Can US technology companies continue to operate in the European Union? A reflection on the Irish Data Protection Commission's preliminary decision

By: Guillermo Ferrer Hernáez, Junior Research Associate, PILPG-NL

In its mission to protect the rights of its citizens, the European Union (EU) adopted a far-reaching piece of data legislation, the General Data Protection Regulation (GDPR), which sets new standards for protecting the data of EU citizens. This piece of legislation, claimed to be the most robust privacy policy globally, allows EU citizens and individuals living in the EU and the European Economic Area territory to limit the collection of their personal information and control which information is shared with companies. GDPR guidelines require that the state receiving the data offers the same level of protection as the state from which the data is collected. Since the GDPR’s adoption, the Court of Justice of the European Union (CJEU) has ruled on the incompatibility of certain business practices regarding data transfers, including transfers between the US and the EU and the use of Standard Contractual Clauses.  

The battle to protect European citizens' rights during data transfers will lead to further significant developments, with the EU as the leading actor, in the upcoming months. This blog will discuss the consequences of the current GDPR and the Irish Data Protection Commission’s (IDPC) preliminary decision for the future of technology companies in the EU.

The Schrems II case

In July 2020, the CJEU issued its judgment in the Schrems II case, through which it invalidated the existing data transfer arrangement between the US and EU, known as the Privacy Shield, on the grounds that the EU could not ascertain that the data of EU citizens would be safe from US government surveillance once this data is transferred to US data collection centers. Under US laws, personal data protection may be subjected to controls to the extent necessary to meet national security, public interest, or law enforcement requirements. The CJEU found that US mass surveillance infringes several rights recognized under the Charter of Fundamental Rights of the European Union (CFR), such as the protection of personal data identified under Article 8. Therefore, the CJEU, in July 2020, concluded that the Privacy Shield agreement could not be used for the transfer of data. 

The use of Standard Contractual Clauses

Since the CJEU's verdict, several US technology companies have relied on a different legal mechanism, known as "Standard Contractual Clauses" (SCCs) to transfer EU users' data to the US. These mechanisms are pre-approved terms and conditions for extraterritorial data transfers published by the EU Commission and include several guidelines provided in the GDPR. Even if SCCs are considered to be compliant with the GDPR, technology companies are now required to verify on a case-by-case basis if the personal data transferred through with the use of these SCCs will be adequately protected in the destination state. According to the CJEU’s verdict, these companies now have the obligation of  ensuring that the data protection law of the destination state offers a similar level of protection as established within the GDPR. The need for this additional control emerged after the CJEU found that supervisory authorities of third states are not bound by these contractual clauses. This requirement has primarily limited the action of technology companies; moreover, a future decision by the IDPC could restrict even more their activities, even putting them to an end.

IDPC's preliminary decision

A month after the Schrems II judgment, the IDPC, the EU's leading regulator of technology companies, preliminarily concluded that Meta Platforms Ireland's use of SCCs violates the GDPR's provisions and proposed that these transfers of user data be suspended. According to the IDPC, the US does not grant any rights to EU data subjects before the courts against US authorities, directly violating the right to an effective remedy under Article 47 of the CFR.

The IDPC gave Meta until March 22, 2022, to respond to its preliminary decision and will issue its final decision in the first half of 2022. If the IDPC ultimately decides that the use of SCCs does not comply with the GDPR, this would eliminate any transfer of data between EU and US companies, leaving technology companies no other option than to withdraw their services from the EU. In light of this possibility, the EU Commission and the US Government started negotiations to replace the former Privacy Shield agreement in line with the CJEU's verdict.

The future of the technology companies in the EU

The European Union's institutions plan to adopt several pieces of legislation in the upcoming year, such as the Digital Markets Act, to limit the power of technology companies and protect the fundamental rights of EU citizens. On March 25, 2022 the EU Commission President announced the EU's “agreement in principle” on a data transfer deal with the US. While this “agreement in principle” is, in fact, a preliminary agreement, all indications are that the final deal will align with the new legislation. Furthermore, the EU has already noted that the final agreement will be in line with the CJEU case law on data transfers, requiring any third state to provide a minimum level of data protection. The fact that the IDPC may override the use of SCCs has also contributed to the content of this future agreement, including the possibility for European citizens to go to US courts if US companies violate their privacy rights under EU law. A new movement to stricter regulation on privacy issues seems to be underway, leaving a narrower space for technology companies to operate without any limits.

