Skip to main content

2019 | Buch

Use and Misuse of New Technologies

Contemporary Challenges in International and European Law

insite
SUCHEN

Über dieses Buch

The ever-increasing use of technology is challenging the current status of the law, bringing about new problems and questions. The book addresses this trend from the perspective of International law and European Union law and is divided into three main thematic sections. The first section focuses on the legal implications of the use of technology either for law enforcement purposes or in the context of military activities, and examines how this use adds a new dimension to perennial issues, such as the uneasy balance between security concerns and the protection of individual rights, and defining the exact scope of certain State obligations. In so doing, it takes into account a range of current and potential scenarios at the international, regional and domestic level, including the use of killer robots, databases, drones and technology in general to patrol borders, exchange information on criminal suspects, maintain public order, target suspected terrorists and conduct military activities. In turn, the second section examines the role of institutional and non-institutional actors in establishing substantive normative standards for the use of high-tech applications. In this respect, it focuses both on the role that European courts have played so far, and on how other actors’ initiatives can contribute to the construction of a new legal framework for technology-related activities. Lastly, the third section has a two-fold focus: the first part investigates how the increasing reliance on technology is affecting traditional rules on international responsibility, and is challenging, in particular, the attribution of wrongful conduct to States and international organizations. The second part addresses issues of jurisdiction and justiciability. Given the scope of its coverage, this timely book addresses an important lacuna in the current legal scholarship, exploring some of the most recent applications of technology and the legal issues arising as a result. Readers will gain novel insights into the challenges posed to International law and European law by the growing reliance on technology, taking into account both its uses and misuses.

Inhaltsverzeichnis

Frontmatter
Correction to: The Construction of a Normative Framework for Technology-Driven Innovations: A Legal Theory Perspective
Francesco De Vanna

Legal Implications of the Use of New Technologies in Law Enforcement Activities and Beyond

Frontmatter
High-Tech Migration Control in the EU and Beyond: The Legal Challenges of “Enhanced Interoperability”
Abstract
New technologies are transforming human mobility while raising new legal issues. This is also affecting the control of migratory flows, with an increasing recourse to sensor technology and unmanned aerial vehicles. In the European Union, this trend is coupled with an acceleration of the standardisation process of computer systems’ interconnection, aimed at fine tuning access to information and personal data by surveillance authorities. The Chapter depicts the normative, institutional and operational design of the Union as an area in which the lion’s share of internal security is ensured through new technologies and information systems. It then turns to analyse the legal challenges arising from the crafting of “smart borders”, i.e. borders based upon automation of surveillance and system interoperability. Two main research questions are tackled: first, how these new features affect the EU integrated border management; and, second, whether the existing legal framework of EU law can accommodate this change. Apparently, the search for enhanced interoperability may stretch even further the tensions underpinning the Area of Freedom, Security and Justice, so that the more interoperable EU surveillance systems become, the less coherent the EU legal order risks being.
Philip Hanke, Daniela Vitiello
Swords Shielding Security? The Use of Databases in Criminal Cooperation within the European Union: Challenges and Prospects
Abstract
This Chapter analyses the changing scenario of information technology cooperation for law enforcement purposes in the EU. It proposes a taxonomy of existing information cooperation tools, based on two criteria: the cooperation techniques and the institutional settings governing information exchange. On this basis, the analysis briefly addresses the increasing involvement of private (economic) actors in contributing to cooperation in criminal matters and the quest for a higher degree of interoperability among various information systems. While highlighting the risks connected to prioritizing security concerns, the Chapter also underscores the integrative potential of information cooperation in a common European space without internal borders.
Stefano Montaldo
What Do Human Rights Really Say About the Use of Autonomous Weapons Systems for Law Enforcement Purposes?
Abstract
This Chapter supports the view that human rights can help cutting through the fog of the concept of autonomy in weapons systems for law enforcement purposes. Building on the ongoing debate, it will be argued that an approach based on international human rights law would clarify that the only possible and acceptable definition of autonomy implies a meaningful human control on the activities of autonomous weapons systems, thus fostering the idea that a ban on fully autonomous machines is desirable. Such a conclusion will be reached after an analysis of States’ positive obligations to protect human rights during law enforcement operations, in particular the right to life and the right to privacy.
Andrea Spagnolo
Training and Education of Armed Forces in the Age of High-Tech Hostilities
Abstract
In recent decades, new technologies have so radically changed current warfare that, as a consequence, the very law of armed conflict had to be applied to new means and methods of warfare, such as unmanned aerial vehicles and cyber attacks, as well as autonomous weapon systems. This Chapter explores the impact of this high-tech trend on the education and training of the personnel of armed forces from two different perspectives. First, it explores what military training duties States have with respect to high-tech means and methods of warfare and, in particular, whether the law of armed conflict requires that States employing them provide specific military training to their armed forces. It is argued that States may be held responsible for the inadequate training of their soldiers in situations where this results in a violation of the principle of precaution. Second, the analysis aims at establishing whether a duty to provide international humanitarian law education and training exists with specific regard to high-tech means and methods of warfare, in light of State practice regarding the dissemination of international humanitarian law. Arguably, although a significant trend regarding the supply of specific instructions and education pertaining to high-tech means and methods of warfare does exist, the lack of a specific international humanitarian law education and training focusing on high-tech means and methods of warfare may not be considered a violation of international humanitarian law in every case.
Marco Longobardo
Drones at War: The Military Use of Unmanned Aerial Vehicles and International Law
Abstract
The use of Unmanned Aerial Vehicles (UAVs) in the military field has become an issue of increasing concern in the international community. As practice grows (notably, due to the frequent use of such equipment in various countries, either involved or not in armed conflicts), so does case law on its contentious aspects. In this respect, the concept of “border” is of paramount importance, both in its physical meaning (territorial border of the State) and in its legal sense (delimitation of the area where sovereignty is exercised and other States’ intrusion is prevented). Against this background, the Chapter examines the responsibility of the State for cross-border activities, in connection with the use of remotely piloted drones in light of three bodies of international law: the law governing the use of force, in relation to the concept of territorial borders and sovereignty of States; international human rights law, as regards the extraterritorial application of human rights treaties; and international humanitarian law, with particular reference to the law of neutrality and the evolving concept of “battlefield” during an armed conflict.
Claudia Candelmo

