Fleur E. Johns

Global Governance through the Pairing of List and Algorithm

The work of global governance increasingly entails some pairing of list and algorithm. Across sectors as diverse as environmental conservation, migration, nuclear nonproliferation, humanitarian aid, counterterrorism, and more, the list-plus-algorithm is, it seems, displacing rival juridical forms on the global scale. This paper probes some implications of the proliferation of this conjunctive form of’law’. Beginning with a typology of some types of governance work that the list-plus-algorithm is called to do on the global plane, this paper tracks movements of knowledge from the arcane form of the list into an algorithmic mode, and back again. It considers, too, some difficulties with which these configurations of lawful authority may be associated and the repertoire of techniques that international lawyers typically use to address these. Among these, the endless championing of transparency will be the focus of particular critique. Precisely as the prospect of seeing definitively through these decision-making devices seems, for a range of reasons, almost impossible to achieve, preoccupations with transparency have intensified. But what else might be entailed in making ‘public’ the governance work of these list-plus-algorithms? This paper takes up this question by focusing attention on how lists-plus-algorithms bring peoples, places, and things into lawful relation.

The Risks of International Law

The past few decades have witnessed a proliferation in the writings on risk and uncertainty. Led by the work of writers such as Beck, Luhmann, Ewald, and Giddens, scholars across the humanities and social sciences have been engaged in reflections on the ways in which our understanding of risk structure informs decision-making and the attribution of responsibility. One of the central topics in this body of literature is the transformation of the concept of risk in postmodern societies.

India and International Law

This is the third issue of the Periphery Series of the Leiden Journal of International Law . The first two were dedicated to the works of the Chilean jurist Alejandro Alvarez and the Nigerian international lawyer Taslim Olawale Elias – two scholars from regions conventionally cast as ‘peripheral’ to the disciplines metropolitan ‘centre’. This issue takes a somewhat different perspective by focusing on a country (or subcontinent) as a whole. Its primary questions concern the way in which Indian scholars have imagined, shaped, and reshaped international law; the manner in which Indias domestic system has received international law; and the ways in which India has been projected by the international legal system.

Editors' Introduction: Alejandro Álvarez and the Launch of the Periphery Series

The articles in this issue of the Leiden Journal of International Law (LJIL), on the life and work of Alejandro Alvarez, comprise the first in a series of occasional special issues planned for the LJIL, each of which will focus on the work of a leading international legal scholar from the ‘periphery’. In launching the Periphery Series, the editorial board of the LJIL had in mind the goal of focusing attention on the role played by centre–periphery dynamics in international law. The centre–periphery formulation of international affairs owes its provenance to political economy, in which context it is primarily associated with dependency theory, Immanuel Wallersteins world systems theory, and more recently, Paul Krugmans model of the geography of trade economics. In part, the Periphery Series invites scholars to confront questions of resource allocation, dependency, and geography highlighted by those bodies of work. In addition, however, this series seeks to foster wider engagement with the discursive function of centre–periphery oppositions in international law, in their many and various iterations.

Data, Detection and the Redistribution of the Sensible in International Law

One dusty day in 2002, at Takhta Baig Voluntary Repatriation Centre near Peshawar in northwestern Pakistan, an Afghan woman—let us call her Amena—entered a nondescript room and sat down in front of a camera. A brief conversation took place with a woman sitting nearby at a computer terminal. Amena placed her chin where she was directed to do so, swept back a few strands of hair creeping out of her veil, and stared straight ahead for a few seconds while a series of photographs of one of her eyes was taken. Almost immediately, a small alarm sounded on the computer terminal of the woman seated alongside her. Amena was gently ushered toward the other side of the room for discussions with other officials. Some short time later, she was advised that her request to the Office of the United Nations High Commissioner for Refugees (UNHCR) for a modest cash grant and some supplies to aid her and her familys repatriation to Afghanistan had been denied. This was because, according to output of the UNHCR’s iris verification program, she had already received assistance earlier the same year. When asked, Amena admitted that she had indeed sought UNHCR repatriation assistance multiple times, under pressure from family members. She walked away. Soon, she could soon no longer be seen amid the press of trucks, cars, bicycles, and people that stretched to the suburbs in the distance.

