H o m i n u m

c a u s a

o m n e

i u s

c o n s t i t u t u m

DIGNITAS
Revija za človekove pravice
The Slovenian Journal of Human Rights

Ljubljana, 2023

DIGNITAS
izhaja pod pokroviteljstvom
SLOVENSKE KOMISIJE PRAVNIKOV
in
DRUŠTVA ZA PRIMERJALNO IN USTAVNO PRAVO
DIGNITAS is published under the auspices of
THE SLOVENIAN SECTION OF THE INTERNATIONAL COMMISSION
OF JURISTS
and
THE SLOVENIAN COMPARATIVE CONSTITUTIONAL LAW ASSOCIATION
• • •

Ustanovitelj in izdajatelj revije je
Inštitut za ustavno ureditev in človekove pravice
• • •

Izid publikacije je finančno podprla Javna agencija za raziskovalno dejavnost
Republike Slovenije iz sredstev državnega proračuna iz naslova razpisa za
sofinanciranje domačih znanstvenih periodičnih publikacij.

Contents

Editorial
Jernej Letnar Černič The Ambiguities of the Loss
and Damage Fund .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .

5

Constitutional Law
Tanja Teršar Respect for the Rule of Law in the EU on the
example of Slovenia . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Blaž Marinčič Udvanc The Right To Be Offended: Should
We Toughen Up? Legal Argumentation Analysis in the Case
of Blackhorse v Pro-Football Inc. .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .

9
23

Human Rights Law
Bojan Grum, Darja Kobal Grum Life Satisfaction and Real
Estate Living Conditions of the Elderly in Slovenia . .  .  .  .  .  .  .  .  .  .  .  .

49

International Law
Eva Robida “Guarding the Cosmos”: Exploring
(non)existing Legal Frameworks for Sustainable Space
Activities .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .

71

Sports Law
Nik Šabec Liability for Damages in Case of Sports Injuries .  .  .

89

Utrinek z akademskega foruma
Tanja Malovrh, Petra Weingerl, Gorazd Justinek, Jernej
Letnar Černič Naravne nesreče, človekove pravice in okolje:
Vloga in obveznosti države in gospodarstva .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  . 113
3

DIGNITAS n The Ambiguities of the Loss and Damage Fund

The Ambiguities of the Loss and
Damage Fund
Jernej Letnar Černič

How do we respond to the negative impacts of climate change
on the enjoyment of human rights? Recent discussions and negotiations at the United Nations Climate Change Conference (COP28)
resulted in establishing the Loss and Damage Fund (hereinafter the
Fund). States parties at the 2009 United Nations Climate Change
Conference (COP15) already envisaged the establishment of the
Fund to respond to the negative impacts of climate change. They
noted in the Copenhagen Accord that “New multilateral funding
for adaptation will be delivered through effective and efficient
fund arrangements, with a governance structure providing for
equal representation of developed and developing countries” (Decision 2/CP.15, Copenhagen Accord, 2009, para. 9). Later, the Warsaw international mechanism for loss and damage associated with
climate change impacts emphasized the importance of “… enhancing action and support, including finance, technology and capacity
building, to address loss and damage associated with the adverse
effects of climate change” (Decision 2/CP.19, para. 5 (c), 2014). The
direct legal basis for establishing the Fund was established at the
2022 Sharm el-Sheikh United Nations Climate Change Conference
(COP27). The States there decided “… to establish a fund for responding to loss and damage whose mandate includes a focus on
addressing loss and damage” (Decision 2/CP.27, para. 3, 2022). The
Fund was finally operationalized at the Dubai United Nations Climate Change Conference (COP28). The States there observed that
the objective of the Fund: “… is to assist developing countries that
are particularly vulnerable to the adverse effects of climate change
in responding to economic and noneconomic loss and damage
associated with the adverse effects of climate change, including
extreme weather events and slow onset events” (Decision -/CP.28
-/CMA.5, Annex I, p.5, para. 2, 2023).
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DIGNITAS n Editorial

The Fund will serve as a mechanism of a financial nature that
would compensate those countries that were adversely impacted
by different adverse impacts of climate change. It aims to compensate countries and provide them with financial support for all
losses and damages sustained due to climate change that cannot
be remedied through mitigation and adaptation measures. The
Global South countries consider the Fund as the mechanism by
which Global North countries would compensate them for historical injustices. They argue that the Global North countries have
a moral obligation to aid countries adversely affected by their industrial activities over the past centuries. The Global South countries that are mainly affected are primarily coastal states, small island developing states, and least developed countries, which have
carried the most harmful effects of climate change. Nonetheless,
for the Fund to have credibility and legitimacy, it would have to
ensure equality in assisting all countries affected by the negative
impacts of climate change.
The concept of loss and damages includes economic losses,
such as infrastructure deterioration and destruction, and noneconomic losses (negative impacts on biodiversity, human dignity, cultural heritage, etc). States will have to agree on the exact
definition of “loss and damage” in the future. The legal nature of
the Fund is based on states’ shared and joint responsibility for the
adverse consequences of climate change. Its aim is not primarily preventive but mostly to compensate most affected states for
losses and damages. It is embedded in the values of international
cooperation, extraterritorial environmental and human rights obligations, solidarity, and shared responsibility to respond to the
adverse effects of climate change on the enjoyment of human
rights. Therefore, the Fund should assist states and other stakeholders in building capacity to prevent climate change risks for
the enjoyment of human rights.
Nonetheless, several ambiguities exist. It needs to be made
clear who the rights-holders and duty-holders under the Fund
are and how at least its minimum funding will be secured. Some
countries have already pledged contributions to the Fund (UN,
2023). However, the sustainability of such donations beyond
Global North countries will have to be ensured. The United Nations should encourage the private sector’s contribution to the
fund. Most importantly, how the causal link and attribution be6

