The New EU Pact on Migration and Asylum and the Global Compact on Refugees and Solutions

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TabareyBarey Camp in Niger

By Geoff Gilbert, Professor of International Human Rights and Humanitarian Law, University of Essex, Chair of the Global Academic Interdisciplinary Network

The United Nations Global Compact on Refugees (GCR) of 2018 is a document that tries to embrace all aspects of forcible displacement across international borders in the 21st century. This review of the new EU Pact will focus principally on how it might facilitate solutions for displacement in relation to the GCR, but necessarily there first has to be some more general analysis.

  1. The GCR as framing the argument

The GCR may not be binding in international law (paragraph 4), but it still gives rise to commitments for the international community as a whole. Its two principal elements pertinent to this discussion relate to burden- and responsibility-sharing and its focus on solutions.

The 1951 Convention relating to the Status of Refugees (1951 Convention) and its 1967 Protocol, and the 1950 Statute of the United Nations High Commissioner for Refugees (UNHCR) are directed towards protection of refugees in the country of asylum, not so much on the inevitable burden that providing protection entails, nor the ultimate protection, a durable and sustainable solution to their displacement. Paragraph 4 of the Preamble to the 1951 Convention did call for international co-operation:

CONSIDERING that the grant of asylum may place unduly heavy burdens on certain countries, and that a satisfactory solution of a problem of which the United Nations has recognized the international scope and nature cannot therefore be achieved without international co-operation.

Nevertheless, it took until the GCR in 2018 to put “flesh” on those bare bones. As figures from UNHCR [accessed 14 September 2020] show, there are 79.5 million displaced persons of concern to UNHCR, of whom 20.4m are refugees and 4.2m are asylum seekers; 73% live in neighbouring countries to those that they have fled, often alongside the 45.7m internally displaced persons (IDPs) who are also of concern to the organisation.[1] Of the top five hosting states, only Germany is in the global north: 80% of displaced persons of concern to UNHCR live in states where there is acute food insecurity and malnutrition.

In these circumstances, where the modal average length of a situation of displacement is around eighteen years, it is little wonder that the development actors play such an important role in the GCR, while UNHCR maintains its unique protection mandate for all refugees, including asylum seekers and returnees without a durable and sustainable solution.

Some aspects of the new EU Pact have a direct impact on how the GCR’s guiding principles and objectives (paragraphs 5 and 7) are to be achieved – as the new Communication on the new Pact (COM(2020) 609 FINAL) states, the EU is the “the world’s major development donor” (p. 18).

As regards durable and sustainable solutions, the traditional three are voluntary repatriation, resettlement or local integration. The GCR recognised a fourth means for responding to displacement, complementary pathways for admission to third countries (paragraphs 94-96). There is, however, language in those paragraphs that indicates that complementary pathways are not durable and sustainable, with references to student scholarships and labour mobility. If the objective is to provide the refugee with the sustainable international protection of a state rather than that upheld by UNHCR under its mandate, then studentships and labour mobility schemes do not offer that guarantee, at least in the first instance, although they may facilitate one of the traditional durable solutions and provide the refugee with the capacity to resolve their own situation.

  1. The new EU Pact and the GCR

It is always worth mentioning that the EU’s approach of joining asylum with migration is fundamentally flawed, regardless of how long they have persisted with it. Asylum is about protection and immigration is about controlling borders.[2]

The idea that the new Pact’s focus should be “a common framework for asylum and migration management at EU level as a key contribution to the comprehensive approach and seeks to promote mutual trust between the Member States” does undermine the primacy of refugee protection (COM(2020) 610 final, 2020/0279 (COD), Proposal for a Regulation of the European Parliament and of the Council on asylum and migration management and amending Council Directive (EC) 2003/109 and the proposed Regulation (EU) [Asylum and Migration Fund] (23 September 2020), p.2).

Nevertheless, in the context of solutions, some aspects of the new Pact may be facilitative (see, C(2020) 6467 final Commission Recommendation of 23.9.2020 on legal pathways to protection in the EU: promoting resettlement, humanitarian admission and other complementary pathways (23 September 2020), Preambular paragraphs 3 and 6). Equally, those elements relating to prevention, development aid and migration as a way to end refugee status and protect the dignity of refugees could be helpful (see COM(2020) 609 final, §§6.2, 6.3, 6.5)

2.1. Prevention

The cynical view within the 1990s was that there was no such thing as post-conflict, just a pause before it was pre-conflict again. Nevertheless, the link between development assistance and prevention is well established and is even built into the responsibility to protect (UNGA Res. 60/1 (2005), paragraph 139).[3]

139 … We stress the need for the General Assembly to continue consideration of the responsibility to protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity and its implications, bearing in mind the principles of the Charter and international law. We also intend to commit ourselves, as necessary and appropriate, to helping States build capacity to protect their populations from genocide, war crimes, ethnic cleansing and crimes against humanity and to assisting those which are under stress before crises and conflicts break out.

The new Pact takes this further and should be read with paragraphs 8 and 9 of the GCR:

8 … In the first instance, addressing root causes is the responsibility of countries at the origin of refugee movements. However, averting and resolving large refugee situations are also matters of serious concern to the international community as a whole, requiring early efforts to address their drivers and triggers, as well as improved cooperation among political, humanitarian, development and peace actors.

In line with the Sustainable Development Goals, the international community, including the EU, should provide development assistance. The new Pact takes a similar line in COM(2020) 609 final §6.3 when it asserts that,

Conflict prevention and resolution, as well as peace, security and governance, are often the cornerstone of these efforts. Trade and investment policies already contribute to addressing root causes by creating jobs and perspectives for millions of workers and farmers worldwide. Boosting investment through vehicles such as the External Investment Plan can make a significant contribution to economic development, growth and employment.

On the other hand, while the new Pact has some useful language regarding long-term prevention through addressing root causes, there are other references that indicate an EU-centric attitude that will not effect global fairness and reduced displacement. In COM(2020) 609 final, §2.4 of the document talks about how “[the] new Asylum and Migration Management Regulation will … improve planning, preparedness and monitoring at both national and EU level”, rather than solidarity with the states in low- or middle-income countries who host 83% of the world’s refugees (UNHCR Global Trends 2019, p.25); as such, the focus once again seems to be on averting another 2015 European asylum crisis that never was a crisis given the wealth of European Union member states and the very limited numbers they were dealing with by comparison with many other low- or middle-income countries.[4]

2.2. Burden- and responsibility-sharing/ Local Integration

Predictable and equitable burden- and responsibility-sharing is fundamental to all of the GCR (paragraph 3). In this particular context, given the protracted nature of most displacement crises and that most displaced persons only cross one border according to the World Bank (Forcibly Displaced, 2017, p.23), supporting the low- or middle-income countries who host most refugees is part of the solution to the crisis. Solutions start from the moment of protection, as human rights and the rule of law protect refugees in the country of asylum.

The traditional durable and sustainable solutions are the endpoint of an international protection framework that is based on resolving the issues to which displacement gives rise: denial of access to education, employment and healthcare, interference with the guarantees the rule of law should offer, and the upholding of human rights. Some of the new Pact targets these problems refugees face during their situations of displacement. COM(2020) 609 final §6.2 states that

… [The] EU is determined to maintain its strong commitment to providing life-saving support to millions of refugees and displaced people, as well as fostering sustainable development-oriented solutions.

Nevertheless, this is a perfect example of why the new Pact might be evidence of hope triumphing over expectation. Niger has provided incredible support to forcibly displaced persons for years,[5] but according to the UNDP Human Development Index for 2020, Niger came 189th out of 189 countries. The EU should not be ‘solving’ forced displacement and providing protection through transfer to one of the poorest countries on the planet.

