Home 2018 July (Page 2)

Announcements: International Nuremberg Principles Academy Vacancy; AIIB Yearbook of International Law; Summer Programme on Countering Terrorism within a Rule of Law Framework; AUWCL LLM

Published on July 22, 2018        Author: 

1. Vacancy at the International Nuremberg Principles Academy. The International Nuremberg Principles Academy is a foundation dedicated to the advancement of the Nuremberg Principles and International Criminal Law (ICL). It is located in Nuremberg, Germany the birthplace of modern ICL, and is conceived as a forum and capacity building institution for contemporary issues in the ICL field. The Academy is now seeking to recruit a Senior Officer for Training and Capacity Building. For more information please see our website

2. AIIB Yearbook of International Law. The first edition of the AIIB Yearbook of International Law (AYIL) was launched at the AIIB Annual Meeting in Mumbai, India, and as with last year’s inaugural AIIB Legal Conference, was titled Good Governance and Modern International Financial Institutions. AYIL is hosted here and can be downloaded at this link (also, see table of contents). The 2018 AIIB Legal Conference, 5-6 September 2018, at AIIB Headquarters, Beijing, China, International Organizations and the Promotion of Effective Dispute Resolution, is open to academic participants. Academics interested in attending should contact the Chair of the 2018 AIIB Legal Conference, peter.quayle {at} aiib(.)org, no later than 20 August 2018. (Places are limited.)

3. Registration Open: Advanced Summer Programme on Countering Terrorism within a Rule of Law Framework. The Asser Institute in collaboration with the International Centre for Counter-Terrorism (ICCT) is happy to announce that registrations are now open for the Advanced Summer Programme on Countering Terrorism within a Rule of Law Framework. This Programme, which takes place from 27 – 31 August 2018, seeks to provide a comprehensive understanding of the legal aspects of counter-terrorism and to offer an in-depth look at the challenges that come with adopting and implementing counter-terrorism measures while ensuring respect for human rights, fundamental freedoms and the rule of law. More information about the course can be found at hereRead the rest of this entry…

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The Quandaries of Data Analysis and Methodologies in Rule of Law, Development, and Human Rights Assessments: New Challenges for UN Special Rapporteurs

Published on July 20, 2018        Author: 

If Professor Hans Rosling’s famous last opus, Factfulness (April 2018)is to be believed (as well as Bill Gates’ effusive review here), we all tend to have grimmer views of the state of economic development in the world than actually borne out by reality – especially on issues of global health and poverty.  Referring to the “developed world” and the “developing world” is a meaningless and unhelpful binary that glosses over significant welfare, health, life expectancy, education, and human capabilities differences between and among the hugely diverse “middle income countries” (e.g. the World Bank divides them into “lower middle-income economies – those with a GNI per capita between $1,006 and $3,955;  and upper middle-income economies –  those with a GNI per capita between $3,956 and $12,235 (2018)). Even the World Bank stopped using the distinction between “developing” and “developed” countries starting with its 2016 World Development Indicators, ultimately concurring with the view that the “developing country” and “developed country” distinction was not useful and too broad for targeting international development programs for partner countries, especially when assessing progress in all 17 of the Sustainable Development Goals (SDGs). The United Nations does not have a formal definition of “developed countries” versus “developing countries”, instead insisting that its classifications in UN methodology are “for statistical convenience and does not express a judgement about the stage reached by a particular country or area in the development process”.  However, these categories are widely used in the UN system anyway, including in the UN’s 2017 Sustainable Development Goals Report as well as in the datasets used for the 2018 SDG16 Data Initiative Global Report (on the goal of achieving peaceful, just, and inclusive societies). If the distinction between “developing country” and “developed country” is operationally meaningless for formulating and evaluating development programming, shouldn’t international lawyers and scholars also take note of the imprecision of this category when putting forward their observations and assessments of the state of rule of law, economic development, poverty, and human rights in the world?  (Note:  I do plead guilty to having, in previous works, alluded to the same classifications.)

