In an advisory opinion issued on February 25, the International Court of Justice (ICJ) concluded that the United Kingdom violated core principles of international law by separating the Chagos Archipelago from Mauritius in the 1960s and continuing to administer the islands as a British territory. See Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965, Advisory Opinion, ICJ Reports 2019, para. 183. Despite the U.K’s numerous attempts to challenge the Court’s jurisdiction over the matter, the Court ultimately determined that it was competent to address the questions presented and issued its answer. See id. In its opinion, the Court made clear that the U.K’s actions with respect to this former colony run counter to what are now well-established rights of peoples to self-determination. See id. at paras. 177-178. The UN General Assembly is expected to discuss implementation of the advisory opinion, including returning the islands to Mauritius and resolving the status of the thousands of people the U.K. forcibly expelled from Chagos following its agreement with the United States to allow an American military base, and later secret CIA detention site, on the island of Diego Garcia. [Guardian; Nation]
Category Archives: democracy & political rights
In a new declaration on the impact of the use of algorithms on democracy, human rights, and the rule of law, the Council of Europe’s Committee of Ministers warns that artificial intelligence and other machine-learning technologies must not be used to unduly influence or manipulate individuals’ thoughts and behavior. See Council of Europe Committee of Ministers, Declaration by the Committee of Ministers on the manipulative capabilities of algorithmic processes, Decl(13/02/2019)1, 13 February 2019. The first of its kind, the declaration calls on States to take steps to ensure that technologies facilitating algorithmic persuasion, particularly those that “micro-target” individuals, do not interfere with people’s ability to enjoy their human rights and to make independent political, personal, and purchasing decisions. See id. at paras. 8, 9. The Declaration, which builds on ongoing study and analysis by Council of Europe organs, adds to the growing body of guidance and recommendations concerning the regulation of machine learning to safeguard human rights, including from the United Nations Special Rapporteur on freedom of expression.
At the heart of the Declaration is the concern that technology that seeks to shape our preferences and alter information flows is becoming an “ever growing presence in our daily lives,” and the finding that digital forms of targeted persuasion pose a threat to democracy, human rights, and the rule of law. See Declaration by the Committee of Ministers on the manipulative capabilities of algorithmic processes, at paras. 4, 9. Specifically, the Committee of Ministers states that the use of “fine grained, sub-conscious and personalized levels of algorithmic persuasion” risks significantly interfering with the principles of individual autonomy and the right to form opinions and take independent decisions. See id. at para. 9. Undermining the autonomy and independence of individuals, according to the Committee, threatens the fundamental belief “in the equality and dignity of all humans as independent moral agents.” See id. at paras. 9.
The Committee of Ministers recognizes that digital services have become an essential tool for modern communication, including political communication, and that advanced technologies provide the opportunity to enhance human rights. See id. at paras. 2-3. However, the Committee also notes that public awareness “remains limited regarding the extent to which everyday devices collect and generate vast amounts of data” that “are used to train machine-learning technologies. . . to predict and shape personal preferences, to alter information flows, and, sometimes, to subject individuals to behavioral experimentation.” See id. at para. 4. Additionally, the Committee warns that the ability to infer “intimate and detailed information” from the data collected “supports the sorting of individuals into categories,” which allows companies to reinforce discrimination along cultural, religious, legal, and economic lines. See id. at para. 6.
The Committee of Ministers concludes that machine-learning technologies, when coupled with mass collection of data, pose a danger for democratic societies if these technologies are used—by either public or private entities—to “manipulate and control not only economic choices but also social and political behaviours.” See id. at para. 8. Moreover, the Committee notes that machine-learning tools are demonstrating an increasing ability to “not only to predict choices but also influence emotions and thoughts and alter an anticipated course of action, sometimes subliminally.” See id. at para. 8. The Committee emphasizes that the 47 Member States to the Council of Europe have an obligation to protect democracy, human rights, and the rule of law during the rapid social transformation that is occurring as the result of recent advances in technology. See id. at para. 1.
The Declaration makes five specific recommendations about how States should address the risks to democracy and human rights posed by machine learning. The first is that States should pay attention to the inter-disciplinary nature of this concern and ensure that the above concerns do not fall between the mandates of current administrative agencies. See id. at para. 9(a). Second, States should consider enacting laws that regulate the collection and use of personal data that go beyond preexisting privacy protections. See id. at para. 9(b). In addition, States should specifically legislate against forms of “illegitimate interference,” which would include forms of persuasion and interference that compromise democratic principles. See id. at para. 9(d). Lastly, the Committee asserts that States should both promote a public debate on the issue of what counts as permissible persuasion and empower users of digital technologies by promoting digital literacy, including awareness of data collection. See id. at para. 9(c) and 9(e).
