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Impact of the COVID-19 Pandemic on the Performance of Contractual Obligations, Particularly in Credit Agreements

May 27, 2021
By 28884

Masa Miskovic, a 2020 Sylff fellow, reviews how the COVID-19 pandemic—as well as government measures to combat it—has impacted contractual relations worldwide. In the latter part of the article, she focuses on the support measures implemented in Serbia, which, as in many other countries, include a moratorium on payments of credit obligations.

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Impact of the COVID-19 Pandemic on Contractual Relations

The World Health Organization declared the COVID-19 outbreak a pandemic on March 11, 2020, in view of the rapid spread of the coronavirus outside the territory of China.[1] The appearance of the new COVID-19 virus has had and continues to have a devastating impact on all aspects of human life around the globe. The governments of many countries have been forced to take various extreme measures to slow down the spread of the virus, including lockdowns on cities and countries, closure of borders, traffic and travel restrictions, import and export bans, and various interventions in the legal and economic frameworks.

The COVID-19 pandemic has had a far-reaching impact on contractual relations worldwide. In the field of contract law, the pandemic and the measures taken by the governments of different countries to combat it have led to nonperformance or improper performance of contractual obligations in a large number of contracts.

The COVID-19 pandemic has had a far-reaching impact on contractual relations worldwide.
Source of image: https://www.gard.no/web/updates/content/29452615/covid-19-and-force-majeure-clauses-under-english-law, access date: 11.03.2021

The largest law firms around the world have already published client alerts anticipating a large number of court and arbitration proceedings in the future due to nonperformance or improper performance of contractual obligations during the COVID-19 pandemic. The main question is whether the obligor is entitled to invoke the institute of force majeure, impossibility to perform, or changed circumstances (hardship) if it did not perform its contractual obligations due to the COVID-19 pandemic.

When assessing the circumstances to refer to a particular legal institute, it should be taken into account whether the nonperformance or improper performance of contractual obligations is due to measures and restrictions imposed by governments, nonperformance of the supplier, illness of the obligor or its employees, or decision of the obligor to temporarily close its business and not perform its contractual obligations in order to protect itself and its employees and prevent the spread of the coronavirus (despite the absence of government orders to that effect), or because the obligor argues that it was unable to fulfill its contractual obligations due to the “chaos in the economy” arising from the COVID-19 pandemic.[2]

Many studies and expert predictions about the outbreak of a pandemic have been conducted, but based on them, it could not be said that the COVID-19 pandemic was foreseeable in terms of its consequences. For example, the German government-related Robert-Koch Institute conducted a comprehensive risk analysis study, published by the German Parliament in January 2013, in which the occurrence of a hypothetical pandemic such as COVID-19 was qualified as “conditionally probable” (bedingt wahrscheinlich). This means that statistically speaking, such an event occurs once in a period of 100 to 1,000 years.[3]  

The only open question is from what moment the pandemic should be considered an event whose impact could have been foreseen. One opinion is that for all agreements concluded after the World Health Organization declared the COVID-19 pandemic (March 11, 2020), the pandemic and the government measures that were introduced cannot represent a force majeure, because they became foreseeable.[4] The second opinion is that while a formal declaration of a pandemic only took place on March 11, 2020, the pandemic and government measures in Europe were unforeseeable only for contracts concluded before February 2020, and given the speed of virus transmission and its consequences, they became foreseeable for contracts concluded from February 2020 onward.[5]

When it comes to credit agreement, the obligation of the borrower is monetary. Fulfillment of a monetary obligation can always be demanded from the contracting party, and if the borrower does not fulfill its obligation, fulfillment can be demanded through enforcement procedure. It is highly unlikely that the borrower will be able to prove that fulfilling the monetary obligation was impossible due to the COVID-19 pandemic, given that payment of money can be performed by simply transferring money from one bank account to another, especially nowadays when the use of Internet (online) banking has become so widespread. Therefore, in order for the contracting party to invoke the institute of force majeure or impossibility to perform in a credit agreement, it must prove that there was no way to fulfill the contractual obligation. This is difficult to imagine in a credit agreement, given that these obligations are not “location dependent.”[6]

Increasing the costs of fulfillment of contractual obligations, even if it leads to insolvency, does not make fulfillment impossible; that is, it does not lead to impossibility to perform. The defense of temporary impossibility to perform (due to force majeure) could be invoked to postpone fulfillment of the contractual obligation. For example, if the number of employees and personnel access are limited but the physical access of employees is absolutely necessary to perform certain steps under a credit agreement, the defense of temporary impossibility may be used to suspend the contractual duty until the impossibility ceases and possibly for an additional reasonable time thereafter. This means that even in the event of a lockdown, the parties would not be able to invoke the defense of temporary impossibility to perform the contractual obligations if those obligations may continue to be performed when they are not location dependent. Therefore, in the case of a credit agreement, as a rule, a borrower cannot invoke force majeure as a reason for temporary or permanent impossibility to perform due to the COVID-19 pandemic, as the borrower has a monetary obligation that is not location dependent. Perhaps it would be possible to argue that there was difficulty in performing contractual obligations—in other words, to invoke the changed circumstances (hardship) defense.

When referring to certain legal institutes to be excused from nonperformance of contractual obligations due to the COVID-19 pandemic, practitioners emphasize the importance of assessing the circumstances of each case, that is, the importance of deciding on a case-by-case basis.  On the other hand, it must be noted that the case-by-case method is not appropriate in the current situation, which requires an approach that combines individual and collective remedies to prevent strong parties in a contractual relationship from abusing their power during individual negotiations, whether because of their contractual power, their ability to spread their risk among more contracts, or their better knowledge of the effects of certain measures taken by the authorities.[8]

The COVID-19 Pandemic and Credit Agreements

The consequences of the COVID-19 pandemic for borrowers are serious financial difficulties resulting in their inability to pay credit installments in accordance with the repayment plan. That is why some borrowers are forced enter into new credit agreements, often at higher interest rates, to overcome the poor financial situation. In other words, the outbreak of the COVID-19 pandemic and the response measures that have been adopted have significant economic consequences. Many businesses and private individuals may face difficulties in the timely payment of their financial and other obligations. This in turn has an impact on credit institutions.

Among the consequences of the COVID-19 pandemic are serious financial difficulties resulting in borrowers inability to repay credit installments.
Source of image: https://www.thedailystar.net/law-our-rights/law-vision/news/covid-19-and-default-commercial-loans-looking-ahead-1899451, access date: 11.03.2021

Many countries across the globe have implemented a broad range of support measures to minimize the medium- and long-term economic impacts of the COVID-19 pandemic and governmental actions taken in response to the COVID-19 pandemic. In many instances, these measures include some form of moratorium on payments of credit obligations, suspending or postponing borrowers’ credit payment obligations from three to six months (for example, such measures have been taken in Germany, Belgium, Switzerland, and Spain).[9] Although the moratorium took different forms in different countries, its aim and economic essence are the same: supporting the short-term operational and liquidity challenges faced by the borrowers.

Recognizing the situation in which many borrowers found themselves due to the COVID-19 pandemic, the National Bank of Serbia adopted certain decisions on temporary measures for banks with the purpose of mitigating the consequences of the pandemic to preserve financial system stability, providing citizens and corporations with a suspension in the payment of their liabilities to banks and financial lessors. The bank pointed out that for all companies and entrepreneurs, the moratorium is “an opportunity to feel more comfortable in the financial sense, because by postponing the payment of obligations, they would get additional liquidity for their business.” At the same time, the moratorium provides citizens with “the opportunity to at least mitigate the consequences of their reduced income or increased expenses by not paying their annuities in short-term credit obligations, but also by not having to engage in activities related to paying monthly installments in such a difficult situation.”[10]

Many countries across the globe have implemented some form of moratorium on payments of credit obligations, suspending or postponing borrowers’ credit payment obligations.
Source of image: https://www.mintos.com/blog/moratorium-for-borrowers-international-overview-by-mintos/, access date: 11.03.2021

The first three-month moratorium in Serbia was introduced in March 2020 by the Decision on Temporary Measures for Preserving Financial System Stability and the Decision on Temporary Measures for Financial Lessors Aimed at Preserving Financial System Stability.[11] An additional (second) two-month moratorium was introduced in July 2020 by the Decision on Temporary Measures for Banks to Mitigate the Consequences of the COVID-19 Pandemic with the Aim of Preserving Financial System Stability and the Decision on Temporary Measures for Financial Lessors to Mitigate the Consequences of the COVID-19 Pandemic with the Aim of Preserving Financial System Stability.[12]

One of the major issues regarding moratorium is whether interest continues to run during the moratorium period. Many moratoria permit interest to continue to run during the moratorium period, but there are also examples of legal solutions where demanding payment of any additional contractual costs in the form of fees or interest is not allowed (such as in Belgium).[13] As a basic model for payment of credit installments, the National Bank of Serbia recommended that banks add three monthly installments to the end of the repayment period by extending the credit contract duration by three months and allocating the regular interest to the remaining loan repayment period. The remaining loan repayment period has been increased by three months due to the moratorium. Therefore, monthly installments after the moratorium period increase due to the allocation of calculated interest from the moratorium period to the remaining increased repayment period. In other words, during the moratorium period, the banks in Serbia did not charge the regular interest, but they did calculate it. However, a moratorium by definition means a standstill in the repayment of obligations, that is, a “suspension, postponement, or reduction of a party’s obligations.” Therefore, not just charging but also calculating interest during the moratorium period is not justified, and such a practice should not be allowed.

Demanding payment of any additional contractual costs in the form of fees or interest should not be allowed during the moratorium period.
Source of image: https://www.stopwatchmarketing.com/interest-rate-what-it-is-and-what-are-the-types-of-interest-rates/, access date: 11.03.2021

 In addition to the abovementioned decisions of the National Bank of Serbia, which introduced two moratoriums for all borrowers in Serbia, the bank also adopted a decision on additional measures facilitating loan repayment by borrowers who are faced with difficulties in performance of their contractual obligations due to the COVID-19 pandemic. It adopted the Decision on Temporary Measures for Banks to Enable Adequate Credit Risk Management amid COVID-19 Pandemic and the Decision on Temporary Measures for Financial Lessors to Enable Adequate Credit Risk Management amid COVID-19 Pandemic.[14] In these decisions, the National Bank of Serbia prescribes the measures and activities to be applied by banks and lessors to ensure adequate credit risk management, which implies timely identification of debtors faced with potential difficulties and taking of appropriate steps. For this reason, it prescribes an obligation for banks and financial lessors to approve debt repayment facilities to debtors (natural persons, farmers, entrepreneurs, and companies) at their request, if they have or may have difficulties in the repayment of contractual obligations due to the conditions caused by the COVID-19 pandemic.

Financial stability is necessary in ordinary circumstances and even more so in extraordinary ones. As stated by the Governor’s Office, the National Bank of Serbia will keep a close eye on the impact of changed circumstances on all relevant market participants and will act responsibly, taking steps within its remit with a view to maintaining financial system stability, which is a precondition for preserving and boosting overall growth of the economy.

[1] See https://www.euro.who.int/en/health-topics/health-emergencies/coronavirus-covid-19/news/news/2020/3/who-announces-covid-19-outbreak-a-pandemic

[2] Franz Swarz, John A. Trenor, and Helmut Ortner, ed., introduction to Contractual Performance and COVID-19: An In-Depth Comparative Law Analysis (Alphen aan den Rijn, Netherlands: Kluwer Law International, 2020), http://www.kluwerlaw.com/covid-contracts/?doing_wp_cron=1588691772.5051820278167724609375#reports.

[3] German Bundestag, Bericht zur Risikoanalyse im Bevölkerungsschutz 2012 [Report on risk analysis in population protection 2012], January 3, 2013, annex 4: 55–56, https://dipbt.bundestag.de/doc/btd/17/120/1712051.pdf.

[4] Dominika Sulak Seyfried and Marta Bijak-Haiduk, “Poland: COVID-19 as Force Majeure,” Schoenherr (website), April 1, 2020, https://www.schoenherr.eu/content/poland-covid-19-as-force-majeure/.

[5] Klaus Peter Berger and Daniel Behn, “Force Majeure and Hardship in the Age of Corona: A Historical and Comparative Study,” McGill Journal of Dispute Resolution 6, no. 4 (2019/2020): 110, http://dx.doi.org/10.2139/ssrn.3575869; Christian Twigg-Flesner, “A Comparative Perspective on Commercial Contracts and the Impact of COVID-19: Change of Circumstances, Force Majeure, or What?” in Law in the Time of COVID-19, ed. Katharina Pistor (New York: Columbia Law School, 2020), 7, https://scholarship.law.columbia.edu/books/240.

