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    Plan détaillé Texte intégral I. Movements with human vs natural origins II. General and abstract hypothesis of total movement beyond control III. Some iconic cases of total movement beyond control IV. Total movement of persons beyond control V. Total movement of data beyond control VI. Total movement of capital beyond control VII. Total movement of waste beyond control Notes de bas de page

    Rethinking Flow Beyond Control

    Ce livre est recensé par

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    Table des matières

    Chapter 1

    Total Flow Beyond Control

    p. 19-45

    Texte intégral I. Movements with human vs natural origins II. General and abstract hypothesis of total movement beyond control III. Some iconic cases of total movement beyond control IV. Total movement of persons beyond control A. Some examples of total movement of persons beyond control B. A typology of the total movement of persons beyond control V. Total movement of data beyond control A. Some examples of total movement of data beyond control B. A typology of the total movement of data beyond control VI. Total movement of capital beyond control A. Some examples of total movement of capital beyond control B. A typology of the total movement of capital beyond control VII. Total movement of waste beyond control A. Some examples of total movement of waste beyond control B. A typology of the total movement of waste beyond control Notes de bas de page

    Texte intégral

    1In 2018, there was a public exhibition in Ottawa (Canada) on the “Anthropocene”.10 Its aim was clear: to raise awareness of the extent of the transformations underway on Earth, reflected in scientific theories at the beginning of the 21st century asserting the advent of a new geological era —the Anthropocene—to succeed the Holocene, which had lasted more than 10,000 years.

    2The first exhibit visitors encountered was a video loop of a long take filmed from the front of a train speeding through the longest tunnel in the world (Gotthard Base Tunnel in Switzerland, 57.1 km long).

    3It is interesting that the Anthropocene should be symbolised this way using a situation in movement generated by human technology. This helps us to understand the scale of the changes caused to our environment by the circulation flows stemming from the technosphere.

    4As a legal scholar, it may of course seem difficult to adopt the concept of the Anthropocene, often subject to debate.11 It may even be characterized as mere jargon, no more than a passing fad.

    5But it is also possible to overcome such scepticism12 by focusing on the impact in the legal world that the distinction between the Holocene and Anthropocene has on another distinction—that between movements with human origins and movements of the natural world.

    I. Movements with human vs natural origins

    6Let’s begin with the assumption that on the one hand there are the movements of the technosphere, and on the other those of the lithosphere, atmosphere, hydrosphere and biosphere.

    7A distinction between anthropogenic and natural movements. The term technosphere has been discussed by scientists for more than 50 years.13 It refers to all of the technologies produced by humans since the origins of humanity, leaving a trace of trillions of tonnes on the planet over the course of its development (estimate generated in 2017).

    8This holistic approach to technology places at the forefront of its outputs all the tools of communication, transport and interconnection imagined and designed by humans.

    9If one accepts such a reading of human technology and the major impact it has on movement, then one will recognise that a not inconsiderable proportion of the situations in movement that can be observed around us today can be traced back to human technology, i.e. the technosphere.

    10Such movement can be distinguished from those generated by the natural world. The lithosphere (landslides, plate tectonics, volcanic eruptions), atmosphere (moving mass of air), hydrosphere (moving mass of water) and biosphere (movements within or between ecosystems) provoke their own displacements of inert or living matter, air or water in which man’s actions would not appear to play a crucial role.

    11For a legal scholar, it is interesting to point out that the different origins of these flows can have significant consequences for the constructs of the law.

    12The consequences of this distinction in law. In strictly legal terms, the law can be seen sometimes to distinguish between natural movements and those caused by humans. This is true, for example, of the way we manage disasters.

    13The law generally distinguishes between the natural or technological causes of disasters, which are of interest in the context of situations in movement whenever they involve some kind of circulation: landslides, flooding, contagion, spread, pollution, etc.

    14Let’s consider three examples in French law of the different approaches to natural and technological disasters.

    15During the French Revolution, the general term public calamity was a novel way to refer to two very different types of events: those for which “people […] can only accuse the heavens of the ills they suffer” and all others.14

    16The current legislation in France clearly distinguishes between a declaration of “a state of natural catastrophe” (law of 1982) and one following “a state of technological catastrophe” (law of 2003).

    17Book V of France’s Environment Code, which focuses on the “prevention of pollution, risks and nuisance”, the prevention of “natural risks” (section VI) is clearly distinguished from other risks linked to human activities, such as those inherent in chemical products (section II), genetically modified organisms (section III), waste (section IV), certain structures or facilities (section V), noise (section VII) or nuclear facilities (section IX).

    18The legal solutions applicable to these two families of risk can present certain similarities. But it is interesting to note that the law generally distinguishes between the natural and anthropogenic origins of risk.

    II. General and abstract hypothesis of total movement beyond control

    19Each of the three terms here—total, movement and beyond control—needs to be defined in turn.

    20Total. This term derives from the expression “total social fact” as it is used in sociology. It refers to the property of movement that concerns all parties. Concluding his much celebrated The Gift, Marcel Mauss15 offered this definition: “The facts we have studied are all ‘total’ social phenomena. The word ‘general’ may be preferred although we like it less. Some of the facts presented concern the whole of society and its institutions […]; others […] are the concern of individuals and embrace a large number of institutions”.16

    21“Total movement beyond control” describes a multifaceted whole comprising instances of movement which, in a given environment, can concern all of us, or at least a great many of us.

    22Total movement beyond control can be found in any kind of environment. From a spatial perspective, it could relate to one or more rooms (meeting room, dwelling), a broader entity (premises of a company or administration), a given geographic zone with more or less clear boundaries (town/city, county, region, State, market, contamination zone) or, even broader still, an entire environment (Earth, universe).

    23From a temporal perspective, total movement beyond control can take place in an extremely short timeframe (occurrences measured in nanoseconds) or over an extremely long period (geological era).

    24From a social perspective, total movement beyond control can affect all kinds of groups, from the smallest to the biggest (family, clan, association, civil or commercial society, national, regional, international or transnational companies).

    25All of these distinctions must be approached dynamically, for one specific feature of movement—and herein lies the difficulty of pinning it down—is that it can very quickly pass from one state to another. And so we cannot adopt a compartmentalised vision of these spatial, temporal and social environments.

    26The nature of phenomena involving total movement beyond control is that they necessarily extend beyond the framework of action of a given operator, who one might be tempted to think allowed the movement to slip out of its grasp. They concern all types of stakeholders:

    • active or passive stakeholders, those who generated the movement that subsequently slipped beyond control or those who suffer it;
    • public or private stakeholders, from the State and its tentacular entities to international or regional public bodies and all kinds of private non-governmental organizations, not forgetting individuals of course;
    • legitimate or illegitimate stakeholders: total movement beyond control can be part of lawful transactions that comply with the rules, which give them legitimacy, or unlawful transactions such as trafficking, whether organised or not.

    27In any case, it is essential to develop a dynamic approach to the interplay between all of these stakeholders. Movement creates porousness between these categories, such that when it is total and beyond control, it is very difficult to pin down the phenomenon as active, passive, public, private, legitimate or illegitimate.17

    28Movement. The types of movement addressed in this essay refer to any geophysical displacement of persons and things, in both material and immaterial forms. The words persons and things are to be understood in the broadest sense: natural persons or legal entities, items or things of value, the latter including services and capital. By “geophysical displacement”, I am referring to all movements involving persons or things being displaced across one or more territories, either within a given space or across several different spaces.

    29I have decided to exclude two types of movement.

    30First, those of the natural world. This is because the notion of control is not the same whether we are talking about movements with natural or human origins. In very general terms, it can be said that the law does not require humans to control the movements of the natural world, whereas the reverse approach is usually adopted in the case of movements caused by man. To the extent that our working hypothesis is based on the idea of the loss of control (see below for further explanations), it is only logical for us to address this latter category exclusively.

    31This distinction between the two types of movement—caused by nature or by humans—must not however be pushed too far. An increasing number of phenomena considered natural are now described as a more or less direct consequence of human activity. This requires us to consider the question of the link between human activity and natural occurrences and also to observe the way in which the blurring of these two types of phenomena feeds into the legal debate.

    32The second exclusion relates to forms of legal circulation with a metaphysical dimension. The movement of legal models, concepts and cultures does not fall under the scope of this text, except where a correlation can be found with geophysical movement. They are underpinned by different approaches and, incidentally, have received far greater attention from legal scholars and theorists than their geophysical counterparts.18

    33Beyond control. Human movements owe much to our technology and the technosphere referred to earlier.

    34We have seen powerful demonstrations19 of how difficult it is to conceive of and therefore control technological objects when they cannot be described using simple words, which one must admit is very often the case.

    35There is no shortage of reasons to adopt a specific approach to flows with anthropogenic origins, as distinct from our usual approach to natural flows.

