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The International Rule of LawRise or Decline?$

Heike Krieger, Georg Nolte, and Andreas Zimmermann

Print publication date: 2019

Print ISBN-13: 9780198843603

Published to Oxford Scholarship Online: September 2019

DOI: 10.1093/oso/9780198843603.001.0001

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Ensuring Access to Information: International Law’s Contribution to Global Justice

Ensuring Access to Information: International Law’s Contribution to Global Justice

Chapter:
(p.344) 22 Ensuring Access to Information: International Law’s Contribution to Global Justice
Source:
The International Rule of Law
Author(s):

Eyal Benvenisti

Publisher:
Oxford University Press
DOI:10.1093/oso/9780198843603.003.0022

Abstract and Keywords

This chapter examines the role of international law in promoting indirectly global (and domestic) distributive justice. The focus on institutions and processes at the global level is grounded on the assumption that questions about the just allocation and reallocation of resources are ultimately resolved through processes of public deliberation (including through the involvement of courts). The author argues that the key to approaching a more just allocation of resources is by addressing the democratic deficits that underlie the skewed distribution (or the lack of redistribution) of assets and opportunities. He suggests that international law can play a role in the political empowerment of weak constituencies (within and between states). In doing so, international law can indirectly shape the distribution and redistribution of resources, in a manner that is more dignified and preferable to handing charitable contributions.

Keywords:   global justice, representation, international institutions, resources, redistribution

I. Introduction

One could understand the theme of this book—‘the rise or decline of international law’—as being grounded on the assumption that ‘the rise’ of international law is intimately linked to global justice, whereas its decline augurs global injustice;1 that more international law, or stronger adherence to its principles, means a more just world. This chapter partly challenges this assumption, arguing that there is nothing inherently just in more international norms and more international organizations. There is nothing inherently just in a law that is grounded in state consent but in fact represents the interests or values of the few, and the proliferation of state-made norms and institutions may be counterproductive from the perspective of global justice. The association of ‘the decline’ of international law with global injustice is clearer, although sometimes the rise of national constitutional law, even as a challenge to international law and a check on international organizations, can offer a much needed correction to international institutions and tribunals influenced by the powerful few.2 The question as to how international law can contribute to global justice therefore requires an assessment of what principles of international law are conducive to global justice, of which we would need more. This chapter seeks to address this question. It also examines contemporary challenges to such principles, challenges that reflect a ‘decline’ in the commitment to them.

How can international law contribute to global justice? In one sense, international law is about global justice—seeking ways and means to reduce inter- and intra-state conflicts and promote human welfare, given existing political, social, and economic constraints. International law has been used to address several specific areas of global (p.345) human concern such as the prohibition on the use of force unless in self-defence,3 the prevention and repression of crimes against humanity,4 the promotion of human rights and the granting of asylum to refugees and possibly to some types of migrants,5 the recognition of a duty to assist countries facing natural disasters,6 the regulation of labour markets,7 and the obligations to manage transboundary and global resources equitably and sustainably and to provide development aid.8 Several systemic approaches have focused on a global rule of law as promoting global justice, and on ensuring the accountability of global decision-makers under the approach of global administrative law.9 More critical voices have probed international law’s use as a tool of global injustice, having served to further the Empire’s domination of the New World—criticisms that are designed to discover the law’s blind spots and urge reform.10 Some voices seeking reform have focused on tweaking the concept of ‘sovereignty’ to insist on solidarity among sovereigns,11 while others have insisted on certain moral duties for states to mitigate the failures of the state sovereignty system,12 and to take into account the interests of foreigners.13

But how could international law contribute to ‘global justice’ in the sense that has captured the attention of moral philosophers in recent decades? The ‘global justice’ literature in moral philosophy focuses on justice among individuals rather than among states, and it often regards international law as part of the problem—not only in the colonial context but also as an inherently unjust order—rather than the key to the solution. Perhaps for the same reasons, international lawyers have by and large ignored the question of global distributive justice as being outside their purview.14 Questions (p.346) about the nature and scope of obligations that individuals, states, and international organizations in the affluent ‘North’ have towards the less privileged individuals in the ‘South’, and in general whether nations should regard the human flourishing of strangers as a matter of concern, are regarded by most lawyers as best left to political deliberation.15

In this chapter, I wish to highlight the role of institutions and decision-making procedures in promoting—indirectly—global (and domestic) distributive justice. This focus on institutions and processes at the global level is grounded on the assumption that questions of the just allocation and reallocation of resources are ultimately resolved through processes of public deliberation and contestation (including through the involvement of courts). Therefore, the question is whether law can be instrumental in ensuring the conditions for inclusive and open deliberation and contestation. Focusing on the limited opportunities of politically weaker constituencies to engage effectively in such interactions, I will suggest that the task of the law is to provide these groups and individuals with meaningful voice to more effectively stake their claims for domestic and global justice in the various decision-making fora. In other words, I wish to argue that the key to approaching a more just allocation of resources is not through the direct provision of concrete entitlements like Thomas Pogge’s global resources dividend16 or by providing justifications to those affected (as suggested by Rainer Forst),17 but by enhancing what Isaiah Berlin called the ‘liberty for’18 of those affected, by addressing the democratic deficits that underlie the skewed distribution (or the lack of redistribution) of assets and opportunities. My claim is that international law can play a role in the political empowerment of weak constituencies (within and between states). In doing so, international law can indirectly shape the distribution and redistribution of resources in a manner that is more dignified and preferable to handing charitable contributions to the poor and vulnerable. Just like the empowerment of labour through freedom of association, rather than by granting employees certain benefits, the enhanced voice for disadvantaged communities will not only increase their bargaining power, but also promote their sense of agency and enhance their dignity.19

This chapter claims that international law can and should create the conditions that enable the transformation of the debate about domestic and global distributive justice from the philosophical to the political by the enhancing the voice of the weak and the (p.347) disregarded.20 Although international law cannot replace the necessary political debate about what global justice means and how it ought to be implemented, its goal can and should be to contribute to creating inclusive frameworks for deliberation within which a meaningful political debate could take place between competing claims. A meaningful debate requires that all relevant communities can obtain and impart information about the possible outcomes of outstanding policies. Like the freedom of workers to associate, securing voice for the disregarded, while necessary, may also prove sufficient to promoting just outcomes. How can international law contribute to strengthening the voice of the disregarded ?

After outlining the claim that the key to global distributive justice is the empowerment of the politically weak, the chapter will describe the underlying connection between international law and the conditions that preclude the political debate about global justice. I will briefly argue that it is the current global political-legal structure that inhibits the political process whereby global justice considerations could be argued, weighed, adopted, and implemented. I will then suggest that international law could be part of the solution for those seeking to promote any version of global justice. The chapter will emphasize the importance of accessing data, information, and knowledge as key to participation and voice and hence necessary for effective political voice.

II. Provide hooks and not fish: the misguided focus on ‘justice’ as distribution of resources

Pogge’s ‘Global Resources Dividend’21 and other schemes for the redistribution of global assets, as well as well-wishing programmes such as the Bill and Melinda Gates Foundation22 or the Bill Clinton Foundation,23 have a very strong intuitive appeal. But this appeal is misguided even if it is effective. Its main fault lies in its disregard of agency. It leaves decision-making power in the hands of Northern governments, the Clintons, and the Gates. It leaves the aid recipients in their state of eternal dependency, in the hope that the aid they receive fits their needs and will continue. In other words, the global redistribution of material goods is insufficient because it perpetuates the dependency relationships and denies the agency of the recipients. It ignores the right to individual and collective self-determination of the beneficiaries.