[6] Robert Freedman, Alexandro M. Padrés, and Jesse Van Genugten, “The COVID-19 Crisis and Force Majeure in Credit Agreements,” Shearman & Sterling (website), March 24, 2020, https://www.shearman.com/perspectives/2020/03/the-covid-19-crisis-and-force-majeure-in-credit-agreements.

[7] Horst Ebhardt and Sarah Wared, “Does COVID-19 Constitute Force Majeure?” Wolf Theiss (website), March 2020: 1,  https://www.wolftheiss.com/fileadmin/content/6_news/clientAlerts/2020/Q1/20_03_23_CA_Does_COVID-19_constitute_Force_Majeure_Vienna.pdf; Anna Rizova, Oleg Temnikov, “Force Majeure and the Impact of COVID-19 Measures on Business in Bulgaria,” Wolf Theiss (website), March 2020: 2, https://www.wolftheiss.com/fileadmin/content/6_news/clientAlerts/2020/Q1/20_03_25_CA_Bulgaria_Force_Majeure_Sofia.pdf;Peter Ocko, “Coronavirus: Effects on Contractual Relations and Short-Term Need for Action,” Lexology (website), March 6, 2020, https://www.lexology.com/library/detail.aspx?g=e56ae158-ee75-4260-804b-0fc9a9fde8e7; Peter Gorše, “Slovenia: COVID-19 and Breach of Contract: Debtors Beware of Foreseeability Element,” April 21, 2020, https://www.schoenherr.eu/content/slovenia-covid-19-and-breach-of-contract-debtors-beware-of-foreseeability-element/; Ilya Bolotnov and Yuri Vorobyev, “Коронавирус vs договор” [Coronavirus vs contract], March 23, 2020, https://www.pgplaw.ru/analytics-and-brochures/alerts/coronavirus-vs-the-contract/.

[8] Richard Alderman et al. (COVID-19- Consumer Law Research Group), “Consumer Law and Policy Relating to Change of Circumstances Due to the COVID-19 Pandemic,” Journal of Consumer Policy 43, no. 3 (September 2020): 441, https://doi.org/10.1007/s10603-020-09463-z.

[9] Alderman et al., 441–42.

[10] National Bank of Serbia, “Moratorium on Payments of Credit Obligations” (in Serbian), 2020, 2, https://nbs.rs/export/sites/NBS_site/documents/mediji/vesti/Primeri-moratorijum-1.pdf.

[11] National Bank of Serbia, “Moratorium on Debt Payments,” March 18, 2020, https://www.nbs.rs/en/scripts/showcontent/index.html?id=15323&konverzija=no.

[12] National Bank of Serbia, “NBS Enables Additional Suspension in Repayment of Borrowers’ Liabilities—A New Moratorium,” July 28, 2020, https://www.nbs.rs/en/scripts/showcontent/index.html?id=15747&konverzija=no.

[13] Alderman et al., 442.

[14] National Bank of Serbia, “NBS Passes New Measures to Facilitate Repayment to Debtors Hit by the COVID-19 Pandemic,” December 15, 2020, https://www.nbs.rs/en/scripts/showcontent/index.html?id=16441.

COVID-19 Pandemic: Requiem for Human Rights?

April 9, 2021
By 28870

The COVID-19 pandemic is challenging the international community’s commitment to human rights protection. Ana Zdravkovic, a PhD candidate at the University of Belgrade, looks at the “derogation clauses” included in most international human rights treaties, which allow for the temporary suspension of certain rights in emergency situations, and notices a disturbing trend in how states are approaching them.

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Derogations: A “Necessary Evil”

It hardly comes as a surprise that the vast majority of international human rights treaties provide contracting states with the possibility to temporarily derogate from their treaty commitments during states of emergency.[i] After the atrocities of World War II, at the time of drafting core instruments of human rights law, no one really questioned the need for some sort of escape mechanism to be used in emergency cases, such as war, natural disasters, riots, public health crises, or other extraordinary circumstances. Naturally, the option of human rights suspension is accompanied by carefully created substantial and procedural restrictions.

The rationale behind these so-called derogation clauses is straightforward: states should be allowed some space to confront and resolve the crisis and even derogate from their international obligations, with the aim of urgently restoring the previous state of normalcy, where full compliance with human rights treaties would be guaranteed. It was accepted that in the absence of this “necessary evil,” states would likely cease to meet their obligations during emergencies, but with a greater risk of violations due to lack of supervision. “Derogation clauses” enable the international community not only to identify and monitor alleged human rights abuses during exceptional circumstances but also to preserve and protect the core (non-derogable) rights of individuals.


ICCPR’s Derogating Mechanism in a Nutshell

The UN Human Rights Council meets in the Human Rights and Alliance of Civilizations Room, Palace of Nations, Geneva (Switzerland).

The International Covenant on Civil and Political Rights (ICCPR) is a one-of-a-kind, multilateral treaty aimed at protecting civil and political human rights and freedoms. It entered into force on March 23, 1976, and 173 states have ratified the treaty and became its parties so far. The document appears to be the strongest confirmation of the international community’s dedication to human rights protection, at least in terms of first-generation human rights. However, the COVID-19 pandemic may reveal otherwise.

As can be expected, the ICCPR has its own derogation mechanism, namely Article 4, which reads as follows:

  1. In time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed, the States Parties to the present Covenant may take measures derogating from their obligations under the present Covenant to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their other obligations under international law and do not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin.
  2. No derogation from articles 6, 7, 8 (paragraphs 1 and 2), 11, 15, 16 and 18 may be made under this provision.
  3. Any State Party to the present Covenant availing itself of the right of derogation shall immediately inform the other States Parties to the present Covenant, through its intermediary of the Secretary-General of the United Nations, of the provisions from which it has derogated and of the reasons by which it was actuated. A further communication shall be made, through the same intermediary, on the date on which it terminates such derogation.

The first paragraph of Article 4 prescribes the circumstances in which states can lawfully and validly derogate from their obligations. To begin with, there must be a “public emergency which threatens the life of the nation,” such as war, rebellion, terrorist attacks, a natural disaster, or a public health emergency. Although the Siracusa Principles on the Limitation and Derogation Provisions in the ICCPR[ii] provide with detailed guidance for the interpretation of the ICCPR in this regard, there is no denying that a health crisis such as a pandemic can amount to a public emergency, since Article 4 has already been activated in public health crises in the past.[iii] When it comes to the COVID-19 situation, it represents an actual emergency seriously affecting and threatening the entire humankind, especially from the points of view of death tolls, the almost complete collapse of healthcare systems, its impact on the global economy, and the riots and protests it is constantly triggering. As for the requirement that the emergency be officially proclaimed, on March 11, 2020, the World Health Organization declared the COVID-19 outbreak a pandemic. Even prior to that date, many states had enacted emergency measures with the aim of curbing the spread of the deadly virus.[iv] Additional substantial conditions laid down by Article 4 require striking a fair balance between derogating measures and the actual needs of the particular situation, provided that the means used are not discriminatory or inconsistent with other obligations under international law.[v]

The second paragraph of Article 4 protects certain rights from derogation, so that they will continue to apply regardless of the state of emergency and must be protected under any circumstances. In particular, according to the ICCPR, the following are non-derogable rights: the right to life; freedom from torture and from cruel, inhuman, or degrading treatment or punishment; freedom from slavery or servitude; the right not to be imprisoned for contractual debt; freedom from retroactive criminal punishment; the right to recognition as a person before the law; and freedom of thought, conscience, and religion.[vi]

Finally, the last paragraph prescribes the procedural conditions, which oblige state parties to immediately issue a notification to the UN Secretary-General with relevant provisions, reasons, and justifications and to provide additional communication on the date of termination of such derogating measures. The requirements are intended to ensure that all state parties are duly informed about the state of emergency and derogations taking place in one’s territory in order to enable active monitoring of ICCPR compliance, as well as potential abuse of emergency powers and possible breaches of human rights.[vii]


ICCPR: A Casualty of the COVID-19 Pandemic?

An empty Human Rights and Alliance of Civilizations Room.

Although all of the abovementioned substantial and procedural requirements should always be examined on a case-by-case basis, the challenges of the COVID-19 pandemic may constitute a public emergency requiring certain derogations in almost every state across the globe. This is even more so, taking into account all of the measures implemented around the world for the purpose of curbing virus transmission (such as border closures, travel restrictions, curfews, and total prohibition of movement). Nevertheless, since the outbreak of the pandemic, only 22 states have officially notified the UN Secretary-General of their intention to impose measures derogating from their obligations under the ICCPR, which is rather peculiar.[viii] One may hastily assume that this necessarily indicates the ignorance of the state parties about the provisions of the treaty, and hence that they failed to act in accordance with it.

However, there is another solution that may have been used by those who did not resort to derogations. Imposed measures affect rights that are not absolute in nature, primarily the right to liberty of movement (Article 12), freedom to manifest religion or beliefs (Article 18), right to freedom of expression (Article 19), right of peaceful assembly (Article 21), and right to freedom of association (Article 22). The provision allowing their limitations during ordinary times (permissible restrictions) seems to be the common ground to all of them. Put differently, the ICCPR recognizes the potential need of a state to limit certain rights in order to protect some of the enumerated collective interests, including public health. There are prescribed conditions that need to be fulfilled in order to apply permissible restrictions: the restrictions must be provided by law, proportionate and necessary for the protection of health, and nondiscriminatory. Therefore, it is perfectly comprehensible that some governments decided not to declare a state of emergency and not to opt for derogations, but rather to stay inside the regular framework of human rights treaties and to limit certain rights and freedoms to the extent required by the health crisis.

Unfortunately, there are arguments showing that this may not be the case. Firstly, in April 2020 the UN Human Rights Committee issued a statement expressing concern because “several states parties have resorted to emergency measures in response to the COVID-19 pandemic in a manner seriously affecting the implementation of their obligations under the Covenant, without formally submitting any notification of derogation from the Covenant.”[ix] Furthermore, as elaborated earlier, other human rights treaties also include similar derogation mechanisms. The European Convention on Human Rights procedurally requires that contracting states notify the Secretary General of the Council of Europe of their intention to derogate from their obligations. So far 11 states have issued such notifications, but strangely enough, this number includes ICCPR parties that failed to send any notification to the UN Secretary-General.[x] Similarly, there are at least 5 states that informed the Secretary General of the Organization of American States about the suspension of certain rights guaranteed by the American Convention on Human Rights but failed to notify the UN Secretary-General.[xi] It goes without saying that a state cannot derogate from its obligations under one of these treaties and not do so under another, without inevitably breaching provisions of the one it ignored.

Hence, it appears that the COVID-19 pandemic brought, apart from all other miseries, chaos into the long-crafted human rights system. The ICCPR, once a strong pillar of the International Bill of Human Rights and a great successor to the Universal Declaration of Human Rights, suddenly became completely disregarded and passed over by its state parties. Governments either seemed reckless when it came to their human rights obligations, pretending that there was no need for triggering relevant emergency mechanisms, or starkly revealed that they were more eager to cherish the regional human rights systems they belonged to. As Professor Dominic McGoldrick famously stated back in 2004, “The response of a state to a public emergency is an acid test of its commitment to the effective implementation of human rights.”[xii]

In an attempt to not finish in this worrisome tone, I will note that the pandemic is still not over, which gives us time to revive ourselves and get back on the path we chose more than half a century ago with the adoption of the Universal Declaration of Human Rights — a path of protecting, respecting, and promoting human rights worldwide.

 

[i] See for example Article 4 of the International Covenant on Civil and Political Rights, UN Treaty Series, vol. 999, 171; Article 15 of the European Convention on Human Rights, as amended by Protocols Nos. 11 and 14, November 4, 1950, ETS 5; and Article 27 of the American Convention on Human Rights, Organization of American States. The African Charter, however, contains no derogation clause; see African Charter on Human and Peoples’ Rights, Organisation of African Unity.

[ii] The Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights, September 28, 1984, UN Doc. E/CN.4/1985/4.

[iii] For example, Georgia activated Article 4 in 2006 due to the H5N1 virus, while in 2009 Guatemala opted for derogation in response to the influenza A (H1N1) epidemic. See https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-4&chapter=4&clang=_en (accessed February 9, 2021).

