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How Hungary Came to “Accept” the Global Minimum Tax

March 5, 2024
By 31304

Hungary found itself isolated in the EU when it initially blocked the implementation of the OECD agreement on a minimum corporate tax rate for multinationals. In an article adapted from a paper that was submitted to Pázmány Péter Catholic University Budapest, Tamás Zoltán Wágner (Hungarian Academy of Sciences, 2022) writes that rather than stonewalling the agreement, the government wisely shifted its strategy, enabling it to embrace the deal while maintaining its tax sovereignty and competitiveness.

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Following the October 2021 agreement on a global minimum tax within the OECD framework on base erosion and profit shifting (BEPS), the focus in the European Union shifted to the question of how this should be implemented in national and EU legal systems. This became an issue because member states with low corporate tax rates, such as Ireland and Hungary, feared losing their competitiveness and were critical of the implementation efforts, triggering heated debate.

Hungary initially strongly opposed the implementation of the tax in the EU and anticipated vetoing it if necessary. Later, though, the Hungarian government adjusted its position and focused its efforts on how it could avoid implementing an actual tax increase. In the following, after briefly presenting the rules on the global minimum tax, I will examine whether Hungary’s fear was justified and then analyze the reasons for the change in the Hungarian position, which evolved from initial rejection to a search for a compromise.

Discouraging Tax Planning

Regarding the OECD agreement, it is important to point out that it is a two-pillar solution. The first pillar addresses the largest and most profitable multinational enterprises (MNEs) with a global turnover of more than €20 billion (€10 billion from 2028) and a pretax profitability ratio exceeding 10%. In countries where they sell their products and services and where they have consumers, these companies will need to pay 25% of their profits. By implementing this tax, countries that introduced or planned to introduce a digital tax will abandon it and commit to not introducing it in the future.

The second pillar is the global minimum tax, which aims to ensure that multinationals pay a minimum of 15% on all their profits in each jurisdiction where they have subsidiaries or establishments. According to pillar two rules, it is necessary to examine on a country-by-country basis whether the taxation of a given multinational reaches the effective tax rate. The global minimum tax applies to MNEs with an annual consolidated group revenue of €750 million operating in at least two of the four years preceding the current year and in two jurisdictions. States have the option of including for minimum taxation groups of companies operating in their own territories even if they do not have foreign subsidiaries or establishments. Not subject to the minimum tax, though, are government departments, international organizations, nonprofit organizations, pension or investment funds that are the ultimate parent companies of a group of companies, and the assets held by such entities.

The rate of the global minimum tax is not a nominal but an effective tax rate: only the taxes actually paid matter. Thus, if the effective tax rate of one of the subsidiaries in a given jurisdiction is less than 15%, then an additional tax is levied, to be paid by the parent company or the subsidiary. According to the three-element scheme developed by the OECD, the income inclusion rule (IIR) provides for the imposition of a top-up tax to make up for any difference in the taxes paid, or, if there is no IIR in the relevant jurisdiction, the undertaxed payments rule (UTPR) operates as a backstop to ensure that the tax rate for an MNE group is achieved by prohibiting cost deductions for group members or through similar mechanisms. The third element of the regulation is the subject to tax rule (STTR), a treaty-based rule that allows certain states to tax intra-group payments when the tax rate for such payments is below the minimum rate. This had been prohibited under the double taxation convention.

In the light of the above, it is clear that, contrary to the OECD BEPS Action Plan, adopted in 2013, the global minimum tax does not place emphasis on protecting the tax base but on eliminating the cause of tax planning: its basic philosophy assumes that MNEs will not use tax avoidance techniques if the tax advantage is taken away. It also aims to prevent a “race to the bottom” based on continuous decline in corporate tax rates and to reduce divergences between national tax systems, which also facilitate tax avoidance techniques.

An image generated by Craiyon (https://www.craiyon.com/).

Backlash from Hungarian Officials

Low-tax countries like Ireland and Hungary initially sharply criticized the concept because they feared losing their competitiveness and becoming less attractive to foreign investors. They also complained that the introduction of a global minimum tax would limit their tax policy, since it would essentially force them to raise their corporate tax rates: even if they apply lower tax rates, other states will collect the difference anyway. This fear seemed justified because, as Hindriks and Nishimura showed, the introduction of a global minimum tax would reduce the gap between high-tax and low-tax countries, which would also affect the ability to attract capital: large companies would be less likely to move their profits to low-tax countries.

Overall, countries with low tax rates can expect a decrease in tax revenues, while countries with high tax rates can expect an increase in tax revenues. In the longer term, the loss of a tax advantage could also jeopardize the very existence of tax havens and other preferential tax regimes. For this reason, these countries need to pursue one of the following strategies:

  • Maintain the status quo (for states that do not levy a corporate tax)
  • Raise the corporate tax rate to the level of the global minimum tax
  • Introduce a corporate tax system that applies to all companies
  • Introduce a threshold-based corporate tax system, which means that only companies subject to a global minimum tax must pay the higher corporate tax rate

Another strategy is for the state, in order to avoid an effective tax increase, to include as many types of tax as possible in the effective tax burden. This, in my view, is the best way forward, and it was, in fact, the choice made by Hungary.

Hungary, like other low-tax countries, was initially very skeptical about the global minimum tax. The proposed legislation triggered the following preliminary remarks from governmental officials:

  • “We should avoid a war of competition among tax systems in the global fight against harmful tax competition.”
  • “It is essential to respect the fiscal sovereignty of states regarding the taxation of income generated locally, and profits attributable to real economic activity shall be exempted to the greatest possible extent.”
  • “The situation should be avoided where the regulation penalizes differences between different methods of calculating the tax base instead of low taxation, which could substantially restrict the free movement of capital even between states applying tax rates close to the average.”
  • “A set of rules applicable only to subsidiaries would create a significant competitive disadvantage for capital-importing countries and, in many cases, lead to the relocation of headquarters to low-tax states.

These remarks were later supplemented by criticisms, such as:

  • “This reduces the sovereignty of the Hungarian tax system and would result in a competitive disadvantage for the European Union, which is unacceptable in the particularly sensitive economic situation caused by the Russo-Ukrainian war.”
  • “The Hungarian corporate tax rate (9%) is much lower than that of all our trading partners, which is the cornerstone of the Hungarian economic policy.”
  • “It would endanger hundreds of thousands of jobs in our country and would mean a return to the situation of 2010 in terms of corporate tax.

