OUTLINE Flashcards

Question

ECHR vs ICCPR on jurisdiction

Answer 1

facts - sinking of vessel in the Mediterranean Sea, with over 200 migrants dying - relatives sued Malta (but court says didn’t exhaust domestic remedy) and Italy (complaint deemed admissible) decision - Committee finds that a special relationship of dependency existed between the individuals on the distressed vessel and Italy. - This relationship is based on the initial contact with MRCC, proximity of an Italian navy ship, and MRCC involvement. - Italy's jurisdiction is further solidified by legal obligations under international law, including SOLAS and search and rescue cooperation agreements. Admissibility: - Jurisdiction if acts of states affect rights in a **“reasonably foreseeable manner”** - “Special relationship of dependency” between victims and Italy - **so that it was reasonably foreseeable that Italy would have the duty to rescue**

Answer 2

- has teeth, but for more likely to be used than force - Not binding - Can use these to change behavior Military option - very remote possibility - States can’t use for HR, only UNSC can, but likely won’t - Only one entity allowed to use force against state for violating HR = UN security council - And almost never does it (last time was 12 years ago and it was a disaster)

Answer 3

Idealism/philosophical disposition/principle bias - Genuine care for HR Realism: - To assert influence in international politics, punish enemies, reward friends - Enhance their own reputation - Economic tool (eliminate competition) Responsiveness - who is encouraging the US to push sanctions? - responding to domestic pressures - eg. from NGOs, religious groups, diaspora groups, politicians Prevent HR violations from spilling over into sanctioning state

Answer 4

1) effectiveness = do they result in improvement to HR? = clay article 2) legitimacy = extent to which sanctions are done in good faith and have fair results

Answer 5

similarities - do the same things = asset freezes, travel bans, ban on transfers - both authorized by political bodies (EU = EU council, US = congress) - both occasionally do country-wide sanction (ex: Russia, North Korea) differences - EU short + long list of violariona VS US shorter list (gross HR violations + corruption)

Answer 6

- sanctions, in general, are illegitimate due to consistency and motivation issues - Impossible to disconnect national interests = just cant do sanctions - (counter arg = better to sanction somebody than no one) - (counter arg = should embrace selectivity, should go after our enemies)

Answer 7

Depends on whether sanctions imposed by UN security council (UNSC) 1) If UNSC authorized ⇒ legal ✅ 2) If non-UNSC sanctions (called autonomous) ⇒ depends on the Law of state responsibility 🤷🏼‍♂️ - what are states allowed to do when another state breaches HR law? A) If sanctions are otherwise legal = no limits B) If sanctions are otherwise illegal = strict limits (called **countermeasures**) - Erga omnes duties = breach means injury to everyone - uncertainty about the definition of an "injured state. " This is relevant because some violations that U.S. and EU sanctions aim to address may not directly affect their citizens but still violate obligations that protect collective interests or international community rights. The ILC has not resolved this issue and defers it to future developments in international law. - Arg for injury = obligations to international community as whole - Counter arg = if we allow injury to be so broad, invite a bad effect - Middle ground = harm our ally

Answer 8

breach means injury to everyone

Answer 9

What all 3 courts say (Chachko cases) - They are not going to review the substance of the sanctions - defer to political actors on whether sanction is proportional What they look at = the process by which state used on imposing them Basic set of protections for due process - Notification - Evidence - Opportunity to present your side - Impartial review (not necessarily a court)

Answer 10

Manageable standards given capacity of court - substantive review would require a lot of info and no standard to review it - we have more standards to review due process Fear of courts getting involved in political decisions - Polticial calls - Con to this = can't consider consistency, motivation, unilateral vs multilateral

Answer 11

The ICESCR does not explicitly differentiate between economic, social, and cultural rights.

