This chapter examines the evolution of Association Agreements after the Single European Act and before the failed Constitutional Treaty. It begins by analysing the case-law on Association Agreements and it shows how the Court shaped an extensive system of rights for migrants in light of the role they played in the EU project of growth. This approach of the Court was not well received. Rather, Member States tried to restrict rights of migrant workers in Association Agreements concluded during this period precisely with the purpose of avoiding the transposition of the relevant case-law. The chapter also examines the clauses in enlargement and association with European developed countries, where the extension of rights to migrants was easily accepted.

This chapter looks at various initiatives related to the rights of TCN migrants before the Single European Act. It presents and evaluates the first binding measure adopted by the Community on coordination of national migration policies in 1985. The measure was devised with economic aims in mind and should be seen as the prelude to a Community policy on admission that was completed a lot later, in the new millennium. Around this time, the groundwork was laid for a set of rights for migrant workers. The analysis of soft-law instruments and legislative measures shows that, in this early period, emphasis was placed on shaping a migration policy characterized by full extension of equal treatment to TCN workers. Overall, this chapter shows the desire of the Community, as expressed via its institutions, to fully coordinate labour migration policies and to assimilate the rights of migrant workers so as to support economic growth in the Member States and to raise the living standards of the population legally resident in the Community, regardless of their nationality.

The chapter examines the framework guiding free movement from the 1950s to the Single European Act. After examining how free movement provisions were included in the Treaties, the analysis turns to the secondary law adopted to operationalize the free movement provisions. The analysis shows that free movement was structured as a labour mobility scheme aimed at addressing the uneven distribution of manpower between the Member States. At the same time, the social aims of the Community were to be realized through strategies related to achieving the full potential of labour mobility and maximizing productive activities in the Community industries. Next to the legal framework, the case-law of the Court which revolutionized the social rights of Community migrants by an extensive application of the free movement provisions is presented. The analysis in this chapter reveals the centrality of economic objectives in the reasoning of the Court as a basis for broad interpretations facilitating free movement. By promoting such objectives, the Court also guaranteed social progress for the Community migrants and their families in the form of rights they were entitled to.

This chapter analyses the current framework regulating migration from third countries. It is only in this period that the relevant secondary law was fully formed. The analysis reveals the extensive attribution of rights to those TCN migrants the EU most needs, that is, those who are considered crucial for the EU development project. In parallel, economic safeguards of different kind appear in the system to ensure that TCN migration can in no way pose risks to the EU project. Next to the legislative framework, the examination of the case-law of the Court highlights the consolidation of social objectives by an emphasis on Charter rights in review of national measures transposing secondary law. In this chapter, the investigation further shows the complete elimination of migrants’ rights from agreements concluded by the EU with third countries.

This chapter addresses the special arrangements made to regulate migration from specific third countries in the period before the Single European Act. First, it will be shown how social and economic objectives, paired with favourable economic circumstances, laid the foundation for the extensive protection of Turkish workers under the EEC–Turkey Association Agreement. Following this, the analysis shows how economic cooperation with specific countries that were crucial for supplying migrant labour led to the attribution of rights to third-country nationals despite their exclusion from primary and secondary law. Finally, the chapter discusses enlargement processes and investigates how accession treaties concluded during this period were framed in light of ensuring the promotion of economic objectives, while limiting migration rights for nationals of acceding states. The analysis reveals the constant attempts by EU institutions to ensure that migration policy is aligned with the objectives of growth and progress, and thereby with the economic and social pillars of sustainability.

The World Trade Organization (WTO) regime has a significant role to play in disciplining secondary sanctions. It provides substantial standards and procedures that differ from and supplement applicable standards and potential remedies under general public international law. The WTO system may address the specifics of secondary sanctions in different ways. In this chapter three perspectives are discussed in this regard. First, it is observed that non-discrimination standards in trade law may capture what appears to be unfair about secondary sanctions, as such standards would fail to detect discrimination, where all WTO Members – target Members and third Members – would be sanctioned alike. Second, however, WTO exception clauses can take into consideration that secondary sanctions are significantly more distant in terms of a connection between the measure and a legitimate policy objective as required under standards of good faith. Third and relating to fairness, WTO dispute settlement would open an opportunity for affected Members to seek a rebalancing of rights and obligations even in cases where a measure would be considered to conform to WTO rules.

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.