What is also true, however, is that whether formally or not, lots of forcibly displaced persons remain for protracted periods in the country of asylum and settle there. As will be seen, where voluntary repatriation is not possible, refugees have few options other than to make a new life in the country giving protection. The generosity of many countries of asylum in this regard, though, cannot be abused by the international community and, thus, EU initiatives with respect to development, also indicated in the new Pact, will inevitably play a large part in solutions. According to COM(2020) 609 final §6.3:

The EU is the world’s largest provider of development assistance. This will continue to be a key feature in EU engagement with countries, including on migration issues. Work to build stable and cohesive societies, to reduce poverty and inequality and promote human development, jobs and economic opportunity, to promote democracy, good governance, peace and security, and to address the challenges of climate change can all help people feel that their future lies at home.

It may not be what low- or middle-income countries hoped for during the Formal Consultations on the GCR, but without robust engagement with the source states, which have predominantly remained the same since the 1990s (World Bank, Forcibly Displaced, 2017, p. 23), voluntary repatriation will not resolve displacement crises.

2.3. Resettlement and Complementary Pathways

Resettlement is one of the classic durable and sustainable solutions, but it is less and less available, such that only for the most vulnerable will it provide a means of ending refugeehood. The Commission Recommendation on legal pathways to protection in the EU: promoting resettlement, humanitarian admission and other complementary pathways (C(2020) 6467 final) supports the expansion of resettlement programmes within the EU. But even so its impact on low- or middle-income countries that host so many refugees would still be minimal because the base figure is so low – 107,800 in a mere 26 countries worldwide in 2019 according to UNHCR.

The proposed Recommendation is a positive move by the EU, although the role of the European Asylum Support Office (EASO) alongside UNHCR needs to be further developed. Complementary Pathways are an additional solution listed in the GCR (paragraphs 94-96), but whether they will always be durable and sustainable like the traditional ones is open to question. The Pact deals with one very specific aspect of this in §6.6, the migration control effected through visa requirements for short-term mobility.

The remaining aspects of the proposed Recommendation apply equally to resettlement and complementary pathways. The aim of trying to ensure that forcibly displaced persons do not have to resort to irregular migration or even people smugglers is to be commended (§6.6, new Pact), but unless that reflects effective access rather than simply top slicing particular refugees based on limited skill sets that only suit EU member states (see paragraphs 19 and 21 of the Recommendation), then no noticeable change will take place. It will also reduce the skill-base in the country of nationality for when transition towards peace and stability can commence.

To start, resettlement is a humanitarian response that benefits refugees and the countries of first asylum, usually low- or middle-income countries, it is not a means by which to “match people, skills and labour market needs through legal migration” (§6.6, new Pact). That might be applicable to complementary pathways, but not resettlement as is clear from the Pact’s own description of the Union Resettlement and Humanitarian Admission Framework Regulation. The Pact also encourages broader community engagement with resettlement programmes that again reflects positive aspects of the GCR. (see paragraph 91 read in the light of paragraphs 33-44).

2.4. Voluntary repatriation

Often spoken of as the most desired solution by refugees and countries of asylum, voluntary repatriation relies on restoration of human rights and rule of law in the country of nationality, along with substantial development initiatives. UNHCR can ensure that voluntary repatriation does lead to durable and sustainable solutions for returning refugees through monitoring, but the international community as a whole will provide the framework.

The EU has a major role to play in peace building and conflict resolution, not only as regards addressing the root causes, not just vis-à-vis prevention, but also to encourage voluntary repatriation (§6.3). While there is much in the new Pact on the economic initiatives and on return programmes where people do not require protection, more on restoring human rights, rule of law and good governance would have been welcome.

  1. Conclusion

The Pact on Migration and Asylum has once again missed the opportunity to put the EU at the forefront of resolving the global displacement crisis. It focuses on internal EU concerns and aims at pushing the problem away, often with a cynical reference to how that will protect so many from the dangers they might face in trying to reach Europe. When only 17% of persons of concern to UNHCR were in high-income countries in 2019, the need to support low- or middle-income countries and to offer enhanced protection and assistance to refugees should have been the outward-looking drivers for this review. International protection standards have been sacrificed in the (vain?) hope of achieving a compromise within the EU.

This post first appeared on the website of the ASILE project and is reproduced her with permission and thanks.

Endnotes:

[1] This year’s figures include 3.6 million Venezuelans displaced abroad, alongside the 93,300 refugees and 794,500 asylum seekers – 4.5 million Venezuelans in total.

[2] For further discussion, see Gilbert, ‘Is Europe Living Up to Its Obligations to Refugees?’ 15 EJIL 963 at 968 (2004); Refer to S. Carrera, ‘Whose Pact? The Cognitive Dimensions of the New EU Pact on Migration and Asylum’, Policy Insight Kick-off Contribution to the ASILE Forum.

[3] For further discussion, see Gilbert, ‘Rights, Legitimate Expectations, Needs and Responsibilities: UNHCR and the New World Order’, 10 International Journal of Refugee Law 349 (1998), fn.1.

[4] See UNHCR Global Trends 2019, p.25, Figure 12.

[5] For further discussion, see Gilbert & Rüsch, ‘Rule of Law and UN Interoperability’, 30 IJRL 31 at 35 and fn.136, (2018)

Reviewing Judicial Review: The Constitutional Importance of the Independent Review of Administrative Law 2020

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Photo credited to https://commons.wikimedia.org/wiki/User:Lonpicman

Prof Theodore Konstadinides (Professor of Law, University of Essex), Lee Marsons (Postgraduate Research Student, University of Essex) and Prof Maurice Sunkin (Professor of Law, University of Essex)

Last year, the Government committed itself to establishing a Commission on the Constitution, Democracy and Rights, which would consider reform of the UK’s constitutional order, including judicial review and the Human Rights Act 1998. Instead, on 30 July 2020, the Government launched an ostensibly narrower Independent Review of Administrative Law (IRAL) to examine the need for reforms of judicial review in particular. This is to be conducted by an advisory panel of experts led by Lord Faulks QC. Any options for reform put forward by the Review will be considered by the Lord Chancellor and Secretary of State for Justice, Robert Buckland QC MP and by the Chancellor of the Duchy of Lancaster, Michael Gove MP. Both the report of the Review and the Government’s response will be published by the end of 2020 or shortly thereafter.

The scope of the Review in context

The Review is expressly framed as an attempt to explore the balance ‘between enabling citizens to challenge the lawfulness of government action and allowing the executive and local authorities to carry on the business of government’. In particular, the Review considers the:

(i) codification of the grounds of judicial review and the amenability to review of public decisions;

(ii) justiciability of certain executive decisions;

(iii) grounds and remedies available in justiciable claims and whether these should differ depending on the subject-matter of the case; and

(iv) any additional procedural reforms, such as time limits, costs, appeals, and standing.

The current Review is the latest in a series of exercises over the past decade directed at reforming judicial review. Recent consultations include:

While the current Review follows this reform trajectory, it is substantially different in its framing and objectives in several respects. In particular, this exercise is presented as being concerned with a range of broader issues than previous consultations, which largely focused on procedural and financial reforms. This is indicated by the Review’s function to provide an independent examination of ‘administrative law’, rather than ‘judicial review’ exclusively. This would be an ambitious project especially given the seemingly tight timeframe being set, not least for the initial consultation (some six weeks from start to end). However, the reality of the Review may belie its ambitious wording. In practice, it seems that the Review is considering ‘administrative law’ only in the narrowest of senses – that is, those aspects of administrative law that are associated with the grounds of judicial review.

