Copyright © 1997 Journal of International Legal Studies;
Henry H. Perritt
Summer 1997
CYBERSPACE AND STATE SOVEREIGNTY
3 J. INT'L L. STUD. 155
Henry H. Perritt, Jr. [FNa1]
In April of 1996 the United States Institute for Peace conducted a conference
on "Virtual Diplomacy," exploring the interaction between new information
technologies and international conflict management. During the conference many
speakers observed that information technology threatens traditional political
institutions. One panel explored the possibility that information technology
threatens sovereignty itself.
Ordinary citizens as well as diplomats have instantaneous access
to information about world events as they occur--through CNN sooner than through
the CIA. Ordinary citizens interested in environmental protection or human rights
can reach out and touch counterparts in other countries through the Internet,
bypassing international treaty negotiators appointed by their own governments.
Overlapping revolutions in information technology and the convergence of communications,
broadcast and data technologies into a single digital network of networks typified
by the Internet, have undermined old political institutions and simultaneously
made new international institutions likely because they make it feasible to
reach across geographic political boundaries. [FN1]
*156 This article explores two interrelated questions arising in
this changing environment. First, how do information technologies threaten old
forms of political intermediation in the international arena? Second, what roles
will information technology play through international law, and international
legal institutions, [FN2] in the new world order, shaping new forms of political and legal
intermediation to replace the old? The article emphasizes the Internet's role,
explaining why it is a revolutionary information technology with potentially
greater consequences than the telegraph, telephone, radio or television. [FN3]
While most of the themes are global in character, the article
emphasizes Central and Eastern Europe. The author's engagement in the issues
considered in the article began with construction of a Rule of Law in Bosnia.
Many of the assertions about the role of information technology in building
institutions for the New World Order are based on the author's experience in
Bosnia and in other former Communist countries to enhance the functioning of
state-based and international legal institutions through the Internet. [FN4]
*157 II. Threats To the Old World Order
The impact of information technology on the power of sovereign states is well
recognized. [FN5] Without televised pictures of the casualties in Vietnam, the
course of that war certainly would have been different. Television images and
e-mail communication in the waning days of the Soviet Union altered reaction
in other capitals with respect to coup attempts undermining the coup. CNN's
broadcast of the violence in Tiananmen Square in China resulted in a level of
world reaction that surely would not have occurred in the absence of that means
of information dissemination. Without television's access to the violence in
Bosnia, the world almost certainly would not have involved itself. [FN6]
Three generations earlier, new ideologies and new forms of totalitarianism made
effective use of cinema and radio broadcasting. Three centuries before that the first stirrings of democracy found
outlets through print media. New channels of political awareness and forms of
political action always have arisen as information technology has changed. Now
the Internet's potential to forge new links at the expense of old ones is beginning
to be recognized.
*158 A. Why Is the Internet Different?
The Internet, of course, is not the only information technology with the potential
to change the way legal institutions function. The telegraph, telephone, radio,
broadcast and cable television, and satellite television all have similar potentials.
It is useful to consider briefly each of these non- Internet technologies, comparing
and contrasting each with the Internet and drawing inferences about whether
the Internet may have greater--or at least different--potential.
The telephone and telegraph had revolutionary potential because they permitted
conversations without inherent geographic limits. Nevertheless, until recently,
they were used mostly within nation states, and enjoy only limited use even
there as mainstream tools for political or legal functions, aside from political
fundraising and get-out-the-vote drives. They also play invisible but powerful
roles in mobilizing interest groups to participate in the rulemaking process,
keeping clients and counsel informed in the adjudicatory process and in organizing enforcement resources.
These uses strengthen state-based political institutions. Because both telephone
and telegraph technologies rely on physical circuits that are easily controlled
at national borders, they only recently have become international tools. Also,
because of high barriers to entry and regulatory programs that protect monopolies,
prices have remained high for international services and the rate of innovation
based on competitive exploitation of new technology developments has been limited.
Recent WTO negotiations on liberalization of trade in telecommunications services
may ease some of the limits. [FN7]
*159 1. Radio
Radio broadcasting was the first electronic information technology that significantly
affected mass political action. Franklin Roosevelt, Churchill, Hitler and Mussolini
all understood and used this potential. Originally organized on a national or
regional basis, use of higher frequencies led to significant use of radio as
a propaganda tool during the Cold War. Radio Free Europe and Voice of America
are examples. A significant reaction to this phenomenon was the widespread practice
of jamming by both Soviet and U.S. interests during this period. [FN8] The jamming technology was developed as a way of limiting the
transborder effects of undesired information dissemination through radio.
2. Television
Television broadcasting is more powerful than radio because it provides visual
as well as audio signals, but the technology is inherently short range. [FN9] Transborder issues have involved adjacent countries only, although
the use of television within national markets to impact rulemaking decisions
through political advertising, lobbying, and political organization has been
profound. Its use in adjudication is almost nonexistent, [FN10] but one could argue that television is used as an enforcement
tool through public service ads that promote compliance with rules and specific
decisions. Cable television has the potential of extending the geographic reach
of broadcast television, but relies on physical infrastructure that is easily
controlled at national boundaries. There is, thus, no reason to suppose that
cable television is a significant independent tool for international law and
institutionalization.
*160 Satellite television, on the other hand, has enormous potential
to relax the geographic limitations of broadcast television, [FN11] and its potential is widely recognized and feared by totalitarian
regimes and those wishing to protect indigenous cultures. While satellite broadcast
so far has stayed relatively docile within constraints set by international
treaty mechanisms, [FN12] perhaps because of the enormous economic barriers to entry into the business, legal uncertainties make investors and
organizers of satellite television initiatives exceptionally fearful. [FN13]
3. Internet
The Internet is now fairly well known, though frequently misunderstood. The
Internet is an international network of computers and computer networks connected
to each other, sharing a common name and address space. One can communicate
with any computer connected to the Internet simply by establishing a connection
to another computer connected to the Internet. The Internet is not a corporation
or administrative arrangement; it is a method for connecting computer systems,
and the phenomenon of very widespread adherence to that method. There is no
such thing as a president or board of directors of the Internet. The Internet's
private, cooperative, virtual, and decentralized character makes it a tantalizing
model for organizing other forms of human activity through technology.
