The General Data Protection Regulation: An overview of its impact on European Society

The General Data Protection Regulation: An overview of its impact on European Society

Campbell Whyte - JF Law & French


In the 21st century, the line between public life and private life is becoming increasingly blurred. Our lives are more online now than ever before. While this loss of privacy is due in part to our own willingness to share on social media, it is also due in part to the necessity of providing personal information online. This article will cover how the European Union has sought to protect privacy in the past and how it continues to do so today.

To exist in the digital age, individuals are required to digitize much sensitive information about themselves: Social media websites store email addresses, dates of birth and much more, hospitals can access detailed medical records, banks store PPS numbers and addresses, and shopping websites retain credit card information. There is little choice but to trust the security and ethics of businesses when giving them information, and while avoiding social media and online shopping may be possible, avoiding institutions such as banks, schools and hospitals is next to impossible. In order to counteract this loss of privacy and to protect people’s personal information, the European Parliament and Council agreed on the General Data Protection Regulation[1] (GDPR) in April 2016.

The GDPR as an International Document

The GDPR will come into effect on 25 May 2018, and companies must show compliance by that date. The GDPR is a significant piece of legislation which took five years to draft and consists of 87 pages and 99 articles subdivided into 11 chapters. It replaces the 1995 Data Protection Directive[2] and is “designed to harmonize data privacy laws across Europe, to protect and empower all EU citizens’ data privacy and to reshape the way organizations across the region approach data privacy.”[3]

The Data Protection Directive, passed to protect citizens in 1995, does not properly address the challenges to privacy in 2018, and the GDPR is designed to modernize data protection practices. Some of the data protected by the GDPR and now stored in online databases is basic identity information including name, address, ID number, and web data such as location, IP address, cookie data, health and genetic data, racial or ethnic data, political opinions and sexual orientation. The GDPR emphasises transparency and customer control and is intended to standardize data security laws, though individual states still retain some freedom.[4]

Under the GDPR, the European Union has much greater authority for prosecuting crimes involving personal privacy. As the GDPR is a Regulation instead of a Directive, it does not need to be incorporated into each country’s body of legislation to take legal force. The GDPR applies to all companies handling the personal information of EU citizens, even if the company is based outside of the EU. Non-EU companies processing the data of EU citizens will have to appoint an EU representative.[5]

Customer Rights under the GDPR

Under the GDPR, customers in the EU have new rights regarding their own data, and informed customer consent is paramount. Terms and conditions must be in an understandable language, retracting consent must be as easy as giving consent, and where consent to use data has been given previously for one purpose, consent must be given again if the company wants to use the data for a new purpose.[6]

Organisations offering online services to children under sixteen must get parental consent to process data, and these organisations are also obliged to make a reasonable effort to verify the age or parental consent of young data subjects. Customers have the right to not be subject to a decision made solely by automated processing that significantly impacts them; this in effect makes nonconsensual profiling illegal unless it is permitted by EU law or unless it is necessary for the fulfillment of a contract.[7]

Data subjects have the right to know what personal data of theirs is being processed and for what purpose, to ask for an electronic copy of their personal data free of charge, and to have this information transmitted to another company. Data subjects are also entitled to have companies erase all their personal data and halt all further dissemination and processing of it upon request, and companies are obliged to erase data that is no longer relevant to the original purpose for which it was collected.[8]

Impact on Business and the Public Sector

Almost all companies and public sector organizations are subject to the GDPR. All organizations whose core operations include processing a significant volume of personal data are obliged to appoint a Data Protections Officer who must be sufficiently well-resourced to carry out his/her duties. The tasks of the Data Protections Officer include notifying data processors of their legal obligations, monitoring compliance under the GDPR and reporting to senior management.[9] The Data Protections Officers must also ensure that companies give a full description of any breaches of personal data to the relevant Data Protections Authority without delay, including the approximate number of people affected, the likely consequences of the breach, and the measures being taken to mitigate the effects on customers.[10]

Legal Penalties for Non-Compliance

Under the GDPR, data infringements, such as insufficient customer consent to process data, poorly organized records, or failure to notify authorities about a data breach, will have greater penalties calculated as a percentage of the company’s annual turnover. There are two tiers of offences, and for more minor offences, a maximum fine of €10,000,000 or 2% of the company’s total annual turnover from the previous year may be imposed. This includes breaches of privacy by design obligations, failure to keep adequate records and failure to meet security requirements. For more severe offences, the maximum fine is €20,000,000 or 4% of the company’s annual turnover.[11] This includes breaches of the basic principles of data processing, infringements of conditions of consent and illegal transfers of data to countries outside of the European Union. These are very significant fines and will be very persuasive in terms of compliance. Companies found to be in violation of the GDPR will be fined without trial, as is current practice, but they may appeal the fine to courts in their own country.

Costs of the GDPR

The GDPR has supporters and detractors among companies that process large amounts of customer data. According to a PwC survey, 68% of US based companies expected to spend $1m to $2m to meet the requirements, and another 9% expected to spend more than $10m.[12] In May 2017, the Irish Data Protection Commissioner estimated that 70% of Irish businesses do not know when the GDPR comes into effect; 25% of businesses do not know when they will start preparations and 83% are unable to name any GDPR changes for their business.[13] Many law firms are profiting by training corporate clients in GDPR compliance, yet smaller firms and charities are concerned that they will not be able to afford such legal counsel. The GDPR may be difficult to enforce, and small businesses that can’t afford sophisticated legal counsel may be hurt by this. As regards large businesses, the consulting firm, Oliver Wyman, predicts that companies in the FTSE 100 index could pay up to £5 billion a year in non-compliance fines when the GDPR comes into effect.[14] However, firms who implement privacy systems compliant with the GDPR could see benefits in the near future, as customers will likely have a preference for companies with strong data protection and fewer data breaches.

The potential impact of the GDPR

The GDPR has the power to effect sweeping change in how companies respect citizens’ data rights, and prevent breaches of privacy that are becoming far too common today. For example, Google has been criticized by the French CNIL for storing customers’ online data for up to two years, for failing to give customers sufficient information on how their data will be used and how long it will be stored, and for failing to cooperate with commissioners. The GDPR could very well make Europe an example to the rest of the world of how to legislate and protect privacy, and as such countries which are not bound by the GDPR may decide to revise their own outdated and insufficient data laws. For example, the US has individual sector-specific regulations but no overarching data privacy legislation, and the UK is not bound by the GDPR now that it has exited the European Union, and both may soon see a need to implement legislation similar to the GDPR.