A Threat to Competitiveness

These comments indicate that the Hungarian government viewed the issue of the global minimum tax from a sovereigntist, tax competitiveness perspective. This was understandable, given the logic of Hungary’s economic policy: the implementation of an actual tax increase would endanger the competitiveness it had enjoyed thanks to low corporate tax rates. At the same time, the Hungarian government was under great pressure to support the adoption of the EU directive. After all, even if it did not introduce a global minimum tax, the tax difference would simply be collected by other governments. In other words, companies operating in Hungary will have to reckon with an increase in the tax burden no matter how Budapest decided, and moreover, by not implementing the tax, the government would be voluntarily forgoing sources of revenue that it could otherwise have claimed.

The situation of the Hungarian government became more difficult by the fact that on September 9, 2022, the EU’s largest economies—France, Germany, Italy, Spain, and the Netherlands—announced that if the EU directive was not adopted, they were ready to introduce the global minimum tax unilaterally. This step would have meant tens of billions of forints in additional tax liability just for German companies operating in Hungary, whose average effective corporate tax rate, due to various tax breaks, barely reached 3%. Hungary also faced concrete pressure owing to the termination of the US-Hungary double taxation avoidance treaty in early July 2022 and the decision of the European Parliament on national vetoes undermining the global tax agreement, also in early July.

Regarding the former, it is worth pointing out that this was not unexpected: even before the Ecofin (Economic and Financial Affairs Council) meeting in June 2022, US Treasury Secretary Janet Yellen warned Hungary to change its position on the global minimum tax or face the termination of the bilateral double taxation treaty. Although the treaty did not expire until January 2024, the United States showed no intention of concluding a new treaty with Hungary. In Tibor Pálszabó’s opinion, the potential implications for private individuals include the following:

  • If they become residents in both countries, their world income would become taxable in both states.
  • Even without multiple residence, they may become liable for taxation in the country of income in situations where they had previously been exempt, that is, a double taxation situation may arise.
  • The conventional exemptions that would have resolved such double taxation issues will be abolished.

In the case of businesses, there will be a negative change mainly in relation to the withholding tax: dividends, interest, and royalties will be subject to a withholding tax of 30% instead of the previous 5%. The Hungarian economy will experience the negative effects even in the short term (such as through a direct tax revenue loss of 70 billion to 80 billion forints due to the reorganization of the investment structure of US companies), but in the long term the situation is more serious: there could be a significant decline in the economy’s ability to attract capital and retain its labor force.

The European Parliament, meanwhile, criticized the unanimity requirement for decision-making in the field of taxation, calling on the European Commission and the Council to find alternative ways for the EU to fulfil its OECD/G20 commitments, such as through “enhanced cooperation,” unilateral implementation by member states, and transition to qualified majority voting. It also demanded that Hungary lift its veto and urged the Commission and member states to block approval of Hungary’s recovery and resilience plan unless all the criteria were fully complied with.

A Shift in Strategy

Based on the above, it was apparent that by the end of 2022 the Hungarian government found itself in a very difficult situation: it was isolated in the EU and risked being lumped together with conventional tax havens. The Hungarian position, which seemed rigid at first, thus gradually shifted to another strategy: including as many domestic taxes (such as the local business tax) as possible in the effective tax burden in order to avoid actually raising the corporate tax. In this respect, negotiations were successful, as Hungary achieved the following goals:

  • The inclusion of the local business tax in the global minimum tax
  • Exemption of real economic activity
  • Simultaneous introduction of rules in all countries adopting the global minimum tax (so that Hungary does not suffer a competitive disadvantage)
  • The likely collection of the tax difference from target MNE groups in the form of differentiated domestic taxes so that there is no need to change the corporate tax rate of 9%.

Subsequently, on December 12, 2022—after Hungary lifted its veto—EU member states reached an agreement on the directive submitted by the European Commission at the end of 2021 to ensure a global minimum level of taxation for MNEs, which entered into force on December 14, 2022.


The example of Hungary highlights that, contrary to initial fears, the introduction of the global minimum tax does not necessarily entail an increase in the corporate tax burden or restrict the tax sovereignty of low-tax countries if other types of domestic taxes (like the local business tax) are included in the effective tax burden. Therefore, the right strategy for the global minimum tax is not rigid resistance, as it can easily lead to international isolation and reputational loss (such as by being branded a tax haven), but to negotiate a compromise so that competitiveness can be maintained even after implementing the global minimum tax.

References

OECD/G20 Base Erosion and Profit Shifting Project. “Statement on a Two-Pillar Solution to Address the Tax Challenges Arising from the Digitalisation of the Economy.” https://www.oecd.org/tax/beps/statement-on-a-two-pillar-solution-to-address-the-tax-challenges-arising-from-the-digitalisation-of-the-economy-october-2021.pdf.

Czoboly, Gergely. “Globális minimumadó bevezetésének lehetséges hatásai a klasszikus adóstruktúrákra” [Possible Effects of the Introduction of a Global Minimum Tax on Classical Tax Structures]. Miskolci Jogi Szemle, 2021/5. (3. különszám).

Nobilis, Benedek. “Globális minimumadó: ez nem csak Magyarországnak fájhat” [Global Minimum Tax: This May Hurt Not Just Hungary]. Portfolio. https://www.portfolio.hu/gazdasag/20210413/globalis-minimumado-ez-nem-csak-magyarorszagnak-fajhat-477960.

Hindriks, Jean and Yukihiro Nishimura. “The Compliance Dilemma of the Global Minimum Tax.” LIDAM Discussion Paper CORE, 2022/13. https://dial.uclouvain.be/pr/boreal/object/boreal%3A259159/datastream/PDF_01/view.

Essid, Colleen. “The Global Minimum Tax Agreement: An End to Corporate Tax Havens?” SLU Law Journal Online, 73. https://scholarship.law.slu.edu/lawjournalonline/73.

Deloitte Insights. “Global Minimum Corporate Income Tax. How Might Countries with ‘Low’ or ‘No’ Taxation Respond?” https://www2.deloitte.com/xe/en/pages/tax/articles/global-minimum-corporate-income-tax.html.

Prinz, Dániel and Eszter Kabos. “Miért van szükség globális társasági minimumadóra?” [Why Do We Need a Global Minimum Tax?]. Qubit. https://qubit.hu/2021/08/02/miert-van-szukseg-globalis-tarsasagi-minimumadora.

Hungarian National Assembly. “Az Országgyűlés 24/2022. (VI. 21.) OGY határozata a globális minimumadó bevezetésére vonatkozó európai uniós irányelv elfogadásának elutasításáról” [24/2022 (VI. 21) Decision of the Hungarian National Assembly Rejecting the Adoption of an EU Directive Introducing a Global Minimum Tax].