Professor Rosling’s opus came to mind recently after the debate spurred from recent sharp criticisms issued by US Ambassador Nikki Haley and by experts from the Heritage Foundation, against UN Special Rapporteur for Extreme Poverty and Human Rights and NYU Law Professor Philip Alston, who had issued several statements (see here, here, and here) and his full 4 May 2018 report on the state of poverty within the United States (finding, among others, that 40 million people across the United States live in poverty, while 18.5 million live in extreme poverty, and an additional 5 million in conditions of absolute poverty; or alternatively put, “1 in 8 Americans now live in poverty, with half of this population living in extreme poverty, according to U.S. government estimates.”).  While Ambassador Haley alleged that the report “categorically misstated the progress the United States has made in addressing poverty and purposely used misleading facts and figures in its biased reporting”, the Heritage Foundation challenged the income-based poverty measures used by Professor Alston and charged that “these “official” income figures exclude substantial off-the-books earnings among low-income households and omit roughly 95 percent of the $1.1 trillion U.S. taxpayers provide in means-tested cash, food, housing, and medical benefits for low-income persons each year.”  Professor Alston has criticized the United States’ withdrawal from the UN Human Rights Council, and charged that the Trump Administration was exacerbating poverty for millions of Americans.  The Special Rapporteur has not yet responded to the challenges against the data sources used, and the quantitative and qualitative methodologies used for this fact-finding mission and its conclusions.

When I examined the index of currently publicly available Reports of the Special Rapporteur for Extreme Poverty and Human Rights, it was somewhat surprising that there was no separate initial report on the quantitative or qualitative methodologies adopted for the country assessments on the state of extreme poverty and human rights (although each country assessment thus far discusses observations from anecdotal evidence, official statistics from government sources, and other sources).  Considering the very difficult remit of Professor Alston – who as Rapporteur is an unpaid expert and admittedly not an official of the United Nations – I wondered why it did not appear from the reports that the UN’s considerable resources on SDG monitoring and assessment (especially SDG1 on eradicating poverty), as well as on economic vulnerability and risk monitoring, had been deployed and allocated to assist in the Special Rapporteur’s challenging fact-finding mandate.  Note that Professor Alston has himself championed interdisciplinarity and cross-verification in human rights fact-finding and yet, the UN remains unable to reasonably coordinate its resources, data, and interdisciplinary expertise before it dispatches its unpaid experts for overwhelmingly difficult fact-finding missions as “Special Rapporteurs”. Read the rest of this entry…


The Applicability of the ECHR in Contested Territories; Two Other ECHR Cases Against Russia

Published on July 19, 2018        Author: 

Earlier this week the European Court of Human Rights decided Sandu and Others v. the Republic of Moldova and Russia, nos. 21034/05 etc, the latest in its Ilascu line of cases (see here and here for more background). As in its previous case law, the Court in Sandu found that both Moldova and Russia exercised jurisdiction in the sense of Article 1 ECHR over the contested separatist territory of Transdniestria, the former on the basis of sovereign title, and the latter on the basis of its control over the area. In this case, which concerned property rights, the Court found Moldova to have discharged its positive obligations towards the applicants, and Russia not to have done so, thus incurring responsibility for violating the Convention. Like in its previous case law, it remains unclear whether the Court is attributing to Russia the conduct of Transdniestrian separatist authorities, or whether Russia is responsible for its own conduct of failing to exercise influence over these authorities so as to protect the applicants’ rights.

Coincidentally, Tatjana Papic and I have recently posted on SSRN the draft of an article on the applicability of the ECHR in contested territories, forthcoming in the ICLQ , in which we provide a critique of the Court’s Ilascu jurisprudence. The abstract is below, and any comments are welcome:

This article examines the applicability of the European Convention for Human Rights (ECHR) when a State loses control over parts of its territory. Such situations have increasingly arisen in cases before the European Court of Human Rights. For instance, the Court currently has on its docket an interstate case between Georgia and Russia, three interstate cases between Ukraine and Russia, and thousands of individual applications which concern either Crimea or Eastern Ukraine. The article argues that the jurisprudence of the European Court, which insists on residual positive obligations based in sovereign title over territory, is problematic and needs to be rethought. The Court’s current approach is not only likely to provoke backlash, since it requires it to decide politically explosive questions of sovereign title, but does so for very little practical benefit for the protection of human rights. The article therefore explores more preferable alternatives.