The GDPR is not without its faults. Some have criticised it for its extraterritorial jurisdiction and concerns about enforceability; others for stifling business through over-regulation. Indeed, it is a substantial piece of legislation, and the first few years may present difficulties while organizations try to adapt. However, these problems do not negate the potential of the GDPR to create long lasting benefits in not just Europe but the world.[15]

For years now the loss of privacy has been lamented as inevitable, and though it is inevitable to some degree, recent change shows that it is not completely unavoidable. Pessimistic beliefs that privacy is dead only lead to an attitude of complacency and acceptance towards violations of rights and thus hasten the demise of privacy. Acts, such as the GDPR, effect genuine change and show us that we are not obliged to passively accept a world in which companies disrespect customer privacy with impunity.

[1] 2016/679

[2] 95/46/EC

[3] European Union General Data Protection Regulation Portal <> accessed 5 January 2018






[9] ‘General Data Protections: 6 Things You Need to Know’, <> accessed 6 January 2018>

[10] ‘The GDPR and You’, Data Protection Commissioner < >

[11]‘Reforming Data Protection Law: Introducing the General Data Protection Regulation’ <> accessed 2 January 2018

[12] ‘GDPR Compliance Top Data Protection Priority for 92% of US Organizations in 2017, According to PwC Survey’

<> accessed 3 January 2018

[13] ‘One year to game-changing General Data Protection Regulation but just 14% of SMEs have begun getting ready’

<> accesssed 3 January 2018


[15] Charles Arthur, ‘Google Privacy Policy Slammed by EU Data Protection Chiefs’ The Guardian (16 October 2012), <> accessed 5 January 2018.

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Turp v Canada :  Une décision controverse intouchable par le pouvoir judiciaire

Turp v Canada :  Une décision controverse intouchable par le pouvoir judiciaire

Kaitlin Corbeil - JF Law and Political Science

Le droit international traite surtout de matières reliées aux valeurs fondamentales qui ajoutent à la complexité de la vie humaine, ainsi qu’aux relations entre les états jumelés. Il s’ajoute aux conversations de matières humanitaires en présentant une voix forte en sa légitimé et sévère en sa finalité. Inévitablement relié, le pouvoir judicaire doit surveiller le pouvoir gouvernemental dans les affaires étrangères sans porter atteinte hors de leur juridiction. Cela rend les décisions légitimes des Ministres intouchables par les tribunaux. Ce court essai présentera brièvement l’exemple de Turp v Canada[1] et la décision qui a paru à plusieurs sévère et dépourvu de sens moral.

Les complexités des décisions en droit international humanitaire se retrouvent entre autre parmi les controverses dans lesquelles elles sont vedettes. La demande de contrôle judiciaire du professeur en droit international et constitutionnel Daniel Turp de l’Université de Montréal n’est pas une exception. Il a poursuivi l’affaire du gouvernement Trudeau à la Cour Fédérale, prônant que le Ministre des affaires étrangères n’a pas bien respecté l'intérêt du Canada en délivrant les licences octroyant l’exportation des véhicules blindés légers (VBL) fabriqués au Canada vers l’Arabie Saoudite. Ceci dit, la Cour n’était pas en mesure d’évaluer la conclusion de la décision. Plutôt, son rôle était uniquement d’assurer que le Ministre a eu recours aux évaluations nécessaires lors de sa décision. Considérons la question analysée par la juge Tremblay-Lamer : l’octroi des licences d’exportation pour des VBL vers l’Arabie Saoudite, s'agit-t-il d’une erreur susceptible de contrôle judiciaire? Pour tenter une réponse, les provisions de la section 7 de la Loi sur les licences d’exportation et d’importation[2] ainsi que le complément de la loi, le Manuel des contrôles à l’exportation[3] ont été examiné en profondeur.

Les VBL sont compris dans la liste de marchandises susceptibles d’exportation.[4] D’ailleurs, le Ministre peut accorder des licences pour cette marchandise tout en ayant recours vers les intérêts nationaux du Canada, ainsi que vers une multitude de facteurs à considérer inclus dans le paragraphe 7(1.01) de la LLEI. Ces facteurs peuvent engendrer que la marchandise demandée nuise à la sécurité, aux intérêts de l’État, à la paix ou la stabilité dans n’importe quel pays ou région du monde. De plus, le Manuel offre des facteurs qui peuvent être considérés spécifiquement pour les technologies militaires. Ceux-ci comprennent le contrôle rigide de l’exportation vers certains pays qui constituent une menace potentielle pour le Canada et ses alliés, des pays participants à des hostilités, qui sont frappés d’une Sanction du Conseil de sécurité des Nations Unies et aux pays dont les gouvernements commettent de graves violations des droits de l’homme contre leurs citoyens, à moins que l’on ne puisse prouver que les produits ne risquent pas d’être utilisés contre la population civile.

Le demandeur a soutenu que les politiques adoptées par le gouvernement en question de la LLEI demandent un contrôle étroit sur l’exportation de toutes matières militaires pour s’assurer qu’elles ne seront pas utilisées pour commettre des violations des droits de l’homme. Il préconise qu’en évaluant les conséquences possibles de la vente des blindés, le gouvernement n’a pas appliqué les mesures convenables. Afin de démontrer une violation possible des droits de l’homme, Turp propose que le gouvernement a examiné les preuves passées d’utilisations de ces véhicules contre les civils au lieu d’évaluer la présence d’un risque de tels utilisations dans le futur. Ce risque, selon Turp, était suffisamment concret en raison du comportement passé de l’Arabie Saoudite, et du présent conflit avec des minorités religieuses de la péninsule arabique[5].

