Tag Archives: Human Rights

Trump’s Travel Bans and Extreme Vetting: How They Violate Basic Human Rights

Caleb Wheeler, PhD Student in International Law, Middlesex University, London

One of Donald Trump’s first actions as president of the United States was to issue an Executive Order banning the citizens of seven Muslim majority countries, Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen from entering the United States for a period of 90 days. He justified the ban on the grounds that it would be detrimental to the United States if citizens of those states were permitted to enter the country while a review was being conducted of the existing screening and vetting procedures utilized to determine whether a person should be issued an entry visa. The implementation of the ban was halted by the issuance of temporary restraining orders by multiple federal district courts, and on 9 February, the Ninth Circuit Court of Appeals refused to stay enforcement of those temporary restraining orders. Unperturbed, President Trump issued a second executive order on 6 March in which he sought to ban citizens from six of the seven countries identified in the first ban (having removed Iraq from the original list) from entering the United States. That executive order was also challenged in Court, and federal district courts in Hawai’i and Maryland again prevented its implementation through the issuance of restraining orders. While much of the attention given to the travel bans focuses on the discriminatory effects they have on Muslims from certain countries, considerably less consideration has been given to the types of screening and vetting procedures the administration wishes to impose and the potential effects these new measures would have on the rights of all travelers to the United States. This blog post will demonstrate that policies requiring foreign travelers to reveal private electronic data are impermissible under United States’ domestic law and international law and should be avoided.

 

Both bans are titled ‘Executive Order Protecting the Nation from Foreign Terrorist Entry into the United States’ and have the stated purpose of improving “the screening and vetting protocols and procedures associated with the visa-issuance process”. The goal of these improvements is to identify those individuals seeking to fraudulently enter the United States, and those that support terrorism, violent extremism, acts of violence towards any group of people within the United States or who prevent a risk of causing harm following entry. A number of specific techniques have been suggested to promote the proper identification of individuals falling into these categories, including: in-person interviews, the creation of a database of identity documents and amending application forms so as to better identify fraudulent answers. More general methods have also been proposed involving the development of mechanisms to determine whether applicants are not misrepresenting their identities, whether they may commit, aid or support violent terrorist acts after entering the United States and a catch-all category permitting the government to use “any other appropriate means for ensuring the proper collection of all information necessary for a rigorous evaluation of all grounds of inadmissibility”.

 

It is these latter, more general, categories that cause consternation, particularly in light of recent media reports suggesting that the new screening and vetting requirements could require foreign visitors to reveal their mobile phone contacts, social media passwords and financial data before gaining entry to the country. According to a senior Department of Homeland Security official, the goal of collecting mobile phone contact information is to learn the identities of those individuals who potential visitors are communicating with. Additionally, the secretary of the Department of Homeland Security previously stated that the purpose of demanding that people reveal their passwords is to allow the United States government to “see what they do on the internet.”

 

These proposals raise significant national and international right to privacy concerns. Domestically, the Fourth Amendment of the United States Constitution prohibits the unreasonable search and seizure of a person’s property and requires that search warrants be supported by probable cause. In 2014, the United States Supreme Court held in Riley v California that the police need a warrant to search the information contained on a mobile phone confiscated during a lawful arrest. That decision was based on a finding that mobile phone owners have a privacy interest in the data contained therein that can only be intruded upon through a valid warrant. Recently introduced bills in the Senate and House of Representatives seek to extend the warrant requirement set out in Riley v. California to searches of “electronic equipment and online accounts” occurring at the United States’ borders. The bills specifically state that there is a reasonable expectation of privacy about a persons’ digital content of their electronic information and online accounts and that it is unreasonable under the Fourth Amendment to permit border agents to access electronic equipment without a warrant. The bills do explicitly limit that right to privacy to “United States Persons” as described in 50 U.S. Code § 1801, a designation which encompasses citizens of the United States, lawful aliens with permanent residence and corporations incorporated in the United States. Despite this limitation, the general proposition remains that the right to privacy limits access to information contained on mobile devices. Further, the Fourteenth Amendment of the Constitution entitles non-citizens to equal protection under the law and the Supreme Court has specifically granted non-citizens the right to challenge government actions infringing on rights delineated in the Constitution. Therefore, any measures requiring individuals to produce that information would be unlawful.

 

International law also invalidates any argument that the right to privacy only extends to American citizens and other lawful residents. Article 17 of the International Covenant on Civil and Political Rights (ICCPR, or ‘the Covenant’), which the United States ratified in 1992, explicitly forbids the arbitrary or unlawful interference with an individual’s privacy. When delineating what sort of information States Parties must put in their reports to the Human Rights Committee, interference was described as unlawful when it does not comply with the laws of the State seeking to interfere with an individual’s privacy, and it is arbitrary when it does comply with the State’s laws, but where those laws are not in accord with the provisions, aims and objectives of the Covenant. The Committee goes on to find that interference with the right to privacy must be reasonable under the particular circumstances and should only be authorised to the extent that it is essential to the interests of society that such information is disclosed. This is a high bar to clear, and requires a case-by-case inquiry into each situation. Therefore, even if it could be shown that the information sought is essential to the interests of the United States, that it is reasonable to infringe on the right to privacy and that the right to privacy as it is understood in the United States does not prevent access to the information, a blanket demand that all foreign visitors provide contact, password and financial information will fail as it will not comply with the required fact specific inquiry.

 

In a 2013 resolution, the General Assembly of the United Nations clarified the parameters of the right to privacy as it pertains to digital information. The General Assembly specifically indicated that it was “deeply concerned” about the collection of personal data and its impact on the exercise and enjoyment of civil rights and emphasised that the unlawful or arbitrary collection of personal information is a highly intrusive act that violates the right to privacy. It called upon all states to respect the right to privacy and to establish measures meant to implement their human rights obligations. Although non-binding, this resolution indicates a rejection by the world community of the sort of measures the Trump administration hopes to impose. The General Assembly resolution also requested that the United Nations Commissioner for Human Rights submit a report addressing the right to privacy in the digital age. Although the resulting report primarily focused on information accumulated through mass surveillance programmes, it did clarify that, in addition to the requirements set out by the Human Rights Committee, any limitation on the right to privacy has to comply with other human rights and must not render the right meaningless. Limitations failing to meet these criteria are considered unlawful and/or arbitrary.

