Home Articles posted by Lorna McGregor

Activating the Third Pillar of the UNGPs on Access to an Effective Remedy

Published on November 23, 2018        Author: 

The UN Guiding Principles on Business and Human Rights (known as the UNGPs or Ruggie Principles) were developed in 2008 by the UN Secretary General’s Special Representative, John Ruggie, and endorsed by the Human Rights Council in 2011. Comprised of three pillars to ‘protect, respect and remedy’ human rights violations, the third pillar on remedy has often been referred to as the ‘forgotten’ pillar. However, it is now garnering much greater attention.

While momentum around the third pillar is critical to the realisation of the UNGPs, a number of issues still need to be ironed out. One central question relates to Principle 27 which requires states to make ‘effective and appropriate non-judicial grievance mechanisms’ available. In this post, I suggest that non-judicial grievance mechanisms can contribute to access to an effective remedy but they also carry significant risks which are potentially accentuated in the context of businesses. I argue that much greater clarification is needed on when such mechanisms can be used and the standards of justice required of them, if they are to form part of a ‘bouquet’ of effective remedies foreseen by the UN Working Group on Business and Human Rights.

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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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The Thickening of the International Rule of Law in ‘Turbulent’ Times

Published on March 8, 2018        Author: 

Note from the Editors:  This week we hold the first EJIL:Talk! Contributing Editors’ Debate, where some or all of our distinguished Contributing Editors lend their views on broad themes of international law and the state of the art, science, and discipline of international law.  Our thanks to Andreas Zimmermann (Co-Director of the Berlin-Potsdam Research Group, ‘The International Rule of Law – Rise or Decline?’) for leading the charge with Monday’s post, and to Monica Hakimi (Tuesday posts here and here), Christian Tams (yesterday’s post here), and Lorna McGregor for thought-provoking responses throughout this week’s Debate.

In a thought-provoking post, Andreas Zimmerman traces the ‘(increasing?) tendency, at least by some States, to bluntly disregard international law, and to challenge its normativity as such’. In his conclusion, he focuses on the role of scholars which he frames as a ‘vocation … to carefully analyse to what extent, and for what reasons, the international rule of law may thus have become an endangered species, and how to protect it’. He proposes that ‘at least for the time being, [the role of scholars] is to carefully analyse, first, what the actual rules to be applied are, rather than aspiring to further ‘improve’ its content’. He argues that ‘[i]t is only this way that under the prevailing circumstances as many States as possible may be convinced that abiding by the international rule of law continues to be in their own interest’.

In the constraints of this short blog, I focus on the argument made by Zimmerman that scholars should desist from ‘aspiring to further ‘improve’ [the] content’ of the international rule of law. In the first part of this post, I note that scholars and practitioners often make arguments against the creation of new treaties. On their face, these arguments appear to support a focus on ‘the rules to be applied’. However, they are usually (but not always) made on pragmatic grounds of what is politically and strategically possible and there are many examples of the adoption of new treaties to fill gaps and for other purposes such as enforcement. This is particularly the case during ‘turbulent times’. Moreover, I suggest that it is difficult to draw a clear distinction between ‘the actual rules to be applied’ and ‘improvements’ to them as the application of existing norms typically involves elaboration and a thickening of international law. I therefore ask whether a distinction between application and improvement inadvertently risks stifling the role of international law in ‘turbulent times’ and undermining its expressive function.

I then question whether aspirations to ‘improve’ the content of the international rule of law are in any case a central cause of backlash. This is a key determinant to whether such ‘aspirations’ should be curbed in scholarship. Drawing on the burgeoning literature on compliance and implementation of international law, I suggest that the reasons states disregard and challenge international law are complex and varied and scholarship needs to work within this complexity, particularly from a multi and interdisciplinary perspective, if it is to effectively protect the international rule of law.