La décision de l’état explique que depuis le lancement de la relation commerciale entre le Canada et l’Arabie Saoudite, des milliers de VBL ont été exporté vers ce dernier. Contrairement au reportages des journalistes, aucun de ces véhicules n’a été impliqué dans des violations du droit de la personne. Le département du Ministre ne pouvait donc pas confirmer un risque concret pour nier l’octroi de la licence qui apportera de nombreux avantages importants à la santé économique et politique du Canada ainsi qu’au développement de l’industrie de la défense; des considérations qui ne se présentent pas dans l’application du demandeur.

C’est à l’égard de cette conclusion que la décision du Ministre a fait face à un contre coup. L'interprétation était qu’il facilitait les violations des droits de la personne en risquant la sécurité des civils indépendamment des valeurs prédominantes de la société canadienne en vers ce genre d’activité. Plusieurs, le demandeur y inclus, ont mis leur espoir dans la Cour pour fournir une solution, mais elle ne pouvait pas. Elle ne pouvait pas trancher sur la moralité de la décision du Ministre, mais plutôt si la méthode qui a été employé pour arriver à cette conclusion suivait la loi et respectait les promulgations concernées.[6]

La LLEI et le Manuel impose aucune restriction. Au contraire, ils confirment le pouvoir discrétionnaire à la disposition du Ministre, un pouvoir qui lui permet d’agir ou de ne pas agir selon ce qu’il décide est le plus approprié pour l’intérêt public. La Cour devait s’assurer que ce pouvoir discrétionnaire ne serait pas violé par une décision qui s'éloignait de ce qui est la loi et non ce que la loi devrait être dans ces circonstances. La juge Tremblay-Lamer a confirmé dans son analyse que ‘La décision contestée démontre que le Ministre s’est fondé sur les intérêts du Canada en matière de sécurité nationale et internationale ainsi que sur ses intérêts commerciaux et économiques afin de la prendre. Ces facteurs ne sont pas des considérations inappropriées ou étrangères à l’objet de la loi.’[7] De plus, elle a énoncé que contrairement à la position du demandeur, le ministre a considéré le conflit du Yémen, et les implications de l’Arabie Saoudite là-dedans. La décision démontre que le département a eu recours aux commentaires des experts des Nations Unies, les rapports des médias ainsi que les informations fournis par l’ambassade Canadienne à Riyad[8].

La conclusion de la décision aurait certainement pu être différente. Les facteurs considérés par le Ministre ont été évalués selon les objectifs et les priorités du gouvernement et ont finalement été stratifiés d’une façon qui préfèrerait l’octroi de la licence. Les pours et les contres ne seront pas pareils pour tous, dépendant particulièrement sur les valeurs qui composent les idéologies de notre réalité. La Cour n’a pas la fonction de juger si le gouvernement agit moralement; une vérité qui n’est pas souvent réalisée. Contrairement, elle doit s’assurer que le pouvoir gouvernementale a respecté les consignes de la loi et n’a pas été abusé. Ici, le Ministre s’était vu accordé par la LLEI et le Manuel une grande marge de discrétion et il a agi de façon respective aux lignes directives. L’accordement d’un tel pouvoir et le manque de restrictions concernant une branche de droit international si bouleversante peut certainement être analysés de manière critique et se retrouver le sujet de nombreux débats académiques. Pour l’instant, le rôle de la Cour reste celui de surveillance et le pouvoir judicaire toujours au-delà des débats subjectifs et morals, comme on le glorifie souvent naïvement.

[1]  [2017] CF 84

[2] LRC 1985, ch E-19 [LLEI]

[3] Affaires mondiales Canada, juin 2015 [le Manuel]

[4] LLEI (n 2) paragraphe 2

[5] [2017] CF 84

[6] [2017] CF 84 paragraphe 76

[7] ibid paragraphe 51

[8] ibid paragraphe 54

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Satire in Irish law, and comparisons with other jurisdictions

Satire in Irish law, and comparisons with other jurisdictions

Ross Malervy - JEB

The Irish constitution guarantees both the right to a good name[2] and the right to free speech,[3] rights which come into conflict with one another in satire. However, in defamation cases the Irish courts are currently reluctant to rely on these constitutional protections, feeling that rights are adequately protected by existing tort laws.[4]

This piece will discuss the current treatment of satire in Irish law, and will contrast it to the jurisprudence in the United States in order to highlight the effect that distinguishing defamation and satire in law can have.

A ‘defamatory statement’ is defined as ‘a statement that tends to injure a person’s reputation in the eyes of reasonable members of society’.[5]  In other words, one must merely issue a statement that injures a 3rd party’s reputation in the eyes of the community in order to be potentially liable for defamation.  The intent of the tortfeasor (be it satirical or otherwise) is irrelevant.[6]  Additionally, everyone, even the most repulsive members of society, are assumed to have a reputation that can be damaged.[7]

Satire is defined as ‘the use of irony, sarcasm, ridicule, or the like, in exposing, denouncing or deriding vice, folly, etc.’[8] In the US, satire is famously a defence for many actions of defamation, the case is not the same in Ireland. In 1991, the Law Reform Commission published a report[9], concerning reformation of defamation law. The report briefly commented on satire and stated:

We recommend that, in cases involving allegedly defamatory matter contained in a fictional context, the ordinary requirement of identification should be supplemented by a requirement that the matter be reasonably understood as referring to actual qualities or events involving the plaintiff.[10]

The Commission further noted that there should not be a distinction between a satirical comment and any other defamatory comment ‘solely on the basis that its object is to subject the target to derision or ridicule rather than hatred or contempt’.[11]   The commission concludes by stating ‘We accordingly recommend that there should be no special provision in relation to such material.[12] 

Such a distinction would have potentially influenced the dispute that the online satirical news outlet, Waterford Whispers entered in 2015. The website wrote a piece set in a parallel universe in which the D.P.P prosecutes Dennis O’Brien for bribing politicians. The website subsequently received a cease and desist order from O’Brien’s solicitors. The piece was then reposted by[13]This situation received a wave of negative publication for Mr. O’Brien, who subsequently did not pursue the Broadsheet in court, however the legal situation of satire has not changed.

