Enhancing cooperation between UN and regional human rights mechanisms

Cristina Blanco, PhD researcher in international human rights law, presented at a workshop organised by the Office of the High Commissioner for Human Rights.

Between 21-22 October 2019, the Office of the High Commissioner for Human Rights (OHCHR) held a workshop on regional arrangements for the promotion and protection of human rights, following Human Rights Council resolution 34/17.

The workshop aimed to develop proposals for enhancing cooperation between international and regional human rights mechanisms in combating racism, racial discrimination, xenophobia and related intolerance.

Cristina’s presentation focused on the relationship between the Inter-American Human Rights System and other international human rights systems, in regards to discrimination against indigenous peoples in the American region, with a particular emphasis on their economic and social rights.

Christina Blanco presenting at the international workshop on enhancing cooperation between United Nations and regional human rights mechanisms (Geneva, Palais des Nations)

Although human rights systems have made valuable contributions to this regard, there are also some areas that can be strengthened. This includes the greater reference and cross-fertilisation among systems, especially in matters of collective property; more standards and recommendations – both in numbers and specificity – on discrimination against indigenous peoples in the economic and social spheres; greater harmonisation in key standards such as the right to prior consultation and consent in contexts of extractive activities; and a broad look at the different forms of racism including a preventive approach to institutional discrimination based on an intercultural approach and attention to discrimination in interpersonal relationships.

New Guidelines on Investigating Violations of International Humanitarian Law

Noam Lubell, Professor of International Law at the University of Essex and Swiss Chair of International Humanitarian Law (IHL) at the Geneva Academy, has co-authored new Guidelines for States on how to investigate allegations in armed conflict.

The Guidelines on Investigating Violations of IHL: Law, Policy, and Good Practice are the outcome of a five-year research project, which was initiated in 2014 in partnership with the Geneva Academy of IHL and Human Rights and joined in 2017 by the International Committee of the Red Cross.

The new Guidelines are set to become the international benchmark for effective investigations into violations of international humanitarian law in all conflicts around the world. Being sensitive to the differences that characterise domestic legal and investigative systems, they identify several practical and legal issues that may arise in such investigations or should be considered beforehand. Their overarching aim is “to provide practical assistance by setting out a general framework for investigations in armed conflict and, where relevant, the corresponding international principles and standards”.

Professor Lubell addressing the New York Diplomatic Community. Image: Geneva Academy

Professor Lubell’s co-authors were Jelena Pejic, Senior Legal Adviser at the ICRC, and Claire Simmons, a Researcher at Essex Human Rights Centre and PhD candidate in the School of Law. Their findings were presented in October 2019 in New York before delegates from the UN General Assembly First and Sixth Commissions, UN agencies and other experts in an event co-organized with the Permanent Mission of Switzerland to the UN.

‘Milk-shaking’ political figures and irresponsible advertising

Dr. Alexandros Antoniou, Lecturer in Media Law, University of Essex

On 2 October 2019, the Advertising Standards Authority (ASA), the UK’s advertising watchdog, banned a promotional tweet on Burger King’s Twitter page on the grounds that it condoned anti-social behaviour.


In May 2019, a 32-year-old man launched a milkshake at Nigel Farage, the Brexit Party leader, as he campaigned in Newcastle ahead of the European elections. The man pleaded guilty to common assault and criminal damage at North Tyneside Magistrates’ Court and was ordered to pay compensation and carry out unpaid work. District Judge Bernard Begley was unimpressed by the claim that his act was a “right of protest” and called instead the incident an “act of crass stupidity”.

In response to this incident, an Edinburgh-based McDonald’s branch announced in May that it chose not to sell milkshakes while a Brexit political rally, addressed by Farage, was held nearby. However, Burger King’s approach was different. Shortly after the McDonald’s announcement, they tweeted:

Is ‘milkshaking’ becoming a habit?

The tweet, which was retweeted more than 19,000 times, attracted 24 complaints because it was believed to encourage violence. A follow-up tweet by Burger King made clear that this was not the intention behind it, stating that they would never endorse violence.

But ‘milkshaking’ appears to be emerging as a growing tactic in protest against right-wing political figures. ‘Milkshaking’ causes people to look profoundly embarrassed in front of the press, without however inflicting any substantial harm. In addition to suit cleaning costs, Farage was awarded compensation for inappropriate “distress and inconvenience”. He tweeted that normal campaigning was becoming impossible because some ‘remainers’ (i.e. individuals in favour of the UK remaining in the EU) had been “radicalised”.

The English Defence League (EDL) leader Tommy Robinson and the failed UKIP candidate Carl Benjamin also had food and milkshakes repeatedly thrown at them during their European election campaigns. ‘Milkshaking’ seems to be taking off on the other side of the Atlantic too. It was reported in June 2019 that a woman threw an unspecified drink over Matt Gaetz, a pro-Trump Republican Congressman, as he was leaving a coffee shop in Florida. She was later charged with battery and released on bail.