 

Therefore, it is important to examine whether limitations to the right to privacy also impact other human rights. In this instance, the proposed new screening and vetting requirements could act as an infringement on the First Amendment right to free speech. The First Amendment prevents the government from abridging the freedom of speech and allows people to make political statements critical of the government without fear of punishment, unless such statements are meant to incite imminent lawless action or constitute a legitimate threat to the president’s life. Knowing that their private statements could be subject to scrutiny by the United States’ government, and possibly act as a barrier to their entry into the country, could prevent individuals from speaking freely out of fear of the possible repercussions. This is particularly true where, as here, a person can enter the United States is left to the discretion of an individual Customs and Border Protection officer, and entry can be denied even if the traveler possesses a valid visa.

 

The ICCPR also forbids the infringement of free speech, although it characterizes it as two rights: the freedom of expression and the freedom of opinion. The freedom of opinion, as set out in Article 19, is not subject to any exception or restriction, meaning the government is not permitted to infringe upon it in any way. By comparison, the freedom of expression, which includes any type of dissemination of ideas, can be limited for national security reasons. Therefore, the proposed screening and vetting cannot limit a person’s ability to hold an opinion but they can limit whether the person can express that opinion. However, the standard for implementing such a restriction is high and they will only be found lawful if they are necessary to protect national security and are not overbroad so as to exceed their protective function.

 

Screening and vetting procedures that require foreign visitors to disclose private digital information raise First Amendment and Fourth Amendment concerns and are of dubious constitutionality. Further, even if these significant Constitutional issues can be overcome, such measures are also impermissible under international law. That is unlikely to act as much of a impediment on President Trump’s attempts to implement these procedures as he has demonstrated hostility towards international human rights law during his presidency. The best hope to avoid this proposed widespread violation of the Constitution is for the Federal Courts to continue to play their important role in upholding the rights of individuals.

*Picture courtesy of usa.gov

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The European Court’s Grand Chamber decision in Biao v. Denmark: A case of indirect discrimination against nationals of non-Danish ethnic origins

Introduction

Within the context of the on-going EU migration crisis, Denmark has been subjected to huge criticisms with regard to a recent bill that is considered to violate asylum seekers’ fundamental rights. More recently, on 24 May 2016 the Grand Chamber of the European Court of Human Rights (ECtHR) issued its decision in the case Biao v. Denmark, regarding matters of family reunification and held that Denmark had unjustifiably violated the prohibition of non-discrimination towards some of its nationals.[1] The Court found, by twelve votes to five, that there has been a violation of Article 14 of the European Convention of Human Rights (ECHR) read in conjunction with Article 8 of the Convention.[2] The Government had indeed failed to show that there were compelling or very weighty reasons unrelated to ethnic origin to justify the indirect discrimination to which the applicants had been subjected arising from the relevant national legislation.[3] Notably, this decision came after the Chamber, in 2014, had found that the Danish authorities had struck ‘a fair balance between the public interest in ensuring effective immigration control and the applicants’ need to be granted family reunion in Denmark and concluded that there had been no violation of Article 8 taken alone.[4]

In order to reach its conclusions, and consistently with its practice, the Grand Chamber considered ‘instructive’ to interpret the Danish legislation on family reunification in the light of the relevant EU law, including the Court of Justice of the European Union’s case law in the matter.[5] This post aims at examining the Grand Chamber’s decision in light of the recent developments in the relationship between the Courts of Strasbourg and Luxembourg. It will be concluded that the decision in Biao v. Denmark is perfectly consistent with the ECtHR’s practice of not only making reference to EU law and the case law of the Court of Luxembourg, but also verifying the compatibility of national legislations or practice with the ECHR, trying to look at the former through the lens of the relevant EU law or case law. Some comments on the political value of this decision when it comes to Denmark and migration issues are also included among the conclusions.

 

The facts

 

The case of Biao v. Denmark concerns the applicants’ complaint about the Danish authorities’ refusal to grant them family reunification in Denmark. Mr Biao is a Danish national of Togolese origin who is married to Asia Adamo Biao, a Ghanaian national. They live in Sweden and have a son who got Danish citizenship due to his father’s nationality. Their application for residence permit in Denmark and, therefore, their family reunification got refused in 2003 and 2004. The Danish Supreme Court upheld such a refusal in January 2010.

Before the ECtHR the applicants claimed to have been subjected to indirect discrimination in the application of the attachment requirement provided by the Danish Aliens Act as amended in December 2003, which introduced the so-called 28-year rule.[6] Pursuant to such a rule, in order for a Danish national, who has not acquired his/her nationality from the moment he/she was born and that is married to a third country national, to enjoy the privileges associated to citizenship in matters regarding family reunification, he/she needs to prove that he/she has got stronger ties with Denmark than with any other country by residing in Denmark for at least 28 consecutive years. The 28-year rule thus resulted in a differential treatment between Danish-born citizens and other nationals, as Danish nationals who had acquired nationality from the moment they were born were exempted from such a requirement.[7] This treatment was also an indirect discrimination on the basis of race or ethnic origin because persons acquiring Danish nationality later in life ‘would overwhelmingly be of different ethnic origins, that is other than Danish’.[8]