A positive change for satire law may come from the precedent set by other jurisdictions, particularly the United States. The courts in the United States draw a distinction between satire and defamation. One author has described the difference as ‘defamation is a malicious lie passed off as truth; satire is a humorous skewering of a cultural or political event.’[14]

Consider the case Hustler Magazine v Falwell[15] , which dealt with whether a satirical article by the pornographic magazine, Hustler, was protected by the first amendment right to free speech. The article insinuated that Jerry Falwell, a televangelist, was a drunkard who had sexual relations with his mother in an outhouse.  Falwell successfully argued in the Court of First Instance and the Court of Appeal that he had been inflicted ‘emotional distress’ by the publications.[16]

Hustler magazine appealed the finding to the United States Supreme court, which unanimously found for the appellant.  Rehnquist C.J., while acknowledging that the case dealt with emotional distress rather than strict libel recognised that the issue was irrevocably tied with free speech when he stated that the case involved the “novel question involving First Amendment limitations upon a State's authority to protect its citizens from the intentional infliction of emotional distress.”[17]

Falwell argued that the ‘outrageousness’ of the statement meant it was not covered under the first amendment[18] , however Rehnquist CJ rejected this argument, believing public figures should be subject to scrutiny whether satirical (and therefore potentially emotionally distressing) or not. Rehnquist CJ succinctly argued ‘For it is a central tenet of the First Amendment that the government must remain neutral in the marketplace of ideas."[19]

The Hustler case followed a liberalisation of libel laws in the United states following the inauguration of Ronald Reagan in 1981.[20] In an article on defamation, Amspacher and Springer wrote how this liberalisation had the unintended consequence of allowing radio personalities to harass people without a legal remedy being available. [21]  plaintiff can escape a case in defamation by arguing that the defamatory statement was merely ‘humour’ and are thus protected by free speech.[22]

The authors draw a key distinction ‘opinion’ and ‘fantasy’, which both the U.S. court and Irish court would benefit from acting on, while protecting free speech of opinions, necessary for political satire  also noting ‘Humorists (sic) can, however, easily entertain their audiences without conveying any intelligible "opinion" in the course of their remarks’.[23] The authors raise the argument that a defamation act  should be restricted to cases where ‘after applying an objective test… no meaningful opinion that the speaker communicated (could be found)’.[24]

In conclusion it is submitted that there should to be a distinction drawn in law between   satire and defamation. However, there ought to be a more moderate approach than that taken in the United States, wherein free speech has taken prevalence over the right of individuals to a good name and instead insisted on an approach where courts distinguish a person’s ‘opinion’ (protected under free speech) from ‘fantasy’ designed to defame an individual.

[2]Article 40.3.2°.

[3] Article 40.6. 1° i.

[4] Bryan McMahon and William Binchy, The law of Torts (4th edn, Butterworths 2013) Para 34.05.

[5] Defamation act 2009 s 2.

[6] McMahon and Binchy (n4) Para 34.18, para 34.50.

[7]  Ibid Para 34.90.


[9] Law Reform Commission, Report on The Civil Law of Defamation (LRC CP 8— 1991).

[10] Ibid para 7.51.

[11] Ibid para 7.54.

[12] Ibid.

[13] Admin, ‘Meanwhile, In A Parallel Universe’ (August 6th, 2015) accessed 17/12/2017

[14] accessed 18/12/2017

[15] Hustler Magazine, Inc. v. Falwell, 485 US 46 (1988).

[16] Ibid 46.

[17] Ibid 50.

[18] Ibid 52-53.

[19] Ibid 56.

[20] Catherine L. Amspacher and Randel Steven Springer, ‘Humor, Defamation and Intentional Infliction of Emotional Distress: The Potential Predicament for Private Figure Plaintiffs’ (1990) 31 WMLR 701.

[21] Ibid 701-702.

[22] Ibid 734.

[23] Ibid 730.

[24] Ibid 731.

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Why should the law recognise human bodies as property?

Why should the law recognise human bodies as property?

Shane Finn

The common law rule that there is ‘no property in a corpse’ predates the 20th century.[1] Due to the ideas of the time, corpses were viewed either as an earthly symbol of the deceased or a useful sample for dissection.[2]  This essay shall argue that such a policy is obsolete and a far better policy would be to allow body parts be classified as property in law.

Early cases demonstrate that the courts regarded the human body as something different to property considering its spiritual and cultural significance.  In R v Lynn a ‘resurrectionist’ was convicted of disinterring and taking away a body.[3]  This was different to the charge of larceny, as explained by Erle J in R v Sharpe:

‘Our law recognises no property in a corpse, and the protection of the grave at common law, as contradistinguished from ecclesiastical protection to consecrated ground…’[4]

Australia relaxed this rule at the beginning of the 20th century.  In Doodeward v Spence the Australian High Court ruled on the status of the body of a two-headed stillborn baby preserved in a jar and exhibited as a curio.[5] Griffith CJ held that where a person has, by the lawful exercise of work and skill, so dealt with a human body or part of human body in his lawful possession that it has acquired some attributes differentiating it from a mere corpse awaiting burial.

This case has not proved itself as definitive in the common law world.  Gibson LJ alluded to it in Dobson v North Tyneside Health Authority.[6]  However, he held that placing a brain within a jar of paraffin during the course of an autopsy did not meet the requirements of the application of work and skill. This reasoning is questionable as, there seems to be no material difference between what was physically done to the brain in this case, and that done to the baby in Doodeward v Spence;  both were placed in a jar of preservative.  A second question arises when considering the case of R v Kelly.[7]  The appellant was an artist with access to the Royal College of Surgeons to make drawings of body parts, and removed several parts from the College without permission.  He argued that since there was no property in the human body, then the College could not use the Theft Act to claim that any property had been stolen.  Rose LJ affirmed the reasoning in Doodeward v Spence by stating that the lawful exercise of work and skill may allow body parts to become possessions where parts are used for teaching and dissection. However it was also acknowledged that the common law does not stand still and as such human body parts might be considered property for the purposes of the Theft Act without acquiring any new characteristics.[8]

These cases suggest that it is the purpose for which the body parts are to be used that determines whether or not they are property.  However, it is unclear how an autopsy is substantively different to a dissection.  While dissection is usually for educational instruction, and autopsies are for mostly establishing the cause of death, an intent-based system of determining whether bodies are to be treated as property seems superficial.  For example, if  a person wished to donate their body to science but fell victim to a murder,an autopsy would be undertaken and their body parts then preserved for research.  To an observer, there would be no clear distinction as to when the autopsy ends and the storage of organs begins; a pathologist wouldn’t put organs back in a corpse to then take them out again.  This superficial distinction between what body parts are and are not property is unsatisfactory.