Also this week the Court rendered two unrelated but very important judgments against Russia. First, regarding the 2006 killing of journalist Anna Politkovskaya, the Court found Russia responsible under Article 2 ECHR for failing to conduct a fully effective investigation into the killing, specifically because Russian authorities did not explore all feasible lines of investigation into the person or persons who contracted Politkovskaya’s assassination (Mazepa and Others v. Russia, no. 15086/07).

Second, the Court found Russia responsible for the violation of several human rights of three members of the Pussy Riot band, who were arrested, convicted and sentenced to two years of imprisonment for (very briefly) performing their song Punk Prayer – Virgin Mary, Drive Putin Away in the Christ the Saviour Cathedral in Moscow (Mariya Alekhina and Others v. Russia, no. 38004/12). Pussy Riot were of course very much in the news last weekend, after their pitch invasion at the World Cup final in Moscow.

(Image: Sportimage/PA Images)

The most interesting part of the Pussy Riot judgment is the Article 10 analysis; the Court is not content with saying simply and easily that the sentence of imprisonment imposed on the applicants was disproportionate, but engages in line-drawing between hate speech and offensive speech, which is particularly relevant because the domestic crime that the applicants were convicted of incorporated a hatred element. The judgment also has a rather glorious appendix with several Pussy Riot songs (oh so very du jour, and reproduced below for entertainment value, together with the song at issue in the case itself).


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UK Extraterritorial Financial Sanctions: Too Much, Too Little, Too Late?

Published on July 17, 2018        Author: 

The US practice of the extraterritorial application of sanctions was criticised for years as, at best, the illegitimate abuse of its particular position in the world’s economy. Despite its fully comparable position in international finance, the United Kingdom was shielded from such criticism predominantly thanks to the transfer of respective decision-making to Brussels. The nature and scope of sanctions were delineated by EU laws. As the UK prepares its (financial) sanctions regime for Brexit, could it draw criticism similar to the US for both giving too broad discretionary powers to the government and preventing it from meeting UK international obligations at the same time? I suggest the new regime for the extraterritorial application of sanctions possibly opens the UK to international liability for, both, the lack of a legal basis for a legal restriction upon states as well as inevitable omissions to prevent gross violations of international law.

Since analysis of legal sanctions under international law is a very complex, multi-stage exercise, I focused on relatively easier cases of discretionary goals of foreign policy and extraterritorial sanctions, where the legal threshold for an internationally wrongful act is lower. Accordingly, I highlight the normative basis for adopting financial sanctions against third-state persons not covered by exceptions, British BITs, or the most relevant multilateral treaties. As for possible breaches of international law by omission, I focus on tolerating the provision of financial services contributing towards gross violations of international law. Because of length limitations, I do not discuss anti-money laundering per se, which is subject to yet another chapter of the law in question.

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Lessons from the WTO Plain Packaging reports: The use of the evidence-based WHO Framework Convention on Tobacco Control as evidence in international litigation

Published on July 16, 2018        Author: 


The WTO Plain Packaging reports have finally been published. The four reports (merged in a single document) contain the findings of the WTO panel in the disputes launched in 2012-2013 by Honduras, Dominican Republic, Cuba, and Indonesia. The disputes were directed against some tobacco control measures adopted by Australia – so-called ‘the plain packaging’ (TPP) laws. In a nutshell, TPP mandates that all tobacco products be sold in unattractive standardised packaging, thereby curtailing the use of colours, design and trademarks by tobacco manufacturers. As it was already leaked one year ago, the panel has ruled in favour of Australia.

The 884 pages of the final reports contain a lot of food for thought, and will keep many of us busy for long. This post focuses on a relatively narrow issues, namely the role of the Framework Convention on Tobacco Control (FCTC) in the case.  Despite being often overlooked in mainstream international scholarship, the FCTC is a remarkable treaty. It is the first (and so far, only) treaty ever negotiated under the auspices of the World Health Organization (WHO). Adopted by the World Health Assembly in May 2003, it has now reached the massive number of 181 ratifications. The FCTC is also a living treaty: it established a set of institutions, including a Conference of the Parties (COP) that meets biannually and has adopted 9 sets of guidelines.The FCTC was conceived in the ‘90s as an ‘international regulatory strategy’ to ‘promote national action on tobacco control’ (in the words of one of its main promoters, Allyn Taylor), in the face of the growing tobacco epidemic. To this end, the treaty (and later its guidelines) have been developed as ‘evidence-based’ instruments, i.e. as texts that require the adoption of tobacco control measures whose effectiveness has been established by evidence (see Taylor and Bettcher 2000). The set of measures is a comprehensive one, encompassing measures for the reduction of supply and measures for the reduction of demand of tobacco products. TPP measures are also part of this comprehensive set; specifically, they are recommended by the Guidelines to Article 11 and in the Guidelines to Article 13 of the FCTC.

