Big Data and International Law

by

Fleur Johns, Leah Gardner, Erol Gorur

• LAST REVIEWED: 27 October 2022
• LAST MODIFIED: 27 October 2022
• DOI: 10.1093/obo/9780199796953-0176

Introduction

It has become a truism that data are now bigger than ever before: that is, information assembled and “used for reference, analysis, and calculation,” especially in digital form, has increased in volume, variety, and velocity to unprecedented levels, “to the extent that [their] manipulation and management present significant . . . challenges” (OED Online, s.v. “data (n.),” and “big (adj., adv.)”). In the international legal field, scholarly interest is growing in the phenomenon of “big data”—used here in the singular, as a mass noun—and what it might mean in and for international legal institutions and international legal work. For the most part, however, that scholarship is being pursued under auspices other than “Big Data and International Law.” Moreover, given the diversity of data types, analytical techniques, and technological settings evoked by the term big data, it is unclear that any subfield so named could acquire or retain coherence. International legal scholarship attentive to the implications of data’s digitization and the impact of digital technologies just as often travels under the rubrics of (international) law and technology, algorithmic governance, or, more recently, artificial intelligence and international law. Nonetheless, this bibliography assembles works representative of this burgeoning scholarship that are likely to be helpful to those interested in big data and international law. It mostly sidesteps areas that are, or are becoming, fields in their own right, to which big data is critical, but which are not especially attentive to its role; for example: the law of privacy; the international law of cyberwarfare and automated weaponry; the international law of distributed ledger technologies (for example, blockchain) and digital currencies; the private international law of smart contracting, digital dispute resolution, and digital risk protection; and international space law. This bibliography includes work by scholars who identify as public international lawyers and writings that cannot be so described, by which international legal scholars interested in big data might nevertheless be usefully informed. Also included are works that take a comparative and/or transnational approach to the analysis of legal issues for big data and big data issues for law. The headings proceed, more or less, from the introductory to the specialized. Earlier references tend to foreground discipline-wide dilemmas and shifts. Later, the bibliography highlights some key subfields in which inquiries surrounding big data and international law are proliferating, including in the conduct of international legal research. This bibliography is indicative, not exhaustive.

Ramifications of Big Data for International Law and International Order

This section presents a selection of writings concerned with understanding data-borne transformations of international order. Some works in this section explicitly address what big data might mean for international law, whereas others, while still international in scope, come at this issue indirectly. The scholarship featured in this section is general in the sense that it is not confined to running down particular doctrinal or practical questions that big data might pose for international lawyers. Instead, it aims at fundamental questions and root-and-branch transformations that the rise of big data arguably calls up for those working in international law. It also presents visions and challenges of global justice that might animate that work going forward. Data-mediated practices and powers are transforming some of international law’s fundamental units of analysis, Johns 2021 contends, namely, populations, states, and individual legal subjects. This parallels Fourcade and Gordon 2020, an account of the emergence of a “dataist” logic of statehood, and Humphreys 2018, a close study of the mechanics and epistemologies of a bit-borne world. It aligns, too, with Bigo, et al. 2019, which claims that prevailing theories of power, relation, and politics are poorly adapted to the phenomenon of big data and associated digital infrastructures. Ziolkowska 2021 identifies the distributed data storage and autonomous operations of blockchain as a particular site of challenge for state sovereignty. Oguamanam 2020 and Walter, et al. 2021 indicate how Indigenous peoples have variously tackled these kinds of challenges by invoking and pursuing data sovereignty across various continents. Among those notions fundamental to the discipline of international law that must arguably be reconceived in this context are those of territory (Johns 2016) and agency (Hildebrandt and O’Hara 2020). Much depends on responsible navigation of the rather unwieldy medium of data-driven global governance, and what kind of responsibility this might demand and of whom. For Benvenisti 2019, this demands a redoubling of existing international legal commitments to global justice and the rule of law. In all these works, scholars make clear that global legal relations in a big data environment are in the process of remaking, and that questions of power, equity, and agency merit serious attention in this context.

• Benvenisti, Eyal. “Ensuring Access to Information: International Law’s Contribution to Global Justice.” In The International Rule of Law: Rise or Decline? Edited by Heike Krieger, Georg Nolte, and Andreas Zimmermann, 344–363. Oxford: Oxford University Press, 2019.

  DOI: 10.1093/oso/9780198843603.003.0022

  For Benvenisti, international law has a role to play in achieving a more just allocation of global resources. Accountability for global injustice is impeded by the rise of new information and communication technologies, placing vast amounts of data in the hands of a few. International law might contribute to empowering communities—enabling “the agency of the politically weak”—by ensuring access to information to inform debate on distributive questions.

• Bigo, Didier, Engin Isin, and Evelyn Ruppert, eds. Data Politics: Worlds, Subjects, Rights. London: Routledge, 2019.