The World Wide Web is a method for organizing information distributed across
the Internet. It facilitates unbundling because editors or publishers interested
in collecting resources related to a particular subject need not obtain or maintain
actual copies of the resources' content; they can make their knowledge available
simply by writing a Web document that contains pointers to the identified references
and information about the significance *161 of the resources. The clearest example is a typical law review footnote
or citation in a legal brief. One can make the case or statute cited to available
simply by pointing to it in the brief or law review article, and a user reading
the brief or law review article can retrieve the full text pointed to simply
by clicking on the footnote or citation. Because the Web unbundles the elements
of information products it greatly reduces the cost of publishing and accessing
information in electronic form.
What about the Internet distinguishes it from other information technologies
and media? The Internet has inherently global reach, and thus is unlike television,
telegraph, and telephone, and more like short wave radio. It has both the one-to-one
characteristics of telephone and telegraph and the one-to- many characteristics
of television and radio and thus is both a conversational and a mass medium.
Because of its packet switching rather than circuit switching character, it
is far more difficult to impose physical border controls on the Internet than
on other terrestrial wire-based or terrestrial microwave-based technologies.
[FN14]
But the most important differentiating characteristic of the Internet is its
extremely low barriers to entry. Because it uses other underlying physical communications
infrastructures, a new Internet enterprise need not build a radio transmitter,
string wire, or lay cable. All it takes to be an Internet publisher is a $2,000 personal computer and a $12.95
per month subscription to an Internet service provider. All it takes to be an
Internet service provider is about $50,000, most of which goes for labor costs
and a high bandwidth connection between the terminal server and router into
the larger Internet. This is far less than what it takes to become a radio broadcaster,
a print publisher or a telephone service even when there are no regulatory barriers
to entry into those industries. Moreover, every user of the Internet is also
a potential supplier of content; the Internet does not have the economic asymmetry
of the radio or television technologies, where it is very cheap to receive information,
but very expensive to broadcast it.
Finally, because of the way the Internet was developed, it has its own culture,
which mistrusts traditional geographic, legal and political institutions. The
Internet culture is quick to embrace new ideas for governance--*162 as long as they do not suggest intrusion by traditional political
institutions. There was nothing like this in the early days of telephony or
radio or television broadcasting. The net culture can exert an influence of
its own in shaping new political and legal institutions. [FN15]
The Internet is a revolutionary phenomenon. It is not just a technology, but
a way of organizing and connecting human activity, which emphasizes decentralization,
specialization, and global cooperation. It is not merely a means for facilitating
existing market and political institutions, but a way of redefining them altogether. The Internet is a new kind of market.
It can be an electronic town hall in which rules are made, or an electronic
courthouse in which disputes are decided. Unlike traditional sovereign states
which are tied to geographic boundaries, [FN16] the Internet is inherently global and indifferent to geographic
political boundaries. Its international character facilitates the development
and extension of international political and legal institutions. The evolution
of the Internet as a set of virtual legal institutions, as a market, and as
a political entity, has enormous implications for the evolution of international
law.
The Internet stimulates, as well as shapes, new legal institutions. International
law must deal with the Internet, with a world in which the markets operate instantly
to afford a choice among every single producer of a good or service, one in
which new products are popularized and purchased through World Wide Web advertising
and salesrooms, and one in which "virtual firms" are organized, raise
capital and coordinate production entirely through the Internet. In this world,
new monetary systems operate through cybermoney on the Internet, potentially
freeing capital markets. Such markets create new interdependencies, in which
the costs of war and social unrest are greater. Economics always drives politics,
and the same technologies that make markets more efficient also can make democracy
*163 more general through markets serving as a conduit for the spread
of democracy.
B. How Does the Internet Threaten Intermediaries?
The Internet already is reorganizing political interaction because it makes
new forms of political intermediation possible. New forms of political intermediation
threaten old forms.
The Internet's revolutionary potential arises from its enabling of new forms
of intermediation. In this respect, it is qualitatively different from television.
Television exposed masses to information, thus diluting the control of some
traditional political intermediaries, but it did not make major new forms of
intermediation possible. The Internet is different. While it permits anyone
with a PC and a $12.95 a month connection to access anything in the world, it
is not yet and may never be a mass medium. Instead, it is a technique for organizing
those with shared interests. It permits members of relatively specialized diaspora
to find each other anywhere in the world. It permits those affected by apparently
innocuous legislative proposals to discover the threat and organize their opposition.
It permits existing interests to focus and strengthen their activities (e.g.,
to oppose an Internet access charge proposal before the FCC or to promote environmental
protective measures).
Political intermediation in complex societies has long been a source of challenge.
That has been true for several thousand years, as Plato, Aristotle, Rousseau, Locke, and a host of other political philosophers have
struggled to define institutional structures and political and legal process
to determine the boundaries of public consent and the public interest. The Internet
threatens existing political intermediaries because it provides new channels
between sources of information and ordinary members of the public. No longer
must a citizen depend on a newspaper or a television network to learn about
a president's latest announcement, the citizen can get the announcement directly
and immediately from the White House World Wide Web site. No longer must a lawyer
wait for legal publishers to make the text of a new legislative act available;
the lawyer may get it immediately and directly from the Thomas World Wide Web
site at the United States Congress. No longer must the process of galvanizing
public support for new political initiatives through the electoral process depend
on political parties and speeches by candidates at rallies or expensive political
advertising on television; now not only the candidates, but also affected interests
can mobilize their past and future constituencies through the World Wide Web
and e-mail.
