Academic journal article American University International Law Review

Challenges and New Frontiers: National Courts as the Frontline of International Law

Academic journal article American University International Law Review

Challenges and New Frontiers: National Courts as the Frontline of International Law

Article excerpt

I.INTRODUCTION

President Bachelet has provided a valuable tour of the challenges facing international law and the difficult hurdles confronting our political leaders. As an admirable trailblazer, she offers a mix of determination, grit, resourcefulness, innovation, and hope to meet these challenges. It is daunting, to say the least, for a judge to be asked to respond to a distinguished president. In this regard, I am very thankful for the principle of separation of powers and will stick to my knitting in offering a perspective from the judicial branch.

President Bachelet poses important questions to ask as we explore the frontiers of international law and urges our recommitment to the global system of governance.1 Asking these questions is fundamental, but as she suggests-and as I want to highlight- meeting contemporary challenges requires a multidimensional response, reaching beyond and below the traditional international order.2

To begin, this means developing new institutions that are outside the traditional order and that tap different approaches, ones not necessarily hide-bound by the state-centered legal order.3 Hugo Grotius, who laid the foundation for international law, emphasized that institutions must develop principles that lead to legitimacy.4 i illustrate this key aspect of international law with reference to one of the most challenging frontiers-the Internet.

Second, even as we work toward global solutions, we should redouble our efforts to expand bottom-up approaches by strengthening national courts as a foundation for international law and through rule of law diplomacy. National courts are the front line of international law.5

Let me turn, then, to the Internet. One of Grotius' "most impressive contributions" was to eschew ad hoc decision-making in favor of "principles that would capture the needs of the world in a given time" and ensure legitimacy in decision-making.6 Although Grotius may not have envisioned the phenomena of the Internet and the World Wide Web, the Internet illustrates this challenge in real time.

Apropos of the conference theme-frontiers in international law- the Internet represents both a technological and legal frontier: it is, in short, a game changer.7 Although one might argue that the world faced a similar challenge with the telegraph-sometimes called the Victorian Internet-or the telephone, I suggest that the Internet differs dramatically in the speed, scope, and impact of its technological changes.8

II.JURISDICTION OF THE INTERNET

To say the Internet is ubiquitous understates its reach. It gives voice to political and civic speech, commercial transactions, debates about human rights and state power, cultural sharing, friends and frenemies, while at the same time it is a platform for cybercrime, sexual exploitation, terrorism, hate speech and more.9 With more than 3 billion users worldwide, the Internet knows no borders.10 To be sure, physical aspects of the Internet, such as servers, reside in various states, and "the cloud" is not a stateless creation hanging out in cyberspace.11 But in so many respects, the lid comes off traditional principles of territorial jurisdiction, national privacy, speech and criminal laws, and legal autonomy based on geographical boundaries in the physical world.12

As we enter an era where the pace of change is exponential, and the reach of the Internet is global, yet decentralized in nature, the need for global governance and legitimacy is heightened.13 Global decision-making regarding Internet governance represents a new frontier because, most significantly, it has emerged from the expert technical community and not from the traditional sectors of government or established international organizations.14 This phenomena highlights the growing role for non-state actors, such as the relatively novel "multistakeholder organizations," alphabet-laden groups like ICANN, the Internet Corporation for Assigned Names and Numbers, the World Wide Web Consortium, and the Internet Engineering Task Force, which develops standards for the web. …

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