The EU Data Retention Directive compelled telephone and Internet companies to retain traffic and location data as well as related data necessary to identify the subscriber or user for the purpose of the prevention, investigation, detection and prosecution of serious crime, such as, in particular, organised crime and terrorism.

The European Court of Justice had to issue a preliminary ruling concerning the validity of Directive 2006/24/CE of the European Parliament and of the Council of 15 March 2006. The request addressed to the European Court has its origin in a case triggered in Ireland by Digital Rights Ireland. The Court joined this case with another request made by the Austrian Constitutional Court concerning the compatibility with the Federal Constitutional Law of the law transposing Directive 2006/24 into Austrian national law.

The Court has found that data retention entails a wide ranging and particularly serious interference with the fundamental right to privacy... "The Court observes first of all that the data to be retained makes it possible, in particular :

• to know the identity of the person with whom a subscriber or registered user has communicated and by what means,
• to identify the time of the communication as well as the place from which that communication took place and
• to know the frequency of the communications of the subscriber or registered user with certain persons during a given period."

"Those data, taken as a whole, may provide very precise information on the private lives of the persons whose data are retained, such as the habits of everyday life, permanent or temporary places of residence, daily or other movements, activities carried out, social relationships and the social environments frequented."

"The Court takes the view that, by requiring the retention of those data and by allowing the competent national authorities to access those data, the directive interferes in a particularly serious manner with the fundamental rights to respect for private life and to the protection of personal data."

The United States is implicated in a case currently pending before the European Court of Human Rights concerning two Guantánamo detainees who claim to have been tortured in Poland after an extraordinary rendition by the Central Intelligence Agency (the "CIA")

The applicants are Abd Al Rahim Hussayn Muhammad Al Nashiri, a Saudi Arabian national of Yemeni descent who was born in 1965; and Zayn Al-Abidin Muhammad Husayn, also known as Abu Zubaydah, a stateless Palestinian, who was born in 1971 in Saudi Arabia. Both men are currently detained in the Internment Facility at the U.S. Guantanamo Bay Naval Base in Cuba...

"Both applicants allege that they were victims of 'extraordinary renditions' by the CIA, that is, of apprehension and extrajudicial transfer to a secret detention site in Poland with the knowledge of the Polish authorities for the purpose of interrogation, during which they were tortured. Both men state that in December 2002 they were taken to Poland on board the same 'rendition plane'."

Both detainees' submissions are based in the so-called "Marty Reports", prepared by Swiss Senator Dick Marty, in 2006, 2007 and 2011, as rapporteur for the investigation conducted by the Parliamentary Assembly of the Council of Europe into allegations of secret detention facilities being run by the CIA in several Member States; they are also based on a report prepared by the CIA inspector general in 2004 on 'counterterrorism detention and interrogation activities' between September 2001 and October 2003. Their submissions also refer to a 2007 report by the International Committee for the Red Cross on the treatment of 'high value detainees' in CIA custody...

"The Marty Reports detail an intricate network of CIA detention and transfer in certain Council of Europe States. Among other things, the reports identify the secret detention centre in Poland as being located in the Stare Kiejkuty intelligence training base near the town of Szczytno in Northern Poland."

Mr Al Nashiri’s and Mr Husayn's complaints before the European Court of Human Rights relate to three principal issues: their torture, ill-treatment and incommunicado detention in Poland while in US custody; their transfer from Poland; and, Poland’s failure to conduct an effective investigation into the events."

"More recently, evidence has emerged that the CIA paid $15 million in cash to the intelligence service of Poland in order to make use of a secret detention site there to interrogate al-Qaeda suspects..."

Also, the Senate Intelligence Committee has produced a 6,300-page study, not available to the public yet, on the CIA Detention and Interrogation Program. Its Chairman, Dianne Feinstein, spoke on the Senate floor on 11 March 2014 in order to clarify the information that was published by the press concerning the CIA's intrusion and search of the Senate Select Committee's computers as well as the committee's acquisition of a certain internal CIA document known as the Panetta Review.

