The article, titled ‘Using Human Rights Law to Inform States’ Decisions to Deploy AI’ argues that states are investing heavily in artificial intelligence (AI) technology and are actively incorporating AI tools across the full spectrum of their decision-making processes. However, AI tools are currently deployed without a full understanding of their impact on individuals or society, and in the absence of effective domestic or international regulatory frameworks.
Although this haste to deploy is understandable given AI’s significant potential, it is unsatisfactory. The inappropriate deployment of AI technologies risks litigation, public backlash, and harm to human rights. In turn, this is likely to delay or frustrate beneficial AI deployments.
This essay suggests that human rights law offers a solution. It provides an organizing framework that states should draw on to guide their decisions to deploy AI (or not), and can facilitate the clear and transparent justification of those decisions.
Trigger warning: this report contains a description of sexual violence.
In the midst of the coronavirus crisis, the Inter-American Court of Human Rights (IACtHR) has issued a landmark judgment in the case of Azul Rojas Marín and Another v. Peru, enhancing the rights of LGBTI persons, and setting new standards with the potential to reduce the levels of violence suffered by this group both within and beyond the Americas. Through this case the IACtHR has developed the concept of “violence motivated by prejudice”; it concluded that discrimination based on sexual orientation can lead to arbitrary detentions of LGBTI people; it has developed its understanding of discriminatory torture; and it has set specific due diligence standards to ensure the effective investigation of these cases. The Court has ordered Peru to provide reparations to Azul including the implementation of important guarantees of non-repetition.
Azul Rojas Marín is a transgender woman, who at the time of the events self-identified as a gay man. She was detained late at night on 25 February 2008 by members of the Peruvian police when she was walking home. Some of the officers knew who Azul was. They insulted her and made derogatory remarks about her sexual orientation. She was forcibly taken to a police station and kept there for almost six hours, although her detention was not officially registered. During her detention, Azul was stripped naked, beaten repeatedly, and anally raped with a police baton. The insults and derogatory remarks about her sexual orientation continued throughout. She was released early the next day.
Azul reported the crime to the authorities, but they did not believe her and did not investigate properly. Different members of the justice system revictimized Azul. During the reconstruction of the crime scene, Azul was forced to face her perpetrators while they made fun of her. The prosecutor was present during her medical examination, without Azul’s consent, and kept making comments to influence the findings of the doctor. Azul’s complaint was eventually dismissed. To date, no one has been held to account or punished for what happened.
The case was decided on the merits through the IACHR’s report 24/18. Given that Peru did not comply with the recommendations made by the IACHR, the case was referred to the Court in August 2018. The Commission noted this would be the first case before the IACtHR dealing with violence against LGBTI persons. The Court held a hearing in August 2019, and decided the case in March 2020, making significant findings of facts and law.
The arbitrary detention of LGBTI persons can be inferred when there are signs of discrimination and no other apparent reason for the detention
Peru argued that the detention of Azul took place in order to carry out an identity check as she did not have her ID with her (124). Peru disputed the length of the detention. However, the Court found that the detention was not carried out in accordance with domestic law, that one of the officers who detained Azul knew who she was, and that derogatory comments about her sexual orientation were made. The Court, following the views of the UN Working Group on arbitrary detention and those of the expert Maria Mercedes Gómez, considered that the lack of a legal basis for Azul’s detention and the existence of discriminatory elements together inferred that she was detained based on her sexual orientation (128), which automatically rendered the arrest arbitrary. The development of this standard could be crucial to combat arbitrary arrests of LGBTI people around the world for reasons based on a person’s sexual orientation or gender identity, including in the context of COVID-19.
The purposive element of the definition of torture incorporates discrimination based on sexual orientation and gender identity
Peru alleged that it was not proven that sexual violence took place, because the domestic courts were unable to establish it due to the lack of direct evidence of the crime (138 and pleadings before the IACHR). It also argued that torture did not take place because two elements of the crime were missing: the intent and the purpose.
The IACtHR concluded Azul was anally raped while in detention. In contrast to the domestic courts’ approach, the IACtHR reached this conclusion by assessing various pieces of evidence, including Azul’s statements, medical examinations and the forensic analysis of the clothes she wore at the time of the events (157). The IACtHR considered that what happened amounted to torture as the intentionality, severity and purposive elements were met. Further, the Court expanded the list of specific purposes by which sexual violence can constitute torture, to include the motive of discrimination based on the sexual orientation or gender identity of the victim. Following the expert opinions of Juan Méndez and Maria Mercedes Gómez, the Court found that sexual violence that involves anal rape, especially when carried out with a tool of authority such as a police baton, all while derogatory remarks were made, shows that the specific motive of the crime was to discriminate against Azul (163).
The Court went further to label it as a hate crime given that it was the result of prejudice (165), and stated that the crime not only breached Azul’s rights but also the freedom and dignity of the whole LGBTI community (165). This finding constitutes a major development under international law as this is the first case decided by an international tribunal to conclude that torture can take place with the specific purpose of discriminating against a person because of sexual orientation or gender identity.
States have a duty to investigate violence motivated by discrimination against members of the LGBTI community
Peru argued that as soon as it learned about Azul’s allegations, it opened an investigation that was carried out with due diligence (172), although this was disputed by Azul’s legal representatives. Given the prevailing levels of impunity for such crimes in the Americas the IACtHR made a careful assessment of the facts in this regard.
The IACtHR reiterated its case law regarding due diligence in cases of sexual violence, but extended their application to violence against LGBTI persons, adding new dimensions to its existing standards. Notably, the Court found that when investigating violence States have a duty to take all necessary steps to clarify if it was motivated by prejudice and discrimination (196). The Court said that this implies that the State should collect all the required evidence, provide full reasons for its decisions and decide in an impartial and objective manner. The authorities should not ignore any facts that could establish that the violence was motivated by discrimination (196). In the case of Azul, the authorities never considered discrimination and did not pursue this line of investigation. This finding by the Court demonstrates its ongoing dialogue with the ECtHR, as it took note of Identoba (67) (which set a similar precedent but in relation to ill-treatment). However, in contrast to the ECtHR, the IACtHR does not make any reference to the difficulty of the task or the fact that it is, in the views of the ECtHR, “an obligation of best endeavours, and is not absolute”.
