Chapter 5 examines the impact of gender, sexual orientation and civil status on access to ART and the enjoyment of family life formed through ART. Aspiring single parents, women in a relationship with a same-sex or transgender male partner, and men in a same-sex relationship are reliant on gamete donation (as well as, in the case of male couples, surrogacy) in order to have a biological child and are particularly disadvantaged by prohibitions on third-party reproduction. These remain, nonetheless, within States’ margin of appreciation. However, where a child was born following the use of donated gametes or surrogacy abroad, the Strasbourg Court requires measures of protection. Significantly, the relationship of surrogate-born children with the intended non-biological parent is equally protected whether the genetic father has an opposite-sex or same-sex spouse. The chapter criticises, however, the less favourable treatment of commissioning mothers based on a conservative understanding of motherhood as gestational.

Governments may impose a carbon emission charge to address environmental externalities. If implemented, this will drive up the cost of energy-intensive production. To level the playing field, domestic carbon pricing can be extended to carbon-embedding imports. The recent legislative movements in the EU and elsewhere show that the issue of adjusting carbon prices at the border is entering the mainstream of climate policymaking. At the same time, carbon is not the only target of energy-affecting trade control measures. Other typical examples of such measures include air quality regulations with import-restrictive impacts and the localization of clean energy production, which some States may portray as environmentally necessary. Products with health-threatening content associated with unsafe energy use can face market access barriers as well. When energy production causes ecological or public health problems at home or depletes natural resources, export restrictions are usually among candidate measures that governments consider for mitigating such adverse effects. Therefore, it is imperative to examine trade rules and case law to check the legality of these energy–environment measures.

Union citizenship was created to provide a closer bond between the European Union and the nationals of the Member States. It provides a frame for rights to move and reside throughout the EU, and to work and live in conditions of equality and non-discrimination within a host Member State. Union citizens also have the right to be accompanied by their families when they move, even if the family members are not Union citizens themselves. The very power and scope of these rights can make them controversial. The question of whether and when Union citizens should have access to benefits, whether their same-sex family arrangements should be recognised in Member States that do not allow same-sex marriage themselves, and the extent to which Member State nationality law is constrained by the fact that each Member States national is also a Union Citizen, have all been the subject of much discussed case law.

In the past decade, standard essential patent (SEP) licensors and implementers of connectivity standards have increasingly used litigation as an instrument in their negotiations with the aim to reach a more favorable deal to them. The wider use of connectivity standards in various IoT verticals means on the one hand that SEP licensors have to negotiate licenses for a broad range of different products with an increasing number of implementers, many of which are less familiar with standards and SEP licensing. Whereas on the other hand, implementers have to take licenses from an increasing number of SEP licensors for the different connectivity standards they may use in their products. If current licensing practices in the telecom sector are replicated in the various IoT verticals, the number of SEP litigations will increase even more over time. This chapter describes a holistic end-to-end solution aimed at creating a smoother SEP licensing ecosystem, in which licensors and implementers will be driven more towards negotiated agreements than towards using litigation to get to a deal. It addresses practical solutions for those elements in SEP license negotiations that are the cause of most litigation, including increasing SEP transparency, increasing the likelihood of the validity of SEPs, incentivizing implementers to seek SEP licenses, assessing a reasonable aggregate royalty for the total SEP stack, and securing a better level playing field among licensees.

This chapter explores the potential role of national and international courts and tribunals in relation to claims for environmental damage to areas beyond national jurisdiction (ABNJ). Access to remedies includes facilitating access to international and national courts to initiate claims for environmental harm, but also requires consideration of the associated rules that may constrain the ability of the court or tribunal in question to provide relief, such as jurisdiction, rules on the choice of law and the recognition and enforcement of judgments rendered in such cases. The chapter begins with a discussion of the general rules and principles concerning access to remedies under the rules of state responsibility and domestic civil liability, respectively, before turning to the specific rules in ABNJ. It also addresses the substantial additional challenges that each of these sets of rules pose to realizing the goals of liability regimes, including the need to prevent environmental harm and restore the environment, to provide for effective deterrence of risky behaviour, to ensure a level playing field and to ensure adequate and prompt compensation.