The conclusions of the Court

Having recalled that ‘a difference in treatment may take the form of disproportionately prejudicial effects of a general policy or measure which, though couched in neutral terms, discriminates against a group’,[9] and that indirect discrimination does not necessarily require a discriminatory intent,[10] the Grand Chamber considered it to be a reasonable assumption that people, who have acquired a Danish nationality later in life, would be more likely to be of non-Danish ethnic origins and that, to the contrary, Danish-born people were more likely to belong to the Danish ethnic group.[11]

According to the Court, the burden of proof was then on the Government to show that the difference in the impact of the legislation pursued a legitimate aim and was the result of objective factors unrelated to ethnic origin. Indeed,

‘no difference in treatment based exclusively or to a decisive extent on a person’s ethnic origin is capable of being justified in a contemporary democratic society and a difference in treatment based exclusively on the ground of nationality is allowed only on the basis of compelling or very weighty reasons.’[12]

Although the Court noted that Article 8 ECHR when taken alone ‘cannot be considered to impose on a State a general obligation to respect a married couple’s choice of country for their matrimonial residence or to authorise family reunification on its territory’,[13] it also held that it could apply to the present case what had been concluded in Konstantin Markin v. Russia with regard to difference in treatment on the ground of sex. That is, that ‘general biased assumptions or prevailing social prejudice in a particular country do not provide sufficient justification’.[14] The Court found that similar reasoning should apply to discrimination against naturalised nationals and therefore excluded that the problems relating to integration could be sufficient justification for the 28-year rule.

The Court also affirmed that thanks to Article 5 (2) of the European Convention on Nationality, which has been ratified by 20 states, including Denmark, there was a trend towards a European standard aiming to eliminate the discriminatory application of rules in matters of nationality between nationals from birth and other nationals.[15]

Hence, it concluded that, ‘having regard to the very narrow margin of appreciation in the present case’,[16] the Government had ‘failed to show that there were compelling or very weighty reasons unrelated to ethnic origin to justify the indirect discriminatory effect of the 28-year rule’.[17]This rule indeed has ‘a disproportionately prejudicial effect on persons who acquired Danish nationality later in life and who were of ethnic origins other than Danish.’[18]

EU Law and the ECtHR

It is well known that the two legal regimes pertaining to the EU and the ECHR are quite different when it comes to the principle of non-discrimination.[19] Moreover, although the Treaty of Lisbon, under article 6 (2), provides for the possibility for the EU to accede to the ECHR, in December 2014 the Court of Justice of the European Union (CJEU) issued a negative opinion in this respect. Furthermore, in its recent practice the Court of Luxembourg has increasingly avoided making explicit reference to the ECtHR’s case law.[20] As for the European Convention, according to the CJEU,

‘[i]t must be borne in mind that, in accordance with Article 6(3) TEU, fundamental rights, as guaranteed by the ECHR, constitute general principles of the EU’s law. However, as the EU has not acceded to the ECHR, the latter does not constitute a legal instrument which has been formally incorporated into the legal order of the EU.’[21]

The Strasbourg Court, on its side, has been constantly referring to both EU law and the case law of the CJEU. For instance, in its recent case Arlewin v. Sweden,[22] the Court has pronounced itself on the compatibility of the Swedish courts’ practice in application of Brussels I Regulation (44/2001) with the ECHR. In this respect, it has been observed that:

‘[t]he Court of Strasbourg relies upon the findings of the Luxembourg Court and reaffirms the existence of a direct dialogue between the two jurisdictions, with the first affirming the findings of the second in a noteworthy manifestation of its endeavour to choose –whenever possible- an interpretation of the ECHR that facilitates the proper application of EU law by national authorities.’

Consistently with this view, in Biao v. Denmark the Grand Chamber also took into consideration the relevant EU law and CJEU’s case law. Indeed, although, ‘[t]he rules for family reunification under EU law did not apply to the applicants’ case in August 2004’, the ECtHR noted that:

‘it is instructive to view the contested Danish legislation in the light of relevant EU law. Given that the first applicant has moved to Sweden, by virtue of Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the member States, and in the light of the CJEU’s judgment of 25 July 2008 in Metock v. Minister for Justice, Equality and Law Reform (…), the applicants and their child now have a prospect of success in applying from Sweden for a residence permit in Denmark.’[23]

Conclusions

Different legal issues arise from migration, as it is a multifaceted and complex phenomenon. Apart from the current EU migration crisis, which mostly relates to non-EU nationals, some national policies regulating issues concerning migrants can have an impact on the rights of EU nationals. If it is true that the non-discrimination prohibition contained in Article 14 ECHR has not acquired a perfectly overlapping application with the EU non-discrimination legislation, it is also worth noticing that the Strasbourg Court has examined the relevant Danish legislation in the light of the relevant EU law and affirmed that the applicants’ new applications could now possibly have ‘a prospect of success in applying from Sweden for a residence permit in Denmark’.

This decision will probably lead Danish authorities to amend their Aliens Act and abolish the 28-year rule. It is however striking that at a time when ‘no difference in treatment based exclusively or to a decisive extent on a person’s ethnic origin is capable of being justified in a contemporary democratic society’, a national legislation of both an EU member and CoE state has been considered to have indirect discriminatory effects on the sole ground of race/ethnicity.

[1]Case of Biao v. DenmarkApp no. 38590/10 (ECHR, 24 May 2016).

[2]Ibid. at 154.

[3]Ibid. at 138 [emphasis added].

[4]Ibid. at 64.

[5]Ibid. at 135.

[6]Ibid. at 35.

[7]Case of Biao v. DenmarkApp no. 38590/10 (ECHR, 24 May 2016) at 25.

[8]Ibid. at 102.

[9]Ibid. at 103.

[10]Ibid.

[11]Ibid. at 112.

[12]Ibid. at 114 [emphasis added].

[13]Ibid. at 117.

[14]Ibid. at 126.

[15]Ibid. at 132.

[16]Ibid. at 138.

[17]Ibid.

[18]Ibid.

