Hitting the Pause Button on the EU Project?
What is at stake in these elections.
Articles for category: English Articles
Towards Planetary Boundaries for Business?
While the material scope of the EU’s Corporate Sustainability Due Diligence Directive (CSDDD) fell behind civil society demands, it does mandate a degree of environmental due diligence that constitutes a tentative shift towards real corporate environmental accountability. Despite its conceptual restrictions, which are the result of a somewhat polarised legislative process, the CSDDD’s environmental annex provides a provision with potential for the protection of biological diversity: the reference to the Convention on Biological Diversity.
More than a Sink
The difference between treating the oceans as a mere sink versus protecting them as a vital part of the environment has important implications under international law. These implications come to the fore when considering the relationship between the UNCLOS on the one hand and the UNFCCC and its Paris Agreement on the other. While the latter treaties in no way legitimize pollution of the marine environment, their focus on oceans as sinks could be misinterpreted to deprive UNCLOS and the customary rules it codifies of a meaningful role in addressing climate change.
Why Climate Science Matters for International Law
The International Tribunal for the Law of the Sea (ITLOS) issued an advisory opinion on May 21, 2024 in response to a request submitted by the Commission of Small Island States on Climate Change and International Law (COSIS). While various aspects of the advisory opinion have already been discussed in this joint blog symposium, this post focuses on a feature of the opinion that has so far received little emphasis: the strong role of science. The scientific evidence presented by the tribunal provides a solid basis for its conclusions on State obligations to prevent, reduce, and control climate pollution.
Militant Public Administration
An unprecedented scandal surrounding a Polish governmental fund established to aid crime victims highlights the role of civil servants in authoritarian state capture. The revelations surrounding the Justice Fund show broad levels of bureaucratic acquiescence with shocking abuses of power, and only belated effort to document and report these abuses. The Polish case shows it is time for a democratically militant public administration – the new vision of civil service better prepared to fend off authoritarian encroachment from elected politicians.
Trans Rights and Gender Recognition before the CJEU
On May 7, 2024, the Advocate General of the CJEU issued his Opinion on the Mirin case concerning the right to Legal Gender Recognition (LGR) for transgender persons. Yet, the solution offered by the AG deviates from the Court’s previous case-law on LGR, by making it about free movement rather than protection against discrimination, or fundamental rights. It also places the applicant, and those in a similar position, in an administrative situation that is defeating the very purpose of LGR – an issue that the AG himself acknowledges. A more satisfactory and ambitious alternative would instead be to frame the LGR as protected under the EU Charter.
From Strasbourg to Luxembourg?
KlimaSeniorinnen has established a remedy which, in EU law, is not easy to locate and may actually be unavailable in light of restrictive CJEU case law. Whatever one’s views on this restrictive case law, it is a fact that the EU Charter of Fundamental Rights now obliges the CJEU to do as much as it can to accommodate the KlimaSeniorinnen remedy and to interpret the relevant TFEU provisions flexibly. One may assume that, sooner or later, the CJEU will be confronted with a KlimaSeniorinnen claim. If the CJEU were to declare such a claim inadmissible, it will put itself in the corner of courts refusing to engage with climate change policies. That would be unfortunate for a court that has long been at the forefront of legal progress.
Finding Light in Dark Places
Can the new advisory opinion interpreting the United Nations Convention on the Law of the Sea (UNCLOS) move us beyond the lethargy of unmet climate change policy needs? The International Tribunal for the Law of the Sea established the gravity of this question by stating that “climate change represents an existential threat and raises human rights concerns”. The Tribunal acted both boldly and conservatively by interpreting UNCLOS as an independent source of international legally binding obligations to address climate change and ocean acidification.
Deepfakes, the Weaponisation of AI Against Women and Possible Solutions
In January 2024, social media platforms were flooded with intimate images of pop icon Taylor Swift, quickly reaching millions of users. However, the abusive content was not real; they were deepfakes – synthetic media generated by artificial intelligence (AI) to depict a person’s likeness. But the threat goes beyond celebrities. Virtually anyone (with women being disproportionately targeted) can be a victim of non-consensual intimate deepfakes (NCID). Albeit most agree that companies must be held accountable for disseminating potentially extremely harmful content like NCIDs, effective legal responsibility mechanisms remain elusive. This article proposes concrete changes to content moderation rules as well as enhanced liability for AI providers that enable such abusive content in the first place.
Dividing the Indivisible
The absence of a number of important human rights instruments from the EU’s Corporate Sustainability Due Diligence Directive, notably for indigenous peoples’ and migrants’ rights, are serious omissions and must be rectified at the EU level during the first review of the directive. Given the status of the CSDDD as a directive, Member States also have the freedom to add these missing instruments during national transposition and should do so in order to further honour their commitments under the UNGPs.