DIGNITAS n The Ambiguities of the Loss and Damage Fund

tween cause and adverse impacts on climate change will be established is still being determined. Nonetheless, the Fund should
complement existing climate finance frameworks such as the
Green Climate Fund, which at COP28 achieved the funding record (Green Climate Fund, 2023).
As the Fund is still in its early stages, how it will operate and
administrate the funds is still being determined. One can expect
a disagreement over who will be obliged to contribute to its functioning along the Global South – Global North divide that is often
visible in the United Nations General Assembly. Nonetheless, establishing the Fund should be welcomed as an attempt to respond
to the negative effect of climate change on countries in both the
Global South and the Global North. The Fund will attempt to create financial incentives to rebuild countries and help vulnerable
communities address the negative impacts of climate change. As
climate change is an issue of urgency, the effectiveness of the
Fund should not be lost in the governance, financial, and ideological disputes between the Global South and the Global North.
Therefore, a robust mechanism should be established to ensure
and monitor the independence, impartiality, and fairness of the
Fund’s functioning.
The author acknowledges the financial support from the Slovenian Research and Innovation Agency (Research project “Corporate accountability, human rights, and climate change: Towards
coherent and just Slovenian and international legal order”, no. JP.
50171).

7

DIGNITAS n Editorial
Literature and sources
Green Climate Fund, COP28: Green Climate Fund reaches record funding levelhttps://www.greenclimate.fund/news/cop28-green-climate-fund-reaches-record-funding-level.
United Nations Loss and Damage Fund, Pledges to the Loss and Damage Fund, 2023, https://unfccc.
int/process-and-meetings/bodies/funds-and-financial-entities/loss-and-damage-fund-joint-interim-secretariat/pledges-to-the-loss-and-damage-fund
United Nations, Conference of the Parties Report of the Conference of the Parties on its twenty-seventh session, held in Sharm el-Sheikh from 6 to 20 November 2022 Addendum Part two: Action
taken by the Conference of the Parties at its twenty-seventh session, FCCC/CP/2022/10/Add.3, 17
March 2023.
United Nations, Decision -/CP.28 -/CMA.5, Operationalization of the new funding arrangements,
including a fund, for responding to loss and damage referred to in paragraphs 2–3 of decisions
2/CP.27 and 2/CMA.4, Annex I. Annex I, Governing Instrument of the Fund, FCCC/CP/2023/L.1−
FCCC/PA/CMA/2023/L.1, 29 November 2023.
United Nations, Decision 2/CP.27, Funding arrangements for responding to loss and damage associated with the adverse effects of climate change, including a focus on addressing loss and damage,
20 Nov 2022, p. 11, para. 3.
United Nations, Report of the Conference of the Parties on its fifteenth session, held in Copenhagen
from 7 to 19 December 2009, Addendum, Part Two: Action taken by the Conference of the Parties
at its fifteenth session, FCCC/CP/2009/11/Add.1, 30 March 2010, Decision 2/CP.15, Copenhagen
Accord, 18 December 2009.
United Nations, Warsaw international mechanism for loss and damage associated with climate change impacts, Decision 2/CP.19, Conference of the Parties Report of the Conference of the Parties on
its nineteenth session, held in Warsaw from 11 to 23 November 2013 Addendum Part two: Action
taken by the Conference of the Parties at its nineteenth session,FCCC/CP/2013/10/Add.1 Distr.:
General 31 January 2014.

8

DIGNITAS n Respect for the rule of law in the EU on the example of Slovenia

Respect for the rule of law in the EU
on the example of Slovenia
Tanja Teršar

Abstract
The rule of law is one of the fundamental principles of the EU,
but in the last few years in some member states, including Slovenia, challenges have arisen regarding respect for the rule of law.
An analysis of the recommendations given to member states in
2022 and 2023 by the European Commission shows that Slovenia
is generally located approximately in the middle or leans slightly
more towards the upper (better) half of the EU member states despite the identified challenges, where one-off violations and not
systemic threats to the rule of law prevail. In connection to the
question of the effectiveness of the measures that the EU envisages to ensure respect for the rule of law, the mechanism under
Regulation (EU) 2020/2092 has currently been recognized as the
most effective for ensuring progress in the protection of the rule
of law in the EU.
Keywords: Rule of Law, Slovenia, European Union, European
Commission, mechanisms