The debate surrounding the CIA's interrogation program is being revisited...

"The facts of this case involve a series of violations of the rights of the members of eight communities of the Kaliña and Lokono indigenous peoples of Suriname's Lower Marowijne River. The violations have to do with an existing legal framework that prevents recognition of the indigenous peoples' juridical personality, a situation that to this day continues to prevent the Kaliña and Lokono peoples from being able to protect their right to collective property.

In addition, the State has failed to establish the regulatory foundations that would allow for recognition of the right to collective ownership of the lands, territories, and natural resources of the Kaliña and Lokono indigenous peoples.

This lack of recognition has been accompanied by the issuance of individual land titles to non-indigenous persons; the granting of concessions and licenses to carry out mining operations in part of their ancestral territories; and the establishment and operation of three nature reserves in part of their ancestral territories..."

"Moreover, neither the granting and continued existence of mining concessions and licenses nor the establishment and ongoing operation of the nature reserves have been submitted to any consultation process designed to obtain the prior, free, and informed consent of the Kaliña and Lokono peoples.

All these developments have occurred in a context devoid of judicial protection, since no effective remedies exist in Suriname by which indigenous peoples can claim their rights.

The case was sent to the Inter-American Court on January 26, 2014, because after an extension was granted to the State of Suriname to carry out the Commission's recommendations, the Inter-American Commission had not received substantive information as to concrete progress in their implementation..."

"This case reflects a structural problem area involving a lack of recognition in domestic law of the juridical personality and right to collective property of indigenous peoples in Suriname..."

"It adopts an elastic definition of an "imminent" threat, saying it is not necessary for a specific attack to be in process when a target is found if the target is generally engaged in terrorist activities aimed at the United States. And it asserts that courts should not play a role in reviewing or restraining such decisions..."

Steven Aftergood, from the Project on Government Secrecy of the Federation of American Scientists, informs that "the belated release of the White Paper may have been dictated by tactical considerations intended to evade an ACLU FOIA lawsuit for related records", as suggested by Marcy Wheeler at Emptywheel.

This program collects the reactions of civil rights organizations such as the Center for Constitutional Rights and the American Civil Liberties Union, as well as the comments of some scholars, like Marjorie Cohn (Professor of Law at Thomas Jefferson School of Law, San Diego, CA) or David Kaye (a clinical professor of law at UC Irvine School of Law and a State Department lawyer from 1995 to 2005), who analyzes the international law issues addressed or implicated by the White Paper...

The present case before the Court started on February 19th, 2009, when Belgium instituted proceedings against Senegal in respect of a dispute concerning "Senegal's compliance with its obligation to prosecute Mr. Hissène Habré, former President of the Republic of Chad, for acts including crimes of torture and crimes against humanity... or to extradite him to Belgium for the purposes of criminal proceedings". In its Application, Belgium based its claims on the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment of 10 December 1984, as well as on customary international law.

"Before pronouncing on the merits, the Court describes the historical and factual background to the case... It notes that after taking power on 7 June 1982 at the head of a rebellion, Mr. Hissène Habré was President of the Republic of Chad for eight years, during which time large-scale violations of human rights were allegedly committed. Mr. Habré was overthrown on 1 December 1990. After a brief stay in Cameroon, he requested political asylum from the Senegalese Government, a request which was granted. He then settled in Dakar, where he has been living ever since.

From 25 January 2000 onwards, a number of proceedings relating to crimes alleged to have been committed during Mr. Habré’s presidency were instituted before both Senegalese and Belgian courts... On 19 September 2005, the Belgian investigating judge issued an international warrant in absentia for the arrest of Mr. Habré" and "requested the extradition of Mr. Habré from Senegal. Three further requests for extradition have since been transmitted to the Senegalese authorities by Belgium."

