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Home Archive for category "International Organisations"

To Forget, But Not Forgive: Why the CJEU’s Latest Ruling on Google and the ‘Right to Be Forgotten’ is Not at All a Win for US Tech Giants

Published on November 29, 2019        Author: 

 

Google has recently triumphed in the fight against a worldwide application of the European “right to be forgotten” following the European Court of Justice’s ruling that Google does not have to take down search results revealing sensitive personal information of EU citizens worldwide, rejecting demands by the French Data Protection Authority. The long anticipated judgment by Europe’s top Court in Google v CNIL, delivered on 24th September 2019, was a test of the ‘right to be forgotten’, which allows EU citizens to request, among other things, the removal of search engine results that reveal their personal information. This right is now explicitly recognised in Article 17 of the influential EU’s General Data Protection Regulation (GDPR).

The ruling has been welcomed by US tech giants as an iconic curb of what they see as a ‘European overreach’- extension of its laws beyond borders.  However, not many have noticed that the Court intentionally left a glaring loophole – an opportunity for EU countries to force worldwide de-listing if they deem so fit. In other words, EU countries could still compel Google to de-list beyond Europe, and this decision comes as no surprise in light of the broader context of EU’s pushback against US tech giants.

In the wake of Edward Snowden’s 2013 mass-surveillance revelations about US spying on ordinary citizens and world leaders alike, Europe’s top Court demonstrated leadership by taking a hard line stance on the enforcement of data privacy law, even against other EU bodies. Although many have perceived the latest judgment as a restraint on the Court’s expansive interpretation of EU law, the CJEU  has in fact continued its hard line data privacy crusade with this judgment, which has significant implications for data privacy law, US tech companies, and Internet users. Read the rest of this entry…

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Reconciling new interpretations of the UN Charter with the customary international law on the use of force

Published on November 26, 2019        Author: 

 

In a recent lecture, published as a post on this blog, Professor Dapo Akande analysed the diversity of the rules on the use of force in international law and the implications for the evolution of the law in this area. In this post I wish to address one issue arising from this discussion but not directly addressed in Dapo’s lecture: the impact of changes to the UN Charter on the customary international law rules on the use of force.

In his lecture, Dapo argues persuasively that there are structural difficulties surrounding the evolution of Charter rules, and that these could be avoided if UN members were to interpret the UN Charter through subsequent practice under Article 31(3)(b) VCLT so that a ‘Uniting for Peace’ resolution of the UN General Assembly ‘would be deemed not to be a breach of the prohibition of force under Art. 2(4) in the same way that a Council resolution authorizing force would have that effect.’ However, while this route would avoid the obstacles Dapo discusses that make it difficult to imagine customary international law bringing about a change in the Charter rules on the use of force, it raises the opposite question: how would modification of the Charter rules impact the customary prohibition on force?

As clarified by the ICJ in Nicaragua (Merits, para 179), customary law continues to exist and apply separately alongside even identical treaty provisions. Since the customary and treaty prohibitions exist independently, even if the Charter were to be interpreted so that force authorised through Uniting for Peace was no longer considered a breach of Article 2(4), this interpretation of the Charter wouldn’t automatically change custom to match. A priori, force lawfully authorised by the General Assembly under the Charter would therefore still be in violation of the customary prohibition on force. One could argue that the new treaty rule would simply prevail over the customary prohibition to the extent they conflict, but this seems difficult when the customary prohibition is probably also a jus cogens norm. Indeed, it seems rather that the purported interpretation of the Charter would – by analogy with a new treaty amendment conflicting with jus cogens which would presumably be caught by Article 53 VCLT – be invalid. Read the rest of this entry…

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Is the UN Violating International Labour Standards?

Published on October 29, 2019        Author: 

The recent controversy regarding UNOPS consultants in Geneva has triggered a much larger and long-overdue debate on the use of ´non-staff personnel´ in the UN system and the asymmetries in their working conditions with respect to UN staff.