[iv] For more information, see https://www.icnl.org/covid19tracker/ (accessed February 9, 2021).

[v] For a detailed analysis, see for example Sarah Joseph and Melissa Castan, The International Covenant on Civil and Political Rights: Cases, Materials, and Commentary (Oxford: Oxford University Press, 2013), 910–23.

[vi] In addition, the prohibition of the death penalty is non-derogable according to the Second Optional Protocol to the ICCPR, https://www.ohchr.org/en/professionalinterest/pages/2ndopccpr.aspx (accessed February 9, 2021).

[vii] Although the UN Human Rights Committee did not clarify whether the failure to notify the UN Secretary-General would invalidate the derogation, the author is of the opinion that derogations that contravene Article 4 in any manner, including procedural, cannot be considered lawful.

[viii] These states are Argentina, Armenia, Azerbaijan, Chile, Colombia, the Dominican Republic, Ecuador, El Salvador, Estonia, Ethiopia, Georgia, Guatemala, Kyrgyzstan, Latvia, Namibia, Paraguay, Peru, the Republic of Moldova, Romania, San Marino, Senegal, and Thailand; see https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-4&chapter=4&clang=_en (accessed February 10, 2021).

[ix] UN Human Rights Committee, “Statement on derogations from the Covenant in connection with the COVID-19 pandemic,”, April 30, 2020, CCPR/C/128/2, https://www.ohchr.org/Documents/HRBodies/CCPR/COVIDstatementEN.pdf (accessed February 10, 2021).

[x] By comparing publicly available lists of declarations, it can be concluded that Albania, North Macedonia, and Serbia did derogate from the ECHR but not from the ICCPR; see https://www.coe.int/en/web/conventions/full-list/-/conventions/treaty/005/declarations and https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-4&chapter=4&clang=_en (February 10, 2021).

[xi] The 5 states are Bolivia, Honduras, Jamaica, Panama, and Suriname; see https://www.rightofassembly.info/assets/downloads/Derogations_from_the_Right_of_Peaceful_Assembly_(at_11_November_2020)_.pdf (accessed February 10, 2021).

[xii] Dominic McGoldrick, “The interface between public emergency powers and international law,” International Journal of Constitutional Law 2, no. 2 (April 2004), 388.

What COVID-19 Can Teach Us about Prison: Reflections on Criminal Policy and the Words of Albert Camus

August 31, 2020
By 24051

Rui Caria, a PhD candidate in criminal law at the University of Coimbra, summarizes the ongoing discussions about the confinement of prisoners under the COVID-19 pandemic. He discusses the human dignity of prisoners and the purpose of prisons and punishment by drawing on ideas that Nobel Prize winner Albert Camus describes in his famous novel The Plague.

* * *

Introduction

During my second semester, like many others, I had my life put on hold by COVID-19. I was sent to work from home, and class lectures were provided by Zoom, allowing me to keep studying by looking through the tiny box that is my computer screen. As much as one tries to halt the fall of productivity, it eventually gives way to reflection; one that is personal as much as social. By looking at the other tiny box that is my TV, I could watch the news and learn about all the people who found themselves confined.

During quarantine, I found it fitting to reread a novel by one of my favorite authors: The Plague, by Albert Camus. It made me realize that the most fortunate of us were confined at home; others, not so fortunate, were confined in the places where they had made their travels. But there was a third category of confined, one that is seldom talked about: prisoners.

 

To Release or Not to Release?

Across the world, there was a great discussion about what to do with prisoners during the pandemic, the question being whether they should be released or not in order to minimize the risk of a health catastrophe in prisons. The importance of the issue was highlighted by various entities, from the World Health Organization (WHO) to the Council of Europe. The debate had to grapple not only with the big question itself—to release or not to release—but also, if the question is to be answered affirmatively, on what grounds they should be released.

In my country, Portugal, legislators approved an extraordinary regime of prison flexibilization in the midst of the COVID-19 pandemic. This new law (no. 9/2020) allowed for a partial pardon of prison sentences, a special regime of reprieve of sentences, an extraordinary regime of licenses for administrative leave of inmates, and extraordinary anticipated parole.

The Portuguese Parliament (Assembleia da República).

On the other side of the world, in the United States, which has the world’s largest number of infected combined with the world’s largest prison population, policy solutions have been suggested to reduce the number of people in jails, as well as in state and federal prisons. These focus not only on increasing the number of releases but also on restricting the number of admissions.

Regarding increasing releases from federal and state prisons, some suggest considering the following for immediate release: inmates nearing the end of their sentence (who are expected be released in the next few months); those in minimum security facilities and who are on work release; those who are medically fragile or are older; and those whose offense is considered “minor” or have a “low likelihood” of committing another serious offense.[1]

Many prisoners have sought compassionate release—the release of people who are facing imminent death and who pose no threat to the public. But this has proven a lengthy and cumbersome process, some of the shortcomings being the requirement that a person be extremely close to death or so incapacitated that they do not understand why they are being punished; the requirement of a statement from a medical professional; and the ability of decision-makers to overrule recommendations from medical professionals and prison staff.[2]

Some have pointed their finger at the new policies to release prisoners, calling them opportunistic political moves to try to solve the problem of prison overcrowding that preceded the pandemic. But this was only one of the many outcries from the public regarding the release of prisoners.

 

Why Release?

The WHO has pointed out that due to the concentration of people that is inevitable in prisons, inmates find themselves in a state of special vulnerability regarding COVID-19.[3]

However, the virus is not the only problem, or it would be a smaller problem if it were not for the poor health of inmates. The WHO has also noted that inmates, regardless of the pandemic, already tend to suffer from graver health issues than the general population. These health issues stem from weakened immune systems, caused by lack of sunlight, stress, malnutrition, and such diseases as tuberculosis, from which inmates particularly suffer.

One of many overcrowded prisons in the world.

Adding to the health problems that exist—and have existed for a long time—in prisons, the environment itself makes social distancing impossible. Compared to cruise ships and nursing homes, two other types of environments considered prominent incubators for the virus, prisons possess comparable or smaller quarters and people do not have in-room access to the necessary hygiene products and water.[4] 

This situation is made worse by the fact that many prisons suffer from overcrowding and poor overall conditions and that prisoners are put in collective cells that are too small. Many of these situations have already reached the European Court of Human Rights and suffered their condemnation.[5]

 

Why Punish and When Do We Stop?

The discussion also made the public ask itself, even if subconsciously: Why do we punish? What are the limits of punishment? When is punishment over?

In Portugal, when the state intervenes by utilizing criminal law—that is, when it criminalizes any behavior and punishes it—it must do so in obedience to the constitutional principle of necessity. This means that criminal law comes forward not arbitrarily but only to protect lawful values inscribed in the constitution or derived from it. These are values that correspond to the necessary conditions for the individual’s free development, to the realization of his fundamental rights, and to the sound functioning of a society built around these goals.[6]

This means that criminal sanctions serve the purposes of protecting lawful values and aiming to socially rehabilitate the offender. Both these purposes are considered when determining the length of the prison sentence.

Prison of Coimbra in Portugal.

Despite being inscribed in the criminal code as one of the purposes of the prison sentence, social rehabilitation often seems not to be a priority, its failure being one of the weapons utilized to argue the failure of criminal law. One needs only to look at the lack of conditions from which prisons suffer to observe, as many criminologists have already noted,[7] that in many cases it dissocializes more than it socializes.

This fact, combined with the perception that the public has of prison, helps cement the popular idea that people should not leave prison before the time prescribed in their sentence, that they should be punished until the end, for there is no chance they will be rehabilitated before that. With these ideas in mind, it easily arises in the public discourse that someone who has committed a crime is a criminal forever and so should be forever punished, without the opportunity for rehabilitation, for there is no chance of it happening.

 

The Prison and Plague

In his famous book The Plague, first published in 1947, the Algerian-born French philosopher and Nobel Prize winning writer Albert Camus tells the story of the fictional town of Oran, which is stricken by the plague.

In his story, the people of Oran are confined to their town and homes because of this plague. At one point, Camus reflects on how their condition is equal to that of exiles and prisoners: “Thus, too, they came to know the incorrigible sorrow of all prisoners and exiles, which is to live in company with a memory that serves no purpose. . . . Hostile to the past, impatient of the present, and cheated of the future, we were much like those whom men’s justice, or hatred, forces to live behind prison bars.”[8]

Albert Camus

There could not be a better description of what many of us went through in the past months of the year 2020 due to the pandemic. However, even if we felt like this, with different words but with the same feeling, parted from family, friends, and lovers, did it serve to make us reflect? Did it make us more compassionate and understanding of our fellow man?

The discussion surrounding the release of prisoners during the pandemic is, in my understanding, of special importance. It had the capacity to bring the topic of prison and inmates back into the public eye—even if briefly and amid the greater concerns of the pandemic, in which we are still living. In this way, it allowed for the public to be made aware, once more, of the special vulnerability of inmates that derives from their poor health and the poor prison conditions in which we keep them, even in the twenty-first century.

However, despite being made aware of the problems faced by inmates, and sharing the feeling of confinement, the public response to releases during the pandemic was still stained, for the most part, with intolerance. Besides the already mentioned accusations of releases being a “quick fix” for the prison overcrowding problem, less elaborated arguments could be summed up in the following statement: “Prisoners should stay in prison.” It was even possible to hear some people saying that not only should prisoners not be released earlier, or on time, but they should stay in prison forever.

This sort of speech was not novel or exclusive to the pandemic. That specific discussion was only a symptom of a greater problem: the way society still conceptualizes punishment. I had the opportunity to witness this firsthand. In the summer between the two years of my master’s degree in criminal law, I worked as a tour guide in an exhibition dedicated to celebrating 150 years since the abolition of the death penalty in Portugal. It was not uncommon to hear people say that it was a mistake to abolish it and that it should be brought back.

Of course, this is the extreme end of that sort of speech, but it is common for people to think about prison as nothing more than punishment, as if the more suffering is inflicted, the more justice will be done. In today’s criminal doctrine, at least in the European continental tradition, the conceptualization of prison as pure retribution is largely obsolete. Prison is not supposed to aim at the past, punishing the offender as an incarnation of divine retribution, but should be aimed at the future, in helping him live his life responsibly without committing crimes by socially rehabilitating him.

Offenders, despite having committed crimes, are meant to be treated as human beings, being recognized for their dignity as well as granted a chance for recovery and redemption. How would we have felt if someone had told us that never again should we leave our homes? Should we never see our loved ones again? Should we never hope for the future?

As much as we need a change in public and criminal policy, we need a change in the public conscience about the purpose of prisons and the value of human dignity. We certainly had, and still have, the opportunity to let the virus teach us something about prison and about humanity.

 

[1] Peter Wagner and Emily Widra, “Five Ways the Criminal Justice System Could Slow the Pandemic,” Prison Policy Initiative (website), March 27, 2020, https://www.prisonpolicy.org/blog/2020/03/27/slowpandemic/.

[2] Emily Widra and Wanda Bertram, “Compassionate Release Was Never Designed to Release Large Numbers of People,” Prison Policy Initiative (website), May 29, 2020, https://www.prisonpolicy.org/blog/2020/05/29/compassionate-release/.

[3] WHO Regional Office for Europe, “Preparedness, Prevention and Control of COVID-19 in Prisons and Other Places of Detention: Interim Guidance,” March 15, 2020, 1.

[4] Aleks Kajstura and Jenny London, “Since You Asked: Is Social Distancing Possible behind Bars?” Prison Policy Initiative (website), April 3, 2020, https://www.prisonpolicy.org/blog/2020/04/03/density/.

[5] Recent cases include J.M.B. Et Autres c. France [J.M.B. and Others v. France], 9671/15, May 30, 2020, https://hudoc.echr.coe.int/eng#{%22itemid%22:[%22001-200446%22]}, and Sukachov v. Ukraine, 14057/17, May 30, 2020, https://hudoc.echr.coe.int/eng#{%22itemid%22:[%22001-200448%22]}.

[6] Claus Roxin, “O Conceito de Bem Jurídico Como Padrão Crítico da Norma Penal Posto à Prova,” Revista Portuguesa de Ciência Criminal 23, no. 1 (January–March 2013): 12.

[7] One of the fundamental works in this regard is: Erving Goffman, Asylums: Essays on the Social Situation of Mental Patients and Other Inmates (London: Penguin Books, 1991).

[8] Albert Camus, The Plague (Harmondsworth: Penguin Books, 1960), 69.