The Court considered "that Senegal's duty to comply with its obligations under the Convention cannot be affected by the decision of 18 November 2010 of the ECOWAS Court of Justice [Court of Justice of the Economic Community of West African States], which found that Senegal's amendment to its Penal Code in 2007 might be contrary to the principle of non-retroactivity of criminal laws and that proceedings against Hissène Habré should be conducted before an ad hoc court of an international character." The Court further observed that, "under Article 27 of the Vienna Convention on the Law of Treaties, which reflects customary law, Senegal cannot justify its breach of the obligation provided for in Article 7, paragraph 1, of the Convention against Torture by invoking provisions of its internal law."

In its Judgment, which is final and binding on the Parties, the Court stated that "Senegal was in breach of its obligation under Article 6, paragraph 2, to make a preliminary inquiry into the crimes of torture alleged to have been committed by Mr. Habré, as well as of the obligation under Article 7, paragraph 1, to submit the case to its competent authorities for the purpose of prosecution. In failing to comply with its obligations under those provisions, Senegal has engaged its international responsibility. Consequently, Senegal is required to cease this continuing wrongful act, in accordance with general international law on the responsibility of States for internationally wrongful acts. The Court concludes, therefore, that Senegal must take, without further delay, the necessary measures to submit the case to its competent authorities for the purpose of prosecution, if it does not extradite Mr. Habré".

Following the ICJ's decision, Senegal seems to have renewed negotiations to create a special court to try Habré, as mandated by the ECOWAS Court in a November 18th, 2010 ruling. In said ruling, in an inconsistent manner, the ECOWAS Court concluded "that any other option, including... a domestic trial, would be in violation of the principle of non-retroactivity", which is in itself at odds with the fact that crimes against humanity and war crimes were already criminalized by international law at the moment when the facts at issue were allegedly committed by Habré.

As Valentina Spiga puts it in her article "Non-retroactivity of Criminal Law: A New Chapter in the Hissene Habre Saga": "The [ECOWAS] Court's finding would not only prove unprecedented and potentially unfair, but also erroneous. As a matter of fact, in the period when the facts allegedly committed by Habré took place, the criminalization of [...] crimes against humanity, [...] and torture was set out at the level of international treaty and customary law".

The FISA Amendments Act authorizes the collection of a broad swath of public communications without a warrant (though not the intentional targeting of the communications of any particular U.S. person). As such, critics say, it jeopardizes freedom of communication with individuals abroad.

At issue is whether the plaintiffs, represented by the American Civil Liberties Union, have the 'standing' to bring the case. A lower court said they did not, but an appeals court said they did. It will be up to the Supreme Court to decide the case, which is captioned Amnesty et al v. Clapper.

The Electronic Privacy Information Center (EPIC) filed an amicus brief urging the Court to affirm standing on grounds that the plaintiffs have established a reasonable concern about the security of their communications, and that existing oversight mechanisms are inadequate."

"At issue in Clapper is whether a group of journalists, attorneys, and non-profit organizations can challenge the US government's interception of their international communications...

The Clapper case tests whether economic and professional costs related to the reasonable fear of being monitored under the Foreign Intelligence Surveillance Act constitute an injury sufficient to give the plaintiffs 'standing' to challenge the law under Article III of the US Constitution. The case also has broad implications for public oversight of surveillance activity...

The Court said that a warrant is required where, as here, the government obtains information by physically intruding on a constitutionally protected area, like a car.

The questions presented were:

1) Whether the warrantless use of a tracking device on petitioner's vehicle to monitor its movements on public streets violated the Fourth Amendment.

2) Whether the government violated respondent's Fourth Amendment rights by installing the GPS tracking device on his vehicle without a valid warrant and without his consent.

The government engages in this investigatory technique frequently, and the federal circuits are divided on whether the practice violates the Fourth Amendment...

