This article critically assesses the effectiveness of third-country nationals’ social rights prot... more This article critically assesses the effectiveness of third-country nationals’ social rights protection in the eu following the adoption of Directive 2011/98/eu (‘the Single Permit Directive’). This instrument establishes a single permit for work and residence and sets up a common set of rights for third-country workers legally residing in a Member State. This article argues that despite being an important instrument allowing for a better protection of social rights of third-country nationals, the directive still reveals significant inconsistencies. First, due to difficult negotiations at the Council, the final text of the directive maintains the fragmented approach to legal immigration, excluding several categories of third-country nationals from its personal scope. Second, it also allows Member States the opportunity to impose important restrictions on social rights while implementing the directive. Finally, these restrictions can have considerable implications for the integration...
Geneva Academy of International Humanitarian Law and Human Rights, 2020
Artificial intelligence (AI) is bound to enable
innovation in the decades to come, so much
so tha... more Artificial intelligence (AI) is bound to enable innovation in the decades to come, so much so that some say it has become the new electricity.1 However, if that truly is the case, then policymakers, business and civil society must understand what the opportunities and challenges are before they turn the switch on. AI enthusiasts forecast that such technologies could improve societal well-being, increase productivity and even provide solutions for global climate and health crises. AI could also help fight human rights abuses. Nonetheless, AI presents a variety of challenges that can profoundly affect the respect for and protection of human rights.
Recently, a profusion of initiatives from a variety of actors spanning from the technology industry to international and regional organizations, academia and civil society, have focused on establishing ethical frameworks for the design and implementation of AI solutions. While these valuable initiatives propose to identify core ethical principles applicable to AI, ethics is only one aspect to be taken into consideration. International Human Rights Law (IHRL) is equally, if not more important.
Stakeholders from the private and public sectors, international organizations and civil society should move beyond the calls for more regulation of AI. Regulation is certainly needed, in particular concerning data protection and privacy. Nonetheless, new models of governance, placed alongside regulatory frameworks and existing human rights instruments, are also needed. This research brief identifies two additional avenues to regulation: public procurement and standardization.
Artificial intelligence (AI) has the potential to revolutionise the way states and international ... more Artificial intelligence (AI) has the potential to revolutionise the way states and international organisations seek to manage international migration. AI is gradually going to be used to perform tasks, including identity checks, border security and control, and analysis of data about visa and asylum applicants. To an extent, this is already a reality in some countries such as Canada, which uses algorithmic decision-making in immigration and asylum determination, and Germany, which has piloted projects using technologies such as face and dialect recognition for decision-making in asylum determination processes. The article's central hypothesis is that AI technology can affect international migration management in three different dimensions: (1) by deepening the existing asymmetries between states on the international plane; (2) by modernising states' and international organisations' traditional practices; and (3) by reinforcing the contemporary calls for more evidence-based migration management and border security. The article examines each of these three hypotheses and reflects on the main challenges of using AI solutions for international migration management. It draws on legal, political and technology-facing academic literature, examining the current trends in technological developments and investigating the consequences that these can have for international migration. Most particularly, the article contributes to the current debate about the future of international migration management, informing policymakers in this area of growing importance and fast development.
Technology, as the epitome of our contemporary society, permeates the realm of international migr... more Technology, as the epitome of our contemporary society, permeates the realm of international migration. Migrants and refugees are increasingly using mobile phones and digital features available online to prepare for migration and while on the move. Concurrently, advances in computer science allow for progressively more accurate analysis of the data generated by mobile devices and online searches. In particular, big data can be used to determine specific behav-ioral patterns, geolocation, and human interactions. This Article investigates the implications of these technological advances for states under international human rights law. It argues that big data can and should be used as a tool for the protection of migrants' human rights by enhancing both decision-making and measures to prevent unnecessary deaths at sea, ill-treatment and human trafficking of migrants. Consequently, the article examines whether the development of new technologies can affect states' capabilities for the identification of individuals in need of protection. It posits that to the extent that protection is mandated by human rights instruments, states may have a positive obligation to use available technologies to identify and assist vulnerable migrants. It evaluates this possibility against the protection of migrants' right to life, the prohibition of torture, inhuman, and degrading treatment, and the prohibition of slavery and forced labor. In doing so, the article also emphasizes the limits and risks posed by the unrestrained use of new technologies, notably with respect to the protection of migrants' right to privacy and data protection.