Kiss, Rajmund. “Kerékbe tört versenyképesség? A globális minimumadó súlyos kockázatairól” [Competitiveness in Tatters? The Serious Risks of the Global Minimum Tax]. Mathias Corvinus Collegium. https://corvinak.hu/gazdasag/2021/05/19/kerekbe-tort-versenykepesseg-a-globalis-minimumado.

Government of Hungary. “A globális minimumadó jelentené a kegyelemdöfést az európai gazdaságnak” [A Global Minimum Tax Would be a Coup de Grâce for the European Economy]. https://kormany.hu/hirek/a-globalis-minimumado-jelentene-a-kegyelemdofest-az-europai-gazdasagnak.

Pardavi, László. “Néhány gondolat a globális minimumadó történetéről, bevezetésének okairól és lehetséges magyarországi hatásairól” [A Few Thoughts on the History of the Global Minimum Tax, the Reasons for Its Introduction, and Its Possible Impact on Hungary]. In Barna Arnold Keserű, Katalin Szoboszlai-Kiss, and Richárd Németh, eds., Salus Vocalis. Csegöldi indulás - Győri érkezés. Ünnepi tanulmányok Fazekas Judit tiszteletére. Győr, Universitas-Győr Nonprofit Kft, 2023.

Adó Online. “Niveus: Magyarország a globális minimumadóról szóló csatát hamarosan elveszítheti [Niveus: The Battle over the Global Minimum Tax Could Soon Be Lost for Hungary]. https://ado.hu/ado/niveus-magyarorszag-a-globalis-minimumadorol-szolo-csatat-hamarosan-elveszitheti/.

Government of Hungary. “Az Egyesült Államok nyomást akar gyakorolni Magyarországra” [The United States Wants to Put Pressure on Hungary]. https://kormany.hu/hirek/az-egyesult-allamok-nyomast-akar-gyakorolni-magyarorszagra.

Pálszabó, Tibor, Veronika Oláh, and Dániel Bajusz. “USA-magyar adóegyezmény felmondása: mi lesz veletek expatok?” [Termination of the US-Hungarian Tax Treaty: What Will Happen to Expats?]. EY. https://www.ey.com/hu_hu/tax/usa--magyar-adoegyezmeny-felmondasa--mi-lesz-veletek-expatok-.

Dajkó, Ferenc Dániel. “Sérülnek az amerikai-magyar kapcsolatok? – Szakértők a kettős adóztatás felmondásáról” [Are US-Hungarian Relations Damaged? Experts on the Termination of Double Taxation]. novekedes.hu. https://novekedes.hu/interju/serulnek-az-amerikai-magyar-gazdasagi-kapcsolatok-szakertoket-kerdeztunk-mi-varhato-a-kettos-adoztatas-egyezmeny-felmondasa-utan.

European Parliament. “European Parliament Resolution of 6 July 2022 on National Vetoes to Undermine the Global Tax Deal (2022/2734(RSP)).” https://www.europarl.europa.eu/doceo/document/TA-9-2022-0290_EN.html.

Mattiassich, Enikő and Károly Szóka. “Impact of the Introduction of A Global Minimum Tax.” In Mustafa Göktuğ Kaya and Haldun Soydal, eds., International Congress of Finance and Tax. March 10–11, 2023, Konya, Türkiye.

Council of the European Union. “Council Directive (EU) 2022/2523 of 14 December 2022 on Ensuring a Global Minimum Level of Taxation for Multinational Enterprise Groups and Large-Scale Domestic Groups in the Union.” Official Journal of the European Union, L 328, 22.12.2022, pp. 1–58. https://eur-lex.europa.eu/eli/dir/2022/2523/oj.

 

Combatting Sexual Violence in the Metaverse: A Comparative Legal Analysis

May 25, 2023
By 30587

Disturbing reports of sexual assault and harassment in the metaverse have raised questions about how users and society—particularly minors—can be better protected from exploitation and how offenders can be punished. To shed light on this issue, criminal law expert Sou Hee Yang (Waseda University, 2021) used an SRG grant to analyze how various jurisdictions are addressing the problem of sexual violence in the metaverse within the framework of their legal systems.

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The metaverse is “a virtual space that other users can create, explore, and meet without having to be in the same space in real life” (Setiawan et al. 2022). It provides a platform where individuals can adopt diverse personas through their avatars to interact with people from around the globe.

An image generated by using the prompt, "metaverse avatars hanging out together," by Sifted via Starryai (https://starryai.com/app/create).

I had no particular interest in the metaverse, which seemed like a digital realm frequented only by tech enthusiasts, until I came across an online news article recounting a researcher’s claim that her avatar had been sexually assaulted in a metaverse (Soon 2022). I was both intrigued and puzzled by this claim. How is it possible to be sexually assaulted in a virtual world?

So I did some research and discovered that sexual violence does take place on virtual platforms in various ways; examples include groping another person’s avatar, sending unwanted, explicit messages, and approaching minors with the purpose of sexual exploitation (Frenkel and Browning 2021). The range and seriousness of such acts vary, with certain types, such as grooming minors, warranting strict countermeasures (Hinduja 2023).

There are many challenges to punishing acts of virtual sexual violence, however. First, it can be difficult to identify and prosecute the perpetrators, given the borderless nature of the metaverse. Second, sexual violence in the metaverse usually does not involve physical contact and is thus not subject to the same kind and degree of criminal punishment as real-world transgressions. It is important to recognize, though, that cyber violence can cause great psychological harm, leading to depression, anxiety, stress, and post-traumatic stress disorders (Cripps and Stermac 2018).

Being a legal researcher specializing in sex crimes, I was intrigued by these findings and wanted to explore how various countries—namely, the United Kingdom, the United States, and South Korea—are addressing this problem within the framework of their legal systems and whether they had provisions to punish sexual violence in the metaverse. More specifically, I reviewed and compared the laws related to the three most frequent forms of violence: virtual groping, sending unsolicited sexual messages, and making sexual advances toward children. My findings, based on the study, are as follows.[*]

First, users with female avatars often experience virtual groping: that is, the sexual parts of their avatars are touched without consent by another user’s avatar. Punishing such acts can be challenging, though, since sex offenses under criminal law are premised on physical contact (Cho 2022). Virtual reality headsets and haptic gloves already give users a degree of sensory feedback from events in the metaverse (Kim et al. 2022). If technology is further developed to enhance such sensations to a level closely approximating real life, virtual groping may arguably constitute “touching” for the purpose of criminal punishment.