Justice Scalia delivered the Opinion of the Court, joined by Justices Kennedy, Roberts, Thomas, and Sotomayor, which held that the Government's installation of a GPS device on a target's vehicle, and its use of that device to monitor the vehicle's movements, constitutes a search under the Fourth Amendment.

The majority opinion made clear that the Government's physical occupation of private property for the purpose of obtaining information, would have been considered a search within the meaning of the Fourth Amendment when it was adopted.

This is the fifth time they have been updated since being adopted in 1976. The Guidelines have been adopted by the thirty-four OECD member states as well as Argentina, Brazil, Colombia, Egypt, Latvia, Lithuania, Morocco, Peru, and Romania. [...]

They will apply to corporations registered in OECD member states when operating not only in OECD states but also worldwide.

The Guidelines are not a binding document but are recommendations 'by governments covering all major areas of business ethics, including corporate steps to obey the law, observe internationally-recognised standards and respond to other societal expectations.' [...]

The 2011 update brings several changes to the OECD Guidelines, particularly in the area of human rights.

The added chapter on human rights confirms that the Guidelines apply to corporations operating in 'all sectors of the economy.' It also reaffirms that states have primary obligations to protect human rights, including in the horizontal relationship between private actors.

The chapter’s obligations for multinational enterprises are in line with the framework developed by Professor John Ruggie, former UN Special Representative on the Issue of Human Rights and Transnational Corporations and Other Business Enterprises.

Thus, both states and enterprises 'should' respect human rights 'within the framework of internationally recognised human rights, the international human rights obligations of the countries in which they operate,' including domestic human rights obligations. [...]

More specifically, business enterprises should “prevent or mitigate adverse human rights impacts that are directly linked to their business operations, products or services by a business relationship, even if they do not contribute to those impacts.”

This provision implies that such conduct is only a recommendation and encouragement for business enterprises, not a requirement. [...]

The Guidelines also include a new, improved procedural guide on implementation under the National Contact Points. National Contact Points monitor compliance of business enterprises with the Guidelines... The updated Commentary also includes a new provision on the role of the international network of non-governmental organizations—OECD Watch.

As a conclusion, the major weakness of the OECD Guidelines is their unenforceability. The 2010 Update fails to address this issue... [T]he new system does not advance the rights of victims. Similarly, the OECD Watch notes the 'update’s failure to clarify the National Contact Point's role in making determinations on the observance of the Guidelines when mediation has failed.' [...]

"This letter was drafted in response to intense lobbying by the U.S. Chamber of Commerce, who reportedly spent $700,000 in 2011 in efforts to cut back on anti-bribery protections found in the law.

Based on this intense lobbying effort, legislators on both sides of the aisle and in both Houses of Congress are considering introducing legislation that would restrict U.S. federal prosecutors' ability to investigate and punish foreign bribery.

The legislators' proposals range from the wholesale adoption of the Chamber's proposals – which would shield companies from liability for the acts of their subsidiaries, allow the bribery of certain types of government agents, and reward willful ignorance of the law – to more modest amendments that would seek sharper, narrower definition of important terms and provide a minimum threshold under which bribery would not be prosecutable.

Even these less extreme efforts, however, would open the FCPA to the unpredictable horse-trading of congressional politics and turn a sterling record of U.S. leadership in the global fight against corruption on its head.

Most glaringly, none of the proposed amendments would, as their proponents suggest, provide greater legal certainty or cost savings to U.S. businesses.

Profs. David Kennedy and Dan Danielsen, the authors of a new report entitled Busting Bribery: Sustaining the Global Momentum of the Foreign Corrupt Practices Act, explain that the FCPA has played an important role in combatting bribery on a global scale and provided a level playing field for U.S. businesses.

The Chamber's proposed amendments, far from being 'modest' or aimed at 'restoring the balance,' would badly undercut anti-corruption enforcement efforts and provide what Prof. Danielsen called a "license to commit intentional acts of bribery.'