In other words, the Review appears not to be concerned with the broader territory of administrative law or with the wider landscape of administrative justice. There is, for instance, no indication that it will examine statutory appeals, administrative reviews, the work of tribunals, or ombuds. The implication is not only that judicial review equates to administrative law, which many will recognise as being dubious, it is also that judicial review can be understood and reformed in isolation to those parts of the administrative justice system to which it is inevitably attached. This is an artificially narrow approach. After all, judicial review is a remedy of last resort and its use is intimately connected to the availability of other routes of redress, including those within public bodies themselves. This narrow approach to administrative law also runs the risk of producing reforms to one part of the wider system without adequate regard to other parts.

It is perhaps not surprising that, despite its title, the Review has not been established to consider wider issues of administrative law redress and justice. After all, these wider issues of redress are not the political priorities underlying the Review. The real priorities are likely to be those originally flagged by the government when it promised to establish a Commission on the Constitution, Democracy and Rights.  The real issues of concern are constitutional in character and this is why the Review differs substantially from previous consultations. The earlier concerns were to make procedural changes that would address the perceived growth in the use of judicial review that was thought to be largely driven by claimants seeking to abuse the system and to prevent judicial review impeding good government. The current call for reform builds on these concerns but now the priority has shifted away from procedural reform to more substantive constitutional reform. In particular, the Review is being asked to address fundamental issues concerning the appropriate constitutional place of judicial review, including: whether the courts are interfering inappropriately with executive decisions and if so whether certain types of executive decisions should be protected, whether appropriate tests of justiciability are being adopted, and most fundamentally of all whether judicial review should be placed on a statutory footing and the grounds codified.

Important omissions from the call for evidence

The omission of any reference to human rights is striking. This probably reflects an intention to draw a clear line between the focus of this IRAL’s work and future consideration of human rights issues and the Human Rights Act 1998. Indeed, one is left wondering whether the Government’s and Lord Faulks’s views about repealing the Human Rights Act 1998 have a bearing on this omission. But this too suggests that the IRAL is being asked to take an artificial and narrow approach to judicial review. It is difficult to see, for example, how the grounds of judicial review and issues such as justiciability can be considered without addressing human rights. After all, sections 6 and 7 of the Human Rights Act 1998 create an express statutory obligation on public bodies not to violate the human rights in Schedule 1 and provide victims of a violation the right to pursue legal proceedings against a public body. Moreover, the approach of the courts to such matters as rationality, procedural fairness, and proportionality is fundamentally affected by issues concerning human rights. Human rights are now fundamentally entwined into the life of judicial review and while surgical procedures may be used to try to separate them out, there is a real risk that the patient will not survive: that no sustainable reforms will be produced and that those reforms will ignore major issues at their core.

Reassurance about the place of fundamental rights in judicial review would have been particularly welcome since the EU Charter of Fundamental Rights (which sets out individual rights and freedoms emanating from CJEU case law, the ECHR and common domestic constitutional traditions) will cease to have effect in the UK at the end of the Brexit implementation period. This development will affect constitutional checks that are currently capable of correcting outdated legislation. For instance, after 31 December 2020, claimants in cases like Benkharbouche(where the Supreme Court held that the State Immunity Act 1978 was unlawful for breaching Article 6 ECHR and Article 47 of the EU Charter of Fundamental Rights) will not be able to get a remedy beyond a declaration that their rights have been breached under s.4 of the Human Rights Act 1998.

More stark is the omission of any reference to the most fundamental premise of British constitutionalism; namely, parliamentary sovereignty.  Indeed, there is no reference to Parliament in either the terms of reference or the call for evidence. Instead, the IRAL’s work is expressly framed as an exercise to determine the appropriate balance between executive action and the individual’s ability to challenge the executive, whitewashing Parliament from view. This neglects that the executive is the junior constitutional partner (as Lady Hale put it at [90] in Miller I) and that Parliament is sovereign. Government is not entitled to ignore the law as enacted by Parliament, even if this would substantially improve its efficiency and accomplish its objectives. This is basic Entick v Carrington (1765). The Review locates judicial review within a struggle between executive and judges when that is not necessarily its primary and exclusive place within the constitution – arguably, its basic and core role is to ensure that government acts within the powers granted by Parliament (Padfield v Minister of Agriculture, Fisheries and Food). This essential point has not even a footnote in the IRAL’s extant documents.

Also concerning is the lack of any express or implied recognition of the potentially major constitutional consequences of codifying the grounds of judicial review, particularly for the accountability of the executive to the common law. For many commentators, the experience of the Australian codification of the grounds of review in the Administrative Decisions (Judicial Review) Act 1977 has been the ossification and stunting of judicial developments in the grounds of review e.g. Mark Aronson, ‘Is the ADJR Act hampering the development of Australian administrative law?’ (2004) 15 Public Law Review 202 and T.H. Jones, ‘Judicial Review and Codification’ (2000) 20 Legal Studies 517. A similar eventuality could arise with these reforms – an executive with a large majority in the House of Commons inveigles Parliament to codify judicial review so as to prevent or hamper the courts from developing and increasing its accountability at common law.

Evidence and methodology

A final comment concerns the method by which the IRAL seeks to obtain evidence. The Review is rightly concerned to base its deliberations on the available evidence, including on such matters as the trends in judicial review over the last thirty to forty years. However, the challenges in identifying, marshalling and understanding that evidence in the short time available cannot be overestimated. It is noteworthy that the IRAL’s secretariat quickly produced a full questionnaire to government departments. The responses are likely to provide significant evidence relating to how government departments experience and perceive judicial review. This will be a valuable addition to our knowledge base. 

However, and this is to say the obvious, that evidence will only provide a partial view of the working of the system – the view of defendant public bodies subject to judicial review. Ideally, a similar exercise would be conducted to seek the views of claimants and their lawyers, as well as other users of the system.  Such an exercise would ideally enable the responses to be analysed and coherently presented as a corrective to defendant-focused evidence.  This of course would supplement but not replace individual submissions. It would help ensure that the IRAL has access to a full range of experiences and opinions.  Undertaking such an exercise in the time available will be a real challenge but one that is extremely important, and this exercise is something that we are currently considering with The Law Society.

The authors of this blog post are involved in a project funded by the ESRC with the objective of assisting The Law Society of England and Wales to amass an evidence-base that will help inform the Society’s response to the Review’s call for evidence and eventual reform agenda. The Law Society is the independent professional body representing solicitors in England and Wales. This blog post offers some initial observations about the Review and is written in a purely personal capacity and does not necessarily represent the views of The Law Society.

This blog was originally posted on the UK Constitutional Law Blog on 24th September 2020 and is available here.

If I could turn back time: the confusion between two TENETs and the role of trade marks

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Image from Wikimedia Commons, the free media repository

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

Christopher Nolan’s much-anticipated “mind-bending” film Tenet was released in the UK in late August 2020 to mixed reviews. Nevertheless, it performed well internationally. This is not, however, surprising for Nolan, whose blockbusters Inception, Dunkirk and The Dark Knight trilogy saw massive box office returns.

“The story [in Tenet] takes on ideas of time and how we experience it – interacting a science fiction component with the classic elements of the spy genre”, Nolan said. The first trailer of the movie arrived with a simple title logo in which the last two letters, i.e. E and T, were inverted, making an indirect reference to the concept of time inversion which provides a framework for the film’s plot.

