion, among other things.
Returning now to the query about what refugees/stateless subjects can reveal regarding our contemporary societies of control, I ask whether the radically excluded’s attempts to access technology, to evade control, and to create novel non-standard data subjectivities end up constructing alternative ontological positions that might help inform modes of resistance to those control societies.
Breaking Chains, Block by Block?
While a longer paper would be required to adequately describe the Rohingya existence in Malaysia and the R-Coin solution being forged by RP, an overview of R-Coin will help outline the unique data subjectivities being imagined here.
First, RP is responding to the perpetual exclusion that defines Rohingya lives in Malaysia. While Malaysia touts its compassion toward the Rohingya, it still formally regulates them as illegal migrants, as it has not signed the 1951 Convention Relating to the Status of Refugees. This results in the Rohingya not being legally permitted to work or send their children to school, despite some having lived in Malaysia for multiple generations. Instead, they toil as menial laborers, and because they lack legal identities, they face difficulties accessing insurance and even establishing paternity over their children. They are also barred from opening bank accounts, as post 9/11 international financial law has insisted that banks confirm the legal identity of clients. The stateless, lacking such identity, are deemed ineligible,[11] and thus, any trajectories for improvement beyond a hand-to-mouth existence tend to be non-existent.
The intervention being piloted by RP seeks to break this cycle by generating quasi-legal identities for these refugees through the particular legal and technological affordances of biometrics, blockchain, and international financial law. The law enables identity creation by providing exceptions in cases in which an individual can be confirmed through his or her biometric data.[12] Blockchain allows data owners to “self-confirm” this biometric data, eliminating dependence on a sovereign authorizing that they are who they claim to be. This can be accomplished as follows: a biometric sample (a finger print or iris scan) is taken and encrypted, and the original data is destroyed.[13] The encryption is stored on the blockchain ledger, becoming the user’s “private key.” When a user wants to access her data, she creates a new sample that is also encrypted. These two samples are then matched, and a successful match grants admission to the blockchain.[14]
Marking a contrast to the way that daily Rohingya life fails to signify beyond their local communities, the project seeks to get the attention of a world that Rohingya say has forgotten them.[15] By creating a durable trace of actions, the biometric-blockchain assemblage provides durable evidence of existence. R-Coin inscribes Rohingya volunteer activities as data, producing the signs of personhood that will ideally be used to access new opportunities (such as bank accounts and loans), which will in turn potentially transform the trajectories of that existence.
Data Subjectivity in What State?
Questions of feasibility certainly loom large over the project. Moreover, the dream of “financial inclusion” is itself problematic.[16] But even if the Rohingya participating in the process cannot drastically improve their material conditions, the recording of both individual (qua specific histories) and group (qua Rohingya collectivity) identities marks a significant innovation in the way non-standard subjects are making use of data.
It is worth highlighting how the Rohingya in this case seem to enact Michael Mann’s observation about the technological dialectic,[17] wherein technologies deployed by states are later appropriated by civil society (or vice versa). Additionally noteworthy is how these historically excluded subjects, based on their position of exclusion, are compelled to improvise the technology’s uses and hence modify its effects. Specifically, the Rohingya only access legal personhood by first rendering themselves into data. We tend to think of the person as primary, the stable referent from which data is extracted. However, as Upendra Baxi reminds us, the person (as a legal entity) is an artificial construction assigned by the law.[18] The law in question is typically enacted by states – and so “stateless, diasporic, and nomadic humans may not belong to the category of persons/populaces and may be reduced to status of things and objects.”[19] Roberto Esposito identifies how legal persons were long defined as the bodies able to own things – often other bodies, who, when thus owned, were reduced to mere things.[20] The Rohingya, originally exiled from the domain of ownership and hence, personhood, finally become persons through the ownership of their data, the material representation of themselves.
This not only inverts the relationship between person-as-bodily-substrate and person-as-legal-representation, but keeps the legal subject distinguished and separate from the social data subject generated through typical digital use. Note here the contrast with the experience of the bourgeois data subject. Despite putative “rights to be forgotten,” this subject increasingly experiences what social media scholar danah boyd calls “context collapse.”[21] This describes the reality in which Northern online and offline selves flatten into one single identity – which in turn is linked with a political/legal self which can be identified and exploited. When a person’s social media activity, credit card purchase history, and legal information (e.g. Social Security Number) circulate together on browsers leaving digital traces of actions, that person’s identity can be easily determined. As Mark Zuckerberg has put it, “The days of you having a different image for your work friends or co-workers and for the other people you know are probably coming to an end pretty quickly.”[22] What’s more, such users are not only disciplined by technological surveillance that threatens to ban “inauthentic” profiles, but also pressured to capitulate to a norm in which the collective social assumption is that one laminates their online and offline selves.[23] Indeed, as Zuckerberg has sententiously scolded us: “having two identities for yourself is an example of a lack of integrity,”[24]
For non-standard data subjects, by contrast, the terrain is different. While stateless people can have social media lives as active (in terms of time spent) and deep (in terms of intensity of affect) as standard data subjects, those online “lives” cannot be integrated into coherent and unitary personhoods. This is because the affordances of the legal milieu and the cultures of interaction with technology militate against harmonization of the online and offline domains. In regards to online cultures, not only do non-standard subjects often have multiple online versions of themselves for different functions,[25] but they retain a critical distance between these online avatars and the other iterations of themselves. While such maneuvers technically violate the terms of service of the platforms, in de facto terms, this does not affect these users for the very reason that they do not fear sanction. This is because, in Myanmar for instance, Facebook users initiate and abandon profiles with remarkable frequency.[26] In regards to legal structures, while burgeoning legal personhood is stored on blockchain, it does not emerge out of a pre-existing legal subject who also operates on the Internet. Instead, legal personhood, made up of such things as financial transactions, birth certificates, and educational diplomas, is immured on blockchain, firewalled from the social personhood on Facebook. Taken together, this allows these subjects to perhaps resist inscription in the “societies of control” that Deleuze warned about.
Deleuze and Felix Guattari theorized the self as at worst a dangerous reterritorialization, and at best “only a threshold, a door, a becoming between two multiplicities.”[27] Such a critical stance toward the deployment of “the self” seems increasingly necessary as the techno-ecology for standard Northern data subjects increasingly exposes them to “surveillance capitalism”,[28] in which the micro-choices (clicks, mouse-overs, purchases) made by data subjects in digital domains are amassed into aggregate populations of those sharing certain critical likenesses (age, gender average salary in zip code, gender, etc.). This is done so that products can be sold back to them and their behaviors modified. That extractive project becomes more difficult when the self is multiple – when fragmentation and diffusion is engaged as a matter of course. More importantly, having multiple identities, and an ironic distance maintained from all of those data subjectivities, seems a necessary mode of resistance to societies of control – ones that non-standard data subjects enact daily.