The Role of Courts and Other Actors in Defining Normative Standards for Technology-Related Challenges

Frontmatter
The EU as a Global Standard Setting Actor: The Case of Data Transfers to Third Countries
Abstract
The Chapter analyses the framework on the basis of which data collected in the European Union (EU) can be legitimately transferred to a third country, as well as the role of EU and national authorities in the context of the adequacy procedure. It also gives an account of recent developments in the context of data transfers, looking especially at the Schrems judgment and at the recently adopted Privacy Shield framework. The aim of the Chapter is to understand the potential role of the adequacy mechanism in the development of a common standard of fundamental rights protection, based on the concept of the EU as a normative power on the international level.
Stefano Saluzzo
The Passenger Name Record Case: Profiling Privacy and Data Protection Issues in Light of CJEU’s Opinion 1/15
Abstract
On 26 July 2017 the Court of Justice of the European Union issued Opinion 1/15 on the compatibility with EU fundamental rights of the draft agreement between the European Union and Canada on the transfer of Passenger Name Record data. In particular, it is the first ruling concerning the compatibility of a draft international agreement with the EU Charter of Fundamental Rights, notably with its Articles 7 and 8, on the right to respect for private life and the right to the protection of personal data. The Opinion, which found a profound incompatibility between the agreement and the Charter, apparently entails significant consequences for the international relations of the Union and the fate of the EU Passenger Name Record framework as a whole, including the regional scheme recently introduced by Directive 2016/681/UE.
Valentina Nardone
The European Court of Human Rights Shaping Family Life in Cross-border Surrogacy: The Paradiso et Campanelli Case
Abstract
Cross-border surrogacy has become increasingly common: people from countries where surrogacy is forbidden make recourse to it abroad. Yet, the home country’s ban on surrogacy may prevent the continuity of the family status established abroad. Such cases have been brought also before the European Court of Human Rights for the alleged violation of Article 8 of the European Convention on Human Rights. The judgment that the Grand Chamber issued in the Paradiso et Campanelli c. Italie case is significant for the interaction between the determination of family life and the technological nature of modern surrogate motherhood. The denial that there had been de facto family life raises doubts because of the weight given to the time factor and to the absence of genetic and legally recognised ties between the intending parents and the child born from surrogacy. Still, having found that there had been no family life, the Grand Chamber did not need to balance the right to respect for family life against the State margin of appreciation, which would have proved difficult. It is suggested that the difficulties in balancing the protection of family unity against the State margin of appreciation are due to the technological nature of contemporary surrogate motherhood. Additionally, should surrogacy become increasingly permitted, the Paradiso et Campanelli final judgment would not hinder the European Court of Human Rights from finding the existence of de facto family life and a breach of Article 8 of the European Convention on Human Rights in cases where the child born from surrogacy were separated from their intending parents.
Mario Gervasi
Hybrid Governance or… Nothing? The EU Code of Conduct on Combatting Illegal Hate Speech Online
Abstract
Ever since the emergence of the social media platforms as the all-encompassing providers of communication, information and entertainment, the Internet has been considered a community-made and governed space. This utopia, however, was bound to be challenged by the exigencies related to the spill-over effects of virtual activity to the very real, physical world, on the one hand, and, on the other, the need to regulate the nominally illegal behaviours of individuals in the virtual realm, such as online hate speech. The two phenomena are often inter-connected. Against this background, this Chapter aims to shed light on the emerging role of the Internet Service Providers (ISPs) who control the virtual environment where illegal behaviours may occur. Whilst not responsible for what, prima facie, is published, it is argued that the ISPs are an essential element in the enforcement of hate speech criminal rules, as confirmed by the European Commission’s Code of Conduct on Combatting Illegal Hate Speech Online. This governance instrument exemplifies the essentiality of the ISPs collaboration with the traditional enforcement agents in ensuring the blocking and removal of content online, as well as in subsequent criminal proceedings. At the same time, by involving the representatives of the broader community in monitoring the implementation of the Code, the mixed hybrid governance and enforcement model offers a possible (even if imperfect) solution to the current deadlock in the regulation of Internet governance.
Karolina Podstawa
The Construction of a Normative Framework for Technology-Driven Innovations: A Legal Theory Perspective
Abstract
Technology developments change the way we conceive the normative force of law and legal systems. Traditionally based on written texts, and on their interpretation by a professional class of jurists, normativity seems nowadays to migrate into technological devices, increasing the performative effect of regulation. This shift calls into question the “flexibility” of law as a fundamental performance of the rule of law and of constitutional democracy. These problems can only be addressed by taking into consideration the multifactorial prism of regulation, in a pluralistic dimension that has been highlighted by studies on the architectural dimension of cyberspace and, in particular, on the “code”. In this perspective, asserting that technological devices are sheer “instruments” divested of normative implications is anything but an illusion: their regulative force, in fact, is embedded in their own “design” from the outset. Before envisaging scenarios dominated by ungovernable technology, it is therefore useful to emphasize the “responsibility” of coders and operators. In this way, the question of human responsibility re-emerges as a crucial factor for the elaboration of a normative framework that preserves the conditions of an intersubjective coexistence marked by freedom.
Francesco De Vanna