There are two shortcomings to this argument, however, namely, that virtual sensations are still not the same as physical contact and that users can immediately stop unwanted sensations by simply removing their gear. Concerning the latter, though, it is possible for users to experience “tonic immobility”—a state of involuntary paralysis during sexual assault thought to be a natural survival reaction (Kalaf et al. 2017). Further research will be required to elucidate whether victims of cybersex crimes can also experience tonic immobility and, even if so, whether virtual groping would be subject to criminal punishment under British, US, and South Korean law.

A man with a virtual reality headset and controllers by SHVETS Production via Pexels (https://www.pexels.com/photo/a-man-with-a-virtual-reality-headset-and-controllers-7562023/).

Second, a user can be punished for harassing another user in the metaverse by sending sexual messages. In South Korea, if it can be shown that the user made comments to “arouse or satisfy his/her own or the other person’s sexual urges” and may cause “a sense of sexual shame or aversion,” the user can be punished under Article 13 (Obscene Acts by Using Means of Communications) of the Act on Special Cases Concerning the Punishment of Sexual Crimes. In the United Kingdom, acts of harassing someone by sending sexual messages in the metaverse can be punished under Section 1 of the Malicious Communications Act, but only if it can be proven that the user sent “indecent or grossly offensive” messages with the purpose of causing “distress or anxiety” to the user on the receiving end.

In the United States, where freedom of speech is more strongly protected, the threshold for penalization is higher. For example, threatening sexual messages intended to place another user “in reasonable fear for his or her safety” is punishable under Section 653.2 of California’s Penal Code. However, to apply Section 653.2, it also needs to be proven that the user sent the threatening messages with the purpose of “imminently causing that other person unwanted physical contact, injury, or harassment.” This purpose is difficult to prove for most interactions in the metaverse, as they are generally anonymous. The laws demonstrate that making extremely offensive sexual comments in the metaverse may result in criminal sanctions, but the laws vary in their nature, requirements, and purpose.

Lastly, making sexual advances toward children in the metaverse is punishable in the United Kingdom, the United States, and South Korea. For example, a British user can be punished under Section 15A of the Sexual Offences Act 2003 for sending a sexual message to a user under 16 with the purpose of “obtaining sexual gratification.” Moreover, the Online Safety Bill, currently in the committee stage in the House of Lords, if passed, will provide more robust protection against child users in the metaverse (UK Parliament 2022).

Among many forms of making sexual advances to children in the metaverse, asking children to send sexual pictures of themselves is considered a serious offense. For example, in South Korea, a man was arrested on charges of sexually grooming minors when he asked child users to send sexual pictures of themselves upon befriending them through his “charming” avatar and gaining their trust by giving presents to their avatars (Kim 2022). As in this example, the acts of approaching children, building trust, and inducing reliance with the purpose of making sexual advances at them are called “grooming” (Lorenzo-Dus and Izura 2017). Online grooming is a serious problem, particularly in the metaverse, because adult users can use their avatars to make child users believe that they are speaking with a friend their own age and thereby lower their guard. While the laws of the United States vary by state, some form of online grooming is punishable in most states. For example, knowingly seducing or enticing a minor to engage in unlawful sexual conduct can be punished under Florida Statute § 847.0135(3). Approaching children online with intent to meet them or to engage in sexual conduct is considered a more serious crime because such acts put children at real risk of sexual exploitation.

The results of this study indicate three key legal considerations. First, before considering penalization of acts of sexual violence in the metaverse, it is necessary to categorize different forms of sexual violence based on their nature and the severity of harm, both to victims and society. Secondly, it is desirable to enact laws that can at least punish some acts of sexual violence in the metaverse that causes serious harm to the victims, such as grooming of minors. Finally, there should be continued social debate on what kind of sexual conduct warrants punishment under criminal law. For example, in Japan, where I reside, there is an ongoing movement to amend sex crime laws, including the enactment of laws that punish acts of grooming and sharing of sexual images of a victim without consent. One amendment proposal was written with the participation of various stakeholders, including leaders of victim support groups, psychologists, and legal experts (Legislative Council, n.d.). Such active discussion involving various stakeholders is desirable as a means of reaching a social consensus on what the types of metaverse-based sexual violence that should be punished.

This study demonstrates how criminal laws of various countries address sexual violence in the metaverse. In addition to legislative efforts, tech companies are introducing policies to strengthen the safety of their virtual spaces. These are important measures in preventing and managing sexual violence in the metaverse. However, it should be remembered that sexual violence will inevitably manifest in virtual worlds as long as it persists in the real world. Only by addressing the problems of sexual violence in reality can they be resolved in the metaverse.

[*] This study was made possible by an SRG grant in 2022, which allowed me to access the court cases of different countries and to review academic and legal reports and articles related to sexual violence in the metaverse. I was also able to hire two competent research assistants to assist me with legal research in various languages.

References

Cho, S. 2022. “Sexual Assault in Immersive Virtual Reality: Criminal Law Must Keep Up with Technology.” Harvard Undergraduate Law Review, September 6, 2022. https://hulr.org/spring-2022/sexual-assault-in-immersive-vr.

Cripps, J., and L. Stermac. 2018. “Cyber-Sexual Violence and Negative Emotional States among Women in a Canadian University.” International Journal of Cyber Criminology, 12(1): 171. https://doi.org/10.5281/zenodo.1467891.

Crown Prosecution Service. 2023. Social Media and other Electronic Communications, March 17, 2023. https://www.cps.gov.uk/legal-guidance/social-media-and-other-electronic-communications.

Frenkel, S., and K. Browning. 2021. “The Metaverse’s Dark Side: Here Come Harassment and Assaults.” New York Times, December 30. https://www.nytimes.com/2021/12/30/technology/metaverse-harassment-assaults.html.

Hinduja, S. 2023. Child grooming and the metaverse: Issues and solutions. Cyberbullying Research Center, March 21, 2023. Retrieved April 8, 2023, from https://cyberbullying.org/child-grooming-metaverse.

Kalaf, J., E. S. F. Coutinho, L. M. P. Vilete, M. P. Luz, W. Berger, M. V. Mendlowicz, E. Volchan, S. B. Andreoli, M. I. Quintana, J. De Jesus Mari, and I. Figueira. 2017. “Sexual trauma is more strongly associated with tonic immobility than other types of trauma: A population based study.” Journal of Affective Disorders, 215: 71–76. https://doi.org/10.1016/j.jad.2017.03.009.