Recent Developments under Human Rights Law Concerning AI
International human rights experts and civil society have sought to address the human rights impact of machine-learning and algorithmic decision-making. [OHCHR; UNDP; AccessNow; Data&Society] Most recently, in a 2018 report to the UN General Assembly, the UN Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression released the first such report examining the impact of artificial intelligence (AI) and algorithmic decision-making on the information environment; a response to these technologies “are now a critical part of the information environment – they are found in every corner of the internet, on digital devices and in technical systems, in search engines, social media platforms, messaging applications, and public information mechanisms.” [OHCHR]
Importantly, the Special Rapporteur’s report proposes a human rights framework for the design and use of these technologies by States and private actors. [OHCHR] Drawing primarily on the rights to freedom of opinion, expression, privacy, non-discrimination, and an effective remedy, the Special Rapporteur finds that States should ensure that human rights are at the core of private sector design of these technologies. See id. at paras. 60-63. This requires that States update and enforce data protection regulations with respect to machine-learning technologies. See id. at para. 63. Moreover, States should enact policies that create a diverse and pluralistic information environment, which may include the regulation of technology monopolies in the area of artificial intelligence. See id. at para. 64.
With respect to the responsibility of private companies, the Special Rapporteur found that companies should create and apply guidelines for the deployment of artificial intelligence that are grounded in human rights principles and informed by civil society. See id. at para. 65. Additionally, companies should be transparent and open for audit concerning the use of artificial intelligence on their platforms and services. See id. at paras. 66, 69. Companies should also prevent discrimination by the teams designing their artificial intelligence systems and discrimination in the actual system design, which may include monitoring outcomes that may be discriminatory, removing discriminatory data, and implementing measures that compensate for discriminatory data. See id. at para. 67.
The Council of Europe, based in Strasbourg, France, is an intergovernmental organization with 47 Member States. The Committee of Ministers, a decision-making body charged with monitoring the implementation of several human rights treaties including the European Convention on Human Rights, is composed of the ministers of foreign affairs of the Member States. Additionally, the European Court of Human Rights, the European Committee of Social Rights, and the Commissioner for Human Rights all operate under the auspices of the Council of Europe.
For more information about the European Human Rights System or the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, visit IJRC’s Online Resource Hub. To stay up-to-date on international human rights law news, visit IJRC’s News Room or subscribe to the IJRC Daily.
In two recently released decisions, United Nations Human Rights Committee determined that the Finnish government interfered with Sámi individuals’ rights to political participation and culture when a national court expanded the group of people authorized to vote, or run as candidates, in the Indigenous group’s parliamentary elections. [OHCHR Press Release: Finland] While the Committee and other UN human rights bodies have raised concerns about this issue before, these are the first complaints to be decided concerning the Sámi people’s self-determination. The Committee has given Finland six months to submit a report outlining the progress it has made in implementing the decisions. [OHCHR Press Release: Finland] One other communication on the same matter is pending before the Committee on the Elimination of Racial Discrimination (CERD). See Human Rights Committee, Sanila-Aikio v. Finland, Views of 1 November 2018, UN Doc. CCPR/C/124/D/2668/2015, para. 4.2.
In the month of August, various universal and regional bodies will assess States’ compliance with their human rights obligations through interactive dialogues, the consideration of State and civil society reports, and the review of individual complaints. Three United Nations treaty bodies will meet in August to engage with States regarding their treaty obligations related to the prevention of torture, the elimination of racial discrimination, and the end of discrimination against persons with disabilities. Further, civil society can register this month to participate in the sessions of four treaty bodies that will meet in September to engage with States regarding their obligations related to the rights of migrant workers; children’s rights; economic, social, and cultural rights; and the rights of persons with disabilities, respectively. The Human Rights Council’s Advisory Committee and the Human Rights Council’s Working Group on Communications will also be in session to review thematic human rights issues and individual complaints. Additionally, two UN working groups will hold sessions on issues of involuntary disappearances and arbitrary detention, respectively.
The UN treaty body sessions and the hearings of the Inter-American Court may be watched via UN Web TV and the Inter-American Court’s website or Vimeo, respectively. To view human rights bodies’ past and future activities, visit the IJRC Hearings & Sessions Calendar.
