#DefendingTheDefenders – Episode 7: UN Special Rapporteur Margaret Satterthwaite
On the 24th of January, the Day of the Endangered Lawyer, we conclude our podcast with a conversation with Margaret Satterthwaite. She is a professor of Clinical Law at New York University and was appointed as United Nations Special Rapporteur on the independence of judges and lawyers in October 2022. We talk about global trends in challenges to the independence of lawyers, and we talk about structural problems that need to be addressed to defend the defenders around the globe.
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Ernüchternde Klimakonferenz und ihre Lehren
Die diesjährige UN-Klimakonferenz wurde mit kaum positiven Ergebnissen abgeschlossen. Es ist auf globaler Ebene nicht gelungen, sich auf ehrgeizigere Klimaschutzziele zu einigen. Zwar gab es in einigen Bereichen positive erste Schritte, komplexe Verhandlungspunkte wurden aber größtenteils auf das nächste Jahr verschoben. Dabei fand die COP27 in Sharm el Sheikh unter schwierigen Bedingungen statt. Hier ein kurzer Überblick, welche Ergebnisse – auch am Rande der offiziellen Verhandlungen – trotzdem erzielt werden konnten und was wir für das nächste Jahr lernen können.
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Intransparenz führt zu mehr Intransparenz
Als ich vor ein paar Wochen zugesagt habe, live von der COP27 in Sharm el Sheik einen Beitrag zu schreiben, waren unsere Erwartungen hoch. Ich arbeite für ein Forschungsinstitut, bei den Vereinten Nationen sind wir als Nichtregierungsorganisation registriert. Auf meinem Badge, meiner Eintrittskarte zur Konferenz, steht deshalb der große gelbe Schriftzug OBSERVER. Ich kann also die 27. Staaten-Klimakonferenz beobachten. Was heißt beobachten? Erstaunlich wenig.
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Threats to Academic Freedom under the Guise of Open Access
The Budapest Open Access Initiative is celebrating its 20th anniversary and today it seems that we are closer than ever to finally concluding the “access revolution” predicted by many since the arrival of the internet. Yet, developments in the publishing system increasingly suggest that the access revolution is much less revolutionary than expected. Reports gradually bring to light the extent to which publishers started to use the data tracking tools developed by “pioneers” such as Google and Facebook. This development could not only be the final blow for the Open Access movement’s potential to more radically and structurally change the way knowledge is being disseminated in the digital age but pose a systematic threat to the autonomy of the science system and academic freedom in the digital age.
Continue reading >>Swipe up for the German Federal Constitutional Court on Instagram
Shortly before noon on 18 August, on an ordinary Wednesday, the German Federal Constitutional Court quietly but firmly took the plunge into the unknown: it published a press release announcing its opening of an official account on Instagram on the occasion of its 70th anniversary. This decision has attracted significant public attention, not only because it promises “exciting insights into the work of Germany’s highest court” but also because the new visual turn of the GFCC is in line with a wider development in the use of social media by courts and judicial storytelling.
Continue reading >>Navigating an Ocean of Information
Since 1982, States have sent Youth Delegates to the General Assembly as part of the official UN Youth Delegate Programme. However, information on youth delegates, their past agendas and speeches is hard to come by. There is no central repository that is publicly available and would list all past youth delegates and the statements they delivered. In order to close this gap, we have created Youth Delegate Search, a platform dedicated to making speeches of Youth Delegates easily accessible. We believe that with this database we also created a potential for transforming both academic research and practice in the domain of youth participation.
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The World Turned Upside Down
Gates’ charitable foundation and the World Health Organization launched the app ‘GoGiveOne’ where individuals can donate money to ensure ‘vaccines for everyone, everywhere’. It sounds like an opportunity to respond to the crisis. But individualizing a structural problem prevents any real solution to it.
Continue reading >>Defending Plurality
Academic freedom is under attack, both in authoritarian democracies, such as Hungary and Turkey, and in liberal Western democracies, such as the United States, the UK, France and Germany. However, dominant discourses about academic freedom and free speech in the global north, lately especially in France and Germany, focus on an alleged threat to academic freedom through "political correctness" and "cancel culture", that, under scrutiny, often turn out to be exactly the opposite, namely defences of plurality and critical voices.
Continue reading >>Mediterranean Responsibilities
This week, the UN Human Rights committee issued a long-awaited decision concerning a distress case in the Mediterranean back in 2013. 400 migrants were on board of a vessel which sunk within the Maltese Search and Rescue zone but in vicinity of the Italian island of Lampedusa. At least 200 persons died. The decision of the Committee is somewhat of a milestone. This blog post depicts the most important legal aspects of the Committee’s decision, with special regard to the broader setting of maritime migration and States’ responsibilities.