*164 Intermediaries in modern societies take various forms. Some,
such as parliaments, are explicitly political. Some, such as stock exchanges,
are private and focused exclusively on economic relationships. Some, such as
newspapers and television stations, are private and focus on a combination of
economic and political transactions. The Internet threatens all of them.
The Internet threatens civic institutions such as the press,
old interest groups, and professions (including the bar). It threatens the press
because it lowers the cost of functions that the press performs. No longer does
ownership of a printing press or a corporation employing reporters and editors
give one exclusive control over distribution of promotion. Now anyone with a
personal computer connected to the Internet can "publish" information
to the world. The Internet threatens established interest groups because it
makes their techniques of recruitment, organization, and maintenance of membership
solidarity less relevant, as new factions within old organizations can spring
into life more easily and challenge the value of the old organizations in the
minds of their members. It challenges professions because it makes possible
new kinds of affiliations between individual professionals, thus jeopardizing
the relevancy of old firms of affiliations such as law firms and accounting
firms, while also enabling new kinds of client relationships.
The Internet also threatens market institutions such as stock exchanges. The
possibility of selling securities directly over the Internet makes specialists
on the New York Stock Exchange less relevant and thus undermines the power of
the exchange as a means of regulating securities markets. Because it makes possible
new kinds of payment mechanisms, [FN17] it threatens the role of banks and existing financial networks.
These changes affect the role of the state itself. [FN18] Historically, the state had a monopoly on two important functions. [FN19] It protected nationalities *165 and their cultures from foreign intrusion and it organized markets.
Since information technology makes it feasible to organize new legal institutions
to protect human rights including nationality rights, the first role of the
state diminishes in relative importance. Information technology increases the
globalization of markets, making the state's role in organizing markets less
essential as well. As the European Union has matured, producers in the Netherlands
look less to the Hague and more to Brussels to protect them against unfair competition
from Sweden or Spain. The result is a relative diminution in the saliency of
the Dutch government as a protector against market abuse and a commensurate
enhancement of European Community institutions.
The citizens of Yugoslavia shared two things. They all were Slavs, and they
had been under foreign rule by Austria-Hungary and the Ottoman Empire for 400-
500 years. Yugoslavia protected them from foreign domination. When it became
apparent to Slovenia and other Yugoslav republics that they could get from the
European Union all the economic benefits formerly available only from the state
of Yugoslavia [FN20] they began to think about seceding. The thought spread, and
Yugoslavia fell apart.
In a larger sense, the Internet threatens traditional political intermediation
because it threatens governmental control. Not only do the civic and market institutions lie at the heart of political organization
(political parties are one kind of interest group, and much regulation is carried
out through market organizations), but the Internet also directly challenges
governmental control over information and political affiliation.
No longer can totalitarian regimes or plotters of military coups ensure themselves
a safe environment by controlling the newspapers and the television stations.
As the collapse of the Soviet empire, the failure of *166 the military coup in Russia, the siege of Sarajevo, and the
continued voice of Serbia's Radio 92, show, the word leaks out through e-mail
and the Internet regardless of what is on state television or the front page
of the party newspaper.
The Internet as a new publishing medium has huge implications for a free press.
Progress toward democracy depends on a free and independent press. Given the
demonstrated ease of blocking traditional broadcast and print technologies,
a free and independent press increasingly draws on new information technologies,
particularly the Internet. [FN21]
The current struggle in Serbia reflects the role of the Internet in promoting
a free press. The Internet has played an essential role in circumventing the
Serbian Government's suppression of freedom in the media. [FN22] The voice of opposition is heard on the streets of Belgrade
daily as opposition leaders fight the current government's refusal to recognize
the elections of November 14, 1996. The Serbian government sought
to stifle this message by shutting down traditional media such as newspapers,
television and radio. For example, B92, the popular Serbian opposition radio
station, was shut down by the government and other communications were jammed
daily. But when these traditional media outlets were jammed, the Internet freely
relayed media reports to the world. It did so not only through the Web and e-mail--
largely text-based applications; it also allowed distribution of audio files
containing content and programming ultimately disseminated to the general public
by local radio and television stations. It exposed the suppression of individual
communication and revealed the overt governmental effort to invalidate the will
of the Serbian people. As the Serbian experience shows, the Internet permits
underground political movements to flourish more easily because of its distributed
decentralized technology, which makes it more difficult for censors to find
bottlenecks essential for censorship. But for the Internet, lack of freedom
in the media would have *167 subverted the democratic process for which the opposition leaders
are fighting.
In Serbia and elsewhere, emerging opposition groups are using the Internet as
a tool of organization, enhancing their ability to organize political operations,
improving the dissemination of information to activists and to the voting public
while circumventing the government operated media outlets. The Internet facilitates
the creation of a campaign network of activists. The opposition can create an e-mail list of supporters to receive
the daily campaign message. Those supporters can then take that message to the
streets of the towns and villages in which they reside. This human network of
supporters, linked by the Internet, easily extends beyond geographic boundaries
that prevent person-to-person organizational efforts.
The outputs of the Internet are not only informational. Like other communication
and transportation technologies, they change the way in which tangible activities
can be organized, making it possible to alter production and distribution of
goods, as well as to raise armies in new ways.
Some observers infer from these phenomena that political intermediation is dead,
and that the Internet is launching a new world in which town hall mass democracy
will be the only form of governance for the entire world. Such an inference
is naive in the extreme. All the Internet does is make it possible for people
to be "present" virtually without having to be present physically. It
does little by itself to shape group dynamics in desirable directions, or to
make large assemblies more capable of dealing with a vast array of issues, some
of which are matters of passion only for certain members of the assembly. The
imperatives of specialization and delegation will continue to operate in the
new technological environments as well as in the old. Town hall democracy is
not always effective, regardless of the technology used. Demand for intermediation
functions will not evaporate. [FN23]
More, not less, hard thinking about political intermediation
is appropriate. What will the press function look like when governments and
political opponents can make their views available directly to the public on
the Internet; reporters can publish their stories directly to the public without
sending them through editors; the World Wide Web performs the printing, sorting,
binding, and distribution functions with miniscule cost, thereby ensuring that
it will eventually supplant the printing press, the folder, the binder, and
the delivery truck? What happens to the function of the story *168 conference, the make-up editor, and the editor at the daily
newspaper? What happens to the role of the television network anchorperson as
someone who sorts a thousand events and tells us what we want to pay attention
to and helps us understand them?