Furthermore society’s attitudes towards the human body have undergone massive changes.  Lord Judge CJ explained in Yearworth v North Bristol NHS Trust that part of the reason why the body was not treated as property in times past was due to it being the temple of the Holy Ghost, and as such it was sacred and inviolate.[9] McGuinness and Brazier remind us that religious beliefs are still important for many people in determining what is to be done with their body parts.[10]  They may feel that treating their bodies as property is sacrilegious. In actual fact, a property approach may provide more protection to people in terms of what is done with their bodies after they die; testators could bequeath their bodies to those who they trust will carry out their wishes. It would also offer a higher level of protection to institutions in receipt of body parts as donations for research purposes.

As Goold and Quigley note, the current statutory regimes deal with human biomaterials only at the point of donation, but provide no guidance as to what rights each interested party has in the material afterwards.[11]  Judicial guidance from the United States draws an analogy with donated biomaterials and inter vivos gifts,[12] while the English case of Yearworth v North Bristol NHS Trust held that materials produced by one’s body can be considered as the property of that person if they were produced for medical use for that person.[13]  Goold and Quigley rightly argue that the issue with these cases is that they often attempt to find a just solution in the instant set of circumstances instead of attempting to down a workable precedent.[14]  The use of biomedical materials is extremely important in our modern world.  A property approach that sets out who holds what titles in relation to body parts provides greater protection for all parties through an increased level of clarity.[15]

The absence of such clarity as to who holds what rights is having an adverse effect on medical research.  In England, Campbell et al illustrate that while many medical researchers are in favour of the Human Tissue Act, the use of criminal sanctions for breaching the consent of those who donated material[16] has made some uneasy about innovation and experimentation.[17]

As well as the practical benefits,  clarity  would provide greater adherence to the rule of law discussed in the introduction to this essay.  A property approach is the  logical step to take in order to meet the demands of modern medical research.  That being said, not all have welcomed the idea.  One of the most common objections to recognising body parts as property is that it would open the door to their commodification.[18]  Yet, as Douglas points out, this could easily be countered by restrictions on how such property can be used.[19] However, the question must be raised; , why should there be any restrictions on the commercialisation of human body parts if people so wish to do so? Rippon argues that such a ban is justified; even when poor people are allowed to sell their non-essential organs while alive it does not make a substantive contribution towards their long-term betterment.[20]  The initial objection to this argument is that minimum-wage employment and unpaid internships may not yield a materialistic benefit to those that undertake them, yet they are allowed nonetheless.  Secondly, when the law allows for something to take place, it can also frame limitations in order to ensure that ethical practices are maintained.  Harris and Erin argue that a single buyer, such as the National Health Service, policed by statute would be a way in which people, if they so chose to, could commercially trade their organs in a market designed to prevent exploitation.[21]

In conclusion, the old arguments for refusing to recognise body parts as property do not deserve the same weight that they once did.  It is clear that, in light of scientific advancements, this legal approach is unfit for purpose, and may be impeding further medical advancements through leaving medical professionals unsure of their rights over their research materials.  Furthermore, a property approach can be reconciled with a view of the sacredness of the body that some hold due to the fact that it would give them ultimate control over their own bodies as full property-owners.  Finally, the incremental creep of the common law in dealing with this issue with the result that body parts are not property except when they are is unacceptable in terms of providing legal clarity.  A property approach resolves all of these issues and is the best course of action for the law to take.

[1]I Goold, J Herring, L Skene, and K Greasley, ‘Introduction’ in Persons, Parts and Property: How Should We Regulate Human Tissue in the 21st Century? (Imogen Goold, Jonathan Herring, Loane Skene and Kate Greasley eds Hart 2014) 3.

[2] I Goold and M Quigley, ‘Human Biomaterials: The Case for a Property Approach’ in Persons, Parts and Property: How Should We Regulate Human Tissue in the 21st Century? (Imogen Goold, Jonathan Herring, Loane Skene, and Kate Greasley eds Hart 2014) 233.

[3] R v Lynn 100 ER 395.

[4] Re Sharpe (1857) D & B 160.

[5] Doodeward v Spence [1908] 6 CLR 40.

[6] Dobson v North Tyneside Health Authority [1996] 4 All ER 474, 478.

[7] R v Kelly [1999] QB 621.

[8] R v Kelly (n 7) at 631.

[9] Yearworth v North Bristol NHS Trust [2009] EWCA Civ 37, [2010] QB 1, 14.

[10] S McGuinness & M Brazier, ‘Respecting the Living Means Respecting the Dead Too’ (2008) 28 Oxford Journal of Legal Studies 297, 301-309.

[11] I Goold & M Quigley (n 2) 247.

[12] Washington University v Catalona 490 F 3d 667 (8th Cir 2007).

[13] Yearworth v North Bristol NHS Trust (n 9) at 20.

[14] I Goold & M Quigley (n 2) at 244.

[15] ibid at 261.

[16] Human Tissue Act 2004 (United Kingdom), s 5.

[17] AV Campbell et al, ‘Human Tissue Legislation: Listening to the Professionals’ (2008) 34 Journal of Medical Ethics 104, 107.

[18] Jonathan Herring, Medical Law and Ethics (5th edn, OUP 2014) 469.

[19]S Douglas, ‘Property Rights in Human Biological Materials’ in Persons, Parts and Property: How Should We Regulate Human Tissue in the 21st Century? (Imogen Goold, Jonathan Herring, Loane Skene, and Kate Greasley eds Hart 2014) 106-107.

[20] S Rippon, ‘Imposing Options on People in Poverty: The Harm of a Live Donor Organ Market’ (2014) 40 Journal of Medical Ethics 145, 148.

[21] J Harris & C Erin, ‘An Ethically Defensible Market in Organs: A Single Buyer like the NHS is an Answer’ (2002) 325 British Medical Journal 114.