Worse, the assets-redistribution approach is also unnecessary for achieving a more just allocation of resources and opportunities. Arguably, the redistribution of meaningful voice in decision-making venues where decisions are taken about resource management and allocation, about regulation, etc is not only necessary but also sufficient (p.348) to levelling the political playing field and thereby to levelling opportunities for individuals and communities to influence outcomes and obtain their proper share of global resources. Therefore, the key to approaching a more just allocation of resources is not by devising direct distributive justice tools, but rather by analysing the inherent global democratic deficits that underlie the skewed distribution of assets and opportunities and then seeking to devise means to correct these deficits.

Take, as one seemingly minor illustration of the problem, the European Community’s food safety regime.24 The European Commission’s stringent food safety requirements constitute a major barrier to exports entering the European market from developing countries that depend on these exports. The European safety requirements, writes Morten Broberg, have been ranked as one of the foremost factors affecting exports of agricultural and food products from developing countries.25 Broberg shows the one-sided regulatory process that imposes ‘prohibitively strict criteria’, shifting all the burdens on the growers in developing countries, burdens that in his view are ‘disproportionate’ and ‘excessive’. As a monopsonic market, Europe can dictate the rules. Shifting to more transparent regulatory processes that provide opportunities for growers to have voice is likely to reduce production costs and increase welfare in developing countries as a matter of right, not charity. From this perspective, the European Union (EU) trumpeting its commitment to assisting these very countries rings hollow.26

Among the global justice philosophers, Rainer Forst has come closest to this realization. In his insightful book,27 he elaborates on the basic right to justification that ‘expresses the demand that there be no political or social relations of governance that cannot be adequately justified to those affected by them’.28 He emphasizes not only the need to provide reasons for those affected by a decision, but also the need to hear them out, thereby having them participate in common decision-making.29 His emphasis is on persuasion by deliberation, grounded in his faith in ‘the forceless force of the better argument or rather the force pushing toward the better argument’.30

(p.349) But the assumption that the decision-maker will be convinced by the better argument applies only to decision-makers that are impartial, such as the ideal judge or the expert. Once this assumption is questioned, however, more robust protection of interests is needed. This is why Forst then invokes the concept of consent. But how can consent be facilitated in global decision-making arenas? Suggesting a concept of ‘minimal transnational justice’ as a middle course between global and international justice, Forst calls for ‘minimally fair transnational terms of discourse and of cooperation’ where national communities are participants ‘of (roughly) equal standing in the global economic and political system’, with ‘a (qualified) “veto right” of the worst off’ in matters of ‘basic justice that touch the participatory minimum’.31 This, of course, calls for definitions of the various components (‘the worst off’, ‘basic justice’, ‘the participatory minimum’), as well as paying attention to the complex background conditions that could ensure the ‘(roughly) equal standing’ of all those affected by those decisions.

But more importantly, this suggestion leaves the worst off, and any other affected individual, in the reactive position of someone who may have the opportunity to consent, but never the opportunity to initiate, to set the agenda, to upset the existing order because it is unjust. A reactive, even if not entirely passive, right to justification is therefore not enough to ensure voice and usher in globally just policies. Instead, the key to global justice is inclusive participation in decisions—involving all the parties in decisions that affect them. Can international law be instrumental in this endeavour? Before outlining a hesitant positive response, I wish to explore the main structural conditions that impede inclusive political participation in domestic and global decision-making fora, conditions that arguably prevent the just allocation of resources. Understanding these conditions is the first step towards devising institutional remedies that might indirectly contribute to global (and domestic) justice.

III. The negative contribution of international law to global justice

This section explores the systemic democratic failures in contemporary national and international decision-making venues that result in the disenfranchisement of politically weak stakeholders. I will suggest that international law is part of the problem, as it endorses the global arrangement of powers and competences among states, which is (p.350) currently undermining the political agency of many individuals. Understanding this role of international law may offer guidance on its potential role in promoting global (and domestic) justice through its various interlocutors, primarily courts and other reviewing bodies.

To do so, this part identifies four factors that have bearing on the possibility of deliberating on global justice issues (let alone promoting them). These four aspects contribute to the diminishing voice of diffuse voters in public decision-making. Exposing the complicity of international law to the rise of these four factors is key to assessing the ways by which international norms that could offer responses. While international law is part of the failing structure of global governance today, it can be instrumental in providing the necessary response.

As will be outlined below, there are four principal factors that contribute to the diminishing voice of individuals in public decision-making processes. All of them result from structural failures of the current global system of allocating competences to states, a system that faces challenges in our era of global connectedness, interdependency, and the rise of new information and communication technologies. Two of those factors relate—counterintuitively perhaps—not so much to the global sphere but more to the domestic sphere. These are two aspects of the contemporary global legal order that affect the opportunities of citizens within their respective states. The first aspect is the law’s shaping of the citizens’ possibilities to exit their respective countries and enter other countries. The second aspect is the law’s crude way of separating out spheres of decision-making along the political boundaries of states. Together, these aspects limit people’s ability to take part in public decisions affecting them, and hinder their ability to demand wealth distribution and redistribution to promote collective welfare. It is not difficult to prove that these two aspects benefit some stakeholders and burden others, and the discrimination that ensues between the competing groups creates global injustice. The third principal way in which international law creates and maintains global inequalities is its fragmented nature, which divides potential actors who demand justice and thereby silences them. The last determinant factor is the growing power of private actors—Facebook, Google, and so forth—whose control of information and communication technologies and of vast amounts of data poses a challenge to state authority and hence diminishes the space for democracy as well as for individual and group agency.

1. International law controls stakeholders’ options for ‘exit’ and ‘voice’

The debate about global justice that sets it apart from domestic justice, similarly to the debate about the domestic legal order that often considers it entirely distinct from the international legal order, obscures the contribution of the domestic order to international injustice and vice versa. One cannot speak about the domestic legal and political sphere without taking into account the global context in which it is embedded. The (p.351) deep insight that Albert Hirschman contributed to our understanding of the dynamics of any human relationship—be it a company, a marriage, or a state—is that it is myopic to ignore the exit options that members have: that in addition to ‘voice’ within the relationship, people must also have the option to ‘exit’ the relationship.32 Relationships within a marriage without the opportunity to divorce are not the same as those where each of the partners can terminate it at will. Having no way out of the relationship seriously undermines the voice of those who are forced to remain inside. For the same reason, the unequal allocation of the right to exit one’s state also shapes the parties’ relative voice as a citizen. Moreover, someone who has more exit options than others will be less likely to invest in promoting the welfare of the group of which s/he is a member.33 Since democracy thrives on the collective action of its many members, and in fact is constantly defined by that activity,34 too much exit could possibly harm the community due to underinvestment in promoting its interests by those who have alternatives (we sometime note this aspect when talking about ‘brain drain’).35 For democracy to flourish within states, we can conclude that there has to be an optimal level of exit options—not too few, not too many—and that they should be allocated on an equal basis among voters. For the same reason, there has to be an optimal level of entry options—not overly restricted, not completely closed, and also non-discriminatory. Without opportunities for entry (another state), the right to exit is meaningless, and vice versa.36