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Speaking of Solidarity
Today the official deadline for members of the World Trade Organization (WTO) to submit a report to its General Council on a waiver proposal expires. This waiver would allow WTO members not to comply with certain obligations of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) for a limited amount of time in order to be able to effectively prevent, contain and treat COVID-19. For now, members have failed to take this first step towards a temporary suspension of TRIPS obligations but they agreed to continue the discussions beyond today's deadline. Nonetheless, the proposal highlights that intellectual property rights can not only act as an obstacle to global and just access to vaccines and medical equipment but also that the exisiting legal framework is inadequate to tackle crises like the COVID-19 pandemic.
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No “Censor for the World”
Will the internet become a “worldwide censorship machine”? Has the “risk that a single EU court within a single EU member state would become the censor for the world” been realized? Not quite. Much of the critique of the recent Austrian Supreme Court ruling Glawischnig-Piesczek/Facebook Ireland Limited is based on a wrong reading of the law and policy behind the judgment.
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Learning from the Coronavirus Pandemic for Environmental Policy
The Covid-19 pandemic has thrown the world into a deep social, cultural and economic crisis. Crisis literally means turning point. The question then is: in what direction are we turning? One could be towards the ever worse ending in deep despair. Such trajectory is indeed highly probable, especially if we take the perspective of those who have long suffered from civil and proxy wars, failing governments, droughts and cyclones, or the financial meltdown. However, rather than getting stuck in desperation a different perspective is also possible, and I will concentrate on that. It is to see the current crisis as a potential turning point to the better, as a window of opportunity for sounder politics and policy.
Continue reading >>Effective Pandemic Management Requires the Rule of Law and Good Governance
Nine months since the declaration of the novel SARS-CoV-2 virus as a global health emergency by the WHO, and we know much more about the virus, including transmission and control. Governments, however, are still operating in emergency mode and relying on emergency powers to the exclusion and suspension of the ordinary functioning of the state. Such suspension of the normal functioning of parliamentary control and judicial oversight exposes one of the most damaging fallacies of crisis: that emergency management requires the suspension of rights, the rule of law and good governance.
Continue reading >>Confronting Misinformation During A Pandemic
A new report by The Freedom House tracks recent developments in internet-freedom and presents the “Pandemic’s Digital Shadow” on democratic values around the world. The report explains how governments worldwide used the covid-19 pandemic to limit access to information, expand their surveillance efforts, and intensify the balkanization of the internet. It raises the question what democracies should, and should not, do to confront the perils of misinformation.
Continue reading >>In Defence of Green Civil Disobedience
Throughout history, failure of the state to address and redress pressing social problems has given rise to political acts of civil disobedience. While activists typically claim that their illegal actions are justified either legally or morally in that they are necessary to protect a higher good, such necessity defences have so far been ‘notoriously unsuccessful’ before courts. Recent judicial developments suggest that this may be about to change, and that unlawful protest can be a legitimate response to a persistent pattern of state inaction.
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Bad Role Models
Over the past several months, there has been an increase in asylum seekers and refugees crossing the English Channel in small inflatable boats. This prompted the UK government to propose stemming arrivals with an Australian-style approach: ‘pushing back’ boats to France before they can reach British territorial waters. The UK already funds France to prevent asylum seekers leaving French territory through ‘pullback’ measures. Such pushback and pullback practices likely violate several international refugee, human rights and law of the sea obligations.
Continue reading >>Technology and Law Going Mental
On 28 August 2020, Neuralink gave a much anticipated update on their progress to connect humans and computers. In the near future, the activities within our brain will be recorded, analysed, and altered, shaking our conception of inaccessible mental processes. A multitude of legal issues will arise, in particular to what extent fundamental and human rights protect mental processes and neurological data collected by (therapeutic or enhancing) brain-computer interfaces (BCIs) from being accessed by states without the individual’s consent. To date, however, there remains a significant gap as neurological data does not enjoy absolute protection from any interference within the existing European human and fundamental rights frameworks. This gap could be remedied by introducing new mental rights.
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The Africanization of International Investment Disputes – from Past to Present
The depiction of Third World resistance to investor-state dispute settlement as a homogeneous one is an oversimplification. While the plurality of Third World Approaches to International Law scholarship is emphasized by its name (“Approaches”), descriptions such as ‘Third World’ and ‘Global South’ tend to leave room for generalization and simplification. Such a simplification may easily discourage flows of much needed capital into African states. I will show that African states have been rather instrumental in shaping today’s ISDS regime and outline an African approach to international investment law.
