It’s easy to assume that only ‘evil’ people commit atrocity. And it’s equally easy to imagine the victims as ‘good’ or ‘innocent’. But the reality is far more complex. Many perpetrators are tragic. They may begin as victims. Victims, too, may victimize others. These victims are imperfect. Some victims survive – and some even thrive – because of harm they inflict.
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It is said in the domestic practice of law that the facts are sometimes more important than the law. Advocates often win and lose cases on their facts, despite the perception that the law’s formalism and abstraction are to blame for its failures with regards to delivering justice.
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With Scotland voting on independence on 18 September 2014, the UK coalition government sought advice on the relevant law from two leading international lawyers, James Crawford and Alan Boyle. Their subsequent report has a central argument. An independent Scotland would be separatist, breaking away from the remainder of the UK. Therefore, the latter (known as restUK or rUK) would be the continuator state – enjoying all the rights and duties of the existing UK, while Scotland would be new state having none of rUK’s rights and especially no membership of any international organizations it enjoys now as part of the UK. The bargaining power of rUK as to what it might concede of the UK’s rights would be complete, e.g. with respect to a common currency. This legal opinion has created a confrontational atmosphere around the referendum vote and caused anxiety among Scottish voters about to ‘jump into the unknown’.
It is essential to unpack the distracting complexity of the expert international law professionalism of this advice. Firstly, Crawford and Boyle gloss over the actual legal circumstances of the contract of union between Scotland and England, in particular that the Union was a bargain among powers equal in the eyes of international law at that time. More specifically, the England which, with Wales, concluded the Treaty of Union is exactly the same entity standing opposite to Scotland now as then (leaving aside the North of Ireland which has the option under the Belfast Agreement of leaving the UK by referendum).
There is no international standard, in the event of a dissolution of a union, which can provide any objective criterion to determine that Scotland is the breakaway entity. In international law, recognition of new states is largely a matter of the political discretion of existing states. It depends on an international consensus, or lack of it, where political preference may or may not trump any possibly objective standard of political legitimacy, e.g. self-determination by democratic consent. The vast amount of state practice which Crawford and Boyle’s legal opinion displays is misleading insofar as there is, in fact, no definitive legal marker of guidance. This is shown by the fact that England is the continuator state because it is larger than Scotland. Legally, there has to be a continuator state. But since this obviously cannot be Scotland, it must be England. Even Scotland assumes this to be the case.
It is necessary to focus upon an international legal history of the individual states, rather than the more general international law offered by Crawford and Boyle. The Anglo-Scottish Union displays a phenomenon that Linda Colley has referred to as the composite state. This is where two or more sovereign nations agree to merge their highest governmental level institution (parliament) into a single state made up of several nations – a state-nation – but other lesser local institutions might remain. In the Europe of the 15th to the 17th century this was a common phenomenon, the most celebrated being in Scandinavia, involving Sweden, Denmark and Norway in a variety of partnerships from the Kalmar Union (1397) onwards. The logic of these partnerships was that they were always open to renegotiation. Now, this is precisely what the English generously recognize in the Edinburgh Agreement. The logic of the composite state does not cover the many cases in which a core nation forms itself into a state and then jealously guards its territorial integrity against dissident minorities, which are then regarded as separatist and destructive of national unity. It is possible that an aura of this type of scenario runs through the legal opinion of Crawford and Boyle, although they have to accept the consensual context of the advice they are being asked to give.
The real issues facing Scotland have to be confronted on a basis of equality and mutual consent in accordance with the international law established as apposite for this case. These issues are a matter of history, not merely that of the 17th-18th century, but also the evolution of the 1707 Treaty of Union (implemented through separate Acts of Union passed in the Scottish and English Parliaments) to the very recent past – especially the Thatcher years and the neo-liberal revolution in English-dominated UK politics. It has to be recognized that there are profound differences of social philosophy now between Scotland and England around the issue of neo-liberalism and the defense of community. These provide good reasons to revisit that 1707 bargain. This revisiting should be on the basis of complete equality. The sharing of common institutions of the United Kingdom, such as the currency, would have to be negotiated after reaching an agreement in which neither side – as so-called continuator state – would have a higher standing.