In addition to their role in domestic implementation, the FCTC and its guidelines have proved to be useful instruments in the international disputes launched against the tobacco control measures adopted by its parties (see my earlier report as well as the more recent article by Zhou, Liberman and Ricafort). In some cases, the FCTC and its guidelines have been relied upon for their evidential value, while in others they have been considered ‘evidence’ by reason of their ‘evidence-based’ nature. The TPP reports prepared by the WTO panel are the latest cases in this series. The following sections review the approach taken by the panel on the role of the FCTC, and briefly compare it to the previous international disputes.

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Announcements: Launch of the Democratic Decay Resource; UN Audiovisual Library of International Law; CfP Art-Law Centre; CfS International Summer School on Human Rights Protection; CfP Rethinking Peace Mediation

Published on July 14, 2018        Author: 
1. Launch of the Democratic Decay Resource (DEM-DEC). A major new online resource for research on democratic decay has just been launched at Created by Dr Tom Gerald Daly (Melbourne Law School) and supported by a range of leading public law and policy organisations, the Democratic Decay Resource (Dem-Dec) focuses on the global challenge of the incremental deterioration of democratic rule and is primarily pitched at public lawyers, i.e. those working on constitutional, international and transnational law.  The resource is aimed at providing key information in one place, to frame the research area, to address conceptual confusion, and to bring scholars together in a collaborative project to drive the field forward, in a context where a lot of scholars are talking in silos, or past one another, where the literature is rapidly expanding, and research events and projects are proliferating across the world. The Resource contains a Concept Index, Concept Map, list of Scholars, Bibliography, list of Events, and Links.
2. New Additions to the UN Audiovisual Library of International Law. The Codification Division of the UN Office of Legal Affairs has added the following lectures to the UN Audiovisual Library of International Law website: Professor Lucius Caflisch on “The Contemporary Law of International Watercourses: Some Aspects and Problems” and Mr. Peter Van den Bossche on “The WTO Dispute Settlement System”. The UN Audiovisual Library of International Law provides high quality international law training and research materials to users around the world free of charge.
3. Call for Papers: Art-Law Centre. The Art-Law Centre has issued a call for papers for the Third All Art and Cultural Heritage Law Conference, which will take place at the University of Geneva on 10 November 2018. The theme is ‘Works of art qualified as “national treasures”: limits to private property and export controls’. For full details of the call, see here

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The Commission’s Proposals to Correct EU-Morocco Relations and the EU’s Obligation Not to Recognise as Lawful the ‘Illegal Situation’ in Western Sahara

Published on July 13, 2018        Author:  and

On 11 June 2018, the EU Commission adopted two proposals (here and here) for Council Decisions to amend the EU-Morocco Association Agreement so that “[p]roducts originating in Western Sahara subject to controls by the Moroccan customs authorities shall benefit from the same trade preferences” as products from Morocco (Annex of the Proposals, para 1). The proposals come on the back of the judicial proceedings before the Court of Justice of the European Union (CJEU) that challenged the de facto extension of EU-Morocco agreements to Western Sahara over the last few years (covered here and here). Yet, they concern the trade liberalisation agreement and not the EU’s fishing rights, which is a matter to be addressed separately. Their purpose is to provide cover for the extension of the agreements on three grounds: consultation with “interested parties”; positive indirect impact on human rights; and, a contribution to Western Sahara’s economic development.

