German Law Journal最新文献

{"title":"Digitalization and its Systemic Impact on the Use of Force Regime: Legal Uncertainty and the Replacement of International Law","authors":"N. Tsagourias","doi":"10.1017/glj.2023.33","DOIUrl":"https://doi.org/10.1017/glj.2023.33","url":null,"abstract":"Abstract This article explores the systemic impact of digitalization on the use of force regime. It identifies two types of impact: (i) legal uncertainty; and (ii) the replacement of international law. The article discusses legal uncertainty in relation to the content of the rules on the use of force and their application to digital uses of force as well as in relation to the facts that underpin digital uses of force. It then goes on to discuss the replacement of international law as a regulatory tool of the use of force by considering the impact of digitalization on the creation of customary law, legal personhood, and international law’s regulatory modality. The article’s findings are not limited to the impact of digitalization on the use of force regime but extend to international law in general.","PeriodicalId":36303,"journal":{"name":"German Law Journal","volume":"24 1","pages":"494 - 507"},"PeriodicalIF":1.3,"publicationDate":"2023-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46506144","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Rationale and the Perils of Failing to Invoke State Responsibility for Cyber-Attacks: The Case of the EU Cyber Sanctions","authors":"S. Poli, Emanuele Sommario","doi":"10.1017/glj.2023.25","DOIUrl":"https://doi.org/10.1017/glj.2023.25","url":null,"abstract":"Abstract Malicious cyber activities are on the rise. States and other relevant actors need to constantly adapt to the evolving cyber threat landscape, including by setting up effective deterrence mechanisms. This is what the European Union (EU) has done through the adoption of Common Foreign and Security Policy (CFSP) Decision 2019/797, which allows it to impose targeted sanctions to deter and respond to cyberattacks that constitute an external threat to the EU or its member states. However, in contrast to other horizontal regimes of restrictive measures in force within the EU, foreign governments are not included as potential targets of cyber sanctions. Moreover, the recital of the Decision specifies that the adoption of restrictive measures does not involve attribution of international responsibility for cyber-attacks to a third State. This article aims at identifying the rationale behind the inclusion of these distinctive features. It starts by considering the legal uncertainty that surrounds attribution of international responsibility for cyber operations. Next, it explains why the EU is not well placed to invoke third-State responsibility, and the reasons behind its reluctance to do so. It will then illustrate the risks inherent in the lack of a clear legal framework to attribute the responsibility of cyber-attacks to third countries. This may have serious consequences in terms of legal certainty when a cyber-attack amounts to a breach of the prohibition on the use of force in international relations. Then, we explore recent developments in EU legislation in the area of cyber security and the possibility to strenghten the powers of the European Union Agency for Cybersecurity (ENISA). We draw two conclusions: first, the Union might develop the capacity to attribute cyber attacks to specific actors and there is an interest to do so. However, Member States are probably still reticent to take this step. Two, despite the advantages of establishing a reliable attribution mechanisms, it is submitted that the majority of States prefers to take advantage of a regulative gap that allows them to react to cyber incidents as they see fit.","PeriodicalId":36303,"journal":{"name":"German Law Journal","volume":"24 1","pages":"522 - 536"},"PeriodicalIF":1.3,"publicationDate":"2023-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44635408","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Extraterritorial Enforcement Jurisdiction in Cyberspace: Normative Shifts","authors":"Cedric Ryngaert","doi":"10.1017/glj.2023.24","DOIUrl":"https://doi.org/10.1017/glj.2023.24","url":null,"abstract":"Abstract The most eye-catching effect of digitalization on the law of enforcement jurisdiction is the fading into irrelevance of territoriality. Insofar as the “physical” location of digital data—on a server—may be entirely fortuitous and may in fact not be known by the territorial state, it appears unreasonable for that state to invoke its territorial sovereignty as a shield against another state’s claims over such data. To prevent a jurisdictional free-for-all, however, it is key that the exercise of extraterritorial enforcement jurisdiction in cyberspace becomes subject to a stringent test weighting all relevant connections and interests in concrete cases. Introducing such a weighting test means that extraterritorial enforcement jurisdiction is no longer governed by binary rules (allowed and not allowed), but becomes a matter of degree, requiring a granular, contextual assessment. It remains the case that such a flexible attitude towards extraterritorial enforcement jurisdiction is not universally shared, and that relevant state practice and expert opinion in favor of the “un-territoriality of data” has a particular Western slant.","PeriodicalId":36303,"journal":{"name":"German