The Court also noted that investigations should avoid the use of stereotypes. In this case, local prosecutors undermined the declaration of Azul by stating, “but if you are gay, how am I going to believe you?” (200), and by inquiring about her past sex-life. The Court noted that such stereotypical lines of inquiry should not be used in cases of sexual violence, including when that violence is committed against members of the LGBTI community (202). This is another important contribution of the Court to the protection of LGBTI people under international law, which does not exist under ECHR jurisprudence.
The IACtHR tackles structural discrimination through reparations
The IACtHR ordered very holistic forms of reparation for both individual as well as societal harm. From an individual perspective, the Court recognised Azul and her mother as victims in the case and awarded them compensation for pecuniary and non-pecuniary damage. The Court also ordered that there should be a public ceremony, where senior government figures recognise the State’s international responsibility (232-234). It also required the State to provide rehabilitation to Azul for physical and psychological harm, including access to medicines and transport expenses necessary to undergo treatment (236).
But what is most remarkable about this judgment, and which Peru challenged during the litigation, are the measures requested by Azul and awarded by the Court to address structural discrimination as a cause of hate crimes. The Court ordered Peru to adopt a protocol for the effective criminal investigation of violence against members of the LGBTI community. The protocol shall be binding under domestic law, instruct State representatives to abstain from applying stereotypes (242), and include due diligence standards developed by the Court in the judgement (243). The Court instructed the State to provide training to members of the justice system and the police on LGBTI rights and due diligence investigations. Additionally, Peru must implement a data collection system to officially register all cases of violence against members of the LGBTI community, including disaggregated information (252).
Finally, the Court ordered Peru to eliminate from its local/regional security plans the reference to ‘eliminate homosexuals and transvestites’ since this exacerbates discrimination against members of the LGBTI community (255).
So far Peru has not commented publicly on the judgment, and it is expected that it will act in good faith and implement the judgment in full.
The case of Azul Rojas Marin enhances the protection of LGBTI persons from violence and discrimination.
This decision is also a wake-up call for States, at a time when some governments in the region, including Peru and Panama, are responding to COVID-19 by adopting a gender-based alternating lock-down schedule restricting essential business such as grocery shopping. These new measures take into account only the sex that appears in identity documents, and such a simplistic method has generated a negative reaction from the LGBTI community. Hopefully, the Inter-American decision in Azul’s case will remind authorities that even emergency responses should not lead to discrimination, especially when the particular vulnerabilities of the LGBTI community require a more sensitive approach.
The authors of this blog have been representing Azul in the litigation before the Inter-American System on behalf of REDRESS.
Dr Patricia Palacios Zuloaga, Lecturer in International Human Rights Law at the University of Essex, published a new paper titled ‘Inter-American Human Rights: The Riddle of Compliance with the Inter-American Court of Human Rights’.
The article argues that the use of compliance studies to evaluate the effectiveness of international human rights courts can produce misleading results because a focus on compliance considers the behaviour of only one stakeholder in the dynamic that is human rights adjudication: the state.
A survey of petitioners in cases before the Inter-American Court of Human Rights (‘the Inter-American Court’), together with a review of literature surrounding strategic litigation before the Inter-American System, demonstrate how civil society organisations value the declarative justice provided by the Court, how they mobilise around human rights litigation and how adept they are at deploying rulings in such a way as to produce impact beyond compliance and even in the absence of any compliance at all.
The article is published in Volume 42, Issue 2 (pp. 392-433) of the Human Rights Quarterly, a journal which is widely recognised as the leader in the field of human rights.
The 5th of May 2020 will be remembered as a strange day for EU law and German constitutionalism. The German Constitutional Court upheld the constitutional complaints by several groups of individuals against the European Central Bank’s Public Sector Purchase Programme (PSPP). As explained in yesterday’s post by Thomas Horsley, the PSPP set up a framework that enabled the ECB to purchase government bonds or other marketable debt securities issued by the governments of Member States in the eurozone with a view to return to an appropriate level of inflation (below 2 per cent). The Constitutional Court found that the PSPP carried considerable impact on the fiscal framework in the Member States and the banking sector in general. As such, the Court concluded that both the German Government and Parliament violated the complainants’ rights under the Constitution by failing to monitor the European Central Bank’s (ECB) mandate, in particular as regards the adoption and implementation of the PSPP.
Most importantly perhaps, the Constitutional Court held that it was not bound by the preliminary ruling of the CJEU (Article 267 TFEU) on the same issue (in Weiss discussed below). Its reasoning was centred on the Luxembourg Court’s alleged failure to properly apply the proportionality principle under the Treaty (Article 5 (1) and (4) TEU). This failure was due to a lack of assessment of the possible economic policy implications of the purchase program of public debt and lack of consideration of the availability of less restrictive means. Consequently, the Constitutional Court held that the CJEU acted ultra vires.
Two immediate reactions to the judgment
The judgment reaches beyond the practical implications of policing the boundaries between monetary and economic policies. Its impact is twofold.
First, on an institutional level, questioning the monetary mandate of the European Central Bank (ECB) as a sui generis institution operating within the EU institutional system may destabilise the high degree of independence enjoyed by the ECB in the financial crisis related cases heard before the CJEU and national courts. As feared by Maduro, the ripple effect of the judgment may therefore reach beyond the credibility of the PSPP. It may further endanger the coming into fruition of similar ECB ventures such as its recent response to Covid-19 through its new Pandemic Emergency Purchase Programme (PEPP). New cases may emerge in Germany against this and future financial assistance decisions questioning the economic side effects of the ECB’s own programmes.
