Edmund Clark uses photography, film, found imagery, and text to explore links between representation and politics. Clark’s work has been exhibited internationally at the Imperial War Museum, London, International Center of Photography Museum, New York, Zephyr, Reiss-Engelhorn-Museen, Mannheim, Huis Marseille Museum, Amsterdam, Houston Center for Photography, Texas, Saatchi Gallery, London, and Imperial War Museum North, Manchester. His work has been acquired for national and international collections, such as the Victoria and Albert Museum, National Portrait Gallery, the Imperial War Museum, and the International Center of Photography Museum. Clark was awarded the Royal Photographic Society Hood Medal for outstanding photography for public service in 2011 and made an honorary fellow in 2018. He was shortlisted for the prestigious Prix Pictet 2013 for his series Guantanamo: If the Light Goes Out.  Clark is Reader in the Political Image at the London College of Communication, part of the University of the Arts London, where he teaches on the MA Photojournalism and Documentary Photography course. Gabriella Kardos: Before we delve more deeply into the project you did at HMP Grendon, ‘In Place of Hate’, could you talk briefly about your art practice in general?     Edmund Clark : I am interested in linking history, politics, and representation. My work is research-based and combines a range of references and forms including bookmaking, installations, photography, video, documents, text, and found images and material. Projects often take a long time from idea initiation, research, and making, to dissemination in different forms across various platforms. Two broad subject areas are 21st-century conflict and criminal justice and incarceration. Recurring themes are exploring systems of power and control and unseen processes and experiences. Specific conflict subjects have included: the detention camps at the US Naval Base, Guantanamo Bay, Cuba; extraordinary rendition and the CIA secret prison program; and the use of control orders by the UK government. I have made two bodies of work about experiences of incarceration in the UK, including nearly five years as artist-in-residence in HM Prison Grendon, Europe’s only wholly therapeutic prison for violent and sexually violent offenders. Fig 1. End of a Prison Wing © Edmund Clark GK: You spent a number of years as an artist-in-residence at HMP Grendon, known to be very different from other prisons. Men who are already serving time apply to go there to undergo an intense process of group therapy and self-analysis, in an attempt to understand their own past and what led them to the crimes they committed. What brought you to this prison and the decision to dedicate an important part of your life to this work?

Carved into the stone of the ancient temple of Apollo at Delphi was the injunction to ‘know thyself’. Without such knowledge we are tossed this way and that by forces we neither suspect nor understand. Knowing ourselves helps explain our predicament; and doing so is greatly aided by understanding an aspect of the way in which the brain constructs the world.   I believe we have adopted a limited vision of a very particular type, and precisely because it is limited we cannot see that it is limited. We no longer seem to recognise what it is we do not know, what our way of being in the world is pushing out of our lives and out of our world. To understand what is going on we need a breadth of view that is increasingly rare. It is the possibility of this that I intend to explore here today.   Let me ask you this. Do you think there is a connexion between realism, the appreciation of uniqueness, a capacity for understanding melody and harmony, an aptitude for appreciating time, a sense of humour, the ability to read body language, to sustain attention, and the fight-or-flight mode; or on the other hand between a talent for manipulation, a givenness to literalism, to theory at the expense of experience, unreasonable optimism, and a preoccupation with detail, as well as a loss of a sense of the living body, with in its place a focus on body parts? Perhaps not. Yet I assure you there is such a connexion in either case. It is rooted deep in us, and it is quite coherent once one comes to understand what underlies the pattern.   My reason for starting here is to introduce a body of work generated over three decades and published in two long books, The Master and his Emissary: The Divided Brain and the Making of the Western World ,[1] and The Matter with Things: Our Brains, Our Delusions and the Unmaking of the World .[2] In these books, I examine critically and in depth the matter of hemisphere difference, and its important meaning for our lives. As you can see from the deliberately random selection of respectively right and left hemisphere tendencies above, the distinction is not the simple one that many might have heard, and which should be unceremoniously buried. It is not at all the case that the left hemisphere is unemotional and dependable, whereas the right hemisphere is flighty and fanciful. If anything the contrary is the case.   But that a question has been wrongly answered does not invalidate the question. Rather this should, in my opinion, invite further exploration. Consider these facts: the brain, an organ the power of which consists solely in making connexions, is massively divided down the middle—why? Moreover it is asymmetrical in almost everything that can be measured, at many levels, in both its structure and function—why? Not only that, but the band of fibres that connects the hemispheres at their base, the corpus callosum, is getting proportionately smaller, not larger, over evolution—and is, in any case, to a large extent inhibitory in function. Again: why? Could it be that two aspects of brain function are being kept apart ?   Unfortunately I cannot spend time on the evidence here; for one thing, there is a great deal of it, and it requires to be examined at length. It is laid out for that purpose in the two long books I have mentioned. I am going to go straight to a characterisation of some of the core findings, so please forgive me if these are lacking in finesse: to some extent that is inevitable for present purposes, as I’m sure you will understand.   In a nutshell, each hemisphere has evolved, for classical Darwinian reasons, to pay a different kind of attention to the world. When I saw this, I have to admit that the full import of the distinction did not immediately dawn on me, because I had been trained in the cognitive science paradigm that saw attention as simply another cognitive ‘function’. But the nature of the attention we pay is of critical importance. It creates and moulds the only world we can know.   The left hemisphere has evolved to pay narrow-beam attention, focussed on a detail that we already know and desire, and intent on grabbing and getting, whether it be something to eat or to use in some other way. In a word, the left hemisphere exists in the service of manipulation. The right hemisphere, meanwhile, is on the lookout for everything else that is going on while we are manipulating: for mates, conspecifics, offspring—and predators, so as not to be eaten while eating. Its attention is broad, sustained, coherent, vigilant, and uncommitted as to what it may find: the exact opposite of that of the left hemisphere. In brief, the right hemisphere is in the service of understanding the contextual whole, which is nothing less than the world. And context changes everything. The difference, then, is not, as used to be supposed, to do with what each hemisphere ‘does’—as though it were a machine—so much as the manner in which it does it—as though it were part of a person. The hemispheric difference in attention is beyond dispute: indeed, it is universally attested. And since the nature of attention also indisputably changes what it is that comes to our attention, such a difference logically cannot but lead to two different phenomenological worlds. Hence my belief that attention is a moral act. It helps form both us and the world we come to know.   What are these two worlds like?   Very briefly, if crudely, these worlds could be characterised like this. In the case of the left hemisphere, the world is simplified in the service of manipulation: it is made of isolated, static ‘things’; things moreover that are already known, familiar, predetermined, and fixed; they are fragments, that are importantly devoid of context, disembodied, and meaningless; abstract, generic in nature, quantifiable, fungible, mechanical: ultimately bloodless and lifeless. This is indeed not so much a world as a re-presentation of a world, which means a world that is actually no longer present, but reconstructed after the fact: literally two-dimensional, schematic, theoretical. Not in fact a world at all: more like a map. Nothing wrong with a map, of course, unless you mistake it for the world. And here the future is a fantasy that remains under our control. The left hemisphere is unreasonably optimistic and fails to see the dangers that loom.   In the case of the right hemisphere, by contrast, there is a world of flowing processes, not isolated things; one where nothing is simply fixed, entirely certain, exhaustively known or fully predictable, but always changing, and ultimately interconnected with everything else; where context is everything; where what exists are wholes, of which what we call the parts are an artefact of our way of attending; where what really matters is implicit; a world of uniqueness, one where quality is more important than quantity—a world that is essentially animate. Here the future is a product of realism, not denial. This is a world that is fully present, rich and complex, a world of experience, which calls for understanding; not the map at all, but the world that is  mapped. The emotional timbre here is more cautious, and in general more realistic.   We need both of these ‘worlds’ to work together, but also independently: hence the need for connexion and separation. Naturally we are not aware of this disjunct, because these worlds are combined at a level below our awareness. We become aware only after an accident of nature, such as a stroke, tumour or injury; or after commissurotomy, the so-called ‘split-brain’ operation; or if one hemisphere at a time is experimentally suppressed. Then they may become suddenly, vividly, present to us. Yet, because these two worlds have mutually incompatible properties, when we come to reflect self-consciously, and to rationalise about what we find, we are forced, by the requirement for consistency, to choose between the pictures of the world they offer. This is why, as AN Whitehead observed, a culture is in its finest flower before it begins to analyse itself.[3] Once our lives become very largely mediated by self-reflexive language and discourse, as in our postmodern world they are, the explicit stands forward and the implicit retires. Yet almost everything that really matters to us—the beauty of nature, poetry, music, art, narrative, drama, myth, ritual, sex, love, the sense of the sacred—must remain implicit if we are not to destroy its nature. The attempt to make the implicit explicit radically alters its nature: we can no longer rely on the wisdom that comes from these all-important but hidden sources, from closeness to the long tradition of a society, to nature and to the sacred, to sophisticate our understanding. In fact we see these not as irreplaceable guides to truths deeper than those that science can encompass, but as lies. Possibly entertaining lies, but lies nonetheless. We begin to see only the self-created, self-referring world according to the left hemisphere. We go for the machine model: reductive materialism. And the consequences are all around us.   Unfortunately the two hemispheres are not equally veridical. In terms of our ability to apprehend —take hold of and use—the world, the left hemisphere is superior; but in terms of our ability to comprehend the world, the right hemisphere is superior. In each of what one might call the portals to understanding—attention, perception, judgment, emotional and social intelligence, cognitive intelligence (that is, IQ), and creativity—the right hemisphere is so much superior that the left hemisphere on its own has been repeatedly described as frankly delusional. That is not a rhetorical expression: denial of the facts and delusional beliefs are far commoner in association with damage to the right hemisphere—and consequently dependence on the left hemisphere—than the reverse. On its own the left hemisphere confabulates, makes up stories so as to fit with its beliefs: it will frankly insist that a paralysed limb is unaffected, or if challenged deny that the offending appendage belongs to the subject at all. Unlike the right hemisphere, which sees more than one angle, and has for this reason been called by VS Ramachandran ‘the devil’s advocate’, the left hemisphere never doubts that it is right.[4] It is never wrong and never at fault: someone else is always to blame.   Furthermore, in what I take to be the four important onward paths towards truth—science, reason, intuition, and imagination—though both hemispheres contribute, the crucial part in each case, including in science and reason, is played by the right hemisphere, not the left.   Our predicament is that we now live in a world, the understanding of which is largely limited to that of the inferior left hemisphere. Some signs of this include: our inability to see the broader picture, both in space and in time; the way in which wisdom has been lost, understanding reduced to mere knowledge, and knowledge replaced by information, tokens, or representations; the loss of the concepts of skill and judgment, which are the products of experience; the divorce of mind and matter, resulting in a strong tendency to simultaneous abstraction and the debasement of matter to mere , lumpen matter, there for our exploitation; an exponential growth of bureaucracy and administration; everywhere the proceduralisation of life; the reduction of justice to mere equality; a loss of the sense of the uniqueness of all things; the supplanting of quality by quantity; the abandonment of nuance in favour of simplistic ‘either/or’ positions; the loss of reasonableness, which is replaced by rationalisation; a complete disregard for common sense; the design of systems, not for humans, but to maximise utility; a growth of paranoia and pervasive mistrust—for if all is not under its control, the left hemisphere becomes anxious, and projects its anxiety outwards onto others. Nonetheless, we play the passive victim and abjure responsibility for our own lives. In addition, I might point to the rise of anger and aggression in the public sphere: the destruction of social cohesion, and its replacement by angry warring factions. Like almost everything that used to be said about hemisphere differences the idea that the left hemisphere is unemotional is wrong: the most highly lateralised emotion is anger, and it lateralises to the left hemisphere. And there are more indications, but for today’s purposes I will stop here.   In the second part of The Master and his Emissary , I traced the main turning points in the history of ideas in the West and concluded that three times we have seen enacted a certain pattern. First there is a sudden efflorescence of everything that comes from the proper working together of the two hemispheres in harmony. There then follows a stable period for a few hundred years at most; and soon a decline, after which the civilisation eventually crumbles under its own weight. I trace this pattern beginning in the Greek world around the sixth century BC; in the Roman world around the end of the Republic and the beginning of the Empire; and in the modern world with the Renaissance. In each case it is apparent that the vitality and harmony of a flourishing culture is lost as in due course it overreaches itself, becomes less creative, more and more sclerotic, unimaginative, over-administered, over-hierarchical—and power-hungry. There is a coarsening of values. Where goodness, beauty, and truth had once been the guiding values, power, the need to control, holds sway.   I am sometimes asked why, if the right hemisphere is more intelligent and by a long way more insightful than the left, this progression is always leftwards. It is a good question. In brief there are a handful of reasons.   First, and most obviously, the left hemisphere view is designed to aid us in grabbing stuff. It controls the right hand with which most of us do the grabbing. As such it is seductive—not to say addictive.   Second, the left hemisphere view sees a very simplified schema of the world and offers simple answers to our questions. Its mode of thinking prizes consistency above all, and offers the same mechanistic model to explain everything that exists. When reductionist thinking encounters a problem in reconciling apparent irreconcilables—for example, matter and consciousness—it simply denies that one element or the other exists. That’s very convenient.   Third, the left hemisphere’s world view is easier to articulate. Though language is shared between hemispheres, speech is almost always confined to the left: the right hemisphere has literally no voice. And the map is ipso facto vastly simpler than the complex terrain that is mapped. Almost everything that really matters cannot be found there or in the banality of discursive prose.   Fourth, importantly there is, or should be, always an appeal from a theory back to the empirical evidence. If you like, the left hemisphere has a theoretical model; the right hemisphere looks out of the window to see if the model corresponds with experience. Since the Industrial Revolution, and particularly in the last fifty years, we have created a world around us which, in contrast to the natural world, reflects the left hemisphere’s priorities and its vision. What we see around us now—looking out of the metaphorical window—is rectilinear, manmade, utilitarian, each thing ripped from the context in which it alone has meaning. And for many, the two-dimensional representations provided by TV screens and computers have come largely to supplant direct face-to-face experience of three-dimensional life, in all its complexity.   Fifth, built into the relationship between the hemispheres is that they have a different take on everything— including on their own relationship . Essentially the right hemisphere tends to ground experience; the left hemisphere then works on what is offered to clarify, ‘unpack’, and generally render the implicit explicit; and the right hemisphere finally reintegrates what the left hemisphere has produced with its own understanding, the explicit once more receding, to produce a new, now enriched, whole. The left hemisphere’s contribution, then, is valuable, but must come at an intermediate stage. Problems arise when this is treated—as it now often is—as the end stage. Analysis is a valuable tool, but breaking things down must  be followed by an attempt to understand the whole once more. Unfortunately the left hemisphere is unaware of what it is missing .  It cannot see the Gestalt , the ultimately indivisible whole. Therefore it thinks it can go it alone.   Sixth, a culture that exemplifies the qualities of the left hemisphere’s world attracts to itself, in positions of influence and authority, those whose natural outlook is similar, especially in the areas of science, technology, and administration which have an undue importance in shaping contemporary life. They then make us more like themselves. My worry is not that machines will become like people—an impossibility—but that people are already becoming more like machines.   Finally, I have already referred to the problem that a civilisation that is increasingly cut off from its intuitive life relies more heavily on exchange of explicit ideas in the public forum. Here, though truth is manifestly complicated and many-layered, an awareness of inherent ambiguities, and a capacity for seeing both sides of a question, is no longer considered a strength. The right hemisphere’s view is multifaceted and already takes into account the left hemisphere’s point of view; this virtue makes it immediately vulnerable to the charge of inconsistency, and it is therefore liable to be dismissed.   I believe it is the left hemispheric view of the world, intellectually jejune and morally bankrupt as it is, that has resulted in what has been called the metacrisis: not just the odd crisis here and there, but the despoliation of the natural world; the decline of species on a colossal scale; the destabilisation of the climate; the destruction of the way of life of indigenous peoples; the fragmentation and polarisation of a once civilised society, with escalating, not diminishing, resentments on all sides; an escalating, not diminishing, gap between rich and poor; a surge in mental illness, not the promised increase in happiness; a proliferation of laws, but a rise in crime; the abandonment of civil discourse; a betrayal of standards in our major institutions—government, the BBC, the police, our hospitals, schools, and universities, once rightly admired all over the world—which have all become vastly overweighted with bureaucracy, inflexible and obsessed with enforcement of a world-view that is in flat contradiction to reality; and the looming menace of totalitarian control through AI. These aspects of the so-called metacrisis have a multitude of proximal causes: economic, political, social, psychological, technological, and so on. But beneath and beyond that, each manifests, within  those realms, aspects of the left hemisphere’s dysfunctional view of the world.   The very thing that originates the problem also militates against seeing the problem. Seeing the wider picture—a necessary prelude to understanding—is now increasingly disfavoured, and as a consequence the crises I have referred to are often seen as isolated pieces of bad luck. But they are not: they could have been, and were by some, predicted. The metacrisis is the predictable outcome of a complete failure to understand what a human being is, what the world is, and what the one has to do with the other. And all this is the sort of thing the right hemisphere is far better able to understand than the left.   The rightful Master, the right hemisphere, has been subjugated by his emissary or servant, the left. In an entirely predictable parallel, we have become enslaved by the machine that should be our servant, as so many have predicted since the time of Goethe: we cannot say we were not warned. Even physics now teaches us that the mechanical model of the universe is mistaken. But because of our success in making machines, we still imagine that the machine is the best model for understanding everything we come across. We ourselves, our brains and minds, our society, and the living world are now supposed to be explained by the metaphor of the machine. Yet only the tiniest handful of things in the entire known universe are at all like a machine: namely the machines we made in the last few hundred years. Machines, unlike life and all complex systems, whether animate or inanimate, are linear and sequential; are put together, part by part, from the ground up; and can be switched on and off at will. Their default status is stasis, not flow; they are not resonantly embroiled with their environment; they have precise boundaries; their parts do not change structure and function as the whole evolves—not least because in a machine the whole does not evolve; and they are utilitarian constructs in service of the power of their maker. None of this applies to life—nor does it to anything else in the universe. The brilliant mathematician and biophysicist Robert Rosen, in his book Life Itself , demonstrates just how unlike machines organisms are.[5] He further argues that the best way to understand all naturally occurring systems—which are never merely complicated, but complex, and therefore never fully predictable—is as organisms, whether we choose to see them as alive or not. And that’s before one gets to consider the neglect of our emotional, moral, and spiritual nature, which is at the core of being human.   We seem to have been seduced into thinking we understand everything, and what’s more can master it and mould it, like a machine, so as to provide a future that will benefit mankind. That this is a malign fantasy becomes plainer with every passing day. Those with grand schemes to improve humanity have caused misery on an almost unimaginable scale by their narcissism, cruelty, and wilful blindness. In psychology there is something called the Dunning-Kruger effect, which tells us that the less people know, the more they think they know. It’s hardly rocket science, I admit, but it is worth bearing in mind.   Instead of seeing all things as processes, running organically from the past to the future across time, and spreading out across the world through space, like water finding its way across a landscape, we see ourselves and the world as composed of static slices—here and now—compartmentalised in a way that conforms to the modus operandi  of the left hemisphere. A world of meaningless bits. We owe nothing to, and can learn nothing from, history—or so we believe. We owe nothing to, and need leave nothing to, posterity. We turn a blind eye to the inevitable impact of our rapacity on more humble and more stable ways of life that have stood the test of time better than ours. We neglect the importance of context: we believe we are right, and that one size fits all, justifying the imposition of vast global bureaucratic structures, not to say wars, so as to impose our thinking on cultures far different from our own. Equally we arrogantly critique our ancestors for not sharing the idiosyncratic view of the world we have generated in the last 20 years and which, we believe, must now be forced on all, whatever their reasonable misgivings. And we treat people not as unique living beings but as exemplars of a category.   One aspect of this is the virtual machine known as bureaucracy. Famously Hannah Arendt referred to the banality of evil.[6] One of the most disquieting aspects of the Nazi regime was its chilling bureaucracy: mind-numbing evil was committed by people who were, for the most part, not conventional monsters but were simply following the ordained procedures: real people and real life had been almost wholly obscured by pieces of paper, and the recording of numbers. After the war, Theodor Adorno saw developing around him what he called die verwaltete Welt —the administered world, in which everything was controlled, proceduralised, and devitalised.[7] Inevitably at that point in history this could not be separated from the evil that was Nazism; but Adorno could see that it was much more than that. Nazism was at least as much a symptom  of a new mentality as its cause, a mentality of total control that had taken root in the form of a self-legitimising bureaucracy, the roots of which lay in the past. He quoted the mid-nineteenth-century Austrian writer Ferdinand Kürnberger: ‘life no longer lives ’.[8] Who does not recognise with a chill this diagnosis of the modern predicament? And Adorno points out that it is not even the triumph of the logical—since administration serves to rationalise the irrational: which explains why its workings and outcomes are often deeply unreasonable and deeply damaging.   The cancerous growth of more and more elaborate, and more and more expensive, bureaucracies in the worlds I particularly know—hospitals and universities (but the same could be said of government, schools, and the police)—is an inevitable and dangerous consequence of the worldview we have adopted. The other, if possible still more dangerous, expansion is that of AI. Bureaucracy and AI go hand in hand, enlarging the empire of the left hemisphere, and making possible, if not inevitable, in the near future, almost total control of the populace by any regime, however malignant.   As we broaden our view, it becomes apparent how much the metacrisis can best be seen as a war on nature and a war on life. This, my friends, is the reality we face. Why on earth should such a suicidal war come about? There are three reasons that spring to mind. One is that the left hemisphere, which makes us what Benjamin Franklin called the ‘tool-making animal’, thinks like a machine, and has therefore exported machine-like thinking into our environment everywhere. Nature and life are therefore ultimately an impediment. The second is that the left hemisphere really only understands its own representations, what it itself has made, and given to itself. Nature and life are therefore ultimately incomprehensible. And the third, and most important, is the resentfulness of a mind that believes it understands and can—and what’s more should— control all it surveys. Here nature and life are a rebuff to its power, a rebuff which cannot be tolerated. The German artist George Grosz produced a shockingly vivid expression of this mindset as he contemplated Europe before the Second World War, entitled ‘I shall extinguish everything around me that restricts me from being the Master’.   The contemporary fantasy that we can be whatever we want and do whatever we want is a cruel travesty of the truth: this was never true and never could be. It is the product of a culture of narcissistic fragmentation. Ironically we have invented new impediments to its fulfilment. We now live in a world in which you cannot speak or act until you have put each word before a humourless inner tribunal, which is ready to say no to everything you want to say or do. I am of course a boring old stick, but I feel so sorry for young people now—whatever happened to the spontaneous act, the sense of joie de vivre , to the movement of the spirit out of sheer exultation? Even an impulse to visit a gallery soon runs into the need to have booked weeks ago using an app. And that’s just getting into a gallery: what about negotiating the numberless hazards of a date? Life no longer lives.   Wisdom, skill, judgment, intuition, and even understanding—all to be gained only from a life well-lived— have been sidelined in favour of machine-like algorithms that stifle true thought.   The assault on life continues. As far as a mechanical system is concerned, human beings must be dispensable and wholly interchangeable; in fact, despite the rhetoric, true  diversity is not to be tolerated. Imaginative eccentrics lose their jobs. Humans must have no allegiances which might conflict with their duty to fit into their slot. Thus it is that we have seen concerted attacks on the idea that there are differences between men and women; attempts to brainwash children; attacks on family and kinship, with their rightful claims on loyalty; on the professions, whose expertise must be replaced by blind rule-following, and their codes of ethics, which a machine cannot understand and which is therefore replaced by the pretence that teachers, doctors, and priests are just providing a service to consumers, rather than embodying what are ultimately sacred duties. Indeed that anything should be sacred is an affront to the power-hungry left hemisphere-dominated mind: belief in a divine cosmos is seen as standing in the way of whatever society the machine hurtles us towards. Milton saw it all. Lucifer the Bright cannot bear the imputation of anything higher than he. And the very word society reminds us that no properly functioning society is mechanistic. So we see social cohesion dissipate and living traditions erased: in their place fragmentation, the stoking of resentment, and the rise of aggression. This in turn is deemed to require what de Tocqueville presciently described as a ‘network of small complicated rules’ that he foresaw would come to strangle life itself.[9] Once the integrity founded in an intuitive moral sense is lost, a society becomes like a building that has lost its integrity, and needs to be shored up with evermore scaffolding. Now there has to be a law for everything—yet crime escalates.   Why, when we see how devastating this process can be, do we carry on promoting it? The physicist David Bohm reflected on a phenomenon he called ‘sustained incoherence’, characteristic of what he called ‘thought’, the thought processes we now know to be typical of the left hemisphere.[10] What he meant was that on seeing incoherence it would be intelligent to stop, look for the cause, and change tack. But he noticed there was a reflex defensiveness in ‘thought’ that leads instead to obstinate continuation. In other words the left hemisphere, above all else, does not  want to hear why it might have got things wrong.   I see widespread evidence of this sustained incoherence in corporations, governments, health systems, and education—everywhere that management ‘culture’ holds sway—that when things go wrong it is never that we have been travelling in the wrong direction, or have gone too far in what may once have been the right direction; it’s always that we have not gone far enough. This links to the Dunning-Kruger effect: the less you know, the smarter you think you are. But a further finding by Dunning and colleagues reinforces the relationship with the left hemisphere mindset, because of its preference for simple linear algorithms and procedures that, it believes, ‘logically must’ lead to a certain outcome. Those who have bought into such procedures think they must be in the right, even when the outcome ought to compel them to the opposite conclusion. Psychological experiments show that once they are committed to their theory of how things work, drawing attention to its obvious failure in the real world leads not to a flicker of doubt, but to a rise in confidence and redoubled efforts along the same line.   I’m sure we can all think of many such dead ends in the world around us, but I want to refer to just one here: the squandering of trust. This has the distinction of being at the same time supremely important and almost completely ignored. Truth and trust, words which come from the same root, naturally go together. One cannot have trust in a society where there is no truth; and one cannot be true to a society in which there is no trust. As Confucius told his disciple Tzu-kung, for a stable society a ruler needs three things: weapons, food, and trust. If he cannot hold all three, he should forgo weapons first, and food next; for ‘without trust we cannot stand’. Trust costs nothing but the time to build it, and once built it is a fantastically efficient way for any human enterprise, to operate. But it is easy to lose. There is a Dutch proverb: ‘trust arrives on foot, but departs on horseback’. The massive complex of administration and AI do nothing to promote a society of trust, but actively undermine whatever is left of it at every turn.   Being trustworthy is no small thing, and its importance needs to be inculcated at an early age, and then nourished by both individual and society. No one will believe in us  if we cannot believe in ourselves. We need to start believing in ourselves again—and deserving to be believed in. Once people lose pride in being as good as their word, doing the best job they can, and expecting much of themselves, rules have to be enforced from without, and a penal code substitutes for the moral code it helped to destroy. Mediocrity quickly displaces excellence. Boredom replaces vitality. This is not only vastly less effective, but hugely costly in terms of administration and litigation, not to mention time and morale, and leads to a wicked problem: once trust has been lost, it is not easy to remove the scaffolding of rules and procedures which have come to take its place. In the world of capital, older European business practices based on honour have been grossly undermined by a ‘smarter’ paradigm imported from America, in the pursuit of short-term gain by defectors. This was very short-sighted. Trust has also been lost in the world of schools and universities, hospitals, the police, and the army—all of which now have massive recruitment problems, because the perception is that lives of service are no longer respected, or properly rewarded; that the necessary creativity, independence, self-reliance, and initiative required by a skilful professional will be stifled; and that the best candidates will not be supported and promoted because of a patronising agenda based on the ticking of boxes, and militating against excellence. Like civilisations before us, which drifted further and further to the outlook of the left hemisphere, we would appear to be engaged in committing suicide, intellectual and moral—if not indeed literal; for I fear that the Western world may no longer have the will or the skill to defend itself against authoritarian enemies that we cannot just wish away, because in our theory they don’t figure.   We seem sometimes bemused at how so often a path that looks promising leads us somewhere almost opposite to where we intended. But seeing the picture in the round we start to see why the outcome we wished for eluded us. We feel we are beset by paradoxes. In The Matter with Things , I devote a chapter to logical paradox; and explore around 30 of the best-known paradoxes that have intrigued and largely baffled philosophers historically. In every case, I explain why the apparent paradox can be seen as stemming from the different dispositions towards the world offered by the right and left hemispheres. This doesn’t mean, however, that each take is equally valid. In Zeno’s well-known paradox of Achilles and the tortoise, although he purports to prove that Achilles can never catch up with, never mind overtake the tortoise, we know perfectly well that in real life he can overtake the tortoise in a couple of strides.   As a society, we pursue happiness and become measurably less happy over time. Studies of rates of psychopathology in adolescents, relying on serial contemporaneous assessments using the same objective instrument and meeting stringent standards, over the period from 1938 to 2007, show that there were between five and eight times as many students that met a common cut-off for psychopathology in the latest cohort compared with the earliest, and this may be an underestimate because many recent subjects were already stabilised on an antidepressant, a possibility that did not exist for the earliest cohorts. Rates of suicide, which have always been about three times higher in men, are rising most steeply in young women.   We privilege autonomy and end up bound by rules to which we never assented, more spied on than any people since the beginning of time. We pursue leisure through technology and discover that the average working day is longer than ever, and that we have less time than we had before. We also find that the technology places an enormous burden on our time, alienates us from human intercourse, and exposes us to risk from organised criminals—and mind-control by dis organised criminals such as governments. The means to our ends are ever more available, while we have less sense of what our ends should be, or whether there is purpose in anything at all. Economists carefully model and monitor the financial markets in order to avoid any future crash: they promptly crash. We are so eager that all scientific research result in ‘positive findings’ that it has become progressively less adventurous and more predictable, and therefore discovers less and less that is a truly significant advance in scientific thinking. We grossly misconceive the nature of study in the humanities as utilitarian, in order to get ‘value for money’, and thus render it pointless and, in this form, certainly a waste of resources. We ‘improve’ education by dictating curricula and focussing on exam results to the point where free-thinking, arguably an overarching goal of true education, is discouraged; in our universities many students are, in any case, so frightened that the truth might turn out not to conform to their theoretical model that they demand to be protected from discussions that threaten to examine the model critically; and their teachers, who should know better, in a serious dereliction of duty, collude. We over-sanitise and cause vulnerability to infection; we over-use antibiotics, leading to super-bacteria that no antibiotic can kill; we protect children in such a way that they cannot cope with—let alone relish—uncertainty or risk, and are rendered vulnerable. The left hemisphere’s motivation is control; and its means of achieving it alarmingly linear, as though it could see only one of the arrows in a vastly complex network of interactions at any one time. Which is all it can.   If these paradoxes surprise us, it is because we have not thought far enough ahead in time or broadly enough in space: we take a small part of the complex for the whole. The awareness coming from the right hemisphere can embrace that of the left, but not the other way round. When the hemispheres are working together under the unifying influence of the right hemisphere, the effect is not purely additive, but transformative. However, since the left hemisphere not only ‘takes in’ less, but understands what it does take in less well, our almost exclusive reliance in contemporary Western culture on it, the servant, is a problem of some considerable proportions.   The three things on which human flourishing and well-being most depend are these: belonging to a cohesive social group which one can trust, and with which one can share one’s life; closeness to the natural world; and communion with a divine realm, however conceived. This is not just my opinion, but borne out by a vast and ever-increasing body of research. But none of this accords with our current value: power. It is hardly a surprise, then, when we see that material affluence does not make us happy if accompanied by spiritual poverty.   Let me finally consider the influence of left hemisphere capture on the realm of value. For over two thousand years, in the Platonic, and later the Christian, tradition of Western thought, human life was seen as orientated towards three great values: goodness, beauty, and truth, each of them in turn seen as a manifestation of an aspect of the sacred. During my lifetime, I have seen each of these important values, along with the sacred, repudiated and reviled. A model that favours the machine over the human being, the inanimate over the living, is one that is corrosive of all that is beautiful, good, and true. And has no place in it for the sacred.   The early twentieth century philosopher Max Scheler was much concerned with questions of value. When he died in 1928, Heidegger, who gave his funeral oration, described him as the most potent force in the world of philosophy at the time.[11] Scheler thought there was a hierarchy of values, with those of pleasure and utility—the values of utilitarianism and the left hemisphere—at the lowest level, and rising by stages to that of the holy or sacred, which he considered the highest, a value which I suggest is incomprehensible to the left hemisphere. In between were, first, the Lebenswerte  or values of ‘life’, such as courage, magnanimity, nobility, loyalty, and humility; and then the geistige Werte , the values of mind or spirit, such as beauty, goodness, and truth—which I suggest are better understood by the right hemisphere.[12]   The left hemisphere’s raison d’être being power and control, it naturally puts values of utility and hedonism, those of the lowest rank in Scheler’s pyramid, first. I may be wrong, but it is my distinct impression that there has been a decline in courage, magnanimity, nobility, loyalty, and humility in our society—indeed in all behaviour that carries its costs upfront, rather than concealing its sting in the tail. Speaking the truth takes courage, and it would seem that those in our public institutions would rather conform than confront untruth. And along with the loss of courage to speak the truth, there has been an undeniable withdrawal from the beautiful and the sacred. All of this combines to reinforce a loss of sense of purpose and direction; hence the crisis of meaning that it is, by now, a commonplace that we face.   Scheler calls the human being ens amans , the being that is capable of love; in its place we have homo economicus . In the world we live in, reductionist materialism inverts Scheler’s perception, and in a thoroughly cynical assessment of what it means to be human, we have exalted the individual ego over all else. This has rendered many virtues, including but not confined to beauty, goodness, and truth, obsolete. These values, I believe, far from being human inventions, are ontological primitives, for they are aspects of the ground of Being: our capacity to respond to them and draw them ever further into being is our privilege, and indeed, I argue, our purpose. This is why there is life. We can of course also ignore them, devalue them, and cause them to wither away—at what cost to us personally and to the whole of the living world we can only surmise. The world we are creating is one that ‘computes’ as far as the left hemisphere is concerned, but is grossly impoverished, demoralised, and lacking in meaning. One that is, in sum, more fit for a computer than a human being.   I’m often asked what we need to do about our predicament. This is understandable, of course, but I think that any list of bullet points, though no doubt needed at one level, risks missing the point almost entirely at another. For it is not that we took the wrong decision here or there, but that we have completely lost direction because of the value we have come to espouse. As I get nearer to the end of life, I am more and more convinced that not only is being receptive to the summons offered by values the key to a fulfilling life, the key to a flourishing society and a flourishing natural world at large, but every bit as important as survival itself. What I mean is this: even if we were by a massive effort and a massive stroke of fortune enabled to prevent any further loss of the world’s forests, reverse the pollution of the oceans, reverse the decline of species, and similarly tackle the other aspects of the metacrisis I have mentioned, this would be in vain unless we underwent a complete change of heart and mind. For we would still be the same hubristic, entitled, resentful power-hungry animals that we have become. And this, like the rest, has everything to do with the dominance of the left hemisphere’s mode of being.   So what are we to do? I could list the bullet points, which along the way would inevitably refer to reforming the education system, to a revival of the humanities, a serious reduction in bureaucracy, to the cultivation of meditative or spiritual practices, to abstinence from social media, keeping machines in the background where they can be helpful but away from intercourse with humans, and much more that we all know might help. And of course it goes without saying that we must tirelessly seek to stop, and where possible reverse, the damage to Nature—I will not call it the environment, since the term expresses the separation from Nature that is part of the problem. But these will not in themselves heal a matter of psyche , of soul. There is no quick fix for such problems, alas. As a psychiatrist, I would often know after listening to a patient for an hour or more on their first visit, what it was they needed to do. And when I was inexperienced I used to tell them. That was a mistake. Until a person truly sees for him- or herself, from the inside, what it is they need to do, they will not do it, and once they do see it, they will not need to be told. The work is to get them to that place.   The good news is that we can begin the healing work, each one of us, today. People say: ‘But what can I do? The world is so huge and I am so small’. And sometimes they add ‘and our planet is so small in an incomprehensibly vast universe’. But this is to think in the left hemisphere’s terms, measuring and quantifying. When the lover says ‘my love is as deep as the ocean and as wide as the skies’, how large or small is that? All the important changes happen from in here, not out there. If we could recover some humility in the face of our ignorance; some compassion in dealing with our fellow human beings; and some sense of awe and wonder before the cosmos, we would be already a long way along our journey. It has been said that if we could change radically the hearts and minds of only 3% of people, we would be able to make the changes we need to see in the world around us. For this we need to understand ourselves anew. Gnothi seauton : know thyself. We need every insight we can get into what we are doing to ourselves, to life itself, and to our inexpressibly beautiful and complex world. I hope I may have here offered one such insight, however small. The work is great, but we are capable of greater things than we know. Iain McGilchrist Iain McGilchrist FRSA is a British psychiatrist, philosopher, neuroscientist, and Quondam Fellow at All Souls College, Oxford. His books include The Master and his Emissary: The Divided Brain and the Making of the Western World  (2009) and The Matter with Things: Our Brains, Our Delusions and the Unmaking of the World (2021).   The above is an edited version of McGilchrist’s Darwin College Lecture, delivered in Cambridge on 9 February 2024. [1] Iain McGilchrist, The Master and his Emissary: The Divided Brain and the Making of the Western World  (Yale University Press 2009). [2] Iain McGilchrist, The Matter with Things: Our Brains, Our Delusions and the Unmaking of the World , 2 vols (Perspectiva 2021). [3] See Lucien Price, ‘The Permanence of Change: Dialogues of Whitehead’ The Atlantic  (Washington DC, April 1954) < https://www.theatlantic.com/magazine/archive/1954/04/the-permanence-of-change-dialogues-of-whitehead/642948/ > accessed 11 June 2025. [4] See VS Ramachandran, Phantoms in the Brain: Human Nature and the Architecture of the Mind  (HarperCollins 2005). [5] See Robert Rosen, Life Itself: A Comprehensive Inquiry into the Nature, Origin, and Fabrication of Life  (Columbia University Press 1991). [6] See Hannah Arendt, Eichmann in Jerusalem: A Report on the Banality of Evil (Penguin 2006). [7]  See eg Theodor Adorno, Dissonanzen: Musik in der verwalteten Welt  (Vandenhoeck & Ruprecht 1972). [8]  See Theodor Adorno, Minima Moralia: Reflexionen aus dem beschädigten Leben  (Suhrkamp 2019) 20. [9] Alexis de Tocqueville, Democracy in America  (Doubleday 1969) 650. [10] See ‘Wholeness, Timelessness and Unfolding Meaning’ ( Beshara Magazine , 2020) < https://besharamagazine.org/metaphysics-spirituality/david-bohm-wholeness-timelessness-and-unfolding-meaning/ > accessed 11 June 2025. [11] Martin Heidegger, ‘In Memory of Max Scheler (1928)’ in Thomas Sheehan (ed), Heidegger: The Man and the Thinker  (Precedent Publishing 1981) 159-60. [12]  See Max Scheler, Der Formalismus in der Ethik und die materiale Wertethik  (Meiner 2014).