Addressing Violations Deriving from the Use of New Technologies: Issues of Responsibility and Judicial Protection

Frontmatter
Who Is to Blame for Autonomous Weapons Systems’ Misdoings?
Abstract
This Chapter analyses who (or what legal entity) should be held responsible for behaviours by Autonomous Weapons Systems (AWS) that, were they enacted by a human agent, would qualify as internationally wrongful acts. After illustrating the structural problems which make ascription of responsibility for AWS’ activities particularly difficult, when not impossible, the alternative routes proposed to solve the ensuing responsibility gap will be assessed. The analysis will focus, in the first place, on the international criminal responsibility of the individuals who, in one way or another, are involved in the process of production, deployment and activation of the AWS. The possibility to hold the deploying State accountable for AWS’ wrongdoings will then be gauged. Subsequently, attention will be paid to the responsibility of the corporations manufacturing and/or programming the AWS. It will be observed that these options may solve some responsibility problems more effectively than critics of AWS are ready to admit. At the same time, it will be shown that, unless a no-fault liability regime is adopted, autonomy in weapons systems is bound to magnify the risk that no one may be held to answer for acts which are objectively in contrast with international legal prescriptions. Also, it will be argued that, given the complementary relationship among the various forms of responsibility under international law, proposals aimed at focusing solely on one of these at the expense of others are incapable of leading to satisfying results.
Daniele Amoroso, Benedetta Giordano
Attribution to State of Cyber Operations Conducted by Non-State Actors
Abstract
State-sponsored cyber operations constitute a real challenge for the law of State responsibility. One of the main issues is the impossibility in most cases, at least to date, to identify clearly the perpetrators of cyber operations, either individuals or State agents, and to determine whether their conducts are attributable to States or other subjects of international law. Most cyber operations generally alleged to be state-sponsored have not been clearly attributed to a State yet. International law cannot bring a solution to the technical problem of attribution. However, attribution cannot be limited to its technical aspects. Generally, attribution of cyber conducts has three different dimensions: firstly, the attribution to the machine from which the cyber operation was launched or had transited; secondly, the attribution to the person who conducted the cyber operations; and thirdly, the attribution to an aggregate entity, notably a State. The present Chapter focuses on attribution from an international law perspective, that is to say attribution of a conduct to a State or another subject of international law. More specifically, it focuses on the specific question of attribution of cyber operations conducted by non-state actors under the instructions, direction or control of the State.
François Delerue
The Use of Unarmed Drones in UN Peacekeeping Operations: Issues of Attribution
Abstract
The use of drones is typically associated with targeting strikes. Hence, it comes as no surprise that the debate on the opportunity for the United Nations to make use of this technology is still dominated by concerns on the “killer drones”. This Chapter emphasizes, instead, the magnitude and the crucial importance of the use of unarmed drones by the United Nations in missions conducted under their aegis. In peacekeeping operations in particular, unarmed drones are essential for fulfilling the UN mandate, as they can perform several non-lethal functions (i.e. monitoring, information gathering, surveillance and reconnaissance). However, drones—although unarmed and employed for peaceful purposes—pose a number of legal issues, particularly from the perspective of the protection of human rights and the liability of their operators. An often overlooked question relates to the (mis)use of drones by private actors who have been contracted by the United Nations to remotely operate the vehicles from ground stations and to collect, store and analyse the data thus captured. This issue will be tackled from the perspective of the Draft Articles on the Responsibility of International Organizations with the aim to assess whether private actors operating the drones can be considered as “agents” of the United Nations, thereby directly imputing their potential wrongdoings to the Organization for whom they have been contracted.
Martina Buscemi
Digital Rights and Jurisdiction: The European Approach to Online Defamation and IPRs Infringements
Abstract