Second, constitutionally the judgment poses questions of an existential nature in the midst of the Covid-19 crisis concerning the balancing between the authority and primacy of EU law, and national competences and sovereignty beyond budget matters. It also questions the current stability of the preliminary reference procedure under Article 267 TFEU as the main communication channel fostering dialogue between the national and EU legal orders. This post will consider the judgment’s constitutional implications by criticising what the judgment means for the limits of the transfer of sovereign powers to the EU, and for judicial dialogue between national courts and the CJEU, but also between the three branches of government in Germany.
Constitutional confrontations prior to the PSPP judgment
While the judgment has attracted a great deal of attention in the blogosphere, little is mentioned of the fact that the PSPP judgment is not the first instance where the German Constitutional Court has challenged the validity of the decisions of the ECB. A few years back the same Court established that its powers of review may extend outside the context of Treaty revision or secondary law implementation qua an act of an EU institution, such as the ECB, that has its own legal personality and decision-making bodies. In the seminal Gauweiler judgment of 2015 (the first ever preliminary reference from the German Constitutional Court to the CJEU) the German Constitutional Court contested the validity of the Decision of the Governing Council of the ECB on features of the ECB’s government bond buying programme (Outright Monetary Transactions – OMT) arguing that it violates EU rules on monetary policy and the Protocol on the Statute of the European System of Central Banks and of the ECB. Its reasoning was purely constructed on legal grounds – i.e. whether the OMT programme marked an important shift in the delimitation of competence to the Member States’ detriment.
In its OMT judgment, the BVerfG placed the ECB’s Decision under the scrutiny of German constitutional law due to the fact that it operated without any express judicial or parliamentary approval. It was in this regard that its constitutional identity review power kicked in as a means to reinstate the default constitutional position that fiscal policy is only to be exercised according to the principles of representation and of distribution of powers. Equally, the Bundestag was responsible for the overall budgetary responsibility. As such, the Constitutional Court’s reasoning was predicated on the condition that the balance of competence would only be restored once the CJEU provided assurances that the OMT Programme merely consists of a supporting mechanism for the EU economic policies and not one concerning the stability of the EMU. Indeed, the CJEU provided such assurances and, despite its reservations, the Constitutional Court nodded to its satisfaction.
Shortly after Gauweiler, the German Constitutional Court made another request for a preliminary ruling in Weiss, this time on the validity of the ECB’s Decision on PSPP and its subsequent amendments as a means to maintain price stability. The applicants in Weiss asked similar questions to Gauweiler in relation to ECB’s monetary mandate and its potential ultra vires acts by venturing into economic policy reserved by the Member States. The CJEU rejected this claim and ruled in 2018 that the PSPP is a proportionate measure for mitigating the risks to the outlook on price developments and that it falls within the ambit of the ECB’s competences. It is worth mentioning that compared to OMT, the CJEU’s judgment in Weiss received little wider publicity, perhaps because one could almost predict another positive nod from the German Constitutional Court.
The constitutional dimension of the PSPP judgment
This brings us to the current judgment of the Constitutional Court of 5 May 2020 vis-a-vis the refusal of the German Constitutional Court to implement the above judgment of the CJEU. This refusal was based on the grounds that the CJEU manifestly failed to give consideration to the principle of proportionality which applies under the Treaty to the division of competences between the EU and national legal orders (Article 5 (1) and (4) TEU). The judgment is reminiscent of the scenario that the Constitutional Court has been rehearsing for years (since its Maastricht decision in 1993) in its collective mind: that when push comes to shove it will be competent to decide whether an act of EU secondary law is ultra vires. It is a scenario that we have been teaching our students with the caveat that this had never materialised in Germany. As mentioned elsewhere, our syllabi might have to be revised for next year, given that the judgment signals the first time that the BVerfG directly diverges from the ruling of the CJEU in a case that it has initiated through the preliminary reference procedure (Article 267 TFEU).
But the PSPP judgment goes beyond a declaration of ultra vires of EU secondary legislation. The Constitutional Court extends its ultra vires review to the interpretation of proportionality undertaken by the CJEU as exceeding its mandate as conferred by the Treaty (Article 19 (1) TEU). It confronts the CJEU as acting ultra vires because its standard of review is not conducive to restricting the scope of competences conferred by the Treaty upon the ECB. The Constitutional Court declares that it is the final arbiter and thus not bound by the CJEU’s judgment in Weiss because it does not agree with its reasoning which it describes as ‘simply not comprehensible’ (see for instance paras 116 and 153). By holding that the Weiss judgment exceeded the mandate conferred upon the CJEU, the Constitutional Court disregards the principle that rulings of the CJEU are binding on all national courts. The Constitutional Court also seems to take no notice of Article 344 TFEU which provides that ‘Member States undertake not to submit a dispute concerning the interpretation or application of the Treaties to any method of settlement other than those provided therein’. It both hinders any future communication between the two courts on the matter and oversteps the boundaries of its powers by acting ultra vires itself.
Yet, despite its bravado, the PSPP decision does not provide any assurances that the BVerfG has finally adopted a unified and coherent approach when it comes to exercising its power to impose constitutional locks upon EU competence. A careful review of the Constitutional Court’s previous record of decisions reveals that its constitutional review has been purely theoretical and consisted of a means of getting assurances from both the EU and domestic institutions that the balance of competence between the EU and the Member States has not been transgressed. We cannot, however, overlook the possibility that in the present case this may be a gamble too far for the credibility of the German Constitutional Court. If the Court, for instance, accepts the Bundesbank’s stronger justification for why the ECB program, and decisions implementing it, are proportional the PSPP judgment may be remembered as some of the most scathing satire to scrape across the Karlsruhe courtroom since the days of Lisbon Urteil. There, the Constitutional Court took it upon itself to scrutinise the exercise of EU competences through an intra vires identity review (even when the EU is acting within its bounds of competence) in order to preserve the inviolable core content of Germany’s constitutional identity.