The purpose of the Human Rights Act 1998 (HRA) was to ‘bring rights home’, allowing people to protect their fundamental human rights under the European Convention on Human Rights (ECHR) in domestic courts.[1] For present purposes, the relevant rights are the right to autonomy and dignity, and their control over their body and future (based on Articles 2, 3, and 8). However, the idea that people are able to protect these rights is anathema to the tenor of the salient and contentious judgments in the NI Abortion Case [2] and Nicklinson [3]—cases which restrict these rights—as well as subsequent case law. Such a conclusion can only be reached by a fundamental misconstruction of what the cases stand for. Instead, excessive and overzealous judicial conservatism has failed to demonstrate and realise the potential of the HRA. The damage done to the rights in question by this conservative approach conflicts with the very mandate provided in the HRA. For this potential to be realised, a more ‘radical’ (yet legally and constitutionally sound) approach is necessary, and the apparent fear of issuing an s 4 Declaration of Incompatibility (DOI)—a declaration by the Court that the relevant legislation is incompatible with ECHR rights—must be dispensed with. Such action is not inappropriate, nor radical, but merely performance of the proper constitutional role of the court.   The Northern Ireland Abortion Case   Ducking the issue?   The NI Abortion Case  cannot be posited as a reinforcement of either the autonomy and dignity of citizens, nor the protection of their control over their body and future. The court refuses, by a majority, to even substantively engage with these issues in any consequential way. Instead, Lords Mance, Reed, and Lloyd-Jones and Lady Black duck the issue by judging that the Northern Ireland Human Rights Commission (NIHRC) did not have standing under HRA s 7 to bring s 4 proceedings, thus allowing them to dispense with any meaningful discussion surrounding Articles 2, 3, 8, and 14. The reasoning used to arrive at this conclusion is self-contradictory and illogical because, as Lords Kerr and Wilson and Lady Hale highlight, the English Equality Commission (the NIHRC’s equivalent) is able to bring proceedings of the same nature. Such is the reticence to engage with fundamental human rights, the majority would rather raise antecedent issues of unfair devolution arrangements and the differing treatment of the UK’s four nations.   The Court dodges a politically contentious, yet still fundamentally legal, question for fear of it being ‘institutionally inappropriate’ (as Lord Sumption describes it in Nicklinson ). One cannot assert, therefore, that the case demonstrates the protective potential of the HRA, as the Court only hypothetically engages with the rights in question on the terms of the HRA. In fact, the opposite result is achieved—the rights under the HRA lose their efficacy as they are rendered unenforceable by a frankly cowardly interpretation of human rights standing. More damning still, the majority decision in this case regarding standing has been superseded by the European Union (Withdrawal) Act 2018 (EUWA), which explicitly established that the NIHRC has standing to bring such cases, proving the minority right. Following this judgment, it seems even more apparent that ducking the issue on the grounds of standing was a conscious choice.   Engaging (superficially) the substantive rights   Nonetheless, the judges do engage in some discussion around the Article 3 and 8 rights engaged by the NI abortion laws, though this discussion is all obiter dicta.[4] This discussion largely fails to properly protect these rights, and instead offers a confined scope of application that pales in comparison to the comparative application of those rights within other nations of the UK. While the majority (5:2) judge that the law is incompatible, on the basis that it is disproportionate in aiming to protect morals and excessively fetters the autonomy and self-determination of individuals, this is still true in a very qualified sense, with division amongst the majority. Only four of the judges rule that there is a violation of Article 8 regarding abortion in cases of rape, incest, and fatal foetal abnormalities (FFAs). Only Lady Black rules that there is a violation in regard to FFAs but not rape or incest. This does very little to protect a Northern Irish woman’s right to autonomy, dignity, and control over her body and future. As far as Lady Black is concerned, her human rights only allow her to seek abortion where she is carrying a child with an FFA, and she should be made to carry the child to birth if it is the product of rape or incest. Lords Reed and Lloyd-Jones in the minority share this position but extend it to FFAs also. Lady Black’s proposition is frankly astonishing, especially when compared to the rights she would have if she lived in a different region of the same country!   The position of the five judges regarding FFAs was cited in Ewart [5] and subsequently approved in the High Court, which would have issued a s 4 DOI in relation to Article 8 had it not been rendered nugatory by a previous change in legislation. This validated the view of the five judges. However, it still cannot be said that the NI Abortion Case shows the potential of the HRA to protect the rights in   question. Instead, it is Ewart that did so, though in a highly confined and qualified sense.   Even the position of the four majority judges in the NI Abortion Case  is insufficient. The NIHRC itself only sought validation on these terms, but it is not out of the remit for the Court in such a case to issue a general s 4 DOI on anti-abortion laws in relation to relevant rights. As Lady Hale and Lord Kerr highlight in Nicklinson , and Horner J highlights in the NIHC decision of this case (citing Lord Bingham in A v Secretary of State for the Home Department (Belmarsh) ),[6] the idea that this is institutionally inappropriate is anathema to the powers granted by Parliament to the judiciary in s 4 of the HRA itself. The issuing of a DOI does not in itself force a change in the law. It instead forces Parliament to consider the issue, at which point it is an issue of Parliamentary sovereignty as to whether Parliament chooses to amend the law. The notion that citizens living in the same country, but in different nations, should enjoy substantially different rights offends the supposedly universal nature of those rights.     As far as dignity is concerned, only Lords Kerr and Wilson were prepared to say that forcing a woman to travel from NI to England, Wales, or Scotland to obtain an abortion was a violation of Article 3. They also held, more broadly, that forcing a person to carry to term a foetus that has an FFA, or was conceived through rape or incest, constitutes inhuman or degrading treatment. While Lady Hale expresses sympathy with this view, she does not reach the same conclusion in relation to Article 3. She uses this factor to demonstrate the law’s disproportionality in regards to Article 8. However, this should not be a reason why it cannot also constitute an Article 3 violation too. This case fails to respect the dignity of the women concerned by failing to properly enforce their human rights and provide parity with the rights enjoyed by the women of England, Wales, and Scotland.   Though the NI law has been changed since the case to a position that is more acceptable, the position following the NI Abortion Case  did not sufficiently provide for this in respect to either their right to autonomy (Article 8), dignity (Article 3), or choice as to their body and future (Article 8).   Nicklinson  (as developed in Conway  and Newby )   Nicklinson , taken with Conway  and Newby , also cannot properly be said to demonstrate the potential of the HRA in protecting the rights in question, given that all of these cases flatly refuse the applications made.   Ducking the issue (again)?   The European Court of Human Rights (ECtHR) in Pretty says that the Suicide Act 1961 (SA) s 2 ban on assisted suicide (AS) engages Article 8. Nicklinson, however, sought to argue that the SA violated his Article 8 right to avoid an undignified and distressing death and his right to choose the manner and timing of his death. Once again, the Court ducks the issue in question and thus does not provide any demonstration that the HRA is a useful mechanism to protect a person’s rights. Seven of the nine judges ruled that it would be ‘institutionally inappropriate’ to make a consideration as to the compatibility of the SA with Article 8, though there is a 4:3 split in reasoning.   The most conservative approach is taken by Lords Clarke, Sumption, Reed, and Hughes, who refuse to engage in any meaningful discussion of whether the SA was incompatible with Article 8. They refuse on the basis that, while the court has jurisdiction to do so, such an analysis turns on issues that Parliament was better suited to decide, meaning it would be ‘institutionally inappropriate’ to make a decision. Once again, the reasoning of Lady Hale and Lord Kerr in the present case, and Lord Bingham in Belmarsh , is prescient. HRA s 4 explicitly invites courts to decide on these issues. It is paradoxical and oxymoronic for the court to say that they cannot use the power that Parliament has given them to declare Parliament’s legislation incompatible, on the grounds of it being ‘institutionally inappropriate’. This is a total abdication of responsibility and is a misguided, cowardly retreat from a contentious issue which has still not been decided on by Parliament over six years later. By not even engaging with the issue of compatibility, the judges neuter the HRA’s ability to protect these rights. It is more inappropriate for them to abstain from this consideration than it is for them to engage in it. The justification given is insufficient and debases the HRA significantly.   A less conservative approach is taken by Lords Neuberger, Mance, and Wilson. They instead judge that it is not institutionally inappropriate, per se, to make a decision on incompatibility. However, they decide that it was in this case because Parliament was currently discussing the issue, essentially giving Parliament one last chance to try and sort  the issue. This is also an insufficient analysis, as it relies on another case making it to the Supreme Court. As we can see, with Conway  and Newby , this has not yet happened. Conway ’s permission to appeal was refused, thus rejecting the opportunity to make an authoritative ruling on the matter. Once again, there is a misplaced and illogical deference to Parliament, which ignores the powers bestowed by  Parliament.   The better approach by far is that of Lady Hale and Lord Kerr, who do not deem it to be institutionally inappropriate to make a consideration on the compatibility of the SA with Article 8. They are the only justices who claim this. This is the only way that the HRA can be used to protect these rights. The court must actually engage in a compatibility analysis for the HRA to even have a chance  of protecting rights. As Lady Hale says in Paragraph 300:   I see little to be gained, and much to be lost, by refraining from making a declaration of incompatibility. Parliament is then free to cure that incompatibility, either by a remedial order under section 10 of the Act or (more probably in a case of this importance and sensitivity) by Act of Parliament, or to do nothing. It may do nothing, either because it does not share our view that the present law is incompatible, or because, as a sovereign Parliament, it considers an incompatible law preferable to any alternative.[7]   This is exactly the point. A declaration of incompatibility is just that—a declaration. It has no binding force and does not compel Parliament to do anything if it does not want to. It has no effect on the law other than to highlight its incompatibility with the relevant Convention Rights. Therefore, pontifications on institutional propriety serve no purpose other than to dilute the rights afforded under the Convention.   Engaging the rights   Lady Hale and Lord Kerr judge the SA to be incompatible with Article 8, and state that they would have issued a s 4 DOI. They consider that the blanket ban imposed is disproportionate under Huang . While accepting that protecting the rights of the vulnerable   is a legitimate aim, they consider that the blanket ban was more than what was necessary to achieve that objective and did not strike a fair balance. They also reject Lord Sumption’s obiter proposition that protecting morals may be another objective (manifested in the sanctity of life), on the basis that morals are not universally shared in this context and are too complex, with respect being needed for autonomy and dignity too. Hence, on the construction of Lady Hale and Lord Kerr, the HRA could well serve to protect these rights. However, the majority, and therefore binding, view in Nicklinson  fails to achieve this.   Post- Nicklinson : Conway  (Article 8) and Newby  (Article 2)   After Nicklinson , Conway  reflects Lady Hale and Lord Kerr’s observation on the lack of strength in the objective of protecting the vulnerable regarding Article 8 infringement. More objectives are imported to the ban such as protecting morals and protecting the doctor–patient relationship. These too are weak. The protection of morals is easily dismissible on the same grounds as Lady Hale and Lord Kerr provide in tackling Lord Sumption on this in Nicklinson , as well as the fact that it simply does not reflect a uniform public consensus, nor reflect the approach taken to other end-of-life contexts such as the capacitous refusal of treatment. Lord Kerr in Nicklinson  also questions whether the sanctity of life can really be   preserved where terrible suffering is being forced on the claimant.   It is not wholly clear that the doctor–patient relationship is a strong objective either. Doctors can already withdraw treatment, even where the patient is incapacitated (see Bland  and Re Y ), and often administer palliative sedation knowing that double effect is certain. This puts the law in a rather perverse situation where, under Bland , a person in a persistent vegetative state (PVS) who may well wish to continue living, but cannot express that, can be subjected to what is essentially involuntary euthanasia. By contrast, where a person gives their fully informed, unvitiated consent, they are unable to access assisted dying. As for palliative sedation, Re B  is authoritative on the fact that where a capacitous person, on the basis of informed consent, wishes to end their life-sustaining treatment, that wish is to be respected, even where death is inevitable. Therefore, the distinction between that and AS seems superficial. Is it really, then, such a Rubicon to cross? Furthermore, polling among the Royal College of Physicians and British Medical Association shows a majority opinion which is at least neutral towards AS. Even the profession does not see a threat to the patient–doctor relationship. The homogeneity that the Court in Conway  implies simply does not exist. Permissive jurisdictions have shown that the discussions involved in arranging AS are actually conducive to building good relationships, and empower patients in the decision-making process.   Therefore, it is not entirely clear that the additional objectives posited in Conway  are valid and legitimate objectives rationally connected with such aims, or fairly balanced where cases such as Conway , Nicklinson , Pretty , and Newby  are concerned. More egregious still is   the fact that Conway  disposes of the analysis in the Canadian case, Carter , on the basis of false distinctions. Supporting this is the fact   that in Pretty , the ECtHR says that Carter  s 7 concerned autonomy, which is parallel to Article 8. Yet again, Conway  fails to allow the HRA to be used to protect the right to autonomy and dignity and control over the body.   Newby  argues that the SA and subsequent jurisprudence was a breach of the positive obligation to protect life under Article 2, on the basis that there was not an effective legal system that protects life. The SA did not deter threats and was in itself a threat. The argument relies on the evidence that the blanket ban on AS resulted in the premature suicide of people before they become incapacitated to avoid the implications of the SA. This is a point illuminated by:  Carter ; the first-hand account in Omid T ; and perhaps put best by Lord Neuberger in Paragraphs 96 of his judgment, saying ‘Section 2 therefore not merely impinges adversely on the personal autonomy of some people with degenerative diseases, but actually, albeit indirectly, may serve to cut short their lives’.   The High Court is dismissive of this argument, dealing with it in one paragraph, which is questionable at best. No material consideration is given to the argument, and the conservative Nicklinson -type approach is taken to avoid discussion of the sanctity of life etc. While they do say that Article 2 engagements in this context would deal with the same considerations as Article 8, they consider these Article 8 issues heavily reliant on Conway, which itself was heavily reliant on Lord Sumption’s reasoning in Nicklinson . Therefore, this Article 2 argument is yet to be properly examined in a court and judged. However, the current line of jurisprudence suggests that an unfavourable approach would be taken to this argument. Therefore, Newby , as with every other case, fails to demonstrate the HRA’s potential to protect the rights of the individual to autonomy and dignity, and control over their body and future.   Conclusion   The overly conservative approach of the courts in relation to assisted dying and abortion results in a failure to properly uphold the rights of claimants under the ECHR. Therefore, one cannot assert that the current state of the law protects a person’s right to autonomy and dignity, and their control over their body and future. Nothing binding in the Northern Ireland Abortion Case , Nicklinson , or any of the subsequent litigation supports the assertion. The only saving graces of these cases, that may possibly be relied on to try and support this proposition, are the minority judgments.   Time and time again, claimants have sought to rely on the HRA to protect their rights to autonomy and dignity under Articles 8 and 3, and their control over their body and future under Articles 2 and 8. However, time and time again, courts have failed to give effect to this. Instead, cowardly and overly conservative judicial approaches have given way to an over-reliance on a de facto decriminalisation based on Crown Prosecution Service discretion that is by no means a watertight guarantee of immunity, and still forces families to endure police investigation.   Courts should embrace the powers they have been conferred by Parliament in the HRA and make s 4 DOIs where that would be appropriate, as it is in the cases considered above. The considerations of the cases above clearly show that where courts duck this on grounds of ‘institutional inappropriateness’, rights are not vindicated, and people are left to suffer. Engagement with these issues would not be an improper judicial power grab but merely a fulfilment of the role and responsibilities given by Parliament in the HRA to declare legislation incompatible where it is. By not fulfilling this role, the checks and balances inherent in our constitution are jeopardised. For as long as the judiciary adopts this unnecessarily conservative jurisdictional approach, the cases that come before them will never demonstrate the true potential of the HRA to protect a person’s right to autonomy and dignity, and control over their body and future. Jack Bailey Jack Bailey is a third-year undergraduate in Law at Fitzwilliam College, Cambridge, interested in the intersection of law and politics. In autumn 2022 he will begin a training contract with Freshfields Bruckhaus Deringer. He has just stepped down from his role as Pro Bono Coordinator on the Cambridge University Law Society, with the Pro Bono Department having been nominated for the ‘Access to Justice Foundation Award’ at the LawWorks and Attorney General Student Pro Bono Awards 2021. [1] I would like to thank Dr Stevie Martin for her helpful advice in writing this article and reading over my drafts. The considerations and viewpoints she raised were greatly helpful. [2]  Re an application by the Northern Ireland Human Rights Commission for Judicial Review (Northern Ireland)  [2018] UKSC 27. [3]  R v Nicklinson  [2014] UKSC 38. [4] A comment in obiter dicta is a non-binding part of the judgment. [5]  Re Ewart  [2019] NIQB 88. [6]  A v Secretary of State for the Home Department  [2004] UKHL 56. [7] 7 Nicklinson  [300] Lady Hale.

1. Introduction The criminal law continues to grapple with the concept of ‘deceptive sex’ and struggles to draw the appropriate parameters around the provisions on consent contained within the Sexual Offences Act 2003 (henceforth, ‘the SOA’). Particularly notable in this regard have been cases involving ‘gender fraud’, wherein the defendant (D) is alleged to have deceived the complainant (V) as to their gender in order to procure sexual relations. This was found to be the case in R v McNally [1], where the Court of Appeal held that the sexual nature of the acts was different where the complainant was deliberately deceived by the defendant as to her biological sex; V’s freedom to exercise preference over the gender of their sexual partner was removed.[2] V’s consent was therefore vitiated. The language used in this case effectively characterises D’s failure to disclose gender history as a deliberate deception (writing, inter alia , that D ‘had lied to [V] for four years’[3]), and acutely raises this issue of consent: in what circumstances will D’s inaction be elevated to a finding of deception? As a corollary to this, in what circumstances are deceptions are sufficient to vitiate consent for the purposes of sexual offences? These are the questions with which this article seeks to contend. They will be addressed in several parts. First, it will be found that the conceptual framework deployed by the courts in these cases, namely the distinction between active deception versus non-disclosure, cannot bear the analytical weight imposed upon it by the factual intricacies of the cases that have arisen thus far, and of those that will invariably arise in the future. The inadequacy of this binary is brought to the fore by McNally : the gaps in the court’s reasoning are haphazardly filled with cis-normative prejudices that cannot stand against conceptual scrutiny. It will be argued that the term ‘deception’ (that is, the act of deliberately causing (someone) to believe something that is not true, especially for personal gain) is not only inappropriate when applied to transgender defendants for ontological reasons, but also risks legitimising discrimination towards transgender individuals through the forum of the criminal law. The court’s prejudices are often clouded in repeated references to the need to protect the right to sexual autonomy. It is not disputed that this protection is a valid pursuit, however, the over-prioritisation of V’s sexual autonomy has led to a conflation of two analytically distinct questions, namely: (1) did V consent? and (2) did D possess a reasonable belief in V’s consent? These questions must remain separate such that due weight is given to the competing interests of D in privacy and self-preservation (particularly in cases involving transgender defendants). Having exposed the inadequacies of the current model, Section 3 investigates a new conceptual framework upon which the law on sexual offences may be built. In this regard, the distinctions made by Matthew Gibson when he distinguishes between ‘principal sexual offences’ and ‘deceptive sexual relations’ prove highly instructive.[4] He observes that the latter are often criminalised under ‘principal sexual offences’, namely rape, sexual or indecent assault etc.[5] In his view, however, this poses a problem for fair labelling as, while deceptive sexual relations are equally harmful to a victim’s right to sexual autonomy as the relations proscribed by the principal sexual offences, they represent a different wrong. [6]He therefore advocates for the creation of separate deceptive sexual offences targeting penetrative and non-penetrative sexual relations.[7] Adopting this bifurcation, the model proposed in this article variegates deceptive sexual relations further into a tripartite taxonomy: relations resulting from an active deception, a passive deception, and a unilateral mistake by V. The courts, having already established that the first of these is sufficient to vitiate consent[8], have left the following task for the present enquiry: distinguishing between a passive deception and a unilateral mistake. It is argued that only the former can vitiate consent, arising either when D knowingly exploits a unilateral mistake by V to procure sexual relations, or when D is under an obligation to disclose certain information but fails to do so. As to the former, D’s knowledge and opportunism elevates V’s unilateral mistake to a passive deception. As to the latter, regarding the circumstances in which such an obligation may be generated, several possibilities are canvassed with a brief discussion about how the law may develop in the future. It is suggested that the materiality of certain facts to V’s consent should remain subjectively determined by V, but any obligation to make V aware of facts that may conflict with this materiality is contingent upon D’s actual knowledge, or a reasonable expectation that D have knowledge, of such materiality. This model departs from the court’s current approach in that it ensures that the expectation of D’s knowledge is conditioned not by cis-normative biases, but instead by an objective assessment of the facts and an introduction of the concept of ‘justifiability’.