    36These flows become “uncontrollable” insofar as, whether in general or specific, definitive or temporary situations (particularly in times of crisis), at some point, in part or in full, they escape the control of the stakeholders concerned.

    37This escape may be voluntary or involuntary, conscious or unconscious.

    38What is important at this stage is to consider the effects of this loss of control. Total movement beyond control, within its own sphere, generates positive and negative, legal and illegal circuits that prevent even the concerted efforts of stakeholders from containing it.

    39Rather than talking of a lack of control, it is preferable to approach this in terms of a “loss of control”. At some point humans had control over the process, but due to a given cause or succession of causes, control over the movement, or flow, was lost by all of the stakeholders potentially concerned.

    40The situation is not necessarily irrevocable. But for a time, it is out of control or, more specifically, beyond control.

    41The hypothesis of a loss of control requires agreement on the meaning of the word control. Without wishing to anticipate the different analyses—legal in particular—of the notion of control, at this stage it is important to understand that it can have several meanings.

    42Control may refer to:

    • measuring movement: collecting data on circulation is one way to control it; data is indispensable when it comes to creating a circulation model that can make it intelligible;
    • releasing movement: release is obviously a form of control, since the stakeholder with the power to initiate movement can simply decide not to do so;
    • orienting movement: deciding to steer a flow in one direction rather than another is another form of control; choosing one circuit over another has consequences;
    • stopping movement: this is the flipside of releasing movement; being able to stop the flow that one has set in motion or that was set in motion by another is clearly an exercise of control;
    • reversing movement: the ability to make flows completely reversible is no doubt the most comprehensive expression of control as it involves forms other than those mentioned above (measuring, releasing, orienting and stopping).

    43The hypothesis of total movement beyond control does not necessarily involve the cumulative loss of all of these tools of control. One can see how the loss of control can occur gradually and relate to only some of these tools. One could equally see how the loss of control can be total insofar as no stakeholder is in a position to measure, release, orient, stop or reverse the flows in question.

    III. Some iconic cases of total movement beyond control

    44To illustrate what we mean by “total movement beyond control”, we will now consider four examples that are particularly symptomatic of the current era: the circulation of greenhouse gases, information, epidemics and invasive exotic species.

    45We will then broaden our perspective to a more all-encompassing approach.

    46Circulation of greenhouse gases. On a global scale, greenhouse gases are a major example of how control can be comprehensively lost. Human activities lead to gas emissions (carbon dioxide and other greenhouse gases) which, once released into the atmosphere, escape our control. These gases accumulate and circulate all around the planet, without those responsible for their release having any means to recover them. Indeed, the action of the stakeholders concerned amounts to, first of all, waiting a very long time for the existing gases to dissipate, and secondly, trying to reduce past and future emissions. This is the famous “negative emissions” theory promoted by geo-engineering. But even the latter efforts remain highly limited. It is not enough for one country, company or individual to be exemplary in terms of the reduction or remission of emissions. All stakeholders need to mobilise in the same direction if human intervention is to have the intended global effects, i.e. control over the quantity of greenhouse gases circulating in our atmosphere. Such a level of mobilisation is not in place, either in discourse or in action.

    47On an individual scale, the situation is no different. X drives a car with a combustion engine. The gases emitted by the vehicle are testimony to the loss of control on various levels. When it comes to calculating emissions, recent press coverage showed us that major automobile manufacturers had skewed their analyses, deceiving thousands of consumers about their capacity to limit their vehicles’ emissions by choosing one model over another. So when it comes to gas emissions as such, X has no other choice but to emit or decide to no longer use a car. The latter choice gives her the power to stop the flow, although it implies definitively abandoning the vehicle’s intended usage. X has no capacity to orient the flow of the exhaust fumes her car spits out. The process is irreversible to the extent that even if X plants new trees in her garden every year, nothing allows her to believe that she is in a position to recapture the gases she has herself emitted and which are potentially the cause of problems thousands of kilometres away.

    48Circulation of information. The activity of communicating information necessarily involves the circulation of pronouncements and in particular raises the difficulty of “false information” being disseminated.

    49One need hardly be a specialist in information science to observe that the development of social media online and the technological devices now available to us all to participate in communication process has led to the emergence of a considerable number of new stakeholders on the margins of the traditional media. This totally undermines the communication process and feeds into diverse utopias (in the pejorative sense) in our so-called “information society”. N. Luhmann20 explained that the intervention of a technical dimension rules out harmonious interaction between the communicator and recipients. The possibility for any given individual to communicate information via the Internet considerably increases the difficulty of determining the circle of persons involved in a communication exchange.

    50These difficulties clearly reflect the hypothesis of total movement beyond control laid out above. When just about anyone is in a position to make information accessible to the greatest number, it is very much impossible to have any real control over (measure, release, orient, stop or reverse) its circulation.

    51Circulation of epidemics/pandemics. The global paralysis caused by the spread of the Covid-19 coronavirus in late 2019 and early 2020 is the third example of total movement produced by humans and which largely escapes our control.

    52The anthropogenic origins of the Covid-19 epidemic are no longer really in doubt, even though the precise scenario of the virus’s first transmission to a human continues to be debated. Human activity, and the way it changes ecosystems (e.g. mass deforestation), is behind the spread of the virus, which, without such disturbance, would almost certainly have remained confined to its natural environment.

    53The circulation of the virus on a global scale—a pandemic—is also closely linked to human activity. Person-to-person transmission is generously facilitated by all of our movements, whether on a small or large scale. Other favourable vectors such as the circulation of polluting micro-particles place us, as individuals, very close indeed to the propagation process.

    54This propagation is clearly out of control. At each turn, public and private stakeholders are increasingly aware of this unstoppable loss of control. First, they try to isolate cases, then put entire swathes of the population into lockdown and, ultimately, realise that the pandemic is sweeping the world like a gigantic wave that no-one can stop. All efforts then turn to minimising its devastating effects, and those who speak—in earnest—of “stopping” it are fewer and fewer in number.

    55Circulation of invasive exotic species. The final example is that of the circulation of plant or animal species which come from elsewhere (“exotic”) and massively colonise their host environment. Seen as one of the five key factors in the collapse of biodiversity (alongside damage to natural habitats, climate change, over-exploitation of species and pollution), this phenomenon is openly described as the manifestation of a loss of control over movement that is closely linked to the actions of humans, who artificially introduce species outside of their natural environment and are then unable to control their spread. It is said to have increased considerably over the last 50 years.

    56Broader approaches: persons, data, capital, waste. To pursue this analysis, a broader approach to phenomena of total movement beyond control in several vast areas of human activity is needed.

    57This is a difficult but necessary choice.

    58The difficulty lies essentially in the analyst’s capacity to work outside of her comfort zone and be willing to test her frameworks of analysis in very different environments, each one more demanding than the next. No-one is omniscient and it is very hard to develop a universal knowledge of the law. One must therefore be ready to tackle distinct areas not as a specialist, but as a generalist trying to apply the same questions to diverse domains.

    59This approach is necessary. Each area of human activity has its own structure, constraints and ways of seeing things. In each of the subjects we will be looking at, there is a specialized and abundant body of doctrine that has naturally looked at the questions raised by movement and control thereof. It is only natural to refer to these doctrines.

    60But if one wishes to offer even a slightly different perspective to those accustomed to working on a particular topic—which after all is the aim of any research—, it is essential to define a new research focus. This is why I took the decision to adopt a broader, cross-disciplinary approach which will allow us to explore whether or not, beyond the specificities of each area, there is a common way of describing and reflecting on the topic of this essay.

    61To identify the major areas of human activity that can contribute to our reflection on phenomena of total movement beyond control, I chose different fields of study of which movement is an intrinsic part. We are talking about things that circulate, i.e. circulation is part of their very definition:

    • persons (natural persons or legal entities), who are intrinsically destined to move or be deployed;
    • data, which is only of any real use if it is exchanged within some kind of circuit, from the smallest to the largest;
    • capital, whose primary driver of value is circulation;
    • waste, which implies an act of abandonment or defection, i.e. the movement of the thing abandoned or the movement of the person walking away from it.

    62These different categories can be linked. For example, the displacement of persons, capital or waste can produce data which in turn circulates. In other cases, it may seem totally inappropriate to connect them: people and waste are, after all, different in every respect!

    63To present these categories—persons, data, capital and waste—we will adopt the same reading, distinguishing in turn between the casuistic and dogmatic (in the positive sense) approaches. The former involve presenting tangible scenarios of total movement beyond control, while the latter seek a more general understanding, establishing a typology of the different forms of movement in question.

    IV. Total movement of persons beyond control

    64Let’s begin with the casuistic approach (A) before turning to the dogmatic approach (B).

    A. Some examples of total movement of persons beyond control

    65As we all know, people have a natural capacity to move, i.e. to deploy themselves through movement across territories and spaces. In some cases, their movement involves a total loss of control. We will consider four significant examples.