Answer 12

Speaks to a right not mentioned in treaty → both freedom from being prevented from accessing water (Art. 31) + freedom to have water (Art. 10) Added duties - from ICESCR Art 2(1), 11(1), & 23 - Require states to recognize the role - duty to take joint and separation action to achieve the full realization of the right of water - Extraterritorial obligations - refrain from actions that interfere

Answer 13

- May be better to max ratification = split so ICESCR don’t force state to spend money in ways that are not ready - If they were combined, would we have the same list as the ESCR? Probably not - **Interdependence:** civpol cannot exist without achieving ESC first (indivisibility) - ESC rights protrude more into the private sector → affects economies

Answer 14

some dutis to be immediate, some progressive realization Minimal essential levels of the rights implies “minimum core obligation” (¶ 10) - Burden of proof on state if minimum obligations are not met - Way to get state to do something if not doing anything for particular right - **Criticism** - min core obligation not in text - Where does the Committee on ESCR get this? Objective and purpose in VLT - Committee calls to “raison d'etre” = reasoning for being

Answer 15

Facts = Soobramoney's case revolved around his plea for dialysis treatment under South Africa's constitution, given his life-threatening medical conditions and the resource constraints faced by the healthcare system. Issue = Does a state have an obligation to provide free treatment for chronic illnesses to those who cannot afford it, if the state's constitution recognizes the right to life and a duty to not deny emergency medical treatment? = ❌ Rule / Reasoning - Court uses **purposive approach** to constitutional interpretation = Art 26 and 27 should be considered in context of available resources - Court adopts **reasonableness/good faith test**: deferential to legislature - Classic **utilitarian** approach: weighs costs and benefits and then deferring to state as to how it wants to use its resources Applying = Soobramoney doesn’t meet criteria for program, program is reasonable, have to make difficult choices

Answer 16

facts = The Minister of Health did not make a certain HIV medication available in public health sectors, limiting access for individuals of lower socioeconomic status. Issue = Does the South African Constitution require the government to take *reasonable measures* to extend access to medical treatment to all individuals? = ✅ Rule / Reasoning: - Court on minimum core - Disagree with idea = **rejects general comment 3 bc positive obligation is an unreasonable demand = return to reasonableness standard** - A purposive reading of sections 26 and 27 leads to the conclusion that immediate access to even a "core" service for everyone is impossible. - courts are not equipped to determine the minimum core standards or decide how public revenues should be spent result = Applying reasonableness standard = Ps wins. hospital unreasonable

Answer 17

Facts = The City of Johannesburg implemented a Free Basic Water policy. Ps arguing for a higher standard of free-water availability based on constitutional rights. issue = Is the government’s Free Basic Water policy reasonable and thus constitutional? ✅ rule / reasoning - The government has an affirmative obligation to take reasonable steps to provide the necessities of life, including a basic amount of water. - Rejected GC 3 - too rigid, need context to determine whether reasonable - No freestanding right to a certain amount of water **Role for courts in progressive realization:** - Intervene when: - (1) State is taking no steps towards progressive realization - (2) Unreasonableness - “Cannot exclude large segment of society” - Public explanation - Administrative convenience - (3) Duty of continued review Result = City's water program is reasonable because the state justified the reasonableness of its actions (public explanation).

Answer 18

Facts = Blue Moonlight Properties acquired a dilapidated property in Johannesburg and initiated eviction proceedings against over 80 occupiers. The city refused to provide temporary housing for private evictions but did for public evictions Issue = Is the City's housing policy, which differentiates between those relocated by the City & those evicted by private landowners, constitutional? ❌ Result/Reasoning = city’s approach is discriminatory & unconstitutional. - unreasonable to differentiate within the category of emergencies between people relocated by the City and those evicted by private landowners. - City only had a speculative rationale (no economic reason)

Answer 19

South African cases = courts apply reasonableness test for ESC rights - Defer to political on reasonableness - But not on everything - Based on speculation or economic grounds - But for most part = endorsing utilitarian calculation Con to above - - can argue that courts not able to adjudicate ESC rights - Some argue that courts lack the tools to achieve broad social and economic transformation needed to benefit the poor. Pro to above + - Court respects separations of balances by not going to much into policy implications - with creativity and supportive legal and political culture, courts can overcome some institutional limitations.

Answer 20

Collective rights - Court emphasized that international law, including ILO Convention No. 169 & the UN Declaration on the Rights of Indigenous Peoples (2007), recognizes the collective rights of both indigenous communities and their members.