What will interest groups, political parties, and personal election campaign
organizations look like under the influence of the Internet and the World Wide
Web? Will reduced costs for launching political movements make more Lawyers
for Human Rights, American Civil Liberties Unions, Friends of the Earth, Common
Causes and Amnesty Internationals spring into life, or will it result in so
many narrowly focused, uncompromising specialized interest groups--as in the
44 political parties in the initial run up to Bosnian elections--that it frustrates
rather than facilitates choice?
What happens to the role of the lawyer, the judge, and of other professional
cadres or elites who now mediate between the law and the people?
New information technologies affect the way that clients obtain access to lawyers,
the way that lawyers represent clients before courts and other institutions,
and the way that lawyers do research to support advice to clients. The Internet
affects the way that lawyers think, and law schools increasingly embracing the
Internet and other information technologies, teach their students how to think
like lawyers.
One clear example of these new forms of political intermediation is the growing
influence of nongovernmental organizations (NGOs). NGOs have "grown spectacularly,"
[FN24] and exercise major influence in the formulation of international
law and policy, especially in the human rights and environmental fields. [FN25] NGOs provide independent sources of information to be used by
official organizations, evaluate and assess state compliance *169 with international regimes, provide technical assistance to
developing countries to enable them to participate in treaty negotiation and
administration, and perform mediation and facilitation services. [FN26] "Where there is noncompliance, they are key to public exposure,
shaming, and popular political response. In a real sense, they supply the personnel
and resources for managing compliance [with international treaties and "regimes"
] that states have become increasingly reluctant to provide to international
organizations." [FN27]
This burgeoning array of NGOs is the one element of the system that is not even in theory subject to governmental control. They define their objectives, generate resources, and make commitments through their own internal processes. They have their own vision of compliance that may or may not coincide with that of the parties. They remain free to critique or attack the regime managers, national or international. It is therefore not surprising that they are not already appreciated by the states and international organizations that have official responsibility for managing the [treaty] regime. [FN28]
As explained elsewhere in this article, and emphasized by recent commentators,
[FN29] the Internet enormously facilitates the functioning and therefore
the power of NGOs. [FN30]
Mass communication technologies such as the Internet are already widely recognized
as important political tools in the NGO community, especially the environmental
community. They reduce the transaction costs of discovering common concerns,
crystallizing positions, aggregating interests, and organizing entrepreneurship
and maintenance. In other words, the Internet facilitates political action.
The literature of collective action [FN31] and *170 of public choice [FN32] emphasizes the role that transaction costs play in developing
interest groups and therefore the role they play in determining which political
views and interest get presented effectively. Internet technologies change the transaction costs.
Under the Dayton Accords, NGOs have played a major role in rebuilding Bosnia
and in building a Rule of Law. In some areas of Bosnia NGOs are more active
and command more resources and political influence than international and national
governmental organizations, and surely more than the Bosnian government.
As NGOs become the most effective way to mobilize narrowly focused interests
in negotiation of treaties, and detecting and punishing noncompliance, the relevance
of traditional state institutions diminishes further. Better understanding of
the NGO intermediation phenomenon is therefore appropriate.
Of course the Internet's potential is not entirely in favor of peaceful international
institutions. The Internet promotes political organization. Because it lowers
barriers to entry, it makes it feasible to organize smaller or narrower groups.
It thus can become a force for polarization, doing more to facilitate organization
of neo-Nazi and extreme nationalist groups than broader international constituencies
for peace. Conversely, the self-consciousness of early Internet designers and
participants was noted in the analysis of how the Internet differs from other
information technologies. This self consciousness can make cyberspace advocates
an effective interest group in their own right, thus influencing the process
of rulemaking, not only through technology, but also through the force of their
opinions. [FN33]
Moreover, the mere possibility of political institutions at
the state level becoming less important does not mean that their importance
necessarily will diminish. There is a growing realization in the minds of opinion
leaders and ordinary citizens that globalization of markets is not an unmixed
blessing. George Soros recently wrote that civil society is not necessarily
achieved by complete laissez faire abandonment of all the societal*171 decisions to free markets. [FN34] Government and law also have a role to play, and an ideological
purity in pursuit of capitalism can be as bad as an ideological pursuit of Communism,
and almost as inimical to the goal of a civil society. [FN35] Journalists William Greider and Robert Kuttner have opined similarly
in recent books. [FN36]
Closely associated with perceived costs of undue reliance on open markets is
the fear of losing national identity and other cultural values. These concerns
animate French opposition to the rush to embrace the Internet and justify the
Chinese position on human rights, to give just two examples of a widespread
phenomenon. [FN37]
That these concerns exist does not determine the nature of intermediation. It
does, however, raise the question, "what kind of Rule of Law?," even
as former Communist countries commit themselves to develop a Rule of Law. That
question relates to substantive law regulating markets and to the configuration
of legal institutions. Both substantive law and the architecture of legal institutions change the relative political power of various elites
and interest groups, thus profoundly affecting the shape of political intermediation.
Through this mechanism, the Internet changes the nature of intermediation indirectly
and defensively as political forces erect new institutional mechanisms to protect
against perceived capitalist abuses in global markets.
III. Frameworks: Legal, Political and Intellectual
As the previous section argued, the revolutionary potential of the Internet
does not make all human knowledge about politics irrelevant. Human beings have
been building political institutions, struggling to accommodate competing human
aspirations and to resolve disputes for thousands of years. What they have learned
in the course of their development about political and legal process is not
swept away by the introduction *172 of the Internet or any other technology. Political theory and
rules of thumb for shaping legal institutions have not suddenly become irrelevant.