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The UN Charter as a “living document”

The UN Charter as a "living document"

Colm Ó Néill - Sophister Law and Political Science TCD


When Kofi Annan stated in his 1999 Annual Report to the General Assembly that the UN Charter is a “living document, whose high principles still define the aspirations of peoples everywhere for lives of peace, dignity and development”[1], he perhaps unknowingly highlighted the idiosyncrasy of the Charter: a hybrid document, contractual, normative and constitutive in nature.[2]

The conflict between the static and dynamic nature of the Charter will be central to this article, in asking whether the document retains the fluidity required to adapt to the new challenges facing international peace and security, particularly the increasing threat to civilians, the rise of terrorism, and the changing nature of war. The UN seeks to maintain its effectiveness in a contemporary context, therefore, an evolving interpretation of the Charter is necessary to bring the document to life.

The first section of this article will discuss the success of the UN Charter in adapting to certain new challenges it faces. It will be noted how favourable interpretations of the Charter have led to operations and measures that combat the new threats to international peace and security. Subsequently, however, the questionable legality of evolution through practice will be discussed, with doubts being raised regarding the UN’s reliance on norms, and not legality.

The second section of this article will highlight how procedural requirements enumerated in the Charter have prevented the UN from legally adapting to negate certain modern day threats, firstly as a result of the influence of politics in the document, and also through the constraints of the interpretative method of evolution.

To conclude, a synthesis of both approaches will be provided, declaring that while the UN charter has shown that it has the capacity for evolution in meeting certain contemporary challenges that arise, questionable legality and the stunted effectiveness of reliance on evolution through practice will prevent the Charter from further combatting the contemporary threats to international peace and security as they continue to emerge.

  1. Norms, Not Legality: Success of the UN Charter in Combating Certain Modern Challenges

a. Interpretations of the UN Charter Emphasising Civilian Protection

As threats to international peace and security have evolved, so too has the UN sought to develop powers to counteract new challenges as they arise, through creative interpretation of the UN Charter. Perhaps one of the most striking new challenges to international peace and security is the threat facing civilians during wartime. War has become incredibly mobile and omnipotent, leaving civilians in dangerous proximity to conflict, and indeed, at times, increasingly targeted by armed actors.[3] Although this development was not foreseen by the original drafters, one area of great success for the UN in interpreting the Charter to find solutions to newly emerging threats to international peace and security has been in relation to civilian protection.

One of the most prominent examples of interpretations of the UN Charter combating a modern threat to international peace and security is the concept of peacekeeping operations.[4] There is no legal basis for peacekeeping forces in the UN Charter. However, as the Charter gives primary responsibility for maintaining international peace and security to the Security Council[5], this was interpreted as allowing resolutions to be passed deploying UN forces to conflict and post-conflict regions with the aim of keeping the peace.[6]

Following the devastating civilian casualties in Srebrenica and Rwanda during the 1990s, the UN was made to adapt again to the new threats to international peace and security.[7] In a striking example of how creative interpretations of the Charter can breathe life into the document, the concept of robust peacekeeping was born. Although the only two legal uses of force enumerated in the Charter are when authorised by the Security Council[8] and when deployed in self-defence[9], in an innovative interpretation of the Charter, beginning in Sierra Leone in 1999. The Security Council began to issue “robust” peacekeeping mandates under Chapter VII,[10] which presented UN peacekeepers with the authorisation to use force, through resolutions allowing them to use “all necessary means” in defence of the mandate.

The UN Charter further counteracted new emerging threats through the development of the concept of ‘a threat to international peace and security’. Article 39 of the Charter gives responsibility to the Security Council to determine the existence of such a threat and in the drafting of the Charter itself, this was seen to be inextricably linked to interstate conflict, state sovereignty, and collective security systems. Recently, however, as the UN sought to interpret the Charter in a way that would allow them to provide further protection for civilians, such “non-military sources of instability” acknowledged as being within the remit of the Security Council’s authority under Article 39 included “economic, social, humanitarian and ecological threats”.[11] This expansion of the definition of threat to international peace and security was formally acknowledged at the meeting of the Security Council in 1992.[12] Furthermore, in a bid to maintain relevance vis-à-vis evolving trends of modern warfare, the 2004 Report of the UN Secretary General’s High-Level Panel noted “economic and social threats, transnational organised crime, as well as inter-state conflict, internal conflict, terrorism, and weapons of mass destruction” as threats to international peace and security.[13]

By interpreting a wider definition of an international security threat from Article 39 of the Charter, the UN granted itself the power to widen the scope of UN peacekeeping operations, and increase the instances where the Security Council could intervene, even in domestic conflicts. This bolstered its power to counteract the emerging threat to civilians. However, while this could generally be seen as a positive development, doubts regarding the legality of such interpretations of the Charter have been raised. Certain evolutions are feared to be not merely creative interpretations, but the creation of legal fiction, a sentiment which will now be discussed in depth.

b. Questionable Legality: Evolution Through Practice

Following the formation of the UN Charter, Cold War stalemate continuously manifested itself in blocking amendments to the Charter through procedural actions, as substantive amendments had to be passed in the Security Council without veto.[14] While certain successful examples have been discussed where creative interpretation of the Charter has allowed the UN to counteract emerging threats, there are many corresponding unsuccessful examples where changes were insufficient or impossible. Therefore, as the UN sought to maintain the Charter’s relevance as a “living document”, it has been subject to the dubious legality of evolution through practice.

The accepted view of international treaty law, as per Article 31(3)(b) of the Vienna Convention of the Law on Treaties[15], is that “the subsequent practice of parties is able to be taken into account for the purpose of interpretation but not modification or amendment”.[16] As affirmed by the ICJ in the seminal Namibia Opinion, if subsequent practices of an organisation are “generally accepted by members”, these can be used to interpret and apply the organisation’s rules.[17] While informal modification through subsequent practice was unequivocally excluded from the 1966 United Nations Conference on the Law of Treaties, both the UN and its members (supported by the ICJ) have often maintained the legal fiction that their changes in practice have purely been as a result of interpretation of the Charter, and not modification and amendment.