Motive is traditionally considered to be an unwelcome guest in criminal trials, a bête noire that should only appear at a sentencing. The common law draws an important distinction between mens rea and motive in criminal proceedings. The principle of mens rea, meaning ‘guilty mind’, provides that ‘criminal liability should be imposed only on persons who are sufficiently aware of what they are doing, and of the consequences, it may have’.[1] Motive refers to personal reasons, such as vengeance or financial gain, from which criminal intent may be inferred. While most offences require mens rea to be proven beyond reasonable doubt, the motive is traditionally considered irrelevant to criminal liability.[2] The inclusion of a ‘political, religious or ideological cause’[3] element in the definition of ‘a terrorist act’ in Australia has invited the concept of motive back into criminal liability. In addition to the evidential issues of proving motive beyond reasonable doubt, defining terrorism is commonly regarded as a Sisyphean task due to the political, ideological and jurisprudential questions it raises about the legitimate exercise of violence and the role of criminal law. Rather than viewing anti-terrorism laws as a vanguard in a broader trend towards the inclusion of motive in criminal liability, this article asserts that the unique nature of terrorism as strategically targeted violence necessitates a motive element. Whilst the physical elements of terrorist acts can be covered by existing criminal offences, such as murder or conspiracy, the underlying motive to influence socio-political outcomes through the use of violence adds a distinct layer of criminality. Hacker describes terrorism offences as ‘triadic’[4] because it involves not only the offender and the victim but also the general public through the targeted perpetuation of fear. Premised on the notion that the motive behind terrorism is what creates a moral distinction from other criminal offences, this article presents three central arguments. Firstly, a discrete category of terrorism offences is necessary in accordance with community expectations that political, religious and ideologically oriented violence warrants distinct classification under criminal law as an affront to the democratic process. Secondly, that terrorism offences should be fairly labelled with reference to a motive element in the definition of a ‘terrorist act’ to adequately reflect the nature and extent of an offender’s criminality, particularly when many terrorist offences are inchoate. Thirdly, the inclusion of a motive element in terrorism offences substantially broadens the scope of admissible evidence at trial and thereby heightens the importance of safeguards in criminal procedure to protect the fairness of criminal proceedings. II. The Legal Definition of ‘A Terrorist Act’ The Australian definition of ‘a terrorist act’ under Section 100.1 of the Commonwealth Criminal Code was introduced by the Security Legislation Amendment (Terrorism) Act 2002 (Cth) as part of a legislative response to the September 11 attacks. The anti-terrorism laws include a wide range of offences that can only be enlivened once the three limbs of the definition of ‘a terrorist act’ are proven beyond reasonable doubt: ‘the action is done, or the threat is made with the intention of advancing a political, religious or ideological cause’ (‘the motive element’);[5] ‘the action is done or the threat is made with the intention of: (i) coercing, or influencing by intimidation, the government of the Commonwealth or a State, Territory or foreign country, or of part of a State, Territory or foreign country; or (ii) intimidating the public or a section of the public’[6]; and the ‘action’ falls within subsection (2) and does not fall within subsection (3). Subsection (2) includes actions such as causing a person’s death, serious damage to property and endangering a person’s life. Subsection (3) provides that advocacy, protest, dissent or industrial action are not terrorist acts.[7] This definition blurs the legal distinction between intention and motive by focusing on the reasons why the accused engaged in the prohibited conduct (for advancing a political, religious, or ideological cause) rather than an intention to commit the act itself. Thus, the ‘motive element’ under subsection (1)(b) presents a departure from intent as the cornerstone of criminal liability[8] and ventures into the hearts and minds of the accused. III. The Role of Motive in Criminal Responsibility Criminal offences ordinarily comprise a physical element ( actus reus ) and subjective fault element ( mens rea ). The fault element is based on intention, whereby criminal liability is restricted to ‘those who, from a subjective perspective, intended, knew or at least were aware of the risk of a particular harm occurring’.[9] However, what is the difference between motive and intention? In Hyam v Director of Public Prosecutions (Cth) [1974] UKHL 2 , Lord Halisham explained that ‘motive is entirely distinct from intention or purpose. It is the emotion that gives rise to an intention, and it is the latter and not the former which converts an actus reus into a criminal act’.[10] By considering the emotional and subjective reasons why someone intended to commit an offence, criminal liability becomes perilously intermixed with moral and political judgments. Norrie argues that it is the link between social conflicts and individual motives that drives the exclusion of motive from criminal responsibility.[11] For example, the mental element of larceny is the intention to steal rather than motivating factors or emotions such as hunger or poverty. The primacy of intent over motivation protects the criminal law from ‘moral infection’[12] and attributes fault to the autonomous individual rather than the broader structural and societal issues that contribute to crime. Notwithstanding this, Horder claims that a ‘privileged class’ of offences permit motive into criminal liability.[13] For example, the motive is important for offences where there is no prima facie wrong.[14] In the case of terrorism, a significant portion of terrorist offences are constituted by preparatory acts whereby the criminality of the offence is unclear without the motive. Furthermore, it is the motivation behind the intention—to advance a political, religious or ideological cause through coercion or intimidation—that captures the ‘wrongfulness’ of the offence. For example, terrorism prosecutions in Australia have included the possession of a magazine published by Al-Qaeda[15] and attempting to seek a fatwa against an army base.[16] In these cases, the criminality of possessing a magazine or seeking a religious declaration is not adequately understood until the motive behind these acts is established. There is indeed merit to the longstanding view that motive should be excluded from criminal liability to keep the offender’s political, religious, or ideological orientations outside of the courtroom and thereby reducing the risk of bias. However, in the case of terrorism, it is these very motivations that differentiate terrorism from other serious offences. As noted by former Attorney-General Phillip Ruddock, ‘it would be short signed to divorce these motivational contexts from the crimes themselves when they directly inform the gravity of the conduct’.[17] The incorporation of a motive element to advance political, religious, or ideological causes into the statutory definition of a ‘terrorist act’ ensures that the essential characteristics and criminality of terrorism is sufficiently particularised within the legislation. IV. The Moral Distinction between Terrorism and Other Offences ‘Terrorism’ is a politically and ideologically contentious term that incites extreme moral outrage and public indignation. But what makes terrorism distinct from other offences which are also considered morally wrong? Offences that are violent, indiscriminate, or otherwise evoke widespread terror will inevitably provoke media attention and emotive public response. However, on a deeper level, terrorism is an attack on the fundamental principles of a peaceful and democratic society. It was expressed by the United Nations Commission on Human Rights that ‘terrorism poses a severe challenge to democracy, civil society and the rule of law’.[18] While arguably all criminal offending may inadvertently undermine the rule of law, Ben Saul asserts that terrorism ‘should be specifically criminalised because it strikes at the constitutional framework of deliberative public institutions which make the existence of all other human rights possible’.[19] By replacing politics and dialogue with intimidation and violence, terrorism represents an affront to the Western liberal ideal of the peaceful democratic process. Ultimately, it is the public-oriented motive that most clearly reflects the core normative judgments about the wrongfulness of terrorism and distinguishes it from other offences. One of the main criticisms of the inclusion of a motive in the definition of ‘a terrorist act’ is that terrorist offences can be prohibited through existing criminal offences. Roach argues that ‘although anti-terrorism laws have been enacted on the basis that existing criminal law is inadequate, we should not lightly assume that the existing criminal law is not up to the task’.[20] Roach asserts that offences of murder, conspiracy, incitement and attempt can be applied to apprehended acts of terrorist violence and ‘from the perspective of public safety, it should not matter why someone explodes a bomb’.[21] In contrast, the Parliamentary Joint Committee on Intelligence and Security stated that ‘terrorism is qualitatively different from other types of serious crime’ because it is typically directed toward the public to create fear and promote political, religious or ideological goals.[22] This distinction between public and private motives is illustrated in the case of R v Mallah .[23] Mallah was indicted on two counts of preparation for a terrorist act and a third count of recklessly making a threat to cause serious harm to a Commonwealth public official . [24] The alleged facts were that Mallah applied for a passport which was subsequently refused by the Department of Foreign Affairs and Trade (DFAT). Following an appeal to the Administrative Appeals Tribunal, police executed a search warrant in his house and located a rifle, ammunition, a document entitled ‘ How can I prepare myself for Jihad ’, and a manifesto setting out his grievances and identifying DFAT as his target. During a covert phone call, Mallah admitted to an undercover operative that he was planning an attack on a government building and made threats to kill ASIO and DFAT officers. After a trial by jury, he was acquitted of Counts 1 and 2 and convicted of Count 3. Despite the facts of the case having the hallmarks of a terrorist offence, such as the targeting a government institution, possession of religious manuscripts and references to ‘jihad’, the sentencing Judge remarked that ‘by its verdict, it is clear that the jury was not satisfied beyond reasonable doubt…having regard to the definition of a “terrorist act”’.[25] Chief Justice Wood found that Mallah did not possess a publicly-oriented motive to advance a political, religious or ideological cause but rather was an ‘embittered young man’ who ‘personally felt that he had been the subject of an injustice’ as a result of his passport refusal.[26] While the physical elements of the charge appeared to be terrorist in nature, Mallah’s motive was considered to be a personal one. This case illustrates the important distinction between public and private motives in signifying the unique wrongfulness of terrorism, whereby a threat to a government institution out of personal frustration cannot be considered a terrorist attack. V. Terrorism and the Declaratory Function of the Law Ashworth outlines the three key functions of criminal law: to declare that certain conduct is a public wrong, to institute the threat of punishment as a deterrent, and to censure those who nevertheless commit the offence.[27] These three functions are not equally applicable to every offence. In the case of terrorism, it is unlikely that criminalisation and the risk of censure will significantly deter terrorists from committing a terrorist act. Anti-terrorism laws have ‘marginal deterrent value’[28] because criminal sanctions are not believed to dissuade terrorists from their political, religious or ideological cause, particularly if they are willing to die in pursuit of their motive or reject the legitimacy of the legal system, to begin with. Adopting this view, the enactment of anti-terrorism laws serves a declaratory rather than punitive function to publicly condemn acts of terrorism, satisfy public indignation and placate demands for justice. The declaratory function of anti-terrorism laws is supported by the Sheller Committee’s Parliamentary Review of Security Legislation. The Committee noted that ‘Parliament intended that the definition of a ‘terrorist act’ reflect contemporary use of that term in political and public discourse to stigmatise certain political acts…’ and that the motive element under subsection (1)(b) ‘appropriately emphases a publicly understood quality of terrorism’.[29] From this review, it is apparent that Parliament’s primary focus on the motive element in the definition of ‘a terrorist act’ is an alignment with community expectations and popular understandings of terrorism. However, there is a fine balance between legitimating criminal laws by aligning offences with community standards and moral values and exercising penal populism to satisfy public demands for vengeance. VI. The Terrorist Label and Fair Labelling Despite its evolving definition, the concept of terrorism has retained significant political and moral currency. From the ‘Reign of Terror’ during the French Revolution to radical Islamic terrorism after the September 11 attacks, the ‘terrorist’ label has endured a longstanding capacity to stigmatise and de-humanise those upon whom the label is imposed. The moral potency of the terrorist label beyond its legal signification has rendered the term ‘slippery and much-abused’.[30] It has been deployed to censure various manifestations of violence, from revolutions, and political protests to State terrorism. This debate over how violence is represented and defined becomes a struggle over its legitimacy.[31] In the absence of a clear definition, the label of terrorism becomes more vulnerable to misappropriation. Borradori argues that this ‘semantic instability’ and ‘conceptual chaos in public or political language’ privileges dominant powers to de-legitimise or criminalise conduct according to prevailing political interests.[32] Given the strong moral and political stigma attached to the term ‘terrorist’, careful attention must be given to the principle of fair labelling when defining terrorism offences. Labelling, in its literal sense, as the process of classifying, describing, and identifying, plays a significant role in criminal law. Criminal offences are defined and categorised into a statutory framework that demarcates degrees of wrongdoing and sentencing options depending on the seriousness of the offence. Chalmers and Leverick argue that labels are important in describing the offences to the general public and differentiating the offending behaviour for those working within the criminal justice system.[33] This process of labelling is a declaratory enterprise whereby the label of an offence communicates the nature of a crime and the degree of condemnation that should be attributed to an offender by the general public and criminal justice system. Ashworth notes that one of the primary aims of criminal law is to ensure a proportionate response to law-breaking and that fairness demands that offenders be labelled and punished commensurate with their wrongdoing.[34] In the context of terrorism, it must first be asked who the intended audience of the label is? The legal definition of terrorism is intended for the offender, operatives of the criminal justice system and the community at large. In terms of the offender, labelling is important in communicating what constitutes a terrorist offence and how the commission of such an offence will impact findings of guilt, sentencing, and the offender’s criminal record. While it is argued that anti-terrorism laws have a minimal deterrent effect, it remains essential that acts of terrorism are clearly defined due to the harsh penalties involved (maximum penalty of life imprisonment) and strong social stigma. This is particularly pertinent in the prosecution of inchoate offences, such as the possession of documents or financing of groups with terrorist affiliations. These preparatory acts carry heavy sanctions and stigma under the wide umbrella of ‘terrorism’. Agents of the criminal justice system, such as judges, lawyers and parole officers, also rely on the labelling of offences. Prior to conviction, the labelling of offences dictates the elements that need to be proven beyond a reasonable doubt, plea negotiations and jurisdiction of the court. After conviction, labels also affect the sentencing outcome, notations on criminal records and classifications within prisons. The labelling of an offence as an act of terrorism can have a significant impact on an offender’s prospects of bail, procedural implications such as control orders and the length of detention without charge, as well as the level of media and political attention. In addition to the practical implications of labelling, offence labels also convey to the community the seriousness of an offence and the extent of the offender’s wrongdoing. Labels may draw upon existing social values and signify the degree of moral condemnation and ‘othering’ to be imposed on an offender. Accepting that labels play an essential role in criminal law, consideration must then turn to how terrorism offences can be fairly labelled. Ashworth notes that fair labelling has a more direct connection with common patterns of thought in society, and ‘where people generally regard two types of conduct as different, the law should try and reflect that difference’.[35] The distinguishing feature of a terrorist act (as opposed to existing offences such as murder or conspiracy) is the motive element to advance a political, religious or ideological cause. Simester and Sullivan note that ‘the criminal law speaks to society as well as the wrongdoers when it convicts them, and it should communicate its judgement with precision, by accurately naming the crime of which they are convicted’.[36] Under the Australian Commonwealth Criminal Code Act 1995 , the category of terrorism offences is far-reaching, ranging from large-scale terrorist acts causing significant casualties[37] to ‘possessing things connected with terrorist acts’.[38] Despite the significant variation of harm caused by such actions, the strong stigma of the ‘terrorist’ label remains constant. In light of the severe moral stigma attached to terrorism, liberal use of the term would dilute its declaratory function and cause unfairness to an accused due to the lack of certainty regarding what constitutes a terrorist offence. Given the broad ambit of conduct that may be considered terrorist in nature, the inclusion of a motive element under statute provides greater legal clarity to criminal justice practitioners and accused persons. From a declaratory standpoint, the legislature has defined a terrorist motive to publicly declare that the use or threatened use of violence for a political, religious or ideological cause is considered distinctly wrongful and will attract distinct legal sanctions. The inclusion of a motive element ensures that the ‘terrorist’ label is appropriately directed towards offenders who intend to use violence to advance their political, religious or ideological causes and safeguards offenders who do not harbour such public-oriented motives, as in the case of Mallah above.[39] Terrorism offences often attract media attention that draws upon popular preconceptions of terrorism rather than its legal definition. As a result, many accused persons are branded with the ‘terrorist’ label without being proven to have committed ‘a terrorist act’ to the requisite legal standard. An example is the ‘2019 Sydney CBD Stabbings’, which was initially reported in the media as a terrorist attack but was ultimately prosecuted under non-terrorism offences. In this case, Mert Ney stabbed one woman to death, stabbed a second woman indiscriminately and then proceeded to run through the Sydney CBD yelling ‘ Allahu Akbar ’. The Supreme Court ultimately ruled that the offender possessed the requisite intent to kill, partly informed by his mental disorder, but did not have a terrorist motive: ‘The evidence indicates that the Offender had no commitment to any faith and was not a religious zealot. He had become obsessed with the Christchurch massacre, but not because he was adherent to radical and extremist beliefs himself. On 13 August 2019, he took on the trappings, gestures and language of a terrorist in the apartment after murdering Ms Dunn and in the streets of Sydney. All who saw him would be forgiven for concluding that he was a fixated person with a commitment to a terrorist cause involving violent jihad. However, the evidence does not support such a conclusion’.[40] Bhatia notes that ‘rarely is the combatant’s decision attributed to a complex array of factors and events’[41], such as mental illness or discrimination, and media outlets often focus solely on the terrorist motive ‘in the belief that simplicity is a stronger pull than context’.[42] This gives rise to the argument that a statutory distinction between terrorism and non-terrorism offences through a motive element does not necessarily translate into a practical distinction. Conduct which bears the hallmarks of a terrorist offence, such as indiscriminate public violence, may result in a person being labelled a terrorist without possessing a legally defined motive. VII. Proving Motive at Law: Prejudice, Evidential Difficulties, and the Importance of Procedural Safeguards The inclusion of a ‘political, religious or ideological cause’ in the definition of ‘a terrorist act’ raises evidential difficulties and a risk of prejudice against the accused. Accordingly, evidence of motive in proving an element of the offence must be adduced cautiously in criminal trials and longstanding procedural safeguards, such as the exclusion of unfairly prejudicial evidence under section 137 of the Evidence Act 1995 (NSW) , carries great importance. This section will consider the practical application of the ‘motive element’ in a number of terrorism prosecutions and analyse the evidential implications of proving a political, religious or ideological motive beyond a reasonable doubt. Counter-terrorism policies have placed a strong emphasis on preventative strategies and the containment of risk.[43] This is understandable given the threat of large-scale casualties and destruction inflicted by previous terrorist attacks. Section 137 of the Evidence Act 1995 provides that a court must refuse to admit evidence if its probative value is outweighed by the danger of unfair prejudice against the defendant. Unfair prejudice refers to the risk that evidence may be used to make a decision on an improper, perhaps emotional, basis, such that it ‘appeals to the fact-finder’s sympathies, arouses a sense of horror, or provokes an instinct to punish’.[44] This can present difficulties in the prosecution of terrorism offences where proving that an accused sought to advance a political, religious or ideological cause can require the admission of prejudicial or highly subjective evidence, such as extremist religious views or anti-nationalistic sentiments. The use of prejudicial evidence to prove the mental element of a terrorist act was considered by the NSW Supreme Court of Criminal Appeal (CCA) in the case of Elomar .[45] Five co-offenders were convicted of conspiracy to do an act in preparation for a terrorist act. One ground of appeal was that the trial judge erred in admitting evidence that the co-offenders were associated with a group of Islamic fundamentalists who were convicted of terrorism offences in Melbourne. It was argued that there was a real risk that the appellants would be prejudiced by the evidence of their association with the Melbourne group, and the jury would conflate their criminality with that of the Islamic fundamentalist group. The CCA ruled that the expressed attitudes of the leader of a terrorist group with whom the appellants associated and allegedly took religious guidance ‘had the capacity to significantly affect the assessment of the probability of the existence of that fact. The evidence, therefore, had probative value to a significant degree’.[46] Whilst it is peculiar to tender the violent extremist views of one person to evince the state of mind of another, the legal threshold of the probative value outweighing the prejudicial effect means that such evidence is often admissible in terrorism trials. In Elomar , there was also an objection to the tendering of ‘gruesome imagery’, including video footage of beheadings, photographs depicting dead bodies and footage of the September 11 attacks.[47] The trial judge permitted the admission of this evidence due to its high probative value, stating ‘it will enable the jury to see, according to the Crown case, that the state of mind of the accused, both individually and as a group, has gone well beyond mere anger and outrage, beyond jubilation at the success of the 2001 destruction, to a point where it exults in the cruel humiliation and gross murder of innocent persons’.[48] While the inclusion of a motive element significantly increases the probative value of evidence which would have otherwise been excluded, the Courts retain an important discretion to mitigate the prejudicial effect of admissible evidence through procedural rulings and judicial directions. In this case, the quantity of material was restricted to playing only one of six executions, without the actual beheading and audio track to minimise unfair prejudice contrary to s.137 of the Evidence Act 1995 and distress to the jury.[49] Furthermore, the judge gave directions to the jury as to how this evidence could be appropriately used in their deliberations and that its relevance was contained to assessing the state of mind of the accused. In the case of Fattal ,[50] the appellant was convicted of conspiring to do acts in preparation for a terrorist act. The proposed terrorist act was to attack the Holsworthy Army Barracks by shooting as many soldiers as possible, and Fattal’s involvement was to assess the susceptibility of the target. In support of the motive element, there was a substantial body of evidence, mostly intercepted telephone calls, proving that Fattal possessed a hatred for Australian ‘kuffars’ (non-believers) and institutions, particularly Australia’s military involvement in the Middle East. Generally, the admission of evidence indicating an accused’s hatred for a country and its citizens would be highly prejudicial as it can evoke an emotional response from the jury or sentencing judge. However, for terrorism offences, the evidence goes directly to an element of the offence. As with the Elomar case, the inclusion of this evidence is indeed prejudicial; however, not unfairly, so it warrants exclusion under Section 137 due to its high probative value in proving motive. It is argued that the addition of a motive element to the definition of ‘a terrorist act’ creates a further hurdle for the prosecution, which can be difficult to prove because of its subjective nature. In the case of AB [51], the accused faced two charges of doing an act in preparation for a terrorist act and using a telecommunications network with the intention to commit an offence. The accused was seventeen years of age and was diagnosed with an intellectual disability and Asperger’s syndrome. The Crown alleged that AB published a series of posts on a website stating he intended to kill members of the public with a knife in a suicidal attack in a crowded area in Sydney. The Crown did not allege that AB planned his attack in association with any religious or political affiliation but rather wanted to make a statement about the mistreatment of persons with mental illness. In AB’s bail application, Justice Beech-Jones considered the Crown case, noting, ‘I have great difficulty in accepting that that material is capable of demonstrating an intention to advance a ‘political, religious or ideological cause’.[52] While AB’s plan displayed the physical hallmarks of a terrorist act, namely indiscriminate violence on members of the public to advance a cause, it did not meet the legislative requirement that the cause is ‘political, religious or ideological’. Whilst it may be arguable that raising awareness of mental health issues is a political issue, a broad interpretation of the motive element carries inherent dangers in the misuse of terrorism offences and disproportionate labelling, as discussed above. VIII. Constitutional Challenges The constitutional validity of the inclusion of a ‘political, religious or ideological cause’ in the definition of ‘a terrorist act’ has been challenged in Australia and abroad. Returning to the Fattal case, one ground of appeal was that the appellant El-Sayed had a constitutional right to freedom of religion under s.116 of the Commonwealth Constitution and thus was free to seek an Islamic fatwa to carry out a planned attack on the Holsworthy Army Barracks. It was held by the Victorian Supreme Court that s.116 of the Constitution does not confer absolute freedom of religion, and Parliament is acting within its constitutional authority to enact laws prohibiting the violent practice of religion if reasonably necessary for the protection of the community and the interests of social order.[53] This reasoning is echoed by the Canadian Supreme Court in the case of Khawaja .[54] Under the Canadian Criminal Code , section 83.01(1)(b)(i)(A) provides that terrorist activity must be ‘for a political, religious, ideological purpose, objective or cause’.[55] It was argued that this motive clause was an infringement of the freedom of expression encoded in s.2(b) of the Canadian Charter of Rights and Freedoms . The Supreme Court upheld the constitutional validity of the motive clause ruling that, while the prohibited terrorist activities are in a sense expressive, threats and acts of violence fall outside the protection of s.2(b) of the Charter.[56] A purposive interpretation of the actus reus and mens rea requirements of the terrorism legislation excludes liability for non-violent conduct that a reasonable person would view as capable of facilitating terrorist activity.[57] Furthermore, the secondary argument that the motive clause would encourage unfair profiling on the basis of ethnicity or religious belief was rejected by the Court. It was held that improper conduct by State actors and law enforcement agencies ‘cannot render what is otherwise constitutional legislation unconstitutional’,[58] and the provision is clearly drafted in a manner respectful of diversity, allowing for the non-violent expression of political, religious, or ideological views. IX. Conclusion This article presents a discussion on the role of motive in terrorism offences and whether the definition of a ‘terrorist act’ under section 100.1 of the Criminal Code should include the intention to advance a political, religious or ideological cause. Contrary to the longstanding principle that motive is irrelevant in criminal liability, it is argued that the motive element behind terrorism offences is what makes it distinctly wrongful. By delineating a moral distinction between terrorism offences and other crimes which share the same actus reus (such as murder), it is argued that the exclusion of motive would defeat the declaratory function of the criminal law to signify the use of violence for political, religious or ideological purposes as a discrete public wrong. However, in light of the strong social stigma and legal sanctions attached to the terrorist label, careful consideration must be given to the principle of fair labelling when defining ‘a terrorist act’. Fair labelling demands that offenders be labelled and punished in proportion to the degree of wrongdoing. In order to fairly label terrorism offences, the inclusion of a motive provides a clear indication of the degree of wrongdoing and, consequently, the level of legal and social sanctions which should be imposed on the offender. Furthermore, the strong political and moral judgment attached to the ‘terrorist’ label means that the term can be subject to misuse. The added specificity of a motive element in the definition of a terrorist act can prevent the misappropriation of the label. Whilst this article ultimately supports the inclusion of a motive in the definition of ‘a terrorist attack’, there are clear evidential issues arising from the onus on the prosecution to prove the accused intended to advance a political, religious or ideological cause beyond a reasonable doubt. The motive element significantly broadens the scope of admissible evidence that would otherwise be impermissible, such as the accused’s religious beliefs or hatred for their country. Consequently, the admission of evidence to establish motive must be balanced against conventional safeguards in criminal procedure to protect the fairness of the trial and integrity of the criminal trial, such as the exclusion of prejudicial evidence under Section 137 of the Evidence Act . Finally, the motive element under section 100.1 is constitutionally valid as it does not violate the freedom of religion under section 116 of the Commonwealth Constitution and only prohibits the advancement of a religious cause through violent means. Ultimately, it is imperative that terrorism is carefully defined with reference to a clear motive element to accurately distinguish it from other types of offences and serve the criminal law’s declaratory function of communicating to offenders and society what makes terrorism distinctively wrongful. Deborah White Deborah White is a criminal prosecutor from New South Wales, Australia. She completed an MPhil in Criminological Research from the Cambridge Institute of Criminology and served as President of the Cambridge Graduate Law Society. Deborah holds a Bachelor of Law and International Relations from the University of Sydney. [1] Andrew Ashworth and Jeremy Horder, Principles of Criminal Law (Oxford University Press 2013) 155. [2] De Gruchy v The Queen [2002] HCA 33 [28] per Gaudron J, McHugh J and Hayne J. [3] Criminal Code 1995, (Cth) s. 100.1. [4] Frederick J Hacker, ‘Terror and Terrorism: Modern Growth Industry and Mass Entertainment’ (1980) 4 Terrorism: An International Journal 143. [5] Criminal Code (n 3) 100.1(1)(b). [6] ibid 100.1(1)(c). [7] ibid 100.1(1)(a). [8] The requirement for proof of mens rea is described by the Commonwealth Attorney-General’s Department as ‘one of the most fundamental protections in criminal law’ (Attorney-General’s Department (Cth), A Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers (2011) [2.26]). The principle of mens rea is confirmed in the Australian High Court case of He Kaw The v The Queen (1985) 157 CLR 523, 582. [9] Bernadette McSherry, ‘Terrorism Offences in the Criminal Code: Broadening the Boundaries of Australian Criminal Laws’ (2004) 27 UNSW Law Journal 354, 360. [10] Hyam v Director of Public Prosecutions (Cth) [1974] UKHL 2 [73]. [11] Alan Norrie, Law and the Beautiful Soul (The Glasshouse Press 2005) 37. [12] ibid 67. [13] Jeremy Horder, ‘On the Irrelevance of Motive in Criminal Law’ in Jeremy Horder (ed), Oxford Essays in Jurisprudence, (4th edn, Oxford University Press 2000) 114. [14] ibid. [15] DPP v Karabegovic (2013) 41 VR 319. [16] Director of Public Prosecutions (Cth) v Fattal [2013] VSCA 276. [17] Phillip Ruddock, ‘Law as a Preventative Weapon Against Terrorism’ in Andrew Lynch, Edwina MacDonald, and George Williams (eds) Law and Libery in the War on Terror (The Federation Press 2007) 5. [18] United Nations Human Rights Commission, UNComHR Res 2001/37: Human Rights and Terrorism (2001) Preamble. [19] Ben Saul, Defining Terrorism in International Law (Oxford University Press 2006) 36. [20] Kent Roach, ‘The Case for Defining Terrorism with Restraint and Without Reference to Political or Religious Motive’ in Lynch, MacDonald, and Williams (n 17) 39. [21] ibid. [22] Parliamentary Joint Committee on Intelligence and Security, Review of Security and Counter Terror Legislation (December 2006) 5.25. [23] R v Mallah [2005] NSWSC 317. [24] Criminal Code (n 3) s. 147.2. [25] Mallah [2005] NSWSC 317 [26]. [26] ibid 317 [38]. [27] Ashworth and Horder (n 1) 22. [28] Saul (n 19) 16. [29] Security Legislation Review Committee (Sheller Committee), Parliament of Australia, Report of the Security Legislation Review Committee (Australian Parliament House, 2006) 6.22. [30] Paul Wilkinson, Terrorism and the Liberal State (Macmillan 1977) 47. [31] Michael V Bhatia, ‘Fighting Words: Naming Terrorists, Rebels and Other Violent Actors’ (2005) 26(1) The World Quarterly 13. [32] Giovanna Borradori, Philosophy in a Time of Terror: Dialogues with Jurgen Habermas and Jacques Derrida (University of Chicago Press 2013) 105. [33] James Chalmers and Fiona Leverick , ‘Fair Labelling in Criminal Law’ (2008) 71(2) MLR 217-46. [34] Ashworth and Horder (n 1) 77. [35] ibid 79. [36] Andrew Simester and G R Sullivan, Criminal Law: Theory and Doctrine (3rd edn, Hart Publishing 2007) 30. [37] Criminal Code (n 3) s. 101.1. [38] ibid s. 101.4. [39] Saul (n 19) 5. [40] R v Ney [2021] NSWSC 529[166-167] per Johnson J. [41] Bhatia (n 31) 18. [42] ibid 19. [43] Commonwealth of Australia, National Counter-Terrorism Plan (4th edn, Australia and New Zealand Counter-Terrorism Committee, 2017) 10. [44] Papakosmas v The Queen (1999) 196 CLR 297[97]. [45] Elomar v R; Hasan v R; Cheikho v R; Cheikho v R; Jamal v R [2014] NSWCCA 303. [46] ibid 248. [47] ibid 156. [48] ibid 419. [49] ibid 409. [50] Fattal [2013] VSCA 276. [51] AB v Director of Public Prosecutions (Cth) [2016] NSWSC 1042. [52] AB [2016] NSWSC 104 [226]. [53] Fattal [2013] VSCA 276 [126] – [127]. [54] Khawaja v The Queen, 2012 SCC 69. [55] Criminal Code (Canada), RSC 1985, s. 83.01(1)(b)(i)(A). [56] Khawaja (n 54) 7. [57] ibid 6. [58] ibid 47.