Conclusion
As for the Rohingya, their collective situation – whether remaining in Myanmar, encamped in Bangladesh, or surviving in Malaysia or beyond – is bleak. The focus on data improvisations here is not meant to elide the reality of these enduring conditions. It is only to highlight how, within a context of radically constrained options, some Rohingya are improvising with technologies not originally designed with them in mind, repurposing them for potentially transformative ends, and challenging from below states’ monopoly over legal/economic subjectivity creation and management.
Elliott Prasse-Freeman is an Assistant Professor in Sociology/Anthropology at National University of Singapore.
[1] Mirca Madianou, The Biometric Assemblage: Surveillance, Experimentation, Profit and the Measuring of Refugee Bodies. 20 Television & New Media 581, 596 (2019); see also Btihaj Ajana, Asylum, Identity Management and Biometric Control, 26 J. Refugee Stud. 576 (2013); Kirsten McConnachie, Camps of Containment: A Genealogy of the Refugee Camp, 7 Human. 397 (2016).
[2] Kamari Clarke, Rethinking Sovereignty Through Hashtag Publics: The New Body Politics, 32 Cultural Anthropology 359, 362 (2017).
[3] Id. at 362
[4] Case C-131/12, Google Spain SL v. Costeja, 2014 E.C.R. 317.
[5] 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); see also Jannice Käll, A Posthuman Data Subject? The Right to Be Forgotten and Beyond, 18 German L. J. 1145 (2017).
[6] See danah boyd, it’s complicated: the social lives of networked teens 11 (2014).
[7] See Life by Algorithms: How Roboprocesses are Remaking Our World (Catherine Besteman & Hugh Gusterson eds., 2019).
[8] See Gilles Deleuze, Postscript on the Societies of Control, 59 October 3 (1992).
[9] Press Release, Rohingya Project, Rohingya Project Launches “R-Coin” Crypto Token to Reward Refugee Volunteers (Oct. 28, 2019) (on file with author); see also Elliott Prasse-Freeman, R-Coin: Building Social Infrastructure and Identity for Refugees and the Stateless 1-12 (Rohingya Project, Working Paper, 2020), https://rohingyaproject.com/r-coin-building-social-infrastructure-and-identity-for-refugees-and-the-stateless-elliott-prasse-freeman/ (reviewing R-Coin project).
[10] Id.
[11] See Sara Curran et al., Identities for Opportunities: A Feasibility Study for Overcoming the Rohingya’s Statelessness Challenges Via Blockchain Digital Solutions 6 (2018), https://jsis.washington.edu/wordpress/wp-content/uploads/2018/08/jsis-arp-rohingya-2018.pdf.
[12] Id. at 24.
[13] See Larry Dohrs, It’s High Time to Distinguish Between Biometric Systems and Technologies, Good ID (Sept. 10 2019), https://www.good-id.org/en/articles/its-high-time-to-distinguish-between-biometric-systems-and-technologies/.
[14] See Ann Cavoukian & Alex Stoianov, Biometric Encryption, in Encyclopedia of Cryptography and Security (Henk C. A. van Tilborg & Sushil Jajodia eds., 2011) (describing how the computer science is a bit more complex: given that two samples of biometric data are never exactly the same, algorithms are necessary to assist with matching).
[15] See Michael McGrath, Two Years On: The Forgotten Side Of The Rohingya Crisis, EuroNews (Feb. 2019), https://www.euronews.com/2019/08/26/two-years-on-the-forgotten-side-of-the-rohingya-crisis-view.
[16] Financial inclusion can atomize individuals from social networks even as it makes them vulnerable to debt. Further, financial inclusion’s chimeric promises of wealth creation undermine collective political struggles. See Elliott Prasse-Freeman, Petit Bourgeois Fantasies: Microcredit, Small-is-Beautiful Solutions, and Development’s New Anti-Politics, in Seduced and Betrayed: Exposing the Contemporary Microfinance Phenomenon 69, 72 (Milford Bateman ed., 2017)
[17] See Michael Mann, The Autonomous Power of the State: Its Origins, Mechanisms and Results, 25 Eur. J. Soc. 185, 193 (1994).
[18] See Upendra Baxi, The Posthuman and Human Rights, in Human Rights in a Posthuman World: Critical Essays, 197, 198-200 (2009).
[19] Id. at 200.
[20] See Roberto Esposito, Persons and Things: From the Body’s Point of View, 6 (Zakiya Hanafi trans., 2015).
[21] See Boyd, supra note 6, at 30.
[22] Elisabetta Costa, Social Media as Practices: An Ethnographic Critique of “Affordances” and “Context Collapse”, 6 (EASA Media Anthropology Network’s 60th e-Seminar, Working Paper, 2017).
[23] See boyd, supra note 6, at 38; see also Alison Cool, Impossible, Unknowable, Accountable: Dramas and Dilemmas of Data Law, 49 Soc. Stud. Sci. 503, 521 (2019) (describing how data researchers “developed ethical relationships with what they imagined as the ‘real people behind the data’”).
[24] boyd, supra note 6, at 50.
[25] See Costa, supra note 22, at 1.
[26] See Exploring Digital & Mobile Cultures in Myanmar, Phandeeyar (May 2019), https://www.digitalculturesmm.com/.
[27] Gilles Deleuze & Felix Guattari, A Thousand Plateaus: Capitalism and Schizophrenia 249 (Brian Massumi trans., 1987).
[28] See generally Shoshana Zuboff, The age of Surveillance Capitalism (2019).
Mar 8, 2020 | Essays, Online Scholarship
By: Lance Ang
The following is an edited version of a paper presented by the author on November 14, 2019, at a conference titled “Dispute Settlement in the Belt and Road Initiative (BRI)” hosted in Singapore by the Faculty of Law, National University of Singapore and organized by the EW Barker Centre for Law & Business. The author wishes to thank Ewan Smith and Caroline Alix Lasthaus for their valuable comments.
Introduction
International commercial courts represent the next frontier in international economic law and relations, with the rapid diffusion of such courts in several jurisdictions over the last decade. Most recently, the Singapore International Commercial Court (“SICC”) was established in 2015, followed by the China International Commercial Court (“CICC”) in 2018 as part of China’s ambitious Belt and Road Initiative (“BRI”). From the perspective of enhancing international dispute settlement and facilitating cross-border trade and investment, one may ask whether the international commercial courts are a realist or institutionalist response to international economic relations. Further, where are they situated in the dispute resolution framework of international economic law and governance? This Post will explore the differences in the constitution and structure of the CICC and the SICC and analyze how they reflect the interplay between realism and institutionalism in transboundary commercial dispute settlement. This Post will also consider the broader implications for the international legitimacy and credibility of the CICC in light of China’s BRI.
