Again using Milanovic's model, and his assertion that the EU's positive obligations would apply only in a place under its effective control, we run into a wall with the effective control threshold. Nonetheless, the general duty to protect citizens from third-party interferences that the Charter bestows upon the EU could legitimize the DPD's wide scope of application, regardless of effective control requirements. The Court was attempting to regulate how personal data are processed by search engines in third states, those being the potential rights violators.
The obligation to fulfil implies a positive obligation of result, that is, an obligation to fulfil an individual's right to data protection by providing legal, regulatory, and enforcement mechanisms and resources. The EU ordinarily offers legal and enforcement data protection mechanisms within its own territory or in places under its effective control. It is hard to say that it is obliged to offer these abroad. That said, some EU Data Protection Authorities have attempted to enforce EU data protection law in third states by, for example, conducting audits to confirm that these states are complying with EU data protection law.
Again, however, the EU cannot be said to have effective control over, for instance, Colombia, where the Spanish Data Protection Authority has conducted audits to ascertain compliance with EU data protection law. In summary, there appear to be more concrete examples to justify the Charter's extraterritorial application when looking at the obligations to respect and protect.
As it is a subjective right, the increased emphasis the CJEU and EU legislators have recently placed on the fundamental right to data protection could enhance the Union's obligations to safeguard that right beyond its borders. Article 52 of the EU Charter outlines the scope of application of the fundamental rights contained therein: Any limitation on the exercise of the rights and freedoms recognised by this Charter must be provided for by law and respect the essence of those rights and freedoms.
Subject to the principle of proportionality, limitations may be made only if they are necessary and genuinely meet objectives of general interest recognised by the Union or the need to protect the rights and freedoms of others. The fact that EU fundamental rights law accords data protection a special status aimed at strongly protecting individuals has spurred some scholars to assert that the EU must go further than conducting a balancing test between that right and others; they claim that it may not be considered as subordinate or subject to other rights.
Some case examples that demonstrate the traction the right to data protection is gaining in the EU are the Google Spain and Digital Rights Ireland cases, both from Firstly, the right to data protection should be balanced with facilitating the free flow of information or the right to freedom of information, and the right to freedom of opinion and expression. The particular form of the right to erasure the CJEU established in the Google Spain case arguably threatens the public's right to information and the free flow of information. The judgment also exemplifies how fundamental rights, particularly the right to data protection, are quietly surpassing internal market freedoms and other rights with which they ought to be balanced.
The Court stipulated that the only justified interference in these rights would be if the general public had a greater interest in accessing the information, such as if the data subject were a public figure. In Digital Rights Ireland , the applicants successfully sought the annulment of the Data Retention Directive, which obliged telecommunications to retain communication data for between 6 months and 2 years for counter-terrorism purposes.
The Court found it unnecessary to discuss the right to freedom of expression because it had already determined the Data Retention Directive invalid on the basis of the right to private and family life, and the right to data protection.
EJIL: Talk! – Extraterritorial Application Archive
Finding that the Data Retention Directive interfered with the right to freedom of expression would only have strengthened the Court's decision to annul the Directive. Accordingly, this case is not an example of the Court failing to conduct a proper balancing test, but it rather shows how it focussed far more on the right to data protection than the right to freedom of expression. The Digital Rights Ireland decision could thus suggest that issues related to privacy and data protection currently supersede those related to the freedom of expression. The right to data protection is often necessarily weighed up against security interests and criminal law enforcement requirements.
Furthermore, the EU is increasingly finding data protection issues in counter-terrorism instruments that require states to retain the personal data of EU data subjects. In light of the Digital Rights Ireland decision, the Canada—EU Passenger Name Record agreement has been submitted to the CJEU to determine its legality, further suggesting that data protection is gaining more weight compared with security interests. The aforementioned examples could be a reflection of increased public concern for personal data protection since the Snowden revelations.
If we recall that the legal limitations on infringing the fundamental right to data protection include the principles of proportionality and necessity, perhaps the EU's measures to protect its citizens' right to data protection beyond its borders could be understood as being increasingly necessary, thus justifying a different balancing test in terms of proportionality. Nonetheless, it is yet to be seen to what extent the Court's decisions actually safeguard fundamental rights.
- The extraterritoriality of EU data protection law?
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At least in the EU, data protection has evolved from being conceived of as an economic necessity, to a right in general, to a fundamental right, and to a right with such elevated status that it could potentially threaten the protection of other fundamental rights. This weight, however, could also further strengthen the EU's obligations to protect the right to data protection extraterritorially, especially as it is a subjective right. Protecting a fundamental right is an oft-cited, but not the only, reason the EU is applying its data protection laws extraterritorially.
Some reflections on the extraterritorial application of the european convention on human rights
It is perhaps the most effective way to justify EU extraterritorial action in terms of perceived legitimacy. No matter the real underlying reasons for the EU to apply its laws extraterritorially, the right to data protection is evolving to carry more weight and the EU is using it to prescribe or promote its legislation externally. In summary, the EU is territorially extending the application of its data protection laws. Under human and fundamental rights law, the EU's protective duty could apply in extraterritorial situations.