[19] See, e.g., See also European Union Agency for Fundamental Rights, Handbook on European non-discrimination law (Publication Office of the European Union 2011).

[20]OddnýMjöllArnardóttir and Antoine Buyse, Shifting Centres of Gravity in Human Rights Protection: Rethinking Relations Between the ECHR, EU, and National Legal Orders(Routledge 2016) 19-24.

[21] Opinion 2/13, Delivered on 18 December 2014 (full court), at 179.

[22]Case of Arlewin v. Sweden App no 22302/10 (ECHR, 1 March 2016).

[23]Ibid. at 135 [emphasis added]. See also European Union Agency for Fundamental Rights, Handbook on European non-discrimination law (Publication Office of the European Union 2011) 58-59.European-Court-of-Human-Rights.jpg

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The African Court on Human and Peoples’ rights and its case law: towards a Supreme Court for Africa?

  1. Introduction

The African Court on Human and Peoples’ rights’ (hereinafter ‘the Court’) was established in 1998 with the aim to complement the protective mandate of the African Commission on Human and Peoples’ Rights (hereinafter ‘the Commission’).[1] The Court’s jurisdiction ratione materiae covers the interpretation and application of the African Charter on Human and Peoples’ Rights (hereinafter, ‘the Charter’), as well as that of its Protocols and of any other relevant Human Rights instrument ratified by the States concerned. [2] According to article 34 (6) of the 1998 Protocol, the Court can receive cases brought by individuals or NGOs having acquired the observing status before the Commission, but only if the interested states make a declaration accepting its competence. To date, seven African Union States allow individuals and NGOs to petition the Court directly, namely: Burkina Faso, Ghana, Malawi, Mali, Rwanda, Tanzania and Republic of Côte d’Ivoire.

Probably because of this relatively small number of states, so far, the protection of human rights has been largely performed by the Commission through its system of communications. The Court, for its part, has mainly decided on jurisdictional matters, concluding to have no competence because the complaints were brought by NGOs or citizens of states which had not made a declaration based on article 34. [3] Nevertheless, over the last years the Court has started developing its own jurisprudence and acting as if it had powers similar to those which, in a great number of national legal systems, pertain to Supreme courts. For instance, the Court has assessed the ‘constitutionality’ of national legislations and state Constitutions, by using the Charter as a parameter. Moreover, the Court has taken advantage of the generic wording of the 1998 Protocol to develop its powers with regard to reparations. In particular, article 27 of the Protocol provides that ‘if the Court finds that there has been violation of a human or peoples’ rights, it shall make appropriate orders to remedy the violation, including the payment of fair compensation or reparation’. This broad formulation has already led the Court to order states to amend their legislation, or resume the investigation of a criminal case. In the near future, it might also bring the Court to pronounce itself on the legal findings of a national Supreme Court. The present post focuses on the Court’s most recent case law and concludes that the Court could play a leading role in promoting the international rule of law, by granting a uniform application of the international law of human rights in Africa.

  1. The Court’s case law

In the consolidated case of Tanganyika Law Society and The Legal and Human Rights Centre v the United Republic of Tanzania and Reverend Christopher Mtikila v the United Republic of Tanzania, the Court assessed the compatibility with the Charter of certain national constitutional provisions. As the Court has subsequently affirmed in Peter Joseph Chacha v The United Republic of Tanzania, indeed, ‘[a]s long as the rights allegedly violated are protected by the Charter or any other human rights instrument ratified by the State concerned, the Court will have jurisdiction over the matter.’[4] Thus, the Court considers itself competent to assess whether and to what extent national constitutions comply with the African Charter and any other human rights instruments ratified by the state. This is particularly surprising in the light of the trend currently experienced by another regional court of human rights, i.e., the Strasbourg Court, in its dialogue with some ‘nationalistic’ constitutional courts.

In terms of reparations, in Peter Joseph Chacha v The United Republic of Tanzania, the Court has performed some of the functions generally associated with the power of judicial review, which is a prerogative of national constitutional courts.[5] In particular, it has held that ‘[t]he Respondent [State] is directed to take constitutional, legislative and all other necessary measures within a reasonable time to remedy the violations found by the Court and to inform the Court of the measures taken.’[6] More recently, it has gone even further and specifically ordered Burkina Faso how to amend its national legislation. Indeed, in the case of Lohé Issa Konaté v Burkina Faso it required ‘to amend its legislation on defamation by repealing custodial sentences for acts of defamation, and by adapting its legislation to ensure that other sanctions for defamation meet the test of necessity and proportionality.’[7]

Lastly, in December 2014 the Court has condemned Burkina Faso for violating article 7 of the Charter due to the lack of an effective investigation in relation to the death of Norbert Zongo, a journalist killed in 1998 while investigating the former president’s brother. Following this decision, on 5 June 2015, the Court has ordered Burkina Faso ‘to resume the investigations with a view to finding, charging and trying the perpetrators of the murders of Norbert Zongo and his three companions.’ In similar cases, the Strasbourg Court has never gone so far, considering it sufficient declaring the violation,[8] awarding the victims with non-pecuniary damage,[9] or, in case of systemic violations, affirming that is up to the interested State, together with the Committee of Ministers, ‘to identify appropriate general measures to prevent future similar violations.[10] The Strasbourg Court has never, in fact, ordered states to resume an investigation. Notably, other cases before the African Court might constitute an opportunity for the Court to further develop its powers.

One of the most important cases currently pending before the Court is Ingabire Victoire Umuhoza v The Republic of Rwanda. Due to the political implications which may arise from any Court’s decision, this is also a very sensitive case. The applicant, Ingabire Victoire Umuhoza, is a Rwandan leader of political opposition who has been in prison since 2010, when she run for the Rwandan General Elections. She was accused of having committed a number of serious crimes, including: spreading the ideology of genocide; aiding and abetting terrorism; sectarianism and divisionism; and undermining the internal security of a state, spreading rumours which may incite the population against political authorities and mount the citizens against one another; establishment of an armed branch of a rebel movement; attempted recourse to terrorism, armed force and any form of violence to destabilise established authority and violate constitutional principles. She was then condemned to a 15-year imprisonment by the Supreme Court of Rwanda.