Rather, the mature student asks simply whether different, and perhaps better,
answers to age-old questions now are possible because of specific changes in
cost, immediacy, and long distance participation--changes wrought by the Internet
and related technologies. It is that mode of analysis that the third current,
discussed below, is meant to encourage.
Political theory accepts the importance of international institutions as frameworks for international affairs. While realists emphasize
the anarchic character of relations among unitary states, therefore denying
the effect of norm-based international law, they nevertheless accept the possibility
of institutions, including legal institutions, as instruments of state power.
[FN38] Institutionalists in international relations emphasize the influence
of institutional arrangements, but still view states as the only relevant units
of interaction. [FN39] Liberalism is an evolving alternative that is normative and
also probes within the shell of the state, considering international relations
as influenced by domestic political dynamics and the interaction of groups,
constituencies and political entrepreneurism across state boundaries. [FN40]
*173 International law, informed by the institutionalist and liberalist
schools of international relations theory, provides a language for talking about
frameworks for political interaction, for Rule of Law, interstate dispute resolution,
and collective security. The Internet has a role to play in this effort, by
providing virtual libraries, case management and electronic publishing capabilities
for existing institutions, and by facilitating the globalization of markets.
More profoundly, the Internet makes new types of institution possible.
The Internet and international law thus can become partners in shaping new forms
of sovereignty. International law will crystallize norms of human rights, forms and procedures for interstate dispute resolution,
and possibilities for new collective security structures. [FN41] The Internet will provide the mechanisms for giving these ideas
substance in the activities of real people, channeling public opinion and the
market interactions. [FN42] International law and political science's institutionalism and
liberalism movements have enhanced appeal because of threats to the structures
on which realism was built. [FN43]
*174 A. Themes and Currents
Three legal and political currents have emerged from the search for a New World
Order to replace the Cold War. First, former communist countries seek to replace
one-party authoritarianism with a Rule of Law and a Civil Society. [FN44] Second, the world community, especially the West, has sought
new interstate dispute resolution mechanisms to deal with the larger universe
of disputes produced by and between (and sometimes within) fragmented political
entities. Third, new collective security structures are being designed to contain
violence provoked by unresolved disputes and to enforce decisions made by international
institutions dealing with Rule of Law and interstate disputes. "In an ideal
system of collective security, the aggression by any state against another is
to be resisted by the combined action of all other states." [FN45] Collective defense protects a group from *175 outside attack; collective security protects the members of a group from
each other.
Even for Western Europe, security has not become an obsolete concern, replaced
with economic integration. Chancellor Kohl cautioned, "Who among us five
years ago would have believed that the Balkans would have fallen so rapidly
into fratricidal war, to ethnic hounding, to rape, murder and death?" [FN46] Indeed German reunification was facilitated by keeping Germany
in NATO, reducing potential threats from an unanchored unified Germany by keeping
it "tied down" in a multilateral institutional Web. [FN47]
Building a structure for peace in the new Europe, one containing a reunified
Germany and the new democracies of the former Eastern Bloc, requires not only
eventual economic integration through the European Union, a Rule of Law supported
by the Council of Europe, and dispute resolution mechanisms through the Organization
for Security and Cooperation in Europe; it also requires an intraregional security
framework, focused on the premise of collective security. [FN48] The Czechs, Poles and Hungarians are as worried about Germany
as about Russia; the Croats and Bosnians obviously are worried about Serbia
and vice versa. Collective security, focused inward, is an important institutional
response.
The three currents overlap. Rule of Law and interstate dispute resolution complement
each other when nationalities are dispersed across state boundaries, as are
the Serbs, Croats, Hungarians, Russians, Albanians and Muslims, among others. Rule of Law in Romania assures Hungarians
living in Romania of fair treatment. Interstate dispute resolution is necessary
if Hungary encourages ethnic Hungarians to secede from Romania--or Serbia encourages
ethnic Serbs to secede from Bosnia. The same currents overlap when failure of
Rule of Law in one country, such as Bosnia, produces *176 refugee flows that burden another, such as Germany. [FN49] In sum, the burdens on interstate dispute resolution become
greater when Rule of Law is inadequate to resolve disputes within states.
Interstate dispute resolution and collective security overlap when peaceful
dispute resolution fails, as it did in the former Yugoslavia. Security frameworks
such as NATO or U.N. peace enforcement contain violence produced by disputes
across state boundaries. More ambitiously, security frameworks come into play
to give "teeth" to Rule of Law and interstate dispute resolution institutions,
as has been demanded with respect to NATO stabilization force's (SFOR) execution
of arrest warrants for war criminals in the former Yugoslavia.
B. International Law's Role
Maturation of the human rights movement and its crystallization in a growing
number of treaty instruments has transformed international law from a body of
norms and procedures confined to relations between traditional states into a
body of law that is also available to address relations between individuals
and states, [FN50] making international law a repository for political power lost
to traditional sovereign states. That transformation makes international law
available as a source of Rule of Law [FN51] and makes it more flexible in shaping institutions for interstate
dispute resolution and collective security.
*177 Traditionally regulating only relations among states, [FN52] international law increasingly regulates relations between states
and their citizens or subjects, through human rights law, and thus becomes available
to shape Rule of Law domestically. Historically, public international law concerned
only the relations among states, not between states and individuals. Traditionally,
even those norms apparently relating to individuals, basically norms relating
to treatment of aliens by states, were derivative of relations between the acting
state and the state of whom the aliens were citizens. Human rights law is different.