The ASA ruling

Because of the wide media coverage of a spate of incidents of ‘milkshaking’ political figures, the ASA (whose remit includes claims made by companies on their own websites and in social media spaces under their control) considered that people who read the tweet were likely to understand it as a reference to those incidents.

Although the regulator recognised that the tweet may have been intended as “a tongue in cheek reaction” to the suspension of milkshake sales by the fast food giant’s competitor, it held that:

“in the context in which it appeared […] it would be understood as suggesting that Burger King milkshakes could be used instead by people to ‘milkshake’ Nigel Farage.”

The ASA held that the ad condoned such anti-social behaviour and irresponsibly encouraged further instances in breach of the regulator’s harm and offence rules, which require advertisers to avoid including in their marketing communications material “likely to condone or encourage behaviour that prejudices health or safety” (CAP Code, Rule 4.4). The ASA ruled that the ad must not appear again in its current form.

As speculation over the prospect of an early general election after MPs returned to Parliament is mounting, and campaign events possibly nearing, the ASA’s adjudication usefully reminds us to drink milkshakes responsibly.

Analysing the character of the Memoranda of Understanding signed by the European Central Bank

European Central Bank

In recent years the use of instruments characterised as “atypical acts” or “soft law” has proliferated in EU law. Memoranda of Understanding (MoUs) provide a good case in point as they comprise a convenient way to conclude what are perceived as non-binding agreements negotiated and adopted bilaterally by EU Institutions and third parties.

Dr Anastasia Karatzia, Lecturer in Law and Prof Theodore Konstadinides, Professor of Law have recently published an article on the nature, characteristics, and legal effects of MoUs signed between the European Central Bank (ECB) and third parties.

The article explores the practice of the ECB for two reasons: first, owing to historically making active use of MoUs, and secondly, owing to its new role of banking supervisor for the Euro area and the specific role accorded to MoUs in banking supervision. For instance, the ECB’s central role within the EU Banking Union, which requires a high level of co-operation between the ECB and national supervisory authorities, has increased the use of MoUs as co-operation tools. Taking stock of these developments, the article provides the first comprehensive mapping-out exercise of the legal nature and character of MoUs as instruments used by the ECB. It offers an empirical analysis of the respective MoUs and establishes a legal framework that should assist our understanding of their nature, operation, and legal consequences.

The authors’ full paper was published under the title ‘The Legal Nature and Character of Memoranda of Understanding as Instruments used by the European Central Bank’ in 2019 in Vol. 44 Issue 4 of the European Law Review pp. 447 – 467. It was prepared under the Legal Research Programme sponsored by the ECB. It is one of the first articles looking at the ECB’s role in signing Memoranda of Understanding beyond the context of financial assistance provided to EU Member States. Any views expressed are only those of the authors and do not necessarily represent the views of the ECB or the Eurosystem.

Cross-Border Mergers in the EU: Shareholders’ Derivative Suits Against Corporate Directors

Dr Georgios Zouridakis, Lecturer in Law at the University of Essex, has published a new chapter in the edited collection Cross-Border Mergers: EU Perspectives and National Experiences (Springer 2019).

Dr Zouridakis’ study shows that shareholders championing corporate interests may face several obstacles following cross-border mergers within the EU, depending on whether the suit is temporally prior to the merger or vice versa. The fact that, post-merger, the company ceases to exist (and is succeeded by another entity in another jurisdiction), gives rise to issues regarding the application of rules intrinsic to the mechanics of derivative suits and particularly those on: continuous ownership; contemporaneous ownership; costs; and on the requirement for shareholders to first demand the board to take action.    

Given that the derivative suit, in all its variations, is a form of shareholder-led representative action, provided by most European countries – and often the only such available – this chapter argues in favour of a policy facilitating such shareholders’ enforcement of corporate claims in the cross-border merger context. 

Dr Zouridakis’ chapter is included in the collection Cross-Border Mergers, which was edited by Dr. Thomas Papadopoulos and published by Springer in October 2019.

This edited volume focuses on specific, crucially important structural measures that foster corporate change, namely cross-border mergers. Such cross-border transactions play a key role in business reality, economic theory and corporate, financial and capital markets law. Since the adoption of the Cross-border Mergers Directive, these mergers have been regulated by specific legal provisions in EU member states.

This book analyses various aspects of the directive, closely examining this harmonised area of EU company law and critically evaluating cross-border mergers as a method of corporate restructuring in order to gain insights into their fundamental mechanisms. It comprehensively discusses the practicalities of EU harmonisation of cross-border mergers, linking it to corporate restructuring in general, while also taking the transposition of the directive into account.

Exploring specific angles of the Cross-border Mergers Directive in the light of European and national company law, the book is divided into three sections: the first section focuses on EU and comparative aspects of the Cross-border Mergers Directive, while the second examines the interaction of the directive with other areas of law (capital markets law, competition law, employment law, tax law, civil procedure). Lastly, the third section describes the various member states’ experiences of implementing the Cross-border Mergers Directive.