Action to Address a Stakeholder-Identified Need: Development of a Questionnaire to Improve Resolution after Medical Injury

July 27, 2020
By 25572

Associate Professor Jennifer Moore, a former Sylff fellow at Massey University in New Zealand, implemented a research project to assess the needs of injured patients and their families after medical injury with funding from Sylff Leadership Initiatives (SLI) from January 2019 to April 2020. The survey tool she developed and refined throughout the project is expected to facilitate better and happier reconciliation processes between healthcare organizations and injured patients and families after medical injury.

* * * 

“I wish there had been a questionnaire like this that was given to me after the hospital injured me! I recently had a hip replacement, and the provider posted a survey to me. It was so bad that I didn’t complete it. I thought, ‘Do these people have common sense? What does this mean?’ I wonder if they didn’t do what you are doing and [trial] the survey with the actual patients. I think it is so important to actually trial test it on patients first.” (Injured patient from New Zealand, comments during a cognitive interview, January 2019. The word in brackets in the quotation was edited by the author).

 

Introduction

This project was the first to attempt to develop a questionnaire to assess injured patients’ and families’ needs after medical injury. We pretested a draft version of the questionnaire with injured patients and families in New Zealand and the United States. In the quotation above, the injured patient highlights the importance of pretesting questionnaires to increase the likelihood that it will be an effective tool.   

Medical injury is unexpected harm caused by medical care. After heart disease and cancer, medical injuries have been identified as the third leading cause of death in the United States; this conclusion is consistent with findings from research undertaken in other countries, such as Canada, Japan, and New Zealand, and these statistics have generated calls for “greater attention” to medical injury because of the scale of this global issue.[1] An additional well-documented issue is that healthcare institutions’ responses to medical injuries, particularly their attempts at resolution, frequently fail to meet patients’ expectations and needs.[2] The literature also highlights that poor responses from healthcare organizations exacerbate the psychological, physical, and financial effects of medical injuries.[3]

During my recent research about the resolution of medical injury, the key stakeholders and participants identified another important social problem that requires action. Most healthcare organizations are interested in doing a better job of meeting injured patients’ and families’ emotional, informational, and practical needs after medical injury but currently lack tools to evaluate how well they met those goals.

Jennifer with her daughter Rebecca and two research participants

Research Objective, Methods, and Dissemination

Therefore, this project’s key objective was to address that gap, and stakeholder-identified need, by developing a questionnaire that healthcare organizations can use to assess how well they met the needs of patients who suffered medical injuries during their care. To develop the questionnaire, we undertook the following steps.

  • We designed a draft version of what we call the Medical Injury Reconciliation Experiences Survey (MIRES). This draft was based on findings from our two previous studies of injured patients’ experiences of nonlitigation approaches to resolving medical injuries.
  • We performed a content analysis of transcripts from a stratified random sample of interviews conducted with injured patients in New Zealand and the United States in 2015–16.
  • We extracted themes describing what is important to patients following medical injury and developed a draft questionnaire with question domains and items corresponding to these themes.
  • We revised the draft questionnaire following review and feedback from expert clinicians, risk managers, and patient advocates.
  • We pilot tested the revised questionnaire on a sample of 24 injured patients and family members in the United States and New Zealand, conducting cognitive debriefing interviews focused on the comprehensibility and completeness of the questionnaire.
  • We further revised the instrument based on this feedback. Thirty-seven revisions were made in response to their suggestions.
  • We traveled to New Zealand to disseminate and implement the questionnaire to key stakeholders in New Zealand, such as district health boards' public hospitals, the Ministry of Health, the Accident Compensation Corporation, and the patient advocacy group Acclaim. I traveled around New Zealand (particularly Christchurch, Dunedin, and Wellington) to meet with representatives from the key stakeholder organizations to explain the questionnaire to them and to discuss how best to implement it in their organization.
  • We are in regular, ongoing contact with the representatives of the key stakeholder organizations in New Zealand to answer their questions about the questionnaire and to ask about their initial experiences using it.
  • We submitted a paper to an academic journal that reports the results of the survey development.
  • After the COVID-19 travel bans are lifted, we will travel to New Zealand again at the stakeholders’ request to discuss implementation progress and to undertake any further edits to the questionnaire that may be required.
  • Once the COVID-19 travel bans are lifted, I will also travel to the United States again to discuss implementation progress at the participating hospitals. The intention was to visit the United States in May 2019, but that trip was canceled because of COVID-19. (Sylff funded the New Zealand part of the project, not the US part. We are very grateful to Sylff for their support.)

Once our research paper is accepted, it will be important to disseminate the paper, because our project is the first to attempt to develop a questionnaire to assess injured patients’ needs after medical injury. Further research could use our questionnaire to undertake a full validation study.

The final version of the questionnaire included the following domains:

  • perceptions of communications with healthcare providers after the injury (11 items);
  • perceptions of remedial gestures, such as apology and compensation (12 items);
  • indicia of the patient’s overall satisfaction with the reconciliation process (3 items);
  • the nature and impacts of the injury (5 items); and
  • characteristics of the patient (5 items).

 

Conclusion

Jennifer with a patient's research participant's puppy during the cognitive debriefing interview about the draft questionnaire.

Injured patients and their families expressed the view that they appreciated the opportunity to assist with the survey design process. The survey was feasible to administer with pencil and paper, taking around 10 minutes to complete. The MIRES appears to be comprehensible and acceptable to patients and offers a practicable means by which healthcare organizations can assess how well their reconciliation processes are meeting injured patients’ needs. One of the US patients who participated in this project observed that the “questionnaire has the power to help so many other patients like me.”    

[1] Martin Makary and Michael Daniel, “Medical Error—The Third Leading Cause of Death in the US,” British Medical Journal 353 (May 2016): 2139, https://doi.org/10.1136/bmj.i2139.

[2] Frederick S. Southwick et al., “A Patient-Initiated Voluntary Online Survey of Adverse Medical Events: The Perspective of 696 Injured Patients and Families,” BMJ Quality and Safety 24, no. 10 (October 2015): 620–29.

[3] Elaine O’Connor et al., “Disclosure of Patient Safety Incidents: A Comprehensive Review,” International Journal of Quality in Health Care 22, no. 5 (October 2010): 371–79.

Multi-Dimensional Challenges, Multi-Sectoral Innovations: The Resilience of Common Forest Management in Japan

June 22, 2020
By 26719

Yance Arizona[1] is a 2011 Sylff fellow from the University of Indonesia and currently a PhD candidate at Leiden University in the Netherlands. Using an SRA award, he visited the Osaka University of Tourism in Japan and the University of New South Wales in Australia to sharpen the comparative elements of his research on customary land recognition in Indonesia. In this article, he focuses on lessons learned about the resilience of common forest management in Japan by discussing the challenges and innovations of state and nonstate actors.

* * *

Community-based forest management has a long history in rural Japan. Since the Edo period (1603–1868), rural communities have shared their collective land and labor to maintain forest and other natural resources for self-sufficiency. This model of natural resource practice is known as common forest management. The common forest, called iriai in Japanese, became integrated into the traditional village system.[2] The membership of iriai common forest groups is embedded in that of traditional Japanese villages (mura). However, common forest management has slowly changed over time due to internal and external factors since Japan entered the industrial revolution. This article discusses several challenges concerning the current practice of common forest management in Japan. I also reveal several initiatives by the government and citizens to restore collaborative forest management and to renew interest in rural development. The analysis in this article is based on interviews, literature studies, and observations conducted in two rural areas in Japan during my Sylff Research Abroad (SRA) fellowship in November and December 2019.

 

What Is the Common Forest in Japan?

Many scholars have used the iriai forest or common forest in Japan as an illustrative example of potential community-based management as an alternative to private property ownership and an extractive model of natural resource management (Mitsumata and Murata 2007; Berge and McKean 2015). For a long time, the rural population in Japan has collectively engaged in agricultural activities in shared communal land by planting trees, especially sugi and pine, to meet their daily needs. Iriai groups have collectively cleared, planted, maintained, and harvested forest products to provide mutual benefits among the members. The membership of the common forest group was initially based on the membership of a village. Since the Japanese government installed modern development programs, primarily through the Meiji Restoration (1868), many traditional concepts, laws, and activities have slightly changed. In the following section, I will discuss five concerns about recent developments in common forest management in Japan.

Five Challenges of Common Forest Management

The common forest practice in Japan faces multidimensional challenges. Here I will briefly discuss five major challenges of the common forest in Japan, including demographic, economic, environmental, institutional, and regulatory factors.[3] Firstly, legal uncertainty leads to misrecognition and disputes among iriai rights holders (regulatory factor). During the Meiji era (1868–1912), Japan’s Civil Code began to take effect. The Civil Code is a mark that Japan began incorporating a modern legal system inspired by the German and French legal traditions (Kanamori, 1999). Regarding the property right regime, the modern Civil Code strictly divides land property into private and public properties (Suzuki, 2013: 67–86). In short, private property is in the ownership of individual citizens, whereas public property belongs to the state or other public bodies. This dichotomy leads to uncertainty regarding the legal status of iriai forests because the iriai model cannot be categorized as either private or public property. As a result, Article 263 of the Civil Code considers the common forest to be in the co-ownership of a group of citizens. By contrast, Article 294 stipulates iriai as the right of the local population to use state land or forest. Neither of these articles represents the original model of iriai forest rights, which combine communal and individual land ownership.

Misrecognition of the legal status of the common forest in the Civil Code generates ambiguity in land registration practices. Iriai rights holders have to register their common land and forest under “nominal names” on behalf of other legal entities. Gakuto Takumura (2019) demonstrates six models of how iriai rights holders register their communal land rights. These six models of adaptation to the modern land administration system appear in the registration of a common forest on behalf of other legal entities, such as (a) a leader of a village, (b) several leaders of a village, (c) all household heads in a village, (d) a shrine or temple of a village, (e) a new municipality, or (f) a district, a cooperative, or an authorized community association. Registering the iriai right under nominal names has occasionally caused legal disputes among the iriai rights holders. One case that received much attention in Japan was the Kotsunagi case, which took decades for the courts to settle (Inoue and Shivakoti 2015).

 

The author gives a guest lecture on customary forests and tourism in Japan and Indonesia at the Osaka University of Tourism. Detailed information can be found at https://www.tourism.ac.jp/news/cat3/5810.html.

The second concern is government imposition of the modernization of iriai forest management (institutional factor). Besides the legal status, another institutional challenge to the iriai forest is the modernization of the rural administrative system. In the early period of the Meiji era, the Japanese government announced a policy to modernize village governments. The modernization of village government affects iriai forest management because iriai group membership was traditionally based on membership in a traditional Japanese village. This challenge parallels the general trend in rural Japan to merge villages rather than splitting them into several smaller villages. When two or more villages are merged, a question arises regarding the ownership and membership of iriai rights, whether it still belongs to the initial village that has merged or it becomes the co-ownership of the new village union.

Another striking policy by the Japanese government to modernize iriai forest management is the Modernization of the Common Forest Act of 1966 (Takahashi and Matsushita 2015). This act intended to transform traditional common forest practices into modern forest management. However, the implementation of this act did not result in a uniform model of forest management; instead, the act has been adopted in different models of forest management depending on the social conditions of iriai rights holders. Research by Daisaku Shimada (2014) revealed how rural communities in the Yamaguni district in Kyoto adapted to the Modernization of Common Forest Act and other external influences, such as population change and the timber liberalization policy in securing common forest management. Rural communities modify their common forest institution to allow migrants to be members of new forest management boards.

The third challenge is depopulation and urbanization (demographic factor). In contemporary Japan, depopulation and urbanization are central issues in the debate on rural development. Japanese society is experiencing depopulation because of a low birthrate and an aging population. At the same time, the urbanization level is dramatically high. Many young people move away to live in urban areas, leaving the rural areas mainly inhabited by older generations. Depopulation and urbanization affect the membership and decision-making process in common forest management. The membership of iriai forest groups shrinks as some of the members move to the city or elsewhere, causing a reduction of the workforce in the management of the common forest. In the past, iriai rights holders lived permanently in a village. When someone moved to other villages, his or her rights to the iriai forest vanished. Today, some people consider their rights to remain valid even when they have moved to other villages. Another problem in terms of people’s mobility concerns the decision-making process in common forest management. Traditionally, iriai rights holders decide on common forest management through a consensual agreement among the group members (Goto 2007). If a member of the iriai group is not involved or disagrees with the majority opinion, it means that the group has not reached a consensual decision. Currently, some iriai groups apply flexible categorization to their common forest membership by including newcomers to the board and involving them in the decision-making process. The lack of a clear decision-making process and a shrinking workforce have led to the underuse of iriai forests in several places in rural Japan.