By necessity, international law regulates the interface of exit/entry as it regulates the movement of individuals. It is international law that recognizes states’ wide discretion to allow entry, subject to the recognition (but not enforcement) of the right of exit and the right of entry as individual human rights. To the extent that individuals can rely on their combined exit/entry rights, their voice is secured, as compared to a situation where the ruling regime knows that their options of leaving the country are limited. The availability of these rights shapes the voice that right-holders have (or do not have) in their respective countries.37

(p.352) Whereas international law limits the exit options of most voters, it enhances the actual and virtual exit opportunities of some voters, such as investors.38 It is international law that is responsible for the invention of the multinational corporation (MNC) that is on the one hand independent of its foreign parent company, but is simultaneously recognized as owned by a foreign parent company and hence immune from taking by the state of incorporation. This invention—harking back to the so-called Cobden Treaty of 1860 between France and the United Kingdom39—is perhaps no less momentous for global business than the very invention of the company,40 for it is the key to the ability of MNCs to evade political boundaries and circumvent their regulatory regimes. Moreover, if the MNC is operated from a third country, the tax laws of both the host state and the parent company’s home state will not apply, and the entire operation could thus benefit from ‘tax havens’ without contributing to the budgets of either the host or home state, thereby not only pre-empting the political demand for redistribution but also depleting the supply of necessary resources for implementing domestic and global justice policies.41 As Ronen Palan explains, ‘[o]nce these legal persons could reside in different locations, there was always the risk that they would go shopping for the best bundles of regulation they could find’,42 picking and choosing from what the different jurisdictions offer them.43 By increasing the real or virtual exit options of owners (and of their capital or the income thereof), these ‘freedoms’ of movement and incorporation also increase the owners’ voice in all relevant jurisdictions and lower their incentives to contribute to the welfare of the community, while at the same time diminishing the voice of those whose exit options are more limited, as well as their means of promoting community goals.

The result of the skewed exit options—and the virtual immunity of mobile capital from national regulation—is that global justice initiatives (and many domestic justice initiatives) now depend on the discretion of the mobile elements in the global community. And to the extent that these promote global justice initiatives, they do so as a measure of charity rather than as of right. The routinization of private charity intensifies dependency, political disempowerment, and the lack of ownership over one’s life opportunities.44

(p.353) 2. International law and the fortuitous allocation of spheres of policy-making

Current global interdependencies are responsible for the lack of fit between the group that has the right to vote and the group that is affected by the decisions made by, or on behalf of, the first group. The basic assumption of state democracy—that these two types of stakeholders overlap—was perhaps correct in the world of separate mansions, when territorial boundaries defined not only the persons entitled to vote but also the community affected by those choices. Because of that fit, exclusive state sovereignty was both efficient and democratically just. Today, however, the policies of one government affect foreign stakeholders on a regular basis, without the latter having the right to vote for that government or otherwise being able to influence its decisions. The domestic political process becomes irrelevant as a way to secure community goals.

Moreover, the political boundaries raise the costs for the majorities within a discrete group of states to unite against a common external rival—a powerful foreign state or an even mightier and more ruthless MNC—that practises ‘divide and rule’ strategies against them, when seeking, for example, concessions for its investment. From this perspective, the spectacular success of the decolonization movement made the numerous new states vulnerable to a new type of exploitation by a handful of powerful states or other global actors. Weaker states that find it difficult to bundle up their disparate preferences submit to the dictates of the few powerful actors and the global institutions that they have created. As a result, the space for discretion that many sovereigns (and hence voters) are left with is severely restricted. The promise of ‘sovereignty as freedom’ has not materialized for many countries, which experience their traditional or hard-won formal freedom as having erected new types of walls that separate them from each other and from the actual public or private venue of deliberation and decision-making.

3. International law as a fragmented legal space

State authorities have in recent years delegated or surrendered regulatory functions to a fragmented tapestry of various forms of public and private, formal and informal, international and private bodies.45 The pressure to privatize has further shrunk the space for political deliberation,46 and all too often the move to such global regulatory bodies has—to varying degrees—eroded the functionality of public participation in politics, traditional constitutional checks and balances found in many democracies, and other domestic oversight and monitoring mechanisms of executive discretion.47 (p.354) The multiplicity of single-issue institutions limits the ability of many state executives of medium-sized or small states, and certainly of developing states, to create coalitions that could withstand the domination of the powerful states who are the masters of the treaties. Moreover, with global regulation becoming ubiquitous, heavily influenced by capture by special domestic interest groups that thrive on asymmetric information, the question of voice of individuals in global bodies arises. Also the voice of diffuse voters in domestic bodies diminishes when the states’ ability to resist a foreign actor is effectively lost because a discrete group of states finds it impossible to unite against a common external rival—a powerful foreign state or an even mightier and more ruthless MNC—that practices ‘divide and rule’ strategies against them, when imposing its demands on them.

4. The rise of private power (and data as the new global resource)

In addition to the traditional influence of capital on decision-makers, we are witnessing a revolution in governance as a consequence of the availability of new information and communication technologies. The emergence of giant firms such as Facebook, Google, Twitter, and Amazon—that provide the technologies upon which humanity has come to depend—as well as their accumulation of vast amounts of data poses a challenge to state authority and hence diminishes the space for democracy and individual and group agency. There is growing evidence that these social media companies are able to manipulate public opinion and that they regularly do so, or at least allow others who use their services to do so.48 Their current status as private actors and their claim to ownership of their algorithms and their vast amounts of data has been met with weak legal responses and no concerted attempt to curtail their freedom.49

5. Summary: international law and global injustice

The four contributing factors to the diminishing human agency in the public space converge to pre-empt deliberation on global (and domestic) justice issues that could transform the philosophical debate into a political one. International law is very much a part of the system that is responsible for these four factors. Hence the call for perfecting (p.355) that system is very much a call upon international law to offer solutions. The question that remains is how international law can develop in ways that respond to these inherent failings of the state system.

IV. The potential positive contribution of international law to global justice

The various misalignments between decision-makers and those affected by their decisions and the rise of private power generate problems of asymmetric information flows between decision-makers and voters. Voters receive less or distorted information about the choices they have and about the motivations of decision-makers, and they also find it difficult to convey their views and preferences to decision-makers and participate in decision-making. Their ability to form opinions on the basis of reliable information and act upon it in the polls is inhibited. Although the information revolution has brought a wealth of data within reach of our fingertips, the ability of individuals to make sense of this data remains limited.50 Anthony Downs’s profound observation about asymmetric information as the key challenge of democracy remains true even in our hyper-connected world. His 1957 prediction, namely that ‘a world where perfect knowledge prevails’ will never materialize, remains accurate.51 Therefore, as Downs observed, governments do not assign to ‘the preferences of each citizen exactly the same weight as those of every other citizen’:52 quite an understatement that continues to resonate. Recent experience suggests that the communication revolution as such is no panacea.53 The new communication tools have created new gaps, particularly among groups of voters, empowering those who can easily rally behind specific causes or form almost virtual political parties.54 It remains beyond voters’ capacity to assess and act upon the wealth of data—often deliberately skewed—that is accessible to them, and people tend to rely on proxies in forming their opinions. Individuals unconsciously process the wealth of information in ways that fit their predispositions, a process known in psychology as motivated reasoning.55

