TECHNOLOGY AND INTERNATIONAL LAW AN EMERGING MARKETS PERSPECTIVE.

• Author: Lim, Hannah

I INTRODUCTION

Technology-related concerns are primarily discussed in the context of developed societies, where such technology was developed. But to fully understand the potential impact of technological development in today's globalised world (a phenomenon brought about by technology itself), understanding the potential impact on smaller developing countries is necessary. This article considers how fourth industrial revolution ('4IR') technology trends could impact developing countries and the unique challenges such communities face in handling the same. This article is divided into two parts: Part II provides a brief overview of the unique attributes of the 4IR technologies, referencing AI, blockchain and cryptocurrencies, and social media, as examples. This is followed by an exploration of the implications such technology might have on nation-states, emphasising the experience of developing countries. Part III considers how some technology-related difficulties experienced by developing countries may stem from a poor fit between the existing international law framework and our present-day technological capabilities and concludes with some ideas and perspectives on addressing these challenges.

This article considers the 'State', 'governments' and 'authorities' strictly in their formal institutional roles without accounting for corrupt individuals taking advantage of a political position for personal gain. Certainly, new technology can arm citizenry with new means of challenging illegitimate and corrupt governments. However, the intention here is to highlight the challenges all legitimate governments may face in building a strong nation-state within the existing international law framework and with the current 4IR technology trends. As such, this discussion assumes governments are legitimate, and seek to lift their populations out of poverty and into the status of 'developed economies'. As such, the purpose of this article is to contribute to an on-going discussion on technology and society, and to bring in the perspective of developing countries - particularly smaller developing countries who, unlike India or China, would not be the subject of immediate attention. The challenges posed by technology to such countries and, because of such challenges, how this may impact international law, are extremely complex and it would not be possible for an article such as this to speak conclusively or to proclaim truth on the matter.

II TECHNOLOGY AND ITS IMPLICATIONS

1. A Brief Overview of the 4IR technologies

   The law has frequently been accused of failing to keep up with technological change--that the clunky apparatus of government, and its political sluggishness, is unable to keep up with the technology developments initiated by potentially anyone with a computer and an internet connection. The tension between technology and the law is not new, (1) and is inherent in the relationship between 'law' and 'technology' as concepts. Law is, essentially, the management of relationships in accordance with the value system of a community, whether it is the relationship between a State and its citizens (or non-citizens), or between private actors, or between an entity (corporate or individual) and property. Managing relationships requires the allocation, and enforcement, of risk, rights and responsibilities. In the context of national law, for example, such allocation is expressed through legislation, tort law, or contract, and enforced through the judicial system. (2) Technology, on the other hand, represents the limits to 'what actions we can perform, what objects we can create, and what relationships we can form... [and therefore] has a significant impact on what is possible'. (3) The introduction of new possibilities through technological development naturally gives rise to new relationships which the law might not have provided for, thereby disrupting the social equilibrium calibrated and enforced by the law, and maintained by the development of jurisprudence. Because of such changes, the original allocation of risk, rights and responsibilities may no longer be relevant, or may fail to meet the original intention.

   The 4IR technologies, however, are notoriously difficult to regulate, perhaps more so than the technological developments prior to the internet, which were limited primarily to goods, services and systems with a firm connection to and dependency on the physical world. (4) The 4IR technologies (in both how they are developed and what they promise to achieve) create new realms of human engagement which are distinctly detached from the physical world. This sub-section provides a brief overview of four technological advancements, namely AI; blockchain and cryptocurrencies; and social media together with virtual and augmented reality, to demonstrate how the 4IR has resulted in an increasingly 'electronically connected world [where] the effects of any given action may immediately be felt elsewhere with no relationship to physical geography at all'. (5) As will be later argued, this leaves governments, particularly those in smaller developing countries, with less control over the wellbeing of their populations, and is a threat to the effectiveness of State-centric conceptions of jurisdiction under international law.

   1. Artificial Intelligence

      AI is the simulation of 'human capabilities' (6) allowing machines to execute tasks autonomously, without human direction or intervention. What is distinctly unhuman about AI, however, is that physical infrastructure is not necessary for it to exist or function--AI exists in software and is incorporeal in nature. It also requires very little infrastructure to develop. Matthew U Scherer sums up AI's attributes as follows: AI research and development may be discreet (requiring little physical infrastructure), discrete (different components of an AI system may be designed without conscious coordination), diffuse (dozens of individuals in widely dispersed geographic locations can participate in an AI project), and opaque (outside observers may not be able to detect potentially harmful features of an AI system)'. (7) Its incorporeal nature allows AI to be deployed via various mediums (such as the internet) and through the most accessible platforms (such as Google search engines and Facebook).

      AI is a 'general purpose technology' with potential pervasive applications across many sectors. Hence, the domains of its application are almost limitless. (8) Currently, machine learning powers Google's search engines (and its myriad other products) (9) and social media platforms such as Facebook (10) and Twitter (11) - services that are ubiquitous and accessible from almost any part of the world with an internet connection (and a VPN). AI has been used in products such as digital personal assistants and smart home hubs (such as Siri and Alexa) and in the recommendation of products and content on platforms like Amazon and Netflix. Paired with hardware, AI gives rise to smart robots capable of executing tasks of increasing complexity, from the cleaning robots (such as the Roomba) to self-driving cars, automated manufacturing, robot baristas (12) and robot-assisted surgeries.

   2. Blockchain and Cryptocurrency

      Blockchain is a network of distributed ledgers which is decentralised, permanent, automatic and assures relative anonymity of the transactions it facilitates. (13) Like Al, the Blockchain does not require specific infrastructure to develop. It is 'an open-source code that can be downloaded and run by anyone for free', (14) allowing for entire networks to be developed and to span across any number of jurisdictions. From the sum of these parts, information (which can include anything of value such as money, property deeds and identities) can be simultaneously moved, managed and stored by many people, allowing for 'people who have no particular confidence in each other [to] collaborate without having to go through a neutral central authority'. (15)

      With these key traits, evangelists claim that blockchain technology replaces the need for trust in a central authority with cryptographic proof, (16) enhancing the legitimacy, while simultaneously reducing the costs, of such transactions. This has been applied to various uses, the most popular of which are cryptocurrencies such as Bitcoin which are 'not reliant on governments, banks, or other intermediary institutions.' (17) The technology is also rapidly evolving to accommodate more complicated tasks and transactions, giving rise to 'smart contracts' which automatically execute agreements upon the verification of a prescribed business logic, delivering transparency and trust without the need for market intermediaries. The enhanced efficiency and almost immediate execution of transactions has bred ideas on how such technology might revolutionise energy and insurance markets toward greater precision and therefore, efficiency. (18)

   3. Social Media, Virtual and Augmented Reality

      Virtual reality ('VR') is the creation of an artificial environment through software presented to the user in such a way that they suspend belief and accept it as a real environment. The simplest form of virtual reality is a 3-D image that can be explored interactively at a personal computer, usually by manipulating keys or the mouse so that the content of the image moves in some direction or zooms in or out. More sophisticated products involve components such as wrap-around display screens, rooms augmented with wearable computers, and haptics devices that allow users to feel the display images. Augmented reality CAR) uses technology (usually through a gadget such as a smart phone) to supplement (or augment) the user's real environment with computer-generated images and sounds. (19) VR and AR allow a user to be immersed into technology, 'whereby the barrier between the real and virtual worlds is blurred. ('20) In this manner a user's perception and emotional responses...