This flexible understanding of modern Customary International Law, where accepted practice has been “deferred to, and favoured over, a plain reading of formal rules”[18] has led to a tension between norms and legality. Such developments rejects the categorisation of the Charter as a rigid constitution and provides a vehicle to challenge newly emerging threats to international peace and security.

However, while Customary International Law may breathe life into a 70 year old document, the legality of such action must be called into question. Goldsmith & Posner, taking on a realist viewpoint, believe that powerful, self-interested states “pay lip service to CIL in order to avoid the inference that they are rogue states”[19].

An example of this would be the US’ justification of use of force in Iraq in 2003 as an interpretation of Article 51 self-defence, based on pre-emption, despite such a practice being omitted from the Charter.[20] The US saw their actions simply as an “interpretation of the application of the law”.[21] Although the US faced stern criticism from other Member States and Secretary General Kofi Annan, their continued operations under the auspices of pre-emptive self-defence received no official condemnation from the Security Council, as a result of the political paralysis of the Charter, which will be discussed further on in this article.

Furthermore, following  French airstrikes in Syria in 2015, France sent a letter of notification to the Security Council stating their actions to be an interpretation of Article 51 of the Charter[22]. This particular interpretation infers pre-emptive self-defence from the provisions of Article 51, as there was no ongoing armed conflict. As such the Charter’s doctrine seems to have been stretched once more.

Arguably, from this silence it could be inferred that there is a common practice emerging.[23]Indeed, the ICJ has remained pro-actively reticent regarding the legality of preemptive self-defence, stating in the Nicaragua Opinion case “the issue of the lawfulness of a response to the imminent threat of an armed attack has not been raised ... the Court expresses no view on the issue”.[24]

Relying on norms rather than legality to develop the ability of the UN Charter to counteract emerging threats is of dubious legality, and can lead to the founding values and principles of the Charter being compromised. If the norm of pre-emptive self-defence comes to be accepted, founding values of the Charter, namely the maintenance of peace and security through non-proliferation of use of force, will have been ignored.[25] Similarly, the emerging doctrine of “Responsibility to Protect”[26] was referred to in the UN-authorised intervention by NATO in Libya in 2011 on the grounds of humanitarian intervention.[27] “Responsibility to Protect” is defined as the instances where the doctrine of state sovereignty yields to an international responsibility to protect a population “suffering serious harm, as a result of internal war, insurgency, repression or state failure, and the state in question is unwilling or unable to halt or avert it”.[28] If accepted as Customary International Law, this emerging doctrine could be said to contravene the Charter’s commitment to state sovereignty and non-intervention.[29]

Kofi Annan, while supportive of the “living” nature of the Charter, warned in relation to Article 51 that acceptance of pre-emptive self-defence “could set precedents that resulted (sic) in a proliferation of the unilateral and unlawful use of force.”[30] Although maintaining a certain degree of flexibility in the interpretation of the Charter is important, this commitment to keeping the document alive must not serve to delegitimise the very founding principles which it espouses.

  1. Choked by Procedural Requirements: Failures of UN Charter to Legally Adapt to Modern Threats

Thus far in this article the creative interpretation of the Charter has been discussed and how a flexible understanding of customary international law the UN has negated certain modern threats to international peace and security. However, the analysis has noted the dubious legality of relying on norms rather than reality. The following section will discuss how the success of the UN to adapt to modern challenges through legal amendments of the Charter has been minimal.

The description of the Charter as a “living document” may be damningly rebutted by the fact  that since its inception the only formal, legal revisions of the Charter have been solely related to procedure and composition.[31] Amendments were passed to increase non-permanent membership of the Security Council, and requiring more affirmative votes for Security Council decisions, and changes have been made to the composition of the Economic and Social Council.[32] Such a pedestrian pace of evolution could not be said to be indicative of a “living document”, nor of an organisation adapting to modern threats.

Central to this stunting of evolution is the “notorious difficulty in achieving formal amendments”.[33] Article 108 of the Charter sets out the procedure to legally amend the document, namely that formal amendments must be adopted and ratified by two thirds of the members of the General Assembly, as well as passing the Security Council without veto. The permanent members of the Security Council are reluctant to amend the Charter in a way that will dilute their own power, and, as a result, the Charter has avoided any radical or progressive amendments that would otherwise be beneficial in combatting threats to international peace and security.

Politics has paralysed formal and legal progression of the Charter, and as a result the UN has had to rely on creative interpretation and customary changes to maintain the relevance of the document. Kelsen has argued that without a functioning legal avenue for evolution, interpretations of the Charter have been solely as a result of political motivation[34]. Changes can only be incremental in nature, not institutional, and the only actors capable of amending the document through customary practice are strong states, who have personal interest to do so. This can potentially leave certain emerging threats unaccounted for, if they are not within the interests of certain member states, a point which will now be discussed in depth.

While this article has applauded certain evolutionary actions by the UN in countering modern challenges to peace and security, both as a result of creative interpretations of the Charter and customary international law, there remains still many major newly emerged and emerging threats to international peace and security that are unaccounted for. As noted, this could be as a result of the political paralysis preventing formal amendments, leaving it up to powerful, self-interested actors to develop a new practice and seek approval a posteriori.

The outcome of this development is that there exists no clear international consensus concerning certain modern threats to international peace and security. A key example of this is the rise of transnational terrorism. While Article 51 does not expressly  restrict the right of states to respond in self-defence against non-state actors, the main development of the doctrine has been driven by the US, post 9/11, as they preempt transnational terrorist attacks[35]. Furthermore, through claiming to be involved in an transnational armed conflict against terrorist groups, the US have presented themselves with the legality, through self-defence, to carry out targeted killings, drone strikes, and airstrikes against suspected terrorists, anywhere in the world.[36]

While there are instances where Customary International Law has been successful in negating certain threats as they arise, political paralysis has left certain modern interpretations of the Charter at the mercy of state practice. As a result, certain new threats to international peace and security are left unopposed, or dealt with in an unsatisfactory manner, beyond the remit of the supposedly “living document” that is the UN Charter. 