Whereas the Commission’s proposals do not engage with any relevant questions of international law, in this post, we consider whether the Commission’s recent proposals accord with international law, with particular reference to the obligation not to recognise as lawful a situation created by a serious breach of a peremptory norm (Article 42(2) DARIO and Article 41(2) ARSIWA). We argue that the proposals violate the EU and its Member States’ obligation of non-recognition of Morocco’s jus cogens breaches: the right to self-determination of people, the prohibition on aggression (acquisition of territory by force), and some of the intransgressible rules’ of international humanitarian law (IHL); insofar as the latter are a part of jus cogens (Wall AO, para. 157; Nuclear Weapons AO, para. 79). We further consider whether wrongfulness can be precluded by the consultation or consent of the Sahrawi people as a third party to the agreement, and whether the benefit provided under the agreements justifies an exception to third parties’ obligation of non-recognition. We conclude that neither of the exceptions apply and that the EU is precluded from extending the agreements to Western Sahara as a matter of international law. Read the rest of this entry…

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Antarctic Environment Protocol Challenges and Achievements: 20 Years in Force

Published on July 11, 2018        Author: 


On 4 October 1991, almost 27 years ago, negotiation of the Environmental Protocol to the Antarctic Treaty (the “Protocol”) finished in Madrid. On 14 January 1998, two decades ago, the Protocol made its entry into force. Now, the Protocol is compulsory for 40 States.

Considering the seriousness of the threat to the Antarctic environment, it is a good time to reflect on the rules that were created to protect it, and how they are now being applied.  

Preliminary considerations for an assessment of the Protocol

It is not easy to carry out an objective assessment of the Protocol. There are several causes for this, and I would like to highlight three of them.

Firstly, because the Protocol is highly symbolic, and it is never easy to adopt a critical approach when most people think that something is very good or very important. However, such a critical approach is essential to improve the Antarctic environmental protection.

Secondly, because the Protocol’s application is an unfinished and ongoing process. Every day it faces new challenges, some of which were not even considered in 1991.

Thirdly, because it is necessary to draw a distinction between the diplomatic, legal and practical perspectives. From a diplomatic point of view, it is a major achievement. Its negotiation was very successful, even considering the disagreements and geopolitical problems that it has had to face. From a legal perspective, the Protocol has secured important achievements, and it has been the starting point for other areas of international law, such as the regulation of mineral activities in the seabed. But, at the same time, it has some significant weaknesses, such as the lack of effective control mechanisms or those of a liability regime. Finally, in respect of its application, each State has different procedures: there are several aspects not fully developed in national law and practice, and there is not enough information to make a general assessment. Read the rest of this entry…

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Why We Need to Stop Talking About ‘Killer Robots’ and Address the AI Backlash

Published on July 9, 2018        Author: 

In the field of artificial intelligence, the spectacle of the ‘killer robot’ looms large. In my work for the ESRC Human Rights, Big Data and Technology Project, I am often asked about what the ‘contemporary killer robot’ looks like and what it means for society. In this post, I offer some reflections on why I think the image of the ‘killer robot’ – once a mobiliser for dealing with autonomous weapons systems – is now narrowing and distorting the debate and taking us away from the broader challenges posed by artificial intelligence, particularly for human rights.

In order to address these challenges, I argue that we have to recognise the speed at which technology is developing. This requires us to be imaginative enough to predict and be ready to address the risks of new technologies ahead of their emergence. The example of self-driving cars is a good illustration of technology having arrived before regulatory issues have been resolved. To do otherwise means that we will be perpetually behind the state of technological development and regulating retrospectively. We therefore need to future-proof regulation, to the extent possible, which requires much more forward-thinking and prediction than we have engaged in so far.

Origins of the Killer Robot

The term ‘killer robot’ has many origins, including frequent use in books, TV series and films like Terminator. In relation to international law, the term has been used in the context of autonomous weapon systems (AWS) or lethal autonomous weapons (LAWS). In 2013, Human Rights Watch coined ‘killer robots’ to refer to AWS in its report ‘Losing Humanity: the Case against Killer Robots’. The report was not one of science fiction but focused on a specific risk that, within 20 to 30 years, militaries could develop (or acquire) and deploy ‘fully autonomous weapons that could select and engage targets without human intervention’. In the same year, the author of the report, Mary Wareham, launched the Campaign to Stop Killer Robots, a coalition of organisations aimed at the implementation of the report’s main recommendation to achieve a ‘preemptive prohibition on their development and use’.