    66The endless search for an elsewhere that does not exist: the case of “stateless” persons. When it comes to the movement of persons, the loss of control can stem from the Kafkaesque situation in which people find themselves when no State is willing to host them. They may be stateless because they are without nationality, in which case they are afforded limited international protection (inferior to that given to refugees). Or they may be stateless de facto, in a situation where no country is willing to take them in or their home country has turned them away. Complex systems can be at work in such a scenario. This is true of situations where a State or group of States decide to outsource the processing of asylum requests to third countries, encouraging the creation of transit zones, or “hotspots”. Foreign nationals find themselves unable to access, even temporarily, the territory in which they are seeking protection, and their circumstances are usually precarious in the transit country. Specialists say that this stateless status is the reality for more than 10 million people globally.

    67The scale of the phenomenon is due to the great shifts that have taken place in the world. At a time when land was not tamed as it is today, the search for an elsewhere was still potentially worth it. The decision for an individual or group of individuals to flee could lead them to an “unknown” or “new” land. This is practically unthinkable nowadays. With essentially all of the planet’s land now conquered by man, stateless persons can be expelled from one territory to the next and so on. The endless search for an elsewhere that does not exist indicates a total loss of control over this process of movement.21

    68Overseas surrogacy movements. Movement is an omnipresent feature of overseas surrogacy, where the parents-to-be (the clients) look for the services of a surrogate mother (service provider) abroad to carry a child they then wish to repatriate under their roof after his or her birth.

    69This is a highly multifaceted form of movement: movement of the parents-to-be, the surrogate mother, the gametes, the child, the medical certificate, the birth certificate, the court decision authorising the adoption, etc.

    70A multidisciplinary and comparative research study22 has shown how these movement phenomena lead to the neutralisation of, i.e. a loss of control over, a certain number of legal regulatory mechanisms, irrespective of the legal environment in question (one that authorises or, on the contrary, prohibits surrogacy, one with a laissez-faire approach or, on the contrary, one that organises the entire procedure from start to finish).

    71In particular, the fact that the child born through surrogacy can move from the country of their gestation/birth to that of the parents-to-be raises questions about the status of that child, which the host country could hardly claim not to know simply because the procreation process is considered unlawful or non-compliant on its national soil. It is absolutely impossible to overlook this movement phenomenon. Indeed, we need to tackle it for the total fact of movement it is, observe the disorganisation it can cause to the legal order and consider how and whether to rethink this order in light of the phenomenon.

    72Residency permits and “golden” passports. The “golden visa” practice is whereby a country sells a residency permit or even a passport to foreign nationals with the capacity to pay the highest price (in cash and/or in the form of investments) to obtain a permit to access its national soil as well as various other foreign territories. Several countries worldwide have experimented with this practice (Canada, United States, Australia, Singapore and Malaysia), including in Europe (United Kingdom, Switzerland, Latvia, Portugal, Greece, Spain, Hungary, Malta and others). The studies available show that it is a practice of particular interest to high-net-worth individuals from China, Russia and the US.

    73The case of European countries that belong to the Schengen Area, which has adopted the free movement of persons without internal checks (26 countries some of which, like Switzerland, do not belong to the European Union), is an example of total movement beyond control. When a State like Malta offers to sell a Maltese passport or residency permit in exchange for significant investment, it is not only Maltese citizenship or residency that is at stake, but also European citizenship (passport) or residency (visa). The other member States in the Schengen Area are faced with a total fact of movement that can clearly be seen as a loss of control over the flow of persons from third countries.23

    74The mobility of companies. The mobility of companies is not organised on an international scale. Rather, States engage in normative competition in an effort to attract foreign investments without necessarily trying to coordinate their respective actions.

    75On a regional scale, particularly in Europe (European Union), this lack of coordination is also striking. Previous attempts to establish shared rules have failed, and ongoing efforts are proving particularly laborious.

    76It is in this European context of non-harmonisation that the Court of Justice of the European Union has tried to find solutions based on a fundamental freedom of movement (primarily the freedom of establishment, and in some cases the free movement of capital).

    77The case law this has generated is often understood as an expression of a desire by European judges to impose the mobility of companies since States have been unable to organise it in the absence of shared will.

    78The movement of companies is thereby imposed on all stakeholders in the name of respecting a fundamental principle of free movement but which does not provide all of the necessary tools (fiscal and social in particular)—far from it—to accompany this type of process.24

    B. A typology of the total movement of persons beyond control

    79From the dogmatic perspective, it is interesting to observe the place that the hypothesis of total movement of persons beyond control could occupy in the different types of far-reaching mobility, understood in its broadest sense. Without trying to be exhaustive, four examples are considered here.

    80International mobility. International mobility has been around a very long time. For example, in the Middle Ages it has been shown that, even after the invasions of the 10th century ended, the mobility of persons continued in renewed forms.25

    81In the contemporary period, it relates to all of the systems devised around the world to tackle the question of protecting refugees and the phenomenon of migration. The legal landscape was significantly amended in the aftermath of World War II, in particular with the adoption of the United Nations Convention Relating to the Status of Refugees (1951). This system has undergone major transformations in recent years, particularly with the rise in power of the tools of international humanitarian law, and it can now be said to be in a state of veritable crisis.

    82In December 2018, the Global Compact for Safe, Orderly and Regular Migration was adopted by 152 countries at a conference organised by the UN in Marrakesh attended by 165 States.

    83The initiative, which led to a non-binding text, was the subject of global controversy and the target of a broad campaign of disinformation. It ended up being defended primarily by the same people who had criticized its lack of ambition.

    84In short, the spectre of total migration beyond control took over the debate, relegating to the background the efforts made to define the tools of good governance for borders and mobile populations.26

    85Citizen mobility. Europe, and specifically the European Union, has achieved great heights with its ambition for the free movement of persons, whether economic agents (workers and entrepreneurs) or European citizens generally.

    86Research, mainly in law and political science, has focused on determining whether this European ambition of mobility has achieved its objectives.

    87Two major issues have been studied in relation to total movement beyond control. The first relates to internal migration within Europe immediately after the Union’s major enlargement to include Central and Eastern Europe (2004). The second is the efficacy of free movement of persons for European citizens in general.

    88On the first point, we know that the EU increased the number of derogations to avoid the risk of mass emigration feared by a certain number of States. The consequence of this decision was to bring about a regression in some freedoms of movement, particularly that of employees.

    89On the second point, an increasing number of criticisms have been made about the poor results obtained in terms of intra-European mobility. The percentage of Europe’s population who effectively benefit from the free movement of persons is considered too low.

    90These two subjects of analysis are interesting for our working hypothesis. They show that the loss of control does not necessarily refer to an inability to curtail undesired population movements. This loss of control can also reflect very real difficulties in organising the mobility of persons in a shared space that comprises several national territories. In the first case mentioned above, the loss of control resulted in a regression in the freedom of movement. In the second, it manifests itself through an inability to deploy personal mobility across the European area.27

    91Vulnerable mobility. Any specialist will tell you: when it is forced or altered, mobility affects the vulnerable in particular, as well as giving rise to new forms of vulnerability. Whether foreigners, women, children, those who are incapacitated or in need, mobility feeds off and exacerbates forms of vulnerability. One need only look at the different types of trafficking (human trafficking, illegal migration), which systematically exploit these states of vulnerability.

    92By looking at the total loss of control of those who, in positions of vulnerability, are not free to choose their own mobility, we can get an idea of the scale of a phenomenon which our societies generally try to ignore. In other words, to talk of vulnerable mobility is to talk of a total loss of control over mobility. Refusing to consider this reality amounts to nothing less than refusing to consider the situation of vulnerability in which those concerned find themselves.

    93Here, the loss of control is inherent in the notion of “vulnerable mobility” itself. The two are linked.28

    94Climate mobility. An increasing number of research studies have tried to sketch out possible scenarios for the measures we need to take to cope with climate-driven population displacements. This is not theoretical work: in some regions of the world (Pacific, south-east Asia), such displacements are very much a reality.

    95Various initiatives, legal initiatives in particular, are being taken in an attempt to identify suitable solutions to the different problems raised. One such solution would involve recognising the status “environmental displaced person”, which would be offered protection potentially equivalent to that afforded—in principle—to refugees.

    96But it is clear that the prospect of tens of millions of people being displaced between now and 2050 has petrified international political action, already bogged down in a state of dire confusion (especially between migrants and refugees).

    97In some, it is the spectre of total loss of control that governs!29

    V. Total movement of data beyond control

    98Let’s begin again with the casuistic approach (A) before turning to the dogmatic approach (B).

    A. Some examples of total movement of data beyond control

    99Like people, data has a natural propensity to circulate. Here are three illustrations of its total movement beyond control.