“International” Commercial Courts and International Relations
International commercial courts reflect the conflicting interplay between realism and institutionalism in the forum state’s transboundary economic relations. As international economic law and relations are historically built on a realist foundation centered on the traditional Westphalian concept of sovereignty, states have sought to cannibalize and extend their market share of trade and investment flows in what is perceived to be a zero-sum game. A corollary of this framework is the decentralized manner by which international commercial disputes between private actors have been largely resolved by domestic state courts with reference to the respective forum’s conflict of law rules or alternatively by commercial arbitration.
At the same time, the increasing integration of markets and regionalism has undercut the Westphalian system and fostered competition and cooperation amongst legal systems in the setting of “global governance” standards.[1] From an institutionalist perspective, the iterated game of economic interactions amongst states and private actors have fostered the need to adhere to, as Anne-Marie Slaughter puts it, “a set of rules, norms, practices and decision-making procedures that shape expectations.” This is particularly so in light of the commercial uncertainty arising from the rising volume of cross-border transactions, which trigger the regulatory interests of more than one state and catalyze jurisdictional conflicts amongst states. Particularly at a time when corporations increasingly rival states in economic power, dispute settlement under the international framework can no longer be seen to be the exclusive domain of states and international organizations. This globalization of the marketplace has generated a need for the “global governance” of transboundary private commercial dispute settlement between commercial parties in accordance with the institutionalist tradition in international relations. This is best exemplified by the conclusion of the Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters and Hague Convention on Choice of Court Agreements in 2019 and 2005 respectively, which aim to promote international trade and investment by providing greater certainty for commercial parties involved in international litigation and encouraging judicial cooperation through uniform rules on jurisdictional agreements and the enforcement of foreign judgments.
At the same time, in the absence of an international treaty establishing a genuinely “international” (or supranational) commercial court in the truest sense of the word,[2] international (or what may be more appropriately termed “transnational”) commercial courts (“ICCs”) have been set up by individual states to fill in the void. Being “particularly attuned to the needs and realities of international commerce”, as the Singapore Chief Justice Sundaresh Menon has noted, ICCs purport to administer rules and decision-making procedures to mitigate the effects of economic anarchy in an otherwise realist framework. In theory, depending on how it is constituted, such an “international” or “transnational” dispute resolution framework can serve to overcome the transaction costs that undermine commercial cooperation between corporations across borders. Depending on the extent of their international capabilities, they potentially mitigate the transaction and litigation risks inherent in any cross-border commercial transaction,[3] in respect of their capacity to adjudicate disputes on the basis of the appropriate governing law by way of international jurists as a neutral preferred third-party forum in accordance with the parties’ expectations. This mitigates commercial uncertainty and contributes to the efficient supply of goods, services, and capital across borders. In this sense, ICCs are akin to the institutionalist school of thought in international relations insofar as they serve (or purportedly serve) to facilitate the governance of cross-border private transactional relations between state nationals and to indirectly enhance trade, investment, and welfare gains between states. As a rational economic actor, however, what is the forum state’s interest in assuming jurisdiction for disputes to which it would otherwise have little connection?
Strategic Objectives Of The China International Commercial Court
Observers have noted that the China International Commercial Court serves to safeguard local industries from legal risks by foreign competitors, and at the same time encourage trade and investment flows across its borders as part of the BRI’s objectives. These twin realist and institutionalist aims have filtered into the design and constitution of the CICC itself, which may be viewed in the context of a rising China as an increasingly assertive economic actor on the world stage. One may argue that the CICC, along with the BRI, is China’s institutionalist contribution to “global governance” by facilitating inclusive cooperation between public and private actors in the areas of policy coordination, facility connectivity, trade and investment, financial integration, and people-to-people bonds, which are the official objectives of the BRI. In 2015, the Supreme People’s Court of China (“SPC”) issued an opinion calling upon Chinese courts to improve their adjudicatory functions under the BRI; in particular, it committed the adjudication of international commercial disputes to the principle of “equal protection of the lawful rights and interests of Chinese and foreign parties.” On this basis, the CICC may thus be viewed as a Chinese institutional investment in view of its objectives of increasing regionalism in East Asia and Central Asia, and promoting interregional cooperation and coordination, both of which are integrated into the BRI.
At the same time, China – as an important economic player and exporter of capital – faces an increasing risk of international disputes and conflicts in the near future, in light of the BRI (and its discontents) and its experience with the U.S.-China trade war. Notably, China ranked second in foreign direct investment outflow in 2018 and needs to safeguard its economic investments and assets overseas. Consequently, the CICC has a strategic role for China in safeguarding the interests of domestic firms, particularly its SOEs, and relocating “the locus of China-related (and Belt & Road) dispute resolution to China.” As relatively new entrants to the international commercial litigation system, Chinese companies fear being placed in a disadvantageous position particularly as overseas investors have previously avoided submitting commercial disputes with Chinese firms to the jurisdiction of Chinese courts, and have instead relied on litigation or arbitration outside China. Short of an explicit policy pronouncement, the CICC, therefore, may be inferred to be part of the forum state’s initiative to underwrite the transaction risks of the large numbers of Chinese firms actively participating in BRI trade and investment projects, under which it can design rules and procedures suited for Chinese interests. In short, the CICC is an insurance policy to mitigate the legal risks for Chinese businesses arising from the BRI and to enhance their bargaining power in the litigation of disputes.
Comparison with the Singapore International Commercial Court
One may juxtapose the CICC with its Asian counterpart, the SICC, which was set up three years earlier in 2015 and served as a model for the CICC. As compared with the relatively opaque objectives of the CICC, the SICC was set up for the clear purpose of positioning Singapore as a center for commercial dispute resolution and as a reputable neutral forum that could serve as an alternative to international arbitration, in view of the surge in trade and investment in Asia. As a small trading state, Singapore has aimed to position itself as both a strident defender of the international rule of law and a beneficiary of the international dispute settlement process. Notably, while both China and Singapore are highly dependent on trade and investment, given the relative disparity in size between both economies, Singapore is much more vulnerable to protectionist measures and is highly dependent on the inflow and outflow of goods and services. Singapore, in fact, imports more services than it exports and is ranked as the most open and competitive economy in the world. The institutional design of the SICC itself reflects the open characteristics of Singapore’s economy and outlook.