Copyright exceptions are an important part of international and European copyright frameworks, designed to ensure the balancing of copyright with other fundamental rights and policy objectives. More and more, the increasing use of digital technology has challenged previously accepted copyright norms.[1] As a result, the EU and its Member States alongside many other states have sought to reform and update their laws to meet the challenges posed by a new era of creative works. The domain of copyright exceptions is no different. Ranging from the Information Society (InfoSoc) Directive in 2001[2] to the most recent Digital Single Market (DSM) Directive,[3] the EU has consistently sought to create a more unified and harmonious market ecosystem for intellectual property. These efforts have been targeted at reducing market fragmentation and ensuring the protection of core exceptions to copyright that are grounded in fundamental rights. However, such efforts have not always borne fruit and problems remain. For example, critics point to the limited and inflexible nature of the current framework which results in new technologies being stifled or else being unable to benefit from the protections offered by narrowly-drafted exceptions. In fact, in some cases, the approach taken by the EU in attempting to reform the area of exceptions has counter-intuitively led to more fragmentation of the internal market. This article aims to critically analyse the EU’s policy and legislative approach toward copyright exceptions, examining, with a view to reform, the achievements and shortcomings of the EU’s legislative efforts. For the purposes of this article, the term ‘exceptions’ will be used to refer to provisions within EU and Member State law that refer to similar concepts like limitations, defences, and so forth, although the author acknowledges that these terms can in and of themselves denote a certain preference as to the ideological conception of copyright.[4] It will begin by delving into the core reasoning for the existence of copyright exceptions, exploring the historical context found in the Berne Convention and the broader international and European copyright system. The article shall focus on a number of key exceptions falling within the scope and context of the InfoSoc Directive, using the areas of the ‘three-step test’, parody, private copying and temporary reproduction to illustrate the achievements and flaws within the copyright exceptions framework. The aim is to identify common principles and overall criticisms which pervade the domain of EU copyright exceptions. It will then move to examine the DSM Directive and the relevant achievements and flaws present there. The article will then move to consider the ways in which improvements could be made, including a brief consideration of the benefits of a ‘user right’ framework. Finally, the article will conclude by summarising the broad analysis of the EU copyright exceptions domain, its successes and failings, and the overall impact of such exceptions on the digital and tangible markets. Copyright Exceptions: Rationale and Policy Objectives To contextualise the discussion of copyright exceptions, it is worthwhile to first consider why exceptions are necessary in the first place. One of the most oft-advanced arguments in favour of exceptions is on economic and creative grounds. This argument in essence states that copying is a vital component of almost all creation and innovation, whether it be scientific, academic or purely recreational. Indeed, many services beneficial for knowledge-sharing, like Google Books, make use of copying technology.[5] This is particularly the case in the digital age, where online services like news aggregators, streaming services and meta-aggregation engines all challenge traditional norms in their use of works. While these copy-reliant services use other works, they are absolutely vital in the creation of a pluralistic and dynamic creative economy, one where innovation can thrive.[6] On further market-based grounds, the argument can be made that the use of material and its transformation can also encourage growth for the original work, such as with music sampling.[7] Many of the technologies and innovations today are built upon caching and temporary reproduction exceptions, thereby illustrating the clear necessity of exception in fostering a mature digital market. As a result of these benefits, market and innovation reasons are strongly embedded in the EU’s legal efforts at copyright exception harmonisation and the Union has explicitly acknowledged the benefits of copy-reliant technologies in the preambles to these directives.[8] Moreover, exceptions have their policy rationale firmly grounded in free expression and in related fundamental rights.[9] This line of policy argument in favour of exceptions is often raised in respect of the use of works for satire or parody purposes as well as for enabling access to information to those who are disabled, for instance the making available of materials to the blind.[10] This addition of speech considerations adds a constitutional dimension to any intervention in this area, meaning that competing rights must be weighed in any legislation. Although these rationales are supported by key human rights justifications, the scope of such rationale is narrow, often requiring non-commercial usage or attribution. Free expression is of course not an absolute right and must be balanced with the rights of creators to the benefits and usage of their intellectual property as guaranteed in the EU Charter of Fundamental Rights.[11] Without doubt, copyright exceptions have a clear and important place in the overall legislative frameworks that underlie the system. It can clearly be observed by examining these policy aims that the goal of copyright exceptions is the balancing of copyright privileges with other rights and objectives. As a result, it is important to analyse the successes and failures of EU copyright exceptions through this lens, identifying if and how the law on exceptions achieves a balancing act between copyright protection and other policy goals. Although nuance is important, for the sake of clarity, the core exception policy rationales for the purposes of this essay can be generally summarised thus: Firstly, the fostering of innovation and growth and the enabling of technological functionality. This goal is inherently linked to high-levels of market integration and the ease of cross-border trade. Secondly, the safeguarding of fundamental rights, particularly free expression albeit with the balancing of said rights with intellectual property protections. Having now established and mapped out the key policy objectives of the EU copyright exceptions regime, it is possible to evaluate effectively the impact that has been had by the various interventions into the domain. Copyright Exceptions in European Law: Vertical to Horizontal Development Copyright exceptions have a long history and can be traced far back. The Berne Convention, for instance, contains only one mandatory exception, specifically regarding quotation from works that have been made available lawfully to the public and only where that use is fair and not in excess of what is necessary.[12] Aside from that specific mandatory exception, all others are optional for contracting states, for instance in respect of teaching and research.[13] The test is also found in the TRIPS agreement[14] and in the World Copyright Treaty.[15] When considering copyright in the EU, it is vitally important to consider the drafting background and policy rationales that informed the creation of key legislative provisions. Prior to the introduction of the InfoSoc Directive, harmonisation of the copyright system across the EU was undertaken on a relatively piecemeal basis, generally targeted at very specific areas.[16]The first such efforts at harmonising exceptions came in the form of the Software Directive[17] with the Database Directive[18] following on in 1996. Both of these Directives contained mandatory exceptions that served to facilitate key policy goals in these specific areas, namely the encouragement of growth and innovation in these two technological areas. Although the concept of the digital single market is a relatively recent policy initiative, the idea of a more harmonised ecosystem for digital trade in the internal market is of much more substantial vintage. This is seen in the Commission’s move from piecemeal reform to a more concerted effort which manifests in the InfoSoc Directive. In essence, this was a move from vertical to horizontal legislative initiatives, aimed at ensuring the harmonisation of the internal market. The InfoSoc Directive: Lessons from Copyright Exceptions The InfoSoc Directive aimed to be a more ambitious attempt at modernising the copyright system, ensuring its suitability for the digital age. In particular, it came about as a response to concerns about the lack of harmonisation that existed between Member States in respect of artistic and literary works, something initially sparked in the Patricia decision.[19] The most key change to the framework was the introduction of a closed list of exhaustive exceptions.[20] However, it should be noted from the outset that only one, temporary reproduction, was a mandatory exception. The following sections will now analyse key exceptions and provisions, in essence using them as examples to illustrate the broader successes and failures of the InfoSoc Directive’s approach to copyright. Article 5(5) and the Three-Step Test Before launching into an analysis of the specific exceptions within the overall domain, it is useful to first consider one of the major early achievements of the InfoSoc Directive in achieving the key goals of EU copyright policy. The notion of the ‘three-step test’ is an important mainstay of the copyright system. The test originates from the Berne Convention’s 1967 revision.[21] It is set out as follows: It shall be a matter for legislation in the countries of the Union to permit the reproduction of such works in certain special cases, provided that such reproduction does not conflict with a normal exploitation of the work and does not unreasonably prejudice the legitimate interests of the author.[22] The test essentially was designed to act as a ‘catch-all’ provision to limit the scope of available exceptions to the reproduction right, something textually evident above.[23] The test was included in both TRIPS and the WIPO Copyright Treaty, with its aim being to act as a criterion for consideration in analysing compliance of all national exceptions.[24] Article 5(5) of the InfoSoc Directive formally imports and establishes the test within the EU legal order. Mazziotti notes that the inclusion of the ‘Three-Step Test’ in Article 5(5), and therefore specifically in EU law, constitutes a remarkable step toward the harmonisation of copyright exceptions within the Union.[25] The inclusion of the test ensures that national courts are steered toward a uniform application of copyright exception jurisprudence.[26] Without doubt, one of the key achievements in this regard has been the inclusion of the test, not only in mere international law but as a key part of the EU’s copyright framework, meaning it benefits from the doctrine of supremacy in its applicability. The imposition of the test helps to guide national courts in their adjudication, ensuring the harmonised application of the test across the EU and safeguarding against the risk of fragmentation arising from differing interpretation. Overall, the inclusion of the test in the InfoSoc Directive alongside the CJEU’s guidance has helped to cement the hard limits of copyright exceptions within the EU copyright framework. It is submitted that in this respect, Article 5(5) represents a major achievement in the domain of EU copyright exceptions. The fact that the ‘three-step test’ is now universally applied and interpreted across Member States serves one of the key policy objectives in this area, namely the harmonisation of exceptions across the Union. This positively impacts the market environment by ensuring consistency for creators, rights-holders, and users. The InfoSoc Directive’s Parody Exception: Striking A Balance One of the key areas where there has been achievement in the domain of EU copyright exceptions is in relation to parody works. The area of parody is one of the key collision points between intellectual property rights and fundamental rights, namely free expression.[27] As discussed above, it is important for legislators and the courts to strike a balance between these two categories of rights in order to protect both creators and users. It is important to note that in spite of the role of fundamental expression rights in the rationale for this exception, EU law does not conceive of this exception as a type of users’ right.[28] As such, this does not grant an actionable right in parody works but rather acts to permit an activity that would normally be infringement.[29] Parody by its very nature poses major problems from a copyright standpoint. Generally speaking, parody requires some form of a riff being made on a pre-existing work, meaning that some level of copying or infringement is essentially inherent in the creation of parody works.[30] It is for this reason that parody is not found as an explicitly acceptable ground under the Berne Convention[31] and Ricketson suggests that the provision of such a ground poses valid concerns for the EU’s compliance with the Berne Conventions obligations.[32] It is submitted that a parody exception is in keeping with the Berne Convention, insofar as it should be seen as constituting a special case not overly prejudicial to authors in accordance with Article 9(2) and thus compliant with the ‘three-step test’.[33] This is especially so given the free expression rationale and the safeguards against abuse present in European interpretation of this exception. Notwithstanding the lack of clarity regarding the Berne Convention, parody, pastiche and satire are specially recognised as exceptions to copyright in the InfoSoc Directive. Article 5(3)(k) of the Directive grants an exception to reproduction rights for parody works. The CJEU provided considerable guidance on the interpretation of the parody exception in the case of JohanDeckmyn and another v Helena Vandersteen and others (Deckmyn). [34] The instant case involved calendars that were produced by the first named party, a politician from the far-right Belgian political party, Vlaams Belang. The calendar’s cover comprised a parodied image based on a comic book drawing by Mr Vandersteen, which depicted the mayor of Ghent showering coins onto the ground for immigrants. As a result, the heirs of Mr Vandersteen launched proceedings for copyright infringement. In its preliminary reference, the Belgian court asked the CJEU for guidance in relation to whether parody constituted an autonomous concept in EU law and whether it was required to have certain characteristics to benefit from protection.[35] The Court held that, in order to satisfy the harmonisation goals in the Directive, the provision must be given “an autonomous and uniform interpretation throughout the European Union, having regard to the context of the provision and the objective pursued by the legislation in question.”[36] Jacques notes the strong emphasis placed by the Court on the nature of parody as an autonomous concept, ensuring the uniformity of its interpretation across Member States.[37] The Court further decided that permissible parody must display its own original character, be reasonably attributed to a person aside from the author of the original work, and also relate to or mention the source of the parody.[38] The test adopted in this instance clearly is not predicated on any element of the transformative nature of the parody work, which can be contrasted to the position internationally, for instance in the US.[39] However, the CJEU does require that the parody have an element of humour, which Karapapa notes is problematic for free expression, especially in a digital context.[40] Overall, however, it is submitted that the case of parody provides a good example of the achievements present in the EU’s approach to copyright exceptions. Through its decisive and rounded judgment in Deckmyn , the CJEU has acted in many ways as the driver of European copyright policy objectives. Its strong emphasis on the autonomous conception of parody can be observed as a clear indication of the Court’s desire to advance the harmonisation objectives of the Directive. While a preference is obviously present for better legislative provision, the Court’s emphasis on the core policy objectives ensures the success of this exception. Private Copying: Disparity and Discord in the Internal Market One of the best examples of where (due to the lack of mandatory exceptions) the degree of choice is left up to Member States is the issue of private copying exceptions. This area has generated a degree of debate in academic circles.[41] Private copying is set out in Article 5(2)(b) of the InfoSoc Directive.[42] It allows for a natural person to copy a work, provided it is done so in a non-commercial way and that the rights-holder receives ‘fair compensation’.[43] Member States can therefore create levies, allowing them to choose the arrangement of the scheme, the level of fair compensation to be paid out and, indeed, consider how harm is caused to right-holders in this situation.[44] Where private copying is an exception, a lack of fair compensation requires Member States to phase out levies in favour of technological solutions, ie DRM technologies.[45] While the level of fair compensation was largely left to the discretion of the Member States, the CJEU clearly identified it as an autonomous concept in EU law.[46] In Padawan, the CJEU held that as a result, uniformity was required amongst all states that had implemented the exception regardless of the Directive’s granting of derogation in this respect.[47] The administration of these levying systems has also raised a number of issues ranging from intermediary costs to lack of efficiency in collecting agencies.[48] It has also led to a great deal of legal action in which key clarification has been needed such as to whether national budget provision was acceptable[49] and other specific administrative details.[50] In many ways, the private copying exception acts as a case study in the risk of fragmentation that comes with the à la carte approach adopted in the InfoSoc Directive. It perfectly encapsulates the contradictions present in the internal market logic, where one private copying use can be totally legal in one Member State subject to fees while completely prohibited in another Member State. Similarly, the decision as to which devices should be subject to levies also was left to the Member State, meaning that the administration of levies will be localised to that state, thus creating a fragmented market. Indeed, even the levies charged vary widely between Member States, creating confusion and disparity, which serves to complicate cross-border digital trade. In spite of the CJEU’s interventions to provide clarity, the impact of non-mandatory exceptions is illustrated clearly in this example, highlighting one of the copyright exception domain’s most problematic flaws. Interpretation and Flexibility from the CJEU Moving on from specific exceptions, on a more general level it can be seen that the CJEU has in many cases acted as a driving force behind the harmonisation of exceptions, a fundamental aim of EU copyright policy in this domain. Another such example of this role can be seen in the area of interpretation under the InfoSoc Directive, specifically in regard to exceptions. There exists in the domain of copyright exceptions the general principle that any exceptions provided must be interpreted by the courts in a strict way. This has been acknowledged by the CJEU in a number of decisions.[51] The Court’s interpretative role was also seen in the substantial jurisprudence arising out of the temporary reproduction exception.[52] There, a strict interpretation was identified as being vital to harmonisation, and the aim was to facilitate the operation of new technologies which relied on such an exception to exist. However, in general, the InfoSoc Directive aims to strike a balance between rights-holders’ interests and those of users, seen for instance in Recital 31. That Recital mandates that exceptions should be effective in achieving their stated aim.[53] This means that the strict interpretation normally applied can be tempered to allow an exception to fulfil its purpose. Further precision has been added to this by the CJEU’s jurisprudence, most notably in the Painer decision.[54] This case involved the claimant, Ms Painer, a photographer whose photographic portraits of a missing girl were used in newspapers without her consent. In interpreting the quotation exception, the Court held that the strict interpretation can give way to a more purposive understanding of the provision which strikes a better balance between copyright and free expression. As was further noted in the aforementioned Deckmyn decision, the strict interpretation cannot be allowed to make the exception redundant. Although the stricter interpretation errs on the side of protecting the rights-holders as per the general principle, the Court acknowledged that a risk was posed to the functionality of the exception if the interpretation was too rigid.[55] Thus, it held, the correct approach was to allow the exception to fulfil its policy purpose. What these judgments illustrate is the CJEU’s overall desire to adopt a more purposive approach, with the broader aim of protecting exceptions and the policy objectives they pursue. While the argument can certainly be made that the EU approach to copyright exceptions is overly strict and rigid, this is an example of how flexibility from the courts can best advance the fundamental aims of copyright policy, namely in facilitating new technological growth.[56] The DSM Directive: Exceptions for a Mature Digital Market While the InfoSoc Directive was not the only update to copyright law at a European level, in many ways copyright remained fairly static even in the face of a rapidly changing digital economy. In the realm of exceptions, one example is the Orphan Works Directive[57] which simplified and harmonised the system for the use of orphan works across the Union, although it is still subject to substantial academic criticism.[58] Overall, however, with unprecedented technological advancements, the proliferation of online content sharing and an explosion in the popularity of user-generated content, it was clear that updates were seriously needed to the copyright framework. After over a decade of policy considerations, the DSM Directive aims to update copyright in the EU, including in the area of exceptions. For example, Article 3 of the DSM Directive provides for a mandatory exception in respect of text and data mining, one which previously existed only in domestic legislation.[59] One of the key benefits of this exception is that it is mandatory, ensuring that lawful users (i.e., researchers and universities) can benefit from their work across all Member States.[60] Another area where the DSM Directive brings some clarity is the cross-border online teaching exception, which previously lacked harmonisation and created much legal uncertainty for teachers with resultant discord for the internal market in that area.[61] Again, it is posited that one of the primary benefits to be found here is the fact that this exception is mandatory, ensuring consistency and legal certainty. Unfortunately, there are concerns about the impact that the DSM Directive will have on freedom of expression. Article 17 of the DSM Directive, in practice, requires online content-sharing service providers to obtain authorisation from rights-holders for user content that makes use of copyrighted works based on the designation of their activities as being ‘communication to the public’.[62] However, in order to know that user content contains copyrighted works, these services will have to engage in oversight which enables them to act accordingly.[63] The Article thus seemingly creates an obligation to monitor or filter content, although bizarrely this would contradict Article 17(8)’s exemption from general monitoring.[64] This is something which will inevitably be performed using algorithmic moderation systems.[65] The use of algorithmic or artificial intelligence-based content moderation as envisaged under the directive arguably places many of the expression-based exceptions at risk, given the lack of nuance that can often be observed in AI systems. For instance, one can easily imagine an algorithm having difficulty establishing whether a piece of parody content is unique enough to avoid being removed. While there may be the opportunity to appeal, it is argued that such measures will invariably have a chilling effect on free expression.[66] Such a result is therefore a clear indication in the failure of the legislation to safeguard the raison d'être of the parody exception.[67] While some exceptions are carved out, it remains to be seen how effective they will prove and whether the parody exception can be protected in this new regime.[68] Overall, the DSM Directive provides a number of new and necessary exceptions that fundamentally serve the aims of EU copyright policy. There certainly are flaws that underlie the system generally but it is argued that several of the new inclusions are welcome additions. Critical Analysis and Opportunities for Reform While it might appear that the harmonisation achieved in respect of exceptions is substantial, in fact the overall impact is more modest. The fact that many of the exceptions are optional has meant that a contradiction exists between the stated policy goals of the legislation[69] and the actual outcome that has occurred as a result. Indeed, a large degree of disparity exists between domestic copyright laws across the Member States more broadly.[70] One of the lessons that can be drawn from analysing the provisions under EU copyright law is that the failure to provide for mandatory exceptions has led to divergence and discord for the market, something clearly evident from the private copying exception. While the development of an exhaustive list of copyright exceptions is indeed an achievement in the harmonisation of this area of law, unfortunately the failure to make the exceptions mandatory undermines that achievement.[71] It is argued that the key failure of exception policy is the lack of mandatory exceptions which has caused numerous issues. In general, future reforms to the area of copyright exceptions would be well served by ensuring that they are mandatory and that the choice offered to Member States to derogate is severely reduced. This would help to prevent fragmentation within the digital single market and provide clarity to creators and users, thereby allowing for innovation and growth in line with broader policy objectives. It also would ensure universal protection of free expression rights, without the need for judicial intervention to clarify the area. One possibility for truly harmonised reform would be the introduction of a European copyright code, one that is mandatory and comprehensive. The author is sceptical as to the feasibility of such a proposal. Arguably, many of the issues identified throughout the areas considered above could be remedied by a radical shift in the conception of exceptions. One possible way for this to occur would be through the reform of the exceptions system to provide for a broad user rights norm that would grant flexibility and user-based enforceability to the current domain.[72] Mazziotti argues that shifting from a system of exceptions toward a system of user rights would help to better balance the rights of copyright holders and those of end-users.[73] He envisages categories of non-waivable and harmonised user rights that fall within the broader fair use structure, overall serving the purposes of market integration.[74] While it is not possible in the scope of this essay to engage in a broader discussion about the need for a shift to a user rights framework, the author is of the view that this would be a positive way to ensure that copyright remains balanced in the digital age and it would safeguard a rights-based approach. Furthermore, a mandatory system of user rights would enable a smoother harmonisation, limiting the ability for Member States to derogate too widely and thereby undermine a core policy objective. Nonetheless, while the DSM’s provisions seem to take a step in the right direction, it can be observed that the copyright exceptions system currently in place is a patchwork of measures, each with achievements and flaws. While the achievements have served the policy goals well, the flaws have harmed the internal market and hindered harmonisation. Conclusion In conclusion, it is clear that in many ways the domain of copyright exceptions is a mixed bag with clear successes and failures evident in legislation and case law. The core aims of the exceptions are to further enhance the growth of innovation and growth while also protecting fundamental rights that could be restricted by strict insistence on copyright protections. Intrinsic to these goals has been the harmonisation of copyright exceptions in order to provide clarity and legal certainty to rights-holders and end-users alike. In specific areas, it is apparent that the domain of copyright has achieved successes. This is especially the case regarding the inclusion of the ‘three-step test’ within Article 5(5) which ensures the uniformity of interpretation across the Member States. Furthermore, the parody exception illustrates that a balance can be struck between rights within the scope of the InfoSoc Directive. However, while there are successes, shortcomings are also present in the framework. One of the key failures is the complete absence of more mandatory exceptions, which leaves the system for copyright exceptions largely fragmented and lacking in certainty. This problem is best showcased in the area of private copying, where the non-mandatory character of that exception has led to a broad divergence in its application. This lack of clarity invariably has impacts on the integrity of the single market, both in a digital and physical sense. The unfortunate contradiction is that exceptions, which are designed to ensure stronger and more dynamic markets, end up causing fragmentation and weakening the efficacy of cross-border market exchanges of cultural and creative works. On a general level, it can be observed that the CJEU has time and again been the driver of copyright exceptions policy, reiterating the fundamental balance that must be achieved between copyright and the objectives of exceptions. Finally, it is submitted that the DSM Directive aims to take copyright policy in general into a more innovative and technologically advanced age. While the introduction of new exceptions for text/data mining among others are welcomed, concerns remain from an expression-based perspective about the risks that Article 17 may pose. Without doubt, copyright exceptions have a vital role to play in maintaining the overall functionality of the copyright system. Indeed, it is argued that this is especially the case in the digital market where exceptions are absolutely vital to enable the growth and development of innovative creative industries. It is argued that reforms are needed in the copyright system to best ensure that the EU’s key goals are met and that exceptions, contained within a well-designed framework, can serve as the counterweight to intellectual property rights, thus enabling an innovative marketplace and the safeguarding of rights. Daniel Mooney Daniel Mooney LL.B. (NUI), is an LL.M. Candidate in Trinity College Dublin, specialising in the area of intellectual property and information technology law. His research interests include platform governance, copyright, technology regulation and data protection among others. His work has previously been published in the Trinity College Law Review , De Lege Ferenda , and the Eagle Gazette . [1] See for instance Matthew Sag, ‘Copyright and Copy-Reliant Technology’ (2009) 103 Northwestern University Law Review 1607. [2] Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society, Official Journal L 167, (herein ‘InfoSoc Directive’). [3] Directive (EU) 2019/790 of the European Parliament and of the Council of 17 April 2019 on copyright and related rights in the Digital Single Market and amending Directives 96/9/EC and 2001/29/EC (Text with EEA relevance.) PE/51/2019/REV/1 OJ L 130, 17.5.2019 (herein, ‘DSM Directive’). [4] Annette Kur, ‘Of Oceans, Islands, and Inland Water - How Much Room for Exceptions and Limitations Under the Three-Step Test?’ (Max Planck Institute for Intellectual Property, Competition & Tax Law Research Paper Series No. 08-04, 2008) < https://ssrn.com/abstract=1317707 > accessed 1 December 2021. [5] For a critical analysis see Pamela Samuelson ‘Google Book Search and the Future of Books in the Cyberspace’ (2009) 94 Minnesota Law Review 1308, 1353. [6] Stavroula Karapapa, Defences to Copyright Infringement (1st edn, Oxford University Press 2020) 4. [7] Mike Schuster, David Mitchell, Kenneth Browne, ‘Sampling Increases Music Sales: An Empirical Copyright Study’ (2019) 56(1) American Business Law Journal 177. [8] See for instance InfoSoc Directive Recital 4 and DSM Directive Recitals 2, 5 and 18 etc. [9] See European Convention on Human Rights (1950), Article 10. [10] Directive (EU) 2017/1564 of the European Parliament and of the Council of 13 September 2017 on certain permitted uses of certain works and other subject matter protected by copyright and related rights for the benefit of persons who are blind, visually impaired or otherwise print-disabled and amending Directive 2001/29/EC on the harmonisation of certain aspects of copyright and related rights in the information society OJ L 242. [11] Charter of Fundamental Rights of the European Union OJ C 326, 26.10.2012, Article 17(2). [12] Tanya Aplin and Jennifer Davis, Intellectual Property Law: Texts, Cases and Materials (2nd edn, Oxford University Press 2013) 203. [13] Berne Convention for The Protection of Literary and Artistic Works (Paris Text 1971), Article 10(2). [14] Agreement of Trade-Related Aspects of Intellectual Property Rights, Article 13. [15] World Copyright Treaty, Article 10. [16] Annette Kur and Thomas Dreier, European Intellectual Property Law: Texts, Cases and Materials (1st edn, Elgar Publishing 2013) 270. [17] Directive 2009/24/EC of the European Parliament and of the Council of 23 April 2009 on the legal protection of computer programs, OJ L 111, 5.5.2009. [18] Directive 96/9/EC of the European Parliament and of the Council of 11 March 1996 on the legal protection of databases OJ L 77, 27.3.1996. [19] Case C-341/87 EMI Electrola v Patricia [1989] ECR 79 para 11. [20] InfoSoc Directive, Article 5. [21] Berne Convention for The Protection of Literary and Artistic Works (Paris Text 1971), Article 9(2). [22] ibid. [23] Karapapa (n 4) 134. [24] Mihaly Ficsor, The Law of Copyright and the Internet: the 1996 WIPO Treaties , their interpretation and implementation (Oxford University Press, 2002) 521. [25] Giuseppe Mazziotti, EU Digital Copyright Law and the End-User (1st edn, Springer 2008) 84. [26] ibid 85. [27] Karapapa (n 4) 169. [28] Sabine Jacques, The Parody Exception in Copyright Law (1st edn, Oxford University Press 2019) para 2.2. [29] ibid. [30] For further see Karapapa (n 4) 170-1. [31] Although see Article 9(2). [32] Sam Ricketson, WIPO Study on Limitations and Exceptions of Copyright and Related Rights in the Digital Environment (SCCR/9/7, WIPO 2003) 72. [33] Jacques (n 28) para 2.4.1. [34] Case C‑201/13 Johan Deckmyn and Vrijheidsfonds VZW v Helena Vandersteen and Others [2014] ECLI:EU:C:2014:2132 [35] ibid para 13. [36] ibid para 16. [37] Sabine Jacques, ‘Are national courts required to have an (exceptional) European sense of humour?’ (2015) 37(3) European Intellectual Property Review 134, 135. [38] Case C‑201/13 Johan Deckmyn and Vrijheidsfonds VZW v Helena Vandersteen and Others [2014] ECLI:EU:C:2014:2132, para 33. [39] Campbell v Acuff-Rose Music Inc 510 US 569 (1994) (USA). [40] Karapapa (n 4) 175. [41] DigitalEurope, Private Copying: Assessing Actual Harm and Implementing Alternative Systems to Device- Alternative Systems to Device-Based Copyright Levies (Digital Europe, Brussels 2015) 4 < https://www.digitaleurope.org/wp/wp-content/uploads/2019/01/Private%20Copying%20Assessing%20harm%20and%20implementing%20alternatives%20to%20copyright%20levies.pdf > accessed 11 December 2021. [42] InfoSoc Directive, Article 5(2)(b). [43] ibid. [44] Giuseppe Mazziotti, Copyright in the EU Digital Single Market (CEPS 2013) 97. [45] ibid. [46] C‑467/08 Padawan SL v Sociedad General de Autores y Editores de España (SGAE) [2010] ECLI:EU:C:2010:620 [47] Ibid, para 33-37. [48] Mazziotti (n 44) 103. [49] It wasn’t - C-470/14 EGEDA and Others [2016] ECLI:EU:C:2016:669. [50] C-572/13 Hewlett-Packard Belgium SPRL v Reprobel SCRL [2015] ECLI:EU:C:2015:750. [51] See for instance C-435/12) ACI Adam BV v Stichting de Thuiskopie and Stichting Onderhandelingen Thuiskopie vergoeding [2014] ECLI:EU:C:2014:254 at para 23. [52] See for example Case C-5/08 Infopaq International A/S v Danske Dagblades Forening [2009] ECLI:EU:C:2009:465; Case C-302/10 Infopaq International A/S v Danske Dagblades Forening [2012] EU:C:2012:16; C-429/08 Football Association Premier League and Others [2011] ECR I-9083 [53] InfoSoc Directive, Recital 31. [54] Case C-145/10 Eva-Maria Painer v Standard VerlagsGmbH and Others [2013] ECLI:EU:C:2013:138 [55] Case C‑201/13 Johan Deckmyn and Vrijheidsfonds VZW v Helena Vandersteen and Others [2014] ECLI:EU:C:2014:2132 at 14, 23. [56] Asta Tūbaitė-Stalauskienė, ‘EU Copyright Law: Developing Exceptions and Limitations Systematically – An Analysis of Recent Legislative Proposals’ (2018) 11(2) Baltic Journal of Law and Politics 162. [57] Directive 2012/28/EU of the European Parliament and of the Council of 25 October 2012 on certain permitted uses of orphan works Text with EEA OJ L 299, 27.10.2012. [58] Elenora Rosati, ‘The Orphan Works Directive, or throwing a stone and hiding the hand’ (2013) 8(4) Journal of Intellectual Property Law and Practice 303. [59] For example, the Irish Copyright and Other Intellectual Property Law Provisions Act 2019 s14. [60] DSM Directive, Article 3(1). [61] Tūbaitė-Stalauskienė (n 56) 163-4. [62] DSM Directive, Article 17(1). [63] Celine Castnets-Renard, ‘Algorithmic Content Moderation on Social Media in EU Law: Illusion of Perfect Enforcement’ (2020) 2 U. Ill. J.L. Tech. & Pol'y 283, 297. [64] Indeed, this is being disputed in legal action by Poland, see Michaela Cloutier, ‘Poland's Challenge to EU Directive 2019/790: Standing up to the Destruction of European Freedom of Expression’ (2021) 125(16) Dickinson Law Review 161, 187. [65] See Youtube’s Content ID system: Using Content ID (Youtube 2020) < https://support.google.com/youtube/answer/3244015?hl=en > Accessed 10 December 2020. [66] Timothy Chung, ‘Fair Use Quotation Licenses: A Private Sector Solution to DMCA Takedown Abuse on YouTube’ (2020) 44(1) Columbia Journal of Law and the Arts 69. [67] See the cautionary commentary in Deckmyn . [68] Castnets-Renard (n 63) 283, 301. [69] See generally InfoSoc Directive Recitals 1, 4, 6, 7, 9 etc. [70] Christophe Geiger and Franziska Schönherr, ‘Defining the scope of protection of copyright in the EU: The need to reconsider the acquis regarding limitations and exceptions’ in Tatiana Synodinou (ed), Codification of European Copyright Law: Challenges and Perspectives (Kluwer Law International 2012) 142. [71] Bernd Justin Jütte, Reconstructing European Copyright Law For The Digital Single Market: Between Old Paradigms and Digital Challenges (1st edn, Nomos 2017) 244. [72] Tūbaitė-Stalauskienė (n 56) 174. [73] Mazziotti (n 25) 288. [74] ibid 289.