Answer 21

IAC - more taken to inderdependence of ESR rights and civ pol Property art 21 → violation - Duty of state = restitution or conveyance of equal quality in agreement with IP right to life art 4 → violation - positive duty (not absolute) of state to adopt measures to prevent / mitigate risk to ROL (state did not do this) - court is essentially saying by violating these ESR rights, ends up violating a civil and political right

Answer 22

thinks ESR & civ pol are separate rule - rights recognized for indigenous peoples on their ancestral lands are not limited to ownership, but also include rights of possession, occupation, and land use - However, **restrictions may apply under Article 14 (property) if they are in the public interest and considered necessary and proportionate.** result - Art 14 property = violation by expelling them from their ancestral lands without consultation and without meeting the conditions in the interest of public need. - not proportionate to the public interest' - Art 2 discrimination = violation = Respondent's failure to acknowledge the Ogieks as a separate tribe, thus denying them rights granted to other tribes, amounts to a form of discrimination based on ethnicity or other status as defined in Article 2 of the Charter. - Art 4 right to life + integrity** = NO violation = Applicant has not provided evidence establishing a causal connection between the Ogieks' evictions by the Respondent and the alleged deaths. - ROL not the same for a right to a decent existence for a group - also violates art 8 (consc), art 17 (cultural rights), art 1 (recognize rights)

Answer 23

1. **Domestic courts are more deferential** to state decision-making. - This is justifiable based on domestic separation of powers. 2. Domestic courts pay more attention to **resource constraints** than international courts. - This is because they are closer to the effects of resource allocations. 3. International courts show more concern about **legitimacy**, which means they are more concerned about balancing. - This is justifiable because of the nature of international courts. - However, a counter argument is that domestic courts are more concerned about legitimacy. a) It is important to listen to the state's argument. b) Domestic courts also show respect to their own actors.

Answer 24

absolute duty on state State Obligations - Embody the principle of equality in constitution and laws; - Ensure practical realization of the principle of equality; - Prohibit discrimination against women; - Refrain from discrimination; - Eliminate discrimination by any person, organization or enterprise; - Modify or abolish laws, regulations, customs and practices that constitute discrimination; and - Repeal discriminatory penal provisions.

Answer 25

1) Respect rights of others: treat persons equally, respect individual dignity/worth, not interfere with declared rights = State not violating right by conduct = not absolute ban 2) Create institutional machinery essential to realization of rights: or the practice of the right 3) Duty to protect against private rights violations = includes state expenditures = CEDAW 5(a): protect against private actors 4) Provide goods and services to satisfy rights: resources to the rights-bearer (eg. housing, money) 5) Promoting human rights: state bringing changes in public consciousness /perception/understanding about an issue

Answer 26

Pros = yes it's fair - Victim-centered - Resource sensitive - Interpretation of reasonable, serious investigation, due diligence Cons = no not fair - Type of violator not considered in this case - If this was a multi national corp = state may be in a weak position, and state should not be expected to fix - Is this standard manageable? - How do we know if there was due diligence if the facts were harder?

Answer 27

Even if violations are not directly imputable to a state, it has an obligation to investigate; obligation of due diligence Art 1(1) grounds duty to protect, not just to respect → duty to investigate (THIS IS A DUTY OF CONDUCT, NOT RESULT)

Answer 28

Velasquez - “ensure” free/full exercise of rights - “Reasonable steps to” prevent, “serious steps to” investigate, identify, punish, compensate - Due diligence in preventing /responding to DAW ≠ attribution of responsibility to state - State just needs to take reasonable steps to create legal infrastructure for DAW justice; State is not responsible for the actions of individual persons

Answer 29

1) For state actors - Duty to respect implies absolute duty to prevent on state actors (i.e. against state instruments/actors) + punish - Duty of result - Duty of respect - implies absolute duty to prevent/punish 2) For non-state actors - a) attributable to the States - private actors authorized by the state to exercise governmental authority = shall be considered as acts of the state. - From duty to respect = include state actions - b) Due diligence obligations for acts & omissions of non-State actors - Art 2e = requires States parties to take measures to eliminate discrimination against women by any person, organization, or business. = due diligence - From duty to protect - Basically fleshing our Velasquez Rodriguez

Answer 30

NON-BINDING DECISION facts = Allegation of obstetric violence issue = Was there an art 2 (policy of eliminating discrim against women) violation? = yes rule / holding - Under articles 2 (f) and 5, states parties have an obligation to take all appropriate measures to modify or abolish not only existing laws and regulations but also customs and practices that constitute obstetric violence

Answer 31

facts - Manuela convicted for killing baby - Criminal code was amended to require doctors to report crimes which would require them to report abortions rule - about process (not substantive interpretation of right to life) - article 8(2) = presumption of innocence - Article 8(1) = establishes the right to be tried by an impartial court. - the use of gender stereotypes in criminal proceedings may violate the right to presumption of innocence, the duty to provide reasons for a decision, and the right to be tried by an impartial court.