Law Journal","volume":"24 1","pages":"537 - 550"},"PeriodicalIF":1.3,"publicationDate":"2023-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43689339","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Meta’s Oversight Board and Transnational Hybrid Adjudication—What Consequences for International Law?","authors":"Rishi Gulati","doi":"10.1017/glj.2023.34","DOIUrl":"https://doi.org/10.1017/glj.2023.34","url":null,"abstract":"Abstract Meta, formerly the Facebook Company, faces immense pressure from users, governments, and civil society to act transparently and with accountability. Responding to such calls, in 2018, it announced plans to create an independent oversight body to review content decisions. Such a forum is now in place in the form of the Oversight Board. To Meta’s credit, the speed at which the Oversight Board has been established is remarkable. Within two years, a global consultation process was completed with input obtained from users as well as experts, the regulatory infrastructure for the Oversight Board built, its members selected, and the first decisions of the Board already rendered in January 2021. With its institutional structure in place, and plenty of resources to tap into, the Oversight Board could have a real effect on how some transnational disputes are resolved. Thus, the Oversight Board may very well be setting the direction for how tech companies in particular, and multinational corporations in general, go about providing grievance mechanisms to individuals who their actions adversely affect. Through a study of the Oversight Board, this article considers whether we are witnessing the birth of a special type of “transnational hybrid adjudication” that could have a systemic impact on international law, or an experiment with limited relevance.","PeriodicalId":36303,"journal":{"name":"German Law Journal","volume":"24 1","pages":"473 - 493"},"PeriodicalIF":1.3,"publicationDate":"2023-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42333858","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Impact of Digitalization on International Investment Law: Are Investment Treaties Analogue or Digital?","authors":"R. Polanco","doi":"10.1017/glj.2023.30","DOIUrl":"https://doi.org/10.1017/glj.2023.30","url":null,"abstract":"Abstract This article explores digitalization’s impacts on the existing international investment law regime. In particular, it examines whether international investment agreements (IIAs) apply to the digital economy, analyzing their scope of application, including the definition of protected investment and protected investor, as well as the territorial application of those treaties. We conclude that the IIAs and their provisions are, in principle, not intended for the digital era. However, their usually broad definitions are likely to cover investments in digital assets, if there is a flexible interpretation of the required territorial nexus. However, we believe caution should be exercised about including digital transformation commitments in IIAs, as they could increase the chance of investor-state dispute settlement (-ISDS-).","PeriodicalId":36303,"journal":{"name":"German Law Journal","volume":"24 1","pages":"574 - 588"},"PeriodicalIF":1.3,"publicationDate":"2023-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45904723","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Impact of Digitalization on Global Trade Law","authors":"Mira Burri","doi":"10.1017/glj.2023.29","DOIUrl":"https://doi.org/10.1017/glj.2023.29","url":null,"abstract":"Abstract The Article explores the transformations triggered by digitalization in the domain of global trade law and seeks to evaluate the nature and the effects of the unfolding legal adaptation in this field of international law. For this purpose, the Article starts by mapping the sweeping effects of digitalization on trade and trade policies. It then turns to the current regulatory framework for digital trade—first, by sketching the state of affairs in the multilateral forum of the World Trade Organization (WTO) and second, by analyzing the more deliberate regulatory responses to the challenge of digitalization formulated in free trade agreements (FTAs), with a particular focus on some more recent advanced models of digital trade regulation. The Article finally seeks to contextualize and assess the impact of the existing legal framework and its adequacy for the contemporary data-driven economy, pointing also at some current deficiencies and potential setbacks going forward.","PeriodicalId":36303,"journal":{"name":"German Law Journal","volume":"24 1","pages":"551 - 573"},"PeriodicalIF":1.3,"publicationDate":"2023-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44368784","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"International Law and Digital Disease Surveillance in Pandemics: On the Margins of Regulation","authors":"Pedro A. Villarreal","doi":"10.1017/glj.2023.26","DOIUrl":"https://doi.org/10.1017/glj.2023.26","url":null,"abstract":"Abstract The COVID-19 pandemic elicited a surge in the use of digital tools to replace “classic” manual disease tracking and contact tracing across individuals. The main technical reason is based on the disease surveillance needs imposed by the magnitude of the spread of the SARS-CoV-2 virus since 2020, particularly how these needs overwhelmed governments around the world. Such developments led