When the first trailer dropped in December 2019, a bicycle components brand based out of Bellingham in the US state of Washington, also named Tenet, published the following post on Instagram:

View this post on Instagram

𝟱/𝟮𝟱/𝟮𝟬 𝗨𝗣𝗗𝗔𝗧𝗘: 𝗔𝗽𝗽𝗮𝗿𝗲𝗻𝘁𝗹𝘆 𝗜 𝗻𝗲𝗲𝗱 𝘁𝗼 𝗵𝗶𝗴𝗵𝗹𝗶𝗴𝗵𝘁 𝘁𝗵𝗮𝘁 𝘁𝗵𝗶𝘀 𝗽𝗼𝘀𝘁 𝗶𝘀 𝗻𝗲𝗮𝗿𝗹𝘆 𝟲 𝗺𝗼𝗻𝘁𝗵𝘀 𝗼𝗹𝗱. 𝗦𝗶𝗻𝗰𝗲 𝗽𝗼𝘀𝘁𝗶𝗻𝗴 𝘁𝗵𝗶𝘀 𝗠𝗿. 𝗡𝗼𝗹𝗮𝗻 𝗮𝗻𝗱 𝗪𝗕 𝗵𝗮𝘀 𝗯𝗲𝗲𝗻 𝗶𝗻 𝗰𝗼𝗻𝘁𝗮𝗰𝘁 𝘄𝗶𝘁𝗵 𝘂𝘀 𝗿𝗲𝗴𝗮𝗿𝗱𝗶𝗻𝗴 𝘁𝗵𝗲 𝘀𝗶𝘁𝘂𝗮𝘁𝗶𝗼𝗻. 𝗜𝗳 𝘆𝗼𝘂 𝘄𝗼𝘂𝗹𝗱 𝗹𝗶𝗸𝗲 𝘁𝗼 𝗿𝗲𝗮𝗱 𝗠𝗿. 𝗡𝗼𝗹𝗮𝗻’𝘀 𝗲𝗺𝗮𝗶𝗹 𝗮𝘀 𝘄𝗲𝗹𝗹 𝗮𝘀 𝗼𝘂𝗿 𝗿𝗲𝗽𝗹𝘆 𝗶𝗻 𝘁𝗵𝗲𝗶𝗿 𝗲𝗻𝘁𝗶𝗿𝗲𝘁𝘆 𝘄𝗲 𝗵𝗮𝘃𝗲 𝗽𝗼𝘀𝘁𝗲𝗱 𝘁𝗵𝗲𝗺 𝗼𝗻 𝗼𝘂𝗿 𝘄𝗲𝗯𝘀𝗶𝘁𝗲. • ORIGINAL POST FROM 2019 -> No, despite the striking similarities, we are not making a movie with Christopher Nolan. Maybe it was a coincidence, or maybe Nolan was inspired by our branding; regardless the apparent negligence is frustrating to say the least. Thank you to all the people that have reached out in support of Tenet (the bike brand). When we became aware of this, our biggest fear was that many of our peers who haven’t heard of Tenet (the bike brand, shit this is going to get old quick) might think WE stole the logo from Nolan, when in reality, we launched long before this movie was announced. If you would like to share this post to help spread the word, it would be greatly appreciated. I’m sure one day we’ll all look back on this and shake our heads in disbelief. #supportriderowned #damntheman

A post shared by TENET COMPONENTS ™️ (@ride_tenet) on

Christopher Nolan was seemingly unaware that a strikingly similar logo was already being used by the bicycle making company. Tenet Bicycles holds a registration for the mark (USPTO, registration number 5581507) since 9 October 2018, i.e. prior to its adoption for the film. However, in trade mark law, this registration only protects them from the use of the word within the biking industry.

The core aim in registering a trade mark is to acquire a monopoly right over a sign that distinguishes a trader’s goods or services from those of others. But, that sign gives in principle protection in the class or classes of goods and services for which it is registered (there are 45 classes under the NICE classification system). For instance, the name Lloyds is used in various classes: a bank, a pharmacy chain and an insurance market, but only one bank, one pharmacy chain, etc. can register the mark Lloyds. Special rules apply, however, to very strong and vulnerably famous marks, which are afforded in trade mark law stronger protection against use by third parties, even on dissimilar goods or services and even if no confusion will arise on the part of the average consumer.

In the case at issue, there was understandably a real concern that people unfamiliar with the Washington-based brand, which launched in June 2018, would think that the recently established company attempted to ride on the coat-tails of the logo used to promote the forthcoming film of a reputable director in order to benefit from its prestige and power of attraction. Being minded to mitigate the risk of confusion, the founder of Tenet Bicycles, Tyler Deschaine, said in a public statement:

I don’t have any issue with them using the word Tenet, there are thousands of trademarks for that word across dozens of industries. My issue is with the stabilization, but that is neither here nor there. I’ve spoken with lawyers and despite the validity of my concerns; I’ve been advised not to pursue it. Even sending a letter could potentially open myself up to a pre-emptive lawsuit from Warner Brothers. These sorts of things can get dragged on for years and the legal fees can go well into the hundreds of thousands of dollars. We’re a tiny component company that is taking baby steps to carve out a place for ourselves in the industry. We in no way want to get raked through the coals of litigation. That would end poorly for us. Also, we’ve got more important things to focus on, like developing new product and creating rad content. I want to make it clear that I never thought of this scenario as a get rich quick scheme. At the end of the day, I just want to avoid potential damages to my brand’s reputation and I suppose this article will help clear the air.

After the publication of this statement, Warner Bros., the production company behind Nolan’s film, reached out to the bike parts manufacturer, with the following response by the director:

Dear Tyler,

Warners just showed me the logo for your company, so I wanted to reach out directly and reassure you that our logo was arrived at without reference to yours. I know this because I designed ours myself, evolving it over the last six years, driven by a fascination with the symmetries of a word which is central to my story and its themes. I thought I’d done something unique – but clearly, you were driven by the same creative impulse. I guess lightning can strike twice, and obviously I understand that you would not want anyone thinking that you had been inspired by our movie’s title treatment – feel free to quote me in shooting such misunderstandings down. I love our logo so I hope you won’t feel this is necessary, but if you like, I can stop using it since it seems you went public with yours first.

Yours respectfully.

Chris Nolan

This story is a useful reminder that not all trade mark disputes have to result in bitterly fought litigation. Both Deschaine and Nolan took this matter as a simple coincidence, though Tenet Bicycles did ask Warner Bros. to refrain from using the partially inverted logo with the same font for Nolan’s film. The producers followed up by slightly amending the film’s logo in its latest trailer, which premiered with a plain title card instead. This mutually acceptable outcome represents an amicable compromise and reasonable settlement of the issue, which led to positive publicity for both sides involved, the bicycle company and the film producers.

Another key take-away message is that brands must learn to carefully pick their battles. Warner Bros. producers could have been left with a PR nightmare on their hands, had they attempted to ‘discipline’ a small company. Resorting to legal correspondence with a threatening tone or aggressive point-scoring enforcement practices that frustrate lawyers and the public might not always be the best way forward. Instead, it is wise to determine on a case-by-case basis how best to address potentially infringing activities. The type of business being written to, the precise nature of the alleged infringement as well as the risk of future litigation and the management of commercial risks to the business itself should be carefully considered. The legal and public relations teams of brands need to work together in assessing whether to pursue cases of infringement, and if so, in what way. The balance between brand protection through robust legal enforcement and the risk of adverse publicity is a delicate one.

This piece first appeared on INFORRM, the International Forum for Responsible Media Blog, and is reproduced here with permission and thanks.

Essex Expertise Informs Facial Recognition Decision

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The expertise and leading-edge research of three Essex academics has informed a landmark judgment on police use of facial recognition.

On Tuesday 11 August, the Court of Appeal delivered its judgment in a case brought by civil liberties campaigner Ed Bridges and the campaigning organisation Liberty, challenging a previous decision in favour of South Wales Police.