Answer 32

Balancing approach: adopts forumla (can’t abort after 24 weeks) based on 3 principles 1) Reaffirm 3 exceptions from 2006 ruling 2) Reject idea of full decriminalization (bc that would neglect right to life for fetus) 3) Want the leg to act in terms of democratic processes - "a dialogue in the bodies of democratic representations to formulate a comprehensive public policy that avoids the wide margins of lack of protection for the rights, pregnant women and implement and protects the life of gestation without attack." - Calling it = democratic dialogue

Answer 33

Art 2: genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such: - (a) **Killing** members of the group; - (b) **Causing serious bodily** or mental harm to members of the group; - (c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; - (d) Imposing measures intended to prevent births within the group; - (e) Forcibly transferring children of the group to another group. not genocide if - no intent to destroy - if view them in political terms not racial ones

Answer 34

Pros of framing race in terms of genocide: - Internationalize, put pressure on US, create new allies - Highlights gravity and systematicity of issue, making international crime - Use Cold War reputational concerns (US was worried about its international reputation) Cons of framing in terms of genocide: - Genocide term was coined for Holocaust, so connection to it could be risky - Risk of backlash - US concerns of IL overriding state laws (could see racist laws as backlash)

Answer 35

Background: One of the earliest conventions, 1st convention on a specialized issue art 1 = discrim def - "purpose or effect of nullifying or impairing" HRts - "based on race, colour, descent, or national or ethnic origin" - Broader than race - "in the political, economic, social, cultural or any other field of public life” art 2 = anti discrim measures

Answer 36

- reservation on art 1(1) “political, ESC or any other field of public life” - US doesn’t accept further obligations to regulate private conduct

Answer 37

art 1.1 - principle of non-discrimination not limited to acts of public admin but should read in light of provisions in the Conventions mandating measures by states to address racial discrim by ‘any person, group or organization’ - *Includes private sphere* Art 1.4 - special measures shall not be deemed racial discrimination as long as they don’t lead to maintenance of different rights for different racial groups and can’t be continued after objectives are achieved - affirm action not RD, not an excpetion, its the purpose

Answer 38

- passed unanimously, which condemned racially discriminatory and violent practices by law enforcement agencies against people of African descent and expressed alarm at incidents of police brutality against peaceful demonstrators. - but - No mention of US but do mention Floyd - No creation of inquiry Pros - Shows US as hypocrite - get all states to agree to address US - Non-US focus builds IL norms cons - Backlash based on HRC membership (Pompeo)

Answer 39

1st HR treaty to enumerate/articulate in any meaningful way individuals’ duties - No progressive realization like ICESCR - Direct and indirect duties: - Direct: eg. Art 29(4) - Indirect: eg. Art 27(2) - serves as limitation on enjoyment of certain individual rights, recognizes that individual rights aren’t absolute - Preamble mentions duties as well as Arts 27-29

Answer 40

ECHR art 9 - Limitation clause = "necessary in a democratic society for the protection of the rights freedoms of others” Doctrine in ECtHR → Margin of appreciation (MoA) + binding = cannot overreach

Answer 41

1) Degree of European consensus - European = Council of Europe 2) particular right at issue - Some so essential that MoA will be smaller (eg. rt against torture, rt to democratic elections, right to privacy, etc.) 3) National interest at stake / aim of measure - ex = national security

Answer 42

art 18 = Limitation clause = "necessary to protect…the fundamental rights & freedoms of others" NO MOA + non binding = can overreach + more strict prop (least restrictive means)

Answer 43

1) individual freedom to practice religion vs state interests/responsibilities - When the state limits religious practice, does that violate HR of the minority group? - head scarf cases 2) Freedom to enjoy all human rights vs state's choice of official religion - Does the state’s choice affect nonbelievers’ human rights? - ex = Lautsi crucifix case

Answer 44

elementary teacher required by Swiss law not to wear headscarf, Dahlab loses based on secularism interference with the teacher’s freedom to manifest her religion (Art. 9(2) ECHR) was held to be justifiable and proportionate as a measure to protect the freedoms of others, namely the schoolchildren.