On 2012, the United Nations’ Joint Inspection Unit (JIU) published a report on a survey aimed at assessing the practices of individual consultancies and other non-staff personnel in the UN System, including various specialized agencies. The investigation revealed that use of non-staff personnel in the UN amounts to approximately 40 percent of its total workforce. One of the key reasons for the use of non-staff personnel, according to the report, is the lack of sufficient resources to pay for a staff position in conjunction with the strain of having to deliver with scarce funding. A further 2014 report specified another reason to hire non-staff personnel: greater flexibility in the recruitment process in comparison to staff recruitment. In spite of numerous recommendations made by the JIU to UN agencies, regarding contracting practices, no real progress has been made to address the aforementioned issues and solve them.

Consultants in the UN, generally maintain a contractual relationship with a UN Agency but are not considered formal ’employees’. While the use of consultants does not appear prima facie to be a breach of human rights standards on labour, I argue in this post, that the manner in which consultancy contracts are being implemented by the UN is inconsistent with the ‘equal pay for equal work’ principle.

UN Consultancy Schemes and the ‘Equal Pay for Equal Work’ Principle

Article 7 of the ICESCR stipulates that members of the Convention should guarantee fair wages and equal remuneration for work of equal value “without distinction of any kind”. As for the scope of the term “remuneration”, in the ICESCR drafting sessions there was a general consensus that the term comprises other benefits “beyond monetary wages” such as social security, family and child benefits, as was later established in the ILO Convention 100. Therefore the ‘equal pay for equal work’ principle not only involves a monthly salary but it also includes other social benefits. Read the rest of this entry…

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The Implementation of Judgments of the European Court of Human Rights: Worse Than You Think – Part 2: The Hole in the Roof

Published on October 8, 2019        Author: 

Part 1 of this blog post addressed the current narratives concerning the implementation of ECtHR judgments. Part 2 below attempts to set out what the current state of implementation might really be.

Imagine you are told that there is a hole in the roof of your house. You go out to buy the materials to fix it, come home and begin work. However, half-way through the repairs you realise that the hole is far larger than you thought. It turns out that you do not have enough materials to mend it properly.

If we are not careful, this is what is going to happen with the challenge of non-implementation of ECtHR judgments and the response that is made towards it in the next era of the Convention system. The scale of the problem is being underestimated – so there is a serious danger that the response will be insufficient. The scale of non-implementation can be demonstrated by looking at the best metrics available to assess the issue.

Overall judgments vs. Leading judgments

The number of overall pending ECtHR judgments is mostly filled by repetitive cases. In order for these to be closed, justice has to be carried out for the individual applicant in the case. This usually involves the payment of compensation; or perhaps a retrial or proper investigation into the relevant events. Read the rest of this entry…

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The Implementation of Judgments of the European Court of Human Rights: Worse Than You Think – Part 1: Grade Inflation

Published on October 7, 2019        Author: 

Part 1 of this blog post will explore how the current narratives about the implementation of ECtHR judgments paint a misleading picture. In Part 2, a different set of statistics will be examined, in order to explore how well the implementation system is really functioning.

In some countries, exam results in schools and universities are improving every year. However, many doubt that this is because the students are actually doing better in their studies. The accusation is made that, though exam marks are improving, this is the result of tests being made easier, rather than the students becoming better educated. This “grade inflation” allows schools and universities to publish better results, but without the performance behind the results actually improving.

What applies to schools and universities can also apply to international institutions.

Over the last few years, the Council of Europe has advanced a consistent narrative about the state of implementation of judgments from the European Court of Human Rights. This narrative suggests that implementation is going very well indeed. Read the rest of this entry…

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International Civil Servants and Their Unexplored Role in International Law

Published on October 3, 2019        Author: 

2019 marks the centenary of the foundation of the League of Nations. While the early intergovernmental organizations (IOs) founded before WWI were often staffed by seconded officials, Eric Drummond, the British diplomat and the first Secretary-General of the League, set the ground for creation of an ‘international’ secretariat, composed of professional public servants of various backgrounds, who were ready to commit to the goals of the League and carry out their functions under the sole direction of a non-national leader. The concepts and approaches introduced by Drummond were later inherited by the United Nations and other IOs. Later on, the second UN Secretary General Dag Hammarskjöld played a major role in concertizing the concepts and principles of international civil service, introducing ‘independence’ and ‘international responsibility’, as the pillars of the work of the secretariat.