to stark variations across countries in terms of legal approaches towards the use of digital tools, including self-reporting software and mobile phone apps, for both disease tracking and contact tracing. Against this backdrop, in this article I highlight some of the normative challenges posed by the digitalization of disease surveillance, underscoring its almost non-existent regulation under international law. I look back at the historical emergence of the epidemiological principles underlying this procedure, by referring to John Snow’s trailblazing work in cholera control. I emphasize how the COVID-19 pandemic prompted both technical and normative shifts related to the digitalization of these procedures. Furthermore, I refer to some of the overarching obstacles for deploying international law to tackle future tensions between the public health rationale for digitalized disease tracking and contact tracing, on the one hand, and normative concerns directly related to their legality, on the other hand. Lastly, I put forward conclusions in light of the current juncture of international health law reforms, and how they so far display limited potential to herald structural changes concerning the legality of the use of digital tools in disease surveillance.","PeriodicalId":36303,"journal":{"name":"German Law Journal","volume":"24 1","pages":"603 - 617"},"PeriodicalIF":1.3,"publicationDate":"2023-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43579434","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Does Digitalization Reshape the Principle of Non-Intervention?","authors":"L. Willmer","doi":"10.1017/glj.2023.27","DOIUrl":"https://doi.org/10.1017/glj.2023.27","url":null,"abstract":"Abstract While digitalization has led to renewed attention to the principle of non-intervention, not the least by Western states rediscovering the protective dimension of sovereignty, it remains plagued by a certain vagueness. Attempts by academics to fill the gaps lead to starkly different results, ranging from the insertion of democratic values to the inadvertent reinforcement of protectionist tendencies. Overall, digitalization has so far had less of an effect on the principle of non-intervention than its renewed importance may have on the type of international law more generally.","PeriodicalId":36303,"journal":{"name":"German Law Journal","volume":"24 1","pages":"508 - 521"},"PeriodicalIF":1.3,"publicationDate":"2023-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43671374","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Editorial to the Special Issue “The Impact of Digitalization on International Law”","authors":"Dana Burchardt, M. Varaki","doi":"10.1017/glj.2023.32","DOIUrl":"https://doi.org/10.1017/glj.2023.32","url":null,"abstract":"The special issue analyzes the impact of digitalization on international law — focusing on structural changes. It asks whether such changes are observable in the various fields of international law and whether we can discern cross-cutting trends and developments. The special issue combines the in-depth analysis that the contributing authors provide for specific subject matters with the bird ’ s eye perspective offered in a synthesizing article by myself. The fields of international law covered in this special issue include international human rights law and institutions, use of force, the principles of non-intervention, state responsibility, enforcement jurisdiction, international trade and investment law, international criminal law, and international health law. I thank the contributors for their insightful articles and for engaging intensively with the topic of this special issue. Many of the contributors were part of the project since Maria Varaki and I prepared our initial workshop held in January 2021 — and I am especially grateful for their com-mitment to this project and their patience during the process of publication of this special issue. I also thank in particular Inge van Hulle and Russell Miller who have enriched the special issue with their editorial support and input. The special issue is structured as follows:","PeriodicalId":36303,"journal":{"name":"German Law Journal","volume":"24 1","pages":"435 - 437"},"PeriodicalIF":1.3,"publicationDate":"2023-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48519232","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Does Digitalization Change International Law Structurally?","authors":"Dana Burchardt","doi":"10.1017/glj.2023.31","DOIUrl":"https://doi.org/10.1017/glj.2023.31","url":null,"abstract":"Abstract The article provides a meta-analysis of the structural impact of digitalization on international law. It synthesizes the contributions of this special issue, showing how their findings are interrelated and which cross-cutting trends we can observe. It uses an analytical framework designed to assess structural changes in international law by analyzing the impact that digitalization has on key reference points: Actors, norms, and values. From this assessment, it draws the conclusion that digitalization is changing, and will continue to change structural features of international law.","PeriodicalId":36303,"journal":{"name":"German Law Journal","volume":"24 1","pages":"438 - 460"},"PeriodicalIF":1.3,"publicationDate":"2023-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42945895","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}