Data protection's evolution from economic necessity to autonomous, fundamental right, which has corresponded to the EU's territorial extension of its law to safeguard this right, could imply causality between the two developments. The former evolution of the right could at least explain or justify the latter extension of EU law. The obligation to respect the right to data protection in its actions with external effects implies a negative duty of conduct.
Similarly, the EU's duties to protect and fulfil this right impose positive obligations on the Union.
This could amount to a requirement that the EU protect and fulfil its citizens' fundamental right to data protection beyond its territorial borders, perhaps justifying the aggressive jurisdictional scope of the DPD. As the fundamental right to data protection morphs to carry more weight in the EU, this could amplify the EU's obligations under human rights law to protect its citizens' personal data when such data are processed outside EU territory. To extrapolate this further, perhaps the EU is moving beyond being simply an economic and political union to something closer to a global fundamental rights actor or norm setter.
Oxford University Press is a department of the University of Oxford. It furthers the University's objective of excellence in research, scholarship, and education by publishing worldwide. Sign In or Create an Account. Sign In. Advanced Search. Article Navigation. Close mobile search navigation Article navigation. Volume 5. Article Contents. The extraterritoriality of EU data protection law. Data protection as a fundamental right in the EU.
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The nature of the right to data protection and associated obligations. The increased weight of the fundamental right to data protection and subsequent ramifications for extraterritoriality. The EU's human rights obligations in relation to its data protection laws with extraterritorial effect Mistale Taylor. Oxford Academic.
Google Scholar. Whether a State prescribes conduct by formal or informal means is irrelevant; even seemingly mere factual acts may have a normative content and constitute authoritative acts. Only where it has such control can the State be said to have actual authority, and therefore jurisdiction, over the person concerned. Skip to main content. Netherlands Quarterly of Human Rights. Search in: Article Menu.
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Request Permissions View permissions information for this article. Neither have states maintained a common position and some of them are expressly contrary to the extraterritorial scope of their human rights obligations. The tension between values such as the universality of human rights and the need to ensure a realistic approach to human rights obligations, which a state could assume beyond its borders, is behind this question. Turkey preliminary objections and merits, paragraph Therefore, the Vienna Convention on the Law of Treaties is applicable to them.
Extraterritorial Application of the European Convention on Human Rights
The first sections of this article explore two conceptual problems: Then, how extraterritoriality is conceived within the main human rights systems is examined. After this analysis, the article addresses the question of the interactions between human rights law and international humanitarian law IHL , which has also been frequently raised by scholars as many of the extraterritorial activities of states are conducted in the context of armed conflicts. Finally, the article looks at the state practices related to the establishment of external border controls at sea.
A major role is given to analysis of the case law of the relevant courts and supervisory bodies whose role in developing the territorial scope of human rights, in particular the concept of jurisdiction, is crucial. Most of the monographs dealing with the extraterritorial reach of human rights are very recent, which reflects the fact that development of the issue in international human rights law is ongoing.
The majority of studies focus on the territorial scope of civil and political rights. Arguably, they do so because the jurisdictional clauses contained in these treaties raise important legal questions and there is much more case law on the territorial scope of the treaties dealing with these rights in contrast, there is no jurisdictional clause in the main treaty dealing with economic, social, and cultural ESC rights, namely the International Covenant on Economic, Social and Cultural Rights [ICESCR].
With regard to the scope of the study, works differ on their approach to the subject of analysis. Coomans and Kamminga covers the relevant contributions of regional and international monitoring bodies. Da Costa makes a critical analysis of the interpretation of treaty provisions by monitoring bodies and state parties, and Gondek argues for a flexible approach to extraterritorial application of human rights treaties.
Milanovic explains in a clear way the various options that are available to courts and states in addressing the issue, as well as their policy implications. Other works, such as Gibney and Skogly and Skogly , place emphasis on the obligations of states toward individuals located in the territory of another state.
These latter studies follow the tripartite classification of obligations to respect, protect, and fulfill and their scope is broader in covering also considerations of customary international law. Finally, a common feature of these works, which can also be applied to any work addressing the extraterritoriality of human rights, is that the legal analysis is strongly based on the decisions of the relevant human rights monitoring bodies and courts.
This is indicative of the way in which this aspect of human rights law is developing: Coomans, Fons, and Menno T. Kamminga, eds. Extraterritorial Application of Human Rights Treaties. Antwerp, Belgium: Intersentia, Edited collection of essays written by scholars and human rights practitioners.
This is one of the first collected works to have raised the main legal questions involved in the extraterritorial application of human rights treaties. In addition, the book examines extraterritoriality in the main human rights instruments, including the instruments of the inter-American system, which are underexamined by scholars.
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