Before the African Court, Ingabire Victoire Umuhoza alleges violations of three human rights instruments, namely: the Universal Declaration of Human Rights (UDHR), the African Charter on Human and Peoples’ Rights, and the International Covenant on Civil and Political Rights (ICCPR). Apart from the substantial aspects, this case might allow the Court to shape and stretch again the limits of its mandate. The applicant asks the Court to order Rwanda to: repeal with retroactive effect the two laws grounding her conviction,[11] review the case, annul all the decisions that had been taken since the preliminary investigation up till the pronouncement of the last judgment, release her on parole, and pay costs and reparations. The request relating to the review of the case and the annulment of all the decisions issued by any national courts, including the Supreme Court, might have a significant impact on the shaping of the limits of the Court’s mandate. Indeed, it will be on the Court to decide whether or not it would be appropriate to order the annulment of a definitive judgment by the Rwandan Supreme Court. If the Court upholds this pray, it will put itself in a much more advanced position than the other regional courts. As showed above, the Court has already deemed to be competent to ask states to repeal their national legislation. If, in the Ingabire Victoire case, the Court also orders the review of the case and the annulment of all decisions based on the law that the Applicant preys to be repealed, it will exercise new powers similar to those that are often associated with a national Supreme Court. Interestingly, Rwanda has not claimed that the Court lacks the competence in this regard. Rather, it has based its counterclaims on different grounds, somehow taking for granted that the Court would not act ultra vires.

3 Conclusion

Notwithstanding the very small number of decisions issued so far, over the last years, the Court has progressively become a key actor for the protection of fundamental rights in Africa. Taking advantage of the vague wording of article 27 of the Protocol, and with the general acceptance of all States, the Court has developed its competences and enlarged its mandate to the point of assuming functions similar to those often associated with national Supreme Courts. Therefore, thanks to its broad ratione materiae jurisdiction, which extends to all human rights’ instruments ratified by the respondent state, the Court can potentially end up by guaranteeing a uniform application of the international law of human rights in Africa. It remains to be seen whether and to what extent the Court will keep on enlarging its mandate, in spite of the political sensitiveness of certain cases. The Court’s most recent position in the Zongo case gives good reasons to believe that the Court will go on with its activism.

[1] See article 2 of the 1998 Protocol.

[2] Article 3 of the Protocol. See C. Zanghí, La Promozione Internazionale dei Diritti dell’Uomo (2006) 451.

[3] See Michelot Yogogombaye v The Republic of Senegal App. no 001/2008 (ACtHPR, 15 December 2009); Soufiane Ababou v People’s Democratic Republic of Alger App no 002/2011 (ACtHPR, 16 June 2011); Daniel Amare & Mulugeta Amare v Mozambique Airlines & Mozambique App no 005/201 (ACtHPR, 16 June 2011); Association Juristes d’Afrique pour la Bonne Gouvernance v La Côte d’Ivoire App no 006/2011 (ACtHPR, 16 June 2011); Ekollo Moundi Alexandre v Republic of Cameroon and the Federal Republic of Nigeria App no 008/2011 (ACtHPR, 23 September 2011); National Convention of Teachers Trade Union v The Republic of Gabon App no 012/2011 (ACtHPR, 15 December 2011); Delta International Investments v Republic of South Africa App no 002/2012 (ACtHPR, 30 March 2012); Emmanuel Joseph Uko and Others v Republic of South Africa App no 004/2012 (ACtHPR, 30 March 2012); Amir Adam Timan v Republic of the Sudan App no 005/2012 (ACtHPR, 30 March 2012); Baghdadi Ali Mahmoudi v Republic of Tunisia App no 007/2012 (ACtHPR, 26 June 2012).

[4] Peter Joseph Chacha v The United Republic of Tanzania, Application No. 003/2012 (ACtHPR, 28 March 2014 ) at 114. [5]          R. Rogowsky and T. Gawron, ‪Constitutional Courts in Comparison: The U.S. Supreme Court and the German Federal Constitutional Court (2002) 5-6.

[6] Tanganyika Law Society and The Legal and Human Rights Centre v the United Republic of Tanzania and Application 011/2011 Reverend Christopher Mtikila v the United Republic of Tanzania (Consolidated Applications) Applications No. 009/2011 and 011/2011 (ACtHPR, 14 June 2013) at 126. Similarly, Peter Joseph Chacha v The United Republic of Tanzania Application No 003/2012 (ACtHPR, 28 March 2014) at 82.

[7] Lohé Issa Konaté v Burkina Faso App. No. 004/2013 (ACtHPR, 5 December 2014).

[8]          See ,e.g., Husayn (Abu Zubaydah) v. Poland Application No. 7511/13 (ECtHR, 24 July 2014) at 568.

[9]          See, e.g., Identoba and others v. Georgia Application No. 73235/12(ECtHR, 12 May 2015) at 110.

[10]         See Vasil Hristov v. Bulgaria Application No. 81260/12   (ECtHR, 16 June 2015) at 49.