    100Making data available on a website. Imagine a blogger posts something and inadvertently (an unfortunate copy-and-paste) includes the name and telephone number of an acquaintance. Within a potentially very short timeframe, that information is relayed by various social media platforms to which the blogger is subscribed and the page is indexed by various search engines. It is now accessible anywhere the website can be visited. Realising her error, the blogger takes down the indiscreet content within minutes of its publication. But has she removed the data in question from the Internet? The answer is most certainly no. Within just a few minutes, servers, which is to say computers, were able to consult the website and store the information it displayed. Because the Internet’s memory cannot be erased, one cannot completely remove content—even less so control its circulation. Of course, the data in question will be less and less visible because it is the modified post that will be consulted and indexed, but a detailed search may be able to recover it.

    101This illustration of a perfectly banal scenario gives us some idea of the extent to which control has been lost.

    102Transatlantic personal data transfers. When it comes to the transatlantic transfer (between the EU and the US) of personal data, the legal solutions have varied. Without going into the details here, the reader is reminded of the following events:

    • transatlantic personal data transfers were authorised in 2000 by the European Union Commission under the “safe harbor” principles30;
    • this decision was overturned in 2015 by the European Court of Justice31;
    • a new framework known as the “privacy shield” was established to replace the previous system in 201632;
    • this framework was in turn largely annulled by the ECJ in 202033;
    • against the backdrop of measures taken in France to tackle the Covid-19 epidemic, the system for collecting health data was modified in 202034; this text was amended the same year mainly in light of the Schrems II ruling, with the following stipulation: “No personal data may be transferred outside the European Union”.35

    103In response to the question whether these legal changes have had any real impact on transatlantic data exchanges, it is clearly very difficult to measure with any amount of accuracy the quantity of data flows circulating between the two continents in the period concerned.

    104Transatlantic personal data transfers are out of control simply because no-one is in a position to say whether or not the changes made to the regulations have had a significant impact. Here, the loss of control is above all reflected in our inability to measure, or monitor, data transfers.

    105But that’s not all.

    106We can safely assume (although not demonstrate, since we have just seen that accurate measurements are impossible) that between 6 October 2015 (Schrems I ruling) and 12 July 2016 (new decision by the Commission) or since 16 July 2020 (Schrems II ruling), the transatlantic circulation of personal data did not see a sharp decline! Data exchanges are essential to the running of most global activities, and they will naturally continue to take place irrespective of legal vicissitudes.

    107That which applies to data generally is also true of health data. Efforts will naturally be made to avoid being caught transferring data outside the European Union, but it would be very naive indeed to think that a mere order is likely to stop the flow of data in its tracks.36

    108Data theft, leaks and trade. In the world of data circulation phenomena likely to escape the control of all stakeholders, or at least a great many of them, cases of data theft, leaks and uncontrolled trade are legion.

    109Not a week goes by without a new case being reported in the media.

    110First, there is piracy. Some very large firms have been the target of data theft in recent years, including Equifax, Yahoo, Facebook, Uber, eBay, Home Depot, FedEx, JP Morgan Chase and Marriott International.37

    111Next, there is the phenomenon of data leaked by someone on the inside of a data collection entity. The biggest cases are well known: Wikileaks, Luxleaks, Panama Papers, Pantagon Papers, etc. Those behind such leaks take considerable risks, and the whistleblower status was developed in an effort to protect them.38

    112And finally, data trade. It has been revealed that States (Denmark is one example; see the Guardian, 1 Oct. 2016) have purchased data generated through theft or leaks to bolster their fight against tax evasion. Another form of trade involves data brokers who purchase enormous quantities of data, for example geolocation data to sell it on to interested parties, perhaps for targeted marketing campaigns. This is widely denounced for its lack of transparency. There has also been widespread criticism of surveillance capitalism, driven by the systematic profiling on a very large scale of our behaviour online for commercial purposes.39

    113One case alone—the Cambridge Analytica affair—clearly reflects the close intertwinement between all these forms of circulation, whether provoked or subdued, public or private, legal or illegal. More than 2 billion Facebook users saw their data transferred to a third party, 87 million users were targeted based on that data during the US election campaign in 2016, and the CEO of the (in)famous social media firm was forced to publicly apologise to various national or international public authorities as well as his users.40

    114These few examples—and there are many more—show that the uncontrolled circulation of data, seen as a total fact of movement, is a recurring reality.

    B. A typology of the total movement of data beyond control

    115Looking at some of the main types of data circulation, we can consider how they are linked to the analytical perspective of the total loss of control. Four types will be addressed here, each closely intertwined with the next.

    116Mass circulation. When it comes to data, mass circulation is a reality that can be increasingly observed. Looking at the manifestations of circulation driven by huge volumes of data, one wonders whether this mass phenomenon will not exacerbate the loss of control seen in the circulation of individual items.

    117This category can be said to have two sub-entries.

    118The first relates to the formation of a database. Consider this example: in October 2016, a State decree was published in France establishing a file known as TES (literally “secure electronic titles”). Its publication immediately triggered responses on social media and in the news. Pointing to the excessive risk of concentrating data in this way in the event that pirates managed to infiltrate the database or in the event of massive leaks, people spoke out to suggest alternative and less risky models. Here, the notion of a “mass of data” is immediately correlated with the “total loss of control over data circulation”.

    119The second sub-entry relates to what is commonly known as big data. The metaphor of a continuous flow is often used to describe the deluge of data that now feeds into all activities linked to our information society. What is remarkable once again is that the loss of control over this circulation is immediately associated with a mass phenomenon (big data). For who could claim to have control over flows on such a large scale? Although there have been attempts, for example, to better sort data and thereby avoid the risks of information pollution, the reality is that such attempts in turn generate a considerable mass of data in addition to the rest, thus effectively evading the problem or postponing its resolution. One mass breeds another and the prospect of a total loss of control inevitably grows.41

    120Shared circulation. Data-sharing has become a large-scale phenomenon and necessarily one that involves circulation. To share is to circulate!

    121This phenomenon can be observed on all scales.

    122At the individual level, nowadays we are systematically invited to share our data across the various tools at our disposal, in particular applications to be used on mobile phones. The data in your address book is shared with your diary, which is in turn shared with a search engine. Data thereby circulates from application to application with all of the risks that implies in terms of total loss of control.

    123On a larger scale, data-sharing is justified by public policies to combat fraud (e.g. taxation, social benefits) or streamlining (e.g. urban mobility). The development of shared information systems does not only affect the State or local area; it can also be observed at a European level. Obvious examples of this are the continent’s dedicated systems for freedom, security and justice (Schengen information system, visa information system, etc.). A European agency was even set up for the operational oversight of large-scale information systems (eu-LISA). All these instances of data-sharing are driving the increase in circulation. And there is nothing to suggest that this process is reversible. Indeed, everything suggests that it will inevitably increase the risk of a total loss of control.

    124On an even bigger—planetary—scale, the expansion and concentration of firms we are seeing all around the world is increasingly justified by a desire to share data (e.g. the buyout of WhatsApp by Facebook). Yet, as we have seen, these Internet behemoths are no more immune to total loss of control scenarios than more modest stakeholders.

    125Free circulation. Whether data is protected or not, the paradigm of free circulation is omnipresent.

    126This is particularly true of the EU, which has made free movement one of the founding principles of its system.

    127And so:

    • for personal data: Regulation (EU) 2016/67942, known as the GDPR, identifies “free movement” as one of its central objectives (as well as being mentioned in the title, see also Art. 1);
    • for non-personal data: Regulation (EU) 2018/180743 establishes a framework applicable to the “free flow” of data.

    128This convergence of viewpoints on the “free circulation” of data once again shows that movement can be an intrinsic part of the object in question, whether in the case of protected or unprotected data.

    129Yet such “free” movement, in essence, faces the risk of a total loss of control.

    130Restricted circulation. In the public sphere, several initiatives, in particular relating to security, structure what might be referred to as restricted circulation.

    131Here are some examples on an international level:

    • the SWIFT agreement on the exchange of banking and financial information between Europe and the United States;
    • and the PNR (Passenger Name Record) agreement on exchanging information about passengers on transatlantic flights (US and Canada), whose model has been extended to internal European flights.

    132The circulation of this information can be primarily traced back to the fight against terrorism, to which has now been added (potentially linked) the fight against transnational organised crime.

    133Reconciling these agreements with Europe’s data protection standards proved a particularly delicate exercise.44 But on the whole, the imposed model for data circulation was one restricted by a security imperative.

    134Although they are not central to our analysis, these examples are interesting in the context of total movement beyond control. They are indicative of the intense pressure placed on stakeholders (in this case European) to create forms of data circulation that do not exactly correspond to the model usually applicable to this type of data. This is a form of loss of control, even though European judges are making sure that essential elements of control are maintained.45

    VI. Total movement of capital beyond control

    135Let’s begin again with the casuistic approach (A) before turning to the dogmatic approach (B).