Mr Bridges, who lives in Cardiff, argued that it was possible South Wales Police had captured an image of his face on two occasions, as a result of facial recognition technology being deployed.

He brought a claim for judicial review, arguing that South Wales Police’s approach to deployment was incompatible with the right to respect for private life under Article 8 of the European Convention on Human Rights, data protection legislation, and the Public Sector Equality Duty under section 149 of the Equality Act 2010.

Professor Pete Fussey, from the Department of Sociology and Professor Lorna Woods and Dr Daragh Murray, both from the School of Law, contributed to a ‘Friends of the Court’ submission by the Surveillance Camera Commissioner to the Bridges appeal.

In addition, an annex, detailing Professor Fussey and Dr Murray’s findings in relation to the Metropolitan Police Service, was attached to the Surveillance Camera Commissioner’s submission.

The Court of Appeal upheld the Bridges appeal on four of its five grounds.

Commenting on the judgment, Professor Pete Fussey said: “The Court’s findings in relation to the use of live facial recognition technology by South Wales Police are consistent with our findings regarding the Metropolitan Police Service, in particular that such deployments are not ‘in accordance with the law’, and that too much discretion is given to police in determining who should be placed on a watchlist. The Court of Appeal was entirely correct in concluding that facial recognition cannot be considered as equivalent to the use of CCTV. The use of advanced surveillance technologies like live facial recognition demands proper consideration and full parliamentary scrutiny.”

Dr Daragh Murray said: “The use of advanced surveillance technologies, like live facial recognition, represent a step change in police capability, with potentially significant consequences for the functioning of our democracy, in terms of how individuals develop and interact and how challenges to, or protests against, government policy evolve. The Court of Appeal’s findings today regarding South Wales Police are consistent with many of our own conclusions regarding the Metropolitan Police Service. This is an important decision, particularly the conclusion that deployments were not ‘in accordance with the law’. However, many issues remain to be addressed, including the broader societal impact of facial recognition. What is abundantly clear is that all police forces should pay greater attention to human rights law considerations before deciding to deploy new surveillance technologies.”

Professor Lorna Woods said: “The judgment in ruling that the police use of Automated Facial Recognition as it stands is unlawful is welcome, but it also highlights the problems arising from a system where new surveillance technologies can be deployed based on very general common law powers without adequate safeguards. New legislation on this topic is required, to address not only the proposed use of facial recognition technology, but police use of Artificial Intelligence generally.”

Professor Lorna Woods is Professor of Internet Law. She has extensive experience in the field of media policy and communications regulation, including social media and the Internet and developed, with Will Perrin, a social media duty of care, which has had significant influence on the direction on the UK Online Harms debate. Professor Woods is an established member of a broader network of advisors who support the Surveillance Camera Commissioner in his role.

Professor Pete Fussey and Dr Daragh Murray are co-authors of the independent report into the London Metropolitan Police Service’s trial of live facial recognition technology, published by the ERSC Human Rights, Big Data and Technology Project in July 2019. It remains the only fully independently-funded report into police use of live facial recognition technology in the UK.

South Wales Police said it would not be appealing the Court of Appeal judgment.

This story originally appeared on the University of Essex website and is reproduced on our blog with permission and thanks.

The Coronavirus Act 2020 and Guidance Governing Social Relationships and Communication: An Orwellian Dystopia or a Protective Bubble?

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On 10 September 2020, Dr Samantha Davey, Lecturer in Law at the University of Essex, presented her paper entitled ‘The Coronavirus Act 2020 and Guidance Governing Social Relationships and Communication: An Orwellian Dystopia or a Protective Bubble?’ at the digital conference ‘Are Emergency Measures in Response to COVID-19 a Threat to Democracy? Fact and Fiction,’ co-organised by the Institute of Advanced Legal Studies (IALS) and the Westminster Foundation for Democracy (WFD). 

Her paper examined the distinction between legally enforceable status of the Coronavirus Act 2020 and the persuasive status of various Government guidance on the coronavirus on social relationships and communications. Her paper placed a particular focus on social distancing, social gatherings and the use of face masks.

Just to provide an overview, the Coronavirus Act 2020 was created via emergency powers and was fast-tracked into existence in just four days. As a consequence, this statute lacked the usual prolonged scrutiny which legislation receives from the Houses of Parliament. The urgency to create new law was to address the high numbers of people becoming seriously ill or dying due to contracting the coronavirus. The Conservative Government was under pressure to impose practical measures via law to reduce the spread of the virus, which had swept across the world, and to provide special protection for vulnerable members of society including the elderly and disabled.

Dr. Davey’s paper sought to address the legitimacy of ministerial coronavirus guidance which has been created through powers under the Coronavirus Act.

It placed a focus  on social distancing, social gatherings and the use of face masks. In doing so, her paper explored the legitimacy of the coronavirus guidance and its application by public bodies, with reference to three of the Nolan principles on integrity, accountability and openness, which guide the conduct of public officials such as ministers.

The discussion considered how social and familial relationships are being increasingly regulated, including by criminal law, due to the guidance created by the Executive and applied by public bodies such as the police. A particular cause for concern is the extent to which members of the public and public bodies (such as police and councils) can fully appreciate the distinction between guidance, which is not usually legally enforceable, and legislation, which is legally enforceable.

Supporting the Colombian Transitional Justice Process

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GCRF@Essex interview questions: Prof. Sabine Michalowski and Prof. Clara Sandoval-Villalba

Partners/organisations: Dejusticia, a Colombian Think-Do-Tank

What is your research about?

Colombia and the FARC (Revolutionary Armed Forces of Colombia—People’s Army; Spanish: Fuerzas Armadas Revolucionarias de Colombia) signed a comprehensive peace agreement in 2016 which devises a transitional justice system to respond to the atrocities suffered by more than 9 million victims over various decades of armed conflict. The focus of our research is the transitional justice system (mechanisms and processes) which was designed by the peace agreement. In particular, our research focuses on one of the key transitional justice mechanisms: the Special Jurisdiction for Peace (SJP), which was created to ensure accountability for the atrocities, especially on how its work can be supported and strengthened to fulfil victims’ right to justice, reparation, and truth.

What activities did your GCRF@Essex funding support?

Our GCRF@Essex funding supported trips to Colombia to build and strengthen networks and contacts, hold events such as meetings with colleagues at the Special Jurisdiction for Peace about the challenges they are facing. We also organised meetings to receive feedback from relevant stakeholders on our research, and on future research that would be of relevance for Colombian transitional justice actors.

We also hired Colombian researchers to write policy papers and other documents, for example, a guide on how the Colombian Special Jurisdiction should deal with economic actors and how to define legal concepts that are of crucial importance for the work of the Special Jurisdiction for Peace. We launched these publications at events in Bogota.

We also obtained GCRF@Essex funded fellowships for several Colombian colleagues to attend the Human Rights Centre Research Methods summer school at Essex or to spend some research time at Essex to develop further research projects. For example, a key GCRF@Essex funded activity was to carry out joint research with Dejusticia, a Colombia-based research and advocacy organisation dedicated to the strengthening of the rule of law and the promotion of social justice and human rights in Colombia and the Global South. We successfully applied with Dejusticia colleagues to an AHRC GCRF urgency funding call and are currently working with Dejusticia and the Bonavero Institute for Human Rights at the University of Oxford on the AHRC funded project: Legitimacy, accountability, victims’ participation and reparation in transitional justice settings – lessons from and for Colombia. GCRF@Essex funds have supported our work on various legal and other issues that have emerged from this AHRC grant. For example, work on potential alternative sanctions for those responsible for mass atrocities who confess their crimes before the Special Jurisdiction for Peace.

