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Montaigne Centre Blog

Algorithmic discrimination in Europe: Challenges and Opportunities for EU equality law

By Janneke Gerards, Utrecht University Law School and Raphaële Xenidis, Edinburgh University Law School and iCourts, Copenhagen University

Early 2020, the European Commission recognized in the preamble of its White Paper on Artificial Intelligence that AI ‘entails a number of potential risks’ including ‘gender-based or other kinds of discrimination’. It therefore deemed ‘important to assess whether [EU law] can be enforced adequately to address the risks that AI systems create, or whether adjustments are needed’. This is precisely one of the questions we have explored in a forthcoming report on algorithmic discrimination in Europe: Is EU equality law fit to capture the particular forms of discrimination arising from the growing use of algorithmic applications in all areas of life?


Death by ransomware

Jan-Jaap Oerlemans

On 10 September 2020, ransomware infected 30 servers at University Hospital Düsseldorf, crashing systems and forcing the hospital to turn away emergency patients. As a result, German authorities stated, a woman in a life-threatening condition was sent to a hospital 20 miles away in Wuppertal and died from treatment delays. On 28 September, another alarming news article stated that ‘a major hospital chain’ was targeted with ransomware in ‘more than 400 locations’ across the United States. In this blog post, I examine the incident and reflect on it from a Dutch legal perspective. I also consider the question whether IT systems in health care are a ‘vital infrastructure’, which may receive special protection of the Dutch National Cyber Security Centre.


National security and the processing of personal data

Jan-Jaap Oerlemans, Mireille Hagens

On 10 October 2018, ‘Convention 108’ of the Council of Europe regarding the ‘automatic processing of personal data’ (1985) was updated. Convention 108+ now explicitly incorporates the processing of personal data in a national security context. The Netherlands signed Convention 108+ on 10 October 2018 and is now in the ratification process. Surprisingly, Convention 108+ did not gain much attention yet. For the Netherlands, the treaty may bring changes to current legislation, because it provides more stringent regulations for the processing of data in a national security context and possibly provides for broader powers for oversight authorities.


Three lessons on the relationship between EU and national law in the context of the duty of consistent interpretation

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by Sim Haket.

Is it possible to avoid a conflict between EU and national law that would result in a national court disapplying the conflicting national provision? Under certain circumstances, the duty of consistent interpretation can offer a solution. For example: two individuals conclude a sales contract, which one subsequently claims is void under EU law whereas the other replies that it is a valid contract under national law. If the dispute comes before a national court, it can resolve this issue by interpreting the provision prescribing the validity of the contract in conformity with the EU law provision. But how do judges determine whether such an interpretation is possible? They will have to take into account requirements imposed by the duty of consistent interpretation, but also the discretion that is available to them under national rules of interpretation. Do existing theories on the relationship between EU and national law, i.e. primacy, national constitutionalism and constitutional pluralism, adequately explain the interaction between EU and national law in the context of the duty of consistent interpretation? In this blog, I offer three important lessons for answering this question. This is based on the full analysis of the question in my PhD thesis The EU law duty of consistent interpretation in German, Irish and Dutch courts.


Biopolitics and the Coronavirus: in Defence of Giorgio Agamben

Lukas van den Berge

In some recent blog posts, Italian star philosopher Giorgio Agamben frames the governmental response to the outbreak of the coronavirus in Italy and elsewhere as ‘frenetic, irrational and entirely unfounded’. According to Agamben, Covid-19 is not too different from the normal flus that affect us every year. The governmental reaction to the outbreak would be just another example of the tendency to use the state of exception as a normal paradigm for government. With terrorism exhausted as a legitimation for exceptional measures, the ‘invention of an epidemic’ would serve as an ideal pretext for scaling up such measures almost beyond limitation. Understandably, Agamben’s assessment of the current crisis has met with overwhelming criticism. Some commentators have even called to ‘defend society from Giorgio Agamben’, dismissing his statements as the dangerous ‘ramblings of a 77-year old man’ who should be de-platformed as soon as possible. Evidently, Agamben has been proven wrong in his appraisal of the spread of the virus as an invented epidemic, nothing to be actually worried about from a public health perspective. That does not mean, however, that his critique should not be taken very seriously.


The International Criminal Court at 18 years: Things to Watch in 2020

Julie Fraser

The International Criminal Court (ICC) turns 18 years old in 2020. As such, we can look back on the Court’s ‘childhood’ and forward to its first year as an adult.  Like all childhoods, there have been ups and downs, successes and lessons learned. There have been four final convictions against individuals for crimes against humanity and war crimes, and reparations ordered for hundreds of victims in three cases. There have also been acquittals (most recently of Mr Gbagbo and Mr Ble Goude regarding crimes during post-election violence in Côte d’Ivoire) and cases terminated (such as those in the Kenya situation). The Court has drawn criticism for its lengthy and expensive trials, limited success rate, and faced allegations of politicisation and double-standards. While States continue to ratify the ICC’s Rome Statute (like Kiribati most recently), two States have withdrawn – Burundi and the Philippines. While criticism has, of course, come from those outside the Rome Statute system, in 2019 many of the Court’s greatest supporters raised their own critiques. Given this backdrop, five issues to follow in 2020 include: 1) an independent expert review of the ICC; 2) the election of a new Prosecutor and Judges; 3) investigations in Myanmar/Bangladesh and (potentially) Afghanistan; 4) conclusion of the cases against Mr Ongwen and Mr Ntaganda; and 5) the unexpected.