(p.356) 1. The discipline of accountability

Domestic public law has sought to respond to the problems of asymmetric information by compelling governments to release information and thereby become transparent and accountable, the assumption being that the release of new information will level the political playing field between stakeholders. Transparency then reduces the power of the ‘agents’ (the policy-makers) by making more information available to the ‘principals’ (the public, voters); further citizen participation mechanisms allow the public to take action and ensure that their agents deliver outcomes closer to their preferences.56 Global administrative law can be seen as an approach to adapting domestic public law tools to global governance bodies.57 The imposition of accountability obligations on global bodies has not been easy, given the limited incentives of actors at the global level (primarily state executives and special interests) to share decisional authority. The executive or legislative branches of influential state parties to international organizations, for example, are well positioned to assess their behaviour, impose sanctions (eg withhold budgetary allocations), and employ a variety of political and legal mechanisms to exert pressure on them to adopt policies and programmes that are aligned with the priorities and interests of these member states. High-profile international non-governmental organizations (NGOs) may affect international organizations’ behaviour by taking advantage of their access to global media outlets or knowledge of international organizations’ internal decision-making processes. Special interests, such as the tobacco industry, have learnt to exploit transparency and citizen participation mechanisms to burden or slow adverse regulation.58 Imposing the discipline of accountability on global bodies has gained some success, but it certainly has not reduced all the information asymmetries and ensured meaningful voice for all and always.

Take, for example, the EU’s Impact Assessment Guidelines that require the EU to take into account the effects of EU policies on developing countries,59 and its evolving practice of commissioning Sustainability Impact Assessments (SIAs) to examine the possible impacts of trade and investment agreements on developing countries.60 The European Commission has stipulated that in conducting such SIAs during trade (p.357) negotiations they ‘will pay particular attention to wide consultation and involvement of civil society’.61 By contrast, Lorand Bartels cites problems with the process ‘going to the heart of the impact assessment process as it is currently constituted’,62 and recommends ‘the involvement of developing countries and civil society, as well as any developing country groups specially affected by the policy at issue’.63

The EU guidelines may be too timid a beginning to provide a space for collective deliberations concerning the appropriate global justice aspects of a new global legal order. It is certainly a modest proposal that mitigates some of the failings of the current system but without unravelling it, as a possibly non-controversial lowest global common denominator as regards global justice: the idea that there should be justice in the manner whereby public decisions affect the rights and interests of others.

2. Judicial (and other) review

The availability of national and international courts and other reviewing bodies offers alternative venues for collective decision-making. These bodies also generate information, often appreciated by the public as more reliable than that produced by the executive.64 The resulting global checks and balances can potentially reduce some of the difficulties of asymmetric information and voice and thereby promote redistributive policies (both domestically and globally).

If we identify the lack of political pressure to maintain the achievements of the welfare state and promote global justice with internal and external democratic failures, perhaps the key to resisting pressures and building countervailing processes lies with ‘de-fragmenting’ and ‘counter-capital’ institutions.65 The natural and traditional candidates for such bodies are domestic courts and (at least some) international courts. To the extent that these courts are independent from captured state executives, they could curb the excessive power of capital and enhance the procedures that offer space for majoritarian voices (indeed, calling courts ‘counter-majoritarian’ is deeply misleading in a political system controlled by narrow interest groups); a rebalancing of political power is possible. Because judicial bodies need to be coherent to claim legitimacy and are capable of recreating a systemic vision of the domestic and international legal orders (and strengthening the links between the domestic and the international), these bodies have the potential of limiting the possibilities of exiting the law, and of bundling up issues for institutions to decide. Since they require information from various sources to form an independent policy, they tend to lower the requirements with regard to access for (p.358) petitioners and third parties. Those who are not represented during the negotiations and drafting of the law often have their day in court.

In this context, it is noteworthy that in recent years, and perhaps in response to the globalization of markets and policy-making, national courts have begun to coordinate their jurisprudence along several aspects of public life, from security through gatekeeping and environmental and health-related policies, to controlling international organizations.66 Being relatively immune to capture by global capital and having the capacity to coordinate their jurisprudence with otherwise competing jurisdictions, courts can ‘reclaim democracy’ at the domestic level and press for the creation of representative venues within global bodies.67 The new judicial assertiveness has provided legislators more opportunities to weigh in on global issues and thereby respond to the grassroots demand for voice.

Regional courts have also contributed to this effort, especially by acting on behalf of several states to fend off ‘divide and rule’ strategies that affected the state’s ability to withstand external pressure. The European Court of Human Rights (ECtHR), like other international tribunals, can help resolve the collective action problems of states that are unable to overcome the ‘sovereignty trap’, and rebuff a powerful state or a multinational company that seeks to force the weaker state to comply with its demands.68 The Court of Justice of the European Union (CJEU) has been quite successful in this context, imposing European legal standards on sporting associations that sought insulation from public law obligations.69 Most conspicuously, it led the way in resisting the UN Security Council’s counter-terrorism measures.70 The ECtHR insisted that international organizations cannot hide behind their immunities under international law to evade the employers’ duties under national labour laws.71 Such acts indirectly provide positive spillover effects, as these standards benefit other societies. But courts can also be effective in a more direct manner. For example, most recently, the CJEU insisted that the Council must not ignore the rights of foreign communities when signing treaties with foreign governments.72

Moreover, courts can also resolve collective action problems by moving the law forward so that it reflects collective interests.73 Several decisions of international tribunals have created linkages between trade and the environment, investments and human (p.359) rights, showing how treaties can be thickened and the space for politics widened within institutions where initially silenced parties can have voice. These courts can promote policies that take into account the interests and wishes also of those not represented at the negotiation table or the treaty-signing ceremony. Indeed, in their judgments international tribunals have promoted human rights and the sustainable allocation of maritime resources, and redefined global resources as shared, thereby prodding state parties to take each other’s interests into account.74

As domestic public opinion and legislators become increasingly aware of the growing importance of global capital and the attendant growing pressures on domestic political space, they tend to provide much needed support for increasingly assertive domestic courts. This has been the case not only in developed democracies in Europe, but also in several developing countries. The famous judgment of the Indian Supreme Court in Novartis v The State of India (2013),75 which interpreted India’s trade-related obligations narrowly, was both a culmination of case law that ventured to intervene in matters affecting the state’s international commitments,76 as well as a model for other national courts to emulate.

That national courts are a force to be reckoned with can be inferred from the reaction to the budding efforts by powerful states that are seeking to insulate investments from the jurisdiction of national courts. The current effort—in the so-called ‘Mega Regional agreements’ such as the Trans-Pacific Partnership—is to extend investors-state dispute settlement (ISDS) processes beyond investment to also cover trade-related disputes. It may well be that this recent assertiveness of national courts is the ‘problem’ that the ISDS hopes to resolve. What seems to policy-makers and their constituencies to be assertiveness—promoting democratic deliberations—is viewed by foreign stakeholders as barriers to trade. No doubt, the Novartis v India judgment must have added to the determination of Northern pharmaceutical companies to offer the ISDS as a system that would nullify the Novartis precedent and curb its potential ramifications around the developing world.77

Indeed, much as international law is responsible for global injustice, so are national and international courts that in the past took part in creating the current system, not only by developing and applying international law but also by developing choice of law norms, including the rules relating to tax liability, that have facilitated the evasive (p.360) possibilities available to MNCs and the immunity of capital from national regulation.78 As part of the problem, they can also become part of the solution.