Throughout Germany’s history of EU membership, the Constitutional Court’s ultra vires competence review has been constructed on a ‘so-long-as’ presumption of equivalence of constitutional standards which were never deemed to be deficient at the EU level by the judges of the Constitutional Court. The current decision, however, is different because the same judges placed an additional caveat on the judicial interpretation of EU law by the CJEU. They boldly declare that:
As long as the CJEU applies recognised methodological principles and the decision it renders is not objectively arbitrary from an objective perspective, the Federal Constitutional Court must respect the decision of the CJEU even when it adopts a view against which weighty arguments could be made (para. 112)
Hence there are two important dimensions of the case where the Constitutional Court interferes with the current EU rulebook. On the one hand, the Constitutional Court appears unequivocal about imposing external controls upon the ECB’s economic assessment, seeking more transparency and proportionality as to its measures. It throws the ball aggressively into the Bundesbank’s court hoping that it will bounce in the right direction and strike at the ECB’s headquarters. There is a silver lining to this dimension of the judgment given the growth of the ECB’s competence in recent years. However, the Court’s economic analysis is hardly so convincing as to make a bulletproof argument.
On the other hand, the PSPP judgment establishes an ultra vires test that is insensitive to the CJEU’s jurisdiction conferred under the Treaty. There is a surprise element here given that the CJEU has been consistent in its last two preliminary rulings about proportionality. Of course, one can argue that the CJEU’s proportionality control over the acts of the ECB has always been based on the wrong footing. But for the above reasons, unlike the Constitutional Court’s previous theoretical Kompetenz-Kompetenz challenges, the current decision seems to allow little scope for putting the reverse gear in place (unless the Court is prepared to accept any proportionality justification). But even if the judgment is about principle and the Court runs with just about any Bundesbank proportionality justification thrown at it, some damage is too severe to handle on its own without causing further harm to Germany’s EU membership.
By disregarding the CJEU’s exclusive powers of treaty interpretation the Constitutional Court endangers Germany’s duty of sincere cooperation (under Article 4(3) TEU) to the EU against the wishes of the other two branches of government. Even if the judgment is about principle, the price is too high to pay as an ultra vires act is not to be applied in Germany. This means effectively that the German Government is put on the spot and asked to choose between its EU membership obligations and its allegiance to the Constitution as interpreted by the Constitutional Court. At the same time, the judgment raises a question about the extent to which the duty of sincere cooperation under EU law applies in the internal tensions of a Member State.
While, therefore, protecting individual rights under the Constitution, the PSPP judgment questions the principle of separation of powers under the German Constitution and the unity between the three branches of government and people to respond to external pressure from the ECB. The judgment is, however, more than an attempt of the German Constitutional Court to revert to a long-standing statement of intention to review EU law and show its real teeth to the EU Institutions. As such we must be careful in attributing it a veneer of constitutional patriotism. By holding that both the German Government and Parliament violated the Constitution, judges turn in effect against all parties involved in the materialisation of the PSPP, albeit them sitting in Frankfurt, Luxembourg or in Berlin. One can hardly interpret as healthy national dialogue the 3-month ultimatum given by the Constitutional Court to the German Government and Parliament to secure a new evaluation of the PSSP from the Governing Council of the ECB that complies with the proportionality test set by the Court as regards its economic and fiscal policy implications. The ECB needs, in particular, to provide authorisation to the Bundesbank to send to the Constitutional Court all relevant documentation both published and unpublished providing the necessary proof that all possible consequences of the purchase program were considered. Failure to do so means that the Deutsche Bundesbank will have to withdraw from the implementation and enforcement of the PSPP.
While EU Institutions are far from being infallible and Member States can and should confront their counterparts in the EU, the current decision sets a dangerous course because it allows no room for internal dialogue to be fostered between the Constitutional Court, the Government, and Parliament so that a uniform national approach can be adopted against ECB policies, whether this means accepting them or challenging them before the CJEU as a Member State. The Constitutional Court’s judgment shall not therefore be only interpreted as an act of defiance against the EU but also as a decision that jeopardises the Constitutional Court’s own reputation (which, as explained yesterday, has been envied by last instance courts across Europe) and, depending on the EU’s reaction, Germany’s good record of membership in the EU.
The ECB’s and CJEU’s responses to the judgment, as well as the Commission’s issuing of a Press Release warning of the possibility of bringing infringement proceedings against Germany (if the Bundesbank fails to implement its obligations under the Eurosystem) are proof that the judgment is more than a storm in a teacup and that the current mutiny in Karlsruhe may have to be resolved by using formal EU dispute resolution mechanisms. Any fears that the PSPP judgment is emblematic of the wider rule of law crisis (in the form of defiance towards EU membership obligations) that has been brewing for the last half decade at the heart of the EU are indeed legitimate. Responding to such a crisis during an extraordinary period of disruption, ill health and economic hardship is perhaps the biggest challenge that the EU has been confronted with since its very inception. This is tenfold when faced with a founding Member State questioning, through its judiciary, the integrity of EU Institutions. Let us hope that both the EU institutions and the German Constitutional Court will measure the cost of this episode and common sense will prevail.
The author wishes to thank Mike Gordon and his colleagues Anastasia Karatzia and Nikos Vogiatzis for their useful suggestions. This post was originally published on the UKCLA Blog and is reproduced here with permission and thanks.
There has been much discussion about the importance of frames on our understanding of the COVID-19 pandemic and its impact on the existing legal, political and economic order. A number of interventions have already called attention to the possibilities and perils that come with mobilising different legal frameworks and institutions to respond to the pandemic, notably human rights, public health, migration, and investment protection regimes. In this piece I will focus on the temptation to frame COVID-19 as an international peace and security issue. While I share the concerns expressed by other commentators about the ‘securitisation’ of the pandemic (see here, here and here), my aim is to contribute to this discussion from a slightly different angle. Using the concept of structural violence, I intend to shed light on the socio-economic-ecologic violence that pre-exist and persist beyond the ‘crisis’ and that the ‘war’ narrative conceals.
In ‘Why it matters how we frame the environment’, cognitive linguist and philosopher George Lakoff explains what ‘framing’ is and its importance for how we think about global problems, in the specific case ecological concerns. All our knowledge involves unconscious structures called ‘frames’, while every word is defined through the frames it activates. Lakoff claims that ‘[i]n order to communicate a complex fact or truth, one must choose one’s word carefully to activate the right frames so that the truth can be understood’. In other words, one has to provide a narrative that builds up an appropriate system frame in the audience’s mind.