Justice Has No Expiry Date - The Case of the Maya Achi Women in Guatemala

By: Lilian Srour, Junior Research Associate, PILPG-NL

 Guatemala’s recent history, and specifically the period between 1960 and 1996, is marked by a long and violent internal armed conflict, within which the rights of the indigenous Mayan population have systematically been violated. The Historical Clarification Commission was established in 1994 to determine the human rights violations that took place during the war and to clarify the history of the events that ensued. It concluded that 80% of the casualties of the conflict belonged to indigenous communities and 93% of the acts were attributable to the authorities. 

Recently, on January 24, 2022, a High Risk Court in Guatemala sentenced five ex-paramilitary Civil Self-Defense Patrols to 30 years in prison each for the commission of crimes against humanity in the form of sexual violence against the Maya Achi indigenous women in the early 1980s.  This short piece considers how elements of the case align with the aims of international and regional human rights law frameworks, as well as the UN Declaration on the Rights of Indigenous Peoples (UNDRIP). While non-binding, the UNDRIP is considered the most comprehensive instrument outlining the rights of indigenous peoples in international law, setting minimum standards for the recognition, promotion, and protection of these rights. 

The right of access to justice 

 The right of access to justice and an effective remedy for human rights violations is enshrined in numerous instruments under international law, such as Article 2(3) of the International Covenant on Civil and Political Rights (ICCPR) and Article 8 of the Universal Declaration of Human Rights (UDHR). This right requires that perpetrators be brought to justice whilst also providing appropriate reparations for victims. Article 40 of the UNDRIP affirms the right of indigenous peoples to access justice, namely through “access to and prompt decision through just and fair procedures […] as well as to effective remedies for all infringements of their individual and collective rights.” As noted in a study by the Expert Mechanism on the Rights of Indigenous Peoples, elements of access to justice necessarily “include the right to an effective remedy, procedural fairness, and the need for States to take positive measures to enable access to justice.” At the regional level, the Inter-American Court of Human Rights has reaffirmed the obligation of governments to guarantee the right to judicial protection of indigenous peoples and to consider the particularities of their economic and social characteristics, as well as their special vulnerability and their values and customs.

Persevering in the fight for justice

 Despite the legal framework and previous efforts, the United Nations Assistant Secretary-General for Human Rights has commented that indigenous peoples continue to face structural racism and social exclusion, arguably undermining their fundamental rights, including the right of access to justice. In this environment, the Maya Achi women overcame many barriers to access justice, including economic barriers, discrimination, a lack of adequate protection, and delays in the administration of justice. When the case was first filed, the assistant prosecutor questioned the credibility of the survivors, asking why they chose to come forward 40 years later, ultimately expressing that these cases should not be investigated. Furthermore, when the plaintiffs successfully petitioned the pre-trial judge to hear their testimonies and admit them as evidence in 2016, this was done in a manner that has been described as traumatizing for the victims. This is because they were far from home and their communities in Guatemala City, an unfamiliar environment, where they were held alone in a room for hours prior to giving testimony. These circumstances do not consider the particular vulnerability of indigenous peoples and the economic barriers incurred due to traveling costs.

Another development hindering access to justice ensued when Judge Dominguez dismissed the central evidence that identified the perpetrators – the testimonies of the women – based on what has been described as a technicality. She noted that the document within which the victims’ lawyers requested permission to interview the women in the offices of a law firm in Rabinal, rather than the office of the Attorney General, was dated after the women had given their testimonies. Judge Dominguez also pointed to the Attorney General for not taking the women’s testimonies at their offices, even though it is common practice for prosecutors to take testimony in places they deem appropriate. The victims’ lawyer, Haydeé Valey, explained that the women were afraid to be seen going into the Attorney General’s Office in Rabinal and emphasized that the steps taken were to protect witnesses from reprisals and revictimization. Notwithstanding, those detained were released, and it was not long before they went on to threaten the women. In terms of an effective remedy and the protection of the victims, these developments do not consider their special vulnerability, and do not further their right to effective access to justice and appropriate remedies and protections. 