3. Access to ‘private’ big data

These ‘accountability technologies’, however, assume that public bodies have information, which they can and must share. This assumption has been challenged by the rise of new information and communication technologies that allow a handful of companies to amass more data than most state governments will ever have or have the ability to make sense of. These companies govern, in the sense that their algorithms affect our choices, and through their ability to observe and assess our behaviour, they can manipulate our preferences by prioritizing the information that we will be exposed to and by the sophisticated use of behavioural psychology. Both algorithms and data, they claim, are their private property,79 immune to public interference.

The role of law, including international law, in this context is clear. The right of access of individual stakeholders to an aggregate and anonymized version of data held by public and private global bodies must in principle be free, and free from manipulation and pollution: access to big data holds the potential of reducing the current acute informational problems. Processing the huge amounts of data could provide information about both private and public actions, their motivations and consequences. This knowledge can then empower the various actors to take political action.80 The data could enlighten us about ourselves, and instruct us on matters like how to improve our health, avoid car accidents, or design more accessible and efficient markets. The data could also suggest areas for attention and perhaps regulation where it is lacking. Big data generated by the public cannot be treated as entirely owned by those who store it. Rather, they are obliged to share the data, even if at cost.

Often, when refusing to share their data, corporations rely on the users’ consent to their retention and disclosure policy. Indeed, users who register for the services of big data corporations are usually required to consent to the corporation’s policy of collection, use, disclosure, retention, and protection of personal information. But how much weight should be accorded to such consent? Because many of these corporations hold considerable market power, potential users do not have any real alternatives to obtain such services elsewhere, and therefore their consent cannot be viewed as freely given, nor can it justify withholding the data. This consent merely reflects the skewed market relations between the individual user and the mighty service provider. More importantly, corporations with a large market share become the market themselves: much more than a player, the corporation is rather the market maker, architect, and regulator. (p.361) Google, for example, is not merely a player in the search engine market, but rather the manufacturer of people’s daily access to knowledge. With this huge influence comes also the responsibility to investigate the implications for the users of the services they provide, and to enlighten the public about them.

Obviously, sharing the information as well as investigating it in-house would entail costs to big corporations. They would have to screen researchers’ applications, provide them with resources and training, and risk negative media coverage. Although these costs are not negligible, these are the responsibilities that come with the benefits of being a market maker, and they should be weighed against the potential public good unleashed with the release of the information.

Reducing asymmetric information is a public good. It calls for global efforts to allow access to privately obtained data. It also calls for the prevention of the ‘pollution’ of information flows by deceit and overload, not unlike the collective efforts needed to protect the environment. The close relationship between asymmetric information and global (and domestic) injustice may be another factor to spur legal responses.

Several governments have recognized the benefits of access to national data, and the rationale applies with equal force in the global context. In an Executive Order issued by President Obama in 2013, he acknowledged that ‘making information resources easy to find, accessible, and usable can fuel entrepreneurship, innovation, and scientific discovery that improves Americans’ lives and contributes significantly to job creation’. He therefore ordered that ‘the default state of new and modernized Government information resources shall be open and machine readable’.81 The Organisation for Economic Co-operation and Development (OECD) in 2015 and the EU in 2017 have also recognized the collective benefits arising from shared access to data. The EU has embarked on an effort to create a ‘Digital Single Market’ that is designed ‘to fully unleash the data economy benefits’.82

This utilitarian perspective is reminiscent of Grotius’s justification for opening the high seas to all:

If any person should prevent any other person from taking fire from his fire or light from his torch, I should accuse him of violating the law of human society, because that is the essence of its very nature … why then, when it can be done without any prejudice to his own interests, will not one person share with another things which are useful to the recipient, and no loss to the giver?83

Principles such as good neighbourliness84 or trusteeship for humanity85 strengthen this argument. Even the business model of social media providers such as Facebook (p.362) and Google, which is based on selling users’ data to advertisers, does not limit it being shared for other purposes, such as public uses including the monitoring of government action or academic research.86

4. Development aid on the data, information, knowledge axis

To facilitate the voice of the disregarded, it may also be necessary to commit resources to enhancing the capacity of certain disadvantaged groups in society to explore the vast data and make sense of it. This requires the allocation of educational services and other tools. One such example is the Codex Alimentarius Trust Fund (CODEX), designed to help developing countries in transition to increase their participation in the work of CODEX (which establishes food safety and quality standards and fair practices in food trade).87 Another example is the African Legal Support Facility (ALSF), hosted by the African Development Bank, which has been supporting African governments in the negotiation of complex commercial transactions since 2010. The ALSF is an organization dedicated solely to providing legal advice and technical assistance to African countries.88 Michal Gal has shown that regional competition law agreements could offer an effective tool for developing countries seeking to improve antitrust enforcement.89 Here, again, the redistribution of hooks is much more respectful of developing communities than the distribution of fish. Technology transfer such as that envisioned under Article 66(2) of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) might prove themselves as potentially empowering and democratizing.90

(p.363) V. Conclusion

While international law cannot replace the necessary political debate about what global justice means and how it should be implemented, its goal can and should be to contribute to creating inclusive frameworks and venues within which the political debate about the just allocation and reallocation of resources could take place in a meaningful way. The political debate will be meaningful only if communities have access to data, information, and knowledge, and the wherewithal to engage in deliberations on decisions affecting them. Unequal political power may be at least somewhat compensated by judicial and other review bodies. Unfortunately, the new information and communication technologies that make it possible to bridge informational gaps are the same technologies that are being used by various state and non-state actors to limit state authority and diminish the space for democratic deliberation and accountability. As we know from history, however, these recent challenges may well prove momentary and eventually prompt the rise of international law designed to secure the necessary space for inclusive deliberations.

Notes:

(*) I wish to thank Hanoch Dagan, Tsilly Dagan, Olga Frishman, Michal S Gal, Sandy Kedar, Doreen Lustig, Faina Melman, and Henning Grosse Ruse-Khan for their helpful comments and Alon Abramovich for excellent research assistance. Research for this essay was supported by the European Research Council Advanced Grant No 323323.

(2) Eyal Benvenisti and George W Downs, Between Fragmentation and Democracy: The Role of National Courts (Cambridge University Press 2017) 56–65, 149–65.

(3) Charter of the United Nations (adopted 26 June 1945, entered into force 24 October 1945) 1 UNTS XVI (UN Charter) Art 2 (4).

(4) Rome Statute of the International Criminal Court (adopted 17 July 1998, entered into force 1 July 2002) ISBN No 92-9227-227-6 Art 7.

(5) Convention Relating to the Status of Refugees (adopted 28 July 1951, entered into force 22 April 1954) 189 UNTS 137 (Refugee Convention).

(6) On this duty: Kigab Park, ‘The Law on Natural Disaster’ in Eyal Benvenisti and Georg Nolte (eds), Community Interests Across International Law (Oxford University Press 2018).