Spoštovanje vladavine prava v EU na primeru
Slovenije
Povzetek
Vladavina prava je eno temeljnih načel EU, vendar se v zadnjih
nekaj letih v nekaterih državah članicah, med njimi tudi v Sloveniji, pojavljajo izzivi na področju zagotavljanja spoštovanja vladavine prava. Analiza priporočil, ki jih je državam članicam v 2022 in
2023 podala Evropska komisija, kaže, da je Slovenija na splošno
9

DIGNITAS n Constitutional Law

približno na sredini oz. se nekoliko bolj nagiba proti zgornji (boljši) polovici držav članic EU kljub identificiranim izzivom, kjer
prevladujejo enkratne kršitve, ne pa sistemske grožnje vladavini
prava. V povezavi z vprašanji ali so ukrepi, ki jih EU predvideva
za zagotavljanje spoštovanja vladavine prava učinkoviti, je kot
najučinkovitejše sredstvo za zagotavljanje napredka v prizadevanjih za zaščito vladavine prava v EU zaenkrat prepoznan mehanizem pogojevanja koriščenja sredstev EU skladno z Uredbo (EU)
2020/2092.
Ključne besede: vladavina prava, Slovenija, Evropska unija,
Evropska komisija, mehanizmi

1. The rule of law as a fundamental value
of the EU
The rule of law is one of the fundamental values on which the
European Union (hereinafter: EU) is based. In its most basic definition, the rule of law means that all members of society are equal
before the law; therefore, strengthening the rule of law is the main
goal of citizens, governments, civil society organizations, companies, and investors (Agrast et al., 2021, pp. 9, 13). Since one of the
fundamental principles of the EU and its member states is that they
are based on the rule of law, the promotion and preservation of the
latter is of central importance to the work of the European Commission as the very legal, political and economic basis of the EU’s
functioning can be threatened by undermining the rule of law.
Deficiencies related to the principle of the rule of law in one member state can affect other member states and the EU as a whole.
Therefore, it is in the EU’s common interest to resolve potential issues regarding the rule of law (Strengthening the rule of law within
the Union: A blueprint for action, 2019, p. 1). Although all member
states are, in principle, considered to respect the rule of law at all
times, challenges have emerged in some member states over the
past few years that make this no longer a self-evident claim. Among
the examples of countries where threats to the rule of law are particularly prominent in the media and academia are Hungary and
Poland, where the departure from EU values has been going on for
a long time and political tensions are escalating.
In 2019, the European Commission highlighted cases of disrespect and threats to the principle of the rule of law, such as insuf10

DIGNITAS n Respect for the rule of law in the EU on the example of Slovenia

ficient independence of the judicial process, weakened constitutional courts, the increasing use of executive decrees or repeated
attacks by one branch of government on another, high-level corruption and abuse of official position in cases, when political
power seeks to dominate the rule of law, attempts to limit media
pluralism and the suppression of civil society and independent
media (Strengthening the rule of law within the Union: A blueprint
for action, 2019, p. 1). In its communication on strengthening the
rule of law in the EU, the European Commission acknowledged
that the aforementioned challenges also cause concern about the
EU’s ability to deal with such situations and that there is a need
to strengthen it (Strengthening the rule of law within the Union:
A blueprint for action, 2019, p. 1). The EU has a number of tools
at its disposal to ensure and strengthen respect for the rule of
law in all member states, which were developed and tested over
the past decade (Rule of law: First Annual Report on the Rule of
Law situation across the European Union, European commision,
2020, e-source). These tools include the judicial mechanism pursuant to Articles 258–260 of the Treaty on the Functioning of the
European Union (hereinafter: TFEU) and the procedure pursuant
to Article 7 of the Treaty on European Union (hereinafter: TEU).
European Commission can also initiate the rule of law framework
in the case of systemic threats to the rule of law in the EU member
states. It includes the preparation of a report on the rule of law
and the provision of specific recommendations to the member
states. In 2020, when Europe and the rest of the world began to
deal with the COVID-19 epidemic, in the financial framework for
dealing with the epidemic, there was a proposal to condition the
use of EU funds with respect for the rule of law. This entered into
force in January 2021 with Regulation (EU) 2020/2092.
When reviewing the key areas for ensuring the rule of law,
i.e., judicial system, anti-corruption framework, freedom and plurality of the media, and system of checks and balances, it can be
observed that even in Slovenia, in recent years, there were quite
a few examples of events that do not comply with the definition
of rule of law. The European Commission clearly highlighted
some of them as shortcomings in its reports on the rule of law in
the years 2020–2023 (2020 Rule of Law Report: Country Chapter
on the rule of law situation in Slovenia, 2020, p. 1; 2021 Rule of
Law Report: Country Chapter on the rule of law situation in Slo11

