The Media as Participants in the International Legal Process

We know what we know about current international events through the media. The media (with their instantaneous transmission of images and sound across great distances) inform us of everything from the train bombings in Madrid and London, to human rights abuses in Darfur, to the fall of Saddam Hussein’s Iraq. Yet the media do not simply communicate raw information; they selectively filter, define and give shape to the events that they cover — in terms of what is happening, whether it is appropriate, and how relevant international actors should and do respond. The media thus are the nerves of the international system, and, as mass communicators, they perform critical functions in the international legal process. The media’s effects on societies and individuals have been studied from a gamut of academic and political angles. In international legal scholarship, however, the media tend to be discussed briefly or in certain limited contexts, such as the use of the media to disseminate propaganda or the regulation and control of the media. There has not been any comprehensive study on the media’s functions in the international legal process. The lack of scholarship in this regard is likely attributable, at least in part, to the facts that the media are unconventional participants, and that they oftentimes operate “behind the scenes” — as messengers for other actors and at deep levels of the public subconscious. If anything, however, these characteristics increase, rather than decrease, the media’s influence. This Article examines that influence. In Part I of this Article, I put in context the question of the media’s influence in the international legal process. That process is characterized by significant communicative gaps that the media help fill. In Part II, I analyze the media’s functions at every stage of the international legal process — from the prescription of international law, to its codification, invocation, application and even termination. In Part III, I address systemic factors that impede media performance, demonstrating that, although the media perform important legal functions, they do not perform those functions perfectly. In Part IV, I consider efforts to minimize these imperfections. I conclude that the media will continue to operate imperfectly but as unique and specialized participants in the international legal process. The goal, then, is to recognize both the media’s functions and their limits so that we, as international scholars and practitioners, can work within that process to achieve desirable legal and policy outcomes

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