Samenvatting
The attention devoted to so-called “computational law” has grown
exponentially over recent years. However, to date, there has comparatively
been much less discussion about the use of data-driven methods, including
artificial intelligence, in the processes and institutions of international law. This
paper discusses this in terms of “international computational law” and
examines what the implications could be if the normativity of technology
encounters the normativity of law in the context of international law-making
processes. Will it be a smooth and fortuitous alignment or a surreptitious
undermining of accepted legal practices—or something in between? To
critically engage with this question, a closer look is had at current and future
data-driven practices in international treaty-making, the identification of
international custom and international institutional lawmaking. Consequently,
three types of normativity (i.e., international legal, legal and technological) are
analyzed in this context, building on an analysis of the fundamental underlying
structure of law. This analysis of normativity leads to the conclusion that we
cannot simply assume that these types of normativity will align organically
when it comes to our international legal system. I therefore conclude this article
by suggesting that more research should be conducted into an adequate
conception of “international legal protection by design” to thoughtfully
consider how to safeguard legal protection in an increasingly
computationalized international legal order. This will be crucial if we want to
ensure that international law in the algorithmic age affords us legal protection
and that we design our global order with thoughtfulness, rather than encode
thoughtlessness.
exponentially over recent years. However, to date, there has comparatively
been much less discussion about the use of data-driven methods, including
artificial intelligence, in the processes and institutions of international law. This
paper discusses this in terms of “international computational law” and
examines what the implications could be if the normativity of technology
encounters the normativity of law in the context of international law-making
processes. Will it be a smooth and fortuitous alignment or a surreptitious
undermining of accepted legal practices—or something in between? To
critically engage with this question, a closer look is had at current and future
data-driven practices in international treaty-making, the identification of
international custom and international institutional lawmaking. Consequently,
three types of normativity (i.e., international legal, legal and technological) are
analyzed in this context, building on an analysis of the fundamental underlying
structure of law. This analysis of normativity leads to the conclusion that we
cannot simply assume that these types of normativity will align organically
when it comes to our international legal system. I therefore conclude this article
by suggesting that more research should be conducted into an adequate
conception of “international legal protection by design” to thoughtfully
consider how to safeguard legal protection in an increasingly
computationalized international legal order. This will be crucial if we want to
ensure that international law in the algorithmic age affords us legal protection
and that we design our global order with thoughtfulness, rather than encode
thoughtlessness.
| Originele taal-2 | English |
|---|---|
| Artikelnummer | 1 |
| Pagina's (van-tot) | 31-56 |
| Aantal pagina's | 26 |
| Tijdschrift | Communitas |
| Volume | 3 |
| Nummer van het tijdschrift | 1 |
| Status | Published - 2022 |
Bibliografische nota
Emilie van den Hoven is a PhD candidate at the CoHuBiCoL project under supervision of Prof. Dr. Mireille Hildebrandt and research and publication of this article was made possible by the European Research Council (ERC)under the European Union’s Horizon 2020 research and innovation programme
(grant agreement No 788734)