Reconceptualising control in responsibility under risk-based international law
Control is an elusive, yet central concept in the international law of responsibility. However, its content, metamorphoses and modalities remain subject to controversy in an international legal system plagued by impunity and unaccountability for actions of both States and non-State actors.
In the pluralised State, control is increasingly slipping to non-State actors as a result of new multi-level governance situations which create responsibility gaps. The disaggregation of State-centric control at the level of actors, spaces, objects and in time has problematised the regimes of both direct and indirect international responsibility. Multi-level governance situations are characterised by the horizontal alignment of actors in collaborative environments and mediation of decision-making by computational artefacts. These circumstance have exposed the limitations of control as an attribution mechanism in the law of responsibility.
The growing interdependency and interconnectedness in international relations is not matched by a law of international responsibility which recognises this multimodal diffusion of control. This project argues that while international law’s shift to (pluralised) risk analysis (eg, through standards of due diligence) could be a coping mechanism for such uncertainties, it must be accompanied by a matching risk-based regime of responsibility where both legal and factual control play a role.
The project develops the concept of granular hybrid control as a sliding scale which accounts for the interdependencies between States and other actors, the pursuit of community interests, and the role of computational socio-technical systems and artificial intelligence in decision-making. This concept will be developed from an interdisciplinary perspective in three case studies exploring, respectively, the multinational enterprise, military Internet of Things and global data flows in cyberspace.