DIGNITAS n Constitutional Law

venia, 2021, p. 1; 2022 Rule of Law Report: Country Chapter on
the rule of law situation in Slovenia, 2022, p. 1; 2023 Rule of Law
Report: Country Chapter on the rule of law situation in Slovenia,
2023, p. 1). The alarming situation in Slovenia was clearly demonstrated and condemned by the Resolution of the European
Parliament of 16 December 2021 on fundamental rights and the
rule of law in Slovenia, in particular, the delayed nomination of
EPPO prosecutors (Resolution of the European Parliament no.
P9_TA (2021)0512, points 2–9). With this, Slovenia also found
itself on the list of problematic member states that are sliding
away from the values they undertook to respect by becoming
EU members.
When looking at the situation in various EU member states,
including Slovenia, questions arise as to whether the measures
that the EU envisages to ensure respect for the rule of law in the
member states are effective, why, despite the efforts of the European Commission and threats of sanctions there are still violations or deviations from EU values, and how the rule of law can
be strengthened and the situation corrected so that all member
states would respect the rule of law as much as possible. Time
should not be wasted in solving these challenges. In its communication on strengthening the rule of law in the EU in 2019, the
European Commission made an important observation that in
solving a potential crisis of the rule of law, it is necessary to act as
soon as possible because otherwise, there is the risk of bad practices taking root, which would make eliminating their adverse effects in the future even more difficult (Strengthening the rule of
law within the Union: A blueprint for action, 2019, p. 12). Based
on this, questions arise regarding the state of the rule of law in
Slovenia compared to other EU member states and how convincingly and successfully the European Commission responded to
the state of the rule of law in Slovenia compared to other EU
member states.

2. The rule of law in Slovenia
Based on the analysis of the European Commission’s recommendations for the judicial and anti-corruption framework, media plurality and freedom, and system of checks and balances,
the situation regarding respect for the rule of law in Slovenia was
12

DIGNITAS n Respect for the rule of law in the EU on the example of Slovenia

compared to the rest of the EU member states. It was assessed
whether Slovenia is comparable to the majority or better or worse
than most of the other EU member states. We investigated the
mechanisms available to the European Commission per EU law to
ensure respect for the rule of law in EU member states, as well as
how the European Commission reacts in case of threats or violations of the rule of law in member states and uses available tools.
If the European Commission acted on such cases, we analyzed
whether it succeeded in effectively suppressing law violations,
nullifying the effects of such violations, and sanctioning the offending member states within the framework allowed by the established EU legal system.
A key objective of the European Commission’s first annual
rule of law report from 2020, which is part of the European rule
of law framework, was to raise awareness and encourage open
debate among member states on rule of law issues. This report
did not identify serious risks for respect of the rule of law in Slovenia. According to some stakeholders, it was also insufficiently
critical of the actual situation in Slovenia (Sedej, 2020, e-source;
Bruselj objavil prvo poročilo o vladavini prava v članicah EU,
Lexpera, 2020, e-source). The European Commission’s second
annual report presented findings that the state of the rule of
law in Slovenia has deteriorated significantly (2021 Rule of Law
Report: Country Chapter on the rule of law situation in Slovenia,
2021, p. 1). Even the third annual report of the European Commission, despite mentioning the progress concerning some of
the challenges from the previous report, highlighted in particular the deterioration of media freedom, challenges regarding
the independence or autonomy of law enforcement authorities,
deficiencies in rules governing parliamentary investigations and
concerns about the independence of the National Bureau of Investigation and other institutions for the fight against corruption
(2022 Rule of Law Report: Country Chapter on the rule of law
situation in Slovenia, 2022, p. 1). European Commission’s fourth
annual report reported on the improvement of the situation in
the judicial framework and civil society, freedom and pluralism
of the media, and the provision of greater independence of the
National Bureau of Investigation; however, it highlighted the
challenges of ensuring adequate resources and the independence of judges and risks regarding the fight against corruption
13

DIGNITAS n Constitutional Law

(2023 Rule of Law Report: Country Chapter on the rule of law
situation in Slovenia, 2023, p. 1).
In recent years, the European Commission has made the most
of specific recommendations to member states in connection to
the successful fight against corruption and the efficient operation of judicial systems. These two fields are among the most essential for ensuring respect for the rule of law in the EU and, at
the same time, the most under threat. In 2022 and 2023, Slovenia also had the most challenges identified regarding the judicial
system, where it received four and two additional recommendations. Regarding anti-corruption framework and media freedom,
it received three recommendations for each of these fields, while
it earned one recommendation for the system of checks and balances. Among the challenges of the justice system, which have
been most exposed in recent years, are ensuring the impartiality
and independence of the judiciary, the prosecution, and the police, providing adequate resources, lack of adequate safeguards,
and lengthy legal proceedings, especially in the corruption prosecution, while the internationally more resounding event was the
delay in the appointment of European delegated prosecutors.
Slovenia has not adopted a current valid national anti-corruption
strategy, and the challenge is also the implementation of provisions for preventing and managing conflicts of interest in public
administration. In connection with this, systemic corruption risks
have been identified, which may be even greater due to obstacles
to effective investigation and prosecution of corruption at the
highest levels. Repeated reports by Slovenia’s Commission for
the Prevention of Corruption that its recommendations regarding
identified challenges are not being heeded cause concerns. There
are also concerns about the independence, organization, and effectiveness of the Commission for the Prevention of Corruption
due to the lack of resources and adequate safeguards in the legislation. In addition, there have been reports of political pressure
on independent and investigative institutions such as the Information Commissioner, the Commission for the Prevention of Corruption, the Audit Court, the Ombudsman, the police, and the
National Bureau of Investigation. Moreover, political interference
poses a risk to the independence of the media, in connection to
which Slovenia is characterized by the non-transparency of media
ownership and actual owners, verbal harassment of journalists,
14