[11]         Sections 116 and 463 of Organic Law N° 01/2012 of 2 May 2012 relating to the Penal Code, as well as Law N° 84/2013 of 28 October 2013 to the punishment of the crimes of the ideology of the Genocide.African Court

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Killer Robots: The future of Lethal Autonomous Weapons Systems

The exponential advancement in technology since the second part of the 20th Century has had a significant impact on warfare. One of the most notable developments has been the increasing autonomy of weapon functions. To date, a variety of weapons with some autonomous functions have been developed, but these largely operate within fairly restricted temporal and spatial contexts. Moreover, they are often used for defensive purposes.[1]  As the technology continues to advance, however, further autonomy could lead to the continued development of a “class of systems capable of selecting targets and initiating the use of potentially lethal force without the deliberate and specific consideration of humans”, known as Lethal Autonomous Weapons Systems (LAWS).[2]

While the use of autonomous robots in war has notable strategic, operational and tactical military advantages, it can have profound consequences on international peace and security, the nature of warfare and the protection of human lives. Between 13th and 17th April 2015, a group of States, civil society members, and experts convened at the second informal meeting on LAWS that was held under the auspices of the Convention on Certain Conventional Weapons (CCW). The meeting addressed some of the most serious legal, technical, security and ethical concerns relating to the use of LAWS, including the implications for international humanitarian law (IHL) and international human rights law (IHRL).

While, currently, States express a clear preference for maintaining humans-in-the-loop, increased research in the field has sparked concerns about the development and future use of LAWS. In the meantime, there is a strong call from parts of civil society to pre-emptively ban Killer Robots due to concerns about their incompatibility with international law and their potential impact on global peace and security. Opponents of a ban, however, argue that it is too early to rule out the possibility that future technological advancements might not only overcome these problems, but could also limit the extent of civilian casualties in conflict. They hold that the existing international legal framework provides adequate safeguards to ensure that weapons systems that would breach international law do not make it onto the battlefield.

In relation to IHL, one of the main questions is whether the use of LAWS could ever comply with the principles of distinction, proportionality, and necessity. The application of IHL on the battlefield is so complex, and the decision-making process so nuanced and situation-dependent, that it would be very difficult for the machines to comply with the law, particularly based upon an algorithm that is necessarily programmed ex-ante.

The difficulty stems from the fact that IHL rules are “unlike the rules of chess in that they require a great deal of interpretative judgement in order to be applied appropriately.” Therefore, for instance, the principle of proportionality “requires a distinctively human judgement (“common sense”, “reasonable military commander standard)”; the realities of a rapidly-changing situation render weighing up military advantages against collateral harm complex. LAWS “lack discrimination, empathy, and the capacity to make the proportional judgments necessary”. The same applies to the assessment on necessity.

Similarly, in relation to the principle of distinction, while “[w]e might like to believe that the principle […] is like a sorting rule […] however complex, that can definitively sort each individual into one category or the other”, in practice, determining whether a person is actively participating in hostilities, thereby rendering them a legitimate target, is far from straightforward. Delegating this assessment to a machine is difficult, if not impossible.

Nevertheless, supporters of continued research into LAWS suggest that future technological advancements might lead to the development of weapons systems capable of compliance with IHL and, additionally, of offering superior civilian protection by relying upon: the advanced technical and sensory capabilities of machines; speed in decision making and action; and clarity of judgment that is not swayed by emotions such as fear or anger. For instance, roboticist Prof. Ronald Arkin argues that “being human is the weakest point in the kill chain, i.e., our biology works against us in complying with IHL”. Subject to future technological advancements, Prof. Eric Talbon Jensen has illustrated the following possible scenario:

Instead of putting a soldier on the ground, subject to emotions and limited by human perceptions, we can put an autonomous weapon which […] tied to multiple layers of sensors [is] able to determine which civilian in the crowd has a metal object that might be a weapon, able to sense an increased pulse and breathing rate amongst the many civilians in the crowd, able to have a 360 degree view of the situation, able to process all that data in milliseconds, detect who the shooter is, and take the appropriate action based on pre-programmed algorithms that would invariably include contacting some human if the potential response to the attack was not sufficiently clear.

Despite the potential benefits that future technologies may bring, however, they are still hypothetical. As the International Committee of the Red Cross (ICRC) has observed, “[b]ased on current and foreseeable robotics technology, it is clear that compliance with the core rules of IHL poses a formidable technological challenge […] there are serious doubts about the ability […] to comply with IHL in all but the narrowest of scenarios and the simplest of environments”. Therefore, while the utopian prospect of LAWS that operate in the best interests of civilians is a possibility, it is by no means a certainty. What is certain is the development of weapons systems with very concerning autonomous functions.

Even in the event of significant technological advancements, delegating life and death decisions to an autonomous machine can create a serious criminal and civil accountability gap.[3]  This would run counter to the preventative and retributive functions of criminal justice; breach the right to an effective remedy; and, in the light of the very serious crimes that can be perpetrated by the machines, it would, arguably, be immoral. It has been aptly observed that  “[t]he least we owe our enemies is allowing that their lives are of sufficient worth that someone should accept responsibility for their deaths”. This poignant reflection holds equally true in relation to civilians and friendly casualties.

For these reasons, there has been a strong drive towards regulating the further development and eventual use of these machines.  Some are advocating a ban on killer robots while others, like the ICRC, are “urging States to consider the fundamental legal and ethical issues raised by autonomy in the ‘critical functions’ of weapon systems before these weapons are further developed or deployed”.

Still, opponents of a ban deem it unnecessary since IHL is “sufficiently robust to safeguard humanitarian values during the use of autonomous weapon systems”.  They argue, for instance that an adequate safeguard against the use of weapons that violate IHL is contained in Article 36 of Additional Protocol I (API) of the 1949 Geneva Conventions which obliges States to determine in the “study, development, acquisition or adoption of a new weapon, means or method of warfare… whether its employment would in some or all circumstances, be prohibited by this Protocol or by any other rule of international law applicable”.

However, proponents of the ban have argued that this is insufficient. Some have suggested that opinion regarding whether Article 36 assessments form part of customary international law may still be divided. Other experts, however, disagree. They argue that customary international law does indeed create an obligation upon all states to carry out the assessment  in relation to new means of warfare acquired, and that a question mainly arises in relation to new methods of warfare. Therefore, they maintain that weapons reviews provide sufficient protection. In any case, it has been argued that an assessment is a corollary of the obligation to ensure compliance with IHL; if the machines cannot comply, they will inevitably breach other provisions of the law when they are deployed .