The plaintiffs successfully moved to recuse the judge, whom they accused of displaying anti-indigenous bias. The recusal motion noted that the decision to dismiss the charges against the accused was arbitrary and left the victims in vulnerable circumstances because their aggressors were set free without taking any safety measures to protect the women from reprisals. Ultimately, the  case was assigned to Judge Miguel Ángel Gálvez of High Risk Court B and the trial began on January 5, 2022, leading to the conviction of the accused several weeks later.

Conclusion

 This case highlights two notions. First, that justice has no expiry date. In other words, the courts remain a venue for the conviction of perpetrators of international crimes, even if several decades have passed. Second, this case represents the importance of effective access to justice for indigenous peoples, especially those affected by the internal conflict in Guatemala. As the Special Rapporteur has previously noted, the disregard for the adverse impact of violations perpetrated against indigenous women negatively affects their efforts to fight for their rights and further contributes to cyclical negative patterns that perpetuate further violations against them. This also undermines the goals of the UNDRIP, and human rights law more generally, which requires that indigenous peoples are to be treated equally and should be protected. This is particularly the case because, as emphasized by the Special Rapporteur, justice is an essential component of truth, reparation and reconciliation processes.

Whilst this trial has been said to deliver “incomplete justice,” this case and the perseverance of the plaintiffs and their representatives has been welcomed by many. Commentators have specifically emphasized the importance of securing the rights of indigenous peoples and facilitating access to justice, to allow for the respect of their fundamental rights.

Who is Going to Take Out the Trash? - Addressing Space Debris under International Law

By: Lilian Srour, Junior Research Associate, PILPG-NL

Since the first satellite, Sputnik 1, entered interplanetary space in 1957, the Space Age has allowed for remarkable scientific progress and discovery. However, more recent space activities have generated widespread condemnation and shed light on challenges that remain to be addressed in the legal framework governing these endeavors. For instance, on November 15, 2021, Russia launched a direct-ascent anti-satellite (DA-ASAT) test to destroy one of its own defunct satellites. This drew condemnation from the international community because of the uncontrollable space debris that it created, which threatens to endanger space objects and human spaceflight for years ahead. The Russian ASAT test is not the first activity of its kind  –  China and India have launched ASAT tests in 2007 and 2019 respectively, both of which have increased the risk of collision with other spacecrafts and added to the growing problem of space debris.  

Space debris

Space debris, also known as “space junk” or “space garbage”, refers to all non-functional man-made objects, including fragments and elements thereof, in Earth orbit or re-entering the atmosphere. Space debris is dangerous for space activities for several reasons. For instance, space debris travels at a high speed in orbit,  leading to the possibility of destroying or damaging satellites, even with the smallest pieces, with which they may collide.  Furthermore, space debris can remain in high altitudes for years, accumulating and growing in size. This growth increases the risk of colliding with other satellites and it also affects the overall accessibility to space. 

Even though space debris has already been an area of concern since the 1960s, humanity finds itself facing the consequences of not having mitigated the matter further. Researchers have expressed that if we do not address the growing issue of space debris appropriately, “we will reach a point of no return.” With this in mind, what laws address this topical matter? 

The legal framework

The  UN Committee on the Peaceful Uses of Outer Space (UNCOPUOS) was created by the General Assembly to review international cooperation in the peaceful uses of outer space, to study activities that could be carried out by the UN regarding space, to encourage space research programs and to study legal problems arising from space related conduct.  The term “space law” is most often associated with the rules, principles, and standards of international law, included in the five international treaties and five sets of principles governing outer space, developed under the auspices of the United Nations (UN). These treaties are complemented by several bilateral and multilateral agreements concluded outside the UN and the domestic laws adopted on outer space. Of these treaties, the 1967 Outer Space Treaty (OST) is still very relevant today, and often considered a constitution by space lawyers, in the sense that all international and national advancements on space activities should be measured against this standard. 

While space debris is not explicitly mentioned in any space law treaty, Article IX OST requires states to conduct their outer space activities “with due regard to the corresponding interests of all other States Parties.” In this pursuit, states shall be guided by the principles of cooperation and mutual assistance. Regarding potentially harmful activities by states, the OST stipulates that harmful contamination of outer space shall be avoided, and that when activities could be harmful, prior international consultations should be undertaken before proceeding with any activity.  Nevertheless,  these provisions do not explicitly prohibit the creation of space debris, nor do they impose an obligation on states to remove space objects. 