To give an example, Lakoff refers to a quote from a 2003 language advisory to the Bush administration:
It’s time for us to start talking about ‘‘climate change’’ instead of global warming […] ‘‘Climate change’’ is less frightening than ‘‘global warming’’ […] Stringent environmental regulations hit the most vulnerable among us – the elderly, the poor and those on fixed incomes the hardest […]. Job losses […] greater costs […] American corporations and industry can meet any challenge, we produce the majority of the world’s food, […] yet we produce a fraction of the world’s pollution.
As put by Lakoff, the idea behind the memo was that ‘climate’ had a nicer meaning, while ‘change’ left out any human cause of the change. Obviously, we know that this is scientifically untrue. The point is that the choice of words matters as it builds frames that inform our understanding of a problem and, consequently, the way we decide to deal with it. In sum, Lakoff tells us that, while we cannot avoid framing, the question of ‘whose frames are being activated – and hence strengthened – in the brains of the public’ is a crucial one.
The securitisation of COVID-19
As put by Arundhati Roy, ‘the mandarin who are managing this pandemic are fond of speaking of war. They don’t even use war as a metaphor, they use it literally’. Indeed, Donald Trump declared himself a ‘wartime president’ and proclaimed ‘We will win this war‘; Boris Johnson announced that ‘We must act like any wartime government‘; and Emmanuel Macron said ‘We are in a war’ in which ‘nothing should divert us’ from fighting an ‘invisible enemy’.
International organisations and policy makers have followed up and marked COVID-19 as a security issue. The UN Secretary General has called the coronavirus pandemic the ‘fight of a generation’ and a significant threat to the maintenance of international peace and security. Antonio Guterres warned the UN Security Council (UNSC) that the pandemic had the potential to increase social unrest and violence, which would greatly undermine the world’s ability to fight the disease. He said that UNSC involvement would be ‘critical to mitigate the peace and security implications’ and ‘a signal of unity and resolve from the council would count for a lot at this anxious time’.
For some commentators, framing COVID-19 as a ‘threat to the peace’, to use the language of Article 39 of the UN Charter, seems a natural development. The precedent invoked is UNSC response to the Ebola crisis in West Africa, which Resolution 2177 (2014) characterised as a ‘threat to international peace and security’. As such, they conclude that there is an arguable case for the Security Council to act also in response to COVID-19.
Other legal scholars have forcefully argued that the militarised language is neither accurate nor helpful for the situation we are facing. Christine Schwobel-Patel observes that ‘[a]lthough the enemy is invisible, war talk nevertheless creates the spectre of an enemy. And, because war is associated with the ‘other’, war talk has the tendency to create and build on ethno-nationalist sentiment’. For Ntina Tzouvala the ‘war’ narrative has the potential of expanding executive power, increasing tensions between states and enable measures that are counter-productive and socially destructive. She also reminds us that the securitisation of COVID-19 is not exceptional but in line with recent developments in international law.
Indeed, in the last couple of decades the UNSC has been expanding its ‘primary responsibility for the maintenance of international peace and security’ (ex Article 24 of UN Charter), by affirming its jurisdiction over a variety of issues, such as human rights violations, humanitarian disasters, organised crime, and infectious diseases. A recent example is climate change, which has been qualified in a 2009 UN Report as a ‘threat multiplier’ that may exacerbate threats caused by poverty, weak institutions, mismanagement of natural resources, and ethnic clashes. In 2007 and 2011 the UNSC hosted a thematic debates on the implications of climate change for international security, thereby asserting a link between anthropogenic climate change and increased rate of violence.
A more neglected question raised by the ‘securitisation’ of the pandemic concerns the nature of the threat posed and to whom. Like in the case of climate change and other global issues, much has to do with the concepts we use. To be clear, I agree that by securitising COVID-19 governments may use it as means to legitimise emergency powers, increased surveillance and monitoring, and even militarised responses. But can we say that the language of violence is entirely inaccurate to describe the present situation? Hardly so. Yet, rather than looking at the violence allegedly ‘caused’ by COVID-19, as in the securitisation narrative, I argue that we should focus on the structural violence of the pandemic.
Understanding the pandemic via structural violence
Writing in 1969, Johan Galtung called attention to pervasive forms of violence that are ‘built into the structure’ and that manifest themselves as inequality of power, resources and life chances. In a passage which seems to speak to the current situation, he claims that ‘if a person died from tuberculosis in the eighteen century, it would be hard to conceive this as violence since it might have been quite unavoidable, but if he dies from it today, despite all the medical resources in the world, then violence is present according to our definition’. Anthropologist and medical doctoral Paul Farmer built upon Galtung’s concept of structural violence to study the tuberculosis and HIV epidemics that killed millions of people in Haiti. He found that historical political economic domination and inequalities created a society that is ravaged by these diseases, which could be avoided or at least made less severe.
While the war metaphor and the language of ‘crisis’ distracts us from the ‘politics of everyday life’, to use Hilary Charlesworth’s words, by attending to the structural violence of the pandemic we are able to see forms of violence that pre-exist and persist far beyond the emergency. As Lutz Oette put it, COVID-19 sheds light on ‘systemic institutional shortcomings and the realities of precarious lives’: weak public health systems, overcrowded prisons and immigration detention facilities are breeding grounds for infections. The securitisation of the pandemic disguises these structural issues that result in the pandemic being effectively out of control in many countries with the most vulnerable and disenfranchised being hit the worst.
As pointed out by international economic law scholars, COVID-19 is revealing how the globalised economy based on profit accumulation and consumerism, sustained by legal norms and institutions, is deepening existing inequalities between the Global North and Global South, as well as within countries in the North. In South East Asia, the virus is exposing the weak social protection for urban poor, especially migrant workers, while for many African people working in the informal sector social distancing is a privilege they cannot afford.