Although vulnerability does not have an express legal basis in international human rights law, in... more Although vulnerability does not have an express legal basis in international human rights law, international human rights courts, and particularly the European Court of Human Rights (ECtHR), have increasingly drawn on this concept in their jurisprudence. The ECtHR has developed an important line of cases concerning migrant children, which it considers as particularly vulnerable to physical and mental harm during the migratory process. The Inter-American Court of Human Rights (IACtHR) also anchored this notion in an influential advisory opinion on the rights of migrant children. This article critically examines this case-law against the existing scholarship on vulnerability and the legal framework on human rights protection. It argues that the concept of vulnerability, when complemented by considerations of best interests of the child, can operate as a magnifying glass for State obligations, exposing a greater duty of protection and care vis-à-vis migrant children. It suggests that the human rights courts should deploy a more substantial approach to migrant children's rights based on the concept of vulnerability and on the principle of best interests of the child. Above all, this approach would foster stronger protection of these children's rights in the long term. In addition, if effectively applied, it would allow the human rights courts to avoid stigmatising the most exposed individuals in the ongoing global migration crisis.
This article aims to re-evaluate and clarify the significance of the contribution of the InterAme... more This article aims to re-evaluate and clarify the significance of the contribution of the InterAmerican Court of Human Rights to the protection of irregular immigrants’ rights. It argues that this Court has placed itself at the forefront of a renewed approach to immigration, confirming its potential to promote an extended form of protection of irregular immigrants’ rights in Latin America. However, the actual protection of irregular immigrants’ rights promoted by the Court depends on Latin American countries’ capability to overcome several important challenges, in particular with respect to the compliance with judicial decisions and the effectiveness of the protection of rights. These challenges, which are not purely legal or institutional, are strongly dependent on the Latin American cultural, political and societal context. They may therefore hinder the impact of a stronger human rights-based approach to the protection of irregular immigrants’ rights in Latin America.
European Journal of Migration and Law (forthcoming)
This article critically assesses the effectiveness of third-country nationals’ social rights prot... more This article critically assesses the effectiveness of third-country nationals’ social rights protection in the EU following the adoption of Directive 2011/98/EU (‘the Single Permit Directive’). This instrument establishes a single permit for work and residence and sets up a common set of rights for third-country workers legally residing in a Member State. This article argues that despite being an important instrument allowing for a better protection of social rights of third-country nationals, the directive still reveals significant inconsistencies. First, due to difficult negotiations at the Council, the final text of the directive maintains the fragmented approach to legal immigration, excluding several categories of third-country nationals from its personal scope. Second, it also allows Member States the opportunity to impose important restrictions on social rights while implementing the directive. Finally, these restrictions can have considerable implications for the integration of immigrants in the host Member State. Accordingly, the argument is advanced that in reality the protection of third-country workers’ social rights in the EU still largely depends on the Member States’ political will.
In July 2012, the French Court of Cassation held that undocumented immigrants cannot be placed in... more In July 2012, the French Court of Cassation held that undocumented immigrants cannot be placed in police custody simply for being in the country illegally. The Court’s judgments were preceded by a flurry of contradictory administrative measures and constitutional decisions. This confusion can be traced back to two landmark decisions handed down by the Court of Justice of the European Union in the cases of El Dridi and Achughbabian, which both dealt with the EU Returns Directive. It is argued here that prohibiting the placement of undocumented aliens in police custody is the result of a unique interplay between French criminal law and European Union law. This relationship between the two
systems of law has been placed under strain by the French court’s idiosyncratic interpretation of the CJEU’s decisions. In its interpretation, the Court of Cassation has contributed to the transformation of detention from an extraordinary measure of last resort into an ordinary tool for combating illegal immigration. Based on this argument, this article draws conclusions on the French judicial authorities’ balancing of individual rights and public interests in relation to aliens’ rights.
English summary
Over the years, the subsidiarity principle has acquired a pre-eminent place i... more English summary
Over the years, the subsidiarity principle has acquired a pre-eminent place in EU law. It has been notably evoked by Member States with respect to issues related to the exercise of shared competences, in order to prevent EU institutions to act or to annul their actions. This paper argues, however, that the subsidiarity principle is more than just a ‘watchdog’ of national competences and sovereignty. It has an important function in maintaining legal and procedural pluralism within the EU.