This chapter discusses the right to equality and non-discrimination as it is protected by the European Convention on Human Rights, other Council of Europe instruments, in EU law and in international instruments. Attention is paid to various non-discrimination concepts, such as indirect and direct discrimination, and to grounds of discrimination. In the final section, a short comparison between the different instruments is made.

Chapter 4 explores the utility of different WTO rules in disciplining market-distortive behaviour of SOEs and subsidies, including GATT rules on import monopolies, state trading enterprises (STEs), transparency, and anti-dumping (AD) measures. In our view, these rules are all of limited utilities, albeit for different reasons: the rules on import monopolies and STEs are quite narrow in terms of the coverage of policy instruments and the prescribed obligations, the transparency obligation is rather tooth-less, while the ability to use AD measures to deal with market distortions due to state intervention has been curtailed by the Appellate Body (AB) in recent cases.

Chapter 6 provides a critical evaluation of the new rules on SOEs developed in international trade and investment agreements, with the CPTPP as the leading example. Despite its reputation as a ’twenty-first century high-standard trade agreement’, we argue that the SOE rules in the CPTPP do not add much to the existing rules in the WTO and are less rigorous than China’s WTO-plus obligations discussed in Chapter 5. This chapter then examines some major post-CPTPP trade and investment agreements with significant rules on SOEs, including the EU–Japan FTA, the EU–Vietnam FTA, the United States–Mexico–Canada Agreement (USMCA) and the CAI. As one of China’s latest international agreements, the CAI is also the first treaty where China agreed to SOE rules outside the WTO. Again, the main substantive obligation here – the one on commercial considerations – simply repeats the existing obligation in China’s WTO accession package. While all of the FTAs discussed in this chapter should be praised for setting new and higher standards of transparency, they do not resolve the longstanding problem of enforcement – the most challenging issue under the WTO’s transparency regime.

The use and development of algorithms in health care, including machine learning, contributes to the discovery of better treatments for patients and offers promising perspectives in the fight against cancer and other diseases. Yet, algorithms are not a neutral health product since they are programmed by humans, with the risk of propagating human rights infringements. In the medical area, human rights impact assessments need to be conducted for applications involving AI. Apart from offering a consistent and transversal substantive approach to AI, human rights law, and in particular the UN Guiding Principles on Business and Human Rights, would allow the targeting of all stakeholders, including the corporations developing health care algorithms. Such an approach would establish a chain of duties and responsibilities bringing more transparency and consistency in the overall process of developing AI and its later uses. Although this approach would not solve all AI challenges, it would offer a framework for discussion with all relevant actors, including vulnerable populations. An increase in human rights education of medical doctors and data scientists, and further collaboration at the initial stages of algorithm development would greatly contribute to the creation of a human rights culture in the techno-science space.

The concluding chapter synthesises the fragmented standards of the chosen legal frameworks on the subject, restates each chapter’s findings, makes recommendations for the progressive development of the law and highlights areas worthy of further research

This chapter builds on the structural and conceptual challenges outlined in the preceding chapters to describe, compare and analyse the international and European jurisprudence on the right to health care or medical care of undocumented people. The assessment uncovers several inconsistencies. While international human rights law elaborates, inter alia, on the concepts of ‘primary health care’ and non-discrimination of vulnerable people, including irregular migrants, in its scope of application, European human rights law entitles irregular migrants to a level of health protection that equates to ‘urgent’ or ‘life-saving’ treatments. Although international human rights bodies employ vulnerability and core and positive obligations to urge states to implement measures in this area of law and policy, the chapter recommends a more substantive-oriented approach to health care obligations by international bodies aligned to the accessible level of health care specified in the WHO recommendations on ‘primary health care’ and greater rigour and consistency in health-related terminology and legal arguments to increase persuasiveness. In both this and the following Chapter 4, special remarks are dedicated to irregular migrant children and to women’s access to reproductive services and care.