The fourth problem is the timber liberalization policy (economic factor). In the 1960s, the Japanese government introduced a timber trade liberalization policy to support industrial development. This policy increased timber import from other countries, mainly from the United States, Russia, and Southeast Asian countries. As a result, this strategy decreased the competitiveness of domestic timber production and the economic value of wood, which has been the core commodity of common forests. Before the timber liberalization policy, the common forest supplied wood for building houses, offices, castles, and temples, as well as for making furniture, and provided firewood for cooking and heating. From the 1960s onward, as the country entered a period of rapid economic growth, Japan replaced the use of wood with other resources. The use of concrete and steel is more dominant for residential buildings and offices, and the use of fossil fuels in place of firewood is increasingly widespread. In addition, to meet domestic wood demand, the Japanese government no longer relies on domestic supplies and relies instead on imported wood. This timber import policy devastated Japan’s domestic timber production and market. Consequently, the core business of iriai forests, that of meeting domestic wood demand, has gradually declined. Lack of productive activities in rural areas also became one of the drivers for rural people to move to big cities.

 

Together with a group of postgraduate students from Kyoto University, the author visits a private forest in Kawakami Mura, Nara Prefecture. This forest site is the oldest planted forest in Japan.

The final concern relates to land degradation (environmental factor). Iriai rights holders maintain the common forest by growing supporting plants around the main trees. These plants support soil fertility and provide economic benefits to farmers. However, due to the shortage of labor to maintain the common forest, conifer plantations are left unmaintained. At first glance, this condition looks good for conservation, because forests are left green and trees grow for long periods. But apparently, this is not suitable for the healthy growth of the main trees because they are in competition with the shrubbery. Moreover, unmanaged conifer plantations cause frequent landslides in rural areas. These disasters are compounded by the typhoon and earthquake catastrophes that often occur in Japan. This environmental vulnerability is not only the cause but also the result of underutilization of the common forests.

Revitalization Movements

The revitalization of common forest management in Japan corresponds with an attempt to improve rural livelihoods. The Japanese government and nongovernmental organizations engage in rural development, including the revival of common forest management. The Japanese government, through the Ministry of Internal Affairs and Communications, implements a program to increase the interest of urban residents, either Japanese citizens or immigrants, in living in rural areas. These people from different locations assist rural community members in meeting their basic needs, especially related to health and livelihood. Moreover, the Japanese government promotes a “forest volunteer program” to attract people’s interest in getting involved in forest restoration activities. Forest volunteers are individuals other than forest owners or those with a direct interest, who participate in on-site work necessary for forest management in response to the critical state of the forests. Shinji Yamamoto (2003) found that the forest volunteer program has been generating a positive impact on drawing urban people’s interest in forestry activities. This program began in the 1970s and has since spread across the country. According to Japan’s Forestry Agency, the number of citizens’ organisations that have participated in forest volunteer activities was 2,677 as of 2010 (Yamamoto 2003). 

Nonprofit organizations and universities also run several programs to enhance the interest of young generations regarding rural livelihood and environmental management. A crucial example is the kikigaki program. Literally, kikigaki consists of the words kiki (“listening”) and gaki (“writing”). The kikigaki program encourages young people to take an interest in the stories of local people. Kikigaki is a learning method for understanding someone’s life story through direct dialogue. Since 2002, high schools in Japan have adopted the kikigaki method to raise students’ awareness of societal problems faced by rural communities (Effendi 2019). Due to the increase in global attention toward environmental issues, the kikigaki program also covers environmental education for children. Environmental issues allow students to get involved in the revitalization of common forest management. The kikigaki program initially developed in Japan and spread out to other countries, such as Indonesia. I interviewed Motoko Shimagami, who is developing kikigaki programs in both Japan and Indonesia. According to Shimagami, youth involvement is an essential factor in improving rural livelihood and sustainable environmental management. Several years ago, Shimagami conducted a comparative study of common forest management between Indonesia and Japan (Shimagami 2009) and found that similar methods of revitalization of the common forest through the education of high school students are pivotal in both countries.

 

Matsutake Crusaders, a voluntary group dominated by elders who gather every week to maintain a hill landscape, creating a suitable condition for matsutake mushrooms to grow.

Another initiative that I have seen in Japan is the ecovillage network. An ecovillage is an intentional, traditional, or urban community that is consciously designed through locally owned participatory processes encompassing social, cultural, ecological, and economic dimensions to regenerate social and natural environments.[4] In 2013, I visited the Konohana Family ecovillage in Shizuoka Prefecture. This ecovillage is part of a worldwide ecovillage network. The Konohana Family, though it calls itself a family, consists of 100 members who are not of the same blood. They live in rural areas and cultivate collective agricultural land. With the spirit of “togetherness” as a family, they fulfill basic needs through collective land management. During my visit to Japan with the support of the SRA fellowship program, I visited the Matsutake Crusaders in the northern part of Kyoto. This group consists of more than 30 retirees who gather once a week to engage in collaborative natural resource management. They nurture matsutake, a wild mushroom typical of Japan that has high economic and cultural values (Tsing 2015). They voluntarily cut some pine wood as a precondition to creating a suitable environment for matsutake to grow. Professor Fumihiko Yoshimura, the leader of this group, said that although this initiative is different from the iriai rights model, they called it a satoyama movement. The satoyama concept in landscape management combines forest and agricultural activities, mainly in hill areas. Currently, many rural communities in Japan are involved in satoyama movements (Satsuka 2014). In another location, a study by Haruo Saito and Gaku Mitsumata (2008) shows the integration of matsutake production with traditional iriai land use in Oka Village, Kyoto Prefecture.

This article has illustrated five major challenges of common forest management in Japan. These challenges are responded to with a variety of innovations by the government and nongovernment organizations to help the common forest practices survive in supporting rural livelihood. These innovations to revitalize community-based natural resource management have been developed with various narratives such as environmental movements, rural livelihood supports, family and community orientation projects, and voluntary civic education. Although rural communities have encountered serious challenges since Japan entered industrial development, villagers continue to maintain the common forest with some modifications. Villagers demonstrate the resilience of common forest management by taking an inclusive approach that includes migrants in the board membership of common forest management and by involving themselves in broader networks of community-based natural resource movements. Community resilience is the crucial factor in common forest management in Japan.

 

References

Berge, Erling, and Margaret Mckean. 2015. “On the Commons of Developed Industrialized Countries.” International Journal of the Commons 9, no. 2 (September 2015): 469–85.

Effendi, Tonny Dian. 2019. “Local Wisdom-based Environmental Education through Kikigaki Method: Japan Experience and Lesson for Indonesia.” IOP Conference Series: Earth and Environmental Science 239: 012038. https://doi.org/10.1088/1755-1315/239/1/012038.

Goto, Kokki. 2007. “‘Iriai Forests Have Sustained the Livelihood and Autonomy of Villagers’: Experience of Commons in Ishimushiro Hamlet in Northeastern Japan.” Working Paper Series No. 30. Afrasian Centre for Peace and Development Studies, Ryukoku University.

Inoue, Makoto, and Ganesha P. Shivakoti. 2015. Multi-level Forest Governance in Asia: Concepts, Challenges and the Way Forward. India: Sage Publication.

Kanamori, Shigenari. 1999. “German Influences on Japanese Pre-War Constitution and Civil Code.” European Journal of Law and Economics 7, no. 93–95. https://doi.org/10.1023/A:1008688209052.

Mitsumata, Gaku, and Takeshi Murata. 2007. “Overview and Current Status of the Iriai (Commons) System in the Three Regions of Japan: From the Edo Era through the Beginning of the 21st Century.” Discussion Paper No. 07-04. Kyoto: Multilevel Environmental Governance for Sustainable Development Project.

Miyanaga, Kentaro, and Daisaku Shimada. 2018. “‘The Tragedy of the Commons’ by Underuse: Toward a Conceptual Framework Based on Ecosystem Services and Satoyama Perspective.” International Journal of the Commons 12, no. 1: 332–51.

Saito, Haruo, and Gaku Mitsumata. 2008. “Bidding Customs and Habitat Improvement for Matsutake (Tricholoma matsutake) in Japan.” Economic Botany 62, no. 3: 257–68.

Satsuka, Shiho. 2014. “The Satoyama Movement: Envisioning Multispecies Commons in Postindustrial Japan.” In Asian Environments: Connections across Borders, Landscapes, and Times, RCC Perspectives, no. 3: 87–94.

Shimagami, Motoko. 2009. “An Iriai Interchange Linking Japan and Indonesia: An Experiment in Interactive Learning and Action Leading toward Community-Based Forest Management.” Working Paper Series No. 46. Afrasian Centre for Peace and Development Studies, Ryukoku University.

Suzuki, Tatsuya. 2013 “The Custom and Legal Theory of Iriai in Japan: A History of the Discourse on the Position of the Rights of Common in the Modern Legal System.” In Local Commons and Democratic Environmental Governance, edited by Takeshi Murota and Ken Takeshita. Tokyo-New York-Paris: United Nations University Press.

Takahashi, Takuya, and Koji Matsushita. 2015. “How Did Policy Intervention Work Out for Commons Forests in Japan? An Analysis of Time-Series Prefectural Data.” Paper in the IASC Conference 2015 Edmonton W23 (2015-5-27).

Takamura, Gakuto. 2019. “The Bundle of Rights Model to Explain the Underuse of Japanese Common Forest from History.” Presentation in Asian Law and Society Association (ALSA) Conference, Osaka Univesity, December 12–15, 2019.

Tsing, Anna L. 2015. The Mushroom at the End of the World: On the Possibility of Life in Capitalist Ruin. Princeton: Princeton University Press.

Yamamoto, Shinji. 2003. “Forest Volunteer Activity in Japan.” In Local Commons and Democratic Environmental Governance, edited by Takeshi Murota and Ken Takeshita. Tokyo–New York–Paris: United Nations University Press. 287–302.

 

 

 

[1] I would like to express my gratitude to Professor Sozaburo Mitamayama (Osaka University of Tourism) for his hospitality and assistance during my research visit in Japan. I am also thankful for a series of insightful discussions that I have had with Motoko Shimagami (Ehime University), Gaku Mitsumata (Hyogo University), Gakuto Takamura (Ritsumeikan University), and Mamoru Kanzaki and Daisuke Naito (Kyoto University), and for the fruitful comments by Hoko Horri (Leiden University) for this article.

[2] In this article, the terms “common forest” and “iriai forest” are used interchangeably.

[3] See also Kentaro Miyanaga and Daisaku Shimada (2018), who identify three main driving factors that lead to the underuse of common forests in Japan: demographic drivers, socioeconomic drivers, and institutional drivers.

[4] See. https://ecovillage.org/projects/what-is-an-ecovillage/

On Principles in Japanese Law

May 12, 2020
By 24601

Using an SRA award, Miloš Marković, a 2017 Sylff fellow from the University of Belgrade, visited Japan between November 2019 and January 2020. His main goal was to explore and assess the application of legal principles in the modern sense as constitutional rights in Japan by interviewing legal scholars as well as lawyers and judges there.

* * *

Historical and Motivational Background

The distinction between legal rules and legal principles has been in the center of much theoretical thought in the past few decades. The beginning of a broad discussion was marked by Dworkin’s major challenge of legal positivism.[1] Eight years later, Alexy brought the topic to a whole new level by developing a theory of constitutional rights as principles.[2] The principles theory even evolved into a full-fledged theory of law.

The main difference between these rules and principles is how to resolve their conflict. When two legal rules come into conflict, one of them is abolished or excepted. Only one of two norms prescribing different deadlines for the same complaint may be valid, not both. When two legal principles come into conflict, both remain valid and neither is declared an exception, yet one overweighs the other under the specific circumstances of the case. Freedom of trade and the protection of customers may intersect and conflict and determine the outcome of the case, yet neither has absolute priority in application over the other.

The author, left, with one of the interviewees at a law firm in Tokyo.