[FN53] It directly concerns itself with the relationship between a
state and its own citizens. [FN54] And, because human rights norms are binding not only on states
but also on individual actors, human rights law ultimately can concern legal
relations between individual actors and individual victims. The human rights
movement has reinforced constitutionalism, to create a body of law external
to and higher than purely state law. [FN55]
Constitutionalism is probably the most prominent feature of Rule of Law initiatives in the former communist countries, including
Russia. Constitutionalism envisions a source of law superior to ordinary law
enacted by majorities in parliaments, perhaps dominated by a single party. The
superior sourceof law is a written constitution and also, in virtually every
former communist country, international human rights law. Described thus, constitutionalism
is an idea not an institutional framework. The idea gains *178 expression through constitutional courts, established everywhere
(except for Estonia) throughout the region on the Austrian model.
To its body of individual human rights norms, and to the ideas of constitutionalism,
international law is adding promotion of democracy, and increasing legitimating
mechanisms to assure free and fair elections in new states. The human rights
movement in international law also reinforces information technology's threats
to sovereignty. [FN56] The principle of self-determination in international law [FN57] legitimates at least some of the nationalist self consciousness
that finds voice through the Internet, and makes it difficult to reject the
claims of any nationality [FN58] to secede and set up its own political units.
International law, even without going beyond its traditional focus on relations
among states, provides much of the intellectual capital for new interstate dispute
resolution ideas. Even as old political structures have disappeared, international
law is maturing as a source of new stability in relations among new nationally oriented states.
Finally, international law is evolving to face the challenges presented by the
growing need for collective security arrangements. It is the language through
which new collective security arrangements are expressed and made predictable
and accountable. It is crystallizing the grounds for intervention into affairs
formerly the exclusive domestic province of sovereign*179 states. It is expressing the justifications for use of international
forces to execute arrest warrants from human rights tribunals such as the Hague
War Crimes Tribunal. [FN59] It must legitimate OSCE involvement in local election controversies.
International law and collective security institutions are interdependent. Collective
security arrangements not only must be justified under international law; they
reinforce international law and provide the "muscle" so that the coercive
element Hans Kelsen claimed to be necessary for any legal system is more apparent
in international law. [FN60]
The collective security framework envisioned by the U.N. Charter does not focus
only on military force. Before the Security Council can authorize military force
under Article 42, it must believe that measures authorized by Article 41 have
proven inadequate or that they "would be inadequate." [FN61] Article 41 authorizes a variety of measures not involving the
use of armed force, including "complete or partial interruption of economic
relations and of rail, sea, air, postal, telegraphic, radio, and other means
of communication, and the severance of diplomatic relations."
[FN62] The language of Article 52 regarding regional arrangements for
dealing with maintenance of international peace and security is not limited
to military arrangements, and thereby impliedly encompasses economic sanctions.
The same thing is true of Article 53's language, requiring the Security Council
to utilize regional arrangements for enforcement action under its authority
when "appropriate." [FN63] Whether the requirement under Article 51 for Security Council
involvement in exercise of the inherent right of individual or collective self
defense applies to economic measures taken in self defense is not entirely clear
from the text. Whether the privilege of self defense extends to economic sanctions
depends on whether economic sanctionsare *180 illegal under international law absent a privilege such as self
defense. One author suggests a trend toward an international law norm prohibiting
certain types of economic coercion, but there is hardly a consensus. [FN64]
Of particular importance in guiding the collective security current is defining
an international police function with greater clarity. It is not enough for
international law to define the circumstances under which international military
forces such as NATO's IFOR or SFOR can be used to execute warrants and other
processes of international tribunals. Those circumstances are reasonably well
defined under the U.N. Charter, the statute and rules of the Hague Tribunal, and the language of the Karadzic
and Mladic arrest warrants themselves; yet no arrests have occurred. More intellectual
capital must be developed on what kinds of forces, under what supervision, should
execute legal process in what range of circumstances. [FN65] All of the controversies that now swirl around extradition disputes
must be addressed. [FN66]
It is not enough for international law to mature in a normative sense. International
law functions through international legal institutions, and most of the success
or failure of the New World Order depends on institutional innovation, and the
Internet is central to that innovation.
IV. The Internet's Role
International law can use the Internet to help define and to deal with the New
World Order. The Internet is the technological matrix for the three currents
shaping the New World Order.
*181 The possibilities can be understood more clearly, the questions
made more concrete, by considering information technology's contributions to
each of the three currents. [FN67] Moving from first to third represents movement from the narrowest
view of the Internet as merely a collection of information technologies to a
broader view of the Internet as an exemplar of a new type of human community,
a novel framework for a New World Order and for international law. It also represents movement from the most immediate to the
most revolutionary applications of the Internet. The three currents are not
distinct; rather the second and third build on the first, and the third builds
on the second.
In all of these currents the Internet is a medium for new forms of international
law. The currents represent channels and structures for regional and global
cooperation, giving direction to the evolution of existing international institutions
such as constitutional courts, NATO, [FN68] the Organization for Security and Cooperation in Europe, [FN69] the International Monetary Fund, [FN70] the World Bank, [FN71] the World Trade Organization, [FN72] the International Court of Justice, [FN73] NAFTA, and the European Court of Human Rights. The Internet,
by relaxing the strictures of time and space, can facilitate their development.
In facilitating the development of these institutions, the Internet shapes the
first (Rule of Law) [FN74] and second (interstate dispute resolution) currents. In making
possible entirely new international institutions and forms of political intermediation,
the Internet shapes *182 the second and third currents. [FN75] In particular, the Internet changes the possibilities for mobilizing
mass political support for economic sanctions and military intervention, a sine
qua non for any practicable collective security mechanism.