Kim, D. 2022. 메타버스서 미성년자 11명 성착취물 만든 30대 남성 구속. The JoongAng, April 14, 2022. https://www.joongang.co.kr/article/25063475#home.

Kim, J., Y. Kim, and H. D. Cha. 2022. Study on the sexual crime and criminal regulation in metaverse: Focusing on the direction of revision of the act on promotion of information and communication network utilization and information protection, etc. Contemporary Review of Criminal Law, no.75, 1–33. https://doi.org/10.23026/crclps.2022..75.001.

Legislative Council, Subcommittee on Criminal Law (Sexual Offenses). n.d. Ministry of Justice of Japan. Retrieved April 7, 2023, from https://www.moj.go.jp/shingi1/housei02_003011.

Lorenzo-Dus, N., and C. Izura. 2017. “Cause ur special”: Understanding trust and complimenting behaviour in online grooming discourse. Journal of Pragmatics, 112, 68–82. https://doi.org/10.1016/j.pragma.2017.01.004.

Setiawan, K. D., A. Anthony, N. Meyliana, and N. Surjandy. 2022. “The Essential Factor of Metaverse for Business Based on 7 Layers of Metaverse – Systematic Literature Review.” 2022 International Conference on Information Management and Technology (ICIMTech). https://doi.org/10.1109/icimtech55957.2022.9915136.

Soon, W. 2022. A researcher’s avatar was sexually assaulted on a metaverse platform owned by Meta, making her the latest victim of sexual abuse on Meta’s platforms, watchdog says. Business Insider, June 1, 2022. https://www.businessinsider.com/researcher-claims-her-avatar-was-raped-on-metas-metaverse-platform-2022-5.

UK Parliament (Second Reading, Online Safety Bill). 2022. April 19, 2022. Retrieved April 24, 2023, from https://hansard.parliament.uk/commons/2022-04-19/debates/F88B42D3-BFC4-4612-B166-8D2C15FA3E4E/OnlineSafetyBill.

Teaching Myself to Be a Teacher, Learning How to Be a Student, Educating Others to Educate Themselves

January 23, 2023
By 24051

Rui Caria, a PhD candidate and teacher at the University of Coimbra, describes his personal journey to becoming the teacher that he wished he had had. The journey has led him to create a YouTube channel as well as a new course at the university that addresses the questions of why study and how to study. He draws on literature as a means of bringing to life the concepts that he teaches.

* * *

I

In 2019 I became a teacher and a PhD candidate at the same time. Becoming a teacher didn’t make me jump to the other side of the classroom, it only put me on both sides.

I thought of myself as someone familiar with the side of the student. Not because, at that point, I had six years of university education behind me, but because of the challenges I faced during those years as a student.

Law school had been challenging for me. I entered one of the most demanding faculties in Portugal very unprepared. As a high school student who only studied on the evening before his exams, I suddenly found myself faced with thousands of pages of reading material, hours of lectures by people who didn’t captivate me, and studying things that, as it turned out, I didn’t find that interesting. On top of that, there was no certainty that I could afford the next tuition.

These challenges made me pose many questions regarding education. What is the value of education? What does it mean to be a student? How would this education aid myself and others around me? How could I truly educate myself?

Talking with many of my fellow students throughout, I quickly learned that I wasn’t the only one posing those questions. Many students didn’t know why they were studying. They had to make a choice at 18 years old, did it as best they could, and now found themselves asking if they had made the right one.

These questions never left me. Not after I graduated, not after I did my master’s degree, and not when I became a teacher and PhD candidate. On the contrary, now more than ever, I felt the weight of their importance. I was on the receiving end of the questions and felt the need to be able to give answers. If I didn’t, I felt that I didn’t deserve to be a teacher and couldn’t keep being a student.

From early on, I saw being a teacher as an opportunity to do good; to have a positive influence on the lives of young people. Perhaps it was because, as a young student, I wished someone had done that for me. I wanted to be a teacher capable of offering young students a “why” that would drive them to keep chasing their education to its fullest potential.

Whatever the outcome of my journey might be, I had to better myself and take action: become an agent, rather than a subject, of education.

 

II

I decided that I should be able to teach my students beyond the subjects of my lectures. This meant finding ways in which these subjects related to the world and to individuals themselves. I needed a connection between these realities that was appealing, accessible, and enriching.

Thinking about this, I realized how I had come into contact with a variety of subjects through literature. Stories had made me more interested in philosophy, psychology, history, sociology, and even physics. They did it either by allowing myself to suffer like a character whom chance would never allow me to be or by plunging me into an immersive world that the currents of time would never allow me to swim to.

Why simply write a concept on a blackboard and point at a textbook when you can bring it to life through the words of some of the most eloquent, imaginative, and wise people in the history of the world?

I saw the potential of stories to enrich the way I taught law and the way my students learned. But I also knew it would be difficult to tell students, “Read the subject’s textbook, your notes. . . . Oh! And also, this 400-page novel.” People have smartphones with high-speed Internet and infinite scroll; one must know what he is competing against. Innovation was the answer.

I created a YouTube channel where I read small portions of classical works of literature that touched on topics of law. The videos were small and gave a short explanation of how the specific portion related to a specific concept. Videos were uploaded monthly during the semester and, at the end of each month, students who participated in the project were invited to discuss the ideas of the book and relate them to what was taught in class.

It gave a new depth and life to what we talked about in class. Suddenly, the concept of justice wasn’t just something you read on a textbook but a difficult problem that Aeschylus, the father of tragedy in Ancient Greek theater, posed against the judgment of Athena herself in one of his plays. The death penalty wasn’t just a remote idea, it came to be seen through the eyes of Albert Camus’s character Meursault as he ponders the meaning of truth waiting for the guillotine.

For this project, I was awarded the 2021 Prize for Pedagogical Innovation by the University of Coimbra.

The author holds the plaque of the Prize for Pedagogical Innovation that he received in 2021.


III

I wasn’t completely satisfied after receiving the prize. I had thought carefully about the project and decided it was worthy of pursuit, otherwise I wouldn’t have done it; and it proved to be useful and innovative, otherwise it wouldn’t have been awarded. Still, I came to find its scope limited. I was teaching my students beyond law and pointing them to literature and its ocean of ideas, but there were many more things that I wanted to teach them and couldn’t inside the confines of my lectures on law.

I still saw many of them struggling with their role as university students. I saw lack of motivation born from a sense of uncertainty about the future. I understood that many wanted to learn more and efficiently but didn’t know how to study. For many, as was the case for myself during my graduate years, everything was a question.