    A. Some examples of total movement of capital beyond control

    136Like persons and data, capital has a natural propensity for movement, sometimes total, beyond control. We will begin with three illustrations.

    137Money laundering. Money laundering involves discreetly introducing assets gained through illegal activity into a legal circuit. For example, a bet is placed with a regulated operator using “dirty” money. Any wins from bets placed in that way will be “laundered” or “clean” money provided the illegal source of the money used is not revealed. Here’s another example: a squeaky clean investment is financed using money made from illegal trafficking. The return on that investment will usually be considered lawful, unless the legality of the initial financing is challenged.

    138In such operations, circulation is central. Laundering is achieved by moving from an unlawful to a lawful environment. Capital is most often made up of fungible assets, which is to say that they can be substituted for others, circulate and even change legal status but retain their essential feature: their value!

    139The news informs us that money laundering operations are closely linked to organised crime and terrorism. In such circumstances, public stakeholders—States in particular—are placed in a position in which they lose control every time launderers escape the many systems put in place to ensure maximum surveillance of the origins of funds used. The speed with which such operations are executed, their complexity, their tentacular reach across the global chessboard, and the inadequacy of international and regional cooperation and surveillance resources are all parameters that make it easier to avoid detection.

    140Legal private stakeholders, whether or not they are well-established, are not immune to this phenomenon. Major banking or financial institutions are regularly denounced for their lack of vigilance in detecting money laundering operations.

    141Lastly, criminals themselves are affected by the loss of control. Laundering operations necessarily carry a level of risk that does not always ensure they will recover their money.46

    142Tax avoidance, evasion and fraud. In the nomenclature of fiscal practices, tax avoidance, which is legal, is clearly distinguished from tax fraud, which is not. The former involves a taxpayer making optimal use of the regulations in place to reduce the amount of taxes and duties she pays. The latter generally involves behaviour with a material element (the manoeuvre) and a moral element (the intention) with the aim of hiding revenue or unduly obtaining a fiscal advantage. As for tax evasion, it is most often associated with the phenomena of regionalisation/globalisation. It is where a taxpayer declares revenue in territories with lower tax rates, thus avoiding the higher taxes payable in other territories where the business operates.

    143Our analytical framework—total movement beyond control—can potentially cover all of these scenarios. This is systematically true of tax evasion, which requires displacing revenue sources towards a tax haven. And it is true of tax avoidance and fraud whenever the transaction involves moving capital.

    144The phenomena presented here can take place on a large scale. We will now look at two examples, focusing our analysis on circulation and the loss of control.

    145The first is taken from an infamous form of VAT fraud known as carousel fraud. The system that has been developed in the EU’s internal market (VAT is partly a European tax) involves a contractual chain between companies set up in different member States and engaging in the purchase and delivery of goods or services (real or fictitious). Ephemeral entities known as taxis serve as intermediaries between the businesses using fake invoices. This creates VAT that is never paid but is the subject of a recovery request (deduction or reimbursements) by the other operators in the chain in the different member States. The system can also operate as a loop. This is a known form of fraud. In May 2019 a group of European media outlets evaluated its annual cost at €50 billion. Here, circulation is an intrinsic part of the scheme, and the loss of control on the part of the public authorities in the member States is all too apparent.

    146The second example relates to tax evasion. Oscillating between tax avoidance and tax fraud, here the manoeuvre involves transferring revenue generated in territory A to beneficiaries located more or less artificially in territory B, where tax rates are lower. This scheme generally includes a complex and opaque chain of players, making it difficult to trace the whole revenue flow. Circulation is once again a central dimension. As for the loss of control, it is exacerbated by the lack of global (or even regional) coordination between tax policies and by the resulting coexistence of fiscal territories with varying tax rates. Attractive territories may be weak States looking to make the most of their marginal position on the global stage, or they may be perfectly developed countries located close to the territory on which the original revenue is generated. This is a scenario that is playing out in Europe, within the European Union, particularly in the case of taxation for the “Big Five”.47

    147The rise in securitisation, swaps, currencies and payment methods. The observation here is a simple one: the greater the increase in the number and diversity of sources of value, the greater the volume of assets (currencies in particular), and therefore the greater the phenomenon of circulation and the more difficult it is to control it. This is also true of payment methods. The more diverse and the faster (instantaneous) they become, the more they contribute to the unchecked circulation of money.

    148To illustrate this, we will look at four major examples.

    149The first is taken from the financial mechanism known as securitisation. A is the holder of an asset and sells it to B, who then issues securities to C, D, E and so on (“true sale” securitisation). Securitisation can also take place without any asset transfer: A is the holder of an asset and transfers the risks associated with it to B, who then issues securities to C, D, E and so on (“synthetic” securitisation). This kind of securitisation can relate to all types of securities or immovables. In the latter case, it is clear to see the paradigm shift that the process brings about: a building—by its very nature immovable—becomes movable through the securities issued for its value! Specialists are fond of saying that such a transaction is not in itself very risky provided the asset on which the securitisation is based is robust and the investor is well-informed about the security in which they are investing. But the reality is that such securitisation transactions generate multi-directional financial flows on a large scale, which explains why if the assets present a major weakness the entire system is at risk of being undermined. This of course is what happened in 2008 with the infamous sub-prime crisis, leading to the bankruptcy of Lehman Brothers and triggering a chain reaction that affected the global economy. In normal times, securitisation remains under control, but in times of crisis it creates a chain of events in which stakeholders lose control and no-one can stem the tide.

    150The second example relates to the swapping of debts or loans or parts thereof. These transactions are known as swaps. They were invented in the early 1980s and have seen a great many variations depending on the specific thing being swapped. It is the diversity of these derivatives that has made them so successful. They are of interest from the perspective of movement or circulation in that the swap constitutes the vehicle through which assets are exchanged. This vehicle is in fact a contract, but on a global scale it has now taken on a standard form to circumvent many national specificities. It is a tool that has become practically autonomous and therefore escapes the control of many of the stakeholders involved.

    151The third example is blockchain technology. This is a general term for the decentralised storage of information that can be privately or publicly accessed. It is a bit like an electronic register in which the chronologically stored information is divided into blocks, which then form a chain with no possibility of moving back. The system as a whole is based on absolute trust in its ability to record entries in a way that is totally irreversible. There are multiple applications for this technology. It is said to have a very bright future in the worlds of contracts, finance and insurance, where blockchains can become the intelligent universe in which transactions succeed and interact with one another over time. One of these applications, no doubt the best-known so far, is the creation of cryptocurrencies, Bitcoin and Diem being the most famous examples. The development of these unconventional currencies escapes the ordinary mechanisms through which central banks control national currencies. This can clearly be seen as a potential loss of sovereignty for States, but it also generates its own risk of losing control: by mechanically increasing the volume of vehicles transferring value, i.e. monetary and financial flows, it increases the number of instances in which control is lost over the networks in charge of these quasi-currencies.

    152The final example relates to the development of payment methods. Long considered by operators as a topic of secondary importance, the search for new payment methods is now the focus of many initiatives driven by the latest technological advances. The immediate objective is simple: make the purchaser forget the transaction by making it as trivial as possible. Whether 1-click or contactless payment or payment by SMS, recognition (number plate or facial) or blockchain-based algorithm, these methods are all presented as tools to facilitate payments. In the longer term, their objective is to create new operators on the margins of traditional payment businesses (banks). Since by definition payment involves the transfer of value, if its execution is automated, if it no longer requires human intervention or a traditional and highly regulated operator serving as an intermediary, then what we are seeing is yet another loss of control over the flow of money.48

    B. A typology of the total movement of capital beyond control

    153Looking at some of the main types of capital circulation, we can consider how they are linked to the analytical perspective of the total loss of control. Two types will be addressed here, each closely intertwined with the next, like the other topics tackled in this chapter.

    154Mass circulation. When it comes to capital, the traditional approach is to look at mass circulation. Contrary to the case of persons and, to a lesser extent, data, it is very common to distinguish the units of capital in circulation from the masses of capital in circulation.

    155The most striking example is that of monetary mass (or money supply). The quantity of currency in circulation in a given economic zone is monitored and measured by central banks, who regularly release related data. This data is important because, based on a quantitative approach to money (one that is not met with unanimity), it is a potential indicator of price variations.

    156If we approach this monetary mass from the total loss of control perspective, we see that it has a patent capacity to escape control.

    157First, there is no stakeholder—not even a central bank—who can claim to control the quantity of liquidity in circulation. The legal tender (coins and notes) emitted by central banks represents less than 10% of this liquidity, with the remaining 90% made up of bank money emitted by commercial banks. Although central banks have tools at their disposal that serve as guidelines (by setting a reference rate, for example), it cannot be said that they control the money supply out there, i.e. the quantity of liquidity in circulation.