When I first approached the topic of legal principles in the course of doctoral studies, it was clear from the start that the comparative dimension would play a major role in the research. Legal systems to be taken into consideration were as usual French, Austrian, German, and American. However, the major legal systems in the Far East has always inspired curiosity among European lawyers. Unfamiliar customs, different religions, exotic dishes, and undecipherable scripts keep China, Japan, and Korea mostly under a veil of unknown for people in Serbia and other European countries. Legal transplants from the West in the cultural environment of East Asia seemed to drift farther away from their original meaning than elsewhere. After completing two research stays in Austria and Germany, the main reason for my choice of Japan as a host country to investigate legal principles in a comparative perspective was the historical influence of German law.

The modernization process in Japan began in 1868 with the fall of the Tokugawa Shogunate, which had ruled the country for two and a half centuries.[3] Faced with the threat of being colonized by Western countries, the Meiji government set out to establish a modern legal system in conformity with European tradition and renegotiate unfair commerce treaties.[4] France was believed a leading European country with comprehensive legal codes, and French scholars were invited to draft codes for Japan. For the first time, Japanese words had to be invented for the concepts of right, freedom, and liberty, as well as property over land. However, the French drafts triggered strong criticism for violating the traditions of Japan, so the government decided to rely more on German scholars. Ultimately, the whole legal system was modeled on German law. The first Constitution of Japan was enacted in 1889, and the first Civil Code in 1898. Japan thus became a civil law country.

Having in mind that German law exercised influence in Japan in ages past, I reckoned that the modern principles theory as developed by the German Federal Constitutional Court might have already been accepted independently by the courts in Japan due to the shared legal tradition. A comparison of statutory norms and judicial decisions should point out differences and similarities between major legal systems and thus prove the universality of the principles theory. That hypothesis motivated me to set sail for the land of the rising sun.

Original copy of the Constitution of Japan enacted on May 3, 1947, as the new constitution for a post–World War II Japan.

Choice of Methodology

My primary method consisted of interviews with Japanese scholars and judges to learn what they know and what importance they assign to the principles theory. However, things did not go completely as planned for two reasons. First, the language barrier made online communication with both courts and faculties practically impossible. Since contact e-mails turned out to be unavailable on official websites and some letters remained unanswered, plans to arrange a meeting on my own were thwarted. Second, the physical barriers at the entrances of law faculties prevented access without invitation and thus hindered me from seeking assistance independently.

Consequently, meetings were exclusively arranged on the recommendation of an acquaintance or the supervisor himself.[5] Such recommendations prompted better preparation and substantial interest on the part of the interviewees. Everyone put much effort into disentangling complex questions and discussing them on a practical level. All in all, I had fewer yet longer, better, and more insightful discussions with lawyers in Japan than originally envisioned.

My secondary method was supposed to be to gather data via computer analysis of judgments based on the word “principle.” However, it turned out that decisions of Japanese courts are rarely translated into English. In addition, fieldwork showed that a reliable translation of a judicial decision requires long work, rich legal knowledge, and mastery of both languages, and thus much money. As a result, the original proposal ran ashore. To overcome the obstacle, I turned to books on Japanese case law and searched myself for principles hidden within the reasons adduced.

 

Research Findings

My research in Japan confirmed the hypothesis that every legal system necessarily includes principles besides rules. At the outset of each interview, Japanese judges tended to understand principles as unwritten legal norms and were majorly averse to the idea that they play a role in the decision-making process. The only reasons for a judgment should be rules as prescriptions. However, when confronted with hard cases, judges usually admitted that rules are insufficient to justify a decision. They must then reach out for more general rules or the purpose of a rule. When asked to solve a conflict between such abstract norms, judges agreed that such conflicts cannot be solved by abolishing one of them or declaring one an exception.

Interviewed judges keenly defended the position that a solution to each case can be found in rules by means of an adequate interpretation. The meaning of each norm can be narrowed or broadened in order to exclude or include different cases and provide a solution. An interesting detail from the conducted interviews was the opinion that the first and foremost norm in the Japanese Civil Code, “good faith,” represents a rule. Such reasoning shows that judges tend to regard every case from the standpoint of only one norm. However, it is inevitable that norms sometimes overlap or intersect, in which case only a cluster of norms may provide a basis for decision. Principles come into play when such a conflict is irresolvable by means of abolition and exception.

An illustrative example is the “After the Banquet case,” in which the Tokyo District Court had to decide about an alleged violation of privacy.[6] A novel was published by the famous Japanese author Yukio Mishima. Although the names were altered, practically everyone could recognize that the model in the book was Foreign Minister Hachiro Arita. The court obviously had to balance between right to privacy and freedom of speech, or freedom of artistic expression, as Japanese lawyers like to put it. In 1964 Japan obtained its first judicial recognition of the right to privacy. Mishima lost the case and tried to bring the case to a higher court, but the foreign minister died, and a settlement was reached between the two sides. From the standpoint of principles theory, it is important that no right was abolished or declared an exception. The discussed judgment is clear evidence that in Japanese law some norms function as principles, and those are primarily constitutional norms awarding rights.

The author in front of the Akamon gate built during the Tokugawa Shogunate. The gate is located at one of the entrances of the University of Tokyo’s Hongo campus, where he was based during his research in Japan.


It was remarkable to find an analogous case in Europe. Photographs of Princess Caroline of Monaco were published in several magazines. The case was brought before the German Federal Constitutional Court. In order to reach a decision, the court had to balance two constitutional rights: freedom of speech and right to privacy.[7] For the majority of photos the freedom of speech was given priority due to the status of the complainant as a public personality. However, three photos where the complainant was with her children were deemed to infringe disproportionally on their privacy, which is why priority switched to the right of privacy. The main point is that the first principle overweighed the second and vice versa under respective specific circumstances, yet both principles remained valid and no absolute hierarchy was introduced. Had the court abolished one of the conflicting norms or declared one to be an exception of the other, those norms would have been treated as rules.


Related news on the Sylff website:

https://www.sylff.org/news_voices/27360/ 

[1] Ronald Dworkin, “A model of Rules I,” Taking Rights Seriously (Cambridge: Harvard University Press, 1978), 14–45.

[2] Robert Alexy, Theorie der Grundrechte (Berlin: Suhrkamp, 1986), 71–154.

[3] James L. McClain, Japan: A Modern History (New York: W.W. Norton & Company, 2002), 119–207.

[4] Shigenori Matsui, The Constitution of Japan: A Contextual Analysis (Portland, OR: Hart Publishing, 2011), 7–13.

[5] In that regard, I am much indebted to Professor Yasunori Kasai and Professor Masayuki Tamaruya, as well as the Sylff Association.

[6] Judgment of Tokyo District Court, 1964, Kaminshu 15-9-2317. There is no translation of the sentence available online. I am much obliged to Professor Hitoshi Nishitani for the particulars of the case.

[7] https://www.bundesverfassungsgericht.de/SharedDocs/Entscheidungen/EN/1999/12/rs19991215_1bvr065396en.html

The State and the Rights of Individuals: Pursuing Research at the Graduate Institute Geneva

April 16, 2020
By 25314

Using an SRA grant, Benedikt Behlert spent four months from September 2019 to January 2020 as a junior visiting fellow at the Graduate Institute of International and Development Studies in Geneva, Switzerland, which proved to be highly beneficial for his PhD project on the administrative procedures required to protect human rights. 

*     *     *

My PhD project on “The Necessity of a Conversation between the Administration and the Individual: The Relevance of Procedure to International Human Rights” asks the question whether international human rights law requires states to have in place structured decision-making procedures for their administrative bodies. Such procedures are often perceived as a nuisance by the two sides involved—the administration and the individual confronted with it—and as an unwelcome hurdle in reaching their objectives.

The Maison de la Paix, home of the Graduate Institute Geneva.

This perception clouds the value of administrative procedure, however, which can protect individual rights against arbitrary state action. This protective potential is realized first and foremost by involving the individual in the decision-making process, such as by granting them a right to be heard and requiring reasons for a negative decision. This is the insight from which my normative analysis of international human rights law commences.

The different ways in which individuals are potentially confronted by administrative bodies are numerous. Beyond “everyday encounters,” such as when an individual applies for a permit, there are complex and sensitive human-rights issues like the ongoing “migration crisis” that highlight the relevance of this inquiry.

What does international human rights law say about the relevance of procedures for the protection of the rights of migrants and refugees? Does it require institutionalized procedures to examine whether a person’s claim for asylum is well-founded? What should such procedures look like? A thorough understanding of the general relationship between the laws governing international human rights and administrative procedures should help answer such questions about specific encounters between state administrations and individuals.

Comparison with Constitutional Rights

One chapter of my thesis draws inspiration from German constitutional law, in particular, the German doctrine of constitutional rights. The connection between administrative procedure and German constitutional rights has been discussed for more than 40 years. The ideas and arguments found in this discourse are by now well-developed, and given the striking structural and substantial similarities, they might provide valuable insights for human-rights-based arguments.

The goal of this comparative exercise was to learn something about the structure and nature of international human rights law, which will inform the subsequent part of my thesis where I try to construct an international-human-rights-law-based argument in favor of procedural rights and obligations.

However, looking for inspiration from one’s own jurisdiction carries a certain risk for the international lawyer. The outcome of research may be too heavily influenced by one’s own background and thus irrelevant to the international legal discourse. In order to avoid falling into this trap, I decided to write the part of my thesis focusing on the similarities and differences between constitutional rights and international human rights in a highly international research environment.

I had the great honor of spending four months at the Graduate Institute of International and Development Studies in Geneva as a junior visiting fellow. With its very diverse faculty and even more diverse student body, the Graduate Institute Geneva—also a Sylff institution—was just the right place for me to get the inspiration and critical feedback I needed.

The view from my workplace at the Graduate Institute Geneva.

The Benefits of an International Research Environment

I reviewed pertinent German constitutional law literature and international human rights law literature during my stay. The vast number of resources available at the Graduate Institute and its library were a great help. Most importantly, however, I had the chance to talk to researchers at various levels—PhDs, postdocs, and professors—from different disciplinary and national backgrounds, both informally and in more formal settings. Everyone at the International Law Department was extremely welcoming and helpful. In numerous talks with members of the world-renowned faculty and fellow PhD students, I received valuable input.

Furthermore, I gave a presentation in a roundtable session at the International Law Department, which was followed by an engaging and stimulating discussion. Not only did all these talks enable me to think about the German ideas more critically, but they also helped me to find more effective ways to present my findings to an international audience, which is the eventual target of my thesis.

Beyond the direct benefits for my research, my time as a junior visiting fellow at the Graduate Institute helped to broaden my horizon more generally. Almost every day, a high-level event with leading figures of international politics took place in the grand auditorium, exposing me to many interesting and informed analyses of current issues and crises. The junior visiting fellowship thus enabled me to better perceive my research within the bigger picture of international studies. Finally, the support which the International Law Department and the visiting fellows office provided was outstanding, very personal, and made my stay comfortable and easy.

Being a junior visiting fellow at the Graduate Institute Geneva was a splendid experience. I am certain that my thesis will reflect the inspiration and input I received during my stay. I am immensely grateful to the Sylff Association for funding my stay in Geneva with a generous SRA award, and I can only encourage other fellows who have not done so to make use of the extraordinary opportunities the Sylff Association provides!

Jonction, the place in Geneva where the Rhône and the Arve meet.

Behlert's related article "Forced Migration in Transition: Perspectives from Social Science and Law" can be read at www.sylff.org/news_voices/27466/.

Forced Migration in Transition: Perspectives from Social Science and Law

February 6, 2020

In November 2019, we, members of the Sylff Mikrokolleg on Forced Migration at Ruhr University Bochum (RUB), hosted the conference “Forced Migration in Transition: Perspectives from Social Science and Law” at our home university in Bochum, Germany. The conference brought together researchers and practitioners from different disciplines to tackle pressing issues revolving around forced migration.

*     *     *

The Sylff Mikrokolleg on Forced Migration

Our three-member organizing committee consisted of Benedikt Behlert, Corinna Land, and Robin Ramsahye. Benedikt and Robin are PhD students in international law at RUB’s Institute for International Law of Peace and Armed Conflict (IFHV). Corinna is a PhD student at the Social Science Faculty. All of us are current or former fellows of the Sylff Mikrokolleg on Forced Migration at RUB. The Mikrokolleg was established in 2017 as an interdisciplinary group of four PhD students contributing to the field of forced migration studies from different angles through their individual PhD projects and through common projects like our conference. By now, it has assembled a network of eighteen members around itself, consisting of seven professors, three current Sylff fellows, and eight associates, two of whom are former fellows. Following the aim of Sylff to “nurture leaders who will initiate action to transcend differences and address issues confronting contemporary society,” the theme for this micro assembly of young researchers at the doctoral level was quickly found: forced migration, one of the greatest challenges facing the international community today.