Today, the backbone of international bureaucracies are individuals with expertise and diplomatic tact, who altogether constitute a unique body of human resources known as ‘international civil servants’. International civil servants perform their duties in complex legal and political environments; in refugee camps, humanitarian missions, post-conflict administrations, and sometimes in calmer environment of headquarters. The status, rights and obligations of employees of IOs are rooted in the constituent instruments of their respective organizations, concluded under international law. However, this is not a one-way road. Indeed, international civil servants actively contribute to formation of international norms, monitor and report on their implementation at macro and micro levels. In a broader perspective, they collectively shape the vision of ‘good life’ for the world population, using an expert language, which enhances the persuasive force of their narratives. Nevertheless, the role of individuals behind the wheels of IOs in development of international law is, to a great extent, absent from the international legal discourse. A better understanding of the changes in international law necessitates an in-depth inquiry into the role of international civil servants in constructing the narratives that influence the spheres of global and national governance. Read the rest of this entry…

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Does the European Court of Human Rights Have to Decide on Sovereignty over Crimea? Part II: Issues Lurking on the Merits

Published on September 24, 2019        Author: 

In my previous post I explained how the European Court’s Article 1 jurisprudence allows it to avoid the question of sovereignty over Crimea, since it can ground Russia’s jurisdiction over the territory, and thus the applicability of the ECHR, simply on the fact of its control and need not say anything else. But there are at least two issues on the merits of the Ukraine v. Russia re Crimea case that could directly engage the question of sovereignty over the territory. As a preliminary matter, I now need to say that I have not had the benefit of reading the pleadings of either party in the case – the Court has an inexplicable policy of not putting the pleadings online, but only allowing them to be consulted in its building in Strasbourg. That said, I am reasonably certain that the two issues I examine here are properly raised in the case. I will therefore now turn to the first of these, the mass imposition of Russian citizenship on the people of Crimea.

Read the rest of this entry…

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Does the European Court of Human Rights Have to Decide on Sovereignty over Crimea? Part I: Jurisdiction in Article 1 ECHR

Published on September 23, 2019        Author: 

On 11 September the Grand Chamber of the European Court of Human Rights held oral hearings on the admissibility of the interstate claim Ukraine brought against Russia regarding Crimea (no. 20958/14). The webcast of the hearing is available here. There are many different admissibility issues that the case raises, some of them heavily factual (e.g. the existence of an administrative practice on the part of Russia that makes individual recourse to domestic remedies impossible). The case may well flounder on one of them. But the one issue that concerns me here is simply this: should the European Court make any pronouncements on whether it is Ukraine or Russia who is the rightful sovereign of Crimea?

To be clear, sovereignty over Crimea is not to my mind a legally difficult question – Russia’s annexation of Crimea was as clearly illegal as anything can be. But there is wider, much more fraught, question of principle and prudence: should international human rights bodies pronounce on issues which, while capable of legal determination, are not part of their central mission of human rights protection and may negatively affect that mission? This is especially the case in situations in which it is entirely predictable that, in the political context, any such pronouncement would provoke intense backlash, even possibly leading to Russia’s withdrawal from the Council of Europe.