I took it upon myself to provide answers as best as I could. I decided to create a full course, for free, open to all the students at the university, designed to answer two big questions: Why study? How to study? I pitched the idea to the vice dean responsible for the development of undergraduate students and got the approval to create and teach the course.

For months, apart from everything else I was doing, I devoted myself to research and thinking, as honestly and as well as I could, about the answers I would give.

I went after the “why.” My approach to the importance of education had always been grounded in the literature that helped me through tough times. Existentialist philosophy had come to frame much of my world view, especially the work of Albert Camus.[1] The idea of gathering strength within yourself in the face of a world that was indifferent to your existence was dear to me. The intuition in me came to be that, in some way, education should serve to make you stronger. On the other hand, the works of Dostoyevsky had made me believe that there was tremendous value in the good acts one can do for people and that the memory of good could sustain you for a lifetime. Education wasn’t only about making you stronger but about making you stronger so you can be good and help other people.

As I read beyond my literary interests and started to look at how models of development relate to education, I came across the notion of the human capabilities approach in the work of Martha Nussbaum, which resonated with my intuition. Education could in fact be conceptualized as a means of developing capacities in individuals that, in turn, would help them raise other individuals and eventually their own society.

The new challenges posed by the demands of writing a PhD thesis had already put me into contact with the “how” of studying. As I read more about it, it became clearer that studying should be done in a way that was both effective and efficient. The tools necessary to study in this way overlapped with the methods of peak performance that were applicable in several other fields. They lead to the best results. But to perform at your peak, changes in your environment and in yourself were required. Habits must be changed, attention must be sharpened, mindsets must be reinforced. And a vision of the future must be kept vivid and clear: that you can forever learn, forever grow stronger, forever be better, for yourself and for others.

I learned about all of these things and taught them all, for the first time, to the several students that attended the first edition of the “Why Study, How to Study” course at the University of Coimbra.

 

 

IV

Creating and teaching a course to students at the university where I studied and now teach was, without a doubt, something I never thought I would be able to do. But it’s one of the most meaningful things I have ever had the honor of doing. Now, I’m glad I had all those doubts as a young man arriving at university. I’m thankful for the suffering that brought them. With time, they transformed from ghosts to guides. I stopped running away from them to start running toward them, and in doing so, I found myself having a journey that I deem worthy of dedicating these words to. One where I had to teach myself to be a teacher, because I wanted to be the one I never had and the one my students deserved. One where I learned how to be a student by never ceasing to ask questions, by not giving up on the hard journey to find the answers. One where I educated others to educate themselves, because I believed there are few greater gifts.

 

[1] I previously wrote about him in another article for Sylff Voices (https://www.sylff.org/news_voices/28458/).


A video of the author talking about the project can be found here: https://www.youtube.com/watch?v=d54F2XdZC4w&ab_channel=UniversidadedeCoimbra

Pursuing an International Strategy to Promote and Protect Indigenous Peoples’ Land Rights in Brazil

November 17, 2022
By 26115

Bruno Pegorari, a 2017 Sylff fellow, has been proactively involved in advocating for the rights of Indigenous peoples, including the Guarani Kaiowá in Mato Grosso do Sul, Brazil. He has contributed a brief article providing an overview of the situation that the Guyraroká community of the Guarani Kaiowá faces in Brazil.

* * *

In 2019, I was very fortunate to be awarded a Sylff Leadership Initiative (SLI) grant to continue my legal work with members of the Guyraroká community of the Guarani Kaiowá Indigenous people and their allies in Brazil. This SLI project helped me to carry out specific legal actions oriented at strengthening the community engagement with international human rights institutions in the face of Brazilian institutions’ evasive responses to the community’s attempts to recover their traditional territory. As a matter of law, the Brazilian Constitution and international treaties protect the right of Indigenous peoples to their traditional lands, among them the Guarani Kaiowá. However, it is important to highlight that this SLI project touched upon only a fraction of the broader political and legal struggle of the Guarani Kaiowá from Guyraroká. In this short article, I introduce some aspects of the Guyraroká Guarani Kaiowá’s battle for their traditional territory and explain why this struggle is not only representative of similar experiences faced by other Indigenous communities but also central to the resolution of the legal problem concerning all Indigenous peoples in Brazil.

 

Dona Miguela Vilhalva, a Guarani Kaiowá, greets the Inter-American Commission on Human Rights Rapporteur for the Rights of Indigenous Peoples Antonia Urrejola during her 2019 Brazil visit. (Source: CIMI 2019)


Guyraroká is part of the Guarani Kaiowá territory located in today’s Brazilian state of Mato Grosso do Sul. Although Guyraroká is not officially recognized as Guarani Kaiowá territory today, its occupation by the Guarani Kaiowá goes far back, to before the arrival of settler colonizers in the nineteenth and twentieth centuries. The Guarani Kaiowá call their territories Tekohá. Guyraroká is a Tekohá, which combines the notion of land and life in a holistic, symbiotic manner. Teko means “mode of living” while há means “physical place.” So, according to Kaiowá cosmology, Tekohá is the land where the mode of living of Guarani Kaiowá takes place. One does not go without the other. The teko is profoundly affected if the há (the land) is taken from them.[1]

During most of the twentieth century, the Brazilian government incentivized settlers to occupy Indigenous lands in the Midwest. During this period, settlers seized Guyraroká and expelled their inhabitants from the land. For many decades, members were banned from their traditional land, which had been turned into monoculture farmlands aimed at export. This massive land expropriation created severe consequences for the Guarani Kaiowá people. For many, the only alternative to ensure survival was to “integrate” into settler society and detach from their former Indigenous identity and territory or to stay around and work for the settlers running their stolen traditional lands under precarious labor conditions.

In the 1990s, the Guarani Kaiowá initiated a movement to take back their stolen territory. In 1999, community members finally reoccupied Guyraroká and brought the Guarani Kaiowá mode of living back to the land. The movement sought inspiration and legitimacy in the Brazilian Constitution.[2] Although anchored in a solid legal foundation, the take-back movement clashed with the economic interests of settler occupants, who had developed a stable agriculture export economy out of Indigenous lands and labor. As a result, the Brazilian Indigenist Agency (FUNAI) initiated demarcation procedures to resolve the issue. If successfully demarcated, Guyraroká would finally return to the community. However, in the final stages of the demarcation, settler landowners filed a lawsuit against FUNAI, claiming that because community members were not physically occupying Guyraroká at the date the Brazilian constitution was enacted (1988), the Guyraroká community and others under similar circumstances were to be deprived of their right of land restitution. The Supreme Court accepted the settlers’ argument in a biased and controversial decision. It ruled that, in the case of Guyraroká, the right to private property should override Indigenous rights to traditional land. Because of this case’s success, many farm owners across the country started to bring legal claims against ongoing Indigenous land demarcation procedures, producing a cascade effect. This is why the Guyraroká case is so important. It represented a large-scale backlash against Indigenous territorial rights that affected the Guyraroká community and many others all over the country.