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An Appraisal of the Council of Europe’s Draft European Rules on the Conditions of Administrative Detention of Migrants

Published on July 19, 2017        Author: 

In the last decade, a growing momentum has developed to end immigration detention. This momentum has two dimensions. First, that certain migrants, such as children, should never be detained as they are in a situation of particular vulnerability. Second, that even if a migrant is not deemed to be in a situation of ‘particular vulnerability’, alternatives to detention should be preferred and detention only used as a last resort when lawful, for a legitimate purpose, necessary and proportionate. The exceptionality of immigration detention is rooted in the recognition of the harmful physical and psychological effects of the administrative detention of persons who are not accused of a crime. The adverse impact of detention is magnified when accompanied by uncertainty about when the detention might end as well as the risk of ill-treatment, discrimination and poor detention conditions.

In addition to the work of NGOs such as the International Detention Coalition, international organisations have called on states to develop alternatives to immigration detention with some producing action plans to end immigration detention. Read the rest of this entry…

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Reflections on the European Committee on the Prevention of Torture’s Report on the UK

Published on April 21, 2017        Author: 

The European Committee on the Prevention of Torture (CPT), the Council of Europe monitoring body responsible for visiting places of detention in member states, recently published its report on its visit to the UK in 2016. The report was published at the request of the UK and a response is expected shortly.

The report is important in three respects. First, the report is striking in the number of concerns it raises about ill-treatment in places of detention in the UK, including inter-prisoner violence, a lack of safety in prisons, use of restraint and separation in psychiatric hospitals, solitary confinement of children and indefinite lengths of immigration detention. Second, the nature of the concerns raised in the report prompts questions on whether measures to eradicate ill-treatment are sufficient or whether in some instances the use and legitimacy of detention itself needs to be considered. Third, the report is part of a wider context of national reviews and reform and recent and forthcoming recommendations by the UN on the use, legitimacy and treatment in detention in the UK. This level of attention to detention in the UK raises interesting questions for scholars and practitioners on implementation and compliance with international human rights law and the conditions necessary to bring about change. Read the rest of this entry…


Should Commitments to Implementation Factor into Elections to the Human Rights Council?

Published on November 8, 2016        Author: 

Following the recent celebration of the UN Human Rights Council’s tenth anniversary, one of the key questions for its next decade is how it can play a more effective role in promoting the implementation of human rights standards and norms and its own and other UN bodies’ recommendations. This shift is critical given the serious deficiencies in implementation, despite the former UN Secretary General Kofi Annan’s call almost 15 years ago for a focus on the ‘implementation of the commitments we have made’ in an ‘era of commitment and implementation’. The recent Universal Rights Group Glion III report points to ‘important signs that UN Member States are increasingly turning their attention to the question of implementation, and how best to support it’ including within the Council. Recently, the President of the Council remarked that the Universal Periodic Review process holds ‘great potential to lead the charge’ in this regard. Tomorrow, the Council’s UPR Working Group will hold a half day panel discussion on ‘national reporting processes and structures’ as a key means to achieving implementation.

On 28 October, the UN General Assembly held elections for 14 new vacancies in the Human Rights Council. In this post, I ask whether and how the election process could provide a further lever to the burgeoning implementation project within the Council. I use the example of the UK’s recent re-election to illustrate how a deeper connection between implementation and election to the Council could be made, particularly through pledges to establish national implementation and follow-up mechanisms.

Expectations of Council Members

In 2006, the General Assembly in Resolution 60/251 outlined the requirements for membership of the Council as: (1) ‘the contribution of candidates to the promotion and protection of human rights’ (2) the submission of ‘voluntary pledges and commitments made thereto’ (4) the ‘uphold[ing of] the highest standards in the promotion and protection of human rights’ (5) ‘full[] cooperat[ion] with the Council’ and (6) agreement to ‘be reviewed under the universal periodic review mechanism during their term of membership’. The Resolution also indicated that the commission of gross and systematic human rights violations could result in the suspension of membership. Read the rest of this entry…


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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Jones v. UK: A Disappointing End

Published on January 16, 2014        Author: 

Lorna McGregor is the Director of the Human Rights Centre and Reader in Law at the University of Essex.  She was previously the International Legal Adviser at REDRESS which acted as a third party intervener in the case.