Opportunities to develop an approach

Despite efforts to mitigate the amount of space debris generated, these have not provided a sustainable solution. The recent Russian ASAT test underlines the need for a clear legal framework that regulates the conduct of states in space. Accordingly, scientists have long expressed the need to prioritize the development of additional measures to the current framework for the protection of the space environment, which include a prohibition on the use of destructive ASAT tests.    

Scholars and practitioners have presented different arguments on how to address the matter of space debris. On the one hand, it has been suggested that a new treaty needs to be created to regulate space activities and space debris. On the other hand, scholars have held that such a treaty is not necessary, suggesting that the current framework provides for a legal basis to tackle the growing space debris, adding that new non-binding instruments could help guide states in their space activities. 

At present, space faring powers have shown reluctance to agreeing to new legally binding instruments. Thus, to encourage uniform state practice, the current legal framework’s enforceability and implementation ought to be revisited to ensure that we begin remedying the consequences of space debris. For instance, in discussions going forward, space debris could be further addressed through the current framework by considering Article IX OST as the basis for environmental protection. Furthermore, soft law instruments issued by UNCOPUOS, such as the space debris mitigation guidelines need to be taken into account when planning future space endeavors. Regarding the recent use of destructive ASAT tests, it has been suggested that states could make a claim that Russia did not conduct international consultations as required under the OST prior to carrying out the activity. This provides an opportunity for states to develop practice on addressing the issue of space debris and regulating the conduct of states in space through addressing the use of ASAT tests in view of the current framework.

The future of LGBTQIA+ rights in Hungary: A challenge for the European Union project

By: Guillermo Ferrer Hernáez, Junior Research Associate, PILPG-NL

Global efforts to secure the human rights of LGBTQIA+ individuals are on the rise. In recent decades, authorities have passed laws to guarantee their protection from abuse, discrimination, and persecution. Despite these advances, LGTBQIA+ members of some Eastern European states are concerned about the regression of their rights.

For instance, on June 23, 2021, the Hungarian government implemented amendments to Act LXXIX, the legislation on public education, to supposedly protect children from “gender ideology.” This legislative proposal prompted the European Commission to open an infringement case against Hungary in July 2021, as it claims that these changes violate the fundamental rights of LGBTQIA+ people, such as the rights to freedom of expression and non-discrimination as guaranteed under the EU Charter of Fundamental Rights, along with other violations of EU law, such as of Article 2 of the Treaty on European Union, which lays down the foundational values of the EU.

This blog will examine the compatibility of these amendments with European human rights standards, considering the opinion of the Council of Europe Venice Commission issued in December 2021. In addition, the article will assess whether Hungary may be violating fundamental European Union (EU) values and whether the EU will consider taking further action.

The Venice Commission’s report

The Venice Commission, an advisory body of the Council of Europe composed of independent experts in the field of constitutional law, assessed the compatibility of these amendments with human rights standards, considering the substantive and procedural aspects of domestic law.

While this body is not part of the EU, EU institutions consider its opinions when the EU discusses its efforts to safeguard and protect the rule of law. In this regard, the European Commission has long been reiterating its serious concerns about amendments to Hungarian law, using the reports of the Venice Commission as a basis.

Background to the amendments

The Fundamental Law of Hungary, the 2011 Hungarian Constitution, inspired the creation of these new amendments. The new Article XVI(1) of the Fundamental Law, adopted in the Ninth Amendment, establishes that Hungary needs to protect the right of children to self-identity corresponding with their sex at birth, and must ensure an upbringing for them that is in accordance with the values based on the constitutional identity and Christian culture of Hungary. 

The Venice Commission expressed its concern about protecting Hungarian values as expressed in the Hungarian Constitution to the detriment of human rights, recognizing that under Articles 8 and 14 of the European Convention on Human Rights (ECHR), these provisions may result in discrimination based on sexual orientation and gender identity, thereby violating applicable international human rights norms. Nevertheless, the Hungarian government did not consider any of the Commission’s findings.