I. Introduction The rise of family-owned businesses has resulted in the clustering of several companies and their subsidiaries under the control of one family or shareholder.[1] Such concentration of companies, in one hand, has the potential to cause conflicts of interest between promoter entities and minority investors.[2] If the company were to profit, the same would be shared with the minority investors. But if the director/controlling shareholder syphons off the profits to themself or their relative, or to a company where they are a controlling shareholder, they would be able to consume a larger share of the profits. This is undertaken by shifting value from one company to another through self-dealing transactions within the company management.[3] An atmosphere where RPTs are imbued could be challenging even when they are undertaken in good faith.[4] The corporate governance structure could be negatively impacted by the existence of relationships amongst companies which could impact transactions and disclosure obligations.[5] The existence of such an atmosphere could warrant the presence of expropriation, which means that the profits of a company are either in a position of or are actually being accrued by another entity.[6] For real expropriation to occur, the assets, profits or property should be owned by an entity, but another person or entity would be in possession of them or would be unjustly benefited by them.[7] Such expropriation has the potential to cause huge losses to shareholders, management and beneficiaries of the entity and can also negatively impact the capital market regime of the industry.[8] However, mere appearance or the presence of conditions that enable expropriation could cause damage even without the actual harm, as it would affect inter-personal relationships in the governance structure. These negative perceptions could also negatively impact the country’s capital markets regime and further the deterioration of equity markets.[9] Therefore, it is imperative to enforce strong disclosure regulations and transparency requirements to avoid even the pre-supposition of abuse. The Securities and Exchange Board of India (‘SEBI’) issued the Sixth Amendment in the LODR Regulations,[10] which has been discussed in the paper. The paper illustrates how the partial transplantation of the English corporate regulation regime in India[11] has resulted in dissonance and inconsistencies, which could cause disinvestment and challenges in the cross-border transactional market. Through the analysis presented herein, the author intends to demonstrate how the current RPT regulation could prove to be insufficient in entrapping RPTs even after the expansion of the scope of related parties and an increase in the materiality threshold. The article examines the genus of RPTs by traversing through the fiduciary duty of directors in both jurisdictions and unjust enrichment whilst presenting the need for the inclusion of more variables whilst computing the materiality threshold of RPTs in India. II. Tracing the History of Related Party Transactions The English law on RPTs emerged through equitable precedents, which aligned with the modern statutory rules for company incorporation in the 1840s and 1850s.[12] These principles were instilled only in 2006 when the Companies Act was enforced based on a ‘high level’ restatement of the precedents which had evolved through history.[13] These precedential rules were based on three essential concepts through which the equitable principles on RPTs evolved: conflict of interest, consent of the beneficiary,[14] and procedural management of the conflict.[15] The concept of conflict of interest helped identify the risk involved in RPTs and transactions between the company and a director directly or indirectly.[16] The genesis of this doctrine rests in the duty to avoid conflicts of interest due to a fiduciary duty that one party owes to the other.[17] English law emphasised the director’s fiduciary duty towards the company.[18] However, the duties of shareholders and directors who were also shareholders were regulated later.[19] Secondly, the beneficiary in such transactions, which is the company, could provide consent to such transactions. This would help in discharging the liability of the director.[20] The board members could give this consent through the procedure laid down in the articles of the company prior to the transaction being effectuated.[21] This feature is inter-linked with the last feature, i.e., procedural management of the conflict.[22] In case the procedure laid in the articles was not followed, the claimant need not bother about the favourability of the terms. However, if the procedure was followed, the court wouldn’t interfere with the terms of the transaction.[23] The requirement for voting was also inherent in the Indian Company laws on RPTs, which were modelled in response to the accounting fraud revealed at Satyam Computer Services[24] in an attempt to acquire two companies that were related to the company’s founder chairman.[25] The old Indian Companies Act of 1956, which was replaced by the new Companies Act of 2013, provided for restrictions on RPTs where transactions were directly or indirectly related to the director of a company. [26] It is essential to traverse through the scheme of the old Act in order to truly understand the progress in RPT regulations and the bedrock on which they reside. Further, such analysis demonstrates the presence of loopholes that haven’t been satisfactorily rectified in the new scheme. Section 299 of the 1956 Act required the disclosure of the director’s interest to the board of directors,[27] and Section 300 required the director to abstain from voting on such a transaction.[28] However, the requirements in the Act allowed significant loopholes. For example, Section 300 was not applicable on a contract with a public company or its subsidiary if the director was only related to the company in the capacity of a director but did not hold any shares, which made him eligible for a directorship,[29] or he held not more than 2% of its paid-up share capital.[30] Hence, these provisions essentially exempted some transactions where the director or his family had a significant stake due to complicated ownership structures. Further, Section 295, 301 and 297 also included provisions on RPTs alongside Accounting Standard 18 (‘AS 18’) issued by the Institute of Chartered Accountants of India.[31] RPTs were defined in AS 18, but they were limited to relationships where one party was controlled by the other.[32] Hence, the disclosure requirements under Clause 49 of the Disclosure and Investor Protection Guidelines, 2000 were not applicable on several RPTs occurring amongst sibling companies within the promoter entity.[33] However, the scope of RPTs has significantly expanded both in India and the UK after the introduction of the Securities and Exchange Board of India (Listing Obligations and Disclosure Requirements) (Sixth Amendment) Regulations, 2021[34] and Financial Conduct Authority’s Policy Statement PS19/13.[35] III. Extent of Fiduciary Duty in India and UK The director’s fiduciary duty in both jurisdictions has been to avoid situations where their duty towards the company conflicted with their personal interests.[36] For example, Lord Cranworth in Aberdeen Railway v. Blaikie Bros [37] stated, ‘no one, having [fiduciary] duties to discharge, shall be allowed to enter into engagements in which he has, or even can have, a personal interest conflicting, or which possibly may conflict, with the interests those whom he is bound to protect’. Similarly, in the case of Newgate Stud Co. v. Penfold ,[38] it was observed that the self-dealing rule wouldn’t apply if the purchase of a corporate asset were made without full disclosure by the director’s relative, in their own name and not as a nominee of the director. However, the fair-dealing rule would be applicable. The director would have to demonstrate that the transaction furthered the company’s success, and this test wouldn’t be complete just by ‘equating it with the lowest non-negligent valuation’[39]. This duty is enshrined within Section 117 of the 2006 Act, where the director is supposed to disclose to the board if he is in any way interested in a transaction with the company.[40] The consequences of breaching the fiduciary duty are that the contract would become binding on the company only if it is ratified by the shareholders ex ante or ex post.[41] Further, the director is supposed to account for all the profits accrued by him through the transaction and compensate the company for the damages caused.[42] The Report of the Expert Committee on Company Law in India effectively relayed the fiduciary duties of the directors with respect to RPTs.[43] They include the duty of good faith, fair dealing, and no conflict.[44] The duties include the duty to abstain from voting on conflicted transactions and require adherence to the LODR Regulations, which specify the time and manner of disclosure.[45] The duty to disclose shareholdings in all companies are mentioned under Section 184 of the Companies Act, 2013.[46] Considering that the directors’ fiduciary duties in India correspond to those in the UK, the effective fulfilment of this duty would require effective identification and approval of RPTs. However, the gaps in the Indian framework make identification of such transactions difficult, which in turn causes a disadvantage to the company. IV. The Ambit of RPTs in Both Jurisdictions The recent amendments in the Indian LODR Regulations have vastly increased the scope of transactions that are now considered RPTs and have come closure to those in the UK. After the sixth amendment in the LODR Regulations, related parties in India include the following: ‘(a) any person or entity forming a part of the promoter or promoter group of the listed entity; or (b) any person or any entity, holding equity shares: (i) of twenty per cent or more; or (ii) of ten per cent or more, with effect from April 1, 2023; in the listed entity either directly or on a beneficial interest basis as provided under Section 89 of the Companies Act, 2013, at any time, during the immediate preceding financial year; shall be deemed to be a related party:’[47] Further, related parties are also defined under Section 2(76) of the Companies Act, 2013, which include the director’s relatives, key managerial person and their relative, firms where the director, manager or their relatives are partner(s), companies where director, manager or their relatives hold positions or own more than 2% of its paid-up share capital.[48] Lastly, any company which is influenced by the directions of said director, manager or relative.[49] However, the definition of related parties as mentioned in DTR 7.3 and LR 11.1.4, in addition to the above-mentioned categories, also includes a person who was a substantial shareholder,[50] director, shadow director of a listed company within 12 months before the transaction,[51] associates of related parties and persons exercising significant control.[52] Further, these guidelines also mention who qualifies as a ‘relative’ and detail several human relationships.[53] The laxity that can be noticed in the Indian framework is inherent in the aspect of ‘control’. The English concept of Persons with Significant Control[54] is a better tool for assessing which entity exercises control over the body corporate instead of the Indian concept of a promoter and controlling shareholder.[55] This is because a promoter is usually labelled as a person exercising control over the company in the prospectus irrespective of their shareholding as against the role of a promoter in the UK, which is company incorporation.[56] Due to this labelling, persons who aren’t in actual control could be held liable for omissions and non-compliance with SEBI LODR Regulations.[57] Therefore, promoters were allowed to re-classify themselves after adhering to the conditions mentioned under Regulation 31A of LODR Regulations, which requires having at least more than 10% of voting rights in the listed company.[58] This condition prevents the successful reclassification of promoters who have absolutely no control over the body corporate, making them liable for acts that should be attributed to controlling shareholders.[59] Section 2 (oo) (ii) of the ICDR Regulations states that control exercised by a director is also considered to be actual control, as against the English Company Statutory Guidance for PSC where directors aren’t considered PSCs just because of their role.[60] Therefore, due to the regulatory gap in the Indian concept of ‘control’, the sieve of RPT Regulations becomes narrow by encompassing a limited number of people as related parties. V. Challenges Posed by the Threshold of materiality The latest amendment to the LODR Regulations includes a change in the threshold of material related party transactions.[61] Material transactions require shareholder approval to go forward in both Indian and English jurisdictions.[62] Now, transactions exceeding Rs. 1000 Crore or 10% of the annual consolidated turnover (whichever turns out to be lesser) will have to obtain shareholder approval in India.[63] The amendment has been based upon the Working Group Report on RPTs.[64] The Report had recommended the threshold to be 5% of the turnover; however, SEBI increased it to 10%, which would result in the entrapment of lesser transactions as compared to what was originally suggested. Rule 15 of Meetings of Board and its Powers Rules read with Section 188 of the Companies Act, 2013 propose a test based on a company’s ‘net worth’.[65] However, Regulation 23(1) of the LODR Regulations did not contain this test post the amendment. The author argues that a test that fails to factor in the net worth, gross assets or profits might fail to provide apt results and, in turn, entrap transactions that either wouldn’t have been considered material due to these factors or wouldn’t include some transactions which are essentially material. Hence, a transaction is considered material in the UK if the percentage ratio is 5% or more when one applies the tests detailed in Annex 1 DTR 7 of the Disclosure Guidance and Transparency Rules.[66] There are essentially four tests: the gross assets test, profits test, consideration test, and the gross capital test.[67] These tests are formulas that equip variables like the gross assets of the issuer, profits attributable to the assets, the aggregate market value of all the ordinary shares and the gross capital of the company. The Indian regime only utilises the turnover and the 1000 Crore limit as thresholds for analysing the company’s financial standing with respect to the RPT.[68] However, analysis of terms like profitability, sales turnover, asset base, and capital are some of the essentials without which financial capability cannot be aptly assessed.[69] Utilising only one of the factors will not effectively determine the company’s performance; hence, at least some of these factors need to be considered whilst computing the materiality threshold in India.[70] Therefore, for an effective and holistic financial analysis, the English related party tests involve variables such as gross assets, indemnities and similar arrangements (which help in comprehending the size of the transaction and using correct data during calculations)[71], the market value of securities,[72] current capital ratio (current liabilities over current assets)[73] amongst others. These variables aid in understanding the capability of a company to meet its financial targets and its general solvency. The importance of factoring in such variables is amply evident in the empirical study conducted by Bărbută-Misu, Madaleno, and Ilie, where they demonstrate how swaying financial ratios, could be possible indications of a crisis. For example, the authors analyse the mortgage loan crisis that began in 2006 in the United States and later penetrated into banking networks of the US and European large-credit institutions.[74] Earlier, the Financial Conduct Authority had proposed to keep the materiality percentage ratio at 25% or more.[75] However, the threshold was lowered due to apparent disagreement in the investment market.[76] This is because FCA concurred with the argument that the issuer’s listing category shouldn’t adjudicate materiality; rather, it would be better to apply a single formula to all RPTs. Now, the 5% percentage ratio is set, which is consistent with LR 11 for premium listed issuers.[77] Further, the rules also provide for aggregation of all transactions which were effectuated within a twelve-month period of the RPT whilst assessing materiality.[78] When a material RPT undergoes a significant change after getting approved, the change will have to be approved by the board.[79] It will have to comply with disclosure and approval obligations separately. The FCA would regard a 10% increase in the consideration payable as a material change.[80] The problem of the non-inclusion of different financial factors whilst deciding on the materiality of RPTs works against the principles of unjust enrichment and corrective justice. Furthermore, this results in ignorance of the repercussions of breaching the requirement of gaining shareholder approval under the fiduciary duty. Hence, in essence, the director would be liable to return the profits made in the course of an RPT and indemnify the company but would go undetected. Instead, the profit accrued should be returned due to principles of corrective justice which influences the transactions between individuals and requires the fulfilment of the duty of restitution.[81] Corrective justice exists without external rules of dissemination of equality.[82] It proposes the existence of equality between parties to a transaction.[83] Unjust enrichment in both jurisdictions involves the term ‘unjust’ to be supplemented by an act of duress, undue influence, coercion, mistake, or lack of consideration.[84] This essentially means that the lack of the plaintiff’s consent or vitiation of the same is the primary contributing factor in the principle of unjust enrichment.[85] Hence, ignorance could also be interpreted as a contributing factor because it depicts the absence and not just vitiation of consent. Therefore, considering the failure to disclose material RPTs, either intentionally or due to regulatory gaps, aids the director or manager or profit on account of the corporate entity, the lack of consent of shareholders fulfils the requirement for unjust enrichment. According to Weinrib,[86] the defendant should undo the unjust transaction and obey the defendant’s duty of restitution, which has also been modelled into the Indian and English Laws. This can only be done by creating an effective sieve to filter out material transactions by considering the various financial factors whilst computing materiality. The number of listed companies trading in the National Stock Exchange in India was 2005 in September 2021,[87] whilst those trading in the London Stock Exchange were 2009 in November 2021.[88] Therefore, the number of companies subjected to RPT regulations in both jurisdictions is approximately similar, making the assessment goal comparable. Hence, the sieve of regulation that would strain out material RPTs should be of a common nature. However, due to the ignorance of various financial factors highlighted above, the orifices in the sieve seem comparably larger, resulting in the non-entrapment of certain material RPTs. VI. Ramifications of the Indian Amendment Apart from the inconsistencies related to materiality, there are some concerns that can be attributed to the sixth amendment in the Indian LODR Regulations. The amendment now includes transactions undertaken between the listed company and related parties of its subsidiary or related parties of the listed company and the subsidiary, which will come into effect from April 2023.[89] However, there could be ramifications on ongoing transactions, which will now have to be re-classified as material or non-material and would have to repeat the process of prior shareholder approval. Hence, Regulation 23(8) of the LODR Regulations causes the concern of retrospective application of the materiality threshold as it states that, ‘All existing material related party contracts or arrangements entered into prior to the date of notification of these regulations and which may continue beyond such date shall be placed for approval of the shareholders in the first General Meeting subsequent to notification of these regulations’.[90] The consequences of this retrospectivity might cause an excess monetary burden to the company as in cases where the shareholders would withhold their approval; the company will have to terminate the transaction. Hence, the agreement which would have given rise to the transaction might penalise the company for breaching the terms of the agreement. Related party transactions occurring between a listed entity/its subsidiaries and any other entity will have to qualify the purpose and effect test from April 1, 2023.[91] The test states that whichever transaction between the above-mentioned entities has the purpose and effect of causing benefit to the related party will be construed as an RPT.[92] Even though the UK Premium Listing Rules have influenced this provision, the threshold for determining the ‘purpose and effect’ has not been elucidated by SEBI. Hence, SEBI should purposefully clarify this threshold to avoid practical obstacles. Additionally, the amendment requires obtaining the approval of the Audit Committee of the listed company to approve transactions between subsidiaries of the company which exceed or equal the Indian materiality threshold.[93] However, as per Section 2(87) of the Companies Act, 2013, these subsidiaries will include foreign subsidiaries.[94] Hence, a problem would arise when the approval of the Indian holding company is needed for effectuating a transaction between several overseas subsidiaries. For example, suppose two English subsidiaries of a company incorporated in India wish to transact, and the deal exceeds the 10% threshold. In that case, the transaction cannot be legally effectuated without the Audit Committee of the holding company’s approval. Further, there would arise a situation of conflict with the English laws if legal rules were to be imposed which are inconsistent with the Indian regime. Hence, complying with the fiduciary duty under Sections 173 and 174 of the English Companies Act, 2006 wouldn’t be sufficient. The directors will also have to adhere to the Indian guidelines and the Audit Committee’s approval. Therefore, they might lose their independence when their decisions are contrary to the approval/disapproval of the Committee. This, in turn, would stand contrary to the independent legal existence of the English subsidiary who would have a separate board of directors from the holding company, and those directors would have a duty towards the subsidiary only and not the holding company.[95] Further, in the case of Vodafone International Holdings v. Union of India , it was highlighted that ‘the legal position of any company incorporated abroad is that its powers, functions and responsibilities are governed by the law of its incorporation’.[96] The Court also clarified that the control of the parent company’s shareholders could not overpower the subsidiary’s board of directors as the board owes a fiduciary duty towards the subsidiary only and not the holding company.[97] Therefore, this inconsistency in the application of the Audit Committee’s approval would stand contrary to the precedent established in both jurisdictions and might expose Regulation 23 of the LODR Regulations to judicial review due to its extraterritorial application.[98] The same far-reaching effects on foreign subsidiaries will also be noticed in case of material modifications which will have to be approved by the Committee. Considering SEBI has not clearly defined what would constitute material modifications in RPTs,[99] the Audit Committee might exercise their opinion on the same and reject the material modifications approved in the English jurisdiction, creating another inconsistency. Moreover, SEBI has not excluded transactions that might be the customary business for certain companies and transactions done at an arm’s length from the ambit of Regulation 23,[100] increasing the burden on the foreign subsidiary. VII. Conclusion Construing the sixth amendment in the LODR Regulations to be applicable only on future contracts and not existing ones could provide a loophole to controlling shareholders who might unjustly enrich themselves before the amendment is enforced. Treating transactions under future contracts and those under pre-existing contracts differently might lead to inequality and discrepancies. Hence, the obligation to gain approval should be applicable on all contracts after the amendment is enforced. The amendment also goes on to include the promoter entity into the ambit of ‘related parties’.[101] However, this might prove burdensome for promoters who have been subjugated by this ‘permanent labelling’ and are not actually influencing investment decisions.[102] Even though this problem of labelling still subsists, the ambit of related parties has now been expanded. It governs persons holding equity shares amounting to 20% or more (with effect from April 1, 2022) or 10% or more (from April 1, 2023). These include shares held directly or on a beneficial interest basis as per Section 89 of the Companies Act, 2013 and might prove to be a positive step towards inculcating the ‘Persons with Significant Control’ regime and defining bright lines of control in India. However, the analysis undertaken delves into the cervices of RPT disclosure obligations that are analogous to a sieve. When strained through the sieve, some of these transactions would easily pass without shareholder approval due to gaps in regulations. Therefore, there is a need to reduce the sieve size and ensure adequate filtering and transparency to avoid illegitimate expropriation and unjust enrichment. Varda Saxena Varda Saxena is a final year law student pursuing the five-year BA LLB (Hons) programme from Jindal Global Law School, India. She is immensely interested in commercial law and has published articles on various academic platforms such as the International Company and Commercial Law Review Journal . She has also served as an Editor-in-Chief at various law-based academic blogs and loves to read about gender and decolonisation studies. This article was originally written in January 2022. The sixth amendment to SEBI LODR Guidelines has now been enforced. [1] Marianne Bertrand, Paras Mehta, and Sendhil Mullainathan, ‘Ferreting Out Tunnelling: An Application to Indian Business Groups’ (2002) 117 Q. J. Eco. N. 121, 126. [2] Ami Galani & Nathan Rehn, ‘Related Party Transactions: Empowering Boards and Minority Shareholders to Prevent Abuses’ (2010) 22 Nat’l L Sch India Rev 29, 32. [3] See Lucian A. Bebchuk & Assaf Hamdani, ‘The Elusive Quest for Global Governance Standards’ (2009) 157 U. PA. L. REV. 1263, 1307. [4] Zohar Goshen, ‘The Efficiency of Controlling Corporate Self-Dealing: Theory Meets Reality’ (2003) 91 Cal L Rev 393, 402. [5] Indian Accounting Standard 18: Related Party Disclosures [17]. [6] K. S. Thorburn, ‘Corporate Governance and Financial Distress’ in Hans Sjögren and Göran Skogh (eds), New Perspectives on Economic Crime (Edward Elgar 2004). [7] ibid. [8] ibid. [9] OECD, Guide on Fighting Abusive Related Party Transactions in Asia (2009) 11-12. [10] Securities and Exchange Board of India (Listing Obligations and Disclosure Requirements) (Sixth Amendment) Regulations, 2021 < https://www.sebi.gov.in/legal/regulations/nov-2021/securities-and-exchange-board-of-india-listing-obligations-and-disclosure-requirements-sixth-amendment-regulations-2021_53851.html >. [11] Afra Asharipour, ‘Corporate Governance Convergence: Lessons from the Indian Experience’ (2009) 29 Nw. J. INT’L L. & Bus. 335, 354. [12] Paul Davies, ‘Related Party Transactions: UK Model’ in Luca Enriques and Tobias Tröger (eds), The Law and Finance of Related Party Transactions (Cambridge University Press 2018) 361-399. [13] ibid. [14] John H. Farrar and Susan Watson, ‘Self-Dealing, Fair Dealing and Related Party Transactions—History, Policy and Reform’ (2011) 11(2) Journal of Corporate Law Studies 506. [15] Davies (n 12) 362-3. [16] Elizabeth A. Gordon, Elaine Henry and Darius Palia, ‘Related Party Transactions and Corporate Governance’ (2004) 9 Advances in Financial Economics 1. [17] Robert Flannigan, ‘The Adulteration of Fiduciary Doctrine in Corporate Law’ (2006) 122 Law Quarterly Review 449, 453. [18] See Aberdeen Railway Co v. Blaikie Brothers (1854) 1 Macq. 461; [1843-60] All ER Rep 249. [19] Companies Act, 2006, ch. 2. [20] Blair Leahy and Andrew Feld, ‘Directors’ Liabilities: Exemption, Indemnification, and Ratification’ in Company Directors: Duties, Liabilities, and Remedies (OUP 2017). [21] The National Archives, Relationship Between the Duties and the Detailed Rules Requiring Member Approval of Conflicts of Interest, Companies Act 2006 (Explanatory Notes) < https://www.legislation.gov.uk/ukpga/2006/46/notes >. [22] ibid. [23] Davies (n 12) 368. [24] Ajaz Ul. Islam, ‘Do Shareholder Activism Effect Corporate Governance and Related Party Transactions: Evidences from India?’ (2020) 13(2) Indian Journal of Corporate Governance 173. [25] P. C. Rasheed and T. Mallikarjunappa, ‘Related Party Transactions and Earnings Management: An Empirical Examination of Selected Companies in India’ (2018) 17(2) IUP Journal of Accounting Research & Audit Practices. [26] The Companies Act, 1956, No. 1 of 1956, s. 299-300. [27] ibid s. 299. [28] ibid s. 300. [29] ibid s. 300(d)(i). [30] ibid s. 300(d)(ii). [31] Bombay Securities Exchange, Listing Agreement Clause 49, § II(D), Explanation (ii). [32] Accounting Standard 18 (n 5) para 10-11. [33] SEBI (DIP) Guidelines of 2000, s. 6.8.3.2, Explanation I. [34] SEBI LODR (n 10). [35] Financial Conduct Authority, Improving Shareholder Engagement and Increasing Transparency around Stewardship, Policy Statement PS19/13. [36] Companies Act, 2006 (n 19) s. 175 (for United Kingdom) and Companies Act, 2013, s. 184 (for India). [37] (1854) 1 Macq 461 (HL). [38] [2008] 1 BCLC 46. [39] ibid 244. [40] Companies Act, 2006 (n 19) s. 117. [41] Benson v. Heathorn (1842) Younge & Coll. Ch. 326; Great Luxembourg Railway Company v. Magnay (No. 2) (1858) 25 Beavan 586. [42] J. J. Harrison (Properties) Ltd v. Harrison [2002] 1 BCLC 163 (CA). [43] Ministry of Corporate Affairs: India, Report of the Expert Committee on Company Law < http://reports.mca.gov.in/MinistryV2/related+party+transactions.html >. [44] ibid 1. [45] Securities and Exchange Board of India (Listing Obligations and Disclosure Requirements) Regulations, 2015, No. SEBI/LAD-NRO/GN/2015-16/013, reg. 4(2) (f). [46] Companies Act, 2013, s. 184. [47] SEBI LODR (n 10) s. 3 (I) a. (a). [48] Companies Act, 2013 (n 46) s. 2(76). [49] Companies Act, 2013 (n 46) s. 2(76)(vii). [50] Related Party Transactions: Premium Listing Rules, Release 14, 2021, r. LR 11.1.4 (1) < https://www.handbook.fca.org.uk/handbook/LR/11/1.html >. [51] ibid r. LR 11.1.4 (2). [52] ibid r. LR 11.1.4 (4). [53] Disclosure Guidance and Transparency Rules, Corporate Governance, DTR 7, s. 7.3.2 < https://www.handbook.fca.org.uk/handbook/DTR/7/3.html?date=2022-01-14#D50025 >. [54] Companies House, Guidance: People with Significant Control, Department for Business, Energy, and Industrial Strategy < https://www.gov.uk/guidance/people-with-significant-control-pscs >. [55] Securities and Exchange Board of India, Review of the regulatory framework of promoter, promoter group and group companies as per Securities and Exchange Board of India (Issue of Capital and Disclosure Requirements) Regulations, 2018 < https://www.sebi.gov.in/reports-and-statistics/reports/may-2021/consultation-paper-on-review-of-the-regulatory-framework-of-promoter-promoter-group-and-group-companies-as-per-securities-and-exchange-board-of-india-issue-of-capital-and-disclosure-requirements-re-_50099.html >. [56] Emma Silver Mining Co. v. Lewis (1879) 4 C. P. D. 396. [57] SEBI LODR (n 45) reg. 5. [58] ibid. reg . 31A (3)(b)(i). [59] Rukshad Davar, Kritika Agarwal and Rahul Datta, ‘Should Indian securities law shift focus from promoters to persons in control?’ < https://www.majmudarindia.com/insight/indian-securities-law-shift-focus-promoters-persons-in-control/ >. [60] Companies House, Statutory Guidance on the Meaning of ‘Significant Influence or Control’ Over Companies in the Context of the Register of People with Significant Control (2017) r 4.6, 4.10 < https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/675104/psc-statutory-guidance-companies.pdf >. [61] SEBI LODR (n 10) reg. 3(II)(b) 6th. [62] SEBI LODR (n 10) reg. 3(II)(c) for India and DTR (n 53) s. DTR 7.3.8 (2) for UK. [63] SEBI LODR (n 58). [64] Securities and Exchange Board of India, Report of the Working Group on Related Party Transactions (2020) < https://www.sebi.gov.in/reports-and-statistics/reports/jan-2020/report-of-the-working-group-on-related-party-transactions_45805.html >. [65] Companies (Meetings of Board and its Powers) Rules, 2014, r. 15(3)(a)(ii) (India). [66] DTR (n 53) Annex 1 DTR 7. [67] ibid. [68] SEBI (Listing Obligations and Disclosure Requirements) (Sixth Amendment) Regulations, 2021, w.e.f. 1.4.2022. [69] Panagiotis Liargovas and Konstantinos Skandalis, Factors affecting Firms’ Financial Performance: The Case of Greece (University of Peloponnese Press 2008). [70] Willy Muturi and Maleya M. Omondi ‘Factors affecting the financial performance of listed companies at the Nairobi Securities Exchange in Kenya’ (2013) 4(15) Research journal of finance and accounting 99-104. [71] DTR 7 (n 53) Annex 3 DTR 7. [72] DTR 7 (n 53) Annex 6. [73] DTR 7 (n 53) Annex 8. [74] Nicoleta Bărbuță-Mișu, Mara Madaleno, and Vasile Ilie, ‘Analysis of risk factors affecting firms’ financial performance—Support for managerial decision-making’ (2019) 11(18) Sustainability 4838. [75] Financial Conduct Authority, Proposals to Promote Shareholder Engagement: Feedback to CP19/7 and Final Rules , Policy Statement PS19/13 (2019) [1.37] < https://www.fca.org.uk/publication/policy/ps19-13.pdf >. [76] ibid. [77] LR (n 50) r. LR 11.1.10. [78] ibid. r. LR 11.1.11. [79] ibid. r. LR 11.1.7. [80] ibid. r. LR 10.5.3. [81] Andrew Botterell, ‘Property, Corrective Justice and the Nature of the Cause of Action in Unjust Enrichment’ (2007) 20 Canadian J L & Jurisprudence 275. [82] Zoë Sinel, ‘Through Thick and Thin: The Place of Corrective Justice in Unjust Enrichment’ (2011) 31(3) Oxford Journal of Legal Studies 553-554. [83] Peter Benson, ‘The Basis of Corrective Justice and Its Relation to Distributive Justice’ (1992) 77 Iowa L Rev 515, 540–41. [84] Lipkin Gorman v. Karpnale Ltd. [1988] UKHL 12; Indian Contract Act, 1872, s. 68-72. [85] Sinel (n 82) 555. [86] Ernest Weinrib, ‘The Normative Structure of Unjust Enrichment’ in Ross Grantham and Charles Rickett (eds), Structure and Justification in Private Law: Essays for Peter Birks (Hart Publishing 2008) 42. [87] ‘Business Growth in CM Segment’ ( National Stock Exchange ) < https://www1.nseindia.com/products/content/equities/equities/historical_equity_businessgrowth.htm >. [88] Number of companies on London Stock Exchange 2015-2021 ( Statista Research Department , 11 Jan 2022) < https://www.statista.com/statistics/324547/uk-number-of-companies-lse/ >. [89] SEBI LODR (n 10). [90] SEBI LODR (n 45) reg. 23(8). [91] SEBI LODR (n 10). [92] SEBI LODR (n 10) reg. 3(I)(b)(ii). [93] ibid reg. 3(II)(c)(b). [94] Companies Act, 2013 (n 46) s. 2(87). [95] A Guide to Directors’ Responsibilities under the Companies Act 2006 [2.15] < https://www.accaglobal.com/content/dam/acca/global/PDF-technical/business-law/tech-tp-cdd.pdf >. [96] Vodafone International Holdings v. Union of India (2012) 6 SCC 613. [97] ibid. [98] GVK Industries v. Income Tax Officer (2011) 4 SCC 36. [99] SEBI LODR (n 45) part C, schedule II, cl. 8. [100] SEBI LODR (n 45) reg. 23(5). [101] SEBI LODR (n 10) reg. 3(I)(a)(a). [102] Twenty First Report of the Standing Committee on Finance (2009-2010) on the Companies Bill, 2009, presented to the Lok Sabha and Rajya Sabha (31 August 2010).

