states on a global scale. It is unclear to what extent the emergence of alternative
enforcement mechanisms could be read as a delegation of state power and how
much they owe their existence to creativity in bypassing the litigation threshold.
The second option for reinterpretation is to perceive sovereignty as interdependence between states. Rijgersberg suggests a model for interpreting sovereignty in the context of a globalised legal environment, in which sovereignty and
constitutional obligations are considered as interdependence of interconnected
states and private operators would provide the organisational architecture for this
by participating via Internet. For Rijgersberg, the state maintains the responsibility for providing public security, ensuring welfare and protecting property
rights. Rijgersberg’s claim that, from the perspective of globalisation, constitutional responsibilities can be interpreted as interdependency provides us with a
useful insight. Still, it is unclear how such a reinterpretation would provide us
with added value for explaining the role of the state in justifying dispute
resolution technology. Sovereignty as interdependence could help us to include
alternative enforcement mechanisms, but what this solution essentially would
entail is somewhat elusive. Interdependent sovereignty could assist in expanding
the stakeholders in enforcement, but several questions are left open. For example,
what is the relationship between private enforcement and the interdependent
nation-states and how the organisational infrastructure relates to the principle of
democracy?
A third option for reinterpretation is to perceive sovereignty as interaction of
different justificatory constructs. Thus, sovereignty would re-enter this discussion
through its nature as the consent of the governed or as the safeguard of access to
justice. For example, the jurisdiction of state courts would be derived from the
consent of the people represented by their system of government, from the
principle of democracy. Hence, it would be the consent of the people instead of
the interests of state sovereignty that would provide justification for dispute
resolution.
70 Another example is to derive justification from the fundamental
right of access to justice, which would be primarily provided and identified in
connection with the state.
However, the difficulty with this solution is that it would preserve the term but
transfer its meaning to other constructs. In the end, such a strategic move would
not provide a new role for sovereignty, but instead would change the source of
justification from the structural coupling between law and politics to somewhere
else. This strategy would remove the dysfunctionality of sovereignty on the surface
level, yet it would only hide the problem. We need to consider the applicability of
consent and access to justice as their own sources of justification rather than as the
other side of sovereignty.
The demise of nation-states caused by technology has also been acknowledged
in relation to cyber threats.
71 The argument is similar within that debate to what
has been related here concerning dispute resolution: the emergence of technology has created the possibility of cyber threats that have consequences different
from crime, terrorism and war outside cyberspace and these threats cannot be
addressed within the current framework of nation-states. According to Brenner,
132 Three quests for justification
enforcement mechanisms could be read as a delegation of state power and how
much they owe their existence to creativity in bypassing the litigation threshold.
The second option for reinterpretation is to perceive sovereignty as interdependence between states. Rijgersberg suggests a model for interpreting sovereignty in the context of a globalised legal environment, in which sovereignty and
constitutional obligations are considered as interdependence of interconnected
states and private operators would provide the organisational architecture for this
by participating via Internet. For Rijgersberg, the state maintains the responsibility for providing public security, ensuring welfare and protecting property
rights. Rijgersberg’s claim that, from the perspective of globalisation, constitutional responsibilities can be interpreted as interdependency provides us with a
useful insight. Still, it is unclear how such a reinterpretation would provide us
with added value for explaining the role of the state in justifying dispute
resolution technology. Sovereignty as interdependence could help us to include
alternative enforcement mechanisms, but what this solution essentially would
entail is somewhat elusive. Interdependent sovereignty could assist in expanding
the stakeholders in enforcement, but several questions are left open. For example,
what is the relationship between private enforcement and the interdependent
nation-states and how the organisational infrastructure relates to the principle of
democracy?
A third option for reinterpretation is to perceive sovereignty as interaction of
different justificatory constructs. Thus, sovereignty would re-enter this discussion
through its nature as the consent of the governed or as the safeguard of access to
justice. For example, the jurisdiction of state courts would be derived from the
consent of the people represented by their system of government, from the
principle of democracy. Hence, it would be the consent of the people instead of
the interests of state sovereignty that would provide justification for dispute
resolution.
70 Another example is to derive justification from the fundamental
right of access to justice, which would be primarily provided and identified in
connection with the state.
However, the difficulty with this solution is that it would preserve the term but
transfer its meaning to other constructs. In the end, such a strategic move would
not provide a new role for sovereignty, but instead would change the source of
justification from the structural coupling between law and politics to somewhere
else. This strategy would remove the dysfunctionality of sovereignty on the surface
level, yet it would only hide the problem. We need to consider the applicability of
consent and access to justice as their own sources of justification rather than as the
other side of sovereignty.
The demise of nation-states caused by technology has also been acknowledged
in relation to cyber threats.
71 The argument is similar within that debate to what
has been related here concerning dispute resolution: the emergence of technology has created the possibility of cyber threats that have consequences different
from crime, terrorism and war outside cyberspace and these threats cannot be
addressed within the current framework of nation-states. According to Brenner,
132 Three quests for justification