Jurisdiction
A few observations may be made about the CICC’s jurisdiction which is as yet not entirely clear. Its jurisdictional ambit stems from a judicial interpretation issued by the SPC and is hence technically subject to the overarching civil procedural rules under the Chinese Civil Procedure Law. Under Article 2 of the Provisions of the Supreme People’s Court on Several Issues Concerning the Establishment of the International Commercial Courts (CICC Provisions), the CICC has jurisdiction over five types of cases:
- First instance international commercial cases in which the parties have chosen the jurisdiction of the SPC according to Article 34 of the Civil Procedure Law, with an amount in dispute of at least 300,000,000 Chinese yuan;
- First instance international commercial cases which are subject to the jurisdiction of the higher people’s courts who nonetheless determine that the cases should be tried by the SPC, for which permission has been obtained;
- First instance international commercial cases that have a nationwide significant impact;
- Cases involving applications for preservation measures in arbitration, for setting aside or enforcement of international commercial arbitration awards according to Article 14 of these Provisions;
- Other international commercial cases that the SPC considers appropriate to be tried by the CICC.
On a plain reading, these provisions reflect forum centricity by largely requiring cases to have an actual connection with China, notwithstanding the broad definition of an “international commercial case” under Article 3 of the CICC Provisions.[4] With respect to Article 2(1), notwithstanding a consensual agreement between the parties, the CICC is only seized of jurisdiction if Article 34 of the Civil Procedure Law is complied with. The latter provision requires the court chosen by the parties to have a connection with the dispute depending on “where the defendant is domiciled, where the contract is performed, where the contract is signed, where the plaintiff is domiciled or where the subject matter is located, etc.” Similarly, with respect to Article 2(2), the wording appears to presuppose that the high people’s court’s jurisdiction at the provincial level must be seized in the first instance. Hence, the CICC’s jurisdiction appears to be subject to the Civil Procedure Law, under which, in cases where a foreign defendant is involved, the people’s court must have a connection with the dispute depending on, inter alia, where the contract was executed or performed, or where the subject matter of the action is located. With respect to Article 3(3), it is not clear what “a significant impact on the country” is intended to refer to, but it similarly suggests an actual connection with the forum in line with similar language under Article 20 of the Civil Procedure Law. This departs from the position under the Hague Convention on Choice of Court Agreements, under which where the CICC is designated as the forum in an exclusive choice of court agreement, it shall have jurisdiction to decide a dispute to which it applies, unless the agreement is null and void under Chinese law, and shall not decline to exercise jurisdiction on the basis that the dispute should be decided by a court of another state.
In contrast, the SICC departs from the narrow conception of the forum non conveniens principle and does not require the dispute to have an actual connection with the forum, in view of its objective to compete with other courts for dispute resolution business. Under the Supreme Court of Judicature Act and the Rules of Court, the SICC has jurisdiction where:
- all of the following requirements are met:
- the action is international[5] and commercial in nature;
- the action is one that the High Court may hear and try in its original civil jurisdiction;
- the original plaintiffs and defendants have all submitted to the SICC’s jurisdiction under a written jurisdiction agreement; and
- the parties do not seek any relief in the form of, or connected with, a prerogative order;
- the case is transferred from the High Court;
- an originating summons is sought for leave to commit a person for contempt in respect of any judgment or order made by the SICC; or
- the case involves proceedings relating to international commercial arbitration that the High Court may hear and that satisfy such conditions as the Rules of Court may prescribe.
In particular, the SICC is restricted from declining to assume jurisdiction “solely on the ground that the dispute between the parties is connected to a jurisdiction other than Singapore, if there is a written jurisdiction agreement between the parties.” Further, the Singapore Court of Appeal has held that the possibility of transferring a case to the SICC is a relevant consideration for the Singapore High Court in determining whether it should exercise international jurisdiction under a broad application of the forum non conveniens principle. In principle, therefore, Singapore may assume international jurisdiction which it would not otherwise have had (such as in circumstances where Singapore law is not involved) based on the international capabilities of the SICC, which includes the presence of international judges and the possibility of determining foreign law on the basis of submissions instead of proof.
Foreign Judges
The judges appointed to the CICC are restricted to current judges of the Chinese courts and Chinese nationals, who must have experience in international commerce, along with the ability to work in both English and Chinese. Instead of foreign judges, the CICC has constituted an “International Commercial Expert Committee” (“ICEC”) consisting mainly of foreign legal experts from other jurisdictions along the “Belt and Road.” With the establishment of the ICEC, the SPC seeks to involve foreign legal experts in the dispute settlement process, who will provide advice and assist CICC judges in ascertaining the content of foreign laws and preside over mediation.
The SICC, by comparison, prides itself on its unique mix of eminent international jurists from common and civil law jurisdictions, along with judges of the Singapore Supreme Court. Currently, foreign judges make up 17 out of the 40 judges on the SICC panel of judges, including former Delaware Supreme Court Justice Carolyn Berger. They enjoy certain constitutional safeguards such as judicial immunity and restrictions on removal. This large proportion of foreign judges is intended to enhance the international credibility of the SICC and strengthen its ability to handle offshore matters.
Legal Representation and Procedure
Consistent with the international character of the SICC, parties to SICC proceedings may be represented by registered foreign lawyers who can make submissions on foreign law in offshore cases with no substantial connection to Singapore. In such cases, foreign law may be determined on the basis of submissions alone instead of formal expert evidence. If the parties agree, foreign rules of evidence may be substituted for Singapore evidence law. In comparison, the CICC’s procedural rules largely reflect forum-centricity insofar as they were drafted in accordance with the Chinese Civil Procedure Law, with the limited concession for evidence to be submitted in English without a Chinese translation where the parties agree. Parties to a dispute before the CICC can only be represented by Chinese law-qualified lawyers, as foreign lawyers do not have a right of audience in Chinese courts. In any event, Chinese procedural law restricts the language of court proceedings to Chinese, unlike most international commercial courts including the SICC, which uses English. As part of the SPC, CICC judgments cannot be appealed from, but are subject to possible “retrial” under the Civil Procedure Law. In contrast, as part of the Singapore High Court, SICC decisions at the first instance are generally appealable to the Court of Appeal, subject to any written agreement between the parties to waive, limit, or vary the right to appeal.
The following table provides a non-exhaustive summary of the salient differences between the CICC and the SICC.