    158Second, calculating this mass is in itself difficult, especially since the introduction of financial products as part of liquidity. These products represent an increasing share of the economy but are very difficult to quantify.49

    159Free circulation. When it comes to capital, free circulation generates contrasted discourses.

    160The free movement of capital is one of the four pillars on which the European Union’s internal market is built.50 The related provisions underpin many European texts and abundant case law from the ECJ. This free movement has a cross-border dimension, and its scope is very broad. Except in particular cases51, this freedom is not reserved only for established entities within the Union, in contrast to the free movement of persons or data seen above. It has a global geographic reach.

    161Comparing European regulations to those in force in France, one observes a difference. France’s Monetary and Financial Code (CMF), for example, contains only 34 references to circulation, which is relatively few. These include “fiduciary circulation”, “circulation of property deeds” and “money in circulation”.

    162This disparity between the European and national corpora can probably be explained by Europe’s need to open up national capital markets that had been closed off until 1989 and by the ensuing scenario in which these markets adopted a laissez-faire approach which, by definition, does not require a significant volume of legislative or regulatory discourse.

    163In both cases, the free movement of capital is a reality, even though it is manifested differently depending on the supranational or national context. As in the other categories addressed here (persons, data and waste), the affirmation of free movement is indissociable from the question of its control and the possibility of a total loss thereof.52

    VII. Total movement of waste beyond control

    164Let’s begin again with the casuistic approach (A) before turning to the dogmatic approach (B).

    A. Some examples of total movement of waste beyond control

    165As with persons, data and capital, waste also has a natural propensity for movement, sometimes total and beyond control. We will look at three examples.

    166Collection, treatment and recycling of waste. In their approach to waste management, public policies emphasise the combined process of waste collection, treatment and recycling.

    167These three phases usually involve the displacement of materials. The waste that is collected, treated and recycled is in a near-permanent state of movement. This may be movement within a given State or infra-State territory. It may also be movement involving several local or national territories.

    168This movement exposes the waste to several possible loss of control scenarios. These may be marginal cases or on a large scale, depending on the context.

    169But it would be illusory to think that the situation could remain completely under control. Even in the most well-organised and well-controlled environments, there is a loss of control, if only because there is a mixture of different types of waste that can be very difficult (or very costly) to separate.

    170This risk of losing control is addressed in particular by restrictive provisions aimed at reducing the circulation of waste. Categories of waste are defined which do not all have the same legal freedom to circulate within or outside territorial boundaries.

    171But total movement beyond control remains a reality. There continue to be points of escape. The most fragile environments have a power of attraction that it is impossible to annihilate, unless all the gaps—often abysses—between the different territories can be filled.53

    172Waste trafficking. Circulation is central to many forms of trafficking, that of waste in particular. The process seems unassailable. By circulating, waste can successively take on legal and illegal forms which are of twofold benefit to a flourishing criminal economy. When waste is treated under legal conditions, it potentially benefits from public subsidies put in place to support recycling, re-use, etc. But instead of being treated in a legal facility, waste is the target of the illegal underground trade which offers better returns. It is then reintroduced into the legal chain of waste treatment and once again benefits from public subsidies. And so on …

    173In this type of scenario, the loss of control on the part of legal stakeholders is partly due to their incapacity to trace the flows of waste and partly due to the difficulty of seeing circulation as a factor that contributes to the requalification, sometimes legal and sometimes illegal, of the objects circulating across territories.

    174Parties acting illegally also find themselves in a situation of loss of control. Any movement of waste carries a certain amount of risk that it will be lost or misappropriated, particularly at the point at which it moves from one (legal) state to another (illegal) and back again.54

    175Oil spills. These environmental catastrophes have clear links with the notion of total movement beyond control.

    176We are reminded of the 1999 sinking of the tanker Erika off the Breton coast. This event led to legal battles on a large scale to determine who was responsible and settle the question of reparation for environmental damage. As part of the many discussions fuelled by this complex situation, the question of waste was essential in determining the liability of oil company Total. The oil that leaked from the Erika was described as waste (abandonment of the spilled product which could no longer be used under normal conditions) and Total was held responsible on the basis that it had extended liability as the producer behind the uncontrolled leak, and therefore behind the production of the waste.

    177The legal approach in this case is interesting. It highlights the link that can exist between a situation of escape (in this case the uncontrolled leak of matter), its impact on the legal qualification of waste and the principle of liability that stems from it.55

    178The plastic continent. This final example will doubtless convince the reader of the existence, when it comes to waste, of situations involving a total loss of control. It is an example that is gigantic in the truest sense of the word.

    179The plastic pollution affecting our seas and oceans is now a certainty. Since 1,950 humans have produced more than 8.3 billion tonnes of plastic (Le Monde, 2 August 2017), and much of it is constantly spilling into the sea in various forms (plastic, microplastic and nanoplastic).

    180We are now hearing regular references to a new “continent” formed of solid plastic islands which, on a planetary scale, represent the equivalent of several million square kilometres (for example in the China Sea or the Gulf of Mexico).

    181This example must not allow us to overlook the fact that the total loss of control is manifested in many different ways. There is the plastic we eat, the plastic we breathe, the plastic we drink, etc.

    182No-one has control over such a large-scale phenomenon. And although, on the issue of plastic, we are now seeing cases in which flows are being blocked (China refusing to continue treating plastics from abroad) or threats to do so (United Kingdom and Brexit), it is a safe bet that these tense situations will feed into parallel trafficking systems producing new forms of circulation, and therefore escape our control.56

    B. A typology of the total movement of waste beyond control

    183Looking at some of the main types of waste circulation, we can consider how they are linked to our analytical total loss of control perspective. Three types will be addressed here, each closely intertwined with the next, like the other topics tackled in this chapter.

    184Mass, spherical or microscopic circulation. The purpose of this composite terminology is to describe the different scenarios in which the unit-based approach to the circulation of waste cannot account for the exact nature of the phenomenon being studied.

    185The first scenario is that of mass circulation phenomena. When it comes to the circulation of waste, the quantity in circulation can be a crucial criterion in the total loss of control. Capacities to collect, treat, recycle and reuse waste are often tributaries that determine the quantity of waste to be dealt with. The greater this quantity, the more it may prove difficult to put in place these different systems of control. This is a problem of mass.

    186The second scenario is what one might call spherical circulation. This term refers to the notion of waste circulating in a continuous dynamic of movement within a given area. Two of the examples we have already seen immediately come to mind: the circulation of waste in space placed into orbit and the circulation of plastic waste in our oceans. In both cases, the total loss of control is manifested by the unstoppable nature of the process of circulation in question. Waste in a state of movement occupies all space and it is very difficult, if not impossible, to recapture it in any significant way, unless we are able to stop the circulation within these spaces.

    187The third scenario is that of micro-waste. When it comes to the small and the infinitely small, the total loss of control can be explained by our inability to see this waste with the naked eye; it therefore passes through whatever filtering procedures we might put in place. For example, following the 2011 nuclear disaster in Fukushima in Japan, a perimeter was established around the 40 km dead zone, particles containing radioactive caesium were detected in Tokyo, several hundred kilometres away. The same is true of all of the pharmaceutical residue that ends up in our waste water, which continues to be present in the treated water that we consume. That which is small or infinitely small is inherently linked to certain forms of total loss of control.57

    Notes de bas de page

    10 See the exhibition catalogue: E. Burtynsky, J. Baichwal, N. de Pencier, Anthropocene (Ago, 2018).

    11 For a critical analysis of approaches to the Anthropocene from an outdated vision of the planet: C. Simonetti, “The Petrified Anthropocene”, Theory, Culture & Society, vol. 36, 7-8 (2019), 45.

    12 Among the first legal perspectives of the Anthropocene, see L. Kotzé (ed.), Environmental Law and Governance for the Anthropocene (Bloomsbury, 2016); E. Biber, “Law in the Anthropocene Epoch”, Georgetown Law Journal, vol. 106, 1 (2017), 3.

    13 See in particular: P.K. Haff, “Technology as a geological phenomenon: Implications for human well-being”, Geological Society London Special Publications, vol. 395,1 (2014), 301; J. Zalasiewicz et al., “Scale and diversity of the physical technosphere: A geological perspective”, The Anthropocene Review, vol. 4,1 (2017), 9; D. Orlov, Shrinking the Technosphere (New Society Publishers, 2016).

    14 Quoted by Ch. Cans (ed.), Traité des risques naturels (Le Moniteur, 2014), p. 92.

    15 M. Mauss, The Gift: Forms and Functions of Exchange in Archaic Societies (Martino Fine Books, 2011 - original version in French, 1925).