(7) For a description of how the World Trade Organization shapes national regulation: Gregory Shaffer, ‘How the World Trade Organization Shapes Global Governance’ (2015) 9 Regulation & Governance 1.

(8) For the development of international law on transboundary ecosystems: Eyal Benvenisti, Sharing Transboundary Resources (Cambridge University Press 2002) 156–200.

(9) For a review of community interests in international law: Benvenisti and Nolte (n 6); Bruno Simma, ‘From Bilateralism to Community Interests in International Law’ (1994) 250 Recueil des cours 217.

(10) eg: Sundhya Pahuja, Decolonising International Law: Development, Economic Growth and Politics of Universality (Cambridge University Press 2011); Anthony Anghie, Imperialism, Sovereignty and the Making of International Law (Cambridge University Press 2007); Jochen von Bernstorff, ‘International Law and Global Justice: On Recent Inquiries into the Dark Side of Economic Globalization’ (2015) 26 European Journal of International Law 279; Doreen Lustig, The International Veil of Corporations: The History of Corporate Regulation in International Law (forthcoming, Oxford University Press 2019).

(11) Nicolas Politis, ‘Le probléme des limitations de la souveraineté et la théorie de l’abus des droits dans les rapports internationaux’ (1925) 6 Recueil des cours 1, 5–6; Georges Scelle, Précis de droit des gens: principes et systématique, vol 2, 1 (Recueil Sirey 1934); generally: Rüdiger Wolfrum and Chia Kojima, Solidarity: A Structural Principle of International Law (Springer 2010).

(12) eg: Ronald Dworkin, ‘A New Philosophy for International Law’ (2013) 41 Philosophy & Public Affairs 2, 20–22.

(13) eg: Eyal Benvenisti, ‘Sovereigns as Trustees of Humanity: On the Accountability of States to Foreign Stakeholders’ (2013) 107 American Journal of International Law 295.

(14) For exceptions: Stephen Ratner, The Thin Justice of International Law: A Moral Reckoning of the Law of Nations (Oxford University Press 2015); Allen Buchanan, Justice, Legitimacy, and Self-Determination: Moral Foundations for International Law (Oxford University Press 2003).

(15) Claiming that there is no burden of justification between states: Thomas Nagel, ‘The Problem of Global Justice’ (2005) 33 Philosophy & Public Affairs 113; however, proposing a theory of global justice whose main elements are the protection of basic human rights worldwide: David Miller, ‘National Responsibility and Global Justice’ (2008) 11 Critical Review of International Social and Political Philosophy 383.

(16) Thomas Pogge, World Poverty and Human Rights (Polity Press 2002). It was adopted by the Committee on Economic, Social and Cultural Rights (CESCR), which expects member states to contribute 0.7 per cent of their GNP for development cooperation.

(17) Rainer Forst, The Right to Justification: Elements of a Constructivist Theory of Justice (Columbia University Press 2012).

(18) Isaiah Berlin, ‘Two Concepts of Liberty’ in Isaiah Berlin, Four Essays on Liberty (Oxford University Press 1969) 16, 16–34.

(19) Miriam Ronzoni, ‘Two Conceptions of State Sovereignty and Their Implications for Global Institutional Design’ (2012) 15 Critical Review of International Social and Political Philosophy 573, 580 (claims that ‘[v]irtually all liberal societies are characterized by a package of institutions and policies aimed at promoting different variations on, and degrees of, a mixed model of freedom’).

(20) On ‘the problem of the disregard’: Richard B Stewart, ‘Remedying Disregard in Global Regulatory Governance: Accountability, Participation, and Responsiveness’ (2014) 108 American Journal of International Law 211.

(21) Pogge (n 16).

(22) Bill & Melinda Gates Foundation, <www.gatesfoundation.org> accessed 8 December 2017.

(23) Clinton Foundation, <www.clintonfoundation.org/> accessed 8 December 2017.

(24) Food Safety: Overview <ec.europa.eu/food/overview_en> accessed 8 December 2017.

(25) Morten Broberg, ‘European Food Safety Regulation and the Developing Countries: Regulatory Problems and Possibilities’ 3 (Danish Institute for International Studies Working Paper September 2009) <static-curis.ku.dk/portal/files/15584884/PDF> accessed 22 July 2018.

(26) Most probably, the food safety regime violates these commitments: Broberg (n 25) 36–38; also: Consolidated Version of the Treaty on the Functioning of the European Union (9 May 2008) OJ C115/47, Art 208:

  1. (1.) Union policy in the field of development cooperation shall be conducted within the framework of the principles and objectives of the Union’s external action. The Union’s development cooperation policy and that of the Member States complement and reinforce each other. Union development cooperation policy shall have as its primary objective the reduction and, in the long term, the eradication of poverty. The Union shall take account of the objectives of development cooperation in the policies that it implements which are likely to affect developing countries.

  2. (2.) The Union and the Member States shall comply with the commitments and take account of the objectives they have approved in the context of the United Nations and other competent international organizations.

(27) Forst, The Right to Justification (n 17).

(28) ibid 2.

(29) Rainer Forst, ‘The Justification of Human Rights and the Basic Right to Justification: A Reflexive Approach’ (2010) 120 Ethics 711, 717–20, 727–28.

(30) Forst, The Right to Justification (n 17) 7.

(31) ibid 263–65. On ‘minimal transnational justice’:

members of societies of multiple domination have a legitimate claim to the resources necessary to establish a (minimally) justified democratic order within their political community and that this community be a participant of (roughly) equal standing in the global economic and political system. And the citizens of the societies benefiting from the present global system do have a collective ‘duty of assistance’ to use Rawls’ terms, to provide these resources (ranging from food, housing and medical care to a basic education, information, the possibility of effective participation, and so on) necessary to attain self-government. … minimally fair transnational terms of discourse and of cooperation.

At 265: ‘a (qualified) “veto right” of the worst off. Such that no decision can be made that can be reciprocally and generally be rejected by those in the weakest position.’

(32) Albert O Hirschman, Exit, Voice and Loyalty: Responses to Decline in Firms, Organizations, and States (Harvard University Press 1970); on exit and voice in the context of the EU: Joseph H H Weiler, ‘The Transformation of Europe’ (1991) 100 Yale Law Journal 2403.

(33) Elinor Ostrom noted that individuals who collectively manage what she terms ‘common pool resources’ (such as a spring or an aquifer) strengthen their commitment to cooperate with the rest by severely constraining their room for independent action: Elinor Ostrom, Governing the Commons (Cambridge University Press 1990) 43–45.

(34) As John Stuart Mill has observed, democracy is the way the community forms itself: John S Mill, Considerations on Representative Government (first published 1861, Henry Regnery Company 1962) 168:

It is by political discussion that the manual labourer, whose employment is a routine, and whose way of life brings him in contact with no variety of impressions, circumstances, or ideas, is taught that remote causes, and events which take place far off, have a most sensible effect even on his personal interests.

(35) On the brain drain phenomenon and its implications: Ayelet Shachar, ‘The Race for Talent: Highly Skilled Migrants and Competitive Immigration Regimes’ (2006) 81 New York University Law Review 148; Ayelet Shachar, ‘Picking Winners: Olympic Citizenship and the Global Race for Talent’ (2011) 120 Yale Law Journal 2098.