Because the highest instance of the Brazilian judiciary had failed to protect the inherent land rights of Indigenous peoples, the Guyraroká community, under the guidance of the Guarani Kaiowá Great Assembly (Aty Guasu) and their allies, decided to appeal to international human rights institutions that have a legal mandate to oversee states under its jurisdiction, including Brazil. This is where this SLI project comes into play. The project helped to advance the international action plan to pursue reparations for the harms committed by the Brazilian judiciary against the community (that is, not protecting their land rights). So far, the Inter-American Commission on Human Rights (Washington, DC) has granted a Precautionary Measure to the community based on the rights enshrined in the American Convention on Human Rights, to which the Brazilian government is a party.[3] Among other things, the commission requested that Brazil take measures to stop surrounding farmers from dumping aerial pesticides over the community.

While the case does not reach the Inter-American Court of Human Rights—the institution that holds the legitimate authority to order final, binding reparations to Brazil—the community and its allies continue to advance their international strategy to expose Brazil’s violation of the fundamental land rights of Guyraroká community members.

 

[1] Tonico Benites, “Recuperação dos territórios tradicionais Guarani-Kaiowá. Crónica das táticas e estratégias,” (2014) 100 Journal de la Société des américanistes 100, no. 2 (2014): 229–40. http://www.jstor.org/stable/24606548.

[2] The 1988 Brazilian Constitution switched from the paradigm of assimilation to one of protection and respect of Indigenous distinctiveness through the recognition of their rights. Article 231 recognizes Indigenous peoples’ “social organization, customs, languages, creeds and traditions, . . . as well as their original rights to the lands they traditionally occupy.” The same article also established that “The Federal Union has the responsibility to demarcate [their] lands and to protect and ensure respect for all their property.”

[3] A press release on the commission’s decision is vailable here:  https://www.oas.org/en/iachr/media_center/PReleases/2019/244.asp.

Participation of Communities, Groups, and Individuals in the International Safeguarding Mechanism for the Intangible Cultural Heritage

October 17, 2022
By 28626

Aliki Gkana, a 2018 Sylff fellow, took advantage of an SRA award in 2021 to conduct research on a question related to the field of intangible cultural heritage protection under international law. As well as sharing her findings, she goes on to make suggestions for ways to improve on the framework of the 2003 UNESCO Convention for the Safeguarding of the Intangible Cultural Heritage.

* * *

The safeguarding of the intangible cultural heritage (ICH) appears to be a very interesting and, in my opinion, one of the most challenging areas of contemporary international cultural heritage law, as well as being new and constantly evolving. Following the adoption of the 2003 UNESCO Convention (Convention),[1] which was endorsed by the international community rather quickly in terms of public international law procedures (with already 180 States Parties as of July 27, 2020), important related progressive developments increasingly attract the attention of all stakeholders involved: UNESCO, states, academics, and ICH bearers (interested communities, groups, and individuals).

Photo accompanying the inscription of the Polyphonic Caravan on UNESCO’s Register of Good Safeguarding Practices, 2020. (© Alexandros Lampridis, 2007)

 

The field of ICH attracted my attention very early on during my studies in international law, and my theoretical engagement with it developed in parallel with a previous and manifold engagement in the practice of living heritage—through years of active participation in the Polyphonic Caravan, an institution of Panhellenic and cross-border action dedicated to safeguarding the Epirus Polyphonic Song.[2] These two aspects of my involvement were ideally correlated to deepen my contact with the subject matter of my doctoral research, which is intended to reflect in its theoretical legal analyses a dialectic relationship with the actual circumstances and concerns on the ground.

 

Research Focus and Objectives

Under this prism, my doctoral thesis researches the position of ICH in international law in whole by examining the existing protection framework that governs, defines, and potentially restricts it, as well as the conditions for its evolution at a moment when it is already dynamically developing. It aspires to contribute to ICH protection in relation to “unresolved” legal issues by investigating the limits and “inaccessible” areas of the existent legal framework and to the progress of scientific research in the field by making innovative suggestions for reformation, creative enlargement, and specialization, dealing with existing constraints towards a more functional safeguarding. In this context, its approach uses ICH as a basis for giving prominence to the interactive relationship between international cultural heritage law and other areas of international law, such as human rights, intellectual property, and environmental law, as well as highlighting the field of ICH as an ideal case study for the detection and examination of fundamental public international law issues.

In particular, the issue of participation of communities, groups, and, where applicable, individuals[3] is crucial for the function of the safeguarding system in its whole and is pointed out as one of the prominent topics gaining ground in international discussions[4] at expert and intergovernmental levels. In fact, it constitutes a rather challenging aspect of the Convention’s application, since it directly involves civil society in a mechanism that is functionally addressed to states, trying to compromise the interests of states and peoples over their living heritage expressions.[5] As a result, the said participatory approach to cultural heritage safeguarding initiated by the 2003 UNESCO Convention,[6] which positions the ICH bearers at its heart, could be questioned insofar as relevant state practice disrespects or undermines this role at a national or international level, especially given that the existing protection framework does not contain the necessary legal guarantees.

Photo accompanying the inscription of the Polyphonic Caravan on UNESCO’s Register of Good Safeguarding Practices, 2020. (© Alexandros Lampridis, 2012)

As such, the objectives of my SRA project consisted of the following axes: detection of the legal gaps and deficiencies related to the participation of communities, groups and persons, examination of relevant state practice and possible consequences to communities’ and people’s relationship to their ICH, analysis of the consequent legal as well as social and anthropological questions, study of the emerging contemporary tendencies and perspectives, sharing and exchange of views with active and experienced experts involved in such discussions, and formulation of proposals for alternatives in view of a more effective protection framework for communities, groups and, where applicable, individuals in light of the above.