    16 Op. cit., p. 76.

    17 For a remarkable illustration of this porousness between actors and territories, see J.-B. Malet, L’empire de l’or rouge – Enquête mondiale sur la tomate d’industrie (Fayard, 2017). The book has been adapted into a documentary movie (in English and French): The Empire of Red Gold, by Xavier Deleu & Jean-Baptiste Malet (2017), distributed by Passion River, www.passionriver.com.

    18 See selected bibliography at the end of the book.

    19 H. Arendt, The Human Condition (University of Chicago Press, Second ed., 1998 – original version: 1958), p. 3.

    20 N. Luhmann, The Reality of Mass Media (Polity Press, 2000 - original version in German, 2004).

    21 On this topic, see in particular: M. Foster, H. Lambert, International Refugee Law and the Protection of Stateless Persons (Oxford University Press, 2019).

    22 Legal and Sociological Analysis of the French Context considering Foreign Practices Related to Filiation of Children conceived through Surrogacy Abroad (United Kingdom, Belgium, Israel) – Edited by M.-A. Hermitte, K. Parizer, S. Mathieu, J.-S. Bergé (Mission de recherche Droit et Justice, Paris, 2017), 286 p. - available in French: <http://www.gip-recherche-justice.fr/publication/analyse-juridique-et-sociologique-de-letat-des-questions-en-france-a-la-lumiere-des-pratiques-etrangeres-en-matiere-de-filiation-des-enfants-concus-hors-la-loi-belgique-grande-bretagne-israel/>.

    23 For a brief overview of the practice, see J. R. Short, “The other immigrants: how the super-rich skirt quotas and closed borders”, <https://Theconversation.com> (Global Edition), September 2015.

    24 For a comparative approach to the phenomenon, see G. Shen, Regulating of Cross-border Establishment in China and the EU – A Comparative Law and Economics Approach (Intersentia Metro, 2016).

    25 Société des historiens médiévistes de l’Enseignement supérieur public (ed.), Des sociétés en mouvements – Migrations et mobilité au Moyen Age (Publications de la Sorbonne, 2010).

    26 For a critical perspective of the European management of the 2015 crisis in light of the Pact, see J.-Y. Carlier, F. Crépeau, A. Purkey. “From the 2015 European ‘Migration Crisis’ to the 2018 Global Compact for Migration: A Political Transition Short on Legal Standards”, McGill International Journal of Sustainable Development Law and Policy, vol. 16,1 (2020), 37.

    27 For a critical analysis of mobility in Europe, see in particular: E. Recchi, Mobile Europe – The Theory and Practice of Free Movement in the EU (Palgrave Macmillan, 2015).

    28 For a legal analysis of forced mobility, see J. Ruiz de Santiago, “Aspects juridiques des mouvements forcés de personnes”, Collected Courses of the Hague Academy of International Law, vol. 393 (2018), 313.

    29 On this theme of climate mobility, see in particular: B. Mayer, The Concept of Climate Migration – Advocacy and its prospects (Edward Elgar, 2016).

    30 Commission Decision of 26 July 2000 pursuant to Directive 95/46/EC of the European Parliament and of the Council on the adequacy of the protection provided by the safe harbour privacy principles and related frequently asked questions issued by the US Department of Commerce (notified under document number C(2000) 2441).

    31 ECJ, GC, 6 October 2015, C-362/14, Schrems I.

    32 Commission Implementing Decision (EU) 2016/1250 of 12 July 2016 pursuant to Directive 95/46/EC of the European Parliament and of the Council on the adequacy of the protection provided by the EU-US Privacy Shield (notified under document C(2016) 4176).

    33 ECJ, GC, 16 July 2020, C311-18, Schrems II.

    34 Order of 10 July 2020 prescribing the general measures necessary to deal with the covid-19 epidemic in the territories that have emerged from the state of health emergency and in those where it has been extended, Article 30.

    35 Order of 9 October 2020.

    36 For a theoretical and practical analysis of international data flows, see W. Kuan Hon, Data Localization, Law and Policy – The EU Data Protection, International Transfers Restriction, Through a Cloud Computing Lens (Edward Elgar, 2017).

    37 On the presentation of the latter case, where the intrusion of hackers into the company’s computer systems has been continuous for four years, resulting in the misappropriation of personal information of no fewer than 500 million customers, see B. Venard “Marriott data breach: 500 million times concerned, <https://Theconversation.com> (Global Edition), January 2019.

    38 See in particular on this topic, A. Savage, Leaks, Whistleblowing and the Public Interest – The Law of Unauthorised Disclosures (Edward Elgar, 2016).

    39 See S. Zuboff, The Age of Surveillance Capitalism – The Fight for a Human Future at the New Frontier of Power (Profile Books, 2019).

    40 On this case, see in particular J. Inglis, “Understanding Facebook’s data crisis: 5 essential reads”, <https://Theconversation.com> (US Edition), April 2018.

    41 For a transversal legal approach to the big data phenomenon, see Fl. G’Sell (ed.), Le big data et le droit (Dalloz, 2020); J. Cannataci, V. Falce, O. Pollicino, Legal Challenges of Big Data (Edward Elgar, 2020). For an analysis of big data in terms of ownership in the context of European Union law, see A. Strowel, “Big Data and Data Appropriation in the EU”, in T. Aplin (ed.), Research Handbook on Intellectual Property and Digital Technologies (Edward Elgar, 2020), p. 107.

    42 Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data.

    43 Regulation (EU) 2018/1807 of the European Parliament and of the Council of 14 November 2018 on a framework for the free flow of non-personal data in the European Union.

    44 See ECJ Opinion 1/15, 26 July 2017, on the draft PNR Agreement with Canada.

    45 See on this general topic: D. Svantesson, D. Kloza (eds), Trans-Atlantic Data Privacy Relations as a Challenge for Democracy (Intersentia, 2017); R. A. Miller (ed.), Privacy and Power. Transatlantic Dialogue in the Shadow of the NSA-Affair (Cambridge University Press, 2017).

    46 See on this plethoric topic: M. Hunault, La lutte contre la corruption, le blanchiment, la fraude fiscale, (SciencesPo Les Presses, 2017); K. Ligeti, M. Simonato, Chasing Criminal Money – Challenges and Perspectives on Asset Recovery in the EU (Hart, 2017).

    47 See on this constant theme: F. Schneider (ed.), Handbook on the Shadow Economy (Edward Elgar, 2011).

    48 For a contemporary analysis of currency, including cryptocurrencies and payment methods, see S. Gleeson, The Legal Concept of Money (Oxford University Press, 2018).

    49 For an illustration of the discourse on the loss of control over money supply, see: P. Artus and M.-P. Virard, La liquidité incontrôlable – Qui va maîtriser la monnaie mondiale ? (Pearson, 2010).

    50 Articles 63 et seq. of the Treaty on the Functioning of the European Union.

    51 See for example, Regulation (EU) 2019/452 of the European Parliament and of the Council of 19 March 2019 establishing a framework for the screening of foreign direct investments into the Union.

    52 On the concept of circulation in Financial Law, see M. Teller, “Le droit financier appréhendé comme ‘des flux en circulation’ : quelles dynamiques et quels enjeux ?” in J.-S. Bergé, G.-C. Giorgini (eds), Le sens des libertés économiques de circulation – The Sense of Economic Freedoms of Movement (Bruylant, 2020), p. 91.

    53 See M. Faure, A. Lawogni, M. Dehoumon (eds), Les mouvements transfrontières de déchets dangereux (Bruylant, 2015).

    54 For an illustration of waste traffic in the context of waste oil processing, see the analysis of L. Neyret, “Trafic de déchets dangereux : quand les dépollueurs se font pollueurs”, Environnement et développement durable, June 2014, p. 6.

    55 See in particular, M. Gibson, Environmental Regulation of Petroleum Spills and Wastes (Aspen Publishers, 1993).

    56 See for example: T. Henry, “The ocean’s plastic problem is closer to home than scientists first thought”, <https://Theconversation.com> (UK Edition), September 2019.

    57 On the drama of Fukushima, see F. Guarnieri, “Fukushima seven years later: case closed?”, <https://Theconversation.com> (Global Edition), March 2018.

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    10 See the exhibition catalogue: E. Burtynsky, J. Baichwal, N. de Pencier, Anthropocene (Ago, 2018).

    11 For a critical analysis of approaches to the Anthropocene from an outdated vision of the planet: C. Simonetti, “The Petrified Anthropocene”, Theory, Culture & Society, vol. 36, 7-8 (2019), 45.

    12 Among the first legal perspectives of the Anthropocene, see L. Kotzé (ed.), Environmental Law and Governance for the Anthropocene (Bloomsbury, 2016); E. Biber, “Law in the Anthropocene Epoch”, Georgetown Law Journal, vol. 106, 1 (2017), 3.