Nevertheless, from a practical perspective, it is questionable whether Article 36 reviews, which depend on the transparency, openness, and uniform application of IHL to LAWS in such a nebulous context, are sufficient. Moreover, as computer scientist and robotics expert Prof. Noel Sharkey notes, there are serious questions about future consequences on IHL if LAWS continue to be developed while efforts at making them compliant with the laws of war fail.

Furthermore, Article 36 does not sufficiently consider the IHRL implications of LAWS.  In particular, the use of LAWS might lead to a violation of IHRL norms including: the right to life; the prohibition of torture and other cruel, inhuman or degrading treatment or punishment; the right to security of person; and, in view of the fact that a weapons review will not necessarily close the accountability gap, the right to an adequate legal remedy. Finally, proponents of the ban argue that delegating life and death decisions to a machine, effectively “death by algorithm”, violates the basic tenets of human dignity, the principle of humanity and the dictates of public consciousness, therefore, contrary to the Martens Clause.[4]

Discussions on the way forward have centered round the possibility of necessitating ‘meaningful human control’ over the operation of weapons systems.   However, as William Boothby has observed, a machine requiring meaningful human control is not fully autonomous; while useful from a policy perspective, he advised refraining from elevating the concept to ‘some sort of legal criterion’ and suggested focusing on Article 36 weapons reviews. Conversely, supporters of the ban have argued that it is precisely because ‘meaningful human control’ implies that machines are not fully autonomous, and in light of the significant State support for maintaining  such control, that a ban is the most obvious course of action.

At this stage, a consolidated way forward needs to be established before States and private contractors invest too much public and private money, time and energy, in the further development of LAWS, thereby rendering future regulation much more complex. Time is of the essence; the “opportunity will disappear […] as soon as many arms manufacturers and countries perceive short-term advantages that could accrue to them from a robot arms race”. The consequences on civilians, combatants, and international peace and security generally, could be devastating.


[1] For an overview see this 2012 Human Rights Watch report and P.W. Singer’s Wired for War

[2] Although a precise definition of LAWS has not yet been agreed upon, see here and here for their general characteristics

[3] see Human Rights Watch and Harvard Law School’s International Human Rights Clinic’s report Mind the Gap: The Lack of Accountability for Killer Robots

[4] See here for a discussion on some of the challenges  T-1

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Corporate Social Responsibility & Human Rights. A critical review of the Guiding Principles on Business and Human Rights for implementing the UN “Protect, Respect and Remedy” Framework

Introduction

Over the recent decades, corporations have impressively increased their potential. Their exponential growth and enlarged powers, due to a privatization process, has impacted economic, political and social affairs around the globe. While the primary responsibility for the fulfilment, protection and respect of international human rights standards is still in the hands of sovereign states, there is a growing acceptance that corporations hold some level of responsibility as well. Accordingly, the emerged concept of Corporate Social Responsibility (CSR) [1]streamlines their responsibilities and duties on environment and social welfare. Nevertheless, their impact on human rights can be analysed in how corporations manage their human resources[2], especially within developed countries where often their production is relocated. In fact, “human resource systems affect corporate performance through the management and control of employee behaviours”.[3] As a consequence, international development goals such as poverty alleviation and health improvements[4]  can be related both to a positive management of employees (directly) and workers of suppliers (indirectly).  In addition to meet CSR objectives, managers exercise their discretion on intra-organizational stakeholder relationships, and in producing effective social outcomes involving extra-organizational stakeholders. Then, appropriate international regulations in defence of human rights appear even more meaningful in respect to such decisional power.

Guiding Principles on Business and Human Rights for implementing the UN “Protect, Respect and Remedy” Framework

In 2005, the UN Secretary-General Kofi Annan appointed Professor John Ruggie as UN Special Representative on business and human rights. Secretary General Ban Ki Moon has confirmed the assignment. One of Professor Ruggie’s main tasks is to “identify and clarify standards of corporate responsibility and accountability for transnational corporations and other business enterprises with regard to human rights”.[5] Accordingly, in June 2008 Professor Ruggie presented the UN “Protect, Respect and Remedy” Framework to the Human Rights Council. His intention was to enhance the following three points: first the state obligation to protect against human rights abuses by third parties, including business, through appropriate policies, regulation, and adjudication; second the corporate responsibility to respect human rights, i.e. to act with due diligence to avoid infringing on the rights of others and to address adverse impacts that occur; and third greater access by victims to effective remedy both judicial and non-judicial. On 16 June 2011, the Human Rights Council adopted resolution 17/4 endorsing the Guiding Principles on Business and Human Rights for implementing the UN ‘Protect, Respect and Remedy’ (hereinafter the Guiding Principles). The principles represent the first and unique global standards for preventing and addressing the risk of adverse impacts on human rights linked to business activity. Their overall aim is to combat human rights violations in those countries where corporations usually relocate their production and in states where there is a combination of weak governance and little respect for human rights. However, they were not aimed at creating new regulations or filling any legal gaps, being an interpretation of existing international human rights instruments, codes of conduct and best practices.

The Guiding Principles make explicit reference to a “duty to protect” which means that states have legal obligation to protect their own population from human right abuses. In international law this concept has been broadly used in other contexts, such as the crime of genocide[6].  It is therefore meaningful to observe how this precautionary effect is now directed also to enterprises activities.

The core of the doctrinal discussion is whether companies are subject to any direct international legal obligation to respect human rights. Some authors convincingly provide a positive answer[7] while others sustain the opposite. The Guiding Principles prescribe that states (where the company is headquartered) should force companies to report on their social impacts and on those of their subsidiaries abroad.[8]However, while strongly encouraged, corporations cannot be compelled as the Principles are not legally binding. Authoritative doctrine argues that, as a consequence, a way to prevent and redress violations of human rights committed by companies outside their registration country is to adopt measures with extraterritorial implications or to assert direct extraterritorial jurisdiction in specific instances[9]. To some extent, it can be critically argued that the Guiding Principles open to series of alternative approaches instead of addressing the problem by themselves.