Table 1: Summary of Key Differences between the SICC and the CICC
|
Jurisdiction |
International Judges |
Foreign Lawyers |
Language of Proceedings |
Appeal |
| SICC |
Not forum-centric |
Yes |
Yes |
English |
Yes |
| CICC |
Forum-centric |
No |
No |
Chinese |
No |
Conclusion
The above are but a few of the salient differences between the CICC and SICC, and the scope of inquiry may be extended to include further issues such as judicial quorum and legal reasoning, the enforceability of judgments, the types of cases brought before the courts, and the relationship with the state’s arbitration and mediation processes. Broader questions may also be raised about whether the CICC meets “global governance” standards – particularly China’s WTO obligations under its Protocol of Accession to provide an impartial system of administration of laws and judicial review in trade and intellectual property matters. Further, foreign skepticism about the Chinese state’s intentions, as well as China’s rule of law and judicial system itself, remains entrenched and is difficult to assuage in the immediate future. Given its conservative design – particularly in comparison with the SICC – the CICC is arguably less of an international or transnational commercial court than an extension of its domestic court, which runs counter to the ostensibly globalist objectives of the BRI. While it is a step toward increasing integration of the Chinese judicial system with the international political economy, it is relatively parochial and protectionist, and is consistent with Chinese realist views of its sovereignty and foreign interference. While purporting to commit the adjudication of international commercial disputes arising from the BRI to the principle of “equal protection,” it remains to be seen if the forum-centric nature of the CICC, the relative lack of party autonomy in its procedures, and the challenges faced by China’s legal system go far enough in mitigating the transaction risks of international investors participating in the BRI, which may in turn affect investor confidence of whether to submit to the CICC’s jurisdiction. At the same time, the CICC is clearly a work in progress and its continuing reforms and greater internationalization would influence and determine the international legitimacy and credibility of the CICC and the BRI in the long term.
Lance Ang is currently a Research Associate at the Centre for Asian Legal Studies at the National University of Singapore Faculty of Law and an Associate Editor of the Asian Journal of Comparative Law. Ang has practised corporate law in the area of mergers & acquisitions and previously served as a legal counsel at an international bank.
[1] See Matthias Herdegen, Principles of International Economic Law 22-23 (2016).
[2] See Maren Heidemann, Transnational Commercial Law 19 (2019). The establishment of a “European Commercial Court” has been mooted by some in the post-Brexit era: https://www.law.ox.ac.uk/business-law-blog/blog/2018/11/towards-european-commercial-court
[3] See Richard Fentiman, International Commercial Litigation 3-4 (2015).
[4] A commercial case with one of the following circumstances may be determined to be an “international” commercial case as referred to in the CICC Provisions: (i) one or both party/-ies is/are (a) foreigner(s), stateless person(s), or foreign enterprise(s) or organization(s); (ii) the habitual residence(s) of one or both party/-ies is/are outside the territory of the People’s Republic of China; (iii) the subject property is outside the territory of the People’s Republic of China; (iv) the legal facts that generated, changed, or eliminated the commercial relationship occurred outside the territory of the People’s Republic of China.
[5] The action is “international” if (i) the parties to the claim have their places of business in different States; (ii) none of the parties to the claim have their places of business in Singapore; (iii) at least one of the parties to the claim has its place of business in a different State from — (A) the State in which a substantial part of the obligations of the commercial relationship between the parties is to be performed; or (B) the State with which the subject matter of the dispute is most closely connected; or (iv) the parties to the claim have expressly agreed that the subject-matter of the claim relates to more than one State.
Nov 13, 2019 | Content, Essays, Online Scholarship
By: Gerard J. Sanders
The following is an edited version of the keynote address given by the author, on October 19, 2018, at a conference titled “Rule of Law on the Silk Road,” hosted in Adelaide by the Asia-Pacific Law Forum 2018 and organized by the University of South Australia.
Adelaide and the Silk Road
It is a wonderful treat to be in Adelaide. As everyone knows, this beautiful and historic city is named after the early nineteenth century queen consort of the United Kingdom and much younger wife of the late-marrying William IV. Contemporary accounts describe their domestic living arrangements, both in Hanover and later in England, as “parsimonious,” even “boring.” There is no accounting for being dull, but parsimony may have been explained by William having to support ten children from an earlier relationship with an actress. Or perhaps it owed more to parliament voting for such a small allowance to support the marriage that William thought of calling it off. In any event, we can imagine their frugal homes would have boasted little by way of expensive imports from the Far East, whether porcelain, lacquer, or items of gold and silver, still less the much-coveted luxury commodity that lent its name to the Silk Road.
But the gentry and well-healed merchant classes of Europe would have been accustomed to exotic goods from the furthest eastern reaches of Asia. Economic historians tell us that in Queen Adelaide’s time, on the eve of the Opium Wars, China was the world’s largest economy. It must naturally have been the source of many imports to Europe, although foreign trade played only a limited role in China’s economy. This was so even after recognizing commerce with both tribute-paying neighboring states and merchants from Europe operating under privileged arrangements through coastal cities. Canton was the most important of these for onward shipping, with seaborne trade with Europe having long surpassed in importance transit across the Eurasian landmass, the route most closely associated with what, in 1877, German geographer, Ferdinand von Richthofen, dubbed the Silk Road.
The Demise of the Ancient Silk Road and the Discovery of New Ideas
Difficulties in traversing the land path made more urgent the search for ever more efficient sea routes, particularly from China and South-East Asia to Europe. The voyages of the European seafarers are well known. But they were not alone. For example, in the early fifteenth century, Admiral Zheng He sailed his junks from China to the Persian Gulf and the coast of Africa, returning we are told with a giraffe on board. Possibly he traveled as far as Australia. These expeditions heralded what became known in Europe as the Age of Discovery, sparking a renewed interest in science and enquiry, especially that informed by the observation of nature and reasoning, opening up into the Enlightenment.
This period, the Age of Reason, is closely associated with the birth, or perhaps more accurately, the articulation, particularly in England and France, of liberal conceptions of the rule of law. These were forged by political events and philosophical reflections of contemporaries that are as well-known as they are seminal.
Revolution and Governmental Constraint
In England, the civil war and its aftermath, the Glorious Revolution, the Act of Settlement and the Bill of Rights, together established parliament’s supremacy over the king; that is to say that the monarch, and in the modern sense, the executive, was subject to the law. Echoes of this can be seen in the Magna Carta, many centuries earlier, in 1215, where the king conceded that his powers were not unlimited, and that the exercise of certain sovereign authority was constrained. Some of this authority touched on what we would today understand as human rights, including what can be understood as a right to due process. This is not just very old history. The constitutional subordination of the executive to parliament was only recently reaffirmed by the Supreme Court of the United Kingdom in a proceeding brought to challenge the government’s proposal to initiate the UK’s withdrawal from the European Union without first seeking parliamentary approval.
The judges on the Supreme Court’s panel accepted as a priori the view expressed, in the late nineteenth century, of the constitutional theorist, A.V. Dicey, a jurist who had helped popularize the term “rule of law,” that parliament is sovereign. This is an uncontroversial view today when understood as the UK parliament’s authority in relation to that of the executive. Earlier attempts, most famously by Chief Justice Coke in the seventeenth century in Dr. Bonham’s case, to assert the supremacy of the common law, never gained much traction in English law nor the laws of the Commonwealth generally.
By contrast, in the United States the notion that all authority should be constrained by law took root early. This was achieved at the start of the republic’s history, not only through a formal separation of powers in the constituent document, but by the judicial branch of government early on, in 1803, aggregating to itself, in the case of Marbury v. Madison, the power to determine the constitutionality of decisions of the political branches.
