Big Brother Watch v. the United Kingdom: A Trend Towards Accepting Surveillance Regimes in Europe?

By: Daria Stanculescu, Junior Research Associate, PILPG-NL

On May 25, 2021, the Grand Chamber of the European Court of Human Rights (ECtHR) issued its judgment in the joined cases Big Brother Watch and Others v. the United Kingdom.  In its decision, the Court ruled on the compatibility of mass surveillance systems with Articles 8 and 10 of the European Convention on Human Rights (ECHR).  The Court’s judgment comes at a time where states parties to the ECHR are increasingly making use of mass surveillance regimes in the name of national security.  This blog post will examine the Court’s decision in Big Brother Watch in the context of the apparent shift in Europe towards the general acceptance of surveillance regimes. 

Background of the Case

Big Brother Watch is the first ECtHR judgment that focuses on mass surveillance since Edward Snowden revealed the widespread use of surveillance and intelligence programs by national intelligence services in the United States (US) and the United Kingdom (UK) in 2013.  A combination of NGOs, academics, and journalists lodged the applications in Big Brother Watch between 2013 and 2015.  

The applicants sought to challenge three surveillance regimes of the Government Communications Headquarters (GCHQ) in the UK: the bulk interception of communications, intelligence sharing with foreign governments, and obtaining of communications data from service providers.  The applicants argued that the three systems breached the right to privacy under Article 8 of the ECHR.  Several applicants also argued that the UK violated the right to freedom of expression under Article 10 of the ECHR.  The UK government conversely argued that these regimes were vital for identifying national security threats.  In its decision, the Court found that the bulk interception regimes breached Articles 8 and 10 ECHR.  It similarly found that the regime allowing GCHQ to obtain communications data from service providers breached Articles 8 and 10 ECHR as it was not in accordance with the law.  However, the Court held that receiving intelligence from foreign governments did not violate Article 8 ECHR.  

An interesting aspect of the judgment is that the Court confirmed that bulk interception regimes do not in and of themselves violate Article 8 of the ECHR.  The ECtHR accepted that these systems are “of vital importance” to states parties to the Convention in identifying threats to national security.  Moreover, the Court held that states have a wide margin of appreciation “in choosing how to best achieve the legitimate aim of protecting national security.”  This means that, in principle, the Court considers that these regimes comply with the ECHR, as long as they respect several safeguards set out in the judgment.  For example, the Court held that bulk surveillance mechanisms must be subject to “end-to-end safeguards.”  This means that states should assess the necessity and proportionality of the measures being taken and the bulk interception should be subject to independent authorization.  Furthermore, the operation should be subject to supervision and independent review.  The ECtHR held that the UK’s bulk interception regime did not meet these requirements regarding end-to-end safeguards.

Analysis

The ECtHR’s approach in Big Brother Watch may be seen as a step towards the “normalization of mass surveillance.”  While the ECtHR noted that these systems must meet various safeguards to comply with the Convention, the Court did not question the operation of these systems as a whole. 

This approach of applying less strict standards of scrutiny in data protection cases can also be seen in the jurisprudence of the Court of Justice of the European Union (CJEU).  Initially, this Court took a pro-privacy stance.  In Digital Rights Ireland, the CJEU declared the EU Data Retention Directive void, as it provided for indiscriminate data retention.  Subsequently, in Tele2 Sverige, the CJEU further held that EU member states could not establish indiscriminate data retention regimes.  However, more recently, in La Quadrature du Net, the CJEU has taken a different approach.  In this case, the Court held that, in certain circumstances, EU member states may adopt legislation which provides for indiscriminate data retention.  

The recent judgments of the ECtHR and CJEU in Big Brother Watch and La Quadrature du Net, respectively, can thus be considered more favorable to national surveillance regimes.