The new media and communication technologies have significantly increased the number of online cross-border disputes involving the security and protection of personal identity as well as of intellectual property creations. The persistent lack of a uniform private international law approach on the matter determines a substantial gap in Internet governance, which results in the application of domestic rules or, where existing, of regional ones. This legal scenario is conducive to conflicts of jurisdiction and, ultimately, to legal uncertainty and instances of forum shopping. The Chapter focuses on the allocation of adjudicative jurisdiction at European level by examining the current EU approach to cross-border online disputes resolution involving the main types of infringements of digital rights (notably, personality rights and IPRs). The absence of EU rules on jurisdiction concerning online tort disputes has encouraged the elaboration of a prolific and controversial case law of the CJEU over the interpretation of Article 7(2) of Brussels I-bis Regulation (i.e. eDate, BOÜ/Ilsjan, Wintergeister, Pinckney and Hejduk rulings). The Chapter provides a thorough and critical insight over the characteristics and trends of this development and comes to propose a brand-new “less is more” normative approach, aimed at reducing the range of eligible fora in light of a well-balanced system of assessment of the competing interests involved.
Ornella Feraci
Enforcing the Right to Be Forgotten Beyond EU Borders
Abstract
Determining the reach of the right to be forgotten beyond EU borders requires a two-step test. First, it is necessary to verify whether the situation falls within the territorial scope of the General Data Protection Regulation. Second, where the right is enforced against a search engine, it must be established whether it needs to be implemented globally or only within the EU. Both operations raise significant interpretive issues. While rejecting the widespread claim that the connecting factors adopted in the Regulation imply a jurisdictional overreach, the chapter points to some difficulties in the implementation of the right to be forgotten, critically discussing the alternative approaches which have been proposed.
Alberto Miglio
Overflying Justiciability? Drones and Avoidance Doctrines Before National Courts
Abstract
In recent years much research has been dedicated to targeted killing, an issue often considered in relation to the deployment of new technologies such as unmanned aerial vehicles.
Quite surprisingly, however, not much attention has been devoted to access to justice for victims of drone strikes. This matter is rapidly gaining momentum as a considerable number of cases have been brought to court by victims of killing by drone in these last years, and many more such cases should be expected to ensue in the near future.
Against this background, this article will show that the great majority of domestic suits related to targeted killing have been dismissed on procedural grounds before ever reaching an adjudication on their merits, mainly as a result of domestic courts’ reliance on non-justiciability theories (or avoidance doctrines). The article will thus unveil that, due to the particular nature and features of drone strikes, the application of avoidance doctrines to cases ensuing from unlawful killing by unmanned aerial vehicles has the effect of leaving victims’ demands for justice absolutely frustrated, thus effectively placing them outside the protection of the law. So that application of traditional theories on justiciability to new lethal practices ensuing from previously unforeseeable technical evolutions makes it possible for States to “kill in large numbers and to the sound of trumpets”, while segregating victims to “die in the silence of courts”.
Being this the case, the article will look into the specificity of drone strikes from an opposite angle, trying to turn the peculiarities of this weapon platform into a chance to pursue accountability and reparation throughout multiple proceedings in alternative jurisdictions.
Luca Gervasoni

Conclusions

Frontmatter
New Technologies in International (and European) Law—Contemporary Challenges and Returning Issues
Abstract
The article argues that the contributions gathered in the book help to dispel the “fog of technologies”, i.e., the uncertainty lawyers face when confronting the challenges posed by new technologies. Overall, the chapters are effective in dealing with the challenges that new technologies pose for International and European law at the three different levels of spaces, actors and governance and they eventually contribute to provide an updated and complete overview of this complex issues.
Maurizio Arcari
Metadaten
Titel
Use and Misuse of New Technologies
herausgegeben von
Dr. Elena Carpanelli
Dr. Nicole Lazzerini
Copyright-Jahr
2019
Electronic ISBN
978-3-030-05648-3
Print ISBN
978-3-030-05647-6
DOI
https://doi.org/10.1007/978-3-030-05648-3