Procedural and substantive criticisms of the amendments 

The Venice Commission’s findings are based on both procedural and substantive elements of the legislation and its adoption. It found that the Hungarian legislation titled “Act on taking more severe action against paedophile offenders and amending certain Acts for the protection of children” denotes a negative connotation of sexual orientation and gender identity by suggesting that homosexuality could be equated with paedophilia. The Hungarian Ministry of Justice argues that the inclusion of both topics was simply a matter of law-making technique, disregarding the Venice Commission’s opinion. 

Moreover, the Venice Commission highlighted that these amendments directly affect the right to freedom of expression of individuals who might want to express their sexual or gender identity. The right to freedom of expression, safeguarded under Article 10 ECHR, establishes that anyone is entitled to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. States may impose restrictions on this right if the three cumulative conditions are met: the restriction is prescribed by law, legitimate, and proportional. These constitutional experts argued that, in this case, these conditions are not met.

The Hungarian amendments include limitations on educating children with content aimed at propagating divergence from self-identity corresponding to sex at birth, sex change, or homosexuality. The Venice Commission noted that authorities might be tempted to use the notion of public education to promote a single philosophy of life. However, Article 2 of Protocol nº1 to the ECHR grants parents the right to educate their children in conformity with their convictions, which include tolerance and respect to the LGBTQIA+ community. There should not be any discrimination in the enjoyment of this right, as underlined under  Article 14 ECHR. Therefore, the Commission further noted that governments must ensure a pluralist curriculum that avoids indoctrination and the freedom of parents to choose their children's education

Violations of EU law

On July 8, 2021, the European Parliament, considering the opinions of the Venice Commission, implemented a resolution condemning the terms of this law and stating that the different Hungarian provisions violate fundamental rights under the Charter and the Treaties and EU internal market legislation. In addition, the European Parliament expressed that violations of the human rights of LGBTQIA+ individuals should be considered as a systematic violation of Article 2 of the TEU.

In December 2021, the European Commission sent a reasoned opinion to the Hungarian government demanding that these new amendments be changed to bring Hungary in compliance with EU law. Therefore, if Hungary does not remedy the breaches by February 2022, the EU will likely take further legal actions against Hungary.

Given Hungary's dismissals of previous criticisms by the Venice Commission and EU institutions, the EU has decided to take a cross-cutting strategy to bring the Hungarian authorities into compliance with European treaties and regulations. If the Hungarian government fails to address these concerns, the European Commission could send the case to the Court of Justice of the EU based on the infringement of EU law. The CJEU could then rule whether Hungary must annul or amend the law, imposing a financial penalty up to 100,000 euros per day if Budapest does not comply. In addition, the EU could propose freezing EU structural funds including Covid-19 bailouts.

Conclusion 

The common basis of the EU is the rule of law, on which all of Europe's advantages, such as open borders and freedom of movement and residence, are based. This implies that European citizens should be able to rely on governments that respect democratic principles, human rights, and EU laws. As seen in this post, various EU institutions, drawing on the work of the Venice Commission, have held that Hungary’s legislative changes in the field of LGBTQIA+ rights do not provide these assurances to its citizens. Their next steps will therefore seek to bring Hungary into compliance, protect the dignity and human rights of LGBTQIA+ individuals, and safeguard the viability of the EU project more generally.

February 2022

Monthly News Updates: Domestic Prosecution of International Crimes – February 2022

By: Pauline Pfaff, Junior Research Associate, PILPG-NL 

February saw  developments in the domestic prosecution of international crimes, for example in relation to crimes committed during the Dutch colonial past and civil wars in the Americas. The following post provides an overview of the key developments in the domestic prosecution of international crimes worldwide.