However, this approach has not been universally endorsed.  Other international institutions have expressed reservations to this approach.  Importantly, the United Nations Office of the High Commissioner for Human Rights (OHCHR), in a 2014 Report, highlighted that “governmental mass surveillance [is] emerging as a dangerous habit rather than an exceptional measure.”  Furthermore, the Report noted that “the very existence of a mass surveillance program thus creates an interference with the right to privacy.”  More recently, in 2019, the United Nations Special Rapporteur on the freedom of opinion and expression has called for tighter regulation on the use of surveillance technology until states develop frameworks that comply with human rights.  These statements show that the European approach has thus far not been adopted at international level. 

Conclusion

In the context of ECHR states parties’ increasing reliance on mass surveillance systems, the importance of the ECtHR’s judgment in Big Brother Watch can hardly be exaggerated. The Court’s decision is aligned with the approach of the CJEU, which seems to point towards a dialogue between the two courts, both of which have begun to allow surveillance regimes that meet certain safeguards. It remains to be seen whether, in future judgments, the ECtHR and the CJEU will continue this approach or whether these courts will revert to a privacy-oriented approach.

Can the ambitious Escazú Agreement live up to its expectations?

By: Henry Smith, Junior Research Associate, PILPG-NL

The Escazú Agreement, the Regional Agreement on Access to Information, Public Participation and Justice in Environmental Matters in Latin America and the Caribbean, entered into force on April 22, 2021, Earth Day.  The treaty is the first binding instrument on environmental issues adopted in the region, and it is the first treaty ever to include human rights provisions protecting environmental activists.  Although the treaty proclaims an advancement of environmental and human rights protection, few states have ratified it.  This blog will examine how the agreement’s provisions extend the human rights protection of environmentalists and indigenous groups, and whether it can aspire to be effective considering the absence of key states from the treaty. 

The agreement

The Escazú Agreement originated from the 2012 United Nations Conference on Sustainable Development in Rio de Janeiro (Rio+20).  States concluded negotiations on the agreement in March 2018, in Escazú, Costa Rica, under the auspices of the UN Economic Commission for Latin America and the Caribbean (ECLAC).  The objective of the agreement is to implement Principle 10 of the 1992 Rio Declaration on Environment and Development, which provides that states should facilitate access to information and public participation in decision-making related to environmental issues, as well as provide access to effective judicial means of redress for environmental harm.

The two main innovations of the agreement, as noted by commentators, are the provisions that link environmental protection to human rights and the provisions protecting environmentalists.

Human rights and environmental protection

Article 1of the Escazú Agreement recognizes the link between human rights and the protection of the environment.  It explicitly notes that the treaty’s objective is to “contribut[e] to the protection of the right of every person of present and future generations to live in a healthy environment and to sustainable development.”  Furthermore, Article 4 imposes on states the obligation to guarantee the right to a healthy environment and other universally recognized rights related to the agreement. 

The Inter-American Court of Human Rights, in the case of Lhaka Honhat (Nuestra Tierra) v. Argentina, had previously already elevated the right to a healthy environment to a human right.  Its introduction into the agreement represents a codification of the norm’s human right status.  In fact, the agreement goes one step further by extending the human right to a healthy environment to future generations and by including sustainable development as a human right. 

The protection of environmental human rights defenders

Article 9 of the Escazú Agreement provides that states shall guarantee the safety of environmentalists to promote and defend human rights in environmental matters, free from threat, restriction, and insecurity.  Additionally, the provision requires that states recognize, protect, and promote environmentalists’ right to life, integrity, and freedom of expression, assembly, and movement.  Furthermore, it confers upon states the obligation to take effective measures to prevent, investigate, and prosecute attacks and threats to environmentalists.

The objective of these provisions is to impose on states the obligation to combat attacks and threats directed at environmentalists, which have been on the rise in Latin America.  According to a report, more than half of the environmentalists killed worldwide in 2018 were from the region.  At the same time, the lack of effective mechanisms to seek accountability and justice causes many of these cases to go unpunished.