DIGNITAS n Respect for the rule of law in the EU on the example of Slovenia

lawsuits with an intimidating effect, while more internationally
resounding were the complications with state financing of the
national press agency STA, and the obstruction of its work. The
noticeable trend of deterioration of media freedom from previous years started to improve in 2023. Challenges in connection
to the system of checks and balances are represented by noncompliance with the recommendations of the Ombudsman, the
overloading of the Constitutional Court and the resulting delays
in adjudicating cases, the lack of opportunities for the participation of the public, independent bodies, and civil society in the
legislative process, insufficient protective measures for the financial independence of independent bodies and financial restrictions for civil society organizations. In the crisis of the COVID-19
pandemic, challenges were identified regarding the insufficient
respect for the rule of law by ruling with unconstitutional decrees
(Teršar, 2023, pp. 118-119).
We can assess that in the case of all the described deviations
from the principle of the rule of law, these are primarily isolated
cases. At the same time, the risk of systemic threats is present in
the judicial system regarding court backlogs, where there is a risk
that the situation would gradually worsen in the future. Additionally, there is risk in the anti-corruption framework regarding the
implementation of provisions on the prevention and management of conflicts of interest in public administration, in connection to which the Commission for the Prevention of Corruption
detected systemic corruption risks (Ocena stanja Komisije za
preprečevanje korupcije 2021, 2022, pp. 5–6). As they represent
threats to respect for the rule of law, all identified challenges must
be given additional attention and effective solutions must be prepared and implemented.

3. Comparison of the state of the rule of law
between EU member states
What is the state of the rule of law in Slovenia compared to other EU member states? Based on the analysis of the total number
of recommendations member states received from the European
Commission in 2022 and 2023, this research classified member
states into five groups. Despite all the identified challenges, Slovenia generally belongs to the third-best group of member states
15

DIGNITAS n Constitutional Law

(out of five groups), located roughly in the middle of all member
states. In general, Slovenia leans slightly more towards the upper
(better) half of the EU member states. At the top of the list, where
the fewest challenges of respect for the rule of law are identified,
are Estonia, Denmark, Finland, the Netherlands, Sweden, Latvia,
and Belgium. Countries with the most issues regarding respect
for the rule of law are Hungary, Poland, Romania, Bulgaria, and
Malta, followed by Cyprus, the Czech Republic, Slovakia, Spain,
Italy, Croatia, Greece, and Slovenia.
In contrast to the overall assessment based on the recommendations of the European Commission, in the assessment of the
World Justice Project, Slovenia ranked 13th (out of 20) among EU
member states in 2022 and 2023, which places it in the bottom
half of the member states. In the ranking of all world countries,
Slovenia reached 31st place in 2022, while in 2023 it climbed to
27th place with a slight improvement in the result (Agrast et al.,
2022, p. 12; Agrast et al., 2023, p. 11). Slovenia seems to be slowly
changing the direction and turning the respect for the rule of law
into a positive trend. The findings from the analysis of the latest
European Commission report on the rule of law from 2023 show
an improvement after a notable decline, which was particularly
evident in the annual reports from 2021 and 2022. The alarming
state of respect for the rule of law in Slovenia was additionally
recognized with the European Parliament’s Resolution on fundamental rights and rule of law in Slovenia from December 2021,
which theoretically ranked Slovenia even a little lower in respect
of the rule of law, or into the group of the most problematic
member states. However, in fulfilling the recommendations of the
European Commission from 2022, Slovenia made the most significant progress of all the states, having fully fulfilled half of the recommendations, followed by Lithuania, Estonia, and Italy. On the
other hand, the least progress was made by Poland. Among other
states with the most challenges in terms of respecting the rule
of law, slightly more progress was made in Romania, Bulgaria,
Malta, and Hungary, where the latter made the most considerable
progress (Annex to the 2022 Rule of Law Report: The Rule of Law
Situation in the European Union, 2023, pp. 2, 6, 12, 15, 17–18, 21,
23–24).
When comparing the state of respect for the rule of law between member states, it is necessary to take into account the con16

DIGNITAS n Respect for the rule of law in the EU on the example of Slovenia

cerns that the European Commission, in its annual reports on
the rule of law and the recommendations, did not adequately
cover all the challenges of respect for the rule of law in individual
member states, but rather presented them in a deficient or nonobjective way. As a result, the European Commission’s reports do
not necessarily reflect the real situation of the rule of law in the
member states. Particularly problematic is the fact that the European Commission generally obtains information directly from
the national stakeholders involved, which leaves no room for a
broader sociological approach, based on which the respect for
the rule of law in individual countries could be analyzed more
comprehensively. Avbelj singled out Slovenia as an example of
the flawed approach of the European Commission, as the entire situation regarding the decision-making on the matter of the
new Radiotelevizija Slovenija Act was not presented. In relation
to this, there is an indication of a risk that the political bias of the
European Commission in the case of certain countries could be
divisive for the actual state of the European rule of law and thus
the existence of the EU as such, as it could present an argument
against the directions of the EU and the European Commission
on the part of the member states, where the challenges of the rule
of law are the most serious (Avbelj, 2023, e-source).