Academic Metrics and Positioning Strategies

Abstract Since the 1980s, higher education institutions in many developed Western countries have been facing competition for resources, have undergone economic rationalisation, adopted a New Public Management style of performance management and aspired to meet global standards of quality. This chapter explores the self-tracking practices of academic institutions and workers as they negotiate a field that has moved away from a quality evaluation system based primarily on social reputation towards one based increasingly on quantified outcome indicators. Universities typically measure research performance not only in terms of quantity of outputs but also the ‘attention capital’ they receive, for example, the number of citations or awards and prizes. These metrics and the emphasis on attention capital generally encourage a culture of competition rather than collaboration, while promoting the ‘celebrification’ of academic life. We argue that this trend has been intensified by technologies that gamify research achievements, continuously update citation and ‘read’ counts, and promote networked reputation. Under these conditions, academic institutions and workers have attempted to pursue a variety of positioning strategies that represent different degrees of conformity, resistance and compromise to the power of metrics.

Data associations in global law and policy

Social phenomena—or the condition of society—may be ‘‘seized indirectly when there is a slight change in one older association mutating into a slightly newer or different one’’ (Latour, 2005: 36). The aim of this special issue is to trace mutations underway in those associations rendered or experienced in data and to probe some patterns that these changing ties draw. In particular, contributors to this issue reflect upon associations traceable in data that are of a juridical nature (or could be so understood), or that have salience for legal institutions and norms. This is something other than inviting consideration of ‘‘problems’’ that technology makes for law. It is something other, too, than thinking about whether law does or does not determine or reflect socio-technical practice, or vice versa, and how such law-technology correspondence might ‘‘properly’’ be maintained. Instead, contributors engage here in a collective experiment of envisioning data as vectors of lawful relations on the global plane, and at other scales. This is unfinished business for Big Data & Society. In this journal’s opening issue, Rob Kitchin argued that ‘‘the development of digital humanities and computational social sciences. . . propose radically different ways to make sense of culture, history, economy and society’’ (Kitchin, 2014: 1). But what ‘‘sense’’ could ‘‘Big Data empiricism,’’ as Kitchin described it, make in, of and for global law and policy? This is among the questions that the contributors to this special issue take up. Neither digital technology nor law is pivotal to this inquiry, so much as their irrepressible leaking and morphing into would-be or could-be versions of the other. As paradigmatic a shift as the turn to epistemologies of Big Data might seem, making connections between these emergent epistemologies and ‘‘older association[s],’’ in Latour’s words, is also an important task of this collection. Sheila Jasanoff traces, for instance, the history of the production of ‘‘a panoptic viewpoint from which the entire diversity of human experience can be seen, catalogued, aggregated, and mined’’ from the mid-20th-century, especially in the emergence of the ‘‘global environment’’ as an ‘‘actionable object for law and policy.’’ Naveen Thayyil likewise draws an analogy between change in weather and climatological studies from the 1960s onwards (from instrument reading techniques to computer modeling) and parallel shifts in approaches to risk regulation (from conventional risk assessment to precautionary approaches, the latter increasingly advanced through ‘‘Big Data’’ automation). Ben Hurlbut similarly connects ‘‘scientifically authorized imaginations of future risk’’ on the global plane to earlier incarnations of the ‘‘republic of science’’ assembled around pandemic risk since the 19th-century. Other contributions to this volume re-frame contemporary phenomena by reference to associations of more recent provenance: Sarah Logan analyses ‘‘post 9-11 mass surveillance’’ and the ‘‘anxious information state’’ it enshrines. Likewise, Gavin Smith, Kath Albury, Jean Burgess, Ben Light, Kane Race, Rowan Wilken, and Daniel Joyce focus on ‘‘data cultures’’ ascendant during the past decade and the legal, social, and political conflicts and connections that surface amid them. The protagonists and environs of the stories told in these pages vary greatly. Not all are of a kind that one

