This article helps lay the foundation for a new field of international law—International Law and Technology—and opens novel avenues of inquiry in law and technology and intellectual property more broadly. It analyzes as a starting point why some technologies generate global conflicts while others do not. Technologies that face international resistance can trigger a barrage of international legal responses, ranging from trade bans and WTO disputes to international regulatory regimes and barriers to patenting. Agricultural biotechnology triggered all of these legal flashpoints, while the cellphone, a technology that grew up alongside it, triggered none. Why?
Understanding when a new technology will provoke an international legal firestorm is important to policymakers, business leaders, and lawyers. International controls on a new technology constrain state sovereignty and may impede or catalyze the development of an emerging technology. Technologies likely to generate international controversy bode poorly for regulatory harmonization regimes as contemplated by the new transatlantic trade talks. At a minimum, they require sensitive handling.
This article offers a framework of core geopolitical factors that can help predict the international acceptability of an emerging technology and its likelihood of triggering a plethora of international legal issues. The framework can help decision-makers avoid global technology conflicts and better manage these conflicts once they arise. The first factor is whether the technology is “a big- or a small-tent technology” from a global perspective, as reflected (1) in the innovative space, (2) in the marketplace, and (3) in the sphere of benefit sharing. To illustrate the analysis, the article presents original empirical patent data for the cellphone and agricultural biotechnology over three decades. This comparison highlights the importance of global innovative activity to international technology comity.