4. The response of the EU and the European
Commission to the challenges of the rule
of law in the member states
Upon analysis of the reaction of the EU or the European Commission in cases of threats or disrespect for the rule of law in
Slovenia and other EU member states, it was found that the only
formal response of the European Commission in the case of Slovenia was the highlighting of identified challenges in the annual
report on the state of the rule of law from 2020 onwards. In 2022
and 2023, specific recommendations for judicial and anti-corruption systems, pluralism and freedom of the media, and the system
of checks and balances were also provided. The European Parliament was somewhat stricter with its resolution on fundamental
freedoms and the rule of law in Slovenia, prepared in December
2021. All of the above responses highlighted problematic situ17

DIGNITAS n Constitutional Law

ations represented by one-off violations or potential emerging
risks for systemic violations of the rule of law that resulted in generic recommendations to resolve these situations as soon as possible. Within the framework of ensuring the rule of law, the European Commission made specific recommendations to all member
states, where Estonia received the fewest recommendations and
Hungary the most. Additionally, the European Parliament issued
resolutions for Bulgaria, Malta, Slovakia, Hungary, Poland and Slovenia. However, such recommendations and resolutions are not
binding and have no concrete legal consequences for Slovenia or
the other member states.
A stricter response from the European Commission occurred
in the case of Hungary (2018) and Poland (2017), against which
a procedure was initiated in accordance with Article 7 of the TEU
due to controversial reforms of the Polish judicial system and
concerns about the state of democracy, the rule of law and the
protection of fundamental rights in Hungary. Against Germany
(2021), a procedure was initiated in accordance with Article 258
of the TFEU regarding the issue of respecting the primacy of EU
law. These cases required a more serious response because the
rule of law violations were more systematic and not so much oneoff in nature. At the same time, they also represented a dangerous
precedent that the rest of the member states could follow their
example.
Sanctions for non-respect for the rule of law can be primarily
financial, or they can cause a possible loss of voting rights, which
is supposed to be a temporary measure until the sanctioned
member state stops its violations and thus returns to respecting
the rule of law. Non-fulfillment of obligations in accordance with
the TFEU and TEU can only be dealt with on the basis of Articles
258-260 TFEU or Article 7 TEU. From a legal point of view, there is
no procedure in EU law that could force a member state to leave
the EU due to non-fulfillment of obligations from the treaties. A
member state can decide to leave the EU in accordance with the
procedure under Article 50 of the TEU, as happened in 2020 in
the case of the United Kingdom of Great Britain and Northern
Ireland. Violation of the rule of law cannot, therefore, be a legal
basis for sanctions in the form of exclusion from the EU, even if
the member state strongly or persistently violates the principle of
the rule of law. When assessing whether the introduction of such
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DIGNITAS n Respect for the rule of law in the EU on the example of Slovenia

a sanction in the EU treaties might be sensible, it must be taken
into consideration that the exclusion of any member state is not
in the interest of the EU. Still, the goal is that all member states
follow the set rules, including respect for the rule of law.
In extreme cases, the use of Article 7 of the TEU is foreseen,
where the threshold for activating response mechanisms is very
high. At the same time, events in some member states have shown
that these mechanisms are not always adequately effective or
suitable for swift response to threats to the rule of law (Communication from the Commission to the European parliament
and the Council: A new EU Framework to strengthen the Rule
of Law, 2014, pp. 5–6). In the procedure under Article 7 of the
TEU against Poland and Hungary, significant development of the
cases has not yet been achieved, and the measures implemented
solely based on these procedures have not led to improvements
in any of these countries. The EU’s efforts to ensure respect for
the rule of law have been relatively unsuccessful, as the available legal tools have not been used forcefully enough. Although
the dismantling of the rule of law in some countries is the result
of deliberate political decisions (Strengthening the rule of law
within the Union: A blueprint for action, 2019, p. 5), the EU has
not responded to such deviations with mechanisms that would
include sanctions but mainly relies on preventing violations and
dialogue with member states (Priebus, 2022).
Which of the existing tools or the European Commission’s responses is, therefore, the most effective or encouraging for member states to prevent deviations from respect for the rule of law?
Member states’ response depends primarily on the existence and
severity of potential sanctions, which is why mere recommendations to achieve the desired standards of the rule of law are not
effective enough, as member states are not sufficiently encouraged to strive for compliance. At the end of April 2022, the European Commission used, for the first time in the case of Hungary,
the conditionality mechanism for the use of EU funds in accordance with Regulation (EU) 2020/2092 of the European Parliament
and of the Council of 16 December 2020 on the general regime
of conditionality for the protection of the Union budget, thus
directly sanctioning Hungary’s rule of law non-respect (Bruselj
proti Madžarski uradno sprožil mehanizem pogojevanja sredstev
z vladavino prava (dopolnjeno), Tax-Fin-Lex, 2022, e-source). A
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DIGNITAS n Constitutional Law

good indicator of the effectiveness of this type of mechanism for
conditioning financial resources, even in the most problematic
countries, is the undoubted fact that Hungary began to actively
fulfill the recommendations given by the European Commission
in 2022. From this point of view, it seems reasonable to establish
a solution at the EU level, as was proposed by the European Parliament in a resolution from March 2023. Namely, the European
Commission should more clearly define threats and violations of
the rule of law in its annual cycle and report on the rule of law
while also giving binding recommendations to member states
and, thus, providing a direct basis for the automatic activation of
the mechanism for conditioning the rule of law in accordance
with Regulation (EU) 2020/2092 in case of violations of the rule
of law (European Parliament’s Resolution no. P9_TA(2023)0094,
30. 3. 2023, pp. 9–10; Rule of law: the Commission’s reporting has
improved, but EU values are still deteriorating, European Parliament, 2023, e-source).