  Written by a combination of social scientists and humanities and legal scholars, this book explores how contemporary accumulations and flows of data, and the material infrastructures and languages underpinning those, reconfigure relationships among states, subjects, and citizens and transform democracies. Without understanding these changed conditions of possibility, the contributors argue, it will be impossible to intervene in or to shape global data politics.

• Fourcade, Marion, and Jeffrey Gordon. “Learning Like a State: Statecraft in the Digital Age.” Journal of Law and Political Economy 1.1 (2020): 78–108.

  DOI: 10.5070/LP61150258

  In this article a sociologist and legal scholar examine changing outlooks, techniques, and capacities characteristic of statecraft amid big data. The “dataist state” is less accountable than predecessors and increasingly driven by data affordances under corporate control; the authors explore how such a state might “see like a citizen” instead. Although not an explicit focus, their analysis has clear implications for international law’s making, interpretation, implementation and future development.

• Hildebrandt, Mireille, and Kieron O’Hara, eds. Life and the Law in the Era of Data-Driven Agency. Cheltenham, UK: Elgar, 2020.

  This suite of essays written by legal scholars, computer scientists, political scientists, and philosophers explores how implementations of big data, artificial intelligence, and algorithms are creating new types of agency, with implications for epistemology, justice, and democracy. In this context, contributors advocate precautionary approaches to international regulation of data-driven environments, and they see potential in techniques, such as throttling, and in designing or repurposing systems for “seamful” rather than seamless interaction.

• Humphreys, Stephen. “Data: The Given.” In International Law’s Objects. Edited by Jessie Hohmann and Daniel Joyce, 191–202. Oxford: Oxford University Press, 2018.

  For Humphreys, data’s significance lies in how it is “given,” namely, “the encroaching re-representation and mobilization of the world” in the form of bits (p. 201). Humphreys explores some of the difficulties for international law posed by subjects’ abstraction and re-rendering in digital data, and those representations’ cable-borne, transoceanic dispersal, suggesting that these attributes potentially remake international legal jurisdiction and authority.

• Johns, Fleur. “Data Territories: Changing Architectures of Association in International Law.” Netherlands Yearbook of International Law 47 (2016): 107–129.

  This article argues that the turn to data analytics to support decision making about global law and policy has brought about a datafication of territory and generated new territorializations of data. The author argues that these changes amount to a “reconfiguration of territoriality” (p. 109) in international law, and they pose questions about “an international legal order made of and in data” (p. 126) that international lawyers might try to answer.

• Johns, Fleur. “Governance by Data.” Annual Review of Law and Social Science 17 (2021): 53–71.

  DOI: 10.1146/annurev-lawsocsci-120920-085138

  This article surveys how scholars of law and social science are beginning to understand the nascent political transformations associated with the increasing prevalence of digital technologies in governance at all scales. It explores a range of ways in which digital data are operating as vectors of governance and remaking the constituent elements and objects of governance in the process, among them states, subjects, and populations.

• Oguamanam, Chidi. “Indigenous Peoples, Data Sovereignty, and Self-Determination: Current Realities and Imperatives.” African Journal of Information and Communication 26 (2020): 1–20.

  This article examines the global Indigenous data sovereignty movement—seeking to ensure that Indigenous peoples have control over data relating to their communities—and its ambivalent relationship to the phenomena of big data and open data. It compares approaches taken in Canada, within the UN system, by several Indigenous-driven international initiatives, and in African countries and argues for African Indigenous peoples’ fuller integration into this global movement.

• Walter, Maggie, Tahu Kukutai, Stephanie Russo Carroll, and Desi Rodriguez-Lonebear, eds. Indigenous Data Sovereignty and Policy. Abingdon, UK: Routledge, 2021.

  Scholars of law, public health, social sciences, demography, public policy, and education write in this collection about Indigenous peoples’ experiences with the collection and use of data relating to them, and recent legal and policy developments in this domain internationally. Contributors recount the efforts of Indigenous peoples to assert and protect data sovereignty amid new data-related possibilities and risks in Aotearoa New Zealand, Australia, North and South America, and Europe.

• Ziolkowska, Katarzyna. “Distributing Authority: State Sovereignty in the Age of Blockchain.” International Review of Law, Computers and Technology 35.2 (2021): 116–130.

  DOI: 10.1080/13600869.2021.1885108

  This article contends that the distributed data storage and autonomous operations of blockchain pose systemic challenges to the sovereignty of states, undermining states’ traditional law-making authority and law-enforcement capacities. The resulting “sovereignty gap” (p. 117) can be addressed, Ziolkowska suggests, only by potentially trading-off some of the technology’s functionalities for greater amenability to state (public) accommodation and control.