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HD China: International Law

March 21, 2011

(note: this post is part of a series. To read earlier versions, or get some background, please see: what is HD China?intro, emergence of the web)

CONTEMPORARY INTERNATIONAL LAW

This paper takes the position that “International law, like all law, is a continuing process through which the common interests of the members of the world community are clarified and secured.” [i] This description of international law deserves deeper examination of several key elements:

First, understanding international law as an evolving process.  Traditionally, late-nineteenth and twentieth-century approaches to international law, as dominated by the positivist school were rule-oriented. [ii] The positivist school of jurisprudence sharply separates law and morality, thus conceiving international law as a body of rules. The judicial task, or the process of interpretation and application, becomes a logical derivation of these self-contained rules, regardless of theories of morality or an individual sense of right and wrong.  Contemporary international law has recognized various shortcomings with this “rule-oriented approach” that only applies itself, but does not change. The “dynamic context of interaction involving the international and domestic social processes” demand a not just a discovery of correct rules, but a continuous process to make decisions.  [iii]

Second, contemporary international law aims to identify, clarify and secure the common interests of the members of the world community.  Delimitation or absolute deference to these common interests is inherently part of this ongoing task.  From a policy-oriented perspective these interest’s “seek to attain a minimum order, in the sense of minimizing unauthorized coercion” and to “achieve an optimum order, in the sense of the widest possible shaping and sharing of all values.” [iv]

At the heart of the contextual issues to be discussed in the following posts is the paramount belief that the free flow of information across state lines to foster the value of enlightenment—the freedom to acquire, use, and communicate information and knowledge—must be sustained. [v]

Third, and interwoven with this goal of securing the common interest is the recognition of a world community. Complex realities have evolved since the first traces of international law—at a time when international law was traditionally understood as the law between Nations.  Our contemporary reality of a global interconnectedness has generated a paradigm shift in the way many understand international law–as a “myriad of transnational actors,” participating in the formation, shaping and functioning of a globalized process of law. [vi]

In sum, contemporary international law continues to develop “as the world community becomes increasingly interdependent, owing in part to the growing movement of people, ideas, goods, and services across national boundaries.” [vii] It is unquestionable that the global flow of information, through its various mediums of communication, facilitates this perspective of interdependence.  A broad view of these two subject matters, international law and global flows of information, suggests coexistence, overlap, and the impossibility of absolute mutual exclusiveness.

In adopting this framework, this paper seeks to provide a holistic glimpse into a social context where the “disparity between demanded values and their achievement in community process” [viii] is highly controversial.

CONTEXTUAL SURVEY AND ANALYSIS

So who controls the flow of these “packets of information” over the World Wide Web?  And what are the major considerations of “control”?  These questions have generated a vast amount of debate.  Innumerable reports, papers, data, statistics, scholarly and news articles have been published and circulated.  Entire demographics of people have joined the discourse – from high-level officials who make and implement policy decisions to the common ‘netizens’ who voice opinions through the blogosphere.

These sensitive balancing acts of policy and lawmaking are as complex as any other area of decision-making in law.  And when it comes to a global-level there is no simplified answer.  Government policies differ, and rights afforded to its citizens vary from country to country.  It would be impossible to adequately address all or many of these concerns in this paper, but some of the balancing acts are worth acknowledging: Freedom of Privacy v. Necessary Surveillance; Freedom of Access v. Necessary Censorship; Freedom of Expression v. Necessary Limitations.

As a general framework, we can understand these considerations as a balance between maintaining national security and ensuring the free, unfiltered flow of information. We can connect this to policy-oriented themes discussed earlier:  A minimum world order, in the sense of minimizing unauthorized coercion in the name of national security and optimum world order in the sense of achieving the widest possible shaping and sharing of all values.

In order to understand this in contextual setting, this paper focuses on a region of the world that has produced a great amount of controversy in this area – The Peoples Republic of China.


[i] supra, n. 1

[ii] supra, n. 6,

[iii] supra, n. 1, at see generally

[iv] id.

[v] supra, n. 1, at page 288

[vi] Ruti Teitel, “Humanity’s Law: Rule of Law for the New Global Politics,” 35 Cornell Intl Law Journal 355 (2002)

[vii] id.


 

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