5. Conclusion
Based on this research, possible solutions can be defined and
potentially applied to the plan for ensuring respect for the rule
of law in Slovenia’s future or in key areas where the threats to
the rule of law are the greatest. A comparison of Slovenia with
other EU member states can provide examples of bad and good
practices in ensuring respect for the rule of law in the judicial
framework, the anti-corruption framework, media plurality and
freedom, and the system of checks and balances. Based on this,
solutions for the challenges faced by Slovenia regarding respect
for the rule of law can be adapted accordingly. The present research can also represent a starting point for further research into
the topic and related issues.
The EU is based on the common values of respect for human
dignity, freedom, democracy, equality, the rule of law, and respect for human rights. All EU member states must respect them
since joining the EU and later as full EU members and democratic
countries, where the rule of law and fundamental rights are mutually reinforcing values. Their threat could pose a risk to the rights
and freedoms of EU citizens. Therefore, respect for the rule of
law is binding on all levels of governance in EU member states
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DIGNITAS n Respect for the rule of law in the EU on the example of Slovenia

(European Parliament’s Resolution no. P9_TA(2023)0094, 30. 3.
2023, p. 4).
Although the rule of law is, in principle, ubiquitous, its broad
definition makes it very likely that its meaning is not sufficiently
understood by the citizens of the member states, which also creates a high risk of its misuse or ideological abuse (Bingham, 2011,
p. 5). For this reason, it is essential to increase awareness of the
importance of the rule of law among people in Slovenia and the
EU, which should start with educating the younger generations.
The holders of public functions, especially the executive and legislative branches of government, also have their role in this, as
they can raise the level of political culture and contribute by their
own example so that the rule of law, democracy, and integrity
will become a standard in our society. Conscious and critical civil
society and the media can encourage this type of behavior and, at
the same time, reveal those who, with their actions, insist on the
opposite and contribute to the disintegration of the rule of law.
Therefore, continuous proactive action is required by every EU
citizen to protect European society from existing and potentially
developing challenges of the rule of law.

Literature and sources
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European Economic and Social Committee and the Committee of the Regions: 2022 Rule of Law
Report: The Rule of Law Situation in the European Union. European Commission, COM(2022)
500 final, 13. 7. 2022.
Annex to the Communication from the Commission to the European Parliament, the Council, the
European Economic and Social Committee and the Committee of the Regions: 2023 Rule of Law
Report: The Rule of Law Situation in the European Union. European Commission. COM(2023)
800 final, 5. 7. 2023.
Agrast, M. D., et al. (2021). Rule of Law Index 2021. Washington, D.C: World Justice Project.
Agrast, M. D., et al. (2022). Rule of Law Index 2022. Washington, D.C: World Justice Project.
Agrast, M. D., et al. (2023). Rule of Law Index 2023. Washington, D.C: World Justice Project.
Avbelj, M. (2023). Hinavski um ali namenske laži evropske komisije? Finance, 8. 7. 2023. URL: https://
www.finance.si/hinavski-um-ali-namenske-lazi-evropske-komisije/a/9014892?share=llsvzVzcBoKz
g7o0RRfIUQ, 16. 1. 2024.
Bingham, T. (2011). The Rule of Law. London: Penguin Books.
Bruselj objavil prvo poročilo o vladavini prava v članicah EU. Lexpera, 30. 9. 2020. URL: https://www.
iusinfo.si/medijsko-sredisce/dnevne-novice/271322, 16. 1. 2024.
Bruselj proti Madžarski uradno sprožil mehanizem pogojevanja sredstev z vladavino prava (dopolnjeno). Tax-Fin-Lex, 27. 4. 2022. URL: https://www.tax-fin-lex.si/Home/Novica/23193, 16. 1. 2024.
Commision staff working document: 2020 Rule of Law Report: Country Chapter on the rule of law
situation in Slovenia: Accompanying the Communication from the Commission to the European
Parliament, the Council, the European Economic and Social Committee and the Committee of the
Regions: 2020 Rule of Law Report: The Rule of Law Situation in the European Union. European
Commision, SWD(2020) 323 final, 30. 9. 2020