You have been looking at the Special Jurisdiction for Peace (SJP) in Colombia, how is your project benefitting the country and which Sustainable Development Goals (SDGs) are being addressed?

Our project benefits the country by strengthening the work of the Colombian Special Jurisdiction for Peace (SJP), which plays a central role for ending impunity, achieving accountability for conflict related crimes and justice for victims. Through assisting the SJP we ultimately support the goals of consolidating peace and promoting reconciliation. The SJP is working under enormously challenging circumstances, as Colombia is a highly polarised country and the implementation of the peace agreement, and the legitimacy of the SJP, are highly contested. In that context, it is of crucial importance to support the SJP’s work. The legal framework within which this jurisdiction is working is new not only in Colombia but also worldwide. Colombia’s transitional justice approach is highly innovative and ambitious and that translates into big challenges that need to be overcome on a daily basis. The daily work of the SJP raises many conceptual challenges that are relevant for advancing SDGs 16 (Promoting Peace, Justice and Strong Institutions), 10 (Reducing Inequalities), and 5 (promoting gender equality). Our research contributes to Colombia’s achieving these goals by providing urgently needed recommendations to the SJP, particularly on key legal concepts such as the criteria for the selection of cases, victim participation and reparation. All of this strengthens the work of the SJP.

What tips would you give to other people applying for projects funded by the Global Challenge Research Fund?

The main advice would be to invest a lot of time and effort in building in-country academic and non-academic networks and devise projects with partners and stakeholders in the relevant countries to maximise the impact of the research.

Your GCRF activities have involved various colleagues from Colombia, especially Dejusticia and the SJP, how did you find your collaborators?

Initially, we built the connection with Dejusticia more than a decade ago, in the context of a project focused on linking corporate accountability and transitional justice, funded by a British Academy UK Latin America links grant. To that event, we invited a colleague from Dejusticia to a seminar at Essex who then contributed to an edited collection that followed from that project. We sustained and broadened our links with Dejusticia through regular visits to Colombia where we would hold meetings with them and gradually started to design and carry out joint projects.

Collaboration with the Special Jurisdiction for Peace partly came about through professional contacts who work at the SJP, but also through regular meetings jointly organised with Dejusticia where we would provide a space to exchange experiences and be kept updated with the main challenges the SJP is facing. This information feeds back into our work and makes it relevant to the work of the SJP which in turn helps to broaden our networks in Colombia.

What were the main challenges you encountered working on these collaborative projects?

Obtaining the necessary funding to keep the projects going and finding the time for our involvement.

How do your GCRF funded projects support your wider research plans?

Our research plans have greatly benefited from GCRF funding, as our research is impact focused and the GCRF funded projects permitted us to focus on our areas of interest while at the same time devising impact work which we consider of significant importance in the area of transitional justice. Importantly, GCRF funding has permitted us to tackle relevant issues that have come to our attention in the middle of other research, and to respond to them effectively by having access to the necessary human and other resources to carry out quality and timely research.

This interview first appeared on the website of the University of Essex and is reproduced on our research blog with permission and thanks.

The Essence of Slavery: Exploitation in Human Rights Law

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Dr Marija Jovanovic, Lecturer in Law, University of Essex, has published a new article on ‘The Essence of Slavery: Exploitation in Human Rights Law’

child labor, historic, people, children, black and white, sepia, mining, hard work
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The article is one of the few attempts to explore the meaning of exploitation in international law and the first to try articulating its legal parameters in the context of the human rights prohibition of ‘modern slavery’. This is a pressing task because of the proliferation of legislation, policy instruments, and academic work on ‘modern slavery’ and human trafficking, which rely heavily on the concept but do not define it.

By articulating the necessary and sufficient conditions for the notion of exploitation, the present study contributes to a better understanding, interpretation, and application of the prohibition of slavery, servitude, forced or compulsory labour, and human trafficking. 

The article was published in the Human Rights Law Review. For access, contact the author directly at: marija.jovanovic@essex.ac.uk

The UK and the EU’s Fifth Anti-Money Laundering Directive: Exceeding Expectations

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Dr. Mohammed Khair Alshaleel, Lecturer in Law, University of Essex, published a new article on ‘The UK and the EU’s Fifth Anti-Money Laundering Directive: Exceeding Expectations’.

The article considers the UK implementation of the Fifth Money Laundering Directive. It examines the key changes introduced by the new Directive and their impact on the UK anti-money laundering regime.

Given the evolving nature of threats relating to money laundering and the latest technological developments, this article argues that the UK has decided to go beyond the EU minimum requirements.

The paper outlines the concept of money laundering and the UK legal framework of anti-money laundering, before assessing the main changes and their effects on the UK anti-money laundering regime.

The article was published on European Company Law (Volume 17, Issue 4, pp. 123-132), and can be access here.

“You Were Only Supposed to Blow the Bloody Doors Off!”: Schrems II and External Transfers of Personal Data

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Prof. Lorna Woods, Professor of Internet Law, University of Essex

The Court of Justice today handed down the much anticipated ruling on the legality of standard contractual clauses (SCCs) as a mechanism to transfer personal data outside the European Union.  It forms part of Schrems’ campaign to challenge the ‘surveillance capitalism’ model on which many online businesses operate: there are other challenges to the behavioural advertising model ongoing.  While this case is clearly significant for SCCs and Facebook’s operations, there is a larger picture that involves the Court’s stance against mass (or undifferentiated) surveillance. This formed part of the background to Schrems I (Case C-362/14, discussed here), but has also been relevant in European jurisprudence on the retention of communications data. This then brings us to a third reason why this judgment may be significant. The UK, like the US, has a system for mass surveillance and once we come to the end of the year data controllers in the EU will need to think of the mechanisms to allow personal data to flow to the UK. The approach of the Court to mass surveillance in Schrems II is therefore an indicator of the approach to a similar question in relation to the UK in 2021.

Background

The General Data Protection Regulation provides that transfer of personal data may only take place on one of the bases set out in the GDPR. The destination state may, for example, have an ‘adequacy decision’ that means that the state in question ensures an adequate (roughly equivalent) level of protection to the ensured by the GDPR (Article 45 GDPR).  The original adequacy agreement in relation to the United States (safe harbour) was struck down in Schrems I because it failed to ensure that there was adequate protection on a number of grounds, some of which related to the safe harbour system itself, but some of which related to the law in the US, specifically that which allowed mass surveillance.  While the safe harbour was replaced by the Privacy Shield under Decision 2016/1250 on the Privacy Shield (Privacy Shield Decision) which improved some of the weaknesses as regards the operation of the mechanism itself, including the introduction of an ombusdman system, little if anything has changed in relation to surveillance.

Another mechanism for transfer of personal data outside the EU is that of SCCs, which are private agreements between the transferor (data controller) and transferee. Article 46(1) GDPR states that where there is no adequacy decision “a controller or processor may transfer personal data to a third country or an international organisation only if the controller or processor has provided appropriate safeguards, and on condition that enforceable data subject rights and effective legal remedies for data subjects are available”. Article 46(2) GDPR lists possible mechanisms including standard data protection clauses. The Commission has produced a model form of these agreements in Commission Decision 2010/87 (SCC Decision). 

Following the outcome of Schrems I, Schrems reformulated his complaint to the Irish Data Protection Commissioner (DPC) about data transfers arguing that the United States does not provide adequate protection as United States law requires Facebook Inc. to make the personal data transferred to it available to certain United States authorities, such as the National Security Agency (NSA) and the Federal Bureau of Investigation (FBI) and the data is used in a manner incompatible with the right to private life, and that therefore future transfers by Facebook should be suspended.  These transfers are currently carried out on the basis of SCCs as approved by the SCC Decision.  The DPC took the view that this complaint called into question the validity of that decision as well as the Privacy Shield Decision, which moved the issue back into the courts. The Irish High Court referred the question to the Court of Justice and it is the outcome in this ruling that we see today.