Answer 45

prohibited headscarf in universities, Sahin lost, ban upheld on grounds of nat sec The ECtHR found that her religious freedom had been restricted, but that the restrictions were proportionate to the aims of the University and of the state in their attempts to protect the nation’s secularism

Answer 46

ban on headscarves in all public settings. state uses 'living together' justification + secularism decision - legitimate aim + proportionate (+ wide MoA which informs legit aim & proportionality determinations) = not discrimination - ok with living together justification

Answer 47

facts = author wearing niqab convicted of minor offense of wearing a garment to conceal her face in public and ordered to pay 150 euros (the max penalty). Author challenges prohibition under ICCPR Art 18 decision = State failed to show it is necessary & proportionate under 18(3). reasoning = - stricter approach than ECtHR → proportionality as the least restrictive means - 'living together' justification too abstract to limit rights

Answer 48

crucifixes in all state classrooms. MoA analysis = within MOA - crucifix is a harmless and passive symbol - No European consensus - Opens up schools to other religions, celebrate other holidays - Nothing to suggest discrim against other religions

Answer 49

differents ideas of neutrality to religion Lautisi - neutrality = non-coercion - Crucifix just thing on wall, no active coercion SAS - Neutrality = can exclude religion from public sphere (so to not to favor any religion) But in both cases - State wins - Majority religion wins - Minority / nonbeliever in majority religion = loses ability to practice

Answer 50

facts - same sex couple in Vienna challenged Registered Partnership Act - Act allows unions, not marriages. decision 1) ECHR Art 12 right to marry: no violation - bc Goodwin case does not apply + wide MOA bc no Euro consensus 2) ECHR Art 14 non-discrim (+ Art 8 privacy): no violation bc wide MOA + no positive duty on states to pass laws for SS and even if they do, no right to be equal to marriage

Answer 51

facts - unlike prev case → No opportunity for civil unions or registered partnerships. - also landscape has changed = 24/47 countries supporting legal recognition for gay couples (SSM or CU) decision Art 8 (privacy) has been violated - Art 8 → creates positive obligations to respect privacy + family. also must be a fair balance between individual & community interests - MOA = For private life, more restricted (small MOA). But if ethical issues or larger public interests, more broad MOA

Answer 52

FACTS = Azul Rojas Marín identified as a gay man in 2008, later identified as a woman. Arrested in 2008 by police using derogatory language about her sexual orientation. DECISION - Unlawful, discriminatory, and arbitrary detention. - Abuse and violence constituted an act of torture by state agents. - State failed to conduct a proper investigation into the sexual torture.

Answer 53

FACTS = Vicky Hernández, a transgender woman, sex worker, and trans activist. State agents responsible for her death. DECISION - Judge says this is more than discrimination based on gender, it’s also based on gender identity. - A partially dissenting opinion by the Court's President emphasized the *importance of distinguishing "gender identity" from biological sex. It also highlighted the significance of recognizing violence against transgender individuals as separate from violence against cisgender women.*

Answer 54

ICCPR Art 19(3) - hate speech mirrored in ECHR Art 10 (adds “in a democratic society”) ICCPR Art 20 (2) - commands states prohibit/criminalize/ban certain kinds of speech mirrored in CERD Art 4 (+6) - any advocacy of national, racial, or religious hatred that incites discrimination, hostility, or violence should be prohibited by law.