Do we have a legal vocabulary to account for this violence? One of the merits of Galtung’s concept of structural violence is that it opens up the category beyond visible, direct and immediate infliction of harm to include social evils. If we think about COVID-19 in these terms, one important insight for international lawyers is that this violence (contrary to ‘personal’ violence) does not presuppose an intentional agent as perpetrator. This raises a number of challenges for a legal system built around the notions of agency, attribution, control, and causation.
The interrelation of economy and ecology
COVID-19 is an animal-borne disease which, according to the most diffused (yet controversial) reconstruction, was transmitted to a human by an animal kept in a wet market of Wuhan. The narrative framing the virus as the ‘enemy’ or a threat to international peace and security is based upon an artificial separation between humans and nature. On the contrary, the rise in zoonotic diseases (like COVID-19) shows the profound interconnection between human wellbeing and the way we treat other living beings and entire ecosystems. Moreover, by defining the virus as something ‘external’ to our society, we turn a blind eye to the centrality of nature in the existing economic system. As observed by Ntina Tzouvala, the virus is not the product of Chinese under-development, but of the country’s rapid development and incorporation into a globalised economy. The disruption of forests caused by rapid urbanisation and intensive animal farming have brought people in closer contact with wildlife.
Rather than pointing the finger at wet markets, we should look at how unsustainable development practices, often facilitated by international legal norms conceptualising nature as property or resource to be exploited, resulted in increased habitat and biodiversity loss. This is particularly important from a prevention perspective, as ecologists tell us that shrinking natural habitats and changing behaviour may create the conditions for new disease like COVID-19 to arise in future.
In conclusion, I suggest going back to Lakoff’s article. His words are a sad reminder of the difficulty of changing dominant frames, but also of the importance of developing new ones:
The environment frame sees the environment as separate from and around us. Yet, we are not separate from Nature. We are an inseparable part of Nature. Yet, we separate self from other and conceptualise Nature as other. This separation is so deep in our conceptual system that we cannot simply wipe it from out brain. It is a terribly false frame that will not go away.
The economic and ecological meltdown have the same cause, namely, unregulated free market with the idea that greed is good and that the natural world is a resource for short-term private enrichment. The result has been deadly: toxic assets and toxic atmosphere. [….] Global causes are systemic, not local. Global risk is systemic, not local. The localisation of causation and risk is what has brought about our twin disasters. We have to think in global, systemic terms, and we don’t do so naturally. Here hypocognition is tragic. We lack the frames we need.
Rojas Marín (who at that time self-identified as a gay man and now self-identifies as a woman) was arrested arbitrarily. Throughout the process, the police officers made derogatory remarks about her sexual orientation.
The Court found Peru responsible for the violation of a range of rights in relation to Rojas Marín, in breach of its obligations to respect and ensure those rights without discrimination. Peru was also found responsible for the violation of the right to personal integrity of Rojas Marín’s mother, who died in 2017.
On learning of the ruling, Azul Rojas Marín said:
I am very grateful to all the people who have made this possible. I have no words to describe how I feel. I thank God above all. After all that I have been through, finally a court believes me. I only wish I could have been able to share this joy with my mother, who was always alongside me in my efforts to report the crime and find justice.
In its ruling, the IACtHR determined that the State of Peru did not act with due diligence in its investigation of the sexual torture of Rojas Marín and its violation of the rights to judicial guarantees and judicial protection. The Court found that the process was riddled with discriminatory stereotypes and the Peruvian authorities should have investigated whether there were reasonable indications that the violence had been motivated by discrimination.
The Court ordered Peru to adopt a series of measures to redress the damage to Azul Rojas Marín and prevent these crimes from being repeated. They reaffirmed that a person’s sexual orientation, gender identity or gender expression are categories protected by the Inter-American Convention on Human Rights.
Professor Sandoval, whose recent work includes focusing on reparations for gender-based violence, said:
This is a landmark judgment where the Court develops, for the first time, the concept of torture as a result of discrimination because of sexual orientation, and where the tribunal tries to address some of the structural causes of these violations, including discrimination, by ordering Peru to implement significant reparation measures to prevent recurrence of the violations. This judgment paves the way in fundamental ways for the future protection of members of the LGBTI community in the Americas and around the world.
Rojas Marín brought her case before the Inter-American System of Human Rights with the legal assistance of the Center for the Promotion and Defense of Sexual and Reproductive Rights (Promsex), the National Coordinator of Human Rights (CNDDHH) and REDRESS, an international organisation that fights against torture. Professor Sandoval has been part of the REDRESS team litigating the case.
Jorge Bracamonte, Executive Secretary of the CNDDHH, said:
This ruling represents a historic opportunity for the Peruvian State to eradicate systematic violence against LGTBI people from its institutional practices and is a precedent of great importance for the protection of LGTBI people throughout the region.
On 16 January 2020, the Ministry of Justice announced plans to allow for the first time in England and Wales recordings and broadcasts from the Crown Court with the aim of increasing public engagement with the justice system.
Filming is already permitted in the Supreme Court and has been since it was set up in 2009 (although this is carried out by the court itself) and the television broadcasting of Court of Appeal proceedings has been possible in specified circumstances since 2013 under the Court of Appeal (Recording and Broadcasting) Order 2013. The Crown Court (Recording and Broadcasting) Order 2020 will extend this to the Crown Court (which deals with serious criminal cases like murder and sexual offences) and allow cameras to broadcast the sentencing remarks of High Court and Senior Circuit judges when sitting in open court. No other court user will be filmed, however, and normal reporting restrictions will continue to apply to protect victims or witnesses involved in the case.
The policy aim of this legislative move is to ensure that courts “remain open and transparent and allow people to see justice being delivered to the most serious of offenders.” The legislation has been welcomed by broadcasters such as ITN, Sky and the BBC, and follows a not-for-broadcast pilot run between July 2016 and February 2017 to enable assessment of the practical and technical challenges of filming in the Crown Court.