In order to discuss the relationship between pluralism and subsidiarity, one must define the concept of pluralism. Plurality expresses the quantitative diversity of standards, actors, procedures or legal systems; nevertheless it is not equivalent to pluralism. On the one hand, pluralism takes into account the variety of situations, standards, actors, procedures, legal systems, and ‘orders’ them. On the other hand, ordering the plurality does not mean imposing hegemonic uniformity. Therefore, in an ‘ordered pluralism’ (Mireille Delmas-Marty 2006) in which complexity can be ordered but not unified, the subsidiarity principle plays a crucial role. As a ‘regulator concept’, subsidiarity allows the realization of the pluralism by organising the different stages of legislation-making, as well as the different decision-making procedures, at the national and supranational level alike.
At the EU level, subsidiarity has two layers. On the one hand, vertical subsidiarity is generally invoked in the context of exercise of shared competences by the EU and Member States (article 5 (3) TEU). In the field of EU social law, this principle is an invaluable tool to determine whether a subject should be harmonised or only coordinated at the EU level. By doing so, vertical subsidiarity plays a central role in regulating the plurality of domestic social norms. Consequently, this paper argues that vertical subsidiarity allows the realization of legal pluralism in EU social law. On the other hand, horizontal subsidiarity is only invoked in the specific context of social law and social relations in the EU. It is used to define whether the allocation of legislative competences to European social partners, instead of European institutions, is preferable at the EU level. In certain fields such as employment and industrial relations, a preference would even be accorded to European social partners to negotiate under the rules of the European social dialogue. Accordingly, this paper argues that horizontal subsidiarity can effectively order the plurality of legal procedures, thus helping to avoid the risk of a chaotic production of different social norms at the EU and national levels. Finally, on the basis of these two main arguments, this article draws conclusions on the
political character of the application of the principle of subsidiarity by the Member States and EU institutions and on its influence on the choice of a renewed European social model.
This article critically assesses the effectiveness of third-country nationals’ social rights prot... more This article critically assesses the effectiveness of third-country nationals’ social rights protection in the eu following the adoption of Directive 2011/98/eu (‘the Single Permit Directive’). This instrument establishes a single permit for work and residence and sets up a common set of rights for third-country workers legally residing in a Member State. This article argues that despite being an important instrument allowing for a better protection of social rights of third-country nationals, the directive still reveals significant inconsistencies. First, due to difficult negotiations at the Council, the final text of the directive maintains the fragmented approach to legal immigration, excluding several categories of third-country nationals from its personal scope. Second, it also allows Member States the opportunity to impose important restrictions on social rights while implementing the directive. Finally, these restrictions can have considerable implications for the integration...
Geneva Academy of International Humanitarian Law and Human Rights, 2020
Artificial intelligence (AI) is bound to enable
innovation in the decades to come, so much
so tha... more Artificial intelligence (AI) is bound to enable innovation in the decades to come, so much so that some say it has become the new electricity.1 However, if that truly is the case, then policymakers, business and civil society must understand what the opportunities and challenges are before they turn the switch on. AI enthusiasts forecast that such technologies could improve societal well-being, increase productivity and even provide solutions for global climate and health crises. AI could also help fight human rights abuses. Nonetheless, AI presents a variety of challenges that can profoundly affect the respect for and protection of human rights.
Recently, a profusion of initiatives from a variety of actors spanning from the technology industry to international and regional organizations, academia and civil society, have focused on establishing ethical frameworks for the design and implementation of AI solutions. While these valuable initiatives propose to identify core ethical principles applicable to AI, ethics is only one aspect to be taken into consideration. International Human Rights Law (IHRL) is equally, if not more important.
Stakeholders from the private and public sectors, international organizations and civil society should move beyond the calls for more regulation of AI. Regulation is certainly needed, in particular concerning data protection and privacy. Nonetheless, new models of governance, placed alongside regulatory frameworks and existing human rights instruments, are also needed. This research brief identifies two additional avenues to regulation: public procurement and standardization.