Corporate and human rights:  implications from the Bhopal case

Involvements of multinational corporations in human rights abuses obtains an international echo as they often reveal dramatic workers’ conditions (e.g. Nike in Asia, Shell in Nigeria, Union Carbide in India and Yahoo! in China). These cases are a testimony of how large multinational corporations (MNCs) are responsible for gross violations of human rights occurring within countries characterised by weak legal systems.[10] The issue is linked to a legal scenario which consequently underlines a lack of international law remedies, while criminal law is subsequently recalled to assess corporate’s responsibility. The Bhopal case (1984) has been the worst industrial accident in history. In December 1984 at the Union Carbide plant (an American corporation) in the city of Bhopal (India) 27 tonnes of methyl isocyanate (a deadly gas) was released, spreading throughout the city. As a result, it have been estimated 2,000 deaths and more than 200,000 people with injuries. The environmental consequences persisted over the years after the Union Carbide negligence, continuing causing respiratory problems, disabilities and unhealthy living conditions for the population. The case predates the Guideline Principles, but it is of great significant as it highlights both the problems in assessing the causes/responsibilities of such disaster and the procedural problems that occurred during the prosecution. The cause of the disaster remains under debate, thus the responsibility has changed over the years. On one side the Indian government and local activists argue that a lack of adequate management and deferred maintenance caused a backflow of water into a methyl isocyanate tank resulting in the disaster. On the other side, Union Carbide Corporation states that this was an act of sabotage, and not in any way related to its bad management. In establishing the guilt in such as corporate manslaughter case further difficulties were emerged. They included: the required mens rea of senior officers of the company involved; the access to internal corporate documents; extradition; debates on the doctrine of the forum non convenience[11]; class action lawsuits; the required political will from the country’s government to go after big companies despite the fear of investment backlash.[12] However, it should to be questioned if the dangerousness of Union Carbide’s plant would have been limited by following the Guiding Principle. Would they have been a strong enough determent[13] or the prospective of a lawsuit against a weak government like India would still have played an important role for respecting human rights?

Conclusions: respect of human rights as an investment?

Generally, companies recognise the importance of the rule of law in the context of their investments and operations around the world. The importance of a transparent, well-functioning and just legal system has been taken in consideration for attracting investments. The Guiding Principles are certainly a necessary legal resource in the International law scenario. States and companies are asked to operationalise their responsibility for human rights. Nevertheless, the lack of direct enforceability plus the wide decisional autonomy left to the states raise doubts on their effectiveness. Nowadays, several provisions of the Constitution of India are horizontally applicable against companies, for preventing abuses by business enterprises. However, the degree of fault required for a company’s responsibility could just as easily be a negligence or strict liability standard. Compare to that, the due diligence required by the Guiding Principle is still a vague concept. Certainly, it would not be enough to fix corporates’ misbehaviours. On contrary, ‘due diligence’ from the perspective of human rights could became a parameter for attracting investors and consumers towards more responsible realities of corporate managements.

[1] CSR is thought of as ‘‘corporate choices and behaviours that go beyond firm-specific economic benefit or focus’’ Berry, G. R. (2010). Improving organisational decision-making: Reframing social, moral and political stakeholder concerns. The Journal of Corporate Citizenship, 38, 33–48.

[2] Fisher, S. L., M. E. Graham, S. Vachon and A. Vereecke (2010). “Don’t miss the boat: Research on HRM and supply chains.” Human Resource Mangement 49(5): 813-828.

[3] Jackson, S. E., Schuler, R. S., & Rivero, J. C. (1989). Organizational characteristics as predictors of personnel practices. Personnel Psychology, 42, 727–786.

[4] Human Rights Watch (2002), The Enron Corporation: Corporate Complicity in Human Rights Violation , 23 January, available at: http://www.hrw.org/reports/1999/enron/

[5] The UN Commission on Human Rights adopted resolution E/CN.4/RES/2005/69 requesting “Secretary-General to appoint a special representative on the issue of human rights and transnational corporations and other business enterprises”

[6] See, for example, Articles 1, 5 and 6 of the Convention on the Prevention and Punishment of the Crime of Genocide, GA Res 260 A (III), 9 December 1948; Articles 2 and 9 of the International Covenant on Civil and Political Rights, GA Res 2200A (XXI), 16 December 1966, 999 UNTS 171; and Articles 1, 2 and 5 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950, 213 UNTS 222; ETS 5.

[7] Clapham, A. (2006). Human rights obligations of non-state actors. Oxford: Oxford University Press

[8] Article 1 (obligation to respect human rights) of the European Convention on Human Rights (ECHR):

“The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of this Convention”.

[9] Bernaz, N. (2013), “Enhancing Corporate Accountability for Human Rights Violations: Is Extraterritoriality the Magic Potion?” Journal of Business Ethics, 117(3), pp. 493-511.

[10] Grear, A. (2007), “Challenging corporate ‘humanity’: legal disembodiment, embodiment and human rights”, Human Rights Law Review, Vol. 7 No. 3, pp. 511-543

[11] Janis M.W. (1987). The Doctrine of Forum Non Conveniens and the Bhopal Case. Netherlands International Law Review, 34, pp 192-204.

[12] International Commission of Jurists (2011), Access to Justice: Human Rights Abuses Involving Corporations: India: A Project of the International Commission of Jurists, p. 48, available at: http://www.icj.org/dwn/database/AccesstoJustice-India-ElecDist-July2011.pdf

[13] Fasterling, B., Demuijnck G. (2013), “Human Rights in the Void? Due Diligence in the UN Guiding Principles on Business and Human Rights”

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