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First Report of the UN Special Rapporteur on the Right to Privacy to the Human Rights Council

Published on March 18, 2016        Author: 

In March 2015, the United Nations Human Rights Council created a new special procedure on the right to privacy, appointing its first Special Rapporteur on the topic, Professor Joseph Cannataci, in July 2015. Last week, the Special Rapporteur presented the Human Rights Council with his first report and engaged in an interactive dialogue with the Council. He also provided an outline of the main features of his report at a side event at the Council organised by Austria, Brazil, Germany, Liechtenstein, Mexico, Norway, Switzerland and the Geneva Academy of International Humanitarian Law and Human Rights with former US Ambassador to the Human Rights Council, Eileen Donahoe as the chair and myself, Carly Nyst and Faiza Patel as panellists (report forthcoming). As a first report, the Special Rapporteur acknowledges that it is still very much ‘preliminary’ (para. 3). At the same time, he provides a detailed outline of the themes he proposes to focus on during his mandate. In this blog, I reflect on the scope of the mandate, the choice of themes and suggest ways in which the Special Rapporteur might develop some of the themes during his mandate.

The Scope of the Mandate

  1. Privacy and Personality across cultures
  2. Corporate on-line business models and personal data use
  3. Security, surveillance, proportionality and cyberpeace
  4. Open data and Big Data analytics: the impact on privacy
  5. Genetics and privacy
  6. Privacy, dignity and reputation
  7. Biometrics and privacy

The number and range of themes identified is ambitious. However, in my view, the Special Rapporteur’s selection strikes a good balance between continuing to prioritise the risks to the right to privacy posed by security and surveillance and taking a wider view of the impact of big data and new technologies on human rights outside of the security context which has not received adequate attention to date. Read the rest of this entry…

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CETA’s New Domestic Law Clause

Published on March 17, 2016        Author: 

The recent, widely-reported ‘legal scrub’ of the Canada-EU Comprehensive Economic and Trade Agreement (CETA) has drawn attention for its endorsement of a radical shift away from the model of investor-state dispute settlement that has prevailed in investment agreements to date. The new text indicates that Canada has agreed to the EU’s proposals on an investment court system, with a permanent roster of arbitrators appointed by Canada and the EU, rather than ad hoc tribunals whose members are appointed by the disputing parties themselves. In another innovation, CETA will also include an appeals mechanism, which will have power to review the merits of first-instance rulings, going beyond the limited grounds for annulment of awards in the existing ICSID system.

Alongside these revolutions, the new CETA text also contains another change from the earlier text. Under the heading of ‘Applicable law and interpretation’, Article 8.31(2) of the new text provides:

The Tribunal shall not have jurisdiction to determine the legality of a measure, alleged to constitute a breach of this Agreement, under the domestic law of the disputing Party. For greater certainty, in determining the consistency of a measure with this Agreement, the Tribunal may consider, as appropriate, the domestic law of the disputing Party as a matter of fact. In doing so, the Tribunal shall follow the prevailing interpretation given to the domestic law by the courts or authorities of that Party and any meaning given to domestic law by the Tribunal shall not be binding upon the courts or the authorities of that Party.

Although the provision is new in CETA, it has also recently appeared in the EU-Vietnam FTA and in similar language in the EU’s November 2015 TTIP proposals. While this might suggest that the provision is a recent invention of the EU, its inspiration in CETA could equally have come from Canada, which included a similar provision in its 2008 FTA with Colombia. In fact, Colombia itself appears to have first spearheaded the provision, including language on domestic law broadly similar to the provision’s first sentence in its 2007 Model BIT and in agreements signed as far back as 2006 with Japan, the UK, India, Belgium, China, Peru and Switzerland. Read the rest of this entry…

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Announcements: CfP International Law of Military Operations; BIICL Annual Grotius Lecture & Dinner; Hamburg International Environmental Law Conference; Additions to UN Audiovisual Library; Colloquium on Emotions and International Law; Global Governance Summer School; IGLP Workshop; Student Writing Competition; International Law Literature Forum

Published on March 13, 2016        Author: 

1. Call for Papers: The International Law of Military Operations – Mapping the Field. Military deployments in the territory of other States are subject to a diverse range of rules under international law. In recent years, it has become increasingly common to refer to these rules as ‘operations law’ or the ‘international law of military operations’. The purpose of this conference, from 21 – 23 June 2016, in Exeter, UK, is to develop our understanding of the international law of military operations from a comparative and practical perspective. It is with great pleasure that the International Society for Military Law and the Law of War and Exeter Law School invite subject matter experts to submit their proposals for presenting a paper at the conference. See here for further information on particular topics of interest and the submission process. Proposals must be submitted by 8 April 2016.

2. BIICL Annual Grotius Lecture and Dinner 2016. The BIICL Annual Lecture and Dinner will take place on 21 March 2016 at the Law Society in London. The lecture will be delivered by The Rt Hon. Lady Justice Arden DBE, Head of International Judicial Relations for England and Wales, on the subject:’Water for All? Developing a Human Right to Water in National and International Law’. The lecture will be chaired by the President of BIICL, The Right Honourable The Lord Phillips of Worth Matravers KG PC. The lecture is followed by a networking drinks reception and an optional dinner is available to those attendees looking to extend their evening. David Anderson QC will deliver a speech during dinner entitled ‘Responding to Terrorism’. David’s speech will touch on the UK’s response to the terrorist threat, drawing on his personal observations as Independent Reviewer. Find out more and book online here.

3. Hamburg International Environmental Law Conference 2016. The HIELC 2016 will take place on 15-16 April 2016 under the title “A Sea Change for Sustainable Ocean Resource Governance”. High ranking experts from all over the world will address the fragile balance between the economically efficient use of ocean resources and the preservation of the ocean’s ecosystem in their presentations and in the subsequent working groups. Furthermore, the conference offers a forum to international and interdisciplinary academics and practitioners to share their insights. For further information and registration, please see here.

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Salami Slicing Human Rights Accountability: How the European Border and Coast Guard Agency may inherit Frontex’ genetic defect

Published on March 10, 2016        Author: 

Salami slicing is the exercise of dividing one salami sausage into many smaller pieces in the shape of slices. Slices have some advantages over the whole piece. Figuratively speaking, actions that are illegal or difficult to achieve as a whole may become easier, legal, or harder to detect if ‘sliced’ into a series of small actions. The ‘salami slicing’ metaphor is typically used pejoratively to describe practices that take advantage of the benefits that the accumulated ‘slices’ have over the whole, such as stealing or embezzling very small quantities of money repeatedly, or publishing fractions of one research that would form one meaningful paper in several small papers. As discussed in the following piece, something similar can be observed in relation to accountability for human rights violations that may occur during border control operations conducted jointly by several EU member states under the auspices of the EU agency Frontex. Regrettably, this structural shortcoming in the set-up of joint operations coordinated by Frontex is one that the new European Border and Cost Guard Agency is likely to inherit.

The proposal for a new European Border and Coast Guard Agency (EBCGA) was published by the European Commission on 15 December 2015. The plan is to significantly enhance Frontex’ mandate and to reflect those changes in renaming it. The new agency will dispose of considerably increased human and financial resources and gain substantial powers, such as requiring a member state to take ‘corrective measures’ to address ‘upcoming challenges’ at its external border, a possibility to intervene without invitation where it identifies serious deficiencies in a member state’s external border management, additional competences to cooperate with and operate in third countries, and an enhanced role in return operations (for a concise overview see here).

The proposal is part of a package of measures aimed at protecting the area without internal borders by strengthening its external borders. It comes in the midst of the escalating migration crisis Read the rest of this entry…

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