Artificial intelligence (AI) has the potential to revolutionise the way states and international ... more Artificial intelligence (AI) has the potential to revolutionise the way states and international organisations seek to manage international migration. AI is gradually going to be used to perform tasks, including identity checks, border security and control, and analysis of data about visa and asylum applicants. To an extent, this is already a reality in some countries such as Canada, which uses algorithmic decision-making in immigration and asylum determination, and Germany, which has piloted projects using technologies such as face and dialect recognition for decision-making in asylum determination processes. The article's central hypothesis is that AI technology can affect international migration management in three different dimensions: (1) by deepening the existing asymmetries between states on the international plane; (2) by modernising states' and international organisations' traditional practices; and (3) by reinforcing the contemporary calls for more evidence-based migration management and border security. The article examines each of these three hypotheses and reflects on the main challenges of using AI solutions for international migration management. It draws on legal, political and technology-facing academic literature, examining the current trends in technological developments and investigating the consequences that these can have for international migration. Most particularly, the article contributes to the current debate about the future of international migration management, informing policymakers in this area of growing importance and fast development.
Technology, as the epitome of our contemporary society, permeates the realm of international migr... more Technology, as the epitome of our contemporary society, permeates the realm of international migration. Migrants and refugees are increasingly using mobile phones and digital features available online to prepare for migration and while on the move. Concurrently, advances in computer science allow for progressively more accurate analysis of the data generated by mobile devices and online searches. In particular, big data can be used to determine specific behav-ioral patterns, geolocation, and human interactions. This Article investigates the implications of these technological advances for states under international human rights law. It argues that big data can and should be used as a tool for the protection of migrants' human rights by enhancing both decision-making and measures to prevent unnecessary deaths at sea, ill-treatment and human trafficking of migrants. Consequently, the article examines whether the development of new technologies can affect states' capabilities for the identification of individuals in need of protection. It posits that to the extent that protection is mandated by human rights instruments, states may have a positive obligation to use available technologies to identify and assist vulnerable migrants. It evaluates this possibility against the protection of migrants' right to life, the prohibition of torture, inhuman, and degrading treatment, and the prohibition of slavery and forced labor. In doing so, the article also emphasizes the limits and risks posed by the unrestrained use of new technologies, notably with respect to the protection of migrants' right to privacy and data protection.
Although vulnerability does not have an express legal basis in international human rights law, in... more Although vulnerability does not have an express legal basis in international human rights law, international human rights courts, and particularly the European Court of Human Rights (ECtHR), have increasingly drawn on this concept in their jurisprudence. The ECtHR has developed an important line of cases concerning migrant children, which it considers as particularly vulnerable to physical and mental harm during the migratory process. The Inter-American Court of Human Rights (IACtHR) also anchored this notion in an influential advisory opinion on the rights of migrant children. This article critically examines this case-law against the existing scholarship on vulnerability and the legal framework on human rights protection. It argues that the concept of vulnerability, when complemented by considerations of best interests of the child, can operate as a magnifying glass for State obligations, exposing a greater duty of protection and care vis-à-vis migrant children. It suggests that the human rights courts should deploy a more substantial approach to migrant children's rights based on the concept of vulnerability and on the principle of best interests of the child. Above all, this approach would foster stronger protection of these children's rights in the long term. In addition, if effectively applied, it would allow the human rights courts to avoid stigmatising the most exposed individuals in the ongoing global migration crisis.
This article aims to re-evaluate and clarify the significance of the contribution of the InterAme... more This article aims to re-evaluate and clarify the significance of the contribution of the InterAmerican Court of Human Rights to the protection of irregular immigrants’ rights. It argues that this Court has placed itself at the forefront of a renewed approach to immigration, confirming its potential to promote an extended form of protection of irregular immigrants’ rights in Latin America. However, the actual protection of irregular immigrants’ rights promoted by the Court depends on Latin American countries’ capability to overcome several important challenges, in particular with respect to the compliance with judicial decisions and the effectiveness of the protection of rights. These challenges, which are not purely legal or institutional, are strongly dependent on the Latin American cultural, political and societal context. They may therefore hinder the impact of a stronger human rights-based approach to the protection of irregular immigrants’ rights in Latin America.