NGOs, National Human Rights Institutions: Crucial intermediaries in the execution of ECtHR judgments?

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‘The lack of implementation of the D.H. judgment deeply concerns the three submitting organizations…’. This sentence is taken from a Rule 9 Communication submitted by three NGOs to the Committee of Ministers, the body that supervises the execution of judgments of the European Court of Human Rights (hereafter: ECtHR or Court). It is illustrative of the purpose of Rule 9 Communications: the submitting actor(s), which may be NGOs and National Human Rights Institutions (NHRIs), can provide the Committee of Ministers with their perspective on how a State is progressing with the execution of a judgment of the ECtHR. As such, this Rule 9 provides a crucial opportunity for NGOs and NHRIs to get involved in the execution process of the Court’s judgments. It is therefore striking that over the years, across the board, little attention has been devoted to these Rule 9 Communications. This appears, however, to be changing as the possibilities offered by this Rule 9 are getting more traction  (see for instance the new page of the Execution Department). Rightly so, as Rule 9 Communications may play a valuable role in helping ensure the execution of judgments of the ECtHR. In this blog post, I offer a first exploration of Rule 9 Communications, thereby showcasing their potential and advocating their use by NGOs and NHRIs.


An Ethics of Just Judgment for Transnational Challenges

blog 3 Laura M. Henderson

You are sitting at your desk – as an academic, lawyer, policy maker or judge. You are pondering a legal issue and need to figure out what the law on this matter means for the question at hand. It can be as simple as having to decide whether a tricycle falls under the local prohibition of vehicles in the park or as complex as a constitutional challenge to an intricate, transnational economic rescue plan. How should you decide how to interpret the applicable law? This contribution argues that a postmodern ethics of just judgment points the way forward. Such a mode of just judgment calls on our interpreter to constantly interrogate the boundaries of the law and to make decisions that preserve space for future renegotiations of those boundaries.


Being Realistic About Law

giammarco-boscaro-eWpBNXRHfTI-unsplashThomas Riesthuis

Legal philosophers are often criticised for being out of touch with legal practice. At best, their theories provide a highly abstract but dated understanding of what law is. In a recent prize-winning book entitled A Realistic Theory of Law legal philosopher Brian Tamanaha argues that this often heard critique is true. Many legal philosophers fail to adequately explain how law and legal institutions function: they rarely succeed in addressing the current social context in which law is made and applied. Tamanaha maintains that this lack of attention to the complexity of legal practice is endemic to the field of jurisprudence today, but considers a particular jurisprudential strand of thought to be responsible for this neglect. As he explains: “Jurisprudence in recent decades has become increasingly abstract, specialized, and narrow. Analytical jurisprudence, dominated by legal positivists, has traveled the furthest in this direction.” If legal philosophers, and in particular those who are part of the analytical tradition of jurisprudence, fail to take law in context seriously, what aspects of legal practice should they be concerned with? In this blog, I critically assess Tamanaha’s realistic approach to law and contrast it with the approach I take in my recently defended doctoral thesis. Although I agree with Tamanaha’s critique of contemporary jurisprudence, I argue that legal theories that are out of touch with legal practice should be amended and further developed.


Truth Commissions and Social Justice: Modesty is in Order


Brianne 3Brianne McGonigle Leyh

From Peru to Canada to East Timor, following periods of serious conflict or gross human rights violations, societies often look to address the past in order to bring about greater accountability (trials), reparation (victim compensation), and truth (truth commissions). To date, more than 40 truth commissions have been established around the world, with the South African Truth and Reconciliation Commission being the most well-known example. Generally speaking, truth commissions are officially sanctioned, temporary, non-judicial investigative bodies designed to produce a final report describing the patterns of violence and abuse, its causes and consequences (Hayner 2011 at 11-12). They do this by taking, collecting, and analysing statements from victims, witnesses, and perpetrators, holding public hearings, carrying out exhumations, and researching and investigating allegations of wrongdoing. The claimed benefits are wide-ranging: disclosure of the truth, creation of an historical record, promotion of national healing, individual catharsis, and acknowledgement and redress for victims. While there is debate about whether truth-seeking processes can deliver these benefits, they may be able to pay greater attention to social justice concerns than criminal trials or reparation processes can. In this blog, based on a recently published chapter in the book The Global Impact and Legacy of Truth Commissions, I explain why truth commissions, while contributing modestly to achieving social justice through their structures, processes and outcomes, cannot in themselves achieve these goals.