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One day (Vandaag) …
Yes I do ... have a migration background. Yet, due to mere genetic randomness, my “Germanness” has hardly ever been challenged – at least until the moment when it comes to the correct spelling of my family name: “KHan” not “KaHn” – Dschinghis, not Oliver – please! Occasionally, I still get carried away with coquetting in my lectures: “I would be inclined to say – I am a case of successful integration.” Some students may then be slightly embarrassed, in particular after a controversial discussion about immigration policy. But that’s it basically, my personal home story about “racism”! But to be very clear and unambiguous: my father’s story is a much longer and a much more painful one! But that’s another story.
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To Vote or Not to Vote?
The COVID-19 pandemic poses considerable challenges to democracies across the world. This is particularly apparent with regard to the holding of elections which states have approached in various ways. States face the following tension: On the one hand, the obligation to protect the rights to health and life requires states to limit the spread of the pandemic by reducing human-to-human contact. At the same time, these measures encroach upon the right to political participation. Against that background, an intricate balancing of the various interests in light of international human rights law seems necessary.
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Investment Law in Corona Times: How Myths Fuel Injustice
One of the leitmotivs of the discourse around the pandemic is that ‘there cannot be going back to business as usual’ (see here and here). Yet, it is business as usual that is alarmingly looming in Corona times. In this context, at least two developments are worthy of note: the first is the much discussed risk of a wave of Covid-related investment claims. The second, possibly less noticed, is that countries are silently expanding the scope of a system that does not adequately strengthen sustainability in economic relations, despite laconic initiatives to this purpose.
Continue reading >>States of Emergency
The fifty days of the ‘COVID-19 and States of emergency’ Symposium covered the height of the global legal reaction to the pandemic, offering a snapshot of countries in collective crisis. It began with a call for a global conversation on the kind of legal norms which should govern the situation of worldwide pandemic. This final contribution aims to trace the central themes, questions and issues raised by the Symposium.
Continue reading >>Impacts of COVID-19 – The Global Access to Justice Survey
In addition to initiating a humanitarian crisis, the coronavirus outbreak is triggering multiple impacts (social, political, economic, environmental etc.) on the global stage, whose consequences – both negative and positive – were not only unforeseen, but remain unpredictable. We can be sure, however, that they will inevitably touch, one way or another, our justice and legal aid systems.
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The Rule of Law Stress Test: EU Member States’ Responses to COVID-19
By mid-March, all EU member states were in a state of emergency, whether they officially declared one or not. Across the EU many human rights were severely restricted, particularly the right to free movement. Not every state of emergency is the same, however. Some exceed what is foreseen in international human rights law.
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Democracy and the Global Emergency – Shared Experiences, Starkly Uneven Impacts
Curating analysis of these developments since early April through the COVID-DEM project, and reading across the 62 published contributions to this outstanding symposium, there are clear commonalities across all democracies affected. Beyond these commonalities, the effect of the COVID-19 response on the democratic system has been – and will be – starkly uneven across democracies worldwide, due to the different democratic ‘starting point’ of each state as the pandemic hit.
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Is there a space for federalism in times of emergency?
In many legal cultures, federalism is the real “F word”. It stands for inequality, privileges, inefficiency. For many, there seems to be an inherent contradiction between the obvious requirement of a coordinated line of command in case of emergency and a pluralistic territorial structure. A closer look at the comparative practice shows a different picture. Has federalism really been an obstacle to effective decision-making? Or rather the opposite?
Continue reading >>Human Rights – The Essential Frame of Reference in the Global Response to COVID-19
It is mistaken to conceive of COVID-19 principally as a threat whose eradication necessarily requires rights to be sacrificed. Rather, human rights standards and principles offer a means of transparently balancing competing interests and priorities in the cauldron of COVID-19 decision-making – and rights-respecting measures which secure public confidence are likely to be more effective and sustainable over time than arbitrary or repressive ones.
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Dissecting Covid-19 Derogations
Does the pandemic require derogation from human rights treaties? This […]
Continue reading >>COVID-19 and the Need for a Holistic and Integral Approach to Human Rights Protection
While the pandemic is global, the challenges the individual regions are currently facing in their combat against COVID-19 are different and specific. In Latin America, the combat is embedded in a context of deep social and economic inequality, systematic violence and poverty. As the crisis is likely to exacerbate these structural inequalities it is clear that its implications must be examined in the light of human rights and in the light of intersectionality.
Continue reading >>The Law of the WHO, COVID-19 and the Multilateral World Order
A new virus, SARS-CoV-2, emerged in the Chinese city of Wuhan at the end of 2019. Infected persons developed an atypical form of pneumonia, later known as COVID-19. The pathogen created a pandemic, with fatalities throughout the world, and also led to the adoption of restrictive measures which were, until recently, unthinkable, as well as fostering new political conflicts. Even the path of the multilateral order in its current form is at stake. For a take on these issues under international law, the legal regime of the World Health Organization (WHO) and its response to the pandemic provides an insightful access.
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