An Interdisciplinary Conference Bringing Together Academia and Practice

Given the contemporary dynamics of human mobility, scholarly debates on “forced migration” gained new momentum over the last year. Controversial discussions often revealed a set of highly important challenges concerning theoretical, conceptual, and methodological approaches. They also confirmed that it was impossible to truly understand this multidimensional issue without intense cooperation between various disciplines.

Against this backdrop, our conference provided a highly necessary platform to discuss recent research findings and theoretical approaches. The fruitful academic exchange was enriched by perspectives of experts from the human rights and development practice who assured the real-world relevance of the debate.

Experts from humanities and law as well as representatives from civil society met in four consecutive workshops and raised yet unanswered questions at the heart of the matter: What is forced migration after all? How do we define it? How useful is distinguishing between legal and other categories? What is the role of affected individuals in forced migration studies? How can we mitigate the pressure to migrate? And what are our possibilities and responsibilities as academics and citizens to defend public discourse from ever more xenophobic and exclusionary voices?


Transitions of Concepts, Perspectives, Law and Space

Panel 1 chaired by Corinna Land, far right, examined the concept of forced migration in the present context.

Panel 1, titled “Transition of Concepts” and chaired by Corinna Land, reflected our interdisciplinary discussions as Kolleg fellows as to what our common project should focus on. It showed that the definitional clarity that a lawyer is trained to seek cannot be conjured out of thin air when it concerns such a contentious and complex term as forced migration. The contributions of all four panelists highlighted that forced migration is conceptualized today as an integral part of global social inequalities that continuously produce forced mobility. Focusing on the African continent, Serge Palasie, a practitioner with the nongovernmental organization Eine Welt Netz, presented a macrohistorical overview of reasons for such inequalities, drawing a link from European colonialist exploitation to contemporary hegemonic practices of states underpinning the global economic order. Christopher Boyd, a doctoral candidate at the University of Glasgow’s School of Law, built on this approach with a critique of the international legal system. As “part of the problem,” international law cements hegemonic political projects as law and is thus inherently limited in providing solutions. Dr. Isabella Risini, an international law researcher at Ruhr University Bochum, equally emphasized the complexity of forced migration in a globalized world in which political, economic, and social questions are tightly interwoven and argued for a moderate role of international lawyers. Dennis Dijkzeul, professor of organization and conflict research at the IFHV, reminded the audience of the importance of gaining a wider understanding of forced migration processes through the actors involved, including states and, increasingly, networks of international organizations and NGOs.

Benedikt Behlert, right, moderates Panel 2, which provided insights for protecting individual migrants’ human rights.

Panel 2, called “Transition of Perspectives” and chaired by Benedikt Behlert, moved the focus from the broader notion of forced migration to individual forced migrants. It explored the rise of actor-oriented theories in law and social sciences transcending the longstanding image of migrants and refugees as passive beneficiaries of humanitarian assistance. The panel acted as a forum to discuss what agency these groups have in defending their interests. Legal scholars Dr. Itamar Mann from the University of Haifa and Dr. Ekaterina Yahyaoui from the University of Ireland, Galway, presented their approaches. Taking writer Behrouz Boochani’s account of life in an Australian refugee detention center on Manus Island in the Pacific as a starting point, Dr. Mann illustrated cases of judicial activism in favor of refugees’ human rights. Having himself brought a claim regarding detention practices against Australian authorities before the International Criminal Court, he provided insights on ways in which international law may be used to further migrants’ rights. Dr. Yahyaoui explored theoretical approaches to circumscribing actors in need of international support, based on the “turn to vulnerability” in refugee and forced migration studies. Criticizing this approach for its lack of nuance, she argued for increased consideration of substantive equality as part of the established human rights framework, coupled with the theory of intersectionality, which allows for engagement with individual experiences instead of schematic categorizations.

Panel 3 chaired by Robin Ramsahye, far right, discussed relations between disputes of land rights and forced migrations.


Panel 3, themed on “Transition of Law” and chaired by Robin Ramsahye, zoomed in on the specific scenario of land allocation within populations and ensuing conflicts as an important driver of forced migration. International litigator Lucy Claridge of Amnesty International provided insights into the Endorois case before the African Commission on Human and Peoples’ Rights. As counsel, she represented members of the Endorois community, who had been displaced by the Kenyan government, in their quest for restoration of their historic land and compensation. Professor Jochen von Bernstorff from the University of Tübingen assessed current efforts to recognize the right to land in international law and examined the structural implications of land rights for the broader framework of international law. Dr. Kei Otsuki of Utrecht University explored the notion of infrastructural violence, pointing to problematic aspects of progressive legal frameworks in reaction to modernization and resettlement, which ultimately contributed to legitimizing and formalizing displacement. Mariana de Martos from the Max Planck Institute for Social Anthropology in Halle concluded the panel by analyzing the discrepancies between the law and its implementation through a case study of indigenous peoples’ land rights in the Brazilian Amazon rainforest.

Panel 4 chaired by Carolin Funke, far right, looked at the issue of migrants’ integration into their host communities.

Lastly, Panel 4, “Transition of Space” chaired by Carolin Funke, a post-doctoral researcher at the IFHV, opened the conference lens to the wider societal discourse. Both the findings of academic research and practical work on the issue of migration often seem to be drowned out by highly emotional and shrill debates, increasingly dominated by adherents of extreme positions. The panel contextualized these observations from the perspectives of academia, practice, and the media. Professor Ludger Pries of Ruhr University Bochum stressed that refugees and migrants are often either maligned or paternalized. He stressed that narrow views labeling them as intruders or target groups for transnational solidarity miss the mark, since migrants are actors in their own right, shaping their destinies. Building on this, journalist Isabel Schayani provided an account of her daily work covering the fates of migrants stranded on the European outposts that many of them first arrive at, as well as the lives of migrants who make it to Germany and endeavor to create a life for themselves. Complementing these perspectives, Claudia Jerzak from the University of Applied Sciences for Social Work, Education, and Care in Dresden presented examples of the process of integrating migrants into host communities through highly structured spaces, such as integration courses, and interchangeable, prestructured spaces, such as meeting cafés and self-organized spaces where refugees act as hosts and organizers.

Invaluable Experiences and Much Gratitude

The conference has afforded us a number of lasting experiences and benefits. Securing the funds for and organizing the conference sequence enabled us to familiarize ourselves with many tasks that are of crucial importance in the academic world. Having conceptualized several panels in form and content under an overarching theme, reached out to people and secured commitments of participation, organized international travel, and coped with several last-minute cancellations, we feel we have gained insights that can only be achieved through action. The interdisciplinary character of the conference, merging social scientific and legal approaches to forced migration, was initially challenging to conceive but turned out to be very beneficial. Throughout the phase of substantial preparation, we had to transcend our own disciplinary boundaries in delimiting the panels in a way that worked from the perspectives of both law and social sciences. We were glad to see that the conference participants did the same by engaging in fruitful discussions. Beyond the immediate exchange in the panel discussions, the conference enabled us to expand our professional networks and make valuable contacts through numerous occasions for informal discussions with our guests, many of whom we have arranged to stay in touch with for future cooperation.

We are indebted and very grateful to a number of people and organizations for the conference’s success. First, we would like to express our gratitude to the Sylff Association and the Tokyo Foundation for setting up the Sylff Mikrokolleg on Forced Migration and giving us the opportunity to research and express our ideas through their generous financial and administrative support. A special thank you to Sylff director Yoko Kaburagi is in order for attending our conference and encouraging follow-up exchange.

We also very much appreciate the help of RUB’s Research School, which sponsored the conference and continuously supported us with logistics and procedures, most importantly in the person of Dr. Sarah Gemicioglu.

We would also like to warmly thank all associate fellows and researchers involved with the Sylff Mikrokolleg on Forced Migration and who made valuable contributions to the development of the conference. We are glad to see that there is a lot of interest in our Kolleg and that many promising young researchers stand ready to take over and move it forward still.


Behlert's related article "The State and the Rights of Individuals: Pursuing Research at the Graduate Institute Geneva" can be read at
www.sylff.org/news_voices/27786/.

Celebrating the International Labor Organization Centenary with a Conversation about Labor Standards, Health, and Safety at Work

December 11, 2019
By 26658

Using an SRA award, Olívia de Quintana Figueiredo Pasqualeto, a 2019 Sylff fellow from the University of São Paulo, visited the International Labor Organization (ILO) in Geneva to discuss aspects of her doctoral thesis with specialists in international labor standards and collect bibliographical references on the subject that are not accessible from Brazil. In this article, she describes what motivated her to study the influence of international law on the protection of health and safety of workers and the application of Convention No. 155 of the ILO by labor courts in Brazil; the importance of the ILO visit and its contributions to her research; and the next steps to take after visiting the ILO.

* * *

Background and Motivations

The desire to understand how domestic law dialogues with international law originates in reflections on some of the results found in studies prior to my PhD research, especially during the conclusion of my master’s dissertation,[1] which showed that the programs, goals, and concepts set forth by the International Labor Organization on green jobs[2] are rarely observed by member states of the organization, as well as by institutions that handle the subject. Moreover, in my master’s research, I was able to find that occupational health and safety standards are most often breached in green jobs. From these conclusions came the question of the extent to which international law is applied in Brazil and influences the protection of health and safety at work.

In front of ILO building entrance.


To answer this proposed question, the object of study had to be delimited. I decided to study a specific international standard—ILO Convention No. 155 (C155), the first ILO convention that addressed health and safety at work generally, holistically, and preventively (ITCILO, 2018, p. 2)—and its application by the Brazilian labor courts (who exercise judicial power over labor subjects), since jurisdictional activity is one of the most concrete ways of giving effectiveness to international law (Valticos, 1955; Valticos, 1977; Potobsky, 2004). The idea is to analyze whether this international standard offers greater protection to worker health and safety and what the benefits are of applying it.

Considering the theme to be studied, it occurred to me to visit the ILO, the international body that prepared the C155, is responsible for monitoring its effectiveness, brings together great experts, and has the most specific bibliographic collection on the subject.

 

Visiting the ILO: An Opportunity to Dialogue with Experts and Deepen the Theoretical Framework

The proposed SRA project had two main objectives: to discuss with ILO experts the preliminary results of my research and to complement the bibliographic references of my thesis.

With ILO experts from NORMES, after our conversation.

To achieve the first objective, a conversation was scheduled with some of the ILO’s legal officers from the International Labor Standards Department (NORMES). In this dialogue, I had the opportunity to ask the following questions: How can we make international labor standards more effective? Is judicial activity an important form to make it (more) effective? In Brazil, I perceive a certain lack of awareness about international labor standards (C155), including among judges; do you have the same impression, and does that make sense to you? This may not be exclusive to Brazil; what do you see in other countries? What are the advantages of using international labor standards (C155) in judicial decisions? How does the ILO plan to increase the use of Convention No. 155, what are the ways of bringing labor standards of the ILO closer to domestic law, and is there any strategy focused on jurisdictional activity?

My conversation with these experts was very productive. I was welcomed by three legal officers, and we debated the issues I had proposed for over two hours. Some of their answers reinforced and complemented some of the conclusions of my thesis, and an observation made by one of them helped me rework one of my research hypotheses. From this conversation, I structured and wrote the last chapter of the thesis, which is under review.


In addition, at the end of the conversation, one of the legal officers put me in contact with another important ILO department called the Labor Administration, Labor Inspection and Occupational Safety and Health Branch (LABADMIN/OSH), specializing in occupational health and safety, with which I was able to schedule another meeting that I had not initially foreseen. This second meeting was also very helpful, as we talked about the possibility of occupational health and safety being included in core labor rights.

It was highly important for the research to have this dialogue with people from outside my academic circle and have the opportunity to “test” the results that I have been finding. This helped me rethink some categorical statements I had made and indicated that the path I am tracing for the investigation is coherent.

Seeking to reach the second objective of my SRA project, I requested access to the ILO library, which allowed me not only to consult the library’s physical collection but also to use its space to study and write the thesis everyday while I was in Geneva. I was able to make a systematic collection of bibliographic material, having found works that are not available in Brazil. Being able to turn to these theoretical references—especially older books by Nicolas Valticos, Wilfred Jenks, and Georges Scelle—allowed me to complement the foundation of some ideas developed throughout the first and second chapters of the thesis, especially with regard to judicial use of ILO conventions. In addition to the theoretical framework, I had access to various historical documents regarding the approval of Convention No. 155 and ILO publications on occupational health and safety in general.