The absence of key states

While the agreement provides promising innovations for the protection of the environment and environmentalists, the lack of ratification by important states might negatively impact its effectiveness.  Of the 24 states that signed the agreement, only 12 have currently ratified it.  The list of states that have not ratified the treaty include Colombia, Brazil, Guatemala, and Honduras.  These are four of the five states with the highest number of environmentalists killed in the region.  In Colombia alone, 64 environmentalists were killed in 2019.  If these states do not ratify the agreement, it will likely produce modest effects, limited to few parts of the Latin American region.

Concluding remarks

The Escazú Agreement recognizes the right to a healthy environment and the right to sustainable development as human rights.  It also establishes binding obligations for states to protect environmentalists from increasing attacks.  These provisions present an encouraging and innovative approach to dealing with the lack of accountability within Latin American states’ domestic legal systems.  However, the ratification of the treaty by the states with the highest rates of attacks on environmentalists, including Colombia, Brazil, Guatemala, and Honduras, might be an important precondition for the treaty’s effectiveness. 

The Role of the ICAO in Maintaining Safe Skies

By: Adam DiSimine, Junior Research Associate, PILPG-NL 

On May 23, 2021, Ryanair Flight 4978 was traveling from Athens, Greece to Vilnius, Lithuania through Belarusian airspace.  Roughly 10 kilometers from the Lithuanian border, Belarusian air traffic control contacted the pilots, warning them about a potential bomb threat on board.  The Belarusian authorities ordered the aircraft to divert to Minsk, the capital of Belarus.  A Belarusian fighter jet scrambled to intercept the passenger jet and forced it to land at the airport.  Upon landing, police arrested Roman Protasevich, a known critic of Belarusian President Alexander Lukashenko, and his girlfriend, Sofia Sapega.  After this arrest, the flight was permitted to continue on to its destination.  

The grounding of the aircraft was quickly met with international condemnation.  United Kingdom Foreign Secretary Dominic Raab called the incident “a grave violation of international law.”  In addition, the European Union banned Belarusian flights from EU airspace, discouraged airlines from flying in the Belarusian airspace, and imposed sanctions on dozens of individuals, including those connected to what it called the “forced and unlawful landing” of Ryanair Flight 4978.  Just a few days after the incident, the United Nations International Civil Aviation Organization (ICAO) announced that it would be conducting an independent fact-finding investigation into the incident.  This piece will examine the role of the ICAO when international aviation incidents occur, what steps have been taken in the Belarusian case thus far, and analyze why such investigations are necessary in maintaining safe skies.

The International Civil Aviation Organization

The ICAO is a specialized agency of the United Nations.  ICAO supports the diplomacy and cooperation in air transport of the 193 signatory states to the 1944 Chicago Convention, the fundamental treaty of international aviation law.  Its primary function is “to maintain an administrative and expert bureaucracy” and “research new air transport policy and standardization innovations.”  Articles 54 and 55 of the Chicago Convention lay out the functions of the ICAO.  The functions include the authority to initiate investigations into “any situation which may appear to present avoidable obstacles to the development of international aviation.”  The ultimate goal of the ICAO and its subsidiary bodies is to ensure safe and efficient air operations across the entire globe.

The Belarus Investigation

In response to the diversion and forced landing of Ryanair Flight 4978, the ICAO Council was quick to express concern over the events that transpired in Belarus.  The ICAO noted that it was of critical importance to develop a clear understanding of the facts of the incident as well as ascertain whether there had been any breaches of international aviation law, including the Chicago Convention.  Pursuant to Article 55(e) of the Chicago Convention, the ICAO Council announced it would be conducting a fact-finding investigation into the incident.  It called on the ICAO Secretariat to prepare an interim report and requested the cooperation of member states and other relevant stakeholders.  

The investigation is still ongoing.  In mid-June, the ICAO provided an update announcing it had submitted official requests for information to several states.  Belarus and Poland had provided some details and requested further information from Greece, Ireland, Lithuania, and Switzerland.  A report is expected to be presented at the ICAO’s Council’s next session in September.