European Journal of Migration and Law (forthcoming)
This article critically assesses the effectiveness of third-country nationals’ social rights prot... more This article critically assesses the effectiveness of third-country nationals’ social rights protection in the EU following the adoption of Directive 2011/98/EU (‘the Single Permit Directive’). This instrument establishes a single permit for work and residence and sets up a common set of rights for third-country workers legally residing in a Member State. This article argues that despite being an important instrument allowing for a better protection of social rights of third-country nationals, the directive still reveals significant inconsistencies. First, due to difficult negotiations at the Council, the final text of the directive maintains the fragmented approach to legal immigration, excluding several categories of third-country nationals from its personal scope. Second, it also allows Member States the opportunity to impose important restrictions on social rights while implementing the directive. Finally, these restrictions can have considerable implications for the integration of immigrants in the host Member State. Accordingly, the argument is advanced that in reality the protection of third-country workers’ social rights in the EU still largely depends on the Member States’ political will.
In July 2012, the French Court of Cassation held that undocumented immigrants cannot be placed in... more In July 2012, the French Court of Cassation held that undocumented immigrants cannot be placed in police custody simply for being in the country illegally. The Court’s judgments were preceded by a flurry of contradictory administrative measures and constitutional decisions. This confusion can be traced back to two landmark decisions handed down by the Court of Justice of the European Union in the cases of El Dridi and Achughbabian, which both dealt with the EU Returns Directive. It is argued here that prohibiting the placement of undocumented aliens in police custody is the result of a unique interplay between French criminal law and European Union law. This relationship between the two
systems of law has been placed under strain by the French court’s idiosyncratic interpretation of the CJEU’s decisions. In its interpretation, the Court of Cassation has contributed to the transformation of detention from an extraordinary measure of last resort into an ordinary tool for combating illegal immigration. Based on this argument, this article draws conclusions on the French judicial authorities’ balancing of individual rights and public interests in relation to aliens’ rights.
English summary
Over the years, the subsidiarity principle has acquired a pre-eminent place i... more English summary
Over the years, the subsidiarity principle has acquired a pre-eminent place in EU law. It has been notably evoked by Member States with respect to issues related to the exercise of shared competences, in order to prevent EU institutions to act or to annul their actions. This paper argues, however, that the subsidiarity principle is more than just a ‘watchdog’ of national competences and sovereignty. It has an important function in maintaining legal and procedural pluralism within the EU.
In order to discuss the relationship between pluralism and subsidiarity, one must define the concept of pluralism. Plurality expresses the quantitative diversity of standards, actors, procedures or legal systems; nevertheless it is not equivalent to pluralism. On the one hand, pluralism takes into account the variety of situations, standards, actors, procedures, legal systems, and ‘orders’ them. On the other hand, ordering the plurality does not mean imposing hegemonic uniformity. Therefore, in an ‘ordered pluralism’ (Mireille Delmas-Marty 2006) in which complexity can be ordered but not unified, the subsidiarity principle plays a crucial role. As a ‘regulator concept’, subsidiarity allows the realization of the pluralism by organising the different stages of legislation-making, as well as the different decision-making procedures, at the national and supranational level alike.
At the EU level, subsidiarity has two layers. On the one hand, vertical subsidiarity is generally invoked in the context of exercise of shared competences by the EU and Member States (article 5 (3) TEU). In the field of EU social law, this principle is an invaluable tool to determine whether a subject should be harmonised or only coordinated at the EU level. By doing so, vertical subsidiarity plays a central role in regulating the plurality of domestic social norms. Consequently, this paper argues that vertical subsidiarity allows the realization of legal pluralism in EU social law. On the other hand, horizontal subsidiarity is only invoked in the specific context of social law and social relations in the EU. It is used to define whether the allocation of legislative competences to European social partners, instead of European institutions, is preferable at the EU level. In certain fields such as employment and industrial relations, a preference would even be accorded to European social partners to negotiate under the rules of the European social dialogue. Accordingly, this paper argues that horizontal subsidiarity can effectively order the plurality of legal procedures, thus helping to avoid the risk of a chaotic production of different social norms at the EU and national levels. Finally, on the basis of these two main arguments, this article draws conclusions on the
political character of the application of the principle of subsidiarity by the Member States and EU institutions and on its influence on the choice of a renewed European social model.
Uploads
Papers by Ana Beduschi
innovation in the decades to come, so much
so that some say it has become the new
electricity.1 However, if that truly is the case,
then policymakers, business and civil society
must understand what the opportunities
and challenges are before they turn the
switch on. AI enthusiasts forecast that
such technologies could improve societal
well-being, increase productivity and even
provide solutions for global climate and
health crises. AI could also help fight human
rights abuses. Nonetheless, AI presents a
variety of challenges that can profoundly
affect the respect for and protection of
human rights.