The 2020 Order prescribes the conditions to be satisfied for the visual and sound recording and broadcast of sentencing remarks in the Crown Court. When these conditions are satisfied, section 41 of the Criminal Justice Act 1925 (which bans photography and filming in courts and their precincts) and section 9 of the Contempt of Court Act 1981 (which makes it illegal to record sound in court and broadcast any audio-recording of court proceedings except with the permission of the court) will not apply.
The legislation comes with safeguards. Whole trials will not be televised and filming will be restricted to the judge alone who will be seen on camera as he or she delivers their sentencing remarks. Moreover, recording or live broadcast can only be carried out by persons who have been given specific permission by the Lord Chancellor. Filming will also be appropriately edited before leaving the courtroom. Where filming is to be broadcast live, there will be a short delay before broadcast to avoid breaches of reporting restrictions or any other error. Whilst concerns may be expressed that particular sections of lengthy remarks may be broadcast out of context to create a false impression, the full sentencing remarks of any case broadcast will be hosted on a website to which the public will have access. Her Majesty’s Courts and Tribunals Service will retain copyright of the footage and will be able to access any footage taken by broadcasters.
This post first appeared on the legal database IRIS Merlin and is reproduced here with permission and thanks.
Lorna McGregor, Professor of International Human Rights Law and PI & Director of the ESRC Human Rights, Big Data and Technology Project at the University of Essex
The Covid-19 pandemic engages the full spectrum of states’ human rights obligations. In addressing the virus itself, states are required to protect the rights to life and the highest attainable standard of health (right to health) and ensure that no-one suffers discrimination in access to and the nature of healthcare. States’ (in)action in meeting their obligations to fulfil the rights to health and life has direct consequences for the enjoyment of all human rights, including the rights to liberty and security, education, food, work, housing, privacy and freedom of movement, association and expression. States therefore have to take proactive measures to prevent the spread of Covid-19 in order to protect life and health. However, as human rights are indivisible and inalienable, they must only do so in ways that do not violate absolute rights, such as the prohibition of torture, and only limit other rights in ways that are lawful, necessary and proportionate.
In this blog, I examine the role of contact-tracing apps as central to many states’ strategies to track the spread of Covid-19 and end ‘lockdown’, which would alleviate the pressure on many other human rights. Some contact-tracing apps have already been rolled out, such as Singapore’s TraceTogether app and others are under development, including in the UK and France. Many concerns have been expressed about the use of contact-tracing apps due to the significant risks they pose to human rights and their potential contribution to a dramatic new era of surveillance. Given these risks, I argue that states need to be able to answer three questions, if they are to consider introducing – or continuing – with their use of contact-tracing apps. These questions are:
Is there scientific justification for the use of contact tracing apps as a means to fulfil states’ obligations to protect the rights to health and life?
If there is, does the design and deployment of contact tracing-apps meet the tests of legality, necessity and proportionality?
Has the state put in place measures to prevent harm to human rights in the future, by preventing mission creep and the normalisation of contact-tracing apps?
1. Is there scientific justification for the use of contact tracing apps as a means to fulfil states’ obligations to protect the rights to health and life?
Contact-tracing apps may be seen as a means to fulfil states’ positive obligations to protect the rights to health and life. However, it is not enough for states to simply assert that the apps are aimed at protecting the rights to life and health; rather they must be ‘scientifically justified’. Contact-tracing is a common technique in public health surveillance. It is used to identify people who may have been in contact with someone diagnosed with a virus in order to provide them with information about prevention and treatment. At this stage in the Covid-19 pandemic, contact-tracing by humans is considered to have many limitations due to the labour required, limited available testing and the spread of the virus. While presented as an alternative to human contact-tracing, it is unclear whether contact-tracing apps are capable of fulfilling this role, particularly in the absence of widespread testing. This has led to some commentators asking whether contact-tracing apps are just another example of techno-solutionism or as Ross Anderson has suggested, ‘do-something-itis’.
A number of commentators, including Anderson, the Ada Lovelace Institute and Privacy International, point out that if voluntary, there is likely to be a low-level of buy-in (in Singapore, reports suggest only 17% of the population use the app although Oxford researchers predict a much higher rate in the UK and argue that while a 60% take-up would work best, a lower rate of engagement could still contribute to a reduction in cases). With both voluntary and mandatory contact-tracing apps, the risk of denial of service attacks and abuse are high as is the likelihood of failing to report symptoms or diagnosis or reporting false information. This risk increases if adverse consequences attach to self-reporting, such as extended lockdown, inability to work or access public spaces. These observations suggest that contact-tracing apps are unlikely to have general scientific justification and thus require states to make a clear scientific case for how, and, in what way, the specific contact-tracing app being proposed could contribute to protecting the rights to health and life.
In protecting the rights to health and life, it is also critical that states do not overly focus on one particular solution, such as contact-tracing apps, as the fulfilment of these obligations requires complex and multi-layered strategies and resource. Lisa Forman argues that the failure of many states to act quickly to address Covid-19 through ‘wide-spread testing, contact tracing, and more adequately preparing health care settings for COVID-19 patients’ has meant that ‘[h]ealth care systems throughout Europe and North America are already struggling to mount adequate public health and clinic responses, with facilities overwhelmed, basic testing and protective gear in short support, and care triaged to those with the best chance of survival’. Javier Ruiz also argues that ‘access to testing, treatment and vaccines once they appear’ should be the ‘real priority’. Even if contact-tracing apps present part of the solution, as Anderson notes ‘[w]e must not give policymakers the false hope that techno-magic might let them avoid the hard choices’ of resource allocation to public health.
2. If there is scientific justification, does the design and deployment of contact tracing-apps meet the tests of legality, necessity and proportionality?
If states are able to make the scientific case that contact-tracing apps, on their own or in combination with other measures, can contribute to protecting the rights to life and health, the question then becomes whether the use of such technology impacts other rights and if so, whether the limitations are lawful, necessary and proportionality.
a. The Impact of Contact-Tracing Apps on Human Rights
Contact tracing apps take different forms; as does the nature of their implementation. All forms impact human rights in some way, although varied in scale and extent.