At the time, Mary Wareham was reported in the Atlantic as explaining that ‘[w]e put killer robots in the title of our report to be provocative and get attention’. The journalist covering the story agreed with the goal, observing that ‘the organized campaign against killer robots has gained momentum as the technology and militarization of robotics has advanced, and the smartest thing the movement has done is pick its name’. The term was therefore employed as a visualisation aid and to make the risks of AWS less abstract in order to mobilise and campaign against their development.

However, as I argue below, the debates on artificial intelligence are now much wider than AWS and the use of the term is distracting from the challenges posed by the current applications of artificial intelligence outside of the military context. This is not to say that dealing with AWS is not important. Indeed, since 2013, there has a process underway to look at how AWS should be regulated. The Convention on Conventional Weapons (CCW) Group of Governmental Experts on Lethal Autonomous Weapons at the UN has met annually to discuss the issue, including whether negotiations should begin into a treaty. However, there has not yet been resolution of the issue and some commentators have questioned whether it is the best forum for addressing these issues. In addition to the process, a number of key substantive issues still need to be addressed. For example, commentators have observed that the issues are not only whether or not to ban AWS but there is also debate on what constitutes AWS and whether it includes existing or only future technology; the meaning of autonomy and human control; whether a prohibition or a focus on implementation of international humanitarian law constitutes the best course of action; the implications of not developing AWS where others have; and the wider role of AWS in cyber defence. It is therefore an area of complex and ongoing discussion with little yet resolved.

The Spill-Over into Wider AI Debates

The advent of big data and more advanced and cheaper computational power has meant that machine learning, at least, has become much more accessible and available to a wider set of actors. Beyond military uses, debates on the opportunities and risks of artificial intelligence are now taking place within governments and across a wide range of industries and sectors of societies. This is illustrated by the range of national reports and plans on AI (see, for example, three of the most recent: the UK House of Lords report on ‘AI in the UK’, the report of the Indian government’s Task Force on Artificial Intelligence and the US Government Accountability Office report on Artificial Intelligence: Emerging Opportunities, Challenges and Implications).

In this wider context, references to ‘killer robots’ (or robots generally) can create hype and focus the mind on science fiction and singularity: a point in time (which many dispute will ever come) where machines become smarter than humans and ‘use their superior intelligence to take over the planet’. In the recent House of Lords report, Sarah O’Connor of the Financial Times was quoted as stating that ‘if you ever write an article that has robots or artificial intelligence in the headline, you are guaranteed that it will have twice as many people clicking on it’. The report also noted that, ‘at least some journalists were sensationalising the subject’. Mary Wareham has also spoken about the risks that robots such as ‘Sophia’ can create the impression of much greater sophistication, intelligence and autonomy than they actually have.

This type of hype can have the effect of drawing the public and policymakers away from current issues with artificial intelligence. It can also mean that attention is only focused on addressing the issues for a short period of time and can therefore thwart efforts for a sustained response to the challenges that artificial intelligence presents.

The Current Challenges Posed by Artificial Intelligence

The recent ‘AI backlash’ is beginning to shift attention to the real and urgent challenges that need to be addressed today. In the space of this post, there is insufficient room to set out all the pressing issues. However, some key themes from the ‘backlash’ exemplify the point.

The range of incidents like Facebook/Cambridge Analytica and Grindr illustrate the ongoing need to regulate the collection, storage, analysis and sharing of data as the ‘fuel’ for artificial intelligence and emerging technologies. Given that it has just entered into force and some businesses with operations outside of the EU are considering voluntarily signing up to it, the EU General Data Protection Regulation (GDPR) has been touted as a central solution. As I argue in a forthcoming post, the GDPR is an important start to addressing these issues but it is a regional instrument and is not a panacea, meaning that many issues still need to be addressed that fall outside of the GDPR.

A key area falling outside the scope of the GDPR is the use of machine learning and other forms of technologies in the context of law enforcement and national security. The use of predictive policing and algorithms to support decision-making on whether a person is granted bail has received the most attention given the potential to adversely affect the presumption of innocence, the right to liberty and the right to a fair trial, in addition to the risks of discrimination and profiling.  However, concerns have also been raised about other forms of technology such as automated facial recognition technology (AFR), which can search databases in real time, particularly in relation to the rights of freedom of assembly, association and expression. In the UK, Big Brother Watch and Liberty have recently challenged the use of AFR on the grounds that it is ‘unregulated’ and threatens human rights.