In 2012, Professor Andrea Bianchi pronounced on EJIL Talk! that we finally had certainty on the relationship between state immunity and human rights with the issuance of the International Court of Justice’s decision in Germany v Italy (Greece Intervening)On the widest argument that jus cogens norms trump immunity, I agreed (‘State Immunity and Human Rights: Is there a Future after Germany v Italy’ 1 JICJ 2013).  The Italian and Greek courts had been the only national courts to entertain the proposition and no court was likely to do so again once the ICJ had resolutely rejected it.  However, I speculated that we did not have certainty yet on two issues:

1)      whether the provision of state immunity violates the right of access to a court where no alternative remedy exists; and

2)      whether foreign state officials enjoy subject-matter immunity in civil proceedings for alleged acts that attract individual responsibility under international law.

The European Court now appears to have firmly closed the door on these two points but in a way that is dissatisfying for the reasoning it employs to get there.

A Lack of Alternative Means to Resolve the Complaint

In Jones and Others v United Kingdom, my expectation was that the Court would resolve the confusion that started in Al-AdsaniIn that case, the Court rejected the Government’s argument that Article 6(1) did not apply to ‘matters outside the State’s jurisdiction’ and ‘as international law required an immunity in the present case, the facts fell outside the jurisdiction of the national courts and, consequently, Article 6’ (para 44).  However, in finding Article 6(1) to be engaged, it also failed to take up the Government’s submission that ‘[t]here were other, traditional means of redress for wrongs of this kind available to the applicant, namely diplomatic representations or an inter-State claim’ (para 50).

The decision was subsequently criticised by those who considered the international law on state immunity to preclude the engagement of Article 6(1).  It was also criticised by those who considered that if the Court was correct in its finding that Article 6(1) was engaged, then it had to analyse the impact of the restriction fully.  Read the rest of this entry…


Two New Decisions on Subject-Matter Immunity, Torture and Extrajudicial Killings

Published on March 7, 2011        Author: 

 Lorna McGregor, Senior Lecturer, School of Law, University of Essex. Her publications include: Torture and State Immunity: Deflecting Impunity, Distorting Sovereignty’, 18 European Journal of International Law 903 – 919 (2007) and ‘State Immunity and Jus Cogens’, 55(2) International and Comparative Law Quarterly 437 – 445 (2006)

 2011 is already proving to be an eventful year for those interested in the relationship between immunities and allegations of torture and extra-judicial killings.  Both the European Court of Human Rights (in Jones v. United Kingdom, Mitchell & Ors v. United Kingdom and Nait-Liman v. Switzerland) and the International Court of Justice (in Germany v. Italy – previous EJIL:Talk! posts here and here) have cases pending before them and two lower courts in Canada and the US have recently issued judgments on the subject-matter immunity of foreign officials.  Both Kazemi v. Iran and Ors (Canada) and the district court decision in Yousuf v. Samantar (US) involve allegations of torture and extra-judicial killings committed in Iran and Somalia respectively. Although the courts in both decisions found that foreign governmental officials sued in those cases do not possess subject matter immunity, they reached this conclusion by very different means. While the US Supreme Court in Samantar had denied that the US Foreign Sovereign Immunity Act did not apply to individual officials, the Canadian court in Kazemi held that the Canadian State Immunity Act does apply in principle to individual officials. The US District Court rejected immunity for the official by deferring to the views of the executive while the Canadian case reached the decision on the basis of judicial interpretation of the domestic tort exception to immunity.

Kazemi v. Iran

 At the end of January, the Canadian Superior Court of Quebec issued its decision in Kazemi v. Iran and Ors. Stephan Hashemi, the son of a Canadian photojournalist, Zahra Kazemi, who was allegedly tortured and killed in an Iranian prison in 2003, instituted civil proceedings in the Canadian courts against the Islamic Republic of Iran, its Head of State, Chief Public Prosecutor and Deputy Chief of Intelligence.  He brought the action on behalf of his mother’s estate and also claimed for the emotional and psychological injuries he allegedly suffered in Canada as a result of his mother’s detention and death and Iran’s subsequent refusal to repatriate her body to Canada. Read the rest of this entry…