The course taken by the United States in establishing, through its Constitution of 1789, a government of laws and not of men, as John Adams famously stated, followed on from the Declaration of Independence a few years earlier, in 1776. This document and the French Declaration of the Rights of Man and of the Citizen, of 1789, are sometimes together thought of as the two great legal “moments” of the Enlightenment, where the right to revolt against oppression, and to enjoy liberties that are universal, are predicated on natural law.
Although natural law has had its detractors, with Jeremy Bentham having decried natural rights to be “nonsense upon stilts,” the notion has exerted a significant influence on understandings of human rights. The Magna Carta, the English Bill of Rights, the French Declaration of the Rights of Man, and the U.S. Bill of Rights all directly inspired the United Nations Universal Declaration on Human Rights of 1948, a document of immeasurable importance and influence. Of particular note is the third paragraph of the preamble to the Declaration, which recites that “it is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law.”
Rule of Law Rhetoric
This reference to rule of law appears in many documents of the United Nations, often in the context of human rights. The World Conference on Human Rights in Vienna in 1993 saw the General Assembly give renewed prominence to the rule of law. By 2005 the United Nations World Summit was calling for “universal adherence to and implementation of the rule of law at both the national and international levels” and committed its members to “an international order based on the rule of law and international law.” In 2012, a High-level Meeting on the Rule of Law held by the General Assembly resulted in a Declaration on the Rule of Law which provided the most comprehensive treatment of the subject to date. It asserted that “the rule of law and development are strongly interrelated and mutually reinforcing” and that “the advancement of the rule of law at the national and international levels is essential for sustained and inclusive economic growth, sustainable development, the eradication of poverty and hunger and the full realization of all human rights and fundamental freedoms.” More recently, Goal 16 of the 2030 Agenda, adopted by the UN General Assembly in 2015, places rule of law at the heart of the world’s shared development agenda.
Other organizations outside of the UN system also devote much energy to the rule of law. For example, among policy-oriented international organizations the Venice Commission, established by the Parliamentary Assembly of the Council of Europe, provides legal technical assistance to measure and enhance the rule of law. The Council’s members include countries along or near to the modern Silk Road, including Azerbaijan, Georgia, Kazakhstan, Kyrgyzstan, Russia, Turkey, Ukraine, and Uzbekistan.
Other policy-oriented organizations engaged in the delivery of rule of law technical assistance include the International Development Law Organization (“IDLO”), which is the only global inter-governmental body dedicated to promoting the rule of law. IDLO’s work program illustrates the breadth of activity that can fall within the rubric of rule of law, with its advocacy and advisory work extending across such diverse spheres as gender justice, food security, rights awareness, and fair trade.
Pursuit of the rule of law has also informed the research and operational policies of other global institutions that foster development. The World Bank’s Doing Business Reports reveal the state of national development using measures that reflect different dimensions of the rule of law. Commercial and financial law surveys of the European Bank for Reconstruction and Development (“EBRD”), which despite its name is active in Central Asia, territory at the heart of the Silk Road, support the EBRD’s view that political and economic openness are positively correlated, advancing and regressing together. Outside of the international financial institutions, other organizations having a global reach also engage in quantitative assessments that bear on the rule of law. Two are well-known. One is Transparency International, which measures the state of corruption worldwide. The other is the World Justice Project whose surveys measure, across most countries, the state of the rule of law with reference to accountability, just laws, open government, and accessible and impartial dispute resolution.
Support on the part of international organizations, including international financial institutions that finance development along the new Silk Road, reflects the enthusiasm of their membership generally for all things rule of law. States and other subjects of international law everywhere profess their adherence to it, often proclaiming the rule of law to be not only essential for sound government and the betterment of the citizenry, but also the panacea for all manner of economic and social ills. This has been possible because the rule of law means different things to different people. Indeed, for some it is an empty slogan. Judith Shklar has said that, at least in an Anglo-American setting, the rule of law “has become meaningless thanks to ideological abuse and general over-use.” And that was in 1987 before what Thomas Carothers has called “the rule of law revival” was in full swing. Unheeded has gone Shklar’s admonition that “no intellectual effort need…be wasted on this bit of ruling-class chatter.”
Among the many people persevering is Brian Tamanaha, who maintains that the meaning of the rule of law is “elusive” and “is like the notion of ‘the good.’” “Everyone is for the good, although we hold different ideas about what the good is.” Nonetheless, some scholars question this, objecting that the uniformity of treatment that rule of law implies operates to reinforce biases, for example about gender and race, and to entrench privileged positions. Still, the elusiveness in meaning has enabled rule of law to be embraced by both the Left and the Right. Simon Chesterman, in an article questioning whether there is such a thing as international rule of law, cites as examples the Marxist historian E. P. Thompson calling it an “unqualified human good” and Hayek giving rule of law a central place in development policy. Similarly, Rachel Kleinfield writes that what can be learned from a study of the academic literature is that the rule of law “emerges looking like the proverbial blind man’s elephant – a trunk to one person, a tail to another.”
Hence, we see for example that in October 2014 the 4th Plenary Session of the 18th Central Committee of the Communist Party of China dealt with the rule of law, the first time in party history that a meeting with the authority of a plenary session considered the subject in any detail. The resultant Communique refers to building a “socialist rule of law with Chinese characteristics” and to the Communist Party “leadership” of the rule of law. This is an expression of the rule of law that many would see as located in a specific place and time. However, the document also calls for “a law-abiding government” and enhanced “protection of human rights in judicial procedures,” concepts familiar to rule of law discourse more broadly. Bound up in these expressions are competing views of what, when reduced from the abstract to the specific, the rule of law means in practice and what it requires. This poses two further questions: does use of the term “rule of law” imply a particular content? and, whatever its content, need the rule of law be universal?
Thin and Thick Conceptions of the Rule of Law and the Power of Language
Addressing the first question, about content, inevitably leads to a discussion about “thin” and “thick” conceptions of the rule of law. The thinnest conception calls for the government and its officials to abide by known rules, equally applicable to all, with state institutions enforcing compliance. Critics argue, as Theo Angelis and Jonathan Harrison do, that this definition “threatens to legitimate governments that are absolutist, but not arbitrary; ruled by means of public and general, but unjust, rules; and supported by a powerful majority, but oppressive to a powerless minority.” Of course, history also throws up examples of where governments oppressing a minority were elected or where the government oppressed the powerless majority. Kenneth Keith, New Zealand’s leading international jurist and a former member of the International Court of Justice, cites Nazi Germany and apartheid South Africa as cases in point.