Yuval Noah Harari has warned that resort to surveillance technologies, such as contact tracing apps, in response to the Covid-19 pandemic constitutes ‘an important watershed in the history of surveillance … signif[ying] a dramatic transition from “over the skin” to “under the skin” surveillance’. The concern is not only that contact-tracing apps could introduce an unprecedented level of surveillance during the pandemic, but that through mission creep and normalisation, we may not be able to ‘go back to normal’ and could see such technologies being deployed in other areas of life, during and after the pandemic.
These risks are particularly acute where contact-tracing apps are mandatory. This not only facilitates wide-scale surveillance but also puts people who do not own smart phones at risk of punishment, the drawing of adverse and discriminatory inferences, and unequal access to health information. Even if ostensibly voluntary, the use of contact-tracing apps could become de facto mandatory for some people, if access to work or public spaces and services is conditioned upon use of the app.
The way the app functions also has significant implications for human rights. If the app means that a person is placed under constant surveillance, this could potentially be interpreted as a restriction on freedom of movement and even, a de facto form of deprivation of liberty. They also pose significant implications for other human rights, including privacy, particularly if they reveal location data and other identifiable information; data are held centrally rather than localised on a person’s phone; data are retained rather than deleted beyond the isolation period; and are deployed by or are accessible to private companies and law enforcement or intelligence agencies (whether by design or by governments compelling health authorities to share data) with the risk that the data and technologies are repurposed, now or in the future. As discussed below, many of these issues can be overcome in the design of the apps and the legal framework put in place to oversee their use. However, it is never possible to fully remove the risks to privacy, even where data are anonymised, and the risk of mission creep and normalisation of such technology will remain high.
b. Legality, Necessity and Proportionality
As noted at the outset, international human rights law recognises that certain rights can be limited, like the right to privacy. The 1984 Siracusa Principles foresee response ‘to a pressing public or social need’ such as public health as a possible ground for the limitation of rights. However, they also require that the essence of the right must not be undermined and the limitation must be prescribed by a ‘clear and accessible’ law, pursue a legitimate aim, be necessary and proportionate and ‘adequate safeguards and remedies’ put in place. The measures must also be timebound and purpose-limited to the specific aim of ‘preventing disease or injury or providing care for the sick and injured’.
The jurisprudence of the European Court of Human Rights establishes that states must provide ‘relevant and sufficient’ justifications for limiting a right, which ties back in with a requirement for a scientific justification for contact-tracing apps. Moreover, even if scientifically justifiable, to constitute a proportionate measure, the Siracusa Principles (and international and regional jurisprudence) set out that states must ‘use no more restrictive means than are required for the achievement of the purpose of the limitation’. Thus, the burden lies with states to show that they cannot achieve the goal of preventing the spread of Covid-19 by ‘less-restrictive-means’, including non-technological.
The least restrictive means test also provides strict parameters for the form and nature of contact-tracing apps in order to minimise their impact on human rights. As discussed above, design options to minimise the impact on rights include avoiding centralised databases, not using location or identifying proximity or interaction data, and data deletion. Tech companies, non-profits, civil society, and academics are actively investigating how apps could be designed to minimise the impact on privacy.
The purpose-limitation requirement as well as the least restrictive means test also prevent the repurposing of data by other state agencies (such as law enforcement or immigration authorities) as well as private companies for commercial purposes. Where other agencies are involved, it is critical that this limitation is enshrined within transparent data sharing agreements. These agreements should be made public, and as argued in a Joint Civil Society Statement by over 100 organisations in relation to businesses, they should contain ‘sunset clauses, public oversight and other safeguards by default’, including ensuring that ‘any intervention is firewalled from other business and commercial interests’.
To fully minimise the impact on human rights, further safeguards are needed to assess whether the involvement of other state agencies beyond public health and private companies is necessary and proportionate. This should include a presumption against involvement; independent oversight and assessment of the rationale for their involvement; temporary use of the apps; minimisation of the categories of data collected and processed through the apps; and due diligence, vetting and scrutiny of the risks of involving other bodies, particularly private companies, based on their human rights records, including in digital surveillance. Vetting should include the possibility of external organisations, such as civil society, submitting evidence on such records.
3. Has the state put in place measures to prevent harm to human rights in the future, through mission creep and the normalisation of these apps?
Finally, even if states can develop a framework to ensure the least intrusion into the enjoyment of other human rights, concerns about the risks of mission creep and the normalisation of the use of contact-tracing apps by states cannot be lost. As Harari observes,
You could, of course, make the case for biometric surveillance as a temporary measure taken during a state of emergency. It would go away once the emergency is over. But temporary measures have a nasty habit of outlasting emergencies, especially as there is always a new emergency lurking on the horizon.
In the future, therefore, it is foreseeable that states could make the case for the use of contact-tracing apps in other contexts, in order to surveil particular individuals or groups in society. Once such apps have been used in one context, their introduction in other areas, even if previously inconceivable can seem less radical. As part of their obligations to prevent harm to human rights, states therefore need to be proactive in fully recognising the impact these technologies have on human rights and make clear commitments to never use such technologies where alternatives exist. They also need to ensure a strong multilateral and multistakeholder accountability and review framework in order to hold each other to account where the use of contact-tracing apps fails to meet the requirements of international human rights law.
It is critical that states meet their obligations to fulfil the right to health and life in the Covid-19 pandemic. However, they do not have free rein in how they do this. They must also avoid overly relying on one solution. Protecting the right to health and life requires complex and multi-layered strategies and investment in public health and cannot be fulfilled. Contact-tracing apps pose serious risks to human rights, now and in the future. While there may be ways to minimise the impact on human rights in the implementation of specific apps, no app will be able to fully remove the risks to human rights. Given these risks, states must demonstrate why contact-tracing apps are relevant and justified in meeting the goal of preventing the spread of Covid-19, particularly once lockdown is lifted, using scientific evidence and show that no less rights-invasive solutions are available. Unless they can make this case, contact-tracing apps should not be introduced and where they have already been rolled out, they should be withdrawn.