Informed Publics, Media and International Law

Daniel Joyce

• Publisher: Hart Publishing
• Year: 2020
• ISBN:
  9781509930432
• Edition: 1
• Topic: Diritto
• Subtopic: Diritto dei media e dell'intrattenimento

This book considers the significance of informed publics from the perspective of international law. It does so by analysing international media law frameworks and the 'mediatization' of international law in institutional settings. This approach exposes the complexity of the interrelationship between international law and the media, but also points to the dangers involved in international law's associated and increasing reliance upon the mediated techniques of communicative capitalism – such as publicity – premised upon an informed international public whose existence many now question. The book explores the ways in which traditional regulatory and analytical categories are increasingly challenged - revealed as inadequate or bypassed - but also assesses their resilience and future utility in light of significant technological change and concerns about fake news, the rise of big data and algorithmic accountability. Furthermore, it contends that analysing the imbrication of media and international law in the current digital transition is necessary to understand the nature of the problems a system such as international law faces without sufficiently informed publics. The book argues that international law depends on informed global publics to function and to address the complex global problems which we face. This draws into view the role media plays in relation to international law, but also the role of international law in regulating the media, and reveals the communicative character of international law.

1

Informed Publics

International law is a political project to imagine, construct and order the world, but in whose image? A more nuanced representation of the conflictual and diverse nature of international society is needed, one which takes greater account of the local and the domestic, but does not turn away from the benefits and reality of integration and co-existence. Informed publics provide such an account and offer a more inclusive and messier picture of the social and connective tissue of international law. Foregrounding such a role for informed publics reveals the functionally necessary, though underexplored, interaction of media and international law. This relationship enables the communicative dimension of international law’s daily operation, helping to shape and represent its normativity, scale and image. But focusing upon media also generates anxieties and confirms longstanding theoretical concerns regarding the status and authority of publics in international law.

One of the central dilemmas of international law concerns the extrapolation to the international level of institutions and practices designed to achieve popular participation at the domestic level. For example, is there a unitary global ‘public’? What does this mean in terms of participation in decision-making – and what role does the media play in this regard? These questions carry implications for the wider legitimacy, and integrity, of the international legal system and have been articulated in terms of democracy, transparency and accountability within international governance.¹ As we shall examine in this chapter, publics have historically been considered in international legal scholarship through debates over public opinion. This has seen international lawyers attempt to reach and shape publics through the media-driven technique of publicity. Yet, as I will examine in later chapters, the rhetoric of transparency and publicity as a ‘fix’ for the legitimacy problems faced by international law carries its own dangers.² Indeed the digital disruption of the media landscape (as part of a broader technological transformation) is contributing to difficulties in locating authority within a cohesive global public sphere.³

Furthermore, both media and international law are now diagnosed as being in various states of crisis and fragmentation. After 1989 a revived liberal internationalism dominated visions of an international order guaranteed by a seemingly triumphant United States. Thirty years on from this moment of hope and hubris, the prospects for continuing dominance of US liberal internationalism appear to be diminished.⁴ Similarly an optimistic view of the connective power of global media is shadowed by concerns regarding monopoly and manipulation. And yet global problems requiring co-ordination and regulation beyond the domestic context point to the need for a more participatory and diverse conception of international law and its constituent subjects. It is here that I argue informed publics play a vital role, also requiring greater attention to be paid to the adequacy of current approaches to global media regulation. That will be the subject of later chapters which survey and analyse some exemplary, though often inadequate, international legal frameworks for the media and the notions of the public which underly them. I will also examine the ways in which international institutions conceive of public engagement in the form of publicity, a process which is central to the mediatization of international law with both positive and negative consequences.

In this opening chapter I begin by offering the conceptual tool of informed publics. Having done so I then examine a range of earlier debates regarding public opinion and international law. These historical debates point to ongoing difficulties in locating the public in international legal theory and to lingering concerns regarding international law’s relationship to the media. As we will discover in later chapters, they help to expose the way in which international law has regulated and also failed to regulate media. I consider, for example, debates over information ordering and media governance which took place during the Cold War. This historical perspective helps us to understand and contextualise the contemporary challenges faced by media and international law. I argue that these challenges reflect a failure to regulate the media in transnational contexts and also a failure of imagination with regards to our conception of international society.