The ICAO’s Role

Notably, the ICAO is not a global regulator of international aviation law: sovereign states are responsible for establishing and enforcing national regulatory requirements.  The ICAO does not have any type of authority or power over member states and thus cannot initiate concrete action in response to violations of international aviation law.  However, the ICAO can decide disputes on the interpretation and application of the Chicago Convention if its members submit such disputes to it following failed negotiations.  These decisions are binding and can be appealed to the International Court of Justice.  As a result, the ICAO plays the role of a facilitator, helping states “conduct any discussions, condemnations, sanctions, etc. they may wish to pursue.”  In addition, the ICAO partakes in neutral activities such as the above mentioned fact-finding investigation.  

International organizations like the ICAO do not have to possess strong enforcement capabilities or authority over member states to be valuable institutions.  In the case of the incident in Belarus, by helping establish the objective facts of the situation, the ICAO may play a critical role in the peaceful resolution of the incident.  The diversion and forced landing of Ryanair Flight 4978 involves numerous states, from nationals on board, to the flag state of the airline (Ireland), to states of departure (Greece) and destination (Lithuania).  In particular, while the state in which the incident took place is often responsible for conducting the investigation, this is problematic as Belarus is “the prime suspect in this case.”  As a result, the ICAO can serve as an objective investigator to help states, and the general public, distill the circumstances that led to the incident and identify potential legal implications.  While resolution of the matter still rests with states, the contributions of the ICAO to helping reach a resolution include establishing the facts of the case and, if requested, hearing a case on the interpretation and application of the Chicago Convention.

Conclusion

International aviation law is one of the great success stories of international cooperation.  It is an international regime that allows over 4 billion passengers to travel globally each year.  The diversion and forced landing of Ryanair Flight 4978 was a “serious incident” that required an international response.  Such incidents may threaten the stability of this system.  The role of the ICAO in helping establish a clear record of facts and in providing frameworks to help states resolve any resulting disputes from this incident may play a key role in maintaining the integrity of international aviation law.  

The World Athletics DSD Regulations and their Human Rights Implications

By: Katherine Grzadkowska, Junior Research Associate, PILPG-NL

Two young Namibian track and field athletes have recently had their hopes of competing in one of the events at the 2020 Tokyo Olympics shattered.  After achieving exceptional results in 400-meter races, 18-year-olds Christine Mboma and Beatrice Masilingi underwent hormone testing conducted by World Athletics (WA, formerly the IAAF).  The tests revealed that both athletes had high levels of naturally occurring testosterone which, according to the WA’s Eligibility Regulations for the Female Classification (Athletes with Differences of Sex Development) (the DSD Regulations), makes them ineligible to compete in international women’s short track events. 

Three years ago, South African runner and two-time Olympic champion, Caster Semenya, unsuccessfully challenged the DSD Regulations at the Court of Arbitration for Sport and the Swiss Federal Supreme Court.  Semenya has now taken her case to the European Court of Human Rights (ECtHR) challenging the DSD Regulations on human rights grounds under Articles 3, 6, 8, 13, and 14 of the European Convention on Human Rights (ECHR). 

This blog post will examine the DSD Regulations’ human rights ramifications concerning the right to private and family life and the prohibition on discrimination under Articles 8 and 14 of the ECHR respectively.

The Regulations and their Justifications 

WA is the official governing institution for all international track, field, and athletics competitions.  It is also responsible for all aspects concerning athletes’ eligibility to participate in worldwide sporting events, such as the Olympics.  As such, the DSD Regulations address the eligibility of female runners with differences in sexual development (DSDs).  According to the Regulations, there “is a broad medical and scientific consensus, […] that the high levels of endogenous testosterone circulating in athletes with certain DSDs can significantly enhance their sporting performance” in distance events between 400 meters and 1 mile.  Hence, WA established a maximum threshold of circulating testosterone “to ensure fair and meaningful competition in the sport of athletics.”  Where it has “reasonable grounds” to believe that a female athlete may have DSDs, the Regulations authorize WA to investigate and conduct mandatory medical tests.  If found to have elevated levels of testosterone, the athlete is prohibited from competing in women’s events unless she undergoes at least six months of medical hormone treatment and continuously keeps her testosterones at permissible levels thereafter.  

