these cyber threats cannot be classified as internal (such as crime or terrorism
caused by individuals) or external threats (war between sovereign nation-states)
to the societal order, as cyberspace introduces a new element to defining and
evaluating these disruptive actions.
72
Enforcement takes a decisive role also in relation to cybercrime. Brenner
describes the nation-state’s agenda for overcoming internal and external threats
as two-fold, where both the containment of external threats by a standing army
and containment of internal threats by law enforcement and the judiciary are
based on the monopoly on violence. However, the distinction between warfare
and individual crime becomes more and more difficult to hold on to, as recognition is no longer as simple, and the two categories may also converge.
73 Also, the
relatively low risk of getting caught, prosecuted and sanctioned for transnational
criminal action online contributes to the increase of cyber threats.
74
It follows from Brenner’s analysis that the difficulties of addressing cyber
threats result from the same aspects of the nation-state as those of addressing
private enforcement, namely territorial jurisdiction, the monopoly on violence,
the lack of reliable cross-border instruments, and inefficient enforcement.
5.3 The future of sovereignty in dispute resolution?
One functional model is bringing ODR technology to the courts, as has been
suggested by the report of the ODR Advisory Group of the Civil Justice Council
in the UK.
75 This shift towards convergence of ODR and courtroom technology
has also been suggested by Benyekhlef and Vermeys.
76 Implementing technology
in dispute resolution through the courts would still enable the use of sovereignty
as the decisive source of justification. As discussed earlier in this chapter,
sovereignty provides a stable source of justification for domestic disputes that
are resolved through state litigation despite its shortcomings in the cross-border
context. Connecting ODR with the courts would function similarly in the
national context and relieve the challenges of access to justice for its part.
However, the problem of sovereignty-based justification would still exist in the
cross-border context.
Regardless of this, private enforcement, both in domestic and cross-border
contexts, still bypasses state control. This means that the justificatory crisis is not
limited to the cross-border context but intrudes in the national context instead.
At the beginning of this chapter I described the conventional and modern
approaches to sovereignty and demonstrated how the concept has proved to be
easily adapted to changing societal conditions. In the context of dispute resolution, sovereignty adopts the mask of state monopoly on dispute resolution, which
has become a battleground for negotiation and reinterpretation, as the concept of
state monopoly de jure and the actual governance of disputes de facto have
moved farther away from each other. The discussion of different possibilities to
reconcile the principle of sovereignty with the change in the dispute resolution
environment proved to be fruitless, which suggests that we need to abandon state
sovereignty as the constitutive source of justification for dispute resolution (and
Sovereignty and state agenda 133
caused by individuals) or external threats (war between sovereign nation-states)
to the societal order, as cyberspace introduces a new element to defining and
evaluating these disruptive actions.
72
Enforcement takes a decisive role also in relation to cybercrime. Brenner
describes the nation-state’s agenda for overcoming internal and external threats
as two-fold, where both the containment of external threats by a standing army
and containment of internal threats by law enforcement and the judiciary are
based on the monopoly on violence. However, the distinction between warfare
and individual crime becomes more and more difficult to hold on to, as recognition is no longer as simple, and the two categories may also converge.
73 Also, the
relatively low risk of getting caught, prosecuted and sanctioned for transnational
criminal action online contributes to the increase of cyber threats.
74
It follows from Brenner’s analysis that the difficulties of addressing cyber
threats result from the same aspects of the nation-state as those of addressing
private enforcement, namely territorial jurisdiction, the monopoly on violence,
the lack of reliable cross-border instruments, and inefficient enforcement.
5.3 The future of sovereignty in dispute resolution?
One functional model is bringing ODR technology to the courts, as has been
suggested by the report of the ODR Advisory Group of the Civil Justice Council
in the UK.
75 This shift towards convergence of ODR and courtroom technology
has also been suggested by Benyekhlef and Vermeys.
76 Implementing technology
in dispute resolution through the courts would still enable the use of sovereignty
as the decisive source of justification. As discussed earlier in this chapter,
sovereignty provides a stable source of justification for domestic disputes that
are resolved through state litigation despite its shortcomings in the cross-border
context. Connecting ODR with the courts would function similarly in the
national context and relieve the challenges of access to justice for its part.
However, the problem of sovereignty-based justification would still exist in the
cross-border context.
Regardless of this, private enforcement, both in domestic and cross-border
contexts, still bypasses state control. This means that the justificatory crisis is not
limited to the cross-border context but intrudes in the national context instead.
At the beginning of this chapter I described the conventional and modern
approaches to sovereignty and demonstrated how the concept has proved to be
easily adapted to changing societal conditions. In the context of dispute resolution, sovereignty adopts the mask of state monopoly on dispute resolution, which
has become a battleground for negotiation and reinterpretation, as the concept of
state monopoly de jure and the actual governance of disputes de facto have
moved farther away from each other. The discussion of different possibilities to
reconcile the principle of sovereignty with the change in the dispute resolution
environment proved to be fruitless, which suggests that we need to abandon state
sovereignty as the constitutive source of justification for dispute resolution (and
Sovereignty and state agenda 133