The Judgment

The Advocate General in his Opinion (discussed here) suggested to the Court that the SCC Decision was valid; the problem was the context in which it operated. He took the view that the Privacy Shield’s validity should be considered separately. Crucially, he held that data controllers need to determine the adequacy of protection in the destination state. This in practice is difficult; while a data controller might have some control over what the recipient does with the data (how processed, data security etc), it would have little control over the general legal environment. In any event, data controllers would be required to make specific country assessments on this, which could be challenged by dissatisfied data subjects.  The Court took a slightly different approach. It agreed with its Advocate General that the SCC Decision was valid, but it struck down the Privacy Shield.

The Court made a number of findings. The first relates to the scope of inquiry and to competence. Given that national security lies outside the GDPR (and outside EU competence), should questions about the processing of data for purposes of public security, defence and State security be outside the scope of the GDPR rules. Following its position in Schrems I, the Court (like its Advocate General) rejected this argument [para 83, 86, 88]: the transfers of personal data by an economic operators for commercial purposes, even if that personal data is then processed by the authorities of the destination state for national security reasons, remains within the GDPR framework. Exclusions from the regime should be interpreted narrowly (citing Jehovan todistajat (Case C-25/17), discussed here).

In determining the level of protection the GDPR requires, the Court re-iterated its stance from Schrems I and following the reasoning of its Advocate General in this case held that we are looking for a level of protection “essentially equivalent” to that in the EU- and bearing in mind that the GDPR is understood in the light of the EU Charter.  So not only must the terms of the SCCs themselves be taken into account but also the general legal environment in the destination State.  The Court summarised:

…. the assessment of the level of protection afforded in the context of such a transfer must, in particular, take into consideration both the contractual clauses agreed between the controller or processor established in the European Union and the recipient of the transfer established in the third country concerned and, as regards any access by the public authorities of that third country to the personal data transferred, the relevant aspects of the legal system of that third country, in particular those set out, in a non-exhaustive manner, in Article 45(2) of [the GDPR].

[Para 105]

The Court noted that the national supervisory authorities are responsible for monitoring compliance with EU rules, and may check compliance with the requirements of the GDPR (following on from the position under the DPD established in Schrems I), and the national regulatory authorities have significant investigative powers. Where the SCCs are not complied with – or cannot be complied with – the national regulatory authorities must suspend or prohibit transfers and the Commission’s competence to draft SCCs does not restrict the powers of national authorities to review compliance in any way.  In this the Court’s approach is broadly similar to that of the Advocate General.  As regards an adequacy decision, a valid adequacy decision is binding, until such time as it may be declared invalid; this does not stop individuals from being able to complain.

Applying the principles to the SCC Decision, the Court noted that the standards bind only the parties to the agreement. Consequently, although there are situations in which, depending on the law and practices in force in the third country concerned, the recipient of such a transfer is in a position to guarantee the necessary protection of the data solely on the basis of standard data protection clauses, there are others in which the content of those standard clauses might not constitute a sufficient means of ensuring, in practice, the effective protection of personal data transferred to the third country concerned [para 126].

Does this possibility mean that the SCC Decision is necessarily invalid? The Court held not. Unlike an adequacy agreement which necessarily relates to a particular place, the SCC decision does not. The SCCs therefore may require supplementing to deal with issues in individual cases. Moreover, the SCC Decision includes effective mechanisms that make it possible to ensure compliance with EU standards [para 137].  Specifically, the SCC Decision imposes an obligation on a data exporter and the recipient of the data to verify, prior to any transfer, whether that level of protection is respected  in the third  country  concerned. The recipient of the data must inform the data controller of any inability to comply with the SCCs, at which point the data controller is obliged to suspend transfers and/or terminate the contract. The SCC Decision is therefore valid; the implications of this in practice for this case were not drawn out. The Court in the end held that:

… unless there is a valid European Commission adequacy decision, the competent supervisory authority is required to suspend or prohibit a transfer of data to a third country pursuant to standard data protection clauses adopted by the Commission, if, in the view of that supervisory authority and in the light of all the circumstances of that transfer, those clauses are not or cannot be complied with in that third country and the protection of the data transferred that is required by EU law, in particular by Articles 45 and 46 of that regulation and by the Charter of Fundamental Rights, cannot be ensured by other means, where the controller or a processor has not itself suspended or put an end to the transfer [operative ground 3].

The existence of an adequacy decision is then key. Turning to the Privacy Shield Decision, the Court set the same analytical framework, emphasising the GDPR is understood in the light of the Charter and the rights to private life, to data protection and to an effective remedy. In assessing the decision, the Court noted that it awards primacy to the requirements of US national security, public interest and law enforcement, which the Court interpreted as condoning interference with the fundamental rights of persons whose data are transferred. In the view of the Court, access and use of personal data by US authorities are not limited in a way that is essentially equivalent to EU law – the surveillance programmes are not limited to what is strictly necessary and are disproportionate. Further, data subjects are not granted rights to take action before the courts against US authorities. The Ombudsperson mechanism, introduced by the Privacy Shield Decision as an improvement on the position under safe harbour, is insufficient. The Court therefore declared the Privacy Shield invalid.

Comment

The most obvious consequence of this ruling is that of how data transfers to the US can continue? The Privacy Shield is no more, and its demise has consequences for the operations of SCCs in practice. Given the weaknesses in the general legal system from the perspective of the Court of Justice, weaknesses over which the data controller/exporter can have little control, how can the requirements to individually assess adequacy be satisfied?  Are there, however, any other mechanism on which data transfers could be carried out?

In this context, we should note how the Court has interpreted the provisions of Chapter V to create a common baseline for standards, despite differences in wording between Arts 45 and 46 GDPR. Article 45 deals with adequacy decisions and it requires that there is “an adequate level of protection”; Article 45(2) then lists elements to be taken into account – notably respect for the rule of law and human rights and “relevant legislation, both general and sectoral, including concerning public security, defence, national security and criminal law and the access of public authorities to personal data”. It was this provision that was interpreted in Schrems I to require a level of protection that is ‘essentially equivalent’. Article 46(1) – which is relevant to the other mechanisms by which transfers may take place, including agreements between public authorities and binding corporate rules as well as SCCs – says something different. Article 46(1) requires “appropriate safeguards” and “enforceable data subject rights and effective legal remedies for data subject”. This is then not necessarily the same – at least in terms of simple wording – as Article 45(1). The Court however has read Articles 46 and 45 together so as to ensure that, as required by Article 44, data subjects’ rights are not undermined. This brings the essential equivalence test across to Article 46 [see para 96] and not just SCCs, but all the other mechanisms for data transfer listed in Art 46(2).  More specifically the factors to be taken into account when considering whether there are appropriate safeguards match the list set out in Article 45(2). 

The Court also emphasised that the requirements of the GDPR must be understood in the light of the EU Charter as interpreted by the Court itself [para 100].  In this context, the backdrop of the Court’s approach to fundamental rights – specifically the right to private life in Art 7 EU Charter – is significant. The Court in a number of cases involving the bulk retention of communications and location data by telecommunications operators so that those data could be accessed by law enforcement and intelligence agencies found those requirements – because they applied in an undifferentiated manner irrespective of suspicion across the population – to be disproportionate (Digital Rights Ireland and Others, Cases C-293/12 and C-594/12; Tele2/Watson (Cases C-203/15 and C-698/15), discussed here and here). The Court has also criticised the use of passenger name records (PNR) data (Opinion 1/15 (EU-Canada PNR Agreement, discussed here)) and particular the use of automated processing. The Court in its review of the facts referred to a number of surveillance programmes and that the referring court had found that these were not ‘essentially equivalent’ to the standards guaranteed by Article 7 and 8 EU Charter. This would seemingly cause a problem not just for the adequacy agreement, but for an operator seeking to rely on SCCs – or on any other mechanism listed in Art 46(2).