In the month of July, various universal and regional bodies will assess States’ compliance with their human rights obligations through the consideration of State and civil society reports, country visits, and the review of individual complaints. Three United Nations treaty bodies will meet in July to engage with States regarding their treaty obligations related to civil and political rights, the rights of women, and the prevention of torture. Further, civil society can register this month to participate in the sessions of two treaty bodies that will meet in August to engage with States regarding their obligations related to racial discrimination and the rights of persons with disabilities, respectively. The UN Human Rights Council and several of its working groups will be in session to review communications, thematic reports, and country-specific reports; select individuals to serve as special procedure mandate holders; and convene several panel discussions on the human rights of women, internally displaced persons, and on technical cooperation in the promotion and protection of human rights related to the 2030 Agenda for Sustainable Development. The Expert Mechanism on the Rights of Indigenous Peoples will hold its annual session. Two UN special procedures will conduct country visits focusing on human rights and transnational corporations, and on the human rights situation in the Republic of Korea.
Regionally, the Grand Chamber of the European Court of Human Rights (ECtHR) may hear one case related to the prohibition of collective expulsion of aliens, and the European Committee of Social Rights and Inter-American Court of Human Rights (IACtHR) will be in session.
The UN treaty body sessions, the public hearings of the European Court, and the hearings of the Inter-American Court, may be watched via UN Web TV, the European Court’s website, and the Inter-American Court’s website or Vimeo, respectively. To view human rights bodies’ past and future activities, visit the IJRC Hearings & Sessions Calendar.
The Inter-American Commission on Human Rights and United Nations experts have expressed concern over Nicaragua’s response to protests that began in opposition to President Ortega’s proposed social security reforms and led to violence, deaths, and the suppression of media attention. [NY Times: Protests; OHCHR Press Release; IACHR Press Release: Concern] The demonstrations started in Managua after President Ortega proposed changes that would require workers to pay higher contributions in to the social security system but would also lower benefits to pensioners. [NY Times: Protests] The protests’ geographic scope and protesters’ demands grew, sparking protests in other cities and covering a range of issues surrounding general discontent with the Ortega government. [NY Times: Protests; NPR] Universal and regional human rights bodies and experts have expressed concern with the use of force used by security forces and threats to protesters’ safety due to non-State actors’ responses, and called on Nicaragua to respect and protect human rights. [OHCHR Press Release; IACHR Press Release: Concern] The Inter-American Commission on Human Rights (IACHR) reminded the State that it must respect people’s right to peacefully express their views and that tactics of repression in the context of demonstrations do the opposite. The regional human rights body also called on the State to investigate the deaths that occurred during the protest and asked to make a working visit to the State. [IACHR Press Release: Coordination; IACHR Press Release: Concern] The UN experts further added their concern over the State’s stigmatization of protesters. [OHCHR Press Release] Nicaragua is obligated to ensure and protect the rights to freedom of assembly, to freedom of expression, and to life under the American Convention on Human Rights and the International Covenant on Civil and Political Rights. Read more
International election observers, civil society, and protesters have raised concerns over the fairness of Hungary’s April 8 parliamentary elections in which the incumbent prime minister, Viktor Orbán, and his Fidesz party secured a strong majority, winning 133 of 199 parliamentary seats; media bias and intimidation of independent journalists as well as xenophobic and intimidating rhetoric, civil society and election observers have noted, steered the election outcomes in favor of Fidesz. [Guardian: OSCE; HRW; Reuters: Protest] The Organisation for Security and Cooperation in Europe (OSCE), an intergovernmental body that monitors the elections of Member States, found that the incumbent Fidesz party exploited its current position in power to “[undermine] contestants’ ability to compete on an equal basis” through the use of intimidating rhetoric, media bias, and the government’s use of public money to support the campaign of the incumbent party to influence the voting public. See OSCE, Statement of Preliminary Findings and Conclusions (2018), 1. Echoing the OSCE, civil society organizations raised concerns over Fidesz’s practice of smearing journalists and non-governmental organizations (NGOs) that oppose the party’s views, and over the government’s support, announced a day after the election, of a law that would limit the activities of civil society working with migrants and refugees. [HRW; HHC Press Release] Protesters gathered in Budapest over the weekend referring to the election as unfair and calling for a free media. [Reuters: Protest] Before the election, the United Nations High Commissioner for Human Rights raised concerns over the “racist and xenophobic” rhetoric of Orbán and the undermining of the independence of the press and the judiciary. [OHCHR Press Release] Under the International Covenant on Civil and Political Rights (ICCPR), Hungary is obligated to ensure the rights to non-discrimination, to freedom of expression, to freedom of association, and to vote. Read more
In March 2018, several universal and regional human rights bodies and experts will assess States’ compliance with their human rights obligations through the consideration of State and civil society reports, country visits, interactive dialogues, and hearings on individual complaints. Four United Nations treaty bodies will be holding sessions throughout March on the rights of persons with disabilities; the rights of women; economic, social, and cultural rights; and civil and political rights. The UN Human Rights Council will continue its session from last month. Additionally, one UN rapporteur, two UN independent experts, and one UN working group will conduct country visits this month.