Answer 55

facts: TV show, journalist deision = violation of art 10 (expression) bc disprop

Answer 56

facts = racist artist, satire decision = violation of art 4(a), demand to penalize + duty to prosecute

Answer 57

facts = homophobic leaflets in school decision = no art 10 violation - does limit freedom expression but justified bc necessary in a democratic society for the protection of the reputation & rights of others. - special consideration bc in school

Answer 58

facts = prof denies Holocaust decision - Gayssot Act is in compliance with ICCPR - does not find a violation by France of Article 19(3) (express) rule = Restrictions on freedom of expression must satisfy all of the following conditions: - Provided by law - Address one of the aims in Art 19 3(a) & (b) - Must be necessary to achieve legitimate purpose (Evatt, Kretzmer, and Klein explain that necessity implies proportionality)

Answer 59

facts = Turkish politician convicted for HS for denying Armenian genocide. decision = Art 10 (express) violation. Swiss conviction overturned. reasoning - imposing a criminal penalty in this case was not necessary in a democratic society - politician was not calling for violence, but for historical debate

Answer 60

Background: German politician prosecuted. decision = - Interferences with right to freedom of expression call for closest scrutiny when concerning statements by elected reps in Parliament. - Conviction upheld.

Answer 61

Kaye = a Special Rapporteur on freedom of opinion and expression Kaye’s report - ICT companies should limit speech. They have an obligation to prohibit/penalize advocacy for racial hatred - makes recommendation that tech companies should tie IHRL to HR treaties and advocates for strict self-regulation bc don’t know when government will enact new regulations - Implement content policies that align with international human rights law, including relevant United Nations treaties and interpretations from experts.

Answer 62

Cites the Nuremberg trial - Dicta in final judgement that companies committed V - Nuremberg shows: there ARE duties on individuals

Answer 63

- 1) Gov unwilling to take measures necessary to ensure transnational corps (TNCs) comply, esp re: labor - 2) implementing measures can be costly for developing countries; - (3) competition among countries discourages initiatives that increase labor costs and raise regulatory standards (known as the 'race to the bottom'); - (4) globalization makes it difficult to identify responsible parties and their activities; -(5) different countries have varying minimum standards.

Answer 64

in the late 1990s - Nonbinding groundwork - not even soft law - from UN Secretary General - goal = encourage corps to commit to following principles on enviro, anti-corruption, HR, and labor standards - just statement of principles, no enforcement, no oversight = but laid the groundwork for future efforts for norm setting

Answer 65

- most important doc in this top → changed the framework and dialogue about biz HRs - Not a treaty, but important soft law - Exceeded expectations - HRCouncil unanimously endorsed - Endorsed by states, NGOs, biz = quickly became soft law - concrete guidance on what states are supposed to do

Answer 66

State Duty to Protect HR (against Vs by non-state actors, including corps) foundational principles - Set out expectation that all business enterprises domiciled in their territory and/or jurisdiction respect HR throughout their operations - mostly protects what IL already requires = Velasquez, CEDAW operational principles - States must enforce laws, make sure laws help human rights - Support business respect of HR in conflict-affected areas - State business nexus:** Additional steps for biz owned/controlled by state or receiving substantial support and services from state agencies (eg. export credit agencies) - Policy coherence (incl domestically and investment treaties/contracts)

Answer 67

Corporate Responsibility to Respect HR foundational principles - Should language rather than must language. Not an obligation - Negative duties: avoid infringing, address adverse impacts (responsibility to respect) operational principles principle 13 → “the responsibility to respect HRs requires that business enterprises… 1.) Avoid causing/contributing in own operations & address such impacts when they occur - Due diligence - Responsibility of result 2.) Seek to prevent and mitigate violations directly linked to operations via business relationships**, products or services by their business relationships, even if they have not contributed to those impacts. - Due diligence - Responsibility of conduct → *don’t have to guarantee that wont do violations*

Answer 68

Proposals for legally binding instrument (LBI) - HRCouncil Res 26/9 (2014) established open-ended intergovernmental WG (OEIGWG) on a legally binding instrument 3 purposes 1) legal obligation on states & companies (Companies maybe wouldn’t have international obligation but would under domestic law - different from UNGP where we have no duty for states to make due diligence laws) 2) specificity (on what is victim, what is due diligence, what are remedies) 3) Ratchets up duties on companies (art 2 oblig on companies and art 8 can be sued for business abuses of those it has business relations with)

Answer 69

1) more accurate to state of views = does not say that home state has legal duty to protect those over seas against home state corp 2) Some scholars say that home state does have that duty - Arg = IL allows states to regulate their companies' overseas conduct and obligations that IHRL has on state with extraterritorial conduct = duty to regulate - theory also relies on 2 terms of juris (O'Briens)