This brings to the forefront Article 49 GDPR, referred to by the Court as filling any ‘vacuum’ that results from its judgment, which allows derogations for external transfers in specific situations, notably that the data subject has consented or that the transfer is necessary for the performance of a contract. While these might at first glance give some comfort to data controllers a couple of words of caution should be noted. First, these reflect the grounds for lawful processing and should be interpreted accordingly. Notably ‘explicit consent’ is a high bar – and all consent must be freely given, specific informed and unambiguous – and it should be linked to a specific processing purpose (on consent generally, see EDPB Guidelines).  The ground that something is necessary for a contract does not cover all actions related to that contract – in general a rather narrow approach might be anticipated (see EDPB Guidance). 

The final point relates to the UK. The UK perhaps infamously – also has an extensive surveillance regime which has been the subject of references to the Court of Justice (as well as a number of cases before the European Court of Human Rights). Crucially, the regime does have some oversight and there is an independent tribunal which has a relaxed approach to standing. Nonetheless, bulk collection of data is permissible under the Investigatory Powers Act, and it is an open question whether the Court of Justice would accept that this is necessary or proportionate, despite the changes brought in since the Tele2/Watson ruling on the communications data rules. Further, the UK has entered into some data sharing agreements with the US which have given rise to disquiet in some parts of the EU institutions. Whilst a member of the EU it benefitted in terms of data flows from not having to prove the adequacy of its safeguards. From 2021 that will change.  In the light of the approach of the Court of Justice, which can be seen as reemphasising and embedding its stance on surveillance, obtaining an adequacy agreement may not be so easy for the UK and given the similarity in approach underpinning Articles 45 and 46 GDPR, other mechanisms for data flow may also run into problems if this is the case. For now, the jury is out.

This post originally appeared on the EU Law Analysis Blog and is reproduced here with permission and thanks.

School of Law and Human Rights Centre Host Workshop on Human Rights and Climate Change

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By Dr. Stephen Turner, Senior Lecturer in Law, University of Essex and Dr. Birsha Ohdedar, Lecturer in Law, University of Essex

On 30 April and 1 May 2020, the University of Essex (School of Law and Human Rights Centre) hosted a workshop on the subject of Human Rights and Climate Change.

Owing to the Covid 19 crisis it was necessary to hold the event as a webinar rather than an in person event at the university itself.  However, this had the welcome side-effect of providing the opportunity for more students, scholars and experts than had originally been anticipated to engage and participate in the discussions.

The intention behind the workshop was to provide a forum for debate relating to certain practical themes within the relationship between human rights and climate change where further clarification of state responsibilities is still required.

Over the last ten years, the United Nations (UN) has acknowledged the strong links between human rights and climate change. In particular the Human Rights Council has issued numerous reports elaborating on those links and it has encouraged further work on the subject.

At the domestic level, many countries have environmental rights incorporated into their constitutions. The Paris Agreement acknowledged the human rights impacts of climate change and in 2019 the UN Special Rapporteur on Human Rights and the Environment (Dr David Boyd), issued a report that asserted that people have the ‘right to a safe climate’.

However, despite the variety of developments that have taken place in the field within a relatively short space of time, there is still much work that needs to be done to further elucidate the content of  human rights responsibilities that states have relating to climate change and the ways that they should implement them.

Therefore, this workshop provided a focal point for debate related to specific areas where clarification is required. As the solutions to the issues in question inevitably require non-legal expertise to inform our understanding of the way that  law should be developed, the workshop brought together a uniquely interdisciplinary group of participants from law, policy, engineering, science, public health, urban planning and architecture. In bridging the gap between law and other disciplines it is hoped that the workshop contributed to the development of collaborative inter-disciplinary approaches in the field.

The organisers of the workshop would like to thank all those who participated by giving presentations or chairing sessions, also the School of Law and Human Rights Centre at the University of Essex; the Centre for Architecture and Sustainable Environment (CASE) at the University of Kent; The Eastern ARC Fund for its invaluable support and all those, from many different parts of the world, who attended the event.

The following provides a summary of the panel sessions that were held over the two days:

Panel 1: Institutional Understandings of the Relationship Between Human Rights and Climate Change

The first panel brought together the first two UN Special Rapporteurs on Human Rights and the Environment: Prof. John Knox (2012-2018) and Dr David R. Boyd (2018- present). The panel was chaired by Prof. Erin Daly (Widener University).

Prof. Knox traced and explained and provided insights relating to the history of the relationship between human rights and climate at the institutional level up until 2015. Dr Boyd then gave an account of the developments that have been taking place since the Paris Agreement along with an explanation of the work that he has undertaken in his role as the UN Special Rapporteur.

Panel 2: Human Rights, Climate Change and Transitions to a Low-Carbon Urban Environments

This session brought together experts from the diverse fileds of urban planning, architecture, engineering and law to discuss the challenges of developing low-carbon cities (particularly in the Global South) and the role that human rights should play in that process.  Speakers in this panel were: Dr. Silvio Caputo (University of Kent), Dr. Ruchi Choudhury (Cambridge) and Ms Naysa Ahuja (World Bank).

A video for this panel is not available.

Panel 3: Litigation on Human Rights and Climate Change

This panel focussed on the recent growth in climate change litigation around the world, taking stock of the role that human rights have played in it. Attention was given to litigation both at the international and domestic level, across different countries.

Speakers in this panel were: Ingrid Gubbay (Hausfeld LLP), Prof. James R. May (Widener University), Richard Lord QC and the panel was chaired by Prof. Karen Hulme (University of Essex).

Panel 4: Climate Change and Rights-Based Approaches to Public Health

The fourth panel focussed on understanding the role that rights-based approaches can have in addressing climate-related public health issues and the role that international health institutions should play in developing climate change policy. The panel covered the role of the WHO, the development of benchmarks and standards, as well as recent litigation related to air pollution and public health in a climate context.

There were three speakers: Dr. Stephen Turner (University of Essex), Judith Bueno De Mesquita (University of Essex) and Sam Varvastian (University of Cardiff). The panel was chaired by Dr. Avidan Kent (University of East Anglia).

Panel 5: Conflict and Contestations Around Human Rights and Climate Change

The final session of the workshop problematised the idea of a straight-forward relationship between climate change and human rights. Contributions examined the ways human rights may conflict with certain climate change mitigation or adaptation actions, covering a wide range of topics from renewable energy to migration and transport. Panellists considered the pathways towards equitable outcomes and examined these from regional perspectives that included sub-saharan Africa, South America and the Pacific.

The four speakers in this panel were: Dr. Annalisa Savaresi (University of Sterling), Dr. Thoko Kaime (University of Essex),  Patricia Iturregui (Catholic University of Peru) and Shanna McClain (NASA). The panel was chaired by Dr. Emily Jones (University of Essex).

Future Plans

A similar workshop is planned for the summer of 2021. More information will be made available in due course.

There are also plans to further collaborate with other institutions to develop inter-disciplinary workstreams that look at the practical application of human rights in tackling climate change.

If you are interested in knowing more or collaborating in the future, please get in touch with Dr. Stephen Turner or Dr. Birsha Ohdedar.