It is important to understand that the Internet need not be either a global or a mass phenomenon for its influence on all three currents
to be significant. The Internet can promote a New World Order regionally, within
Samuel Huntington's "West" and not inter-civilizationally. Even when
other information technologies such as direct broadcast television are more
important than the Internet as mass communication media, the Internet may also
have profound influence on the organization and behavior of crucial political
elites. [FN76]
A. Strengthening a Rule of Law Through Virtual Libraries, Case Management, and Electronic Publishing
In the first current the Internet is a means to make existing public institutions
more effective. [FN77] Using the Internet to make constitutional courts more effective
has implications beyond simple improvements in efficiency, showing how human
rights law can be harmonized and internalized into state legal systems, and
how world opinion can become a practicable enforcement method. This current
can hasten the harmonization of human rights law in an environment in which
close to fifty constitutional courts, many coming from the civil law tradition,
now are obligated to follow precedent from other national or international institutions
applying common sources of human rights law. The current may have implications
far broader than these particular institutions. Existing institutions such as
the *183 ombudsmen, strengthened by the Internet, may show how public
opinion now can be a much more effective weapon in the arsenal of law enforcement
because of easier access to underlying legal decisions and the empowerment of
a decentralized web of specialists around the world to direct the attention
of various constituencies to data, and to explain significance.
The first current obviously includes connecting the constitutional courts to
the Internet. For these new instruments of constitutionalism, the Internet functions
as a virtual library, as a case manager and as a medium for electronic publishing.
[FN78]
The virtual library and electronic publishing functions are interdependent.
The extent of the virtual library depends on the scope of electronic publishing
of relevant materials. John Dawson in his classic, The Oracles of the Law, [FN79] explained how the wide availability of legal texts promoted
the unification of legal systems. The Internet, by making it easier for lawyers
and different legal cultures to access information about other cultures, similarly
promotes unification. Constitutionalism and human rights is ripe for that kind
of unification, and the restricted set of authoritative texts--about a dozen
new constitutions and three treaties [FN80]--and relatively limited output of specialized courts should
enhance the feasibility of constructing a complete electronic information system
encompassing all relevant precedent. There is at least the possibility that
these institutions will develop a common case law, not necessarily in the stare decisis sense that a case
from the Czech Republic will bind the Slovenian court, but in the sense that
all of the state decisions within the United States make up a common case law.
Such harmonization would make constitutionalism and human rights law a truly
international set of norms rather than a patchwork differing from state to state.
*184 More generally, to work out Kennan's new structure for Europe,
[FN81] national courts and legislatures must be tied to supranational
ones; an ECHR decision or an OSCE finding cannot influence a national judge
or legislator if he does not know about it. That is where the Internet comes
in; it makes it easy for him to find such a decision.
A new international court, or a national one trying to enhance principled decisionmaking,
need not have these aspirations frustrated by a poor traditional law library.
A rich variety of national materials from the same country, national materials
from other countries, and international materials from the ECHR are available
through the Internet's World Wide Web. Access to them can be organized easily
and cheaply by constructing specialized Web pages oriented toward the types
of cases in the areas of law most frequently of interest to a particular tribunal.
The Venice Commission, [FN82] introduced supra, recognizes the potential of such an information
infrastructure for the constitutional courts by publishing their opinions and developing a conceptual topology
or thesaurus to index opinions according to their subject matter. ECEULnet seeks
to ease the transition of the Venice Commission publishing activity to the Web.
The virtual library function also enhances legitimacy of the institutions using
it. A controversial case by the constitutional court in the Czech Republic may
be more difficult to vilify if it is virtually identical and decided the same
as a case involving the same source of law decided by a constitutional court
in Slovenia--if the analogous case is known and pointed out by the Czech judges.
The case management function permits documents filed anywhere to be available
from everywhere the court desires. New constitutional courts need not establish
regional court houses or be integrated with a hierarchy of trial courts in order
to be accessible to individual claimants. Also, as in the case of the Constitutional
Court in Bosnia, a case can be filed in Sarajevo and immediately be available
to the three judges who maintain their offices in Brussels, Belgium, Lagos,
Nigeria and Damascus, Syria. The case management function also permits confidential
deliberations *185 among the judges, and conferences with counsel without all of
them having to be in the same place at the same time.
Using the Internet in this fashion--to automate adjudication and to link it
to an increasingly unified body of substantive law--does not require any change
in the formal organic or procedural documents for the potential
institutional users in Eastern and Central Europe. All that is necessary is
to provide the hardware, Internet connectivity, and training to the institution
and then to let the world community, particularly similar institutions elsewhere,
and the human rights community know about the new source of information. Utility
of electronic publishing, case management and virtual library functions can
be enhanced by development of templates for similar Web pages, by software for
case management, and by collecting and organizing pointers to virtual library
material with appropriate reliance on substantive typologies and indexing arrangements.
[FN83]
Electronic publishing is a tool to promote compliance as well as increasing
efficiency and legitimacy. The Bosnian Ombudsman is a creature of the Dayton
Accords, [FN84] and is the central feature of a rule of law with respect to
human rights. Someone alleging a human rights violation may file a complaint
with an ombudsman, triggering the ombudsman's duty to investigate. If settlement
is achieved the ombudsman's job is complete. If it is not achieved, the ombudsman
then can follow two courses of action. The ombudsman may publicize the human
rights violation, seeking to mobilize domestic and world opinion to induce the
offending governmental entity through political means to resolve the dispute
and to mend its ways.
Inherent in the ombudsman tradition and nomenclature is the idea that informal means, particularly public opinion, can be an effective
alternative to more traditional and formal court judgments and coercive enforcement
and execution of them. That is where the Internet comes in. The Internet is
a startlingly effective new tool for mobilizing public opinion through electronic
publishing.
A finding of a human rights violation by the military police in Sarajevo or
by irregular municipal police in Banja Luka can be made available *186 to the world community simply by transferring one file to a
computer in Bosnia, as long as that computer is connected to the Internet. Not
only that, the vast network of interested nongovernmental organizations and
human rights advocates around the world can focus public attention by adding
their own indices, and analytical frameworks to raw material developed and published
by the ombudsman. The need for translations into other languages need not delay
publishing. The basic findings can be posted in the native language of the ombudsman
with anyone else anywhere in the world performing the translation function through
the World Wide Web.