While most analysis focuses on particular forms of technology, a critical point is that when used together, they can create a situation of pervasive surveillance in real time that extends far beyond anything previously possible. Moreover, organisations such as Human Rights Watch have reported on the risk of ‘parallel construction’ whereby alternative explanations and ways of finding criminal trial evidence are provided by state agencies to avoid scrutiny of the legality of such use of technology.

The issues that arise for law enforcement also draw out bigger regulatory questions that are not covered by the GDPR. For example, the question of to what extent it is appropriate – and lawful – to use technologies, such as AFR, even when technologically possible, and the extent to which these technologies should be able to link to other datasets a state and/or businesses might hold. This is particularly relevant in contexts such as smart cities, which run most effectively if different forms of technology and artificial intelligence applications work together.

Similarly, the use of algorithms to support decision-making is central to current usages of and backlash against artificial intelligence. Yet, a robust framework for the design and oversight of the use of algorithms in decision-making is still lacking, despite the extensive debate and documentation of the risk that the use of algorithms in decision-making can introduce or accentuate existing inequalities, discrimination or other forms of harm to human rights. As we argued in a recent submission to the UK Parliament’s Science and Technology Committee, a framework is needed that addresses the full algorithmic life-cycle from the design phase right through to remedies for individuals and groups affected.

Finally, there are larger structural issues about the locus of power within a handful of businesses and states and how the right to benefit from scientific progress should be realised, so that the benefits of artificial intelligence can be shared by all.

Why We Have to Be Better at Looking into the Future

In addition to addressing current issues, we need to be more effective in predicting and imagining the trajectory of technology. While we may never reach singularity, technology is evolving rapidly and the ‘art of the possible is always changing’. This is a ‘complicating factor’ for regulation but one that needs to be addressed. One of the major critiques and concerns about law (including international law) in a world of artificial intelligence is that it is ill-equipped and lacks agility to effectively respond to the challenges posed in the ‘Fourth Industrial Revolution’. What is needed is a shift in the methodology of regulation that looks to the future in order to have thought through the potential risks, challenges and regulatory options before the technology emerges or while it is under development. This requires close interdisciplinary collaborations – stripped of hype – and much better structures and ways of working so that the public and policymakers understand the current state of technology and its trajectory in order to be able to effectively regulate its use.

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Irregular migration after the Aquarius incident: moving beyond the law. A reflection on Fink and Gombeer

Published on July 5, 2018        Author:  and


Last month, EJIL: Talk! published a piece by Fink and Gombeer on the legality of Italy and Malta’s recent failure to provide a safe haven to a rescue vessel Aquarius. Essentially, the authors concluded that the refusal by these states to open their harbours is ‘regrettable, at the very least, but not necessarily unlawful.’ On their view, for the reasons elaborated in their analysis, neither the law of the sea nor human rights law have been ‘evidently’ breached. It follows that these two branches of law, in the context of ‘Aquarius-like incidents’, provide rather no avail to asylum seekers; in other words: law has its own limits.

The fate of Aquarius and her passengers is yet another example of an endless list of scenarios where people from predominantly war-torn, repressed or impoverished territories often attempt to irregularly cross international borders; a large number of them seeking help, safety and a better life. This and similar events illustrate not only that the handling of the arrival of asylum seekers, especially in Europe, has fostered multiple crises, but also that irregular migration will not cease to occur. Hence, the need for a long-term, responsible and visionary solution is evident.

Fink and Gombeer reflect de lege lata, and their diagnosis is valid and all the more relevant nowadays, de lege ferenda, as the governance and management of migration is largely being reformed, on multiple levels, precisely to address contemporary challenges and expectations. Among others, the European Union (EU) attempts to reform its migration and asylum policy, predominantly the so-called Dublin system, and the United Nations (UN) is expected to adopt its Global Compact on Migration by late 2018.

Having read Fink and Gombeer’s analysis, we cannot help but reflect on their main conclusion in light of these reforms. These authors basically identify a ‘gap’: the law has its own limits. We, in turn, reflect further on filling the said ‘gap’. We ask what can be done to overcome the limitations of law in order to ensure more holistic protection of asylum seekers?

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