This kind of criticism of thin conceptions of the rule of law implies, as the UN Declaration on Human Rights and the international and regional standards it has inspired make express, that law-making must implicate the citizenry in some meaningful engagement and that the laws they make must have some minimum moral content. However, those who take issue with such thick conceptions of rule of law reject the inclusion of democracy and human rights. The argument is that rule of law is concerned with legality alone; by contrast democracy is a system and human rights are about standards. It should not be used, as Chesterman analogizes, as a “Trojan horse to import other political goals.”
Nonetheless, thick conceptions of the rule of law are embraced by liberal democratic governments and promoted by their development arms and the international organizations they dominate, including the United Nations and the major development banks. However, all states borrow from the lexicon of thick conceptions of the rule of law; hence we see terms like accountability, transparency, democracy, human rights and, indeed, rule of law itself, consciously appropriated and then assimilated into the language of government, sometimes after being infused with new meanings, ones that better approximate the interests of the ruling elites.
Universality, Cultural Relativism, and “Asian Values”
This use of rule of law language brings us to a second question, namely whether the rule of law should be understood as universal. Certainly, the theorists and statemen of the Enlightenment professed as much, although talk of rights never or barely extended to the least powerful groups who together made up the majority: men without property, all women, and, especially in the New World, indigenous people and slaves. Perhaps we should not be overly critical. After all, the Magna Carta too has left an enduring legacy, but the barons who exacted concessions from a reluctant King John were hardly representative of the marginalized in society and were acting in their own interests. Still, the vision of universalism has long been the dominant one among those articulating and promoting rule of law and human rights.
However, universalism has its critics. Most vocal are those who see the rule of law and rights generally as being properly defined relative to the culture of the host state. What has been referred to as “Asian values” is perhaps the best-known expression of the cultural relativity school. This view of rights holds that the imperative of economic development, where the entire population stands to benefit, trumps any selfish concern of the individual about their professed entitlements. Furthermore, it engenders formal respect for the authority of the government in ensuring stability while delivering progress. As Nadège Rolland’s research implies, relativism allows for a differing vision of international relations than that sponsored by the West and it further allows for a concomitant rhetoric. Thus, to join the Belt and Road project, states need not embrace any particular political ideologies, like accountable government or human rights adherence, but may be “values-free.” According to this vision, development, not democracy, leads to stability and peace. Rules-based governance gives way to a rule of virtue.
This cultural relativism has found some expression in regional legal instruments. Most notably, the Bangkok Declaration adopted by the Regional Meeting for Asia of the World Conference on Human Rights in 1993, while nodding to the universality of human rights, stated that they must be “considered” against a background of “national and regional particularities and various historical, cultural and religious backgrounds.” This reflects a view that “western” notions of rule of law, at least in part, may be alien to the Asian experience and perspective. This retreat from universality has, in its turn, been critiqued by those who argue that cultural relativism assumes a flawed view of Asia or the existence of an Asian cultural homogeneity that does not exist. For example, Alice Erh-Soon Tay, an Australian academic who once headed the Australian Human Rights and Equal Opportunity Commission, said that it would be “either condescending or ignorant to treat “democracy” and the rule of law as unfamiliar to Asian states or as totally new concepts there, having no roots or soil in Asian societies.” In noting that cultural relativism is often invoked by autocratic governments, she goes on to say that the “emergence of human rights as a body of customary international law applicable to all nations means that no nation can hide from it, no nation is safe from charges of abuse.”
Conceptions of Asia
This debate about Asian values references only a small part of the geographical area of Asia. The statistical division of the United Nations has Asia extending west all the way to include Cyprus, a member of the European Union having the euro as its currency. The charter of the Asian Infrastructure Investment Bank (“AIIB”) defines Asia to include Oceania and the entirety of Russia, including the area that a cartographer would locate in Europe.
Whatever its precise geographical boundaries, the territory of Asia – the home of the Silk Road – is vast, accounting not only for much of the world’s land area but also its population and economy and a myriad of its cultures. (Generalizations, therefore, about the meaning of Asian values need to be treated cautiously, perhaps skeptically.) It is in Asia too where the first civilizations emerged, around the Euphrates delta, where written languages were invented and recorded history began, where the great world religions emerged, and where the first written laws were made.
The Nature of Early Laws
The oldest surviving of those laws date to Mesopotamia, to around 2100–2050 BC. The laws of the Babylonian kings provide prescriptive rules, in particular prohibitions and punishments. Meanwhile, at the other end of the Asian continent, laws were emerging in China, with legal codes first appearing in the sixth century B.C. These are located in a period of Chinese legal history, between the eighth and third century B.C., where Confucianism and what is known as Chinese Legalism sparred, with the former emphasizing formal reliance on virtue and role obligations and the latter on regulating behavior, especially through punishment.
These laws, like other ancient laws that appeared in subsequent centuries, are sometimes viewed as “rules of man” or “rule by law.” The Ten Commandments, mentioned in the Old Testament books of Exodus and Deuteronomy, might be understood as rules, not of man, but of God issued on Mt. Sanai. But they too cannot be conflated with the rule of law, the idea that law-making is constrained in some manner. Of course, readers of the Bible are taught that God is merciful; but that implies more the temperate exercise of divine discretion than any inherent limitation of divine power. Adherents to Islam also had one of the earliest systems based on the rule of law: rulers must rule in accordance with the law of God, which is interpreted not by the rulers themselves but by theologians.
In any event, religious and similar views continue to animate thinking about the rule of law everywhere, including along the modern Silk Road.
The Belt and Road
What, then, do we mean by the modern Silk Road? Rolland recounts the many attempts that followed the end of the Cold War to revitalize the route, or perhaps more accurately to invoke its name in support of political projects to connect countries along its path.
The current Chinese lead is known as the Belt and Road Initiative (“BRI”), which dates from 2013. The “belt” refers to the land route of the Silk Road of ancient times and the “road” to the complementary maritime route; hence the earlier, now less-favored name, “One Belt, One Road.” There is no one authoritative definition of BRI, with the contours and boundaries remaining amorphous, perhaps deliberately so in order to retain conceptual fluidity and the prospect of inclusivity.
There is much written about the purpose of the BRI, in particular China’s objectives in launching it. Rolland estimates that in China alone more than one hundred dedicated BRI research institutes and centers have been founded in Chinese universities and think tanks. She cites the China Academic Journals Full-text Database as revealing no less than 8,400 BRI-related articles having been published by Chinese scholars in 2015 alone.
Financing the Belt and Road Initiative
The ambition of the BRI is huge. The Asian Development Bank estimates the infrastructure needs of Asia at $26 trillion dollars from 2016 to 2030 (or $1.7 trillion per year). Substantial amounts of funding for projects along the BRI are being provided by the multilateral development banks (although the amounts are modest relative to bilateral lending from national development and export-supporting institutions). While the MDBs were not established to finance the BRI, they all express support for the initiative as being consistent with their respective mandates and many of the projects that they do finance are in BRI countries.
