Investigations with digital open-source information and the stabilization of international norms: protecting the principle of non-refoulement

Abstract

The practice of open-source investigations by civil society actors, enabled by the ubiquity of publicly available digital information and new technological means of evaluation, has started to have an impact on the ways in which international legal discourse unfolds. While the emerging significance of so-called open-source intelligence has already been addressed by legal academics, it has so far mainly been examined in the context of international criminal justice and other accountability mechanisms. The contribution makes the claim that it has furthermore started to shape discourse in international legal processes fora more generally, which can be demonstrated by the example of the practice of pushbacks of migrants at the southern and south-eastern borders of the European Union.

International legal processes are riddled with communicative gaps, which is not least a function of the order’s decentralized architecture. International law is characterized by its lack of compulsory and binding judicial mechanisms. Therefore, states are mostly responsible to make their own factual assessments of a legally relevant situation. But one obvious problem with this is that there are vast disparities between states when it comes to available resources and therefore intelligence capacities. In light of these systemic insufficiencies, civil society actors increasingly assume a complementary function in counter-narrating contested state conduct.

This development has accelerated with the digital transformation of society. The emergence of novel digital technologies has begun to fundamentally change the ways in which facts and evidence are being produced and communicated in international law. Like never before, these technologies enable new and old civil society actors to challenge states’ official justifications regarding their own behaviour in the international sphere. NGOs such as Amnesty International, more recently established groups like Bellingcat or Forensic Architecture, and even legacy media organisations such as the New York Times have started harnessing open-source information disseminated through social media or other digital infrastructures. At the same time, these very digital technologies allow states to evade international legal discourse by providing them with the tools to create factual uncertainties concerning their own actions, to manipulate evidence that would justify their conduct, or to undercut the epistemic premises of factual inquiry by presenting so many competing false narratives that the notion of truth itself is rendered both impossible and irrelevant. The chapter investigates the growing role of civil society actors for the construction of a facts-based international order. With recourse to the practice of pushbacks in the Mediterranean, it critically interrogates how the interplay of the technologically facilitated narrative strategies employed by both civil society actors and states has begun to shape international legal discourse. While the use of digital open-source information to counter-narrate justificatory discourse will not end factual manipulations by states that expect a negative external response to their conduct, the contribution claims that technologically assisted counter-narration, if adhering to the principle of “open verification”, makes such communicative strategies more costly and, by establishing narrative coherence in international fora, exerts stabilising effects on the international legal system.