In order to manage the issue of diversity of regulatory vision, States may, to some extent, harmonize substantive regulation—eliminating diversity. This is less likely than States determining unilaterally or multilaterally to develop manageable rules of jurisdiction, so that their regulation applies only in limited circumstances. The fullest realization of this “choice of law” solution would involve geoblocking or other technology that divides up regulatory authority according to a specified, and a perhaps agreed, principle. Geoblocking may be costly and ultimately porous, but it would allow different communities to effectuate their different visions of the good in the platform context. To the extent that the principles of jurisdiction are agreed, and are structured to be exclusive, platforms would have the certainty of knowing the requirements under which they must operate in each market. Of course, different communities may remain territorial states, but given the a-territorial nature of the internet, it may be possible for other divisions of authority and responsibility to develop. Cultural affinity, or political perspective, may be more compelling as an organizational principle to some than territorial co-location.

Global platforms present novel challenges. They serve as powerful conduits of commerce and global community. Yet their power to influence political and consumer behavior is enormous. Their responsibility for the use of this power – for their content – is statutorily limited by national laws such as Section 230 of the Communications Decency Act in the US. National efforts to demand and guide appropriate content moderation, and to avoid private abuse of this power, is in tension with concern in liberal states to avoid excessive government regulation, especially of speech. Diverse and sometimes contradictory national rules responding to these tensions on a national basis threaten to splinter platforms, and reduce their utility to both wealthy and poor countries. This edited volume sets out to respond to the question whether a global approach can be developed to address these tensions while maintaining or even enhancing the social contribution of platforms.

The world has muddled through with limited and ambiguous understandings of the scope of national jurisdiction in a number of private and public law areas. In order to reduce the barriers of legal difference in the field of platform responsibility, states may begin by reducing areas of overlapping application of law, by agreeing on rules of exclusive jurisdiction. They may also agree on rules of national treatment, most favored nation treatment, and proportionality, or they may agree to harmonize rules. These incursions on national regulatory autonomy will require detailed, sector-specific negotiations, recognizing both the importance of global communications, and the importance of national regulatory autonomy.

Consider the great modern challenges to international society: global environmental protection, international public health, cybersecurity, financial crisis, and liberalization of movement of goods, services, and people. As will be explained in detail, it is unimaginable that customary international law (CIL) can provide effective mechanisms by which to address these challenges. Consider also some of the longer-term challenges: suppressing and regulating war, protecting human rights, and reducing poverty. While CIL has played an important role in regulating war and protecting human rights, this chapter argues that it has now done about all that it can do in those areas. It is time to focus the world's attention on more effective mechanisms by which to address all of these challenges. These more effective mechanisms will include treaty-based hard law and soft law.

CIL has not been around forever, and it responded to particular historical circumstances. While CIL had roots in Roman law, and while an early mention of a variant of modern CIL was contained in Francisco Suarez's De Legibus ac cleo legislatore, in 1612, Hugo Grotius is considered to have articulated the modern version of CIL later in the seventeenth century. CIL doctrine has changed over time since then, and there is no reason to think that it will not change in the future, and even that it will not be superseded by other mechanisms for international cooperation.

The demands made of international law up until the latter part of the twentieth century were quite different from those in view today. The law of coexistence, in Wolfgang Friedmann's dichotomy, provided the basis for diplomatic interaction that allowed for informal – nonlegal – give and take. As Friedmann explained in his seminal 1964 work, The Changing Structure of International Law, “The principal preoccupation of the classical international law, as formulated by Grotius and the other founders, was the formalization, and the establishment of generally acceptable rules of conduct in international diplomacy.” Note that these were formal rules designed to facilitate informal interaction. They formalized the process of diplomacy, not the substance of international cooperation. The law of coexistence was largely established by CIL. In the law of coexistence, states were equal, their interests were the same, and the rules did not need to change much to face new problems. CIL served these purposes reasonably well.

Introduction

Mutual recognition is a useful tool for international liberalization in particular contexts. However, it has two types of limit, and to the extent that it may exceed these limits, it poses two important types of risk.

The first limit of mutual recognition is set by the degree and importance of achievement of the relevant regulatory goal: the degree to which the foreign regulation achieves the goals of the domestic regulatory scheme, and the importance of meeting these goals. Thus, the first risk is that mutual recognition is implemented in a way that sacrifices important regulatory goals without adequate justification – without ‘sufficient’ achievement of the regulatory goal. States may, at times, accept compromises of their regulatory goals, but they should not do so unless they are compensated with enhanced welfare from free trade or from other sources. The second limit of mutual recognition relates to the material capacities of developing countries. The risk is that mutual recognition is established by developed countries in a way that disadvantages services exports of developing countries.