A View from 40,000 Feet: International Law and the Invisible Hand of Technology

Abstract

From the Stone Age to the space age, technology has acted as an invisible hand on the development of society, culture and the law. This invisible hand has also reached across borders to have a significant impact on international law, from prehistory to the descent of the Mir Space Station into the Pacific Ocean. Technology has been ubiquitous in international law. Furthermore, with the increasing significance of technology in this Electronic Age, technology will continue to play a significant role in the creation, alteration and destruction of international law.

But when technology and international law collide, international policy makers are caught in the middle coping with many unusual problems and issues. Any resultant international regime may be stillborn or born with such devastating birth defects that it either lives a short time or lives a life with consequences unintended by its creators. This Article seeks to provide those policy makers with the beginning of a methodology for coping with problems raised by technologically driven change to international law.

Failure to respond appropriately to technology can be devastating for policy makers and the international regimes they work so hard to create and nurture. For example, the technology-related problems faced by policy makers can result in such significant infirmities as treaties entered too late to be relevant or too early to accurately manage the relevant technology. Furthermore, inaccurate information on the frequently very complex technology can produce international law that fails to reflect accurate conceptions of the technology, making that international law irrelevant or damaging from its inception. Similarly, reliance on industry for the necessary technical data can be very troublesome in today's world of multinational corporations operating in increasingly globally competitive technology sectors. Perhaps most problematic is the concept that technology is a determinate force that acts as an invisible hand creating, shaping and destroying international law. Failure to handle such a powerful force will result in policy makers essentially abdicating the international regime to technology. Thus, there are significant consequences when policy makers do not succeed in managing the many concerns raised by technology.

Even though policy makers must be closely concerned with the "nitty gritty" of their international regimes and negotiations, this Article advocates that policy makers have much to gain from taking a macro or holistic view of the issues raised by technology. Macro-examinations can provide larger theoretical understandings and can reveal previously hidden characteristics that are simply not discernable from the "trenches." Viewing technology from "40,000 feet up" reveals certain patterns, pitfalls, and lessons for policy. This Article will undertake such a macro-examination of the relationship between international law and technology and will hopefully launch the development of a methodology for use by those policy makers who are forced to integrate technological innovations into international law. Such a theoretical template should hopefully provide those policy makers with a consistent, realistic and rational response to technological assaults on international law.

In contrast to this Article's identification of a methodology derived from a macro-examination of international law and technology, most scholars who have examined the impact of technology on international law have tended either to concentrate on institutional changes wrought by technological innovation or have focused on the impact of specific technologies on individual substantive areas of international law. Indeed, this focus on the particular was noted over thirty years ago by C. Wilfred Jenks, who stated that "[t]he greater part of current research concerning the international law aspects of scientific and technological developments relates to specific developments rather than to the problem as a whole . . . ." This article is a somewhat belated response to that call to arms to examine the "problem as a whole."

Part I of this Article will examine the role that technology plays in the creation of international law, with a review of some examples of historic and recent international legal regimes that have been changed as a result of technological innovation. That examination will provide essential background for development of the methodology. Part II will explore concepts such as the fact that technology is frequently the irresistible determinative factor in the creation of international law. Part II will conclude with a synthesis of the methodology in the form of a "roadmap" of questions applicable to the problems facing policy makers when technology and international law collide. Finally, Part III will apply the revealed methodology to national security export controls, an international legal regime that is presently under "attack" from technological innovation. This export control regime was vigorously debated in 2000-2001, when the Senate Banking Committee moved forward with a proposed reauthorized Export Administration Act. Part of that continuing debate reflects differing perspectives on the impact and role of technology on international law. There is an immediate need for a methodology for handling technology and international law issues.

Keywords: International law, invisible hand, technology, international policy, treaty, treaties, industry, technical data, multinational corporations, global competition, negotiations, international negotiations, macro-examination, holistic, methodology, C. Wilfred Jenks, institutional change, irresistible

JEL Classification: F02, F13, F40, H56, O14, O30, O31, O32, O33, O38