The Problem of Legitimacy in Digital Sovereignty Debates

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Haşim Özpolat

There are three leading models in the regulation of the cyber world: China’s state-centered “absolute cyber sovereignty model”, “the free market model” of America which prioritize capitalistic market rules and the EU’s “value-based model” which seeks a middle way between sovereignty and free market rules by framing this reconciliation with the human rights. All three models have their pros and cons, but they share a common problem: Legitimacy.

In the cyber sovereignty literature, sovereignty is often understood as limited to norm setting, executing and judiciary power. However, sovereignty means something beyond that. Defining it as a mere power may lead to overlooking the necessary relationship of sovereignty with democracy. Sovereignty is essentially a theory of legitimacy. John Bodin, Hobbes, Locke, Rousseau constructed their theories of sovereignty to find a rational answer to the question of source of the right to rule. Legitimacy of representative democracy is also based on the popular sovereignty. However, the weakening of the theory of sovereignty after the 20th century brought with it the loss of power of democracy. Representative democracy is undoubtedly an imperfect concept. The claim of representative democracy that the powers of states are granted by the people is not entirely true. Therefore, it was necessary to object the ultimate sovereignty claim of states by constitutional boundaries. However, weakening the question of legitimacy along with the theory of sovereignty also harms the connection between people and politics. The rise of universal human rights, globalization, the strengthening of international law and the trivialization of national policy makers by global economy is increasingly weakening not just states but people’s power and democracy itself.

1. De-politicization and De-Democratization

This legitimacy crisis is often overlooked in digital sovereignty literature too. There are various reasons for neglection: 1. Globalization has already shifted decision-making power in various fields away from people’s hands and transferred to supranational and international organizations, multinational corporations, and some other non-state actors. The conflict between these global powers and democratic legitimacy has long been debated among international law and constitutional law scholars. Although the world is rapidly globalizing, the lack of a meaningful response to the democratic legitimacy crisis causes a de facto situation to be accepted and the legitimacy crisis to be covered up. Such disregard continues in digitalization as a new dimension of globalization. 2. The economy has long been operating as a parallel sphere to the political sphere with its own norms, political mechanisms, and tools of power, and even has the ability to shape politics according to its own interests. While new conflicts with sovereignty that arise in international law can attract the attention of scholars, those in the economic field attract less attention. The fact that the internet has become the largest economic market above all other causes digitalization to be viewed as an economic issue rather than a legal or political issue. 3. Another important reason that makes the problem of legitimacy invisible is basic human rights and freedoms. Human rights discourse has become the source of legitimacy for liberal “de-politicization”. The notion that a regulation is legitimate when it complies with human rights obscures many problems. Although states are the important threats to rights and freedoms, liberal theses that ignore the threats caused by other actors, especially economic ones, need to be re-questioned. If weakening states means strengthening these actors, we may find ourselves in a neo-feudalistic political order, which we are.

The democratic legitimacy problem of China’s digital sovereignty approach can be noticed at a first glance. However, American liberal democracy’s “property right-based” approach to legitimacy continues its attitude of moving the economic beyond the “political” in the digital field as well. Although policies were produced to limit technology giants during the Obama, Trump and Biden eras, the fact that the American political and constitutional structure has not provided effective checks and balances to control these shareholders of sovereignty renders political efforts ineffective. The European Union’s value-based approach produces a “people”-centered result compared to the other two. The bargaining power created by all EU countries coming together affects large companies and digital hegemon countries. However, the problem of “democratic legitimacy”, for which no meaningful answer has been found since the establishment of the EU, still remains.

2. A Digital Constitutionalism of the People, by the People, for the People

Reducing legitimacy to values is a common but problematic approach. Especially as globalization becomes increasingly stronger, the issue of legitimacy has ultimately been reduced to values such as human rights and transparency. Without a doubt, human rights are essential for a democratic society but using human rights as the sole source of political decisions means throwing away the “political question”. Just because a regulation complies with human rights does not mean that this regulation is in the interest of people. Therefore, limiting legitimacy discussions to human rights, transparency, or accountability can easily cover up the question of what is good and right for the people and who will decide this and how. What is good and right for people is a real and concrete question that cannot be reduced to universal abstract value sets.

A similar correlation between the first communication revolution and the emergence of the nation state is being experiencing today with digitalization. Digitalization lays the foundations of new political structures. All analysis that ignores this reality cannot accurately examine the emerging situation. Although states have ceased to be the main actors in the political field and multi-actor governance models have begun to be seen as the inevitable standard model, it is dangerous not to see that these new actors have been carrying a public power. Seeing private companies as actors belonging to the field of private law overlooks the political power these companies have acquired. Therefore, the most important thing to do is to include these companies within the target area of the new constitutionalism. Against liberal constitutionalism, which concentrates problems on the state-individual relationship, we must perceive these new dominant actors as threats, just like states, and build a check-balance mechanism accordingly.

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