I. Introduction From atoms to bits, digital convergence has made science fictions come true.[1] Web, mobile applications, smart homes, and increasingly more digital products have changed the way people interact with the world time and again. However, no matter how much technologies evolve, the ‘agree’ or ‘consent’ button is following like a shadow. From the start of this century to date, the ‘notice-and-consent’ model, as one of the most fundamental methods to protect the users’ privacy, still dominates the virtual world.[2] There are conflicting attitudes towards this long-established ‘consent’ model. Criticisms towards the consent model are prevalent, while the legislators seem to ignore them.[3] Academics claim the people today can no longer provide a meaningful form of consent,[4] some even say that the current model offers no choice at all.[5] However, this consent model is still at the heart of many data-protection legislations today worldwide,[6] such as the California Consumer Privacy Act 2018 and China’s Personal Information Protection Law 2021. This essay assesses the status quo of the consent model through the lens of this conflict. It aims to answer two questions: whether the consent model is still a reliable method for privacy protection today? If not, what can be done to bring it back on track? Section II of the essay analyses the two sides of the conflict. Section III then offers suggestions as to how to address problems of the current model summarised in Section II. II. The Two Sides of the Coin This section unfolds in two parts. The first part discusses the criticisms of the consent model which are primarily based on the definition of ‘valid consent’. The definition, provided by Kim, includes three essential elements: intentional manifestation of consent , knowledge , and volition/voluntariness .[7] The second part then considers the causes why, despite the criticisms, legislators still uphold the consent model enthusiastically. Intentional manifestation of consent ‘Intentional manifestation of consent’ means the ‘reason or purpose for the manifestation of consent is to communicate consent to the act’.[8] However, in the context of online consent, the constantly appearing cookie pop-up windows and agree buttons result in an end-user ‘consent fatigue’.[9] This consent fatigue, with the long-winded privacy notices, undermines the original purpose of consent; it only makes people more likely to ignore it.[10] Thus, can clicking the agree button be understood as a well-informed privacy trade-off? Knowledge Knowledge to consent means the person must understand what they are consenting to.[11] To conform to this principle, it is necessary that the information is clear and the person has the ability to understand.[12] Nevertheless, the majority of privacy policies today are filled with legal jargon deliberated word by word. They are not something that the average end-user could figure out.[13] More ironically, thanks to the rising complexity of the algorithm, the drafter of the statement or developer of the product even sometimes does not understand the real impacts behind the data processing activities they engaged.[14] The developers in commercial companies may be clear about the input and expected output of those algorithms, but they probably do not know how things are worked inside of the algorithm and what kinds of implications the algorithm may bring. Without accessible information, it is impossible that the users can make meaningful consent. Volition/Voluntariness Digital services are tempting people to trade off their privacy for de facto benefits. Nowadays, it would sound like nonsense if an email service charged a fee or Facebook and Twitter sent an invoice. It becomes so natural to have a pizza delivered to the door or have a ride ready in minutes by just clicking on a smartphone. These benefits make the consent seem to have voluntariness . Nevertheless, is that a real free choice? Voluntariness requires consideration of the cost of rejection. The wide adoption of the ‘take-it-or-leave-it’ model results in an either/or situation.[15] Rejecting the contemporary digital service means not merely refusing the convenience it brings but isolating oneself from the digital community and one’s generation. Moreover, taking a smart city as an example, refusing to give consent means removing oneself from the entire society.[16] The pressure and coercion[17] of exclusivity only leaves people a ‘free’ Hobson’s choice.[18] The above criticisms suggest an interim conclusion that the online consent model today fails to achieve all essential elements that could make consent meaningful; in other words, in practice, there is no valid consent at all. However, the reasons why legislators around the world still advocate the consent model are worth considering. The intuitive reason is that governments themselves also benefit from the consent model to realise projects such as smart cities and state surveillance. However, Susser’s work effectively summarises the deeper reasons: ‘it’s cheap, encourages innovation, and appeals to individual choice ’.[19] It means that such a ‘free-market’ approach[20] could help stimulate the economy at a minimal cost and simultaneously create an illusion of respect to individual choices.[21] This is the allure of the consent model, which sounds fair as an acceptable privacy trade-off appearing in the age of digital technology explosion.[22] Is the consent model still a reliable way to protect individuals’ privacy today? Yes and no. It is worth pointing out that the core rationale of the consent model still stands; both advocates and critics of the current model acknowledge the free-market approach that the consent model brings.[23] Even looking back at the criticisms, almost no one is attacking the rationale of the notice-and-consent model; the critics always go after the actual practice. The critics argue that it is impossible to make meaningful consent under information and power asymmetry.[24] III. Recommendation for a Way Out Given that the underlying rationale of the current consent model should be upheld, it is necessary to address the problems arising from the actual practice. I propose a solution which consists of three different levels of actions that would fulfil all three essential elements of consent in practice. Informational Norms Ben-Shahar and Schneider argue the simplest way to solve the knowledge issue is to give people more information.[25] This approach does not aim to train people as legal or computer experts, but to familiarise people with the context.[26] Sloan and Warner’s solution, called the ‘informational norms’, is an efficient way to achieve this. This proposal advocates establishing norms to govern data processing behaviours, so that people would have a reasonable expectation about what parts of their privacy they would trade off for the services, and in what contexts this trade-off scenario is taking place.[27] They used the analogy that it is very natural to understand ‘why your pharmacist may inquire about the drugs you are taking, but not about whether you are happy in your marriage’ to illustrate the importance of specific contextual knowledge.[28] Through the informational norms, an individual is equipped with the essential contextual knowledge to make such decisions regarding the use of their personal data. I suggest that the data protection authority coordinate with sector associations and non-profit organisations to establish such norms. They should then continue to run awareness campaigns to ensure that the users are well informed and companies to follow the new norms. Raising the Bar for Consent In practice, more and more companies are inclined to implement the consent model even if another lawful basis is available to choose. Susser’s study points out an important observation that the notice-and-consent model may be adopted as just ‘notice-and-waiver’.[29] This enables the companies to shield themselves from liability but reserve the inexhaustible potential of the data.[30]A report released by the President's Council of Advisors on Science and Technology of the Obama government states that ‘notice and consent fundamentally places the burden of privacy protection on the individual—exactly the opposite of what is usually meant by a “right”’.[31] Furthermore, it leads to consent fatigue. Thus, the second action in the portfolio is to raise the bar for consent usage. First of all, there should be a clear boycott against the current abuse of consent. For example, if the purpose is as simple as delivering a pizza order, the lawful basis shall simply be ‘contract’ rather than asking for ‘consent’.[32] Second, with establishing of the informational norms, a clearer sector-based legitimate interest justification could be formed. For instance, why not have personalised advertisements to be legitimate interests for those free services (e.g. Gmail)? If one worries about the level of personal data used in the advertisement, this should be addressed by advertising regulations such as the Committee of Advertising Practice code. Such efforts can restore the manifestation of consent : this significantly reduces the times of consent scenario the people face, and makes the people aware that if consent is required, it must be something they should pay special attention to. Meanwhile, these efforts also offer higher certainty for the companies to engage lawful basis of data processing activities other than the consent model, and the companies’ legitimate interests can be protected by the sector norms. Therefore, there is no more excuse for the take-it-or-leave-it model to continue to be adopted in so many data processing scenarios. Fundamental Safety Guard The last action is a fundamental safety guard. Zuboff,[33] Yeung,[34] and others[35] warn people against other risks of privacy infringement embedded in the current consent model, such as fake news, echo chambers, and data breaches. Thus, two related actions may be implemented to help form a fundamental safety guard. First, it should be similar to food safety regulations; there should be ‘hard boundaries’ for data processing activities that protect people from obvious harms.[36] One possible way would be to ban data processing activities, such as targeted political campaigns, which could cause obvious harms to public safety. Setting up a specific standard may be another choice. For example, China's Cybersecurity Law requires all systems which process personal data above a certain amount to pass a mandatory third-party cybersecurity audit.[37] Second, for those potentially high-risk activities, such as processing special categories of personal data, even with explicit consent, the system should log all activities associated and provide justifications of the output. These records would make retrospective/future investigations possible and deter unnecessary activities. Even though the scope of logging function is limited in the Section 62 of the UK Data Protection Act 2018,[38] this function was an example in which such a requirement to log can be implemented. The ultimate goal for the fundamental safety guard is to further shift the privacy protection burden back to companies and governments. However, there might be one last flaw in the foregoing three-levels solution, which is that it seems only applicable to private sectors. Indeed, it would be hard for any actions in the solution to restrict the power of the state. In that case, I suggest introducing a data trust[39] to deal with state-level data processing. An independent data trust which represents the collective citizens, authorised by the people, could be an efficient channel to fill the gap in the information and power asymmetry between an individual citizen and the state.[40] The pilot projects conducted by the Open Data Institute are excellent examples.[41] IV. Conclusion It is worth emphasising that the core rationale of the consent model is still valid. The issue today is that the people’s knowledge can no longer catch up with the explosive growth in technology. Meanwhile, the organisations and governments are circumventing their due responsibilities by abusing the consent model. The solution proposed in Section III restores the validity of the three essential consent elements. For the private sector, the core strategy is to reduce the unnecessary use of consent by diversifying its legal instruments. The informational norms establish the knowledge of the public and facilitate the public’s understanding of different sectors’ legal interests. Raising the bar of consent mitigates fatigue to reinforce the intentional manifestation of consent . These two actions are more effective alternatives to the take-it-or-leave-it model, which makes real voluntariness possible. Moreover, this combination could also help address the new emerging challenges such as the Internet-of-Things, which does not offer the chance for privacy statements to be presented in advance. Finally, the fundamental safety guard offers an extra protection to reassure the public that they are protected from obvious harms, which plays a crucial role in re-establishing public trust and confidence in the data protection legislation. For the public sector, an independent data trust could draw the power asymmetries back into balance. The solution to the dilemma is not a full abandonment of the consent model; this would not help. Instead, the real way out is to fully realise the advantages of the consent model through concrete and realistic implementation pathways and thereby make consent meaningful again. Jialiang Zhang Jialiang Zhang is a cyber security and data privacy professional who has worked in consulting and in-house roles for over a decade. After an LLM in Technology Law at Queen’s University Belfast, he is reading for an MAcc degree at Downing College, Cambridge. Benefiting from his interdisciplinary background, Jialiang is experienced in realising regulatory requirements in IT architecture design and is interested in quantifying cyber risks. [1] Andrew Murray, Information Technology Law: The Law and Society (4th edn, Oxford University Press 2019). [2] Alessandro Mantelero, ‘The Future of Consumer Data Protection in the E.U. Re-thinking the “Notice and Consent” Paradigm in the New Era of Predictive Analytics’ (2014) 30 Computer Law and Security Review 643. [3] Anne Josephine Flanagan, Jen King, and Sheila Warren, ‘Redesigning Data Privacy: Reimagining Notice and Consent for Human Technology Interaction’ ( World Economic Forum , 2020) < https://www.weforum.org/reports/redesigning-data-privacy-reimagining-notice-consent-for-humantechnology-interaction > accessed 29 November 2020. [4] ibid. [5] Lord Sales, ‘Algorithms, Artificial Intelligence and the Law’ (2020) 25 Judicial Review 46. [6] Flanagan, King, and Warren (n 3). [7] Nancy S. Kim, Consentability: Consent and Its Limits (Cambridge University Press 2019) 10. [8] ibid. [9] Daniel Susser, ‘Notice after Notice-and-Consent: Why Privacy Disclosures Are Valuable Even If Consent Frameworks Aren’t’ (2019) 9 Journal of Information Policy 37. [10] Flanagan, King, and Warren (n 3). [11] Kim (n 7). [12] ibid. [13] Helen Nissenbaum, ‘A Contextual Approach to Privacy Online’ (2011) 140 Daedalus 32. [14] Susser (n 9). [15] Robert H Sloan and Richard Warner, ‘Beyond Notice and Choice: Privacy, Norms, and Consent’ (2013) Suffolk University Journal of High Technology Law < https://papers.ssrn.com/sol3/Delivery.cfm/SSRN_ID2239099_code364457.pdf?abstractid=2239099&mirid=1 > accessed 28 November 2020. [16] Jennifer Cobbe and John Morison, ‘Understanding the Smart City: Framing the Challenges for Law and Good Governance’ in E Slautsky (ed), The Conclusions of the Chaire Mutations de l’Action Publique et du Droit Public (Sciences Po 2018). [17] Flanagan, King, and Warren (n 3). [18] Sloan and Warner (n 15). [19] Susser (n 9), my emphasis. [20] Sloan and Warner (n 15). [21] Flanagan, King, and Warren (n 3). [22] Sloan and Warner (n 15). [23] Susser (n 9). [24] ibid. [25] Omri Ben-Shahar and Carl E. Schneider, More Than You Wanted to Know: The Failure of Mandated Disclosure (Princeton University Press 2014). [26] ibid. [27] ibid. [28] ibid. [29] Susser (n 9). [30] ibid. [31] PCAST, Report to The President – Big Data and Privacy: A Technological Perspective (PCAST 2014) 38. [32] Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation) (hereinafter referred as ‘GDPR’). [33] Shoshana Zuboff, The Age of Surveillance Capitalism: The Fight for a Human Future at the New Frontier of Power (PublicAffairs 2019). [34] Karen Yeung, ‘Five Fears About Mass Predictive Personalisation in an Age of Surveillance Capitalism’ (2018) 8(3) International Data Privacy Law. [35] See e.g. Kathleen M Kuehn and Leon A Salter, ’Assessing Digital Threats to Democracy, and Workable Solutions’ (2020) 14 International Journal of Communication 2589. [36] Susser (n 9). [37] China Cybersecurity Law 2017, art 21. [38] Data Protection Act 2018, s 62(1). [39] Bianca Wylie and Sean McDonald, ‘What Is a Data Trust?’ ( Centre for International Governance Innovation, 2018) accessed 28 November 2020. [40] Anouk Ruhaak, ‘Data Trusts: What Are They and How Do They Work?’ ( RSA 2020) < https://www.thersa.org/blog/2020/06/data-trusts-protection?gclid=Cj0KCQiAh4j-BRCsARIsAGeV12CL1qnJPUAxOHc7ROKhlid5xQHrgKbQSAtS6XdINfwadAkjAeScWf4aAuz0EALw_wcB > accessed 23 November 2020. [41] The ODI, Data trusts: Lessons from Three Pilots (ODI 2019).

Between December 1949 and February 1950, three shipments, carrying a total of 3,824 crates of artefacts and artworks from the Qing imperial collection, left ports on the Chinese mainland for the island of Taiwan. Chiang Kai-shek was on the losing side of a four-year civil war against Mao Ze-dong’s communist forces, and was forced to relocate his Nationalist army to Taiwan, where he set up a government in exile. It was on the island that Chiang Kai-shek and his Nationalist Party, the Guomindang (GMD), would continue the struggle for Chinese sovereignty as the Republic of China (ROC). Back on the mainland, Mao Ze-dong consolidated political power under the Chinese Communist Party in the new People’s Republic of China (PRC). The story of the imperial collection closely intertwines with that of Taiwan’s national development, and it is through these 3,824 crates of imperial treasures, which became the core collection of the National Palace Museum, that we can trace Taiwan’s fraught navigation of political and cultural identity. Fig 1. Immortal Blossoms in an Everlasting Spring (Giuseppe Castiglione c 1723 (album leaf), ink and colours on silk, 33.3 x 27.8cm). National Palace Museum, Taipei. Wikimedia Commons. . The PRC/ROC schism of Chinese sovereignty also split the imperial collection of the Qing emperors, originally housed in the Forbidden City in Beijing. In 1925, the Forbidden City was converted into the National Palace Museum under Chiang Kai-shek’s Nationalist government. The war with Japan and the subsequent civil war saw the imperial treasures transported across the country to elude Japanese and then communist capture. In this 15-year odyssey, Nationalist forces moved the precious artefacts from Beijing to the seat of central government in Nanjing, and then to Shanghai and further inland to Chengchou, Changsha, and finally Chongqing, where the wartime government resided. By 1947, most of the treasures were back in Beijing and Nanjing, but when Mao’s People’s Liberation Army (PLA) threatened the administrative capital of Nanjing, the Executive Yuan (the executive branch of the Nationalist government) decided to urgently relocate the imperial treasures to the island of Taiwan. Curator Na Chih-liang’s meticulous records have preserved the details of the epic transfer: five shipments were planned, but only three took place, not to mention the countless artefacts that could not be packed and shipped from Beijing in time.[1] The 3,824 crates that made it to Taiwan represented only one fifth of the original cases moved south from Beijing in 1933, but these crates included many of the best works.[2] As a result, there are now two ‘Palace Museums’, the National Palace Museum in Taipei and the Palace Museum in Beijing (originally the Forbidden City), each housing a substantial portion of the most important treasures from the Qing imperial collection. The ‘One China’ of today’s politics mirrors the ‘Two Palace Museums’ in simultaneous existence.   The National Palace Museum in Taipei is most certainly equal, if not superior, to her estranged sister in Beijing, despite not being in its original home of the Forbidden City. Opening in 1965, the National Palace Museum houses some 650,000 items from across Chinese history, ranging from Neolithic jade pieces through Zhou bronze vessels to Tang (618-907) and Song (960-1279) painting and calligraphy.[3] The majority of the National Palace Museum’s collection comes from the Qing imperial collection, accumulated over the course of a thousand years by Chinese emperors and royal families across four dynasties.[4] It includes pivotal works by early painters from the Tang to the Song dynasties, such as the calligraphy of artist, scholar-official, and poet Huang Tingjian (1045-1105) and the Northern Song dynasty’s Emperor Huizong (1082-1135). The museum certainly has a claim to being one of greatest repositories of imperial Chinese art in the world, if not the greatest. Art scholars have described the collection as ‘a major artistic legacy of China’s cultural heritage’.[5]   Yet it is precisely as the keeper of ‘China’s cultural heritage’ that the National Palace Museum finds itself deeply entwined with Taiwanese political and cultural self-definition. The collection’s composition and name identify it as the inheritor of China’s ‘National’ treasures, belonging to four successive millennia of Chinese emperors. The ancient Chinese, in fact, regarded the person who possessed the imperial collection as the heaven-ordained emperor with the mandate to rule.[6] Chiang Kai-shek, appropriating the imperial collection under the National Palace Museum in 1925, and then relocating the collection to Taiwan in 1949, was therefore identifying himself and his Nationalist party, the GMD, with the mandated seat of Chinese government. It was culturally imperative to bring the imperial treasures with him from the mainland. The exiled ‘China’, on the island of Taiwan, was given legitimacy as protector, owner, and keeper of the imperial collection of the Chinese emperors. This mythos was shared by other officials in Chiang’s GMD. Na Chih-liang wrote several romanticised retellings of the collection’s odyssey in exile. He recounts how after surviving bombings, truck overturns, and even uncontrolled speeding boats, no item of the collection was damaged or lost on the perilous journey to Taiwan. His conclusion is equally epic: the imperial collection is ‘protected by heaven’ under Chiang’s GMD,[7] and the Nationalists, guarding the treasures surrounded with a ‘divine aura’, are the rightful inheritors of the Qing emperors’ mandate from heaven.[8]   Even the physical structure of the National Palace Museum reflects both evolution from and continuity with the Chinese emperors. The building’s architect, Huang Bao-yu, sought to create a psychological connection between the spatial atmosphere of the National Palace Museum and the imperial architecture of mainland China.   As the sunlight came out from the left-top of the National Palace Museum, it would cause a 45-degree angle shadow. When people stood in the shadow, they would feel like standing in front of the Meridian Gate [of the Forbidden City] in Beijing.[9]   The colour schemes of the museum actually deviate from those of the Forbidden City. Instead of the reds and yellows of imperial autocracy, the museum boasts brown walls and blue-tiled roofs evoking the nationalist republic.[10] Where form provides continuity with the imperial regime, colour evokes a transition into the republican order. This sense of historical connection was imperative for Chiang’s Nationalist government in a land of ‘exile’. Even the plan of the museum evokes traditional inheritance: the imperial treasures come to rest in a space that shares the dimensions of the grand mausoleums of Sun Yat-sen (founder of the Chinese republic in 1911) in Nanjing and the Ming emperor Hongwu (expeller of the Mongolian Yuan dynasty in 1368) in Xiaoling.   Chiang’s tenure as president of the ROC actually had more than purely symbolic parallels with the autocratic Chinese emperors. Upon landing in Taiwan, he initiated the island’s martial law period (1949-87), where political censorship, imprisonments, and executions were common. The saving grace for the National Palace Museum’s collection is, perhaps, that Taiwan escaped the Cultural Revolution (1969-79) that swept across mainland China. In Beijing alone, some 4,922 of 6,843 sites of designated ‘historical interest’ were destroyed. Luckily enough, though, the premier Zhou Enlai sealed the gates to the Forbidden City and prevented the Red Guard from ransacking the imperial collection in Beijing.[11]   Following the decline in the GMD’s political hegemony, the museum became the negotiating space for a rapidly changing Taiwanese identity. Today, Taiwan is recognisably democratic, with open elections and multiple credible political parties. In 2000, Chen Shui-bian’s Democratic Progressive Party (DPP) was elected to power. It brought an end to half a century of GMD control and offered, for the first time since 1949, a definition of Taiwanese identity that stressed independence from ‘China’. The National Palace Museum’s charter was subsequently changed in 2007 to reflect its mission to archive ‘domestic and foreign’ art, but the museum is still the locus of heated political debate in a Taiwanese landscape of changing cultural identity.[12] In February 2021, the National Palace Museum faced a naming controversy. It was reported that ‘it could be downgraded to fall under the jurisdiction of the Ministry of Culture, and that its name could be changed as part of a broader plot to ‘de-Sinicise’ it’.[13] The museum is currently under the direct jurisdiction of the Executive Yuan.[14] Should this change, the National Palace Museum, housing the Chinese imperial collection, would no longer be ‘National’, in a Taiwan that no longer explicitly considers itself ‘Chinese’.   The National Palace Museum’s collection has also been the locus for negotiating Taiwanese political and cultural identity abroad. The collection went on a landmark exhibition to the United States between 1961 and 1962. At the time, Americans saw the exhibition as ‘a reminder that the free Chinese are fighting to save their cultural heritage as much as to recover lost territories’.[15] Yet the UN expelled the ROC from its ‘China’ seat in favour of the PRC in 1971, and in 1979, as part of its diplomatic rapprochement with mainland China, the United States ceased recognising the ROC government in Taipei in favour of the PRC government in Beijing.[16] The name of the National Palace Museum’s next US exhibition, held in 1996, could not therefore include the term ‘Republic of China’. The ROC government eventually acquiesced to ‘Splendors of Imperial China: Treasures from the National Palace Museum in Taipei’.[17]   Today, Taiwan holds official relations with only 15 nation states, and international exhibitions are often inconceivable.[18] The National Palace Museum rarely lends its collection overseas, only organising six big foreign loans since its opening in 1965. These loans are only offered to countries that have passed laws granting exhibits immunity from judicial seizures. The fear is, of course, that the PRC government in Beijing would stake a legal claim to the imperial treasures. These laws are not widespread, and even a loan to Taiwan’s only diplomatic partner in Europe, the Vatican, has not been possible because Italy does not offer artworks such immunity from seizure.[19] Mainland China has consistently and unambiguously claimed sovereignty over the island as well as the collection, and under Xi Jin-ping, PLA activity has increased in the Taiwan Straits and the South China Sea.[20] In the event of armed conflict, the National Palace Museum’s treasures would be excluded from international protection under the 1954 Hague Convention. The PRC would ensure that any dispute is a ‘domestic’ one rather than an ‘international conflict’ that falls under the remit of the treaty.[21] The international tensions arising from the paradox of ‘One China’ can be felt in the realm of art as well as anywhere. ‘China’s’ once-united imperial collection exists dually, and the irreconciliation of the two halves causes friction in the dissemination and study of traditional Chinese culture and art.   A recent exhibition, however, could suggest a way forward. In 2015, to commemorate its ninetieth anniversary, the National Palace Museum in Taipei hosted a landmark exhibition of Giuseppe Castiglione’s (1688-1766) work: ‘Portrayals from a Brush Divine: A Special Exhibition on the Tricentennial of Giuseppe Castiglione’s Arrival in China’. The dates provide a pretty alignment. 250 years before the National Palace Museum opened its doors in Taipei and brought the imperial collection to the public’s shores in Taiwan, Castiglione landed in Macau from his native Milan and brought European painting techniques to the shores of China. Castiglione, who was known by his adopted Chinese name Lang Shi-ning, came to China as a Jesuit missionary, and served in the Qing court under the Kangxi (r 1661-1723), Yongzheng (r 1723-35), and Qianlong (r 1736-95) reigns. His work, consolidated as the personal property of the Qianlong emperor, was part of the imperial collection that formed the National Palace Museum in 1925. It is now split evenly between the Palace Museum in Beijing and the National Palace Museum in Taipei. For the exhibition, though, Beijing lent its collection of Castiglione’s paintings and sketches to Taipei. In fact, since 2009, the Palace Museum in Beijing has been repeatedly willing to lend and collaborate with Taipei, although the National Palace Museum does not loan works to Beijing.[22] This spirit of collaboration has allowed a wonderfully comprehensive and popular exhibition to go ahead.   It is noteworthy that a Qing, eighteenth-century European court painter was chosen for this blockbuster exhibition commemorating the ‘National’ Palace Museum. Castiglione’s work complicates the binary distinctions of ‘Chinese’ and ‘European’ art. His is work not of adherence to a ‘national’ identity, but of Early Modern global exchange and fluidity. The painting above (fig 1) is from Castiglione’s bird-and-flower album Immortal Blossoms in an Everlasting Spring , a masterpiece of the Yongzheng reign. It shows how Castiglione harmonised Western perspective and shading techniques with the Chinese ink-and-colour-on-silk medium, achieving innovative and striking compositions. Other paintings such as the monumental Hongli Troating for Deer , which represents the Qianlong emperor   on an imperial hunt, are considered by scholars such as Yang Bo-da to be collaborative. Castiglione’s European-style portraits are set in a traditionally Han Chinese ink-scroll landscape, likely painted by Tangdai, a Manchu artist.[23] The fluid blending of two modes of representation in Castiglione’s work underlines the ethnocultural syncretism of the Qing imperial polity.[24] The Qianlong emperor’s ‘National’ collection was one of multi-ethnic diversity. His own Qing dynasty was Manchurian, there were European artists working in the Forbidden City, and court art had to synchronise with, yet innovate from, the Han imperial academic models.   It is in this spirit of a distinctly un-‘National’ imperial collection that I would like to conclude. The imperial collection, like much of Chinese identity, is split between the Palace Museum in Beijing and the National Palace Museum in Taipei. However, a complex ‘One China’ need not be so restrictive to the dissemination of Chinese culture and art in the museum space. Collaboration between Beijing and Taipei, such as that for the Castiglione exhibition in 2015, can close, however momentarily, a stifling rift in what has always been an inherently multi-‘National’ imperial collection—to the great benefit of lovers of Chinese culture and art across the world. Though the National Palace Museum is indissolubly linked to an ever-changing Taiwanese identity, perhaps that change can be oriented towards a more dispersive definition of the ‘National’—one for those looking at Taiwan from both the inside and outside, at least in the realm of art and in the spirit of wider dissemination. Jean-Michaël Maugüé   Jean-Michaël Maugü̈é is a second-year undergraduate in English at Christ’s College, Cambridge, interested in art and culture. He has worked at Christie’s and McMillan Fine Art, a commercial art gallery in London. In 2020, he co-founded Christ’s College Poetry Society and led the publication of Voices in Isolation, a poetry and art magazine by students, fellows, and alumni. He is half French and half Taiwanese. [1] Na Chih-liang, The Past Thirty Years of National Palace Museum  (Chinese Book Series Committee 1957); Na Chih-Liang, Forty Years of National Palace Museum (The Commercial Press 1966). [2] Jeanette Shambaugh Elliot and David Shambaugh, The Odyssey of China’s Imperial Art Treasures  (University of Washington Press 2005) 96. [3] Lin Chiu-fang (ed), National Palace Museum: National Palace Museum Guidebook  (eleventh edn, 2003) 13. [4] Helen White, ‘Protecting the Past to Preserve the Future: A Case for International Protection of the National Palace Museum of Taipei, Taiwan’ (2009) 19(1) Kansas Journal of Law and Public Policy 148, 156. [5] Wen C Fong, ‘Chinese Art and Cross-Cultural Understanding’ in John P O’Neill and Emily Walters (eds), Possessing the Past: Treasures from the National Palace Museum  (Dora CY Ching tr, The Metropolitan Museum   of Art and the National Palace Museum 1996) 27. [6] White (n 4) 148. [7] Na Chih-liang, 70 Years in Guarding National Treasures of National Palace Museum  (National Palace Museum 1993) 198-203. [8] Huang Yi-chih, ‘National Glory and Traumatism: National/Cultural Identity Construction of National Palace Museum in Taiwan’ (2012) 14(3) National Identities 219. [9] Huang Baoyu, ‘The Architecture of the Chung-Shan Museum’ 1966 1(1) National Palace Museum Quarterly 69, 72. [10] Huang (n 8) 215. [11] Roderick Macfarquhar and Michael Schoenhals, Mao’s Last Revolution  (Harvard University Press 2006) 32-52. [12] Chi Wang, ‘Why Taiwan’s National Palace Museum Controversy is More than a Storm in a Teacup’ South China Morning Post  (5 Jan 2021) 1-6 < https://www.scmp.com/comment/opinion/article/3115954/why-taiwans-national-palace-museum-controversy-more-storm-teacup > accessed 10 Feb 2021. [13] ibid 4. [14] National Palace Museum, ‘About the NPM: Tradition & Continuity’ < https://www.npm.gov.tw/en/Article.aspx?sNo=03001502 > accessed 10 February 2021. [15] National Gallery of Art, ‘Introduction to Catalogue’ in National Gallery of Art, Chinese Art Treasures  (1960) 8. [16] White (n 4) 160. [17] Andrew Solomon, ‘Don’t Mess with Our Cultural Patrimony!’ New York Times Magazine  (7 April 1996) 10. [18] White (n 4) 160. [19] Treasure Island: Taiwan’s National Palace Museum’ The Economist  (16 February 2008) 386(8567) < https://www.economist.com/asia/2008/02/14/treasure-island > (accessed 10 February 2021). [20] ‘PLA Aircraft Drills Near Taiwan No Threat to U.S., Navy Says’ ( Bloomberg , 30 January 2021) < https://www.bloomberg.com/news/articles/2021-01-30/pla-aircraft-drills-near-taiwan-no-threat-to-u-s-navy-says?sref=HiTf60QO > accessed 10 February 2021. [21] White (n 4) 148. [22] Kristina Kleutghen, ‘Castiglione and China: Marking Anniversaries’ (2016) Journal18: a journal of eighteenth-century art and culture < https://www.journal18.org/nq/castiglione-and-china-marking-anniversaries-by-kristina-kleutghen/ > accessed 21 February 2021. [23] Yang Bo-da, ‘Lang Shining zai Qing neiting de chuangzuo huodong ji qi yishu chengjiu (Lang Shining’s Creative Activities at the Qing Court and his Artistic Achievement)’ in Qing dai yuanhua (Court Painting of the Qing Dynasty)  (Zijincheng chubanshe 1993) 49. [24] Dorothy Berinstein, ‘Hunts, Processions, and Telescopes: A Painting of an Imperial Hunt by Lang Shining (Giuseppe Castiglione)’ (1999) 35 RES: Anthropology and Aesthetics 170, 177.

Sylvana Tomaselli is a historian and lecturer in political philosophy at the University of Cambridge, where she is a fellow of St John’s College. Her work concentrates on eighteenth-century philosophy and theory, and she has written extensively on Locke, Hume, Smith, and Wollstonecraft. She is Advisory Editor for the Politics section of the first issue of CJLPA .   CJLPA : Please could you start by outlining the main premise of your recent book Wollstonecraft: Philosophy, Passion and Politics  (2020) and the context in which you started writing it? What key factors were involved in inspiring its argument?   Sylvana Tomaselli: I have been teaching and writing on Wollstonecraft for many years, and one concern I have had is the extent to which she is measured against conceptions of feminism—various feminisms—depending on what predominant feminism at any one time is. I’ve never felt happy about this because she wrote about other topics, and it is conceivable that she might not have been as intensely concerned with the condition of women, or at least not in a way that would be subsequently understood as the focus on her thought.   One of the things that I objected to was that everything she said was seen through the prism of A Vindication of the Rights of Woman , obscuring A Vindication of the Rights of Men , as well as her other writings. What was most important to me was ensuring some of her works didn’t obscure others. Then the question that I asked myself, given that I didn’t want to apply any labels—I find them unhelpful, at best—was how she would describe herself. Bless her, she does describe herself at least once as a philosopher and a moralist. This seemed to me an accurate representation of the way she thinks and the way she writes.   Having already written a great deal about her, with an emphasis on all the things she criticised—she criticised almost everything—I was rather bored with past ways of approaching her. I started asking myself, ‘What did she approve of?’, and when I realised I did not know this as clearly as I ought to have, I decided to explore what she liked in life. I started with the positives, not the negatives as we often do, and followed the format of her first publication On the Education of Daughters —a set of short essays on various subjects—to look at the things she appreciated. The book then followed this format, more or less.   CJLPA : The book is highly engaged in emphasising the connection between Wollstonecraft’s own biography and her philosophical interests and writings. What would you consider to be some of the most formative aspects of her political philosophy, and what themes were particularly recurring?   ST : I think I’m trying to find terms that are not overly identified with other thinkers, but she’s very much preoccupied by the fact that human beings, male and female, young and old, are not educated in a way which allows them to be what they ought to be. The question is: what did she think human beings ought to be? Well, she thought that they ought to be in a position to develop their bodies and their minds to the maximum. There’s a strong emphasis on the idea of potential. She thinks within a creationist perspective and, while it’s difficult to know the extent to which she adhered to any aspect of Christianity, it’s roughly a religious vision.   For Wollstonecraft, we are creatures with various potentials: physical, mental, as well as emotional. We must be encouraged to allow these potentials to flourish, to be realised. This might be referred to somewhat as an Aristotelian conception—that life is a project and one must have the requisite tools to deal with its opportunities. Still, she likely wouldn’t have thought it directly in these terms, and her focus was primarily directed at the challenges presented to life, as well as the impact of resilience in overcoming this. Wollstonecraft affirms that we have to be strong. We have to be strong of body and mind because in her world—but one might say in the world of most people today—life is very hard.   In relation to that, she argued that some people, particularly women, were not educated to be strong of body and mind. In fact, they were educated to be weak of body and mind—not at all resilient. She regarded this as a contradiction, given society’s expectation of women as mothers and wives. This combination of thoughts, that is, the gap between social expectations and social provisions, provides the foundations to her philosophy.   CJLPA : You highlight the impact of Burke, Rousseau, and Smith in shaping Wollstonecraft’s philosophy. In what ways was she influenced by them, and perhaps more significantly, in what ways did she diverge from their ideas?   ST : Well, she was perhaps most influenced by Burke. By influence, I do not mean that she adopted his views. She was deeply disappointed by his Reflections on the Revolution in France (1790), which indeed caused her and many others who thought Burke a friend of liberty to shift their positions. Equally, because of his criticism of Richard Price, the Dissenting Minister, whom she knew and was close to, she engaged in a very extensive critique of Burke’s work. That shaped her thinking, not because she adopted his views but because she was so determined to undermine him and everything he believed in. So it would be difficult to list all their divergences. That would simply be a reiteration of the whole Vindication of the Rights of Men  and indeed, of Woman . Of these, one could say that she disagreed with what he said on the sublime and the origins of ideas of the beautiful, in which she saw it said that we identify beauty with smallness and weakness, and that women therefore mimic the weak. She also disagreed with his views about the relationship between church and state. Initially, she disagreed with the praise he lavished on the English constitution, though she later modified her views on that. So, one might say that Burke’s thematic shaping of her work was commensurate to her disagreement with him. Interestingly, though, she did use Burke’s language of beauty and the beautiful in her letters from Scandinavia, so one might say she was in conversation with his semantic choices.   With regard to Rousseau, she disagreed with his view of the history of civilisation. She did not think that all had been well, and that the history of mankind was simply one of decline. She certainly didn’t think that the world was perfect at present, but she did think it could be made better. She did disagree very, very strongly with the account of education of Sophie—the protagonist’s female counterpart— in Émile . The education given to Sophie, for Wollstonecraft, is unsatisfactory in its own terms, but she similarly views it as a contradiction of Rousseau’s own premise.   In contrast to Rousseau and Burke, I actually think she agreed with Smith. What she took from him was that the intensification of the division of labour had a very baneful effect on the human mind and needed countering. Smith thought it should be countered by providing a modicum of education to those who would be taking part in menial repetitive work. I don’t think Wollstonecraft would have agreed with this. And this is not a disagreement with Smith as such, but its opposite. Rather than thinking that the intensification of the division of labour was an inevitable feature of the future of mankind, she thought that we should stop this process and ensure that no one is part of an economy such that they are engaged in tedious, repetitive work.   CJLPA : You highlight the importance of artistic performance to Wollstonecraft’s work, notably the impact of creation and the sense that the arts need some kind of ‘training or conditioning’ in order to be fully appreciated. How was this same strand of thought integrated into her political philosophy? Would it be appropriate to characterise it as an ‘Enlightened’ political philosophy, or would you say it is something else entirely?   ST : I wouldn’t call it ‘Enlightened’. Again, it’s a label. There are so many people who are called Enlightenment figures, but they’re very different and it doesn’t really tell us anything. I wouldn’t resort to that. Wollstonecraft did think about art a great deal, and this is because she was worried about imitative behaviour, but on the other hand she understood that education involves a degree of imitation. This was particularly true in relation to nature. Should one imitate nature? Is this possible? What is the relationship between art and representation, and how is the viewer positioned in all of this?   Her position on this was that art should not just be slavishly imitative. It mustn’t be affected or artificial, if you will. Her view of sculpture illustrates this well. She didn’t think that a sculpture of the human figure should be essentially a ‘photocopy’ of the body, and drew instead from her vision of how Greek sculptures were constructed: with a variety of angles and shapes taken from different sides. Equally, there was a sense that sculptures should be larger than life in quite a literal sense. The point of that is that art should effectively convey something. Now, what it should convey will obviously differ depending on the artist.   Wollstonecraft’s conversation on art is not by any means prescriptive. She’s very critical and concerned with its relationship to education. When it came to poetry, she sketched out the difficulties faced by imposing and teaching some of its stricter forms, proposing instead a more open-ended model of the arts in relation to individual growth.   CJLPA : Let’s turn to A Vindication of the Rights of Woman , arguably Wollstonecraft’s magnum opus. How did this text reconcile concerns with the legal status of women with a broader vision of humanity and its passion? What roles did imagination play in construing Wollstonecraft’s visions of politics and law?   ST : The Vindication of the Rights of Woman  is notable in part because it says relatively little about rights. At the beginning of the text Wollstonecraft says that she will write a second volume which will consider the rights of women. The hints we have towards this volume contain even fewer, if any, references to law and to the rights of women as legal persons. The notes are mostly about aesthetics and moral philosophy. This is because this is simply what she liked to think about. She liked to think about morality, moral philosophy, and the origins of our ideas—more generally, epistemological concerns. It’s not really a book that aims to reconcile concerns about the legal status, because those concerns are not truly its focus. What it essentially is, is a critique of a number of educational proposals for women and, indeed, for men. It proposes some forms of education and goes into some details about who should be taught when and what, and proposes that schools should be mixed.   The way in which she tries to convince what might be a recalcitrant readership is by showing the contradictions within society’s beliefs about women and its constitution more generally. So as I said earlier, there were strong expectations that women should fulfil their duties as wives, mothers, and neighbours, and she points to the way in which culture does everything it can to undermine women actually fulfilling these duties, and fails to prepare them for what these duties might actually be. Much of the text, then, is essentially holding a mirror to society and saying, ‘Look at women’, ‘Look at men’, and the way in which they negotiate so many aspects of social life. Look at the way people think about marriage, poverty, motherhood, etc, the way they conceptualise these things versus what they want effectively.   In turn, Wollstonecraft argues that if you really want women to be all of this and fulfil their roles and duties, you’ve got to give them their rights and the means to exercise them, and the means to this, broadly speaking, was education. The implication is that, in order for women to be as society expects them to be, men would have to be different. In order for men—and women—to be different, we would have to have a different culture and different conceptions of beauty and the sublime, and virtually a different conception of life on Earth.   So how does that fit in with visions of humanity and passion? Wollstonecraft argued that the current passion was to appear, to shine, to outshine, as evidenced in young women competing for the best match on the marriage market. Her question was then whether that should be the predominant passion when, even if one were a winner in that kind of game, it could ultimately lead to shallow unhappiness. Looks could fade, marriages would fail, feelings change. Wollstonecraft saw women who were now deeply unhappy and had no inner resources to contend with the vicissitudes of life—death, illness, loneliness. So there’s a sense in her work that the passions of her time needed to be changed. Wollstonecraft’s aspirations for men and women could not be remotely fulfilled if passions remained the same. In her view, men and women should not be driven by the desires to be admired or to project a certain appearance, of money or status. There was a need for something more substantial to guide people, both men and women.   CJLPA : Should we view A Vindication of the Rights of Woman  as the starting point for feminist philosophy, or should it be viewed as a continuation of all the ideas and themes that came before it? In what ways can it serve as a point of departure, and how did it perhaps lend itself to a multitude of feminisms? Does it, in some ways, set the tone for certain parts of Western feminism, and how has our present context transformed the way in which it might be read?   ST : Different periods have emphasised different parts of Wollstonecraft’s work, and academic and cultural concerns have shaped which parts are highlighted or actively rejected. I think she will always be an important thinker, but it will depend on what the issues of the moment are. For example, it’s much easier to teach Wollstonecraft now than it was in the eighties. We’re much happier to talk about women’s bodies, the need to be physically strong, issues, looks, and so forth, than we were in parts of the twentieth century. We do not at present denigrate motherhood the way that it was denigrated at earlier stages of the feminist movement. Equally, there was some concern over her views of sexuality. It seemed to some that she was for repressed sexuality. Many scholars looked down on Wollstonecraft’s discussion of marriage and motherhood because this did not fit with the main themes being explored at that time. She is much more of the moment.   She’s also much more of the moment because of her emphasis on resilience. COVID-19 has recentred the word ‘resilience’, whereas just even a few years ago, discussions of it were taken as old-fashioned. Wollstonecraft’s emphasis on that, along with education, are really crucial and contemporary. Her visions are also quite compatible with modern realistic utopian visions of a more decentralised, less consumer-driven world. Her critique of the slave trade and slavery is now very much integrated into debates on the relationship between feminism and anti-slavery, and has been particularly reinvigorated by our current context.   It’s very important to consider too what she reacted to herself. She lived in a politically interesting time and was deeply responsive to what she was seeing. It’s an interesting process: she responded to the world she saw and we, in turn, respond to her based on what is happening in our world. Nothing is independent. Maria Stella Sendas Mendes, the interviewer, is a second-year undergraduate in Politics at Peterhouse, Cambridge, with a keen interest in liberal political theory and comparative political economy. She is a first boat coxswain and former secretary at her college’s boat club, as well as the speakers’ officer for two politics societies at the university. She aims to pursue a career in commercial law.