Answer 70

1) Jurisdiction (IL) (authority of state to regulate conduct/persons) - allowed to regulate on 4/5 basis - 1) Territoriality - 2) Nationals and that harms them when they own companies (taxes) - 3) Protection of state interests (ex: passport fraud) - 4) universality (certain things are so universal, slavery etc) 2) Jurisdiction (IHRL) (connection between the state & the individual to trigger states’ IHRL duties) - Territory - “Jurisdiction” = effective control (Al Skeini, HRC)

Answer 71

- No duty to regulate/protect if not within home state’s territory and/or jrx (territorial or Al Skeini) - IHRL does not create obligations on state to regulate foreign companies *unless comapnies are already in states’ jurisdiction* - State duties only on territory - State only has duties to individuals under IHRL → can’t combine positive duty to regulate (emanating from the UNGPs) and negative duty to respect (emerging from HR treaties like ECHR, ICCPR, etc.) to create new concept of extra territorial jurisdiction

Answer 72

In summary: The duty to protect implies duty to regulate actions of companies that they take in home and abroad - The rationale behind this statement is that when a company has the potential to harm individuals, those individuals fall under the jurisdiction of the company's home state. - According to the UNGP, home states are responsible for protecting individuals from private actors within their jurisdiction. - Therefore, the actions of domestic companies in foreign states expand the jurisdiction of the home states in order to effectively regulate multinational corporations (TNCs).

Answer 73

1 → public international law raises no objection to extraterritorial regulation of TNCs, especially where its aim is to promote respect for human rights 2 → human rights treaties in fact oblige states to undertake such regulation, a consequence flowing from: 3 → 2 implied rules arising under human rights treaties: - 1) that the state’s duty to protect extends to preventing abuses, through regulation, by non-state actors at home, and - 2) that the same duty applies to any extraterritorial scenarios where states may have influence.

Answer 74

1. Threshold to apply (larger companies) - Gross profit threshold for applicable countries 2. Prepare a slavery and human trafficking statement for each financial year of the organization - Approved at high level and public - The actual content = does not require anything, doesn't require to say using due diligence 3. No duty of due diligence

Answer 75

- Employee in the threshold - Solve violations of HRs → broader but not every violation - “Some” business relationship (covers subsidiaries but likely not all) - Substantive mandatory DD with reporting of results - enforcement = Civil liability for harm caused by failure of DD

Answer 76

- Can mandate that individual states require due diligence - Level playing field ARTICLES art 2 scope - covers only companies with certain employee/profit threshold - but lower for high risk industries (ex: agric) art 4-6 content of DD Art. 5(b) – requires internal code of conduct art 7 - Art. 7(2)(b) – contractual assurances requirement (contractual cascading) - Have to make sure you business partner incorp your code of conduct into their work - Art. 7(2)(d) – funds to SME (small companies) partners to meet HREDD obligations - art 7(5): required to refrain from new contracts, suspend existing, where law/contract allows, terminate business relationships. Art. 22 – civil liability - with caveats → e.g. “good faith efforts” to work with SME to address adverse impacts - Paragraph 2: where taken actions, not liable for the actions of the indirect partner, unless unreasonable - Paragraph 3: do take efforts into account.

Answer 77

on jurisdiction - Respect & ensure to all individuals within its territory and subject to its jurisdiction - US interprets the word "and" in a strict sense, meaning both conditions must be met. - However, the rest of the world, including Milanovic, disagrees and believes that "and" can also be interpreted as "or," allowing for either condition to be met. on interference - Art 17 ⇒ Ban on "arbitrary or unlawful" interference with privacy

Answer 78

jurisdiction - Secure to everyone within their jurisdiction - Milanovic on ECHR → 2 possibilities for state to have jurisdiction beyond those in their territory 1. Spatial / territory model 2. Person model (Al Steini) 1. Physical control over someone on interference art 8 = interference prohibited but allowed if specifies that only allowed if in accordance with law and necessary in democratic society for listed goals (ie. Al Skeini, national security etc)

Answer 79

- Through satellites - Land-based interception of radio waves - Attachment of devices to land mines/servers/equiptment - Interception of servers (including sharing of interceptions across multiple states (eg. Five Eyes program with 5 countries sharing server data))

Answer 80

prong 1 collapses into prong 2 and prong 2 covers any extraterritorial action = so made a 3rd model as a solution

Answer 81

main idea = distinguish between negative and positive duties Negative obligations = apply globally = "respect" - only require states to refrain from unjustified interference with individuals' rights. Positive obligations = apply on territorial bases = "ensure" ↑ both flow from ICCPR - “Respect” → globally (negative duty) - “Ensure” → within territory (positive duty) This can be applied to ECHR, bc ECHR - “Secure within jrx” is vague, encompasses respect globally (negative obligation) and ensure territorially (positive obligation)

Answer 82

- According to law? (legality) - Necessary? - Proportionate?