Data Territories: Changing Architectures of Association in International Law

Territoriality is a powerful architecture of association in international law, performing significant bounding, distributive and placement functions. Yet it has always interacted with other global legal architectures of affiliation and disaffiliation, among them informational geographies. So what becomes of territoriality amid the turn to data analytics—the automated analysis of massive, distributed data sets—as a basis for international legal and policy decision, action, thinking, and prediction? This chapter recounts processes and practices already underway on the global plane that are effecting, on one hand, the ‘datafication’ of territory (and the related rise of a logic of association) and, on the other, the ‘territorialisation’ of data (and the emergence or recurrence of ‘data territories’) in international legal order. Through these kinds of processes, and in its variable configurations, data might yet parallel physical territory (landed and maritime) as a primary medium for the conduct of juridical global life and conflict, a prospect that raises important questions for international law and lawyers.

Introduction to Symposium on Cybersecurity and the Changing International Law of Data

The hacking of the Democratic National Committee (DNC)’s email system and its resulting impact on the U.S. presidential election of 2016 has brought the issue of cybersecurity to the forefront of public concern in the United States and, to varying degrees, elsewhere. For the public, cybersecurity is no longer just a fringe problem of strange email scams promising unclaimed winnings, or a subject for off-beat television hacker dramas.1 Now President Putin leaps to mind, as we are plunged into a newly perplexing version of Cold War intrigue. Even the most powerful of the world’s nation-states seem to be at a loss as to how to respond. The Obama administration’s struggles to craft a response to its finding that Russia hacked the DNC in an effort to influence the U.S. election, and the incoming Trump administration’s dismissal of the episode as unworthy of further state action, have demonstrated the challenge that cybersecurity poses to international law, also. The existing toolkit of norms, treaties, institutions, and sanctions has been exposed as woefully inadequate. As others have explained, cybersecurity is a term dating from the early 1990s that captures the imperative of countering a wide range of threats arising from the networked interpenetration of computer systems.2 As such, it is by its nature a transnational problemwith deep implications for interstate conflict and global economic order, as well as for individual and collective human rights. Yet as a discipline, international law is struggling to take account of technopolitical innovations that have a bearing on cybersecurity. First, cybersecurity stretches uneasily across existing international and national legal categories such as the laws of war, intellectual property law, criminal law, tort law, contract law, privacy law, the law and institutions governing the internet, and national security law. More importantly, the problems and possible solutions with which cybersecurity is concerned are not legal alone. They are also technical—framed by innovations in computer science hardware and software and in changing utilizations of these. And they are cultural too—determined by how technologies are deployed, and how norms are interpreted in diverse communities from hackers to email users, and from security professionals to product designers, around the world. Moreover the issues and problems look very different in different parts of theworld. The cybersecurity problems and solutions in themost well-resourced countries are quite distinct from those of the developing world. As is often noted, the cybersecurity commitments of countries such as the United States or Australia and of the European Union stand in contrast to the more sovereignty-oriented frameworks advocated by countries such as Russia and China. Any possible solutions will therefore depend on a rich international and interdisciplinary dialogue between lawyers, computer scientists, social scientists, economists, and humanists in different parts of the world. This is no

Starting and Stopping Points: A Response to Stavros Gadinis

Open the website of the Financial Action Task Force (or FATF) and find your way to the “FATF Presidency” page. Up until the end of June 2015, you would have encountered a headshot of a dapper fellow with smiling eyes and a pink bowtie: Roger Wilkins OA, President of FATF between July 2014 and June 2015. A one time “mandarin” of the public service in Australia (former Secretary of the federal Attorney-General’s Department in that country), Mr. Wilkins seems an apt embodiment of those qualities that Stavros Gadinis would have us see in the FATF, as a “ministry executives” network. It seems entirely plausible to cast Wilkins as a vehicle of such networks’ “key motivation”—to pursue “broad societal goals.” From his record, he seems well suited to the role of guardian of “states’ interests” in a “secure environment,” deft at deploying his “longstanding connections” and “power relations” in order to “strike deals” and, where necessary, unleash “sanctions’ firepower.” In short, Mr. Wilkins seems to “fit neatly within the three types—private, regulator, ministry” around which Stavros Gadinis’ thought-provoking article revolves.