Karl Heinz Bohrer’s A Little Pleasure in Decline. Essays on Britain. [1] My friend Karl Heinz Bohrer died on 4 August 2021. He was seen as Germany’s leading literary critic, a man both brilliant in perception and prodigious in industry, whose 29 books examine the German classical tradition with reference to the ancient writers whom Karl Heinz had known from his humanist education in Germany. He had polished up a last book shortly before he died which has now been published posthumously.[2] Karl Heinz wrote in German and very little is available in English. Just one of his books has been translated: Suddenness , in 1994.[3] But Karl Heinz lived a large part of his life outside Germany—it was almost as if his own country was ‘too small a bound’. When he was Professor of Modern German Literature at Bielefeld, he lived in Paris with his second wife Undine Grünter and commuted to the Ruhr to deliver his lectures. For three separate periods of his life he indulged his passion for Britain. The first was a short stay, but from 1968 onwards he returned again and again. After he stepped down as literary editor of the Frankfurter Allgemeine Zeitung or ‘ FAZ ’ in 1974, he ended up being the paper’s cultural correspondent in Britain for the rest of the decade. Finally, he was based in London for the last two decades of his life after marrying Angela Bielenberg, née Gräfin von der Schulenburg. That first short stay was in 1953 and is described in Karl Heinz’s first volume of autobiography Granatsplitter (‘Shrapnel’),[4] as indeed is his immediate post-war fascination with all things British. He was born in Cologne on 26 September 1932 and was twelve when the war ended. On his mother’s side he had Irish roots, which might have made him inclined to like the British soldiers who occupied the Rhineland. He developed a fondness for white bread and tinned sardines and, more importantly, his grandfather took him to see British films. Laurence Olivier’s Henry V of 1944 made a big impression on him. But another influence beckoned when he was sent from his humanist ‘Gymnasium’ or grammar school to a liberal boarding school in the Black Forest in the French Zone. There, he became aware of French cinema and existentialist philosophy. He was keen on drama at school, and even studied it briefly at University in Cologne before migrating to a more conventional study of German at Göttingen and Heidelberg, where he took his doctorate. Karl Heinz taught German briefly in Sweden, but his early years were spent in cultural journalism rather than academic life, firstly on the cultural pages of Die Welt in Hamburg and later in Frankfurt am Main, where he took on the most important critical role in Germany as the Literary Editor of the FAZ in 1968. In 1974, he handed over the reins to the redoubtable Marcel Reich-Ranicki. He submitted his second doctorate or ‘Habilitation’ on Ernst Jünger in 1977 and was appointed to the University of Bielefeld, where he was Professor of Modern German Literature from 1982 to 1987. This reversion to academic life had an ulterior motive: he had been promised the editorship of the intellectual monthly Merkur in succession to Hans Schwab-Felisch, but the editor needed to be a chair-holding professor. He was appointed to the post in 1984, standing down in 2011.[5] Siren-like, England continued to beckon from across the North Sea. Karl Heinz’s daughter Beatrice told me of arriving in Dover with her father, who informed her she was going to live in a ‘great country’. The Bohrers descended at an important moment in British post-war history, and, as it so happens, it is one that I also remember well, as it represented the period between my leaving school and leaving university. Britain was still locked in its post-war insularity. We had joined the Common Market on 1 January 1973, but there was no noticeable change in the way we lived our lives. In 1975 we had our first ever national referendum when elements on the right and left attempted to reverse the decision taken by Edward Heath’s government two years before. The word ‘sovereignty’ was on all lips. Europeans—foreigners—apparently didn’t understand the joys of sovereignty. Karl Heinz got to know a very different world to post-war West Germany. Middle and upper-class Britain was fiercely white, Anglican, and profoundly snobbish. Society was small and exclusive. I was related to no one and came from an obscure if independent school. In order to make sure little Johnny or Charlie was in safe hands, my Oxford friends’ parents (like the friends themselves) would extract the following details within the first ten minutes of conversation: name of school, religion, father’s occupation (and possibly how much he earned), and whether you were related to anyone grand or famous. As a Catholic from a single-parent household whose mother struggled as a painter and art-teacher I was not promising, but Catholics were nonetheless better than Baptists or Unitarians. Like Jews there were a few grand ones, although my Irish name meant there was little chance of associating me with the Brideshead set. Countless hapless undergraduates put on plummy accents or pretended to have gone to more famous schools than the ones they actually attended. In later life, they improved their CVs by saying they had gone to better-known colleges or universities. This cosy, exclusive world was cracking up in the face of economic and social crisis. Most of the members of my still single-sex college were from state schools, but the public schoolboys, above all the ‘top-ten’ public schoolboys, were much louder, so that you could be forgiven for not noticing the others. Karl Heinz’s love for Britain did not silence his critical voice. In 1975, the year I went up, he noted the ‘decrepit factories, the shrinking industrial production, the irrational labour models, the archaic structure of the unions, the pitiful understanding of British managers for the needs of foreign markets, their tendency to invest abroad, but not at home’. He wasn’t beating a drum, but Germans did better work, and on time. ‘The words “efficiency” and “plan” are unknown to British ears […] Rationalising is control and control is unacceptable. The more you know that you are swimming against the tide the more enjoyable it seems to push these new possibilities to one side’.[6] It was a decline that had started in the 1890s, when Britain had failed to keep up with Germany and the US. He quoted Arthur Koestler, who recognised this national suicide. It was the time when many British satirical films, from I’m Alright Jack to Heavens Above , sent up the malaise that affected so many areas of British life. Not for nothing did many of these satires revolve around strikes. In October 1977, Karl Heinz focussed on New Statesman editor Paul Johnson’s decision to leave the Labour Party after twenty-four years of membership. The cause was Tony Benn—then still mostly referred to as Anthony Wedgewood-Benn—who had fought British membership of the Common Market and was the unions’ champion. This need to put trade union collectivism before all else had proved the last straw for Johnson: ‘Johnson must now write letters to the workers saying that the health of a single apprentice is more important than the possibility of literary self-expression’.[7] For Karl Heinz, the English disease was ‘alienation from the future’.[8] He travelled to Manchester, a city redolent of ‘Manchester economics’, the ‘Manchester’ Guardian , Marx and Engels. The city had its attractions: ‘Without style, yet stylish; without beauty, yet beautiful’.[9] The famous mills had been turned into shopping centres. In November 1971, he was in Yorkshire in the ‘filthy triangle’[10] enclosed by Leeds, Pontefract, and Normanton. The industrial landscape was dying. He found no job prospects for the young people at the local grammar school. It wasn’t only Manchester and Leeds. He visited Highgate Cemetery, pausing to pour scorn on the ugly, kitschig monument to Karl Marx. Marx’s disciples had attached love letters to its plinth: ‘The man is in no way dead. He lives. They speak to him constantly’.[11] Karl Heinz was more interested in the part of the cemetery that occupies the higher ground on the other side of the road. This part was closed to visitors (fifty years on it is only open for guided tours). It was overgrown and crumbling, reminding him of an exotic rainforest. The economic crisis meant that the cemetery could not afford gardeners or maintenance: ‘Gothic horror is literally present everywhere, as under every cubic metre dead Victorians are rotting’.[12] In one spot he saw the skull of an MP in a broken coffin. Grave robbers had helped themselves to objects from the newspaper baron Julius Beer’s grave. There was a plan to replace the western part of the cemetery by tower blocks, shrouding the imperial dead. Karl Heinz had revelled in the romantic aspect of Highgate Cemetery. He was most at home writing about literature, theatre, and art. He was a fully signed-up aesthete possessing a collection of dashing hats. He celebrated the centenary of Liberty’s in Regent Street in 1975, at the same time as Biba in Kensington High Street, a magnet for us teenagers in the early seventies, hit skid row. Liberty’s had been the champion of ‘arts & crafts’ in the late nineteenth century; proper design was a central tenet of Ruskin’s aesthetic teaching. In London, Karl Heinz discovered Blake and the Pre-Raphaelites only then becoming fashionable in Britain. He saw the symbolism of Blake as something that prefigured the writings of his beloved Baudelaire. In January 1971 (before he took up residence in London), Karl Heinz applied his German mind to the ramifications of Pre-Raphaelitism: the Nazarenes, Novalis, and Stefan George. The Pre-Raphaelites were reacting against Manchester. Inspired by Ruskin, the soul was ‘the adversary of society’.[13] As champions of aestheticism, Beardsley and Wilde were often invoked. Aestheticism was at the heart of the beauty of sudden ideas, which inspired Karl Heinz’s literary study, Suddenness (published in English in 1994).[14] Wilde lived a double-life. He also hankered after the demimonde, a seedy existence in anonymous hotel rooms. In this context, Karl Heinz invokes Theodor Fontane, who was a journalist for the Vossische Zeitung in London from 1856 to 1858, as he metamorphosed from pharmacist to Prussia’s greatest novelist. Fontane learned what was to become the foundation stone of the gutter press in late nineteenth century Britain: that the population loved a good murder above all else, and that Victorian London served them well—people had a tendency to disappear, leaving only the odd limb to remember them by. Certain institutions got the thumbs up. The theatre, for example, generally thrilled. The earliest article in the collection dates from November 1968 and was written in the course of his second ever visit to England. He saw the film Blow Up (1966), the very essence of ‘Swinging London’ and one of three David Hemmings films mentioned. Another was the Charge of the Light Brigade , with its debunking of empire and use of animation – another period piece. Blow Up caused him to reminisce about 1953, and seeing John Gielgud, Richard Burton, John Neville, and Michael Redgrave on stage at the Old Vic. It was another age: ‘There was no John Osborne then, and why? Young men did not need to be angry yet because they could remember food rationing from the difficult time when Britain’s fighter pilots had not yet become the legend about whom Churchill had said that it was rare for so many to have owed so much to so few’.[15] In 1976, he saw Terry Hands’ Henry V cycle at Stratford with Alan Howard as Hal. Karl Heinz remembered Olivier, whom he had met briefly at a party in Drayton Gardens in the autumn of 1953 and where he told the actor ‘I like you very much’, something which Olivier naturally appreciated.[16] He approved of this new, less nationalistic and propagandistic approach to Olivier’s wartime performance. There was no longer a need for propaganda, but he recognised ‘England’s love-affair with itself’ for all that.[17] Oh What a Lovely War was another manifestation of the British obsession with war, which Karl Heinz contrasted with the rather more responsible approach adopted by middle-class Germans. Of course it was an anti-war play and later film, where the devil came on dressed in military uniform. History was popular in Britain and ‘the present was always stamped with the past’.[18] The film once again showed the usual Britons, dominated by arts graduates from Oxford and Cambridge who were proud of their ignorance when it came to science. There were German plays to see too. Karl Heinz went to Manchester in 1976 to watch the first ever British production of Kleist’s Prince of Homburg , with Tom Courtenay in the title role.[19] Karl Heinz also had an eye for the BBC. In April 1977 he listed some of the series that were then popular: The Avengers , The Forsyte Saga , The Six Wives of Henry VIII , Upstairs, Downstairs (forerunner to Downton Abbey ). The BBC had not declined like other British institutions over the past thirty years. ‘The television drug can taste better nowhere else than England’, and yet, like everyone else in the country, the BBC had an obsession with the Second World War.[20] He cited Dad’s Army in particular. It is an obsession that Britain retains, even when few obsessives can actually remember why and when it occurred and who won it (besides Britain). On the eve of the 1975 referendum, Karl Heinz had cause to write once more about British xenophobia. He was inspired by a television series about Colditz. Good-looking, aristocratic British officers ran rings around ugly Germans. Politicians like Hans-Dietrich Genscher, Helmut Kohl, and Franz-Josef Strauss supplied the image of the ridiculous German. The British depicted their own in a more flattering light: ‘England is a narcissus who will never grow tired of looking at himself in the mirror’.[21] On the other hand, German ugliness, philistinism, and provincialism would rouse Karl Heinz throughout his life. He took pot-shots at Germany from London and Paris. Heine is the obvious model. He was nonetheless passionate in his defence of the men of 20 July 1944, and his later marriage to one of the daughters of Fritz-Dietlof Graf von der Schulenburg can only have added new vim to this view. Films such as Massacre in Rome (1975), with its fictionalised focus on the killings in the Ardeatine Caves, were a mixed blessing. In Britain, where ‘talking about Hitler was the same as talking about the Germans’, the 20 July was dismissed as ‘a false purge in the interests of a national cover-up’.[22] It is an attitude that has failed to go away, even now when we know so much more about the motives of the men and women from all walks of life who conspired to eliminate Hitler. Only three years ago both Karl Heinz and I reacted to a debunking book on Stauffenberg and a vilification of the same that appeared in the letters page of the Spectator . The campaign to remain in the Common Market came to a head at the moment of the 1975 Cup Final when two London teams—West Ham and Fulham—faced one another on the pitch. Karl Heinz juxtaposes the two events. Edward Heath and Roy Jenkins were the champions of the remain lobby then, and held their final rally in Trafalgar Square. In the far corner were Tony Benn and Michael Foot. ‘How can we compare our sovereignty with that of people who have never possessed any: we are English’.[23] There were rumblings from hoi polloi much as there had been in the fifties, at the time of the Angry Young Men. Punk was ‘the last stage of British nihilism, the decline into youth anarchy’.[24] He seized on the message of hatred embodied in the music of the Sex Pistols, the early works of Derek Jarman, the film of Anthony Burgess’s A Clockwork Orange , and Nigel Williams’ play Class Enemy at the Royal Court. Karl Heinz later wrote a literary study of Dionysus,[25] and something of his interest in the Dionysiac must have fed his enthusiasm for the 1977 Notting Hill Carnival, where a small riot marred an otherwise admirable effusion of black culture; but it also provided him with a lead into the growing unease in Britain when it came to its black ghettoes, and the dark roles played by Enoch Powell and the National Front leader John Tyndall. Reading the book, you often feel Karl Heinz might have made an excellent playwright himself, or indeed a novelist. In a long essay on the Queen’s Silver Jubilee, he writes with wry, funny observations about being a German caught up in all the forced jollity of a patriotic English street party.[26] I recall the occasion, which I spent at a street party in Oxford. The snobbery and superciliousness of his neighbours is instantly recognisable. Karl Heinz occasionally took up a political assignment when writing for Merkur. In 1976, using connections he had from the ‘Preußen-Girls’ – his name for the Schulenburg sisters – he went to Northern Ireland during the Troubles. He met Gerry Fitt and other ‘luminaries’ of the time and was horrified by Belfast: ‘the dingiest backyard in Britain (sic)’.[27] The Europa Hotel in Belfast had been wrecked many times by bombs. Karl Heinz found its brutalist allures ‘frightful’. He dismissed Heinrich Böll’s romantic evocation of Ireland, something which I had eagerly purchased after I met the great man in Cologne in 1971.[28] As a journalist, Karl Heinz watched the battle in 1977 that saw the end of the Evening News and the triumph of its rival the Evening Standard . The collection ends with an article from December 1978 on the closure of The Times , brought down by the unions that had dominated his time in Britain, and which were to be gelded by the new Conservative government of Mrs Thatcher. Mrs Thatcher is not explored in this book. Britain was to change very quickly under her rule. The small, incestuous world that was British society was soon to become less white, less Anglican, and less dominated by public schools, Oxford, and Cambridge. It was also (for a time at least) much more open to Europe. Karl Heinz loved Britain and he had plenty of friends here. The last twenty years of his life is partly described by his second volume of autobiography Jetzt (‘Now’), but formally Britain hardly acknowledged his existence.[29] When I tried to interest the Guardian in his obituary, they replied that the subject was ‘not for their readership’. For much of the time in that last period he was here he taught a semester at Stanford on Hölderlin, but I am not aware of any similar interaction with any British university. It would be an understatement to say Karl Heinz was unhappy at the result of the second referendum on Europe. At the end of his life he lost his longstanding faith in Britain and wanted to move to Berlin. Giles MacDonogh Giles MacDonogh FRHistS is a historian of Germany and author of fifteen books. These include biographies of Frederick the Great and Kaiser William II and histories of Prussia and Berlin. He is known for his best selling history of post-war Germany After the Reich (John Murray 2007). His latest book is On Germany (Hurst 2018). [1] Karl Heinz Bohrer, Ein bißchen Lust am Untergang. Englische Ansichten (Carl Hanser Verlag 1979). The book consists of a number of newspaper articles written for the Frankfurter Allgemeine Zeitung and one taken from the journal Merkur . Subsequent footnotes will state also the title and date of the article being referenced. [2] Karl Heinz Bohrer, Was alles so vorkommt. Dreizehn alltägliche Phantasiestücke (Suhrkamp 2021). [3] Karl Heinz Bohrer, Suddenness: On the Moment of Aesthetic Appearance (Columbia University Press 1994). [4] Karl Heinz Bohrer, Granatsplitter (Carl Hanser Verlag 2012). [5] Karl Heinz Bohrer, Jetzt. Geschichte meines Abenteuers mit der Phantasie (Suhrkamp 2017) 225. [6] Bohrer (n 1) 13-14. ‘Die englische Krankheit, Politische and psychologische Ursachen’, 27 September 1975. [7] ibid 103. ‘Das Gespenst des Kollectivismus’, 8 October 1977. Johnson had stood down as editor in 1970. [8] ibid 117. ‘Die Stummen und die Schreienden. In den Schächten des Untergrunds von London South East’, 26 April 1975. [9] ibid 22. ‘O Manchester’, 8 January 1977. [10] ibid 32. ‘Eine Begebenheit in Yorkshire. Fatalismus und Stolz. Englische Bergarbeiter am Rande Europas’, 20 November 1971. [11] ibid 74. ‘Der Totenwald von Highgate. Symbolismus und Horror. Die Victorianer und ihre vergesslichen Enkel’, 22 November 1975. [12] ibid 75. [13] ibid 89. ‘Die Präraffaeliten, oder Die Seele als Widersacher der Gesellschaft’, 30 January 1971. [14] Karl Heinz Bohrer, Plötzlichkeit. Zum Augenblick des ästhetischen Scheins (Suhrkamp 1981). [15] Bohrer (n 1) 181. ‘Manchmal Löwe, manchmal Einhorn’. 16 November 1968. [16] ibid 235. ‘Rückkehr zum Heroismus. Heinrich V, verlorener Haufen als nationales Märchen’, 5 June 1976; Bohrer (n 4) 315. I saw these productions. Karl Heinz doesn’t mention Timothy West, who was a wonderful Falstaff. [17] Bohrer (n 1) 235. [18] ibid 166. ‘Oh! What a lovely war, die Lust der Engländer an vergangenen Schlachten ist mehr als ein Tick’, 7 June 1969. [19] A quarter of a century later there was a new version performed at the Lyric in Hammersmith. [20] Bohrer (n 1) 68. ‘BBC. Mythos und Wirklichkeit’, 26-7 April 1977. [21] ibid 135. ‘Wie fremdenfeindlich ist England? Am deutschen Beispiel geschildert’, 5 June 1975. [22] ibid 150. ‘Der deutsche Widerstand und die Briten. Eine Diskussion im Deutschen Historischen Institut London’, 1 March 1977. [23] ibid 141. ‘Cup Final oder: Die zweite Halbzeit des Kampfes um Europa hat erst begonnen’, 10 May 1975. [24] ibid 197. ‘Haß als Zeitbombe in einer Gesellschaft ohne Liebe. Punk-Kultur und Kulturkritik’. 13 April 1978. [25] Karl Heinz Bohrer, Das Erscheinen des Dionysos. Antike Mythologie und moderne Metapher (Suhrkamp 2015). [26] Bohrer (n 1) 203-213. ‘Die Fähigkeit zu jubilieren’, 9 July 1977. [27] ibid 48. ‘Der ewige Bürgerkrieg’, originally published in Merkur 335, 1976. [28] Heinrich Böll, Irisches Tagebuch (Kiepenheuer & Witsch 1957). [29] Bohrer (n 5).