 

Observations and Proposals

The research led me to collect a series of interesting remarks, positions, and experiences, shared directly by experts and representatives of NGOs and communities involved in various ways in the UNESCO’s safeguarding mechanism for ICH. Interestingly, their positions were often divergent with regards to the central question, depending mainly on the level and nature of their involvement (for example, as “administrators” or “addressees” of the safeguarding mechanism), their background, informed knowledge, and approach to issues of ICH “management” in general. At the same time, the bibliographic research allowed me to collect valuable resources and find contemporary tendencies, practices, and progressive developments, as well as systematize information around the examination of the main subject matter, including in the context of UNESCO’s statutory procedures and relevant scholarly writings.[7]

As a result, the project led to the correlation of practice and theory in detecting the legal gaps of the ICH safeguarding mechanism and formulating relevant proposals as a response. On the one hand, the mechanism could be characterized by the following major deficiencies: absence of specific legal guarantees in favor of communities’, groups’, and individuals’ widest possible participation in the Convention’s implementation and active involvement in the management of their ICH,[8] inclusion of “weak” and “loose” legal obligations promoting only a best-effort approach, and absence of an enforcement tool ensuring states’ compliance with even these loose obligations apart from the periodic reporting process.[9] By extension, some of the major questions that were highlighted in the course of the research project and would need further examination are whether communities are at all invited or encouraged to participate in state actions for their ICH’s safeguarding, if they or their ICH are misrepresented or marginalized, if their involvement is full and direct or limited and canalized, and how their participation and consent in the nomination process are measured.[10]

Photo accompanying the inscription of the Polyphonic Caravan on UNESCO’s Register of Good Safeguarding Practices, 2020. (© Alexandros Lampridis, 2019)

On the other hand, the association of the personal views of the people involved with the more theoretical analyses permitted an overview of not only the legal but also the social and anthropological consequences related to the possibly improper function of the UNESCO’s system in question. It is notable that, in some cases, the identification of ICH elements and their communities is considered fundamental when it comes to which and whose ICH can “reach” protected status under the UNESCO mechanism, something that is left completely at the states’ discretion and may inevitably raise political or other social issues. And this becomes especially apparent during the procedure of nomination for inscription of elements on the ICH National Inventories or the Convention’s Lists,[11] when problematic policies of States Parties can often instrumentalize ICH or favor conflicts over ICH’s “ownership” and “misappropriation,” even within the same communities and groups of people.

The following could be some proposals for ameliorating the system’s function in favor of a more meaningful participation of communities, groups, and, where applicable, individuals in it, aimed at filling the systemic gaps and deficiencies and responding to the concerns raised: the positive use of the international human rights protection mechanism for more effectively protecting ICH bearers and their relationship with their ICH, and the reinforcement of a human rights-based approach within the existing UNESCO system that could ensure the respect of the Ethical Principles for Safeguarding ICH and that could be translated into concrete measures, such as the recognition of an enhanced role of civil society actors, including but not limited to the ICH NGO Forum, to act in an advisory capacity to the ICH Intergovernmental Committee, the provision of possibilities for communities and persons to directly address the Committee, as well as the possible adoption of other new rules and procedures in this direction.

Photo accompanying the inscription of the Polyphonic Caravan on UNESCO’s Register of Good Safeguarding Practices, 2020. (© Alexandros Lampridis, 2018)

In conclusion, the research that I conducted with an SRA award offered the opportunity to focus in particular on the critical questions mentioned above, highlighting the role that the progressive development of international law could play in favor of respect for an enhanced active role of communities and their members in the evolution of the 2003 UNESCO Convention’s protection framework and in view of its future implementation.

 

[1] See the UNESCO Convention for the Safeguarding of the Intangible Cultural Heritage, which was adopted in Paris on October 17, 2003, and entered into force on April 20, 2006: https://ich.unesco.org/en/convention (last accessed May 31, 2022).

[2] For more information on the Polyphonic Caravan, which was the first-ever proposal from Greece for UNESCO’s Register of Good Safeguarding Practices in the field of ICH—one of the three international lists of the 2003 UNESCO Convention—and was inscribed on the Register in 2020, see: https://ich.unesco.org/en/BSP/polyphonic-caravan-researching-safeguarding-and-promoting-the-epirus-polyphonic-song-01611 (last accessed May 31, 2022).

[3] See the reference by UNESCO on the involvement of communities, groups, and individuals: https://ich.unesco.org/en/involvement-of-communities-00033 (last accessed May 31, 2022).

[4] Read about the interesting topics discussed at an expert meeting dedicated to community involvement in safeguarding ICH that took place in Tokyo, Japan, a while before the Convention’s entry into force, as well as its conclusions, here: https://ich.unesco.org/en/events?meeting_id=00015 (last accessed May 31, 2022).

[5] For a more thorough analysis, read my article, “Peoples’ Heritage or States’ Heritage? Sovereignty in the UNESCO Mechanism for the Safeguarding of Intangible Cultural Heritage,” ESIL Papers Series, 2020, available at SSRN.

[6] The Convention recognizes the bearers’ important role as well as inherent connection to their ICH. See for example the Convention’s preamble, paragraph 6, article 2, paragraph 1, article 11(b), and article 15.

[7] An updated list of 116 research references related to the theme of “community participation” can be found in the 2003 Convention Research Bibliography: https://ich.unesco.org/en/2003-convention-and-research-00945 (last accessed May 31, 2022).

[8] See the States Parties’ commitments as reflected in a series of provisions within and beyond the conventional text: “UNESCO Operational Directives for the Implementation of the Convention for the Safeguarding of the Intangible Cultural Heritage,” as amended (2020), paragraphs 24, 79–99, 157(e), 160, 171, 176, 185, 186, and 189, https://ich.unesco.org/doc/src/2003_Convention_Basic_Texts-_2020_version-EN.pdf; and “Ethical Principles for Safeguarding Intangible Cultural Heritage,” adopted by the ICH Intergovernmental Committee in 2015, https://ich.unesco.org/en/ethics-and-ich-00866 (last accessed May 31, 2022).

[9] See more at https://ich.unesco.org/en/periodic-reporting-00460 (last accessed May 31, 2022).

[10] The “free, prior and informed consent” of the communities, groups, and individuals is one of the most discussed prerequisites for every inscription on the Convention’s Lists and should in principle be ensured by the state at every stage of policy or measures’ implementation. See more on the inscription criteria at https://ich.unesco.org/en/forms; see more on the Lists and the inscribed elements by each State Party at https://ich.unesco.org/en/lists (last accessed May 31, 2022).

[11] Read about the very interesting discussions held in the context of the ongoing global reflection on the Convention’s listing mechanisms, which may in the near future lead to revision of the Convention’s Operational Directives, here: https://ich.unesco.org/en/global-reflection-on-the-listing-mechanisms-01164 (last accessed May 31, 2022).

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.

* * *

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.

*  *  *


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.