Using the Internet to automate the Hague war crimes tribunal is advantageous,
although the Internet cannot solve the most serious problems confronting the
Tribunal. The international tribunal for the prosecution of war crimes in the
former Yugoslavia--the "Hague Tribunal," is a limited model for an international
criminal court and enjoys growing support in the international law community. [FN85] For the Hague Tribunal as for other courts, the Internet and
World Wide Web links can enable justices sitting in different countries to deliberate,
can facilitate the acceptance and transfer within the court of documents pertinent
to cases, and can provide for instant publication of court orders and opinions.
In a general and indirect way, the Internet's capabilities can assist the functioning
of international criminal courts, like other legal institutions, thereby increasing
the perceived legitimacy and the likelihood that national authorities will cooperate
in their functioning.
But ultimately executive instrumentalities such as the police and SFOR in Bosnia
must have the political will to execute arrest warrants issued by an international
criminal tribunal. [FN86] The court itself can do little to overcome the power of those
that provide sanctuary or otherwise prevent the apprehension of an international
fugitive. That requires more fundamental international institutional development
within the second (interstate dispute resolution) and third (collective security)
currents.
*187 Electronic publishing, especially, is of profound importance
in preserving a rule of law and enhancing democracy. Freedom of information
is an essential feature of responsive government. In the past, freedom of information
meant a right in the press and the public to obtain information on paper upon
request. Now, freedom of information means more. It means the possibility of
accessing virtually the entire stock of public information generated by governments at the click of a mouse button on an
Internet client. [FN87] This is significant not only for the convenience of citizens
and their representatives who can get specific information items much more quickly
and cheaply. It also is significant for governments who can disseminate information
much more cheaply. Now, even small countries like Croatia and Slovenia can expect
their information resources to be widely available even though the market for
government information from such small countries is likely to be too thin for
traditional publishing initiatives. Because the Internet reduces costs, it lowers
barriers to entry and makes it easier for even smaller bodies of information
to be made available.
B. Strengthening Interstate Dispute Resolution By Building Transnational Markets
The Internet shapes the second current by strengthening private interstate dispute
resolution mechanisms centered in markets. The Internet already is becoming
a market: a market in which virtual business associations can be formed and
operate, a product market in which new technologies embodied in new products
could be sold to customers around the world, a financial market to facilitate
the development of new kinds of money, monetary policy management and payment
systems, and an information market in which electronic publishing flourishes.
[FN88] Development of these markets relates to the evolution of a Eurocurrency and other regional or international financial
mechanisms, and of international institutions such as the WTO, the WIPO and
the World Bank. [FN89] The Internet also contributes to interstate dispute resolution
by facilitating the erection of new trade-oriented private institutions that
make, apply and enforce rules with important *188 interstate implications. Collective security also is strengthened,
through webs of commercial interactions that supplement military webs.
The Internet can be a product market in which new technologies embodied in new
products (particularly including information products) can be sold to a world
market. It can be a capital market in which new kinds of business associations
are formed, financed, and managed. It can be a financial market for flows of
new kinds of money, monetary policy management, and payment systems. It can
be a labor market. [FN90]
The Internet's potential as a market will hasten development of international
law and international institutions related to monetary, banking, and commercial
regulatory functions.
Information technology is reducing all kinds of transaction costs for trade.
Bill Gates writes that he launched the PC revolution as a response to the question
"What if computing were free?" and embraced the Internet as a response
to the question "What if communications were free?" [FN91] Of course neither computing nor communication can ever be completely
free, and Bill Gates knows that. But the Internet does radically change
transaction costs for most of the activities that occur in markets--organizing
firms, advertising and promotion, shopping, sales transactions, production and
delivery (of certain services and information products). As trade in services
becomes relatively more important than trade in tangible products, the scope
of electronic markets is potentially greater, encompassing actual delivery of
the thing desired by the purchaser as well as advertising, ordering and payment.
In principle, there is no need for any physical delivery or face-to-face contact
to accompany travel agent services, legal services, financial services and certain
forms of health care services.
Ronald Coase and many others [FN92] observed that changes in transaction costs alter the organization
of economic activities. [FN93] Depending on relative transaction costs, coordination of economic
activities may be performed by bureaucratic mechanisms of firms, or outside
of those mechanisms *189 by markets. Of course, the transaction costs of firms change
as well as the transaction costs of external transactions in the market. It
may be that the Internet will make "virtual business associations" sufficiently
attractive that the boundaries encompassing "internal" markets may widen
rather than narrowing.
Electronic publishing through the Internet can revolutionize markets even for
products and services not actually delivered through the Internet. Such products and services can be advertised, compared with alternatives,
bought, sold, guaranteed, andserviced, in many cases, through the Internet.
There are opportunities to explore the limits of the Internet as a market for
tangible products. [FN94]
The Internet improves market-related decisions by lowering the costs of market
information. Such efforts improve information available to market decisionmakers,
and thus improve market function. Tools could be made available through the
Internet to interact with data made available from multiple sources through
the Internet with the results made available through the same medium. Access
to public information is part of this picture. No one would locate a new plant
in a foreign country without finding out about competition, commercial law,
taxes, liability rules, and labor law. Corporate registries, comparative analyses
of commercial law, reports of decisions on liability claims, tax codes, and
terms of labor agreements all are more accessible because of global markets
for electronic publishing of legal materials.
Whatever the limits of the Internet as a market are for tangible products, they
do not apply to financial and capital markets in the second current. Money can
be delivered through the Internet. One of the great accomplishments of post
World War II international diplomacy and law has been the design and operation
of international financial institutions to moderate the effects of exchange rate fluctuations, manage payments deficits,
and facilitate the handling of payments for commercial and governmental purposes
that cross national boundaries. The International Monetary Fund, the World Bank,
the European Bank for Reconstruction and Development, emerging Eurocurrency
mechanisms, and elaborate, but less known, private banking settlement networks
handle trillions of dollars in international monetary exchanges very effectively.
Information technology always has been *190 important to payment systems. Already, much of the world's payments
are made not by the physical exchange of