    13 See in particular: P.K. Haff, “Technology as a geological phenomenon: Implications for human well-being”, Geological Society London Special Publications, vol. 395,1 (2014), 301; J. Zalasiewicz et al., “Scale and diversity of the physical technosphere: A geological perspective”, The Anthropocene Review, vol. 4,1 (2017), 9; D. Orlov, Shrinking the Technosphere (New Society Publishers, 2016).

    14 Quoted by Ch. Cans (ed.), Traité des risques naturels (Le Moniteur, 2014), p. 92.

    15 M. Mauss, The Gift: Forms and Functions of Exchange in Archaic Societies (Martino Fine Books, 2011 - original version in French, 1925).

    16 Op. cit., p. 76.

    17 For a remarkable illustration of this porousness between actors and territories, see J.-B. Malet, L’empire de l’or rouge – Enquête mondiale sur la tomate d’industrie (Fayard, 2017). The book has been adapted into a documentary movie (in English and French): The Empire of Red Gold, by Xavier Deleu & Jean-Baptiste Malet (2017), distributed by Passion River, www.passionriver.com.

    18 See selected bibliography at the end of the book.

    19 H. Arendt, The Human Condition (University of Chicago Press, Second ed., 1998 – original version: 1958), p. 3.

    20 N. Luhmann, The Reality of Mass Media (Polity Press, 2000 - original version in German, 2004).

    21 On this topic, see in particular: M. Foster, H. Lambert, International Refugee Law and the Protection of Stateless Persons (Oxford University Press, 2019).

    22 Legal and Sociological Analysis of the French Context considering Foreign Practices Related to Filiation of Children conceived through Surrogacy Abroad (United Kingdom, Belgium, Israel) – Edited by M.-A. Hermitte, K. Parizer, S. Mathieu, J.-S. Bergé (Mission de recherche Droit et Justice, Paris, 2017), 286 p. - available in French: <http://www.gip-recherche-justice.fr/publication/analyse-juridique-et-sociologique-de-letat-des-questions-en-france-a-la-lumiere-des-pratiques-etrangeres-en-matiere-de-filiation-des-enfants-concus-hors-la-loi-belgique-grande-bretagne-israel/>.

    23 For a brief overview of the practice, see J. R. Short, “The other immigrants: how the super-rich skirt quotas and closed borders”, <https://Theconversation.com> (Global Edition), September 2015.

    24 For a comparative approach to the phenomenon, see G. Shen, Regulating of Cross-border Establishment in China and the EU – A Comparative Law and Economics Approach (Intersentia Metro, 2016).

    25 Société des historiens médiévistes de l’Enseignement supérieur public (ed.), Des sociétés en mouvements – Migrations et mobilité au Moyen Age (Publications de la Sorbonne, 2010).

    26 For a critical perspective of the European management of the 2015 crisis in light of the Pact, see J.-Y. Carlier, F. Crépeau, A. Purkey. “From the 2015 European ‘Migration Crisis’ to the 2018 Global Compact for Migration: A Political Transition Short on Legal Standards”, McGill International Journal of Sustainable Development Law and Policy, vol. 16,1 (2020), 37.

    27 For a critical analysis of mobility in Europe, see in particular: E. Recchi, Mobile Europe – The Theory and Practice of Free Movement in the EU (Palgrave Macmillan, 2015).

    28 For a legal analysis of forced mobility, see J. Ruiz de Santiago, “Aspects juridiques des mouvements forcés de personnes”, Collected Courses of the Hague Academy of International Law, vol. 393 (2018), 313.

    29 On this theme of climate mobility, see in particular: B. Mayer, The Concept of Climate Migration – Advocacy and its prospects (Edward Elgar, 2016).

    30 Commission Decision of 26 July 2000 pursuant to Directive 95/46/EC of the European Parliament and of the Council on the adequacy of the protection provided by the safe harbour privacy principles and related frequently asked questions issued by the US Department of Commerce (notified under document number C(2000) 2441).

    31 ECJ, GC, 6 October 2015, C-362/14, Schrems I.

    32 Commission Implementing Decision (EU) 2016/1250 of 12 July 2016 pursuant to Directive 95/46/EC of the European Parliament and of the Council on the adequacy of the protection provided by the EU-US Privacy Shield (notified under document C(2016) 4176).

    33 ECJ, GC, 16 July 2020, C311-18, Schrems II.

    34 Order of 10 July 2020 prescribing the general measures necessary to deal with the covid-19 epidemic in the territories that have emerged from the state of health emergency and in those where it has been extended, Article 30.

    35 Order of 9 October 2020.

    36 For a theoretical and practical analysis of international data flows, see W. Kuan Hon, Data Localization, Law and Policy – The EU Data Protection, International Transfers Restriction, Through a Cloud Computing Lens (Edward Elgar, 2017).

    37 On the presentation of the latter case, where the intrusion of hackers into the company’s computer systems has been continuous for four years, resulting in the misappropriation of personal information of no fewer than 500 million customers, see B. Venard “Marriott data breach: 500 million times concerned, <https://Theconversation.com> (Global Edition), January 2019.

    38 See in particular on this topic, A. Savage, Leaks, Whistleblowing and the Public Interest – The Law of Unauthorised Disclosures (Edward Elgar, 2016).

    39 See S. Zuboff, The Age of Surveillance Capitalism – The Fight for a Human Future at the New Frontier of Power (Profile Books, 2019).

    40 On this case, see in particular J. Inglis, “Understanding Facebook’s data crisis: 5 essential reads”, <https://Theconversation.com> (US Edition), April 2018.

    41 For a transversal legal approach to the big data phenomenon, see Fl. G’Sell (ed.), Le big data et le droit (Dalloz, 2020); J. Cannataci, V. Falce, O. Pollicino, Legal Challenges of Big Data (Edward Elgar, 2020). For an analysis of big data in terms of ownership in the context of European Union law, see A. Strowel, “Big Data and Data Appropriation in the EU”, in T. Aplin (ed.), Research Handbook on Intellectual Property and Digital Technologies (Edward Elgar, 2020), p. 107.

    42 Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data.

    43 Regulation (EU) 2018/1807 of the European Parliament and of the Council of 14 November 2018 on a framework for the free flow of non-personal data in the European Union.

    44 See ECJ Opinion 1/15, 26 July 2017, on the draft PNR Agreement with Canada.

    45 See on this general topic: D. Svantesson, D. Kloza (eds), Trans-Atlantic Data Privacy Relations as a Challenge for Democracy (Intersentia, 2017); R. A. Miller (ed.), Privacy and Power. Transatlantic Dialogue in the Shadow of the NSA-Affair (Cambridge University Press, 2017).

    46 See on this plethoric topic: M. Hunault, La lutte contre la corruption, le blanchiment, la fraude fiscale, (SciencesPo Les Presses, 2017); K. Ligeti, M. Simonato, Chasing Criminal Money – Challenges and Perspectives on Asset Recovery in the EU (Hart, 2017).

    47 See on this constant theme: F. Schneider (ed.), Handbook on the Shadow Economy (Edward Elgar, 2011).

    48 For a contemporary analysis of currency, including cryptocurrencies and payment methods, see S. Gleeson, The Legal Concept of Money (Oxford University Press, 2018).

    49 For an illustration of the discourse on the loss of control over money supply, see: P. Artus and M.-P. Virard, La liquidité incontrôlable – Qui va maîtriser la monnaie mondiale ? (Pearson, 2010).

    50 Articles 63 et seq. of the Treaty on the Functioning of the European Union.

    51 See for example, Regulation (EU) 2019/452 of the European Parliament and of the Council of 19 March 2019 establishing a framework for the screening of foreign direct investments into the Union.

    52 On the concept of circulation in Financial Law, see M. Teller, “Le droit financier appréhendé comme ‘des flux en circulation’ : quelles dynamiques et quels enjeux ?” in J.-S. Bergé, G.-C. Giorgini (eds), Le sens des libertés économiques de circulation – The Sense of Economic Freedoms of Movement (Bruylant, 2020), p. 91.

    53 See M. Faure, A. Lawogni, M. Dehoumon (eds), Les mouvements transfrontières de déchets dangereux (Bruylant, 2015).

    54 For an illustration of waste traffic in the context of waste oil processing, see the analysis of L. Neyret, “Trafic de déchets dangereux : quand les dépollueurs se font pollueurs”, Environnement et développement durable, June 2014, p. 6.

    55 See in particular, M. Gibson, Environmental Regulation of Petroleum Spills and Wastes (Aspen Publishers, 1993).

    56 See for example: T. Henry, “The ocean’s plastic problem is closer to home than scientists first thought”, <https://Theconversation.com> (UK Edition), September 2019.

    57 On the drama of Fukushima, see F. Guarnieri, “Fukushima seven years later: case closed?”, <https://Theconversation.com> (Global Edition), March 2018.

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