Moreover, the proposed amendments provide standards that are no clearer than those currently in use. And they would not in any event help to streamline companies' compliance programs, as stricter standards than the FCPA are already in place in other countries, like the United Kingdom, and compliance programs are generally geared toward the most exacting standards to which a company is subject..."

Although the agreement cannot take effect without the approval of the European Parliament and the Council, the Members of the European Parliament (MEPs) could read the proposed agreement only in a sealed room where they could not take notes or make copies.

The complete text on which the European Parliament will vote has finally been made public, revealing a failure to address the concerns raised by the Parliament and continued shortfalls in data protection, due process, and protection of fundamental rights.

In its resolution of 5 May 2010, the Parliament said that the Passenger Name Record (PNR) agreement should take the form of a treaty, recognize the fundamental right to freedom of movement, prohibit the use of PNR data for data mining or profiling, and take into consideration "PNR data which may be available from sources not covered by international agreements, such as computer reservation systems located outside the EU."

The proposed agreement does not meet these criteria, and does not mention any of these issues...

In view of the upcoming vote on the EU-USA PNR Agreement, the Austrian Organization for the Use of the Internet and NoPNR.org, with the endorsement, among others, of The Identity Project, Friends of Privacy USA, Center for Financial Privacy and Human Rights, Statewatch and Privacy International, sent an Open Letter to the European Parliament asking its Members to consider the following issues for their decision on the EU-US PNR Agreement:

• The proposed agreement will not result in improved legal security for citizens
• There is no access control or access logging
• The proposed agreement does not meet the conditions set by the European Parliament
• There is no appropriate information to travelers

The first, filed by Khalid El-Masri in September 2009, claims unlawful abduction and mistreatment by the Macedonian Ministry of the Interior.

The second was filed by Abd Al-Rahim al Nashiri for alleged mistreatment during his detention at a secret prison (“black site”) in Poland...

The third, most recent case was filed against Lithuania by Zayn al-Abidin Muhammad Husayn (“Abu Zubaydah”) for alleged secret detention and torture by CIA agents committed at a Lithuanian black site...

El-Masri’s petition alleges that Macedonia violated Article 3 (prohibition of torture or inhuman or degrading treatment or punishment) of the European Convention on Human Rights by failing to intervene during his torture and inhuman treatment by CIA agents in Macedonia; by allowing him to be transported to Afghanistan with the knowledge that he would be tortured and inhumanly treated at the destination; and by failing to investigate his arrest, detention, and transfer to the CIA by Macedonian authorities.

Additionally, El-Masri claims that his detention by Macedonian authorities for twenty-three days, along with his transfer to CIA agents, violated his right to liberty and security of person (Article 5), and that the failure by the Macedonian criminal courts to hear his case violated his right to remedy guaranteed by Article 13 of the Convention.

Regarding Al Nashiri, his petition alleges violations of Articles 2 (right to life), 3 (prohibition of torture or inhuman or degrading treatment or punishment), 5 (liberty and security of person), 8 (right to private and family life), 10 (freedom of expression), and 13 (right to remedy) of the Convention, and Protocol 6 to the Convention (abolition of the death penalty)...

If the Court accepts El-Masri’s and/or al Nashiri’s applications, both the applicants and the member states will be invited to present their claims before the Court. Should the Court find that a member state has violated the Convention, it may issue a declaratory judgment, order payment of damages and legal costs, or implement other measures of reparation.

This program, based on an article by John Knox for the American Society of International Law, "describes the background to the Guiding Principles, the Principles themselves, and the Council's decision to endorse them".

"Large corporations that operate across national boundaries might seem to be a natural subject for international regulation. Nevertheless, the United Nations has struggled for years to develop corporate standards. Negotiation of a Draft Code of Conduct for Transnational Corporations in the 1970s and 1980s proved so contentious that the effort was eventually abandoned. In 1999, then UN Secretary-General Kofi Annan launched the Global Compact, an effort to encourage corporations to abide by basic principles on human rights, labor, environmental protection, and corruption. Although thousands of businesses around the world have agreed to participate in the Global Compact, its effectiveness is limited by its voluntary nature and the generality of its principles.