I.Informed Publics

Despite the significance of domestic and regional dynamics within international law, there remain significant global problems that require the attention of global publics and frameworks. Unfortunately, there is little contemporary agreement regarding the shape and structure of such publics or the role which publicity might play in their constitution. The effects of such epistemic and social instability are being felt in a shifting international legal environment. Anne Orford notes that

before questions of law and government can be determined, issues of fact have to be addressed … [y]et in an increasingly globalized world, where many policy questions are shaped by competing knowledge communities and resulting factual uncertainty, it has become increasingly difficult to produce that kind of knowledge about matters of political controversy.⁵

Many now contest the existence of a monolithic global public, and assert that this overstretches political connections to a point where they become too thin to hold meaningful content.⁶ Claims in the name of the international community are often attempts to translate the particular into a language of self-serving universalism.⁷ David Kennedy warns of the dangers of disenfranchisement involved in the ‘transformation of the first world media audience, as that audience is imagined by the media, into “the international community”’.⁸ Immi Tallgren points to further problems with emphasising communicative theory on the international plane when she asks, ‘in a plurality of political conceptions, what values should be communicated?’⁹ Nick Couldry and Clemencia Rodriguez remind us also of the ongoing political stakes of digital communication platforms which embed ‘corporate logics’ within the forms that media (and international law) take.¹⁰

In spite of these important critical perspectives it is clear that the media’s information-imparting function connects it both with public opinion and the formation of informed publics.¹¹ The media wields significant communicative power which has a political impact and ‘can shape public opinion more broadly’.¹² Informed publics are in turn essential to international legal processes, participation and reform.¹³ Carlo Focarelli has argued here that: ‘The internet and new media technologies, in particular, are key to the growth of transnational civil society … the media encourage interconnection in international society and create new opportunities for the growth of international law’.¹⁴ And yet this important idea of the media’s informational role can underplay the ideological function of the media and mask significant contradictions underlying current patterns of regulation. Similarly, liberal internationalism presents a seemingly neutral self-image of an international community shaped and supported by a universal international legal system when it has in fact also been revealed as ideological and exclusionary. We need to ask what kind of publics are envisioned and delivered by the media, by international law, and through their interaction? Is a traditional public sphere conception of media influence too unitary in form, and consequently does it fail to both descriptively and normatively account for the diversity and dynamism of global publics?

In his early work, The Structural Transformation of the Public Sphere, Jürgen Habermas charts the emergence of a bourgeois public sphere and the central role of media within this process.¹⁵ According to Blanning, the role of communication is linked in the Habermasian account to the notion of the public: ‘it is the effort of communication which creates the “public” and gives it qualities of cohesion and authority quite different from mere aggregates of individuals’.¹⁶ Habermas emphasises the role of the media in several key dimensions: as an aspect of democracy; as a means for promoting public deliberation and rational communication; as implicated in the rise of public opinion and publicity; and as an arena for the emergence of commercial monopolies. He provides an optimistic account of the historical role of the media, though one which is at the same time pessimistic about the potential for market monopolisation of the culture industries. He sees the dangers for a commercialised media to become manipulative, emotive and sensationalist in its treatment of public debates.

Benedict Anderson also famously argued that the rise of the media was implicated in the rise of the nation state, the building block of traditional international law.¹⁷ Similarly, Habermas places the press and the world of letters at the heart of this process of transformation.¹⁸ At the same time, he subjects the politics of spectacle and the marketing of politics to sustained critique.¹⁹ Ultimately, he is sanguine about the potential for a rational public manifested through organisations and the media. The key to ‘critical publicity’ for him is a plurality of media. For Habermas, ‘this critical form of publicity is in conflict with publicity merely staged for manipulative ends’.²⁰ The Structural Transformation of the Public Sphere is not a contemporary account, but its concept of the public sphere remains foundational to contemporary understanding of the public and its examination of publicity continues to be relevant.²¹ Nevertheless, it is rightly critiqued as failing to take adequate account of difference, structural inequalities and the ways in which the public sphere maintains rather than challenges hierarchies of communicative power.²²

The concept of informed publics, by contrast, offers a model of international civil society which allows for greater variety of forms of association. This anticipates the translation of the traditional notion of a public sphere to emerging global dig...