As a 70 year old document, it is an incredible achievement for the UN that their original Charter is still relevant in modern international law. Throughout this article, it has been shown that through creative interpretation of the Charter, and accepted evolution through practice, the UN has managed to adapt the document in relation to the newly emerging threats to international peace and security. Through the deployment of peacekeepers, the legal fiction of “robust peacekeeping mandates”, and expanded definitions of a threat to international peace and security, the UN has managed to infer from the Charter greater authority for civilian protection. However, where creative interpretation has reached its limits, evolution through practice has been relied upon to breathe life into the Charter, a development which is of dubious legality. The role of politics in the Charter has prevented any formal, legal amendments which could counteract emerging threats to international peace and security.

In conclusion, while this article has shown that the UN Charter has enjoyed certain success in adapting to contemporary challenges, this capacity is limited. The absence of a functioning legal, formal avenue to amend the Charter could leave certain emerging threats to international security unaccounted for. While the Charter has proven its “living” nature over the past 70 years, sentimental attachment should not stand in the way of radical overhaul, as a rapidly evolving world continues to present newly unimagined and unimaginable challenges to international peace and security.

[1] United Nations, The Secretary General’s Annual Reports to the General Assembly (20 September 1999), available online at <>.

[2]Schrijver, “The Future of the Charter of the United Nations” (2006) 10 Max Planck United Nations Yearbook 1, 5.

[3] Kjeksrud, ‘Protecting civilians from violence: A threat-based approach to protection of civilians in UN peace operations(2016)  Norwegian Defence Research Establishment (FFI) and Norwegian International Center 1.

[4] Liang,  ‘Modifying the UN Charter through Subsequent Practice: Prospects for the Charter’s Revitalisation’ (2012) 81 Nordic Journal of International Law 1, 10.

[5] UN Charter, Article 24(1).

[6] United Nations, “Mandates and the legal basis for peacekeeping”, available online at <>.

[7] Wedgewood, ‘The Evolution of United Nations Peacekeeping’, (1995) 28(3) Cornell International Law Journal 631.

[8] UN Charter, Article 42.

[9] UN Charter, Article 51.

[10] UNSC Res 1270 (22 October 1999) UN Doc S/RES/1270.

[11] Nasu, ‘The Expanded Conception of Security and International Law: Challenges to the UN Collective Security System’ (2011) 3(3) Amsterdam Law Forum 15, 18.

[12] UNSC Res 3046 (31 January 1992) UN Doc S/PV.3046, available online at <>f.

[13] UN Secretary-General’s High-Level Panel on Threats, Challenges and Change, ‘A More Secure World: Our Shared Responsibility’ (2 December 2004) UN Doc A/59/565, 23; Nasu, ‘The Expanded Conception of Security and International Law: Challenges to the UN Collective Security System’ (2011) 3(3) Amsterdam Law Forum 15, 18.

[14]Schrijver, (2006) “The Future of the Charter of the United Nations” [2016] 10 Max Planck United Nations Yearbook 13; UN Charter, Article 108.

[15]Vienna Convention on the Law of Treaties (adopted 23 May 1969) 1155 UNTS 331, available online at <>.

[16] Jessica Liang,  ‘Modifying the UN Charter through Subsequent Practice: Prospects for the Charter’s Revitalisation’ [2012] 81 Nordic Journal of International Law 1, 5.

[17] Advisory Opinion on the Legal Consequences for States of the Continued Presence of South Africa in Namibia, International Court of Justice (ICJ), (21 June 1971), Rep 16, 22 [22] in Jessica Liang, (2012) ‘Modifying the UN Charter through Subsequent Practice: Prospects for the Charter’s Revitalisation’, Nordic Journal of International Law, 81, p.1-20, p. 18.

[18] Jessica Liang, ‘Modifying the UN Charter through Subsequent Practice: Prospects for the Charter’s Revitalisation’ (2012)  81 Nordic Journal of International Law 1, 7.

[19] Jack Goldsmith and Eric Posner, ‘A Theory of Customary International Law’,  (1999) 66 The University of Chicago Law Review 1113, 1137.

[20] Arend Clark, (2003) “International Law and the Preemptive Use of Military Force’, (2003) 26(2) The Washington Quarterly, 89.

[21] Alex Bellamy,  ‘International Law and the War with Iraq’, (2003) Melbourne Journal of International Law 4, 5.

[22] United Nations, Security Council, Identical letters dated 8 September 2015 from the Permanent Representative of France to the United Nations addressed to the Secretary-General and the President of the Security Council, UN Doc S/2015/745, (8 September 2015).

[23] Sean Murphy, ‘The Doctrine of Preemptive Self-Defense’, (2005) Villanova Law Review 50, p. 3.

[24] Case Concerning Military and Paramilitary Activities In and Against Nicaragua (Nicaragua v. United States of America); Merits, International Court of Justice (ICJ), (27 June 1986), 194.

[25] UN Charter, Article 1.1.

[26] The International Commission on Intervention and State Sovereignty, ’The Responsibility to Protect: The Report of the International Commission on Intervention and State Sovereignty’ (IDRC Books 2000).

[27] United Nations, Security Council Resolution 1973, The Situation in Libya, S/RES/1973 (17 March 2011).

[28] The International Commission on Intervention and State Sovereignty, ’The Responsibility to Protect: The Report of the International Commission on Intervention and State Sovereignty’ (IDRC Books 2000) XI.

[29] UN Charter, Article 2.1, Article 2.7.

[30] United Nations, The Secretary General’s Address to the General Assembly, (23 September 2003), available online at:

[31]Liang (n 18) 3.

[32] United Nations, “Charter of the United Nations: Procedural History”, Audiovisual Library of International Law, available online at:

[33] Liang (n 18) 4.

[34] Hans Kelsen, The Law of United Nations: A Critical Analysis of its Fundamental Problems (Stevens 1951) p. 15.

[35] Marco Sassóli, ‘Transnational Armed Groups and International Humanitarian Law’ (2006) Humanitarian Policy and Conflict Research, 6, available online at:

[36] United Nations, General Assembly, Study on Targeted Killings: Report of the Special Rapporteur on extrajudicial, summary or arbitrary executions, A/HRC/14/24/Add.6 (28 May 2010); ICRC (2008) “How is the Term "Armed Conflict" Defined in International Humanitarian Law?” , International Committee of the Red Cross (ICRC), available online at:

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