Duncan B. Hollis Responds to Professors Eric Jensen and Jonathan Zittrain

Duncan B. Hollis Responds to Professors Eric Jensen and Jonathan Zittrain

[This post is part of the Second Harvard International Law Journal/Opinio Juris Symposium.] First, I want thank both Eric Jensen and Jonathan Zittrain for taking the time to respond to my article.  Both have thought long and hard (not to mention well!) about regulating cyberspace. Eric's early work assessing computer network attacks under the legal rules on use of force was one of...

Jonathan Zittrain responds to Duncan Hollis

[Jonathan Zittrain, Professor of Law at Harvard Law School and Co-Director of the Berkman Center for Internet & Society, responds to Duncan Hollis, An e-SOS for Cyber-Space. This post is part of the Second Harvard International Law Journal/Opinio Juris Symposium.] Duncan Hollis’s e-SOS article reinforces several important insights. The first emphasizes that the current state of computer and network security is bad and getting worse, and that traditional responses are insufficient. These responses include the self-help of installing layers of firewalls and anti-virus mechanisms, as well as government intervention through traditional rule and sanction against bad acts. My own thinking around alternative responses and their respective inadequacies is structured around four quadrants.¹ Two depend on singular and universal application to work; while two draw their power from competition. Government action is in the former category. Wrongs are defined, and in the most simple model, the state then acts against wrongdoers. Corporate and individual responses are in the latter category because they are less encompassing and more varied. The hope is that from that mix, new solutions can emerge, as, for example, each anti-virus vendor strives to offer the most complete and rapidly-updated definitions.

Eric Jensen responds to Duncan Hollis

[Eric Jensen, Visiting Assistant Professor of Law at Fordham University Law School, responds to Duncan Hollis, An e-SOS for Cyber-Space. This post is part of the Second Harvard International Law Journal/Opinio Juris Symposium.] Drawing on the familiar and effective maritime principle of an SOS distress call, Professor Hollis argues in his paper that an analogous system should be established to respond to cyber distresses. The paper is extremely well researched and written and presents a very innovative idea certainly worth considering, and if not accepting, at least building upon to address the significant need for better responses to cyber threats. To his credit, unlike many commentators in the area, Hollis doesn’t just identify the problems, but proposes a solution that certainly has merit and is based in current international law. In addition to Hollis’s proposal which I will address below, two of the best aspects of the paper are the factual data compiled as the introduction and the analysis of the attribution problem. Though both sections are designed to be background for Hollis’s main point, they are among the most articulate and complete in the current literature.

Jacob Katz Cogan responds to John H. Knox

[Jacob Katz Cogan, author of The Regulatory Turn in International Law, responds to comments by John H. Knox. This post is part of the Second Harvard International Law Journal/Opinio Juris Symposium.] I would like to thank John Knox for his very thoughtful and quite generous response to my article The Regulatory Turn in International Law. In a number of ways, the article builds on John’s own scholarship – particularly his excellent Horizontal Human Rights Law, 102 American Journal of International Law 1 (2008). So it is particularly appropriate for us to continue the discussion here today. John’s response focuses on private duties in the context of human rights, and he argues that “[h]uman rights law has always been concerned about threats to human rights from non-state actors.” Recent developments, then, are “an intensification of a long-standing characteristic.” I don’t disagree. As John notes, and as discussed the article, “treaties requiring states [for example] to regulate individuals and corporations to suppress slavery, labor abuses, and racial and gender discrimination” predated the late 1980s, which is the date I point to as the beginning of the regulatory turn. And he is correct to conclude that “the challenge of distinguishing between duties that undermine human rights and those that promote them is not new.”

John H. Knox responds to Jacob Katz Cogan

[John H. Knox, Professor of Law, Wake Forest University, responds to Jacob Katz Cogan, The Regulatory Turn in International Law. This post is part of the Second Harvard International Law Journal/Opinio Juris Symposium.] In The Regulatory Turn in International Law, Jacob Katz Cogan takes on a big topic:  the increasing regulation of non-state actors by international law.  Because this development is occurring in so many areas of international law, its full extent can be difficult to grasp.  As the article explains, it is not simply an aggregation of many changes in different fields, but a sea-change in the orientation of the entire international legal system. Even an article that merely identified this “regulatory turn” would be of great importance.  But this article does much more than that.  It provides a historical narrative, it pulls together examples from many different regimes and explains how they constitute common types of regulation, and it analyzes the effects of this development on the international system as a whole.  The result is a seminal work that will influence later scholarship for years to come.

The Regulatory Turn in International Law by Jacob Katz Cogan

[Jacob Katz Cogan, an Associate Professor of Law, University of Cincinnati College of Law and a Visiting Associate Professor of Law, Vanderbilt University Law School, Spring 2011, describes his recently published Article, The Regulatory Turn in International Law. This post is part of the Second Harvard International Law Journal/Opinio Juris Symposium.] In the post-War era, international law became a talisman for the protection of individuals from governmental abuse. Such was the success of this “humanization of international law” that by the 1990s human rights had become “part of . . . international political and legal culture.” This Article argues that there has been an unnoticed contemporary countertrend—the “regulatory turn in international law.” Within the past two decades, states and international organizations have at an unprecedented rate entered into agreements, passed resolutions, enacted laws, and created institutions and networks, formal and informal,that impose and enforce direct and indirect international duties upon individuals or that buttress and facilitate a state’s authorities respecting those under and even beyond its territorial jurisdiction. Whereas the human rights turn protected the individual against excessive governmental control, these parallel processes do just the opposite—they facilitate and enhance the regulatory authorities of government (both national and international) in relation to the individual.