EUROPE

Netherlands | Trial against Afghan-Dutch national for war crimes in Afghanistan closes

The District Court of The Hague closed the trial against Abdul Razzaq Rafief for war crimes committed in the 1980s. Rafief has Afghan-Dutch dual citizenship and was tried under the principle of universal jurisdiction. The 76-year old allegedly oversaw, as a top commander, the abuse and torture of prisoners at the Pul-e-Charkhi prison in Kabul. The prosecution requested a 12-year prison sentence for Rafief. The judges will deliver their decision on April 14, 2022. [February 22, 2022]  

Netherlands | Prime Minister Rutte apologizes to Indonesia for war crimes during war of independence 1945-1949

Dutch Prime Minister Mark Rutte officially apologized to Indonesia and its citizens for the Dutch army’s excessive use of force during the 1945-1949 Indonesian war of independence. The apology follows an extensive historical review undertaken by three historical research institutes that contradicted the long-held official view that Dutch troops only sporadically engaged in violence to retain control of its former colony. [February 17, 2022]

France | Court of Cassation closes investigation into 1994 crash of the Rwandan presidential plane

The French Court of Cassation officially terminated the probe into the crash of the Rwandan presidential plane . Then-president of Rwanda, Juvenal Habyarimana, and Burundian President Cyprien Ntaryamira died in the crash on April 6, 1994. The incident played a crucial role in the onset of the Rwandan genocide. Families of the French flight crew first brought the case to a French court in 1998. [February 16, 2022]

Bosnia and Herzegovina | Court charges nine former Bosnian Serb Fighters with crimes against humanity

The Bosnian state court confirmed charges of crimes against humanity against nine former Bosnian Serb soldiers and policemen. The defendants allegedly participated in a mass killing in the village of Zijemlje in 1992. During the attack, approximately 100 Bosniaks died, including several children. [February 9, 2022]

France | National Assembly adopts bill to allow extraterritorial jurisdiction over international crimes in Syrian war

The French National Assembly passed a bill which allows for judicial cooperation with the United Nations International, Impartial and Independent Mechanism (IIIM) for Syria. The government is also prepared to propose legislation enabling French courts to prosecute individuals for international crimes which took place in Syria. The Senate’s approval on the initial bill is pending. [February 9, 2022]

Germany | Court charges woman with war crimes against Yazidis

A court in Frankfurt charged German national Jalda A. with crimes against humanity, war crimes, and aiding and abetting genocide. The woman allegedly traveled to Syria in 2014 to marry an ISIS fighter. The couple allegedly enslaved and abused a Yazidi individual. [February 9, 2022]

Netherlands | Court sets aside amnesty considerations in Suriname war crimes case

A court in The Hague prolonged the pre-trial detention of 55-year old Dutch former army member Abdoel L. The defendant allegedly perpetrated war crimes during the Suriname civil war in 1987. The charges include the murder of several individuals.  In its decision, the court rejected the defendant’s claim of amnesty under Surinamese law. It argued that in exceptional cases Dutch courts may forego foreign amnesty and that the severity of the alleged crimes warrants such an exception. [February 7, 2022]

Switzerland | Attorney General ready to try Algerian general for war crimes and crimes against humanity

Following more than 10 years of investigations, the Swiss Office of the Attorney General completed its preliminary hearings in the case against General Khaled Nezzar. The case may now proceed to trial before the Federal Criminal Court. Nezzar allegedly committed war crimes and crimes against humanity during the onset of the Algerian civil war. At the time, he was a leader of the military junta and Minister of Defense. [February 8, 2022]

THE AMERICAS

El Salvador | Forensic experts exhume remains of at least 16 victims of El Mozote Massacre

A team of forensic experts exhumed two mass graves in the northeast of El Salvador. They found the remains of at least 16 victims, mainly children, and are working on identifying them based on DNA analysis. The individuals are likely the victims of a massacre committed around El Mozote by El Salvadorian soldiers during the 1980-1992 civil war.  [February 14, 2022]

Guatemala | Authorities detain nine former soldiers and militia members suspected of participation in 1982 massacre

Guatemalan prosecutors announced that nine former soldiers and militia members  suspected of crimes against humanity are in detention. The individuals allegedly participated in the massacre of 25 civilians in the village of Pacoj on June 29, 1982. The incident took place during the 1960-1996 Guatemalan civil war. [February 2, 2022]

United States of America | Department of Justice rejects use of testimony given under torture in Guantánamo Trials

The US Department of Justice rejected the use of statements given during C.I.A. interrogations before the military commission trying Guantánamo Bay detainees. C.I.A interrogation techniques reportedly included torture. The statement clearly negates retired chief prosecutor Brigadier General Mark S. Martin’s proposed interpretation that, under certain circumstances, such testimony may be used in pretrial proceedings. [February 1, 2022]