A blog on why norms matter online

Wednesday, July 11, 2012

Towards an Increased Role of Individuals in International Law: What Lessons Does Internet Law Hold?

I am happy to announce that as of today the University of Graz has conveyed upon me the title of Doctor iuris.

I received my doctorate for my thesis entitled "Revisiting the Interposition of States Between Individuals and International Law with Special Reference to International Internet Law". 

As I prepare the manuscript for the publisher, I would like to engage in an open discussion of some of my main themes.

Let me give you some background. 

50 years have passed since Georg Dahm was able to say in a discourse on the position of the individual in international law that “not long ago the topic […] would not have been understood or would have been conceived as devoid of any meaning. After all, it seems as if international law is the part of the legal order that has the least to do with humans.”

This has changed substantially. The German scholar could not have foreseen the emergence, over the last five decades, of the human rights regime and the reorientation of international law towards protecting and empowering individuals. Today, international law is probably the legal order that has the most to do with humans.

Yet still, this "humanization" is only imperfectly realized and both the actors recognized by international law and the instruments used to regulate international affairs are state-oriented and/or state-driven. 

In my thesis, I apply a different approach - the functional approach - and suggest to overcome intermediation by default and apply a more nuanced regimes of role allocation in international law. I focus specifically on the dynamics at play in International Internet Law, as it is an emerging normative field largely free of entreched actor roles. Also, it's a field I know well.

In the coming weeks I will post key elements of my thesis here and would welcome suggestions and thoughts. 

Key findings

As a first introduction, have a look at my key findings: 
  • Humanization as qualified by resovereignization is the key paradigm that will shape the evolution of international law in the future. It has a radiating effect on international legal regimes, processes, and institutions and explains and justifies disintermediation.
  • Traditional approaches favouring the interposition of states between individuals and international law by default and without reflection on the specificities of the regime are open to charges of dogmatic inconsistencies, and substantial effectivity and legitimacy deficits. 
  • A functional analysis of the interposition of states, however, has a transformative effect by asking how international law must look like in order to fulfill a certain purpose. This purpose is not inscribed in the approach itself but can be deduced, in line with ICJ case-law, from the “needs” of the international community: the protection of the individuals as the central and ultimate end of all international law.
  • International Internet Law, as an emerging legal regime without ‘entrenchment bias’ towards mediation of individuals by states, exhibits all characteristics of a post-interposition regime, including a commitment to multistakeholderism, non-traditional normative instruments and system-wide disintermediation.
  • The case study of International Internet Law validates transcending interposition in international law because the regime’s normative results are both largely legitimate and broadly effective.
  • Self-regulation through non-mediated multistakeholder structures in post-interposition regimes with states providing the societal frame and legal recourse is the most preferable model for design of international legal sub-regimes, if both the goals of the regime (and of international law as a whole) permit it and no outside constraints forbid it.
  • Functional analysis of disintermediation acts as a circuit breaker to ensure that interposition continues to be provided for where required to ensure international law’s function: protecting the individual.
  • While states continue to play an essential role in the international order, the post-interposition construction of International Internet Law leads to more effective and legitimate normation, is generalizable, and should be pursued, de lege ferenda in other regimes.
  • A post-interposition international law, as qualified by functionalism, is best able to respond to the regulatory challenges of an international order shaped by humanization as qualified by resovereignization. It does so by institutionalizing organically an allocation of roles, rights and responsibilities to states and individuals that is likely to lead to more effective and legitimate normative outcomes.  

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