Artwork from India in the ILO garden.

 

Next Steps

With the end of research abroad, I am finalizing the writing and review of the thesis, with the submission of my dissertation scheduled for December 2019 and graduation in March 2020.

In addition to completing the research, the ILO visit allowed me to structure two future projects: one originating from the meeting with LABADMIN/OSH, which opened a channel for material exchange and the possibility of developing a joint article in the future about “health and safety at work as a fundamental right and principle at work”; another directed to the publication of reviews (in Portuguese) of the works I consulted that are not accessible from Brazil, aiming to share with the Brazilian academic community this content not yet available in the country.

 

Conclusion

Finally, I point out that, besides the activities performed and described above, my visit to the ILO building full of artwork related to human labor, especially in the year of its centenary, gave me even more inspiration and motivation to complete the doctorate, think about new research objects, and plan future projects.

 

References

ITCILO (International Training Center of the International Labor Organization). 2018. International labour law and domestic law. Turin: ITCILO.

Valticos, N. 1955. Conventions internationales du travail et droit interne. Revue critique de droit internationale privé, vol. 2, 251–288.

Valticos, N. 1977. Droit international du travail et droit interne français. Travaux du comité français de droit international privé, vol. 34, no. 1973, 11–37.

Potobsky, G. V. 2004. Eficacia jurídica de los convenios de la OIT en el plano nacional. In Les normes internationales du travail: un patrimoine pour l’avenirmélanges en l’honneur de Nicolas Valticos, by J.C. Javillier, B. Gernigon, and G.P. Politakis. Genève: Bureau International Du Travail, 287–305.

 [1] This master’s dissertation is titled “Worker protection in green works,” defended at the Faculty of Law of the University of São Paulo on November 7, 2016.

[2] “Green jobs” is an expression created by the ILO to designate decent forms of work dedicated to the continuous and efficient protection and repair of the environment (natural, artificial, cultural, and labor) in the most varied economic activities, regardless of the worker’s hierarchical position and legal relationships. These jobs must be socially, environmentally, and economically sustainable.

Insights into the Economic and Legal Dimensions of Public Contractual Relationships in Europe

December 5, 2019
By 27004

The aim of my doctoral dissertation research—carried out with the support of a Sylff fellowship—is the examination of contracts concluded by the state and other public bodies in Europe. Particular attention is given to concessions and the interplay between various national legal traditions and the law of the European Union. My work focuses on the legal specificities of these contracts and seeks to understand important socioeconomic connections of this field of law, such as the different modes of the state’s involvement in the economy and the different ways public services are organized, and where the boundaries between the state and market are set. In the following, I would like to give a brief introduction to this topic.

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In the evolution of the law of public contracts at the national and European level, the organization of public services has always played an important part.

Many services that are now considered public services first appeared as private initiatives. As capitalism developed, urbanization and population growth resulted in an ever-increasing number of tasks that public administrations needed to organize for the smooth functioning of society. The state’s involvement in the economy became more active in the first half of the twentieth century owing to two world wars, economic crises, the growing need for public services, and the bankruptcy of private-sector service providers. As welfare states flourished in Europe in the 1960s and the first half of the 1970s, the provision of public services came to be carried out mainly in the public sphere, either by state bodies, local authorities, or by organizations closely related to them.[1]

The Chain Bridge, one of the iconic monuments of Budapest, Hungary, is an example of a private initiative taking the lead in building public infrastructure in the nineteenth century. Its construction was funded and carried out by the Chain Bridge Joint Stock Company, owned by private shareholders. (Photo by Gyurika, CC-BY-SA-2.5, https://commons.wikimedia.org/wiki/File:Lanchid-budaipiller.jpg)

Challenges to the concept of the European welfare state emerged in the 1970s, as the oil crises of 1973 and 1979 triggered a new way of thinking about economic policy. The organization of public services according to market principles, outsourcing, and the involvement of the private sector became widespread, accompanied, in certain cases, by the privatization of assets serving as the basis of a public service. An important factor encouraging these processes was the law of the European Union. The most intensive period of regulation in the European Union to build up an internal market of undistorted competition started in the early the 1990s. An important part of this was the liberalization of network-based public services and the regulation of public procurement, which became more detailed and effective through the adoption of new directives.[2]

The reform of public services and the growing importance of contracting out became a general trend in Europe, but they unfolded differently in the individual member states of the EU, influenced by the respective traditional approaches to delivering public services.

In Germany, public services of an economic nature are traditionally provided by so-called Stadtwerke. These are companies of local authorities (earlier organized also by public law) that provide the population of a geographical area with different utilities. In the field of social services, cooperations of charitable organizations were a traditional form of service provision. The trend of privatization has affected these long-established structures, and private operators now play an important role in the delivery of public services. As a result of EU-led liberalization, these markets also had to be opened up to competition—or at least adjusted to a competition-driven legal system. However, certain sensitive areas, such as water supply and ambulance services, were protected by public policy from the encroachment of market forces by the EU.

Unlike Germany, France did not develop a strong utilities’ sector at the local level. The system of French local authorities was very fragmented, and their scarce resources encouraged the delegation of public services—mainly in the form of concessions—to private providers from as early as the middle of the nineteenth century.[3] The French state’s interference in the economy was particularly strong after World War II; extensive nationalization took place ,which largely affected the utilities, but state involvement was significant even in the competitive parts of industry and in the banking and insurance sectors.[4] Due to this composition of public property and the historic guiding theory of service public in public administration, the privatization of the 1980s and 1990s affected primarily the competitive sectors of the economy, not the utilities. The French constitution of 1946 expressly stated that monopolies and companies providing national public services and the assets necessary to run these services must remain state property.[5] A characteristic of the French model is that the utilities market is dominated by a few large companies, which are also important participants in the EU-wide market of service concessions.

The Channel Tunnel links Great Britain with continental Europe. The infrastructure project, negotiated in the middle of the 1980s, was a pioneer of large-scale, concession-type contracts using the project finance technique relying on the proceeds of the project. (Photo by Florian Févre from Mobilys, CC BY-SA 4.0, https://en.wikipedia.org/wiki/File:TGV_TMST_3011-2_-_Sortie_Tunnel_sous_la_Manche_%C3%A0_Coquelles.jpg)

In Britain, the common law legal system (which follows a different concept than the legal systems of continental Europe) evolved in parallel with another type of economic development. From the outset, capitalism developed with much less state involvement than in Germany or France. Margaret Thatcher, who became prime minister in 1979, was a pioneer of a neoliberal economic policy. She implemented reforms to achieve a more economic and effective public sector, encouraging contracting-out, private-sector involvement in public projects, privatization, and the liberalization of monopolies in utilities. The British administration also developed innovative legal concepts like unbundling and public-private partnerships (PPPs) that later spread to the rest of Europe and beyond.

Nowadays, EU law has a decisive impact on how member states can organize public services. Although there is undoubtedly a push toward more competition and privatization, there are also elements of EU law that try to seek a balance between the principle of undistorted competition and the will of member states to preserve their ability to decide on the most appropriate way to provide public services with different degrees of state involvement and to protect certain traditional elements of their systems.

The Law of Public Contracts

The law governing the contracts of public bodies is also shaped by changing economic circumstances, the increasing recourse to contracting-out, and the impact of EU law. There is a general trend towards unification, mainly deriving from EU public procurement law, whose focus is to sustain undistorted competition in public purchases through transparent procedural rules. But this process also accommodates different legal traditions in national laws.

PPP contracts were widely used from the 1990s to develop different types of public infrastructure, such as motorways. However, there were always concerns whether PPPs could deliver value for money for the public sector. (Photo by Kroock74, CC BY-SA 3.0, https://commons.wikimedia.org/wiki/File:Toll_booths_in_the_UK.jpg)

The most developed legal tradition relating to public contracts can be found in the French legal system in the concept of administrative contracts. What sets this legal regime apart is that contract rules of public authorities must also reflect the public interest and guarantee the proper functioning of public services. Administrative contracts form a distinct category apart from private law contracts, and legal disputes relating to them fall within the jurisdiction of administrative courts. Special rules are applicable to these contracts besides the underlying law of the French Civil Code. The main feature of administrative contracts is that the parties to the contract are not in an equal position and that the law acknowledges certain prerogatives for public authorities (e.g., a unilateral power of modification in case it is so required in the light of the public interest). However, the rules of administrative contracts must also fairly protect the interests of the contracting party by sustaining the economic balance in case of unforeseen circumstances and by compensating the private party in case the administration exercises its special rights.

The German legal system has traditionally been based on a strict distinction between private and public law. Its main approach to the contracts of public authorities is that public administration is also subject to private law when it takes part in economic relationships. This way of thinking has not impeded the acknowledgement of certain specificities of public contracts in connection with the public interest. The emphasis in German law is on the requirement that public authorities give due consideration to human rights even if they are acting under contract. In order to apply public law requirements to private law contracts, German courts incorporated these public law principles into general private law clauses. This solution of taking into account public principles in the interpretation of private law is called Verwaltungsprivatrecht in legal literature.[6]

One difference we can observe in English law is that its evolution is much more based on the needs arising from private economic activity than in continental contract laws. In the system of common law, it follows from the principle of the rule of law that the same law applies to both the state and private parties when they take part in economic relationships. As a result, even the existence of administrative law was recognized much later in England than in Germany or France. The specificities of public contracts appear in the principles elaborated by the courts and in codified laws, but there is no general legal concept or theory on how the public interest is considered in relation to public contracts.  

In spite of the conceptual divergences, common features can also be observed in the main European legal systems.[7] These elements all relate to the public interest and represent two main aspects of public contracts. On the one hand, public bodies need more freedom to act in order to decide on public matters and keep their competence to act as the public interest requires. However, when public interest warrants a derogation from contractual obligations, the private party must be compensated fairly. On the other hand, the administration cannot circumvent its public law obligations—such as respect for human rights—even if it acts in accordance with contractual provisions.

EU law also affects significantly how the traditional principles of public contracts can be applied in the member states. It is possible to maintain different approaches to public contracts in individual legal systems, but their special points of view can only apply within the boundaries set by EU law.

 

[1] Hellmut Wollmann and Gérard Marcou, “Introduction,” in Wollmann and Marcou (eds), The Provision of Public Services in Europe: Between State, Local Government and Market, Edward Elgar Publishing, Cheltenham, 2010, p. 5.

[2] Council Directive 89/440/EEC of July 18, 1989, amending Directive 71/305/EEC concerning the coordination of procedures for the award of public works contracts; Council Directive 88/295/EEC of March 22, 1988, amending Directive 77/62/EEC relating to the coordination of procedures on the award of public supply contracts and repealing certain provisions of Directive 80/767/EEC; Council Directive 92/50/EEC of June 18, 1992, relating to the coordination of procedures for the award of public service contracts; Council Directive 93/36/EEC of June 14, 1993, coordinating procedures for the award of public supply contracts; Council Directive 93/37/EEC of June 14, 1993, concerning the coordination of procedures for the award of public works contracts; Council Directive 93/38/EEC of June 14, 1993, coordinating the procurement procedures of entities operating in the water, energy, transport, and telecommunications sectors.

[3] Attila Harmathy, Szerződés, közigazgatás, gazdaságirányítás, Akadémiai Kiadó, Budapest, 1983, p. 29.

[4] For a detailed account of the different approaches to public ownership in the economy after 1945, see Leigh Hancher, “The Public Sector as Object and Instrument of Economic Policy,” in Terence Daintith (ed), Law as an Instrument of Economic Policy: Comparative and Critical Approaches, Walter de Gruyter, Berlin, 1987, pp. 165–236. 

[5] Ninth paragraph in the preamble of the Constitution of 1946: “Tout bien, toute entreprise, dont l’exploitation a ou acquiert les caractères d’un service public national ou d’un monopole de fait, doit devenir la propriété de la collectivité.”

[6] For a comprehensive analysis of Verwaltungsprivatrecht, see Ulrich Stelkens, Verwaltungsprivatrecht—Zur Privatrechtsbindung der Verwaltung, deren Reichweite und Konsequenzen, Duncker & Humblot, 2005.

[7] See also Rozen Noguellou and Ulrich Stelkens (eds), Droit Comparé des Contrats Publics / Comparative Law on Public Contracts, Bruylant, 2010.