In 2003, the UN Sub-Commission on the Promotion and Protection of Human Rights, a group of independent experts, proposed that the Human Rights Commission, the predecessor to the Human Rights Council, adopt Draft Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to Human Rights.

The Draft Norms provided that virtually every human right gives rise to a wide range of duties on virtually every corporation... [I]f adopted by the Commission the Norms could have become the basis for a later binding instrument or influenced the development of customary international law.

But the Draft Norms proved to be controversial. While human rights groups strongly supported them, most corporations opposed them, and the governments on the Human Rights Commission decided not to adopt them.

Instead, the Commission requested the Secretary-General in 2005 to appoint a special representative on human rights and transnational corporations and other business enterprises, with a mandate to clarify existing standards and elaborate on the role of states in effectively regulating corporations. Annan named John Ruggie...

From the outset of his tenure as Special Representative, Ruggie made clear that he would take a different approach from that of the Draft Norms. He criticized the Norms’ “exaggerated legal claims” that human rights law directly imposes a wide spectrum of duties on corporations.

Security Council resolutions 1988 and 1989 create two separate sanctions regimes, one for Al-Qaida and another for the Taliban. Up until this point, there has only been one sanctions regime to deal with both groups, established under Security Council Resolution 1267 in 1999...

This change lays the groundwork for de-listing members of the Taliban to participate in the so-called reconciliation efforts in Afghanistan.

The UN special Rapporteur on human rights and counter-terrorism at that time, Martin Scheinin, said the changes to the sanctions regime do not resolve fundamental deficiencies throughout the listing and de-listing process and exacerbates other human rights concerns.

In his statement the Rapporteur says that "The terrorist blacklist has been subject to consistent and growing criticism, including by certain judicial bodies and the Human Rights Committee, for its human rights shortcomings. Issues of fair trial and due process, right to privacy, freedom of movement and right to property have been raised and litigated".

Despite the reforms, the Special Rapporteur has maintained the position that the procedures for terrorist listing and delisting by the 1267 Committee of the Security Council do not meet international human rights standards concerning due process or fair trial.

Ostensibly, these 'smart sanctions' (which target groups and individuals rather than whole populations) are designed to disrupt the activities of terrorist groups by criminalising their members, cutting off their access to funds and undermining their support.

In practice, however, far too many people have been included in national and international terrorism lists. At the same time, they have been systematically denied the possibility of mounting a meaningful defence to the allegations against them. Moreover, many listings are clearly politically or ideologically motivated, undermining genuine counter-terrorism efforts and paralysing conflict resolution efforts.

The UN blacklisting regime stems from UN Security Council Resolution 1267, which created the first list of alleged terrorists "associated with Osama bin Laden, the Taliban and Al-Qaeda". [...]

The EU's terrorist lists stem from the measures it took to transpose Resolution 1373 into EU law and currently stands at 57 individuals and 47 organisations. In addition to the UN and EU lists, many states have adopted domestic blacklists, massively expanding the net of criminalisation.

Whereas the EU has adopted a particularly broad definition of ‘terrorism’, the UN has failed to reach such an understanding, despite decades of deliberation. UN Security Council Resolution 1373 thus effectively outsources the definition of terrorism to nation states, encouraging the criminalisation of groups on the basis of geopolitical, foreign policy or diplomatic interests.

The criminalisation of self-determination movements that has resulted has transformed the migrant and Diaspora communities that support them into ‘suspect communities’ and obstructed peace processes aimed at resolving such conflicts.

There is now an irrefutable body of expert legal opinion that views international proscription regimes as incompatible with the most basic standards of due process. The adverse and unacceptable impact of the sanctions on fundamental human rights is also abundantly clear and systemic violations have been recognised repeatedly in judicial proceedings, particularly within Europe.