(36) For a general presumption against states restricting emigration implies limits on the sovereign’s right to restrict immigration: Jeremy Waldron, ‘Exclusion: Property Analogies in the Immigration Debate’ (2017) 18 Theoretical Inquiries in Law 469, 471.

(37) Albert O Hirschman, ‘Exit, Voice, and the State’ (2011) 31 World Politics 90, 95–96: ‘Unfortunately, because of differences in income and wealth, the ability to vote with one’s feet is unequally distributed in modern societies.’

(38) Eyal Benvenisti, ‘Exit and Voice in the Age of Globalization’ (1999) 98 Michigan Law Review 167; Benvenisti and Downs (n 2) 52–87.

(39) Peter T Marsh, Bargaining on Europe: Britain and the First Common Market, 1860–1892 (Yale University Press 1999) 8–27.

(40) Ronen Palan, ‘Tax Havens and the Commercialization of State Sovereignty’ (2002) 56 International Organisations 151, 168–69.

(41) Tsilly Dagan, ‘The Global Market for Tax and Legal Rules’ (2017) 21 Florida Tax Review 148, 151:

[T]he ability of individuals and businesses to choose the laws applicable to them or to avoid application of a particular legal regime altogether radically diminishes the effectiveness of redistribution through the tax system,

also available online <papers.ssrn.com/sol3/papers.cfm?abstract_id=2506051> accessed 22 July 2018, 3.

(42) Palan (n 40) 172.

(43) Dagan calls this phenomenon of picking and choosing ‘fragmentation’: Dagan (n 41) 17–22.

(44) Using the ‘Millean’ critique of the Good Despot to develop a critique of privatization that focuses on the democratic deficits it creates: Doreen Lustig and Eyal Benvenisti, ‘The Multinational Corporation as “the Good Despot”: The Democratic Costs of Privatization in Global Settings’ (2014) 15 Theoretical Inquiries in Law 125.

(45) Benvenisti and Downs (n 2) 14–19, 30–44.

(46) Lustig and Benvenisti (n 44) 139–41.

(47) Discussing strategies to address the evolving gaps in the efficacy of domestic political and legal mechanisms of participation and accountability resulting from shifts of regulatory authority from domestic to global regulatory bodies: Stewart (n 20) 231–68; arguing that by employing international organizations as venues for policy-making, state executives and interest groups manage to reduce the impact of domestic checks and balances: Benvenisti, ‘Exit and Voice in the Age of Globalization’ (n 38); there may be additional reasons for the concentration of power in the executive and the decline of domestic checks; Bruce Ackerman, The Decline and Fall of the American Republic (Harvard University Press 2010) (discussing what he sees as the domestic factors leading to the rise of an unchecked US presidency).

(48) Demonstrating how Facebook and Google may shape public opinion to serve their own interests: Jonathan L Zittrain, ‘Engineering an Election’ (2014) 127 Harvard Law Review Forum 335, 335–37; Seth Fiegerman, ‘Facebook Is Well Aware that It Can Influence Elections’ (CNN Tech, 17 November 2016) <money.cnn.com/2016/11/17/technology/facebook-election-influence> accessed 22 July 2018; Trevor Timm, ‘You May Hate Donald Trump. But Do You Want Facebook to Rig the Election Against Him?’ (The Guardian, 19 April 2016) <www.theguardian.com/commentisfree/2016/apr/19/donald-trump-facebook-election-manipulate-behavior> accessed 22 July 2018.

(49) For more on this: Eyal Benvenisti, ‘ Foreword: Upholding Democracy Amid the Challenges of New Technology: What Role for the Law of Global Governance?’ (2018) 29 European Journal of International Law 9.

(50) Herbert A Simon, ‘A Behavioural Model of Rational Choice’ (1955) 69 Quarterly Journal of Economics 99, 101: ‘Because of the psychological limits of the organism … actual human rationality-striving can at best be an extremely crude and simplified approximation to the kind of global rationality that is implied, for example, by game-theoretical models.’

(51) Anthony Downs, ‘An Economic Theory of Democracy’ (1957) 65 Journal of Political Economy 135, 139.

(53) Claiming that the Big Data revolution may lead policy-makers to ignore the preferences of certain stakeholders: Jonas Lerman, ‘Big Data and Its Exclusions’ (2013) 66 Stanford Law Review Online 55.

(54) eg: Cass Sunstein, #Republic: Divided Democracy in the Age of Social Media (Princeton University Press 2017); Andrew Chadwick, ‘Web 2.0: New Challenges for the Study of E-Democracy in an Era of Informational Exuberance’ in Stephen Coleman and Peter M Shane (eds), Connecting Democracy: Online Consultation and the Flow of Political Communication (MIT Press 2012) 45, 49–51; Benvenisti, ‘Foreword: Upholding Democracy Amid the Challenges of New Technology: What Role for the Law of Global Governance?’ (n 49).

(55) Generally: Dan M Kahan, ‘Ideology, Motivated Reasoning, and Cognitive Reflection’ (2013) 8 Judgment & Decision Making 407; Ulrike Hahn and Adam J L Harris, ‘What Does It Mean to Be Biased: Motivated Reasoning and Rationality’ (2014) 61 Psychology of Learning and Motivation 41.

(56) Peter Cane, Administrative Law (Oxford University Press 2011) 113: ‘[C]onsultation at an early stage may at least increase levels of compliance later on and reduce the chance that those dissatisfied with any made will seek actively to challenge them.’

(57) Benvenisti, ‘Foreword: Upholding Democracy Amid the Challenges of New Technology: What Role for the Law of Global Governance?’ (n 49) 24–51.

(58) Georgina Dimopoulos, Andrew D Mitchell, and Tania Voon, ‘The Tobacco Industry’s Strategic Use of Freedom of Information Laws: A Comparative Analysis’ (2016) Oxford University Comparative Law Forum 2; Karen E C Levy, and David M John, ‘When Open Data Is a Trojan Horse: The Weaponization of Transparency in Science and Governance’ (2016) 3 Big Data & Society 1; Andrew D Mitchell and Tania Voon, ‘Someone to Watch Over Me: Use of FOI Requests by the Tobacco Industry’ (2014) 22 Australian Journal of Administrative Law 18.

(59) The Evaluation Partnership Limited (TEP), Evaluation of the Commission’s Impact Assessment System—Final Report 17 (Contract Number SG-02/2006, 2007) <ec.europa.eu/governance/impact/key_docs/docs/tep_eias_final_report.pdf> accessed 22 July 2018.

(60) European Commission, ‘Trade, Growth and World Affairs: Trade Policy as a Core Component of the EU’s 2020 Strategy’ COM (2010) 612 <trade.ec.europa.eu/doclib/docs/2010/november/tradoc_146955.pdf> accessed 22 July 2018, 14; also: Lorand Bartels, ‘Policy Coherence for Development Under Article 208 of the Treaty on the Functioning of the European Union—Towards a Complaints Mechanism’ (2016) University of Cambridge Faculty of Law Research Paper No 18 <ssrn.com/abstract=2754079> accessed 22 July 2018.

(61) Quoting European Commission (n 60) 14; Bartels (n 60) 8.

(62) Bartels (n 60) 10.

(63) ibid 15.