This embrace is reflected in public pronouncements. For example, in 2017 the major MDBs active in Asia signed an MOU with the Chinese government to forge a “closer partnership for interconnected development.” All of them participate in BRI initiatives, most recently the Belt and Road Forum for International Cooperation, which attracted not only the chiefs of those organizations but the 29 heads of state and government and representatives from more than 130 countries. This underscores the political importance that many states, who together heavily influence the direction, policy choices, and operational priorities of the MDBs, attach to the BRI.
These institutions view investment that supports the BRI as advancing their respective development mandates. Critically, those mandates are furthered for the collective benefit of the membership of these institutions, not the interests solely of those countries who stand to benefit most from implementing the BRI or financing any given project within it. This contrasts with the motivations of individual states, who often provide financial support through their development and export-supporting arms. Understandably those agencies are advancing state interests in accordance with domestically set policy objectives and national laws and standards. Of course, cross-border investment activity of the state can also serve a wider or higher purpose. But the distinction is important because it helps explain why MDBs are different.
International Financial Institutions and the Rule of Law
An important difference is how the rule of law speaks to the governance and operations of those institutions financing projects along the BRI. Turning first to governance, it is important to note first that multilateral development banks are creations of, and therefore governed by, public international law and the terms of the treaties that establish them. To the extent that public international law imposes limitations on how subjects of international law may behave – something which the rule of law operating at the international level seeks to achieve – those constraints apply to international organizations. For example, rule of law principles that are embodied within customary international law bind those organizations directly. Furthermore, while treaties rarely include international financial institutions as parties, such organizations will not do anything that their members themselves would be treaty-constrained from doing. This explains why multilateral development banks avoid working with countries or individuals that are sanctioned by their members generally, even though the particular international law instrument establishing the sanctions regime may not bind the organization.
Most governance constraints on international financial institutions, though, derive not from public international law but from the specific terms of the treaties establishing them. While operational limits are a common feature of the charters of international financial institutions, also appearing occasionally are affirmative obligations of the sort familiar to rule of law discourse. The most striking appear in the charter of the EBRD where the institution is confined to operating in countries “committed to the fundamental principles of multiparty democracy, the rule of law, respect for human rights and market economics.” By contrast, the charters of the other major international financial institutions expressly prohibit consideration of the political nature of the borrowing member when making operational decisions.
But the charters do contend with issues where thicker conceptions of rule of law adherence have something to say, most notably about environmental and social issues, as well as engagement with those affected by projects the MDBs finance. All international financial institutions have adopted policies designed to ensure that projects being financed meet standards which often exceed the minimum imposed by the law of the place where the project is located. The content of prescribed standards varies considerably, but typically addresses not only environmental protection but also social issues such as those dealing with labor standards, gender issues, cultural preservation, and indigenous people.
Where project-affected persons complain that the financing institution has not complied with the international financial institution’s own environmental and social standards, mechanisms for redress are available. The content of these varies considerably but rule of law considerations heavily inform their design.
Concluding Thoughts
How, then, does all of this impact our consideration of the rule of law and the Silk Road? Let me conclude with four thoughts:
First, when we talk about the rule of law we need to be careful that we are not speaking at cross-purposes. While most will think of the rule of law positively, we may not be talking about the same thing. In engaging on the subject, are we clear that by the rule of law we discard mere rules of law or rule by law? The outcome worth striving for is one where governments operate under the law and not arbitrarily and where the subjects of the law can reasonably know what it is. For some this is a sufficient outcome, with the correct view of the rule of law excluding considerations regarding how governments ought to be installed and removed and the standards of behavior by which they should abide in relation to their citizenry. For others, rule of law necessarily implies a system of democracy and respect for human rights. Within that latter category, there will be those who emphasize civil and political rights; for others these are either inadequate or, at the other extreme, need to be deprioritized in favor of realizing economic and social aspirations and selected elements of the right to development. We need to consider these differences because of the magnitude of what is at stake.
Secondly, whatever our understanding of the rule of law, ought its meaning in the context of the Silk Road to be influenced by the specificities of the Belt and Road Initiative and the historical and cultural particularities of the countries that run along its route? Does the sheer ambition and impact of the BRI challenge the dominant view of the rule of law as being universal, that is, applicable at all times and everywhere, irrespective of circumstances? Or do we view a universal rule of law as an irreplaceable mechanism that facilitates the proper design, financing, and implementation of projects along the route while protecting the interests of those affected by them? The operating modalities of the Multilateral Development Banks reflect the latter view, but most financing along the BRI is provided from other sources where practices vary. But collectively, all of us would benefit from uniformly high standards. This ought to be a goal to which we aspire.
Thirdly, when we think expansively about the rule of law and the Silk Road, a birds-eye view of a high ideal and of an overarching political initiative may obscure what can be seen and experienced from the ground. When the building of a rural road somewhere along the BRI is being considered, then it is right that we look to the correct processes for ensuring that the project is properly selected, suitably designed, appropriately implemented, and in every manner sustainable. A by-product of this is that local use of these processes can help build development capacity. The most valuable benefit, though, will be in enabling farmers, fishermen, and small producers to get their goods to market faster and fresher, making them more competitive, thereby raising their living standards and creating jobs; reducing the danger to vulnerable people walking long distances to collect water; enabling pregnant women and those with emergency needs to have a level of health care that would otherwise be denied them; and enabling children, including girls, to be bussed to high school for an education they would otherwise not receive. Greater safety and better health and education should lead to greater growth. But Amartya Sen, in his influential book “Development as Freedom,” helped us better realize that, even if growth is not achieved, creating a secure environment in which to live and work, improving the health of the community, and better educating children together expand freedom and are therefore worthy development outcomes. We can also see these achievements, consistent with much rule of law discourse, as better meeting economic and social aspirations and as the further realization of the right to development.
Fourthly, improved infrastructure and enhanced connectivity will not eliminate moral choices. Our rural road somewhere in the BRI may still be used to carry armies for some pernicious purpose, and the children whose busses travel along it to the nearest high school may not all go on to lead socially productive lives. So, we are left with our choices, as we always have been, something which is part of the condition of being human. That frailty, our potential as a society to not treat others the way we ought, especially when we have power or find ourselves in testing circumstances, is part of what makes the rule of law essential.
Gerard J. Sanders is the General Counsel of the Asian Infrastructure Investment Bank. The views expressed in this publication are those of the author and do not necessarily reflect the views of the Bank or its Members. The author wishes to acknowledge the invaluable contributions of Xuan Gao in criticizing earlier drafts, Youzhi Zhang in helping with research, and Beier Lin, Audrey Ortiz, and Steven Wang in providing editorial review. All errors are those of the author.