The European Union introduced ‘European Union citizenship’ in 1992. European Union citizens hold a citizenship that is linked to national citizenship. It is the only form of citizenship in the world that is acquired automatically by those who are nationals of a member state. Citizenship is complex and varied – some countries allow dual citizenship while others do not; individuals can change their citizenship or renounce it but states may not arbitrarily deprive a citizen of this status. As the EU is not a nation state, EU citizenship does not give Union citizens dual nationality. This chapter will explore the character of EU citizenship and the substance of the rights associated with it. EU citizenship may have been the idea that drove a wedge between the UK and the EU resulting in Brexit. A key question is whether it can be given enough substance to act as a ‘glue’ and bind the nationals in the twenty-seven EU member states. Furthermore, what is its value – is it an ‘inviolable’ status, giving rise to rights that exist regardless of any economic activity?

The essence of a human right is that it is afforded immediate protection, even if this protection is not absolute. Rights are ‘fundamental’ because their existence is not open to dispute, negotiation or compromise, although their substance is subject to interpretation. Rights are anchored in law and they underwrite legal as well as political action. Despite their interaction, human rights should not be equated with human rights law. This chapter will explore the appearance and evolution of human rights in EU law, paying particular attention to five themes: the history and systematisation of human rights in EU law; their initial appearance in EU law via adjudication rather than political deliberation; the relationship between general principles, fundamental freedoms and fundamental rights in EU law; the use of fundamental rights in EU law, in particular the scope of judicial review by the CJEU; and accession to the European Convention on Human Rights.

This chapter addresses the question of how the CJEU engages with its own past cases in its reasoning. The chapter focuses on how to identify the most legally authoritative precedents in the CJEU non-discrimination jurisprudence that implies a corpus of cases. Frese shows empirically how the corpus of CJEU cases, built over the course of the past sixty years, assigns different degrees of authority to each case according to how the court uses them. This chapter demonstrates that the network approach to the study on precedent provides a highly useful method, which has the specific advantage of shifting the viewpoint of which cases are authoritative from the scholarly perspective to the CJEU’s perspective by tracing the court’s own references and citations to its past cases. In departing from traditional theories of what precedent is and how it constrains, the chapter operationalizes the concept of precedent as, initially, a mathematical authority. By mapping all the references and citations between cases, it is furthermore shown how the court itself creates legal ‘authorities’ in its jurisprudence as it cites some cases very frequently while others less. By highlighting how the network approach provides useful tools for understanding the CJEU’s reasoning and decision-making practices, the chapter also shows that this approach should refine and supplement, rather than substitute, EU law doctrinal analyses.

Chapter 6 studies the substantive meta-rules of the TBT Code of Good Practice. As the Appellate Body never provided interpretive guidance over these provisions, how to apply them to standards and VSS remains unclear. Chapter 6 analyses crucial TBT principles providing that standards do not discriminate, do not create unnecessary barriers to trade and are based on relevant international standards. The interpretation of similar TBT provisions concerning technical regulations is used as guidance in understanding the transposition of these obligations and in suggesting how these legal tests are applicable to VSS. The chapter acknowledges the peculiar nature of standards identifying products with distinct quality features such as VSS. It identifies relevant differences from technical standards that must be taken into account for interpretive purposes. These include the objectives pursued by a scheme that can be accepted as legitimate, the implications of the treatment-no-less-favourable standard on measures that structurally distort competitive opportunities and whether the detrimental impact generated stems exclusively from a legitimate regulatory distinction.

International economic law is a field of public international law that regulates crossborder transactions in goods, services, and capital, as well as monetary relations between states. This chapter focuses on the branches of international economic law that govern international trade, international investment, and international monetary law. It sets out the historical background, fundamental rules, and dispute settlement systems in the areas of international trade law and international investment law, and it concludes by introducing international monetary law. International trade and international investment law share some fundamental principles, such as non-discrimination, although most favored nation treatment and national treatment take somewhat different forms in the two bodies of law. This chapter covers the Bretton Woods institutions, namely the World Bank and the International Monetary Fund (IMF), as well as the World Trade Organization (WTO).