(64) Presenting the informational benefits courts provide to legislatures: Matthew C Stephenson, ‘ “When the Devil Turns …”: The Political Foundations of Independent Judicial Review’ (2003) 32 Journal Legal Studies 59, 62.

(65) Benvenisti and Downs (n 2) 149–65.

(66) Discussing how judges and courts also can provide individualized opportunities for multijurisdictional resolution eg: Zachary D Clopton, ‘The Global Class Action and its Alternatives’ (2018) 19 Theoretical Inquiries in Law 125.

(67) Benvenisti and Downs (n 2) 24–30, 44–49; Eyal Benvenisti, ‘Reclaiming Democracy: The Strategic Uses of Foreign and International Law by National Courts’ (2008) 102 American Journal of International Law 241.

(68) Benvenisti and Downs (n 2) 149–65.

(69) Case C-519/04 David Meca-Medina and Igor Majcen v Commission of the European Communities [2006] ECR I-6991; Case C-415/93 Union Royale Belge des Sociétés de Football Association ASBL v Jean-Marc Bosman [1995] ECR I-4921; in these cases, the CJEU was able to resolve the collective action problem created when private sports associations imposed their standards on individual states.

(70) UNSC Res 1267 (15 October 1999) UN Doc S/RES/1267.

(71) Waite and Kennedy v Germany App no 26083/94 (ECtHR, 24 February 1999).

(72) Case T-512/12 Front Polisario v Council of the European Union [2015] ECR 953, para 228: the Council must ‘ensure that the production of products export is not conducted at the expense of the population of the territory in question or imply violations of fundamental rights’.

(73) Benvenisti, ‘Sovereigns as Trustees of Humanity’ (n 13) 314–18.

(74) eg: Gabčíkovo-Nagymaros Project (Hungary v Slovakia) (Judgment) [1997] ICJ Rep 7; also: Benvenisti, Sharing Transboundary Resources (n 8) 209.

(75) Novartis AG v Union of India (2013) 13(1) SCR 148 (India); also: Bayer Corporation and Anr v Union of India and Ors (2009) LPA 443 (Del.).

(76) In 2003, the Supreme Court of Sri Lanka found that a bill that would have precluded compulsory licensing and parallel importing (regarded as important tools to ensure affordable access to pharmaceutical drugs) required a special majority in parliament because it infringed the principle of equality enshrined in the constitution. SC Special Determination No 14/2003. Courts in Bangladesh, India, and Pakistan prevented the importation of contaminated food and blocked advertising campaigns of foreign tobacco companies: M Farooque v Bangladesh (1996) 48 DLR 438 (Ban); Vincent v Union of India (1987) AIR 990 (India); Islam v Bangladesh (2000) 52 DLR 413 (Ban) (referring to the similar decisions of the Indian court in Ramakrishna v. State of Kerala (1968) AIR 1367 (Ker), and Chest Foundation v Pakistan (1997) CLC 1379 (Pak)).

(77) Amy Kapczynski, ‘Engineered in India—Patent Law 2.0’ (2013) 369 New England Journal of Medicine 497.

(78) British courts are responsible for the rule, which spread around the Commonwealth, that foreign control exempts companies from local tax liability: Palan (n 40) 159–63.

(79) eg: Jason Schultz, ‘The Internet of Things We Don’t Own?’ (2016) 59 Communications of the ACM 36.

(80) For a fuller argument: Benvenisti, ‘Foreword: Upholding Democracy Amid the Challenges of New Technology: What Role for the Law of Global Governance?’ (n 49).

(81) Executive Order No 13642, 78 Federal Register 93, 28111 (9 May 2013) <www.gpo.gov/fdsys/pkg/FR-2013-05-14/pdf/2013-11533.pdf> accessed 22 July 2018.

(82) European Commission, ‘Building a European Data Economy’ (9 September 2017) <ec.europa.eu/digital-single-market/en/policies/building-european-data-economy>.

(83) Hugo Grotius, The Freedom of the Seas (first published 1633, Ralph van Deman Magoffin tr, James Brown Scott ed, Oxford University Press 1916) 38.

(84) Laurence Boisson de Chazournes and Danio Campanelli, ‘Neighbour States’ in Max Planck Encyclopedia of International Law (2006) 1072.

(85) Benvenisti, ‘Sovereigns as Trustees of Humanity (n 13).

(86) Yafit Lev-Aretz, ‘Data Philanthropy’ manuscript, December 2017 on file with author (providing example of a collaboration of a mobile network organizer and a non-profit organization during the Nepal earthquake crisis in 2015 and states that ‘data generated via platforms like telecom operators, satellite companies, and social media networks makes possible a range of insights into economic developments, medical advances, environmental issues, and various other properties of public life that could accelerate the pace and scope of social discovery and development’). For an overview of the various private sector players that have initiated ‘data for good’ projects: ibid 8–10. Lev-Aretz also suggests a modification of fair information practices that will allow the use of private data for the greater good.

(87) European Commission, ‘More Than Codex: FAO, WHO and Wider Partnerships’ <ec.europa.eu/digital-single-market/en/policies/building-european-data-economy> accessed 22 July 2018: (‘Launched in 2003 by the Directors-General of UN Food and Agriculture Organization and World Health Organization (WHO), the Trust Fund is seeking US$40 million over a twelve-year period to help developing countries and countries in transition to increase their participation in the vital work of the Commission. Increased participation will be achieved by helping regulators and food experts from all areas of the world to participate in international standards-setting work in the framework of Codex; and enhancing their capacity to help establish effective food safety and quality standards and fair practices in the food trade, both in the framework of the Codex Alimentarius and in their own countries. In 2004, its first year of operation, the Trust Fund helped experts from more than ninety developing countries to attend and participate in the Codex standards-setting process. The Trust Fund is based at the headquarters of the WHO’); also: David E Winickof and Douglas M Bushey, ‘Science and Power in Global Food Regulation: The Rise of the Codex Alimentarius’ (2010) 35 Science, Technology, & Human Values 356.

(88) African Development Bank Group, ‘African Legal Support Facility’ <www.afdb.org/en/topics-and-sectors/initiatives-partnerships/african-legal-support-facility> accessed 22 July 2018.

(89) Michal S Gal, ‘Regional Competition Law Agreements: An Important Step for Antitrust Enforcement’ (2010) 60 University of Toronto Law Journal 239, 241–48.

(90) Agreement on Trade-Related Aspects of Intellectual Property Rights (15 December 1993), Marrakesh Agreement Establishing the World Trade Organization, Annex 1C (1869 UNTS 299) reproduced in (1994) 33 International Legal Materials 1197, Art 66 (2):

Developed country Members shall provide incentives to enterprises and institutions in their territories for the purpose of promoting and encouraging technology transfer to least-developed country Members in order to enable them to create a sound and viable technological base.

But see: Suerie Moon, ‘Meaningful Technology Transfer to the LDCs: A Proposal for a Monitoring Mechanism for TRIPS Article 66.2’ (2011) 12 International Centre for Trade and Sustainable Development <www.ictsd.org/downloads/2011/05/technology-transfer-to-the-ldcs.pdf>:

This updated analysis of developed country reports has found little evidence that TRIPS Article 66 2 has resulted in significant additional incentives beyond business-as usual for transferring technology to LDC Members. It also concludes that the existing reporting system does not function as an effective monitoring mechanism.