Recently, a profusion of initiatives from
a variety of actors spanning from the
technology industry to international and
regional organizations, academia and
civil society, have focused on establishing
ethical frameworks for the design and
implementation of AI solutions. While these
valuable initiatives propose to identify
core ethical principles applicable to AI,
ethics is only one aspect to be taken into
consideration. International Human Rights
Law (IHRL) is equally, if not more important.
Stakeholders from the private and public
sectors, international organizations and civil
society should move beyond the calls for
more regulation of AI. Regulation is certainly
needed, in particular concerning data
protection and privacy. Nonetheless, new
models of governance, placed alongside
regulatory frameworks and existing human
rights instruments, are also needed. This
research brief identifies two additional
avenues to regulation: public procurement
and standardization.
Court of Human Rights to the protection of irregular immigrants’ rights. It argues
that this Court has placed itself at the forefront of a renewed approach to immigration,
confirming its potential to promote an extended form of protection of irregular immigrants’
rights in Latin America. However, the actual protection of irregular immigrants’ rights
promoted by the Court depends on Latin American countries’ capability to overcome several
important challenges, in particular with respect to the compliance with judicial decisions and
the effectiveness of the protection of rights. These challenges, which are not purely legal or
institutional, are strongly dependent on the Latin American cultural, political and societal
context. They may therefore hinder the impact of a stronger human rights-based approach to
the protection of irregular immigrants’ rights in Latin America.
systems of law has been placed under strain by the French court’s idiosyncratic interpretation of the CJEU’s decisions. In its interpretation, the Court of Cassation has contributed to the transformation of detention from an extraordinary measure of last resort into an ordinary tool for combating illegal immigration. Based on this argument, this article draws conclusions on the French judicial authorities’ balancing of individual rights and public interests in relation to aliens’ rights.
Over the years, the subsidiarity principle has acquired a pre-eminent place in EU law. It has been notably evoked by Member States with respect to issues related to the exercise of shared competences, in order to prevent EU institutions to act or to annul their actions. This paper argues, however, that the subsidiarity principle is more than just a ‘watchdog’ of national competences and sovereignty. It has an important function in maintaining legal and procedural pluralism within the EU.
In order to discuss the relationship between pluralism and subsidiarity, one must define the concept of pluralism. Plurality expresses the quantitative diversity of standards, actors, procedures or legal systems; nevertheless it is not equivalent to pluralism. On the one hand, pluralism takes into account the variety of situations, standards, actors, procedures, legal systems, and ‘orders’ them. On the other hand, ordering the plurality does not mean imposing hegemonic uniformity. Therefore, in an ‘ordered pluralism’ (Mireille Delmas-Marty 2006) in which complexity can be ordered but not unified, the subsidiarity principle plays a crucial role. As a ‘regulator concept’, subsidiarity allows the realization of the pluralism by organising the different stages of legislation-making, as well as the different decision-making procedures, at the national and supranational level alike.
At the EU level, subsidiarity has two layers. On the one hand, vertical subsidiarity is generally invoked in the context of exercise of shared competences by the EU and Member States (article 5 (3) TEU). In the field of EU social law, this principle is an invaluable tool to determine whether a subject should be harmonised or only coordinated at the EU level. By doing so, vertical subsidiarity plays a central role in regulating the plurality of domestic social norms. Consequently, this paper argues that vertical subsidiarity allows the realization of legal pluralism in EU social law. On the other hand, horizontal subsidiarity is only invoked in the specific context of social law and social relations in the EU. It is used to define whether the allocation of legislative competences to European social partners, instead of European institutions, is preferable at the EU level. In certain fields such as employment and industrial relations, a preference would even be accorded to European social partners to negotiate under the rules of the European social dialogue. Accordingly, this paper argues that horizontal subsidiarity can effectively order the plurality of legal procedures, thus helping to avoid the risk of a chaotic production of different social norms at the EU and national levels. Finally, on the basis of these two main arguments, this article draws conclusions on the
political character of the application of the principle of subsidiarity by the Member States and EU institutions and on its influence on the choice of a renewed European social model.
innovation in the decades to come, so much
so that some say it has become the new
electricity.1 However, if that truly is the case,
then policymakers, business and civil society
must understand what the opportunities
and challenges are before they turn the
switch on. AI enthusiasts forecast that
such technologies could improve societal
well-being, increase productivity and even
provide solutions for global climate and
health crises. AI could also help fight human
rights abuses. Nonetheless, AI presents a
variety of challenges that can profoundly
affect the respect for and protection of
human rights.