Regionally, the African Court on Human and Peoples’ Rights (AfCHPR) will continue its session from last month, and will consider the admissibility and merits of pending complaints before the Court. The Grand Chamber of the European Court of Human Rights (ECtHR) will hear arguments in three cases, two on the right to life and one on the right to property, and the European Committee of Social Rights (ECSR) will be in session. Additionally, the Inter-American Court of Human Rights (IACtHR) and the Inter-American Commission on Human Rights (IACHR) will be in session, and will hold public hearings during those sessions.
The UN treaty body sessions and the public hearings of the European Court, Inter-American Commission, and Inter-American Court may be watched via UN Web TV, the European Court’s website, the Inter-American Commission’s website and Vimeo, respectively. To view human rights bodies’ past and future activities, visit the IJRC Hearings & Sessions Calendar.
This month, the International Criminal Court (ICC), the Inter-American Commission on Human Rights (IACHR), and United Nations special procedures mandate holders all took steps to expose Venezuelan President Nicolas Maduro’s regime’s responsibility for human rights violations and international crimes committed against the Venezuelan population. On February 8, the prosecutor of the ICC announced that she opened a preliminary examination into the situation in Venezuela. The preliminary examination will study, since April 2017, the use of excessive force by State security forces to disperse and end demonstrations and the arrest and detention of thousands of perceived members of the opposition, some of whom have allegedly been subjected to abuse and ill-treatment during their detention. [ICC Press Release] On February 12, the IACHR published and presented to the Organization of American States its report on the human rights situation in Venezuela in 2016 and 2017, noting the deterioration of human rights in Venezuela, and in particular the political, economic, and social crisis in the country. [IACHR Press Release] A group of independent experts at the UN consisting of the Special Rapporteur on the right to adequate housing as a component of the right to an adequate standard of living, and on the right to non-discrimination in this context; Special Rapporteur on the right to food; Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health; and the Special Rapporteur on extreme poverty and human rights released a statement on February 9 that asserts that the degradation of human rights in Venezuela has led to the starvation, deprivation of necessary medicine, lack of necessary hygiene products, and deterioration of living conditions for a large number of Venezuelans. [OHCHR Press Release: Experts]
In the last two months, the Organization of American States (OAS) held unprecedented hearings to gather witness testimony on the situation in Venezuela to determine whether to refer the State to the International Criminal Court (ICC). [OAS Press Release: First Session; OAS Press Release: Second Session] In the sessions of hearings held so far, the OAS has heard testimony from activists, former members of the Venezuelan government and judiciary, and former members of the Bolivian National Armed Forces, among others; their testimony has described arbitrary arrests and detention, extrajudicial killings, and cruel and degrading treatment. [Moreno Ocampo] Luis Moreno Ocampo, a former ICC prosecutor and current Special Adviser on Crimes against Humanity (Special Advisor) at the OAS, convened the two public sessions of hearings – one in September and one in October – at the OAS headquarters in Washington, D.C.; he may convene additional sessions in November. [OAS Press Release: Adviser; OAS Press Release: First Session; OAS Press Release: Second Session]
In July, the OAS Secretary General, Luis Almagro, designated Moreno Ocampo as Special Adviser, and as such, Moreno Ocampo is tasked with analyzing, studying, and debating the ongoing situation in Venezuela with interested parties to determine whether the State committed crimes against humanity and can be referred to the ICC. [OAS Press Release: Adviser] Accordingly, the sessions were held to examine whether the abuses by the Venezuelan government rise to the level of crimes against humanity and if they were committed in a widespread and systematic manner. [OAS Press Release: First Session; OAS Press Release: Second Session; Moreno Ocampo] The testimony gathered in the sessions will contribute to a final report, along with information submitted by additional organizations; the Independent Panel of International Experts, appointed by the OAS Secretary General in September, will review the report and recommend it to the Secretary General. [OAS Press Release: Independent Panel] This is the first time that the regional body has held sessions with the purpose of referring a Member State to the ICC. Read more