Introduction ‘Drown them in the details’, a long-standing strategic tradition of the Syrian government, was cited by Syria’s foreign minister, Walid al-Muallem, in December 2011, after signing the Arab League agreement that allowed a mission to enter Syria to monitor human rights violations, and to ensure that the Syrian government implemented the Arab Initiative.[1] The Arab League peace initiative included ending the crackdown on protests, withdrawing the army from the cities, and giving the Arab mission complete freedom to visit detention centres. In the press conference following the signing of the agreement, al-Muallem said: ‘If we are going to drown the mission in the details, they must learn to swim’, in response to a journalist who asked what the intentions are behind Syria signing, and whether Syria will drown the Arabs in the details, so that the Arab Initiative would take several years to be implemented.[2] Weeks after the UN High Commissioner for Human Rights, Navi Pillay, had stated that the Syrian Government ‘has manifestly ignored the pleas and condemnations of the international community at all levels’, the United Nations nonetheless welcomed this agreement.[3] The agreement was, however, never implemented. The Arab League monitors withdrew from Syria because the bloodshed continued. In his concluding report, the Arab Mission head Mohammed al-Dabi said that the Syrian government’s ‘intentions towards the mission since its formation were insincere, and more generally, not serious’.[4] Examples of the Syrian government’s insincerity and manipulation of its pledges and obligations under the Arab agreement and other related agreements include: Fixing fake town signs to mislead observers into areas loyal to the government. Painting olive green military vehicles with blue, so as to avoid withdrawing the army from inside the cities. Transferring detainees from detention centres to buses and circling them around the city between 8am and 5pm, in case observers decided to visit detention centres. Grasping ‘the devil’ in the details of the perpetrator governments’ reactions to the justice and human rights advocacy actions is crucial to the release of human rights defenders, lawyers, and humanitarian organisations. This will provide decision makers with the insight to plan high-impact and low-effort strategies to address and prevent grave violations of human rights in Syria. In this paper, I closely examine two recent cases where the Syrian government apparently acted in response to the international pressures to end its grave violations of human rights and consider whether those responses had a genuinely positive effect in ending the violations: Case I. Issuing a law criminalizing torture. Case II. Abolishing military Field Courts. I. Case 1. Anti-Torture Law: Nullum crimen sine lege On 30 March 2022, Syrian President Bashar al-Assad issued Law No. 16 of 2022 to criminalize torture ‘in accordance with…the provisions of the Convention against Torture, which the Syrian Arab Republic had previously ratified’,[5] according to a tweet by the Syrian presidency.[6] Like most Syrians, including victims and survivors of torture, various international human rights organizations responded to this news with a grain of salt. Human Rights Watch, for example, described the decree as an April Fools’ joke, ‘given how pervasive the use of torture is by Syrian state authorities’.[7] They noted that: While it is hard to attribute intent to a government defined by arbitrariness, the passage of the law could be a response to ongoing efforts to prosecute the use of torture by Syria officials in the conflict, including an effort by some states to hold the Syrian government accountable for torture under the United Nations Convention Against Torture.[8] Amnesty International described the decree as a legislative step towards complying with internationally recognized anti-torture conventions, but noted that ‘the new law effectively whitewashes decades of state-sanctioned human rights violations’.[9] On 18 September 2020, the Netherlands announced that it had asked the Syrian government to enter negotiations to resolve a dispute concerning Syria’s violations of the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (UNCAT), to which the Netherlands and Syria are parties.[10] The Netherlands confirmed that in case no agreement was reached, it would submit the case to the International Court of Justice (ICJ). On 4 March 2021, Canada also announced that it had requested formal negotiations under UNCAT to hold Syria accountable, citing the Netherlands’ announcement.[11] In June 2022, I contacted the governments of Canada and the Netherlands to inquire about the status of their negotiations with the Syrian government.[12] They replied that to negotiate in good faith implies that the process, strategy, and correspondence with Syria are confidential and that they ‘cannot comment on the exact dates or content of any submissions or letters to the Syrian Arab Republic, the International Court of Justice, or any other party regarding this dispute for reasons of confidentiality’. Global Affairs Canada added that they can however confirm that the dispute resolution process is ongoing.[13] They said that once they reach a stage where more information can be provided, they will do so, keenly aware of the people—the Syrian victims—for whom this step was taken.[14] Whilst the dispute resolution process was ongoing, and a complex and lengthy process, they stressed that it was the next step in combating impunity and obtaining justice for the most serious crimes under international law committed against Syrian victims. On 8 June 2023, the ICJ published the document of the Dutch-Canadian joint application instituting proceedings concerning UNCAT violations.[15] The application document detailed the process of negotiations with the Syrian government, including the correspondence and meetings dates and requests made by the Netherlands and Canada. Examining these details shows that the negotiations and the issuing of Law No. 16 of 2022 to criminalize torture are significantly correlated. On 9 August 2021, the Netherlands and Canada presented a Statement of Facts and a Statement of Law to Syria in writing. The statements included a description of the relief sought by the Netherlands and Canada, in particular: ‘cessation of violations of the Convention against Torture, assurances and guarantees of non-repetition, and full reparation for victims’. The UNCAT articles which the Netherlands and Canada accused Syria of violating include Article 2: Each State Party shall take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction.[16] Since then, sixty-six Notes Verbales have been exchanged between the Netherlands, Canada, and Syria, including discussions about the dispute and attempts to negotiate a resolution.[17] On 30 September 2021, Syria informed the Netherlands and Canada that it rejected ‘in toto’ the characterisation of the dispute as an admission of international responsibility for the recent breaches of its obligations under UNCAT. As a response to the Netherlands’ and Canada’s negotiations with Syria regarding its violations of UNCAT Article 2,[18] and as a pre-emptive measure to counter the accusations made by the Netherlands and Canda in foreseeable legal proceedings at the ICJ, the Syrian president Bashar al-Assad issued Law No. 16/2022 on 30 March 2022 to criminalize torture ‘in accordance with the constitutional obligations of the state that prohibits torture, and with the provisions of the Convention against Torture, which was previously ratified by the Syrian Arab Republic’. On 25 April 2022 and 5-6 October 2022, representatives from the Netherlands and Canada met in-person with representatives from Syria in Abu Dhabi, United Arab Emirates, as part of their efforts to negotiate a resolution of the dispute. After more than two years of exchanges of Notes Verbales, without any progress towards settling the dispute, the Netherlands and Canada concluded that negotiations had become deadlocked or futile.[19] On 17 October 2022, they informed Syria of their conclusion by Note Verbale. On 8 June 2023, the Netherlands and Canada (the Applicants) started legal proceedings at the ICJ to hold Syria accountable for torture under the UNCAT. They filed a joint application instituting proceedings concerning violations of the UNCAT. Together with the Application, the Applicants filed a Request for the indication of provisional measures, pursuant to Article 41 of the Statute of the Court and Articles 73, 74, and 75 of the Rules of Court. However, on 15 July 2023, the ICJ announced that it decided to postpone the proceedings that were originally due to commence on Wednesday 19 July 2023, to 10 and 11 October 2023, following Syria’s request for a postponement. Law No. 16/2022: Nullum crimen sine lege Based on the UNCAT torture definition,[20] Law No. 16/2022, defines torture in Art. No. 1 as follows: For the application of the provisions of this law, torture means any act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for obtaining information or a confession from him or another person, or punishing him for an act he has committed, or intimidating or coercing him to perform an act. When such pain or suffering is inflicted on a person for any reason based on discrimination of any kind, or when it is instigated or consented to, expressly or implicitly, by an employee or any person acting in his official capacity. It also includes actions committed by a person or group to achieve personal, material, or political goals or with the intention of revenge or retaliation. [21] The Latin phrase ‘Nullum crimen sine lege’ or its English equivalent ‘no crime without law’ reflects an essential principle of criminal law: that only the law can define a crime and prescribe a penalty.[22] This means that no person may be convicted of a crime for an act that was not forbidden by law at the time it was committed. Whilst the Syrian constitution and the Public Penal Code prohibit torture in loose and ambiguous terms, the act of torture itself was never defined under Syrian law. Law No. 16/2022 was the first-time torture was defined, creating a new criterion for punishment. Based on the new definition, the Syrian government can only punish torture defined in this law after the law was created. Another attention-grabbing element in the new definition is the term ‘omission’, which is not included in the UNCAT definition. Previously, Syrian law prohibited and punished those who committed torture, but not those who allowed it. The new law criminalises those who abstained from action. This means that every official, especially high-ranking officials including the head of the state, cannot be punished for omissions before this new law was issued. Law No. 16/2022 also included a provision that is not mentioned in the UNCAT definition, namely: ‘It also includes actions committed by a person or group to achieve personal, material, or political goals or with the intention of revenge or retaliation’. [23] This addition apparently targets torture committed by individuals, including non-state actors, and the opposition. Thus, under Syrian national law, the Syrian judiciary is ‘legally’ permitted to not punish acts of torture committed by the state before Law No. 16/2022 was issued. However, under international law, as a state party to UNCAT, and under the command responsibility and failure to act, Syria should be obliged and be able to punish acts of torture from all perpetrators, including high-ranking officials. II. Case 2. Abolishing Military Field Courts: Between Scylla and Charybdis On 3 September 2023—only 30 days before the first ICJ hearing and following Syria's request to postpone it, in an apparent pre-emptive step to counter the accusations made by Applicants in the legal proceedings at the ICJ, al-Assad issued Decree No. 32/2023, ending the effect of Legislative Decree No. 109 dated 17/8/1968 and its amendments on the establishment of Military Field Courts. The Decree effectively abolished the Military Field Courts and stipulated in its Art. 2 that ‘all cases referred to the Military Field Courts shall be referred in their present condition to the military judiciary for prosecution’. The Syrian president issued Decree No. 32/2023 ending the effect of Legislative Decree No. 109/1968 and its amendments on the establishment of Military Field Courts, after decades of countless calls from Syrians, the United Nations, human rights organisations, and others to reform or abolish these courts. This decree seemed surprising to many Syrians. For 55 years, Syrians (even children and other nationals such as Palestinians[24] and Lebanese[25] and lately dual US-Syrian citizens)[26] have suffered under these Military Field Courts. Since its creation, those courts have been used to imprison and execute tens of thousands of Syrians, including military and political opponents, journalists, lawyers, human and ethnic rights activists, and children. The rules and proceedings of those courts were so summary and arbitrary that they cannot be considered to constitute a fair trial, let alone a judicial process.[27] Military Field Courts: Background Military Field Courts were created after the 23 February 1966 military coup d’état in Syria. The coup was planned and led by Chief of Staff of the Armed Forces Salah Jadid, the commander of the Syrian Air Force, Hafez al-Assad, and army Lieutenant Colonel Mustafa Tlass, among others. Since March 1949, Syria went through around 16 military coups and coups attempts, which in some cases, handed over the government to civilians. The 1966 coup was the final nail in the coffin of democratic experimentation, parliamentary and civilian governing in post-colonial Syria and made Syria a one-party state with military authoritarian domination over the daily life of Syrians. The 1966 coup overthrew the Syrian government, took over the Baath Party leadership and announced the Interim Regional Command of the Arab Socialist Ba'ath Party, which issued Statement 1 with 2 articles: Suspending the Constitution Appointing Hafez al-Assad as defence minister The coup leadership in the Interim Regional Command appointed the head of the state and the prime minister, and within one year issued decrees and decisions that tightened the military coup leaders’ grip over the social, economic, legal, military, and intelligence aspects of life in Syria, including: Decree no. 130/1966, ‘based on the provisions of the Interim Regional Leadership of the Arab Socialist Baath Party’, creating the National Union of Syrian Students, which ensured the coup leaders’ control and monitoring of universities and higher education. After 2011, Bashar al-Assad used it as an intelligence branch inside universities and university residences to arrest, torture, and kill university students, and hand them over to the intelligence services,[28] Decree no. 117/1966, ‘based on the provisions of the Interim Regional Leadership of the Arab Socialist Baath Party’, establishing the system of the Red Crescent Organization, a leading organisation directing and implementing humanitarian aid, which is subject to the supervision and intervention of intelligence services,[29] and practises discrimination and other violations of the principles of humanitarian work,[30] Decree no. 96/1966, ‘based on the provisions of the Interim Regional Leadership of the Arab Socialist Baath Party’ allowing the seizure of the official Syrian Civil Aviation Company by the Ministry of Defence,[31] and Decree no. 109/1968,[32] ‘based on the provisions of the Interim Regional Leadership of the Arab Socialist Baath Party’, establishing Military Field Courts. Military Field Courts and Fair Trial In Field Courts, sessions would last only minutes, with no witnesses or lawyer present. Some defendants were only informed of their verdict years after their trial. Others were sentenced without ever being present at a hearing.[33] Detainees that were eventually referred to parts of the court system on criminal charges were invariably subjected to multiple violations of the right to a fair trial. Proceedings of the Military Field Courts were of particular concern, owing to the general lack of evidence utilised and the imposition of death sentences.[34] Military Field Courts are exceptional courts that issue sentences that are not subject to any form of appeal. These courts can pass any sentence, including the death penalty. Their rules and proceedings are summary and arbitrary that they cannot be considered a legitimate judicial. They are not required to operate within existing legislation and, once a sentence is issued, there is no possibility of appeal. However, the sentences they issue are subject to the approval of the head of state and the Minister of Defence.[35] These courts constituted a powerful authoritarian tool: to suppress any counter-coup attempt and to persecute and prosecute rivals to power without the intervention of the fair judiciary and lawyers. These courts enabled absolute power to the 1966 coup leaders, including the new minister of defence Hafez al-Assad, to eliminate political opponents. In 2005, the German magazine Der Spiegel published an interview with Mustafa Tlass after he retired as a defence minister, having served for 32 years: Tlass no longer knows exactly how many death sentences he has signed personally, and he speaks quietly as he explains why these horrific acts were unavoidable, even the many who died by hanging. At times in the 1980s, he says, 150 death sentences a week were carried out by hanging in Damascus alone. ‘We used weapons to assume power, and we wanted to hold onto it. Anyone who wants power will have to take it from us with weapons’, says the general, smiling.[36] It is unclear if the executions Tlass signed were only issued by the Military Field Courts, or included those issued by the military courts. However, it indicates the huge number of executions issued by both military courts and Military Field Courts against opponents of the 1966 coup leaders and the Syrian regime. Syrian officials and lawyers affiliated with the Syrian bar described this decree as a positive step towards juridical reform and to end the violations of a fair trial. However, according to Decree No. 32/2023: all cases referred to the Military Field Courts will be transferred to the military justice to make the pursuit according to the rules of punishment law and military trials issued by legislative decree No. 61 for 1950. [37] The news of abolishing Military Field Courts had an emotional impact on Syrians with painful collective and personal memories of these notorious courts. It invoked the decades-long struggle and traumas of several generations in these courts. Generations of opponents, human rights activists, and lawyers have called for its abolition, some of whom spent their childhood and upbringing amid these demands and the trauma caused by these courts. The Syrian government’s comment on abolishing Military Field Courts The Director of the Military Justice Department in Syria, Major General Yazan Al-Homsi, said that ‘Legislative Decree No. 32 forms part of the reform process adopted by President Al-Assad. It is a process that is not newly born but began in the pre-war years and included various fields in administration and institutions, in the judiciary, in the military, and others’.[38] Syrian lawyer and member of the Syrian government Bar Association Ghassan Abu Alwan considered this new presidential decree ending the Military Field Courts a ‘positive step’: The new presidential legislative decree to end the work of Field Courts and transfer them to the military judiciary is a positive and important step’. It took the Assad regime 55 years of slaughtering Syrians and political opponents by illegal executions and hundreds and perhaps, thousands of demands and calls to finally end these courts. But the grim, yet unsurprising news is that Assad handed over the commission of violations and crimes against fair trials and other international law obligations from one apparatus to another. Therefore, the same crimes and violations will continue under a different name. Perhaps judges and employees of military courts will continue their work under a new desk nameplate and job title. The Military Penal Code and Fair Trial The Syrian criminal justice system, which includes civilian courts, the Counter Terrorism Court, and military and Field Courts, is systemically failing to uphold international human rights standards at every step of the judicial process.[39] Law No. 61/1950 (the Military Penal Code), [40] regarding the military courts to which Decree 32 [41] referred the Military Field Courts’ ongoing cases, allows for violations of several international treaties adopted by Syria and have articles which are not substantially different from the regulations of the abolished Field Courts. Military judiciary jurisdiction over civilians The Military Penal Code allows targeting civilians on charges based on freedom of expression, assembly, and association, and peaceful criticism, whether it is criticism of the army, the government, or economic conditions. Article 47 of the military penal code specifies the military courts’ jurisdiction and states that: These courts may be granted, by a decree taken by the Council of Ministers based on the proposal of the Commander-in-Chief of the Army and Armed Forces and the Minister of Justice, the right to consider all or some crimes against the internal security of the state.[42] Definition of crimes against the internal security of the state The Military Penal Code does not define ‘crimes against the internal security of the state’; these crimes are stipulated in the General Penal Code. According to the ‘Arab Encyclopaedia Authority’, which was established by Legislative Decree No. 3 of 1970 [43] and is affiliated with the Syrian Presidency: The Syrian legislator stipulates crimes against state security in Articles (291-310) of the Penal Code, which are: felonies against the constitution—usurpation of a political or civil authority, or military leadership—sedition—terrorism—crimes that undermine national unity or disturb peace among the elements of the nation—undermining the state’s financial position. [44] Articles (291-310) of the General Penal Code allow criminalising freedom of speech, peaceful political expression, and the freedoms of assembly and association. For example, Article 307 of the General Penal Code states that for: Every action, every writing, and every speech that intends or results in inciting sectarian or racist strife or inciting conflict between sects and various elements of the nation... The court may order the publication of the judgement. [45] 2 means in practice that the rule is not to publish. Article 309 states that: Whoever broadcasts, by one of the means mentioned in the second and third paragraphs of Article 208, fabricated facts, or false allegations to cause a decline in national banknotes or to undermine confidence in the strength of the state’s currency, its bonds, and all documents related to public financial trust, he shall be punished with imprisonment from six months to three years and a fine from two hundred and fifty pounds to one thousand pounds. [46] Article 123 of the Military Penal Code punishes: Every military or civilian person who insults the flag or the army, harms its dignity, reputation, or morale, or does anything that might weaken in the army the spirit of the military system, obedience to superiors, or the respect due to them, or criticises the actions of the General Command and those responsible for the actions of the army, in a manner degrade their dignity. [47] The Syrian Military Penal Code contains provisions that blatantly breach fair trials by allowing secret trials, banning publishing procedures, immunity for perpetrators, and targeting civilians including journalists: Decisions issued by the investigating judge are not subject to any method of review.[48] It allows execution sentences for military and civilians under many charges, including ‘anyone who incites the military to join the enemy or the rebels’.[49] Sentences in absentia allow sentenced individuals to appeal the decision within only five days.[50] Sentences in absentia allow the confiscating of all ‘existing and future movable and immovable shared and non-shared funds’. It allows prosecuting and punishing journalists.[51] It gives the military judiciary the sole right to decide on conflicts of jurisdiction with civilian courts.[52] Its jurisdiction includes crimes that military courts were given the right to decide under special regulations and laws.[53] It provides protections to the perpetrators and immunity from prosecution. The prosecution order is issued only by the Commander-in-Chief of the Army and the Armed Forces, the Syrian president.[54] Law No. 16/2022, defining and punishing torture, and Decree No. 32/2023, abolishing military Field Courts, will be used by the Syrian government at the ICJ in order to counter accusations made by the Applicants in the Court. Destroying evidence of crimes and information about disappeared persons In its Article 2, Decree No. 32 states that ‘all cases referred to the Military Field Courts shall be referred in their present condition to the military judiciary for prosecution’. [55] The decree does not address the fate of the previous/completed/past cases records. Those records should have strong evidence of systematic grave violations of fair trial which may amount to crimes against humanity. The records likely also include vital information about the victims of enforced disappearance. According to the Syrian Military Penal Code, records of trials, decisions, and sentences should be sent to Military Public Prosecution which is tasked with handling incoming and outgoing mail between military judicial departments in the governorates. For example, execution reports should be registered and kept at the Public Prosecution.[56] Abolishing Field Courts risks getting rid of their records including death sentences. Therefore, eliminating these records means destroying the information necessary to know the fate of those who were sentenced and executed, including those who were forcibly disappeared. Evidence of crimes includes killing forcibly disappeared people by execution sentences issued by these courts under unfair trials, whose records show the absence of lawyers, and disregard claims of forced confessions under torture and various other violations under the UN Charter. III. Criminalizing Torture and Abolishing Military Field Courts: International Optics for the Syrian Government The Syrian government’s responses to international pressure and demands to end its violations of international law have been consistent for decades: if there is no benefit, enforcement mechanism, or imminent threat to the regime’s hold on power, the Syrian government ignores the pressure and denies any wrongdoing. In some cases, it responds with misleading and meaningless actions, mostly by issuing laws and decrees that do not contribute to ending its violations in practice, as established. Aside from utilising these new laws in its propaganda and destroying highly important evidence of crimes in defiance of the Applicants’ request to not destroy or render inaccessible any evidence related to the Application (including information about mass graves’ locations and death certificates stating the true causes of death), the same responses and strategies are likely to be used at the ICJ in the upcoming proceedings by the Applicants under the UNCAT. For example, in its response to the concerns of the UN Committee against Torture (CAT) over the State of Emergency and widespread use of torture in 2011, the Syrian government denied any routine use of torture and said: With the enactment of Decree No. 161 of 21 April 2011, ending the state of emergency, and Legislative Decree No. 55 of 21 April 2011, there can be no further talk about arbitrary or unlawful detention in any institution.[57] Then, in response to the CAT’s request to reform or abolish the Supreme State Security Court, the Syrian government said: The Supreme State Security Court was abolished by Legislative Decree No. 53 of 21 April 2011. The decree provided for all cases pending before the Court or with the public prosecutor’s office at the Court, to be transferred in their current state to the appropriate competent courts in accordance with the rules and procedures laid down in the Syrian Code of Criminal Procedures.[58] Additionally, on the torture complaints mechanism, Syria provided a table of the number of cases pending before the judiciary relating to allegations of torture, that are almost impossible to verify or deny. On appropriate education for persons involved in the custody, interrogation, or treatment of detainees, Syria said: The course ‘Human Rights and Public Freedoms’ is taught within the Judicial Institute. Many courses have been conducted for judges in the field of combating money laundering and the financing of terrorism, in cooperation with the World Bank and the Anti-Money Laundering and Combating the Financing of Terrorism Authority in the Syrian Arab Republic. Judges also participate in all courses held inside the country and in many courses held outside it within the framework of Human rights and public freedoms. Currently, there are many workshops implemented by the Ministry of the Interior in cooperation with the International Organization for Migration and the Austrian government within the framework of combating trafficking in persons. The ‘Human Rights’ course is taught in law colleges for undergraduate students, and it is also taught to postgraduate students in English and French. This course is also taught in the College of Political Science and many other colleges and institutes.[59] On ensuring that victims of torture obtain redress and adequate compensation: Article 164 of the Civil Code stipulates that: ‘Any mistake that causes harm to others obligates the person who committed it to compensate’, and Article 165 stipulates that: ‘A person shall be responsible for his unlawful acts whenever they are committed by him while he is distinct’. The state is responsible for free treatment for all citizens, including those who have been subjected to torture, whether health or psychological treatment. In 2012, the Syrian government responded by Note Verbale to the CAT’s request to submit a special report on measures taken to ensure that all its obligations under the UNCAT were fully implemented, that Syria would inform the CAT about the measures in its next periodic report (due in 2014) and that Syria considered that Article 19 of the Convention did not provide for the possibility for the CAT to request a special report. It also said that Syria: informed the Secretary-General, the Security Council and the Committee, about the human and material losses that have occurred in the Syrian Arab Republic since the beginning of the events in the State party until 15 March 2012, caused by the ‘actions of armed terrorist groups.[60] IV. How the Syrian government will use the new laws in its legal argument at the ICJ Legal grounds for Canada and the Netherlands’ claims at the ICJ and the new Syrian laws Based on the Syrian government's long-standing strategies of manoeuvre and manipulation, Syria will likely use these two laws as a ‘legal’ weapon at the ICJ to argue that it is fulfilling its obligations under the UNCAT to refute the accusations of the Applicants. Laws criminalizing torture and abolishing the Field Courts would be used to refute seven (a, b, c, d, i, j, k) of the twelve accusations brought by the Applicants in their complaint before the ICJ. As for the remaining five accusations (e, f, g, h, l), Syria will deny them, claiming its financial inability and state of war prevented it from submitting periodic reviews and reports. Syria will deny accusations of state torture and make the same allegations that the Syrian president deployed in an interview with the Swedish newspaper Expressen. The journalist’s question: As you know there are many serious allegations against your government, about human rights abuses committed by your side. How much do you know about torture in your prisons here?[61] The Syrian president’s answer: When you talk about torture we have to differentiate between policy of torture and individual incidents that happen by any individual…With Syria, we never had under any circumstances such a policy. If you have any breach of law, torture, revenge, whatever, it could be an individual incident that the one who committed should be held accountable for.[62] On 7 March 2020, Justice Minister Najm al-Ahmad acknowledged the existence of torture, but echoed Assad’s narrative that torture constitutes an exceptional phenomenon: I do not want to say that the prisons in Syria are five-star prisons in which there is no torture, but all I want to say is that torture constitutes a purely exceptional phenomenon.[63] The Minister, referring to Caesar’s photos,[64] also stated that the government does not allow evidence of torture or killing under torture to exist: Who is that person that we authorize—assuming that a person has been subjected to torture—to photograph this person, whether alive or dead.[65] Accusation (f) would be refuted by the Syrian government by alleging that it has many courses to ensure appropriate education of human rights to its employees. Accusation (h) would be refuted by the Syrian government by providing a table of the number of cases pending before the judiciary in cases relating to allegations of torture, that are almost impossible to verify or deny. Accusation (l) would be refuted by the Syrian government by referring to ‘the actions of armed terrorist groups’, ‘the war’, ‘the economic impact of the war’, and ‘the sanctions’ as reasons that prevented it from fulfilling its obligations to report to the Committee against Torture. V. Conclusion ‘Drowning them in the details’ and pretexts of ‘the actions of armed terrorist groups’, ‘the war’, ‘the economic impact of the war’, and ‘the sanctions’ are often used by the Syrian government to address the international pressures and to justify its various failures and egregious actions, that range from the inability to fulfil specific obligations to committing war crimes. Issuing or abolishing some laws in Syria in response to international pressures and action does not reflect an effective and positive change in the Syrian legal system in either theory or practice. Even if the Syrian government issued new laws or abolished others, it still has its arsenal of laws and courts. This includes the Military Penal Code, the Couter-Terrorism Court and the legalised tools and regulations that allow the authoritarian regime in Syria to continue to target the Syrian people by torturing, killing, and violating the basic principles of fair trials. The government also has its laws to protect perpetrators of torture and other grave crimes, including in its Military Penal Code. It should be clear that the real purpose of issuing such laws has nothing to do with ending human rights violations. The purpose of issuing these recent two laws is to counter accusations at the surface level before the ICJ. Mansour al-Omari Mansour al-Omari is a Syrian human rights defender and legal researcher. He holds an LLM in Transitional Justice and Conflict. Al-Omari works with international and Syrian human rights organisations to hold the perpetrators of international crimes in Syria accountable. In 2012, al-Omari was detained and tortured by the Syrian government for 356 days for documenting its atrocities while working with the Syrian Center for Media and Freedom of Expression as the supervisor of the Detainees Office. [1] ‘UN welcomes move enabling Arab League monitors to visit Syria’ UN News (20 December 2011) < https://news.un.org/en/story/2011/12/398972 > accessed 16 September 2023. [2] ‘المعلم . على العرب ان يتعلموا السباحة ب19-12-2011.flv’ HomeTears (21 April 2012) < https://www.youtube.com/watch?v=9jYm4lxf0cQ&ab_channel=HomeTears > accessed 16 September 2023. [3] UN News (n 1) [4] Anwar Malek, Revolution of a nation; Secrets of the Arab League mission to Syria (Obeikan Publishing 2017). [5] Law No.16, Law No 16, 30 March 2022 (Syria) [6] Syrian Presidency, ‘الرئيس الأسد يصدر القانون رقم /16/ للعام 2022 لتجريم التعذيب، بما يتوافق مع الالتزامات الدستورية للدولة التي تحرم التعذيب، ومع’ < https://twitter.com/Presidency_Sy/status/1509177235793711107?lang=ar-x-fm > accessed 1 October 2023. [7] ‘Torture in Syrian Prisons is Not a Joke’ ( Human Rights Watch , 1 April 2022) < https://www.hrw.org/news/2022/04/01/torture-syrian-prisons-not-joke > accessed 16 September 2023. [8] ibid. [9] ‘Syria: New anti-torture law ‘whitewashes’ decades of human rights violations’ (Amnesty International, 31 March 2022) < https://www.amnesty.org/en/latest/news/2022/03/syria-new-anti-torture-law-whitewashes-decades-of-human-rights-violations/ > accessed 16 September 2023. [10] ‘The Netherlands holds Syria responsible for gross human rights violations’ (Government of the Netherlands) < www.government.nl/latest/news/2020/09/18/the-netherlands-holds-syria-responsible-for-gross-human-rights-violations > accessed 16 September 2023. [11] ‘Minister of Foreign Affairs takes action on Syria’s human rights violations’ (Government of Canada) < www.canada.ca/en/global-affairs/news/2021/03/minister-of-foriegn-affairs-takes-action-on-syrias-human-rights-violations.html > accessed 16 September 2023. [12] Emails from author to Ministries of Foreign Affairs of Canada and the Netherlands (27 June 2022). [13] Email from Global Affairs Canada, Government of Canada to author (14 July 2022). [14] Email from the Dutch Ministry of Foreign Affairs to author (5 July 2022). [15] Canada and the Kingdom of the Netherlands v The Syrian Arab Republic, International Court of Justice, Joint application instituting proceedings concerning a dispute under the convention against torture and other cruel, inhuman or degrading treatment or punishment. [16] Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment , 10 December 1984, United Nations Treaty Series, Vol. 1465, P. 85 (entered into force 26 June 1987) [Convention against Torture]. [17] Application of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Canada and the Netherlands v. Syrian Arab Republic) (Pending) (8 June 2023) < https://www.icj-cij.org/sites/default/files/case-related/188/188-20230608-APP-01-00-EN.pdf > accessed 16 September 2023. [18] Convention against Torture, Article 2, states ‘1. Each State Party shall take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction. 2. No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture. 3. An order from a superior officer or a public authority may not be invoked as a justification of torture’. [19] Application of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Canada and the Netherlands v. Syrian Arab Republic) (n 4). [20] Convention against Torture, Article 1 (1), states: For the purposes of this Convention, the term ‘torture’ means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions. [21] Article 1, Law No. 16 of 2022 criminalizing torture (n.d) (Syria). [22] Guide on Article 7 of the European Convention on Human Rights, European Court of Human Rights (31 August 2022) < https://www.echr.coe.int/documents/d/echr/Guide_Art_7_ENG > accessed 16 September 2023. [23] Article 1, Law No. 16 of 2022 criminalizing torture (n.d) (Syria). [24] ‘Syria: Extrajudicial execution of Bassel Khartabil a grim reminder of Syrian prison horrors’ ( Amnesty International ) < www.amnesty.org/en/latest/press-release/2017/08/syria-extrajudicial-execution-of-bassel-khartabil-a-grim-reminder-of-syrian-prison-horrors/ > accessed 29 September 2023. [25] ‘ وثائق رسمية تؤكد إعدام دمشق أربعة معتقلين لبنانيين لم تعترف باحتجازهم’ (الشرق الأوسط | اطلع على أخبار اليوم عبر صحيفة العرب الأولى) < https://aawsat.com/home/article/57366 > accessed 29 September 2023. [26] ‘U.S. Citizen, Believed Executed in Syrian Prison, Heightens Fears for Others’ ( The Wall Street Journal ) < www.wsj.com/articles/u-s-citizen-believed-executed-in-syrian-prison-heightens-fears-for-others-11545153440 > accessed 29 September 2023. [27] ‘Syria: Human slaughterhouse: Mass hangings and extermination at Saydnaya Prison, Syria’ ( Amnesty International 7 February 2017) < https://www.amnesty.org/en/documents/mde24/5415/2017/en/ > accessed 16 September 2023. [28] ‘Victims of Assad's notorious Students' Union speak out – but the UN is not listening’ ( Home | Amnesty International UK ) < www.amnesty.org.uk/blogs/campaigns-blog/victims-assads-notorious-students-union-speak-out-un-not-listening > accessed 29 September 2023. [29] ‘Inside the Syrian Arab Red Crescent’ ( Syria Justice & Accountability Centre , 8 August 2019) < https://syriaaccountability.org/inside-the-syrian-arab-red-crescent/ > accessed 29 September 2023. [30] ‘The Syrian Arab Red Crescent…The Reality of the Organization and its Commitment towards the Seven Principles’ ( Jusoor For Studies )< https://jusoor.co/en/details/the-syrian-arab-red-crescent…the-reality-of-the-organization-and-its-commitment-towards-the-seven-principles > accessed 29 September 2023. [31] ‘مرسوم ربط شركة الطيران العربية السورية بوزارة الدفاع عام 1966 - التاريخ السوري المعاصر’ (التاريخ السوري المعاصر) < https :// syrmh . com /2019/12/05/ ربط - شركة - الطيران - العربية - السورية - بوزا / > accessed 29 September 2023. [32] Constituted by Legislative Decree No. 109 of 17 August 1968, published in the Official Gazette of 1968 No. 38, 12542. [33] Report of the Independent International Commission of Inquiry on the Syrian Arab Republic (11 March 2021, A/HRC/46/55). [34] ibid. [35] (n 7). [36] Translated by Christopher Sultan at ‘A 101 Course in Mideast Dictatorships’ The New York Times (New York, 21 February 2005) < https://www.nytimes.com/2005/02/21/international/europe/a-101-course-in-mideast-dictatorships.html > accessed 3 October 2023. [37] Article 2, Decree No. 32 for 2023 to end the effect of Legislative Decree No. 109 dated 17/8/1968 and its amendments on the establishment of military field courts (Syria). [38] Muhammad Manar Hamijo, ‘Major General Al Homsi to Al Watan: It is part of the reform process that began years ago, and the war may have delayed many steps, but it does not cancel them... President Al–Assad ends the work of the Field Courts and refers their cases to the military judiciary’ Al Watan Newspaper (Damascus, 4 September 2023) < https://alwatan.sy/archives/359480 > accessed 5 September 2023. [39] ‘Out of Sight, Out of Mind: Deaths in Detention in the Syrian Arab Republic’ UN Human Rights Council (3 February 2016, A/HRC/31/CRP.1). [40] Military Penal Code (n.d) (Syria). [41] Decree No. 32 of 2023 to end the effect of Legislative Decree No. 109 dated 17/8/1968 and its amendments on the establishment of military field courts (n.d) (Syria) [42] Article 47, Military Penal Code (n.d) (Syria). [43] Legislative Decree No. 3 of 1970 (n.d) (Syria). [44] الجرائم الواقعة على أمن الدولة (الموسوعة العربية) < https://arab-ency.com.sy/ency/details/2479/7 > accessed 29 September 2023. [45] Article 307, General Penal Code, (n.d) (Syria). [46] Article 309, General Penal Code, (n.d) (Syria). [47] Article 123, Military Penal Code, (n.d) (Syria). [48] Legislative Decree No. 61/1950 Penal Code and Military Procedures (Arabicالمرسوم التشريعي 61 لعام 1950 قانون العقوبات وأصول المحاكمات العسكرية), Art. 26. [49] Legislative Decree No. 61/1950 Penal Code and Military Procedures (Arabicالمرسوم التشريعي 61 لعام 1950 قانون العقوبات وأصول المحاكمات العسكرية), Art. 160. [50] Legislative Decree No. 61/1950 Penal Code and Military Procedures (Arabicالمرسوم التشريعي 61 لعام 1950 قانون العقوبات وأصول المحاكمات العسكرية), Art. 15 (1). [51] Legislative Decree No. 61/1950 Penal Code and Military Procedures (Arabicالمرسوم التشريعي 61 لعام 1950 قانون العقوبات وأصول المحاكمات العسكرية), Art. 47 (6). [52] Legislative Decree No. 61/1950 Penal Code and Military Procedures (Arabicالمرسوم التشريعي 61 لعام 1950 قانون العقوبات وأصول المحاكمات العسكرية), Art. 51. [53] Legislative Decree No. 61/1950 Penal Code and Military Procedures (Arabicالمرسوم التشريعي 61 لعام 1950 قانون العقوبات وأصول المحاكمات العسكرية), Art. 47 (4). [54]Legislative Decree No. 61/1950 Penal Code and Military Procedures (Arabicالمرسوم التشريعي 61 لعام 1950 قانون العقوبات وأصول المحاكمات العسكرية), Art. 53 and Legislative Decree No. 64 of 2008 on the trial of police officers, customs officers, and political security personnel before the military judiciary (المرسوم التشريعي 64 لعام 2008 المتضمن محاكمة ضباط الشرطة وعناصرها وعناصر الجمارك والأمن السياسي أمام القضاء العسكري). [55] Article 2, Decree No. 32 of 2023 to end the effect of Legislative Decree No. 109 dated 17/8/1968 and its amendments on the establishment of military field courts (n.d) (Syria). [56]Legislative Decree No. 61/1950 Penal Code and Military Procedures (Arabicالمرسوم التشريعي 61 لعام 1950 قانون العقوبات وأصول المحاكمات العسكرية), Art. 92. [57] United Nations, Committee against Torture, Consideration of reports submitted by States parties under article 19 of the Convention Comments and follow–up responses of the Syrian Arab Republic to the concluding observations of the Committee against Torture report of Committee against Torture (6 September 2011, CAT/C/SYR/CO/1/Add.1). [58] ibid. [59] ibid. [60] United Nations, Committee against Torture, Consideration by the Committee against Torture of the implementation of the Convention in the Syrian Arab Republic in the absence of a special report requested pursuant to article 19, paragraph 1, in fine; Concluding observations of the Committee against Torture (29 June 2012, CAT/C/SYR/CO/1/Add.2). [61] Kassem Hamadé, ‘He denies torture – that has been caught on camera’ Expressen (Damascus, 17 April 2015) < https://www.expressen.se/nyheter/mote-med-al-assad/del-2/en/ > accessed 16 September 2023. [62] Ibid. [63] Mansour Omari, ‘al Fatih al–Islami symposium: acknowledging ‘Caesar’ and torture’ Enab Baladi Newspaper (10 March 2020) < https://www.enabbaladi.net/archives/368924 > accessed 16 September 2023. [64] ‘If the Dead Could Speak; Mass Deaths and Torture in Syria’s Detention Facilities’ Human Rights Watch (16 December 2015) < https://www.hrw.org/report/2015/12/16/if-dead-could-speak/mass-deaths-and-torture-syrias-detention-facilities > accessed 16 September 2023. [65] Omari (n 63)