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"Does Digitalisation Create A New Type of International Law?"
“Does Digitalisation Create A New Type of International Law?”
18 January 2021
Digitalisation constitutes a key factor for change in various areas of law, creating challenges for legal regulation but also novel procedural and adjudicative possibilities. For international law, digitalisation could lead to change of a particularly fundamental nature. It could transform some of the cornerstones of the current international legal order. At a conceptual level, digitalisation puts a new spotlight on the classical dichotomy of public vs private regulation (including dispute resolution), while potentially contributing to an increasing hybridisation and an empowerment of private actors. This raises the question to what extent classical international actors and instruments are well-suited for regulating the digital sphere. Digitalisation also blurs the state-related territorial boundaries of legal regulation and state jurisdiction given that the relevant objects such as online activities and digital data sets are often not confined to state territories. This seems to lead to a novel understanding not only of territoriality – or even deterritorialization – but also of related concepts such as sovereignty, with the notion of “digital sovereignty” gaining traction. Moreover, digital developments push the boundaries of various sub-fields of international law such as human rights, trade and investment law, use of force and non-intervention. It puts into question whether the rules on the use of force and non-intervention can be adapted to issues such as cyberwar and interferences by digital means. For human rights, it provides, on the one hand, tools for major human rights violations and creates, on the other hand, structural challenges for the applicability of established rights to the digital context. As a result, we might witness the development of a parallel regime for digital human rights. In international trade law, digitalisation raises doubts as to whether the “old-style” rules and negotiation fora such as in the WTO context are fit for digital purposes or whether they are being replaced by a net of preferential trade agreements regarding digital trade. Taken together, such developments have the potential to transform the international order considerably. Will such changes lead to a new type of international law?
Mira Burri (University of Lucerne)
Théodore Christakis (Université Grenoble Alpes)
Rishi Gulati (Dublin City University)
Jan Klabbers (University of Helsinki)
Heike Krieger (Freie Universität Berlin, Berlin Potsdam Research Group)
Andrea Leiter (University of Amsterdam)
Cedric Ryngaert (Utrecht University)
Yuval Shany (Hebrew University of Jerusalem)
Nicholas Tsagourias (University of Sheffield)
Lukas Willmer (Humboldt University Berlin, Berlin Potsdam Research Group)
Dana Burchardt (Freie Universität Berlin, Berlin Potsdam Research Group)
Maria Varaki (King's College London)
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