Recently, a profusion of initiatives from
a variety of actors spanning from the
technology industry to international and
regional organizations, academia and
civil society, have focused on establishing
ethical frameworks for the design and
implementation of AI solutions. While these
valuable initiatives propose to identify
core ethical principles applicable to AI,
ethics is only one aspect to be taken into
consideration. International Human Rights
Law (IHRL) is equally, if not more important.
Stakeholders from the private and public
sectors, international organizations and civil
society should move beyond the calls for
more regulation of AI. Regulation is certainly
needed, in particular concerning data
protection and privacy. Nonetheless, new
models of governance, placed alongside
regulatory frameworks and existing human
rights instruments, are also needed. This
research brief identifies two additional
avenues to regulation: public procurement
and standardization.
Court of Human Rights to the protection of irregular immigrants’ rights. It argues
that this Court has placed itself at the forefront of a renewed approach to immigration,
confirming its potential to promote an extended form of protection of irregular immigrants’
rights in Latin America. However, the actual protection of irregular immigrants’ rights
promoted by the Court depends on Latin American countries’ capability to overcome several
important challenges, in particular with respect to the compliance with judicial decisions and
the effectiveness of the protection of rights. These challenges, which are not purely legal or
institutional, are strongly dependent on the Latin American cultural, political and societal
context. They may therefore hinder the impact of a stronger human rights-based approach to
the protection of irregular immigrants’ rights in Latin America.
systems of law has been placed under strain by the French court’s idiosyncratic interpretation of the CJEU’s decisions. In its interpretation, the Court of Cassation has contributed to the transformation of detention from an extraordinary measure of last resort into an ordinary tool for combating illegal immigration. Based on this argument, this article draws conclusions on the French judicial authorities’ balancing of individual rights and public interests in relation to aliens’ rights.
Over the years, the subsidiarity principle has acquired a pre-eminent place in EU law. It has been notably evoked by Member States with respect to issues related to the exercise of shared competences, in order to prevent EU institutions to act or to annul their actions. This paper argues, however, that the subsidiarity principle is more than just a ‘watchdog’ of national competences and sovereignty. It has an important function in maintaining legal and procedural pluralism within the EU.
In order to discuss the relationship between pluralism and subsidiarity, one must define the concept of pluralism. Plurality expresses the quantitative diversity of standards, actors, procedures or legal systems; nevertheless it is not equivalent to pluralism. On the one hand, pluralism takes into account the variety of situations, standards, actors, procedures, legal systems, and ‘orders’ them. On the other hand, ordering the plurality does not mean imposing hegemonic uniformity. Therefore, in an ‘ordered pluralism’ (Mireille Delmas-Marty 2006) in which complexity can be ordered but not unified, the subsidiarity principle plays a crucial role. As a ‘regulator concept’, subsidiarity allows the realization of the pluralism by organising the different stages of legislation-making, as well as the different decision-making procedures, at the national and supranational level alike.
At the EU level, subsidiarity has two layers. On the one hand, vertical subsidiarity is generally invoked in the context of exercise of shared competences by the EU and Member States (article 5 (3) TEU). In the field of EU social law, this principle is an invaluable tool to determine whether a subject should be harmonised or only coordinated at the EU level. By doing so, vertical subsidiarity plays a central role in regulating the plurality of domestic social norms. Consequently, this paper argues that vertical subsidiarity allows the realization of legal pluralism in EU social law. On the other hand, horizontal subsidiarity is only invoked in the specific context of social law and social relations in the EU. It is used to define whether the allocation of legislative competences to European social partners, instead of European institutions, is preferable at the EU level. In certain fields such as employment and industrial relations, a preference would even be accorded to European social partners to negotiate under the rules of the European social dialogue. Accordingly, this paper argues that horizontal subsidiarity can effectively order the plurality of legal procedures, thus helping to avoid the risk of a chaotic production of different social norms at the EU and national levels. Finally, on the basis of these two main arguments, this article draws conclusions on the
political character of the application of the principle of subsidiarity by the Member States and EU institutions and on its influence on the choice of a renewed European social model.