Answer 83

Factors to be according to law: (OCHR says have to have all 4) 1. Public (accessibility) - people need to know when they’re subject to surveillance 2. Tailored to legit aims** 3. Precise (foreseeability) 4. Safeguards (rule of law) OHCHR interprets ECHR and ICCPR as least restrictive means

Answer 84

secret rules and secret interpretations – even secret judicial interpretations – of law do not have the necessary qualities of “law” - Alluding to US here

Answer 85

- After OHCHR’s report, UNGA adopted resolutions by consensus - Resolution is very procedural focused - Why? Procedural matters are less contentious thus can pass by consensus - Paragraphs c, d, & e are procedural innovations that move forward from texts and interpretations of ICCPR and ECHR by addressing oversight mechanisms that provide for goals of foreseeability, rule of law, effective remedy, etc summary - although vague and nonbinding, a step forawrd in regards to procedure and oversight mechanisms and recognizing rights

Answer 86

1) according to law (from ICCPR and ECHR) - Accessibility - Foreseeability & Necessity - 1) grounds for issuing warrant (similar to nature of offense) - 2) selections for interception, - 3) selection for examination 2) Weber safeguards = 6 min req (similar to foreseeability + nec req) - 1) Define nature of offenses - 2) Define categories of people - 3) Limits on duration - 4) Procedure for examining, storing - 5) Precautions for transfer - 6) Circumstances to destroy data added factors from big brother - 7) Arrangements for supervising implementation of secret surveillance measures - independent oversight (not court) - 8) Notification mechanisms, (not req for individual notification) (and does not say exactly what) - 9) Remedies available under national law (unclear how, when)

Answer 87

The case targeted 3 systems of mass surveillance used by UK intelligence services: - bulk interception of communications, - intelligence sharing with foreign governments, and - acquisition of communications data from service providers. The Court concluded that bulk interception, by itself, is not inconsistent with the Convention. However, the UK's regime violated privacy and freedom of expression due to factors like lack of independent oversight and inadequate protection of journalists' communications. - no supervision for data collected & that meta data exception from all safeguards - (oversight is not referring to judicial oversight, that was rejected by court) - However, the Court upheld the compatibility of the UK's intelligence sharing regime with the Convention. - Domestic law, along with IC Code amendments, provides clear procedures for requesting interception or material conveyance from foreign agencies.

Answer 88

- Argued against applying universal standards for domestic and foreign surveillance, emphasizing the unique nature of foreign surveillance. Concerns with ECtHR's Approach: - Raises concerns that the ECtHR, in its effort to legitimize Swedish foreign surveillance, might have skewed the balance too far. - Warns against de facto abandonment of important safeguards and calls for a nuanced rebalancing. - Criticizes the court's analysis as lacking precision, comparing it to an elephant in a china shop rather than a surgeon in an operating room

Answer 89

**Recognizes right to be forgotten** - citing Directive Art 6, erasure required if data inadequate, irrelevant, excessive in relation to legitimate processing - Ct says Gonzalez doesn’t have to show prejudice/harm

Answer 90

did google v spain cover all search versions worldwide? = no, just EU versions BUT states can regulate further under national laws and EU could amend GDPR to extend further

Answer 91

1) HR occupies field of emancipatory possibilities / lost vocabularies 2) HR views the problem and the solution too narrowly 3) HR is limited by its link to western liberalism

Answer 92

1. Problem with critiques is they focus on 1 narrative of HR but not actual practice of HR 2. Idealistic, fact-free critique = no evidence that the practice of HR has made things worse - El Salvador Abortion case - Nevsun - holding private actor accountable - Indigenous People’s cases 3. Divorce from concrete struggles, lacking meaningful alternatives.

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