The Regulations’ Human Rights Implications 

Aside from the fact that there is conflicting science concerning the actual advantage that women with high levels of testosterone have in running events, WA’s Regulations are controversial from a human rights perspective.  In 2020, the UN Human Rights Council (HRC) published a Report on the Intersection of Race and Discrimination in Sports, which identified that the DSD Regulations jeopardized specific human rights.  These rights included the “right to respect for dignity, bodily integrity and bodily autonomy of the person” as well as the “right to sexual and reproductive health.”  Such principles are encompassed under Article 8 of the ECHR, which concerns the right to private and family life.  

The ECtHR has held that Article 8 includes the protection of individuals’ bodily integrity.  Because all medical procedures, even seemingly minor ones such as tests and exams, are by their nature invasive of bodily integrity, the Council of Europe requires that all patients provide free and informed consent.  Since the DSD Regulations allow WA to order periodic blood tests and medical evaluations by panels of experts, female athletes should freely and knowingly consent to these procedures.  Nevertheless, while WA does not formally require athletes to undergo such testing, they may give women little choice if they wish to continue competing.  

Furthermore, there are significant power imbalances between WA and athletes who rely on the organization’s acceptance to compete in international events, especially for women who are economically dependent on their athletic careers.  This is especially relevant for female athletes of color from the global south who may lack the political capital to challenge decisions made by international sporting associations.  Lastly, women who comply with the DSD Regulations and submit to testosterone-reducing medical treatments may unknowingly jeopardize their reproductive health and ability to have children.  Since Article 8 also encompasses an individual’s decision to become a parent, the DSD Regulations may have far-reaching implications on female athletes’ family rights. 

While they may prima facie infringe Article 8 of the ECHR, the DSD Regulations may nevertheless be justified if they serve a legitimate aim and if the measures are proportionate in achieving that aim.  As described above, the chief aim of WA’s Regulations is to ensure fairness in international women’s short track competitions.  The ECtHR has held that actions taken by sporting associations, such as medical testing to uncover doping, are legitimate and proportionate measures in achieving  “equal and meaningful competition in sports.”  However, unlike addressing deliberate cheating, the DSD Regulations allow WA to monitor female athletes’ blood levels and place significant restrictions in response to naturally occurring hormone levels whose effects on sports performance remain inconclusive.  Due to these nuances and to the human rights at stake, the ECtHR will be adjudicating a rather unique issue concerning international sports in the case of Caster Semenya.

Moreover, while all athletes have to submit to anti-doping tests, only female runners are subject to the DSD Regulations.  This means that the DSD Regulations may also contravene Article 14 of the ECHR, which prohibits discrimination on the basis of sex and other statuses, including medical conditions.  The ECtHR has held that differences in treatment between males and females can only be justified in light of “very weighty reasons.”  In this case, female runners with high levels of testosterone are subject to specific testosterone thresholds, medical tests, and hormonal treatments over extended periods of time, while no such equivalent rules are applied to male athletes.

Conclusion 

The Olympic Charter provides that the “practice of sport is a human right [and] [e]very individual must have the possibility of practicing sport without discrimination of any kind.”  While ensuring fair play in sports is a laudable goal, the DSD Regulations may encroach too far on this principle of non-discrimination by subjecting female athletes to a specific set of rules on account of their sex and natural biological conditions.  These rules may also jeopardize their rights to their personal bodily integrity and family life as articulated under Article 8 of the ECHR.  Semenya’s case at the ECtHR may provide more clarity on the intersectionality of health, sports, and human rights law.  As for Mboma and Masilingi, both athletes achieved noteworthy results in the women's 200m race in Tokyo, with Mbona taking the podium with the silver medal in the event. 

The Bangladesh Accord: Unfinished Business?