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Living in the Shadow of Flawed Peace: How General International Law Is Implicated in the Trade War between Japan and South Korea

Published on August 22, 2019        Author: 

As the anniversary of V-J Day approaches, the legacy of World War II still casts a long shadow on its previous Pacific theatre.  Last month, an unprecedented quadripartite incident involving warplanes from, inter alia, Japan and South Korea played out in the territorial airspace of the contested Dokdo/Takeshima islands, disputed territory that was left unresolved in the postwar San Francisco Peace Treaty of 1951 (SFPT).  Yet, the warning shots fired above those tiny rocks is not the only instance of regional tensions heating up in Northeast Asia.  On 2 August, Japan decided to remove South Korea from its list of trusted trade partners, following its restrictions on the exportation of three important chemicals to South Korea imposed last month.  Days later, Japan pulled back and permitted export of a key chemical for semiconductor manufacturing in Korea.  The two Asian economic titans have since brought their trade war to the attention of the WTO’s General Council

Yet the WTO is not the only international legal regime engaged in the escalating trade conflict between Japan and South Korea.  In this contribution, I aim to show that the now seldom-trodden postwar peace treaties concluding WWII are still pertinent to current international relations as evidenced by the diplomatic row between Seoul and Tokyo.  Self-help remains relevant to the effective operation of the international legal order, especially with respect to the enforcement of international legal rules lying outside the purview of any (quasi)judicial fora such as flaws from postwar peace treaties. 

The End of a World War  

While Japan ended its colonial rule of the Korean Peninsula following its surrender to the Allies at the end of WWII, the Peninsula was soon split into two entities.  Because of the Allies’ disagreement as to whether Korea was a belligerent party, neither Pyongyang nor Seoul signed the SFPT.  Despite its exclusion of both Koreas, the SFPT includes a China/ Korea entitlement clause (article 21).  Among other things, article 4—the framework provision on, inter alia, the disposition of property of Japan and of its nationals in the territories renounced by Japan (including the Korean Peninsula) and the relevant claims—is applicable to Korea by way of this special clause.  Yet the apparent omission of the reparation clause (article 14) sowed seeds of the lingering dispute over responsibility and reparations between Japan and South Korea. Read the rest of this entry…

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The Interests of Justice- where does that come from? Part II

Published on August 14, 2019        Author: 

Editor’s Note: This is part II of a two-part post. Read part I here.

After tracing the drafting history of article 53 of the Statute in part I of this post, part II is dedicated to the consequences that may be drawn from the relevant drafting history for the application of the “interests of justice” criterion.

The  “Interests of Justice”: a Criterion for a Limited Use

While the preparatory works of the Statute reveal that the drafters intended to provide for an “interests of justice” criterion, it is clear that they also intended to restrict its use, especially at the stage of the initiation of the investigation. This seems logical, as such a criterion was originally proposed only with regard to the initiation of prosecutions.

This conclusion arises from a comparison of the draft Statute as it stood on 18 June 1998 with the text of article 53 adopted during the last week of the Rome Conference. Such a comparison shows radical changes during the negotiations in Rome: (i) a negative formulation was finally adopted, whereas a positive determination was required from the Prosecutor at the beginning of the Rome Conference; (ii) the text of article 53(1)(c) was amended to start with the necessity to first consider factors militating in favour of an investigation (“the gravity of the crime and the interests of victims”); and (iii) a high threshold was inserted in relation to the “interests of justice” criterion (“substantial reasons”) in comparison to the relatively low threshold (“reasonable basis”) for the two other criteria provided for in article 53(1)(a) and (b). In addition to those changes, the drafters also adopted a specific mechanism of judicial review under article 53(3)(b) of the Statute with regard to the “interests of justice” criterion, which the Pre-Trial Chamber may initiate proprio motu.

Although the vagueness of the “interests of justice” criterion is regrettable, the absence of a specific definition in the Statute was “compensated” by the procedural compromise described in the preceding paragraph, which aimed to limit the use of interests of justice criterion and prevent its abuse. As mentioned already in the part I of this post, it was this procedural compromise that alleviated, to a certain extent, the concerns expressed by several delegations during the negotiations with regard to the existence of this criterion, and finally allowed its adoption in Rome. Read the rest of this entry…

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