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By Fleur Johns
Public international lawyers are forever in catch-up mode, or so it seems. The international legal appetite for ‘raw’ data of global life is seemingly inexhaustible and worry about the discipline lagging behind technology is perennial. There has, accordingly, been considerable energy devoted to ‘cybernating’ international law, in one way or another, or adapting the discipline to new possibilities posed by digital technology.
Much international legal writing concerned with computer and information technology (CIT) and global data flows has been concerned with developing law on these phenomena on the global plane. Scholars and practitioners of international law have, for instance, published important work on privacy and data protection and cyberwarfare.
Just as important, however, but receiving far less attention, are legal and equitable dimensions of the global data economy being envisioned by institutions such as the World Economic Forum. International law is often viewed, in this context, diminutively and technically: as a means of delivering on foregone conclusions and facilitating the realization of pre-agreed goals. Yet, as a recent paper in the London Review of International Law argued, there is much more at stake in the global laws surrounding data-gathering, data-mining and the monetization and use of datasets, than the technical assurance of frictionless interface and the protection of privacy. Whether with regard to global offshoring in the CIT industry, or global practices of data gathering and profit-seeking at the ‘bottom of the pyramid’, new modes of economic inequality are under construction, with law playing a crucial infrastructural role – a role which merits tougher questioning.
Another set of challenges for contemporary international lawyers arises from the turn to ‘big data’ — large-scale data mining and data analytics — for global governance. In the UN Global Pulse initiative, for example, the United Nations is mining digital data sources and using real-time data analytics to evaluate human wellbeing and vulnerability, and directing resources and policymaking attention accordingly. When states that are parties to the Convention on the International Trade in Endangered Species of Wild Fauna and Flora (CITES) gather to review the listing of animal and plant species for differing levels of treaty protection, they frequently act (in part) on the basis of species distribution modeling (SDM). This SDM will have been carried out by software implementing one among a number of possible presence/absence algorithms.
It is a routine preoccupation of international lawyers that global norms and public decision-making processes should be apparent to those whom they impact: transparency is today treated as a meta-principle of international legal order. Yet it is still unclear what ‘transparency’ could or should entail when decision-making processes in question are partially automated, use complex and dynamic algorithmic operations, and draw inputs from a range of public and private sources. In relation to SDM for CITES listing purposes, for instance, a recent report in Science suggested that the relevant software’s intricacies are not grasped by many scientist-modelers: there are ‘many in the SDM domain unable to interpret the original algorithms, much less understand how they were implemented in the distributed code’. One wonders what CITES decision-makers to whom SDM modeling outcomes are being delivered are making of this material, if many responsible for these models’ development are unable to interpret them satisfactorily. Another recent paper has drawn attention to the traps that big data analysis can present for policy-makers seeking up-to-the-minute insights on global populations’ health and wellbeing.
Public international lawyers will doubtless continue to pursue broad-ranging regulatory initiatives, regionally and globally, concerning cybercrime and data protection. Beyond these efforts, however, global policy-makers and international lawyers working in a far greater range of fields need to engage critically with the priorities, preferences and relations embedded in, or generated by, the software and hardware of global data gathering and analysis. Associations among co-patterners (or those correlated in some analytical pattern) may prove just as significant as those among co-citizens or fellow right-holders — if not more so — in the global operations of law.
Fleur Johns is a Professor in the Faculty of Law at UNSW Australia, Sydney and a contributor to the London Review of International Law, a new journal, published by Oxford University Press, which publishes highest-quality scholarship on international law from around the world; the first issue featuring Professor Johns’ article ‘The deluge’, discussing the significance of big data for public international law, is free to read online for a limited time.
The London Review of International Law publishes highest-quality scholarship on international law from around the world. Reflecting the pace and reach of developments in the field, the London Review seeks to capture the ways in which received ideas are being challenged and reshaped by new subject-matters, new participants, new conceptual apparatuses and new cross-disciplinary connections.
Oxford University Press is a leading publisher in international law, including the Max Planck Encyclopedia of Public International Law, latest titles from thought leaders in the field, and a wide range of law journals and online products. We publish original works across key areas of study, from humanitarian to international economic to environmental law, developing outstanding resources to support students, scholars, and practitioners worldwide. For the latest news, commentary, and insights follow the International Law team on Twitter @OUPIntLaw.
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