By: Daria Stanculescu, Junior Research Associate, PILPG-NL

On April 24, 2013, the Rana Plaza factory building, which housed five garment factories, collapsed.  More than 1,100 people died in the incident and many others were critically injured.  The International Labour Organization (ILO) has described the Rana Plaza collapse as one of the worst industrial accidents on record.  This incident highlighted the deficient conditions of the ready-made garment sector in Bangladesh.  

A few weeks after the incident, global brands, retailers, and trade unions adopted the Accord on Fire and Building Safety in Bangladesh (the Bangladesh Accord), the first modern legally binding agreement of its kind.  The Bangladesh Accord’s term was meant to end on June 1, 2021, when the Ready-Made-Garment (RMG) Sustainability Council (RSC) would replace it.  Instead, the Accord’s term was extended by three months as trade unions threatened to leave the RSC, which they considered to be less effective than the Bangladesh Accord.  This blog post will examine if the RSC is a suitable replacement for the Bangladesh Accord or whether a more adequate solution can result from the ongoing negotiations.

The Achievements of the Bangladesh Accord

The Bangladesh Accord, signed on May 13, 2013, rendered it mandatory for brands and retailers to ensure that workers in the garment industry carry out their work in safe conditions.  It includes obligations for companies to open their supplier factories to independent inspections, to allow the results of these inspections to be reported publicly, and to help pay for essential safety renovations.  The Bangladesh Accord also provides a complaint mechanism, through which workers can anonymously report potential violations at factories, as well as an enforcement mechanism for workers to bring legal action against signatories.  A Steering Committee with equal representation of trade unions and signatory companies governs the Bangladesh Accord and the ILO provides a neutral chair to the Steering Committee. 

Originally, the Bangladesh Accord’s term expired in 2018, but the parties extended it until 2021 through a Transition Accord to ensure that the collaboration between companies and unions would continue.  Since 2013, over 200 brands and retailers have signed the Bangladesh Accord.  As a result, inspections and monitoring have been carried out in 2,000 factories.  Also, over two million workers have gone through health and safety training.  This has significantly improved the working conditions in the garment industry and has increased the protection of workers in factories across Bangladesh.  

The RMG Sustainability Council 

The RSC, the envisaged successor of the Bangladesh Accord, is a national monitoring compliance system.  The Bangladesh Accord’s Steering Committee and the Bangladesh Garment Manufacturers Employers’ Association (BGMEA) created the RSC through a Memorandum of Understanding (MoU).  Its main goal is to continue the work of the Bangladesh Accord while maintaining the same transparency levels.  

The question that arises is whether the RSC is an effective successor of the Bangladesh Accord.  The MoU does not provide clarity on the institution’s decision-making and finance mechanisms.  The RSC also lacks the enforcement mechanism necessary to ensure that brands and retailers meet their obligations.  Furthermore, in the RSC, trade unions would hold only one-third of the governance seats, instead of half.  This would significantly limit the powers of trade unions and essentially create a system of self-monitoring by companies.  Most importantly, the RSC deal does not include binding commitments.  As such, this mechanism relies on brands and retailers voluntarily complying with their commitments.  These are significant changes compared to the Bangladesh Accord.  The RSC has abandoned the core elements of the Bangladesh Accord which made it efficient and enforceable.  In its current form, the RSC does not appear as effective as the Bangladesh Accord in ensuring the protection of workers’ rights.

Conclusion

The parties have temporarily extended the Bangladesh Accord, while trade unions and retailers come to an agreement.  It is uncertain what will happen next.  While trade unions insist on a binding agreement, brands argue for abandoning key elements of the Bangladesh Accord, such as independent monitoring.  It remains to be seen what the results of the negotiations will be and whether or not the parties will reach an agreement within three months.  An effective agreement will ensure the continued protection of workers in the garment industry.  Mechanisms such as the RSC, however, raise problems of enforcement and limit the powers of trade unions.  Therefore, they fail to consider the core elements that made the Bangladesh Accord effective.