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Commision staff working document: 2021 Rule of Law Report: Country Chapter on the rule of law
situation in Slovenia: Accompanying the Communication from the Commission to the European
Parliament, the Council, the European Economic and Social Committee and the Committee of the
Regions: 2021 Rule of Law Report: The Rule of Law Situation in the European Union. European
Commision, SWD(2021) 726 final, 20. 7. 2021.
Commission staff working document: 2022 Rule of Law Report: Country Chapter on the rule of law
situation in Slovenia: Accompanying the Communication from the Commission to the European
Parliament, the Council, the European Economic and Social Committee and the Committee of the
Regions: 2022 Rule of Law Report: The Rule of Law Situation in the European Union. European
Commission, SWD(2022) 524 final, 13. 7. 2022.
Commission staff working document: 2023 Rule of Law Report: Country Chapter on the rule of law
situation in Slovenia: Accompanying the Communication from the Commission to the European
Parliament, the Council, the European Economic and Social Committee and the Committee of the
Regions: 2023 Rule of Law Report: The Rule of Law Situation in the European Union. European
Commission, SWD(2023) 824 final, 5. 7. 2023.
Communication from the Commission to the European parliament and the Council: A new EU Framework to strengthen the Rule of Law. European Commision, COM(2014) 158 final, 11. 3. 2014.
Communication from the Commission to the European Parliament, the European Council, the Council, the European Economic and Social Committee and the Committee of the
Regions: Strengthening the rule of law within the Union: A blueprint for action. European Commision, COM(2019) 343 final, 17. 7. 2019.
European Parliament resolution of 16 December 2021 on fundamental rights and the rule of law
in Slovenia, in particular the delayed nomination of EPPO prosecutors. (2021/2978(RSP)). 16.
12. 2021. European Parliament, P9_TA (2021)0512. URL: https://www.europarl.europa.eu/doceo/
document/TA-9-2021-0512_EN.html, 16. 1. 2024.
European Parliament resolution of 30 March 2023 on the 2022 Rule of Law Report – the
rule of law situation in the European Union (2022/2898(RSP)). European Parliament, P9_
TA(2023)0094. URL: https://www.europarl.europa.eu/doceo/document/TA-9-2023-0094_EN.pdf,
16. 1. 2024.
Ocena stanja Komisije za preprečevanje korupcije 2021 (2022). Ljubljana: Commision for Prevention of Corruption of Republic of Slovenia. URL: https://www.kpk-rs.si/kpk/wp-content/uploads/2022/05/Ocena_stanja_2021.pdf, 16. 1. 2024.
Priebus, S. (2022). The Commission‘s Approach to Rule of Law Backsliding: Managing Instead of
Enforcing Democratic Values? Journal of Common Market Studies, 60(6), pp. 1684–1700. URL :
https://onlinelibrary.wiley.com/doi/full/10.1111/jcms.13341, 16. 1. 2024.
Rule of law: First Annual Report on the Rule of Law situation across the European Union. European Commision, 30. 9. 2020. URL: https://ec.europa.eu/commission/presscorner/detail/en/
IP_20_1756, 16. 1. 2024.
Rule of law: the Commission‘s reporting has improved, but EU values are still deteriorating.
European Parliament, 6. 2. 2023. URL: https://www.europarl.europa.eu/news/en/press-room/20230206IPR72107/rule-of-law-commission-s-reporting-improved-eu-values-still-deteriorating, 16. 1. 2024.
Sedej, M. (2020). Evropsko poročilo o vladavini prava: boljše kot si ga želijo resnični zagovorniki
vladavine prava. Časnik, 13. 10. 2020. URL: https://casnik.si/evropsko-porocilo-o-vladavini-prava-boljse-kot-si-ga-zelijo-resnicni-zagovorniki-vladavine-prava/, 16. 1. 2024.
Teršar, T. (2023). Spoštovanje vladavine prava v EU na primeru Republike Slovenije. (master‘s thesis).
Ljubljana: New University, European Faculty of Law.

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DIGNITAS n The right to be offended: should we toughen up? Legal argumentation ...

The right to be offended: should we
toughen up? Legal argumentation
analysis in the case of blackhorse v.
pro-football inc.
Blaž Marinčič Udvanc
Abstract
It is arguable that the use of the term »Redskins« is controversial, and thus should be supported by substantial evidence until
proven as such. This paper explores the controversies associated with the Washington Football Team, formerly known as the
Washington Redskins. It further analyzes the legal arguments and
examines the logical strengths behind the conclusions outlined
in this research paper. To achieve the aforementioned objectives, scholarly articles were revised alongside an analysis of the
Blackhorse V. Pro-Football Inc. case. It is hypothesized that the
judge in this case Gerald Bruce Lee’s argumentation was flawed
in the verdict of the infringement of the First Amendment right
to free speech put forward by Pro Football Inc. in correlation
with the Section 2(a) of the Lanham Act. The aforementioned
conclusion was deduced on the basis of his argumentation being irrational and unsuppported by evidence. Whereby insufficient differentiation of the term “disparage” (among others)
was inappropriately utilized in various contexts it causes legal
ramifications as well. It is of questionable grounds to presume
that the use of the word »Redskins« may be deemed offensive no
matter the context. Notably, societal alterations, norms, and time
periods contribute to the offensive and misconstrued nature of
various terminology. Hence, good legal argumentation is dependent on the consideration of all circumstances and societal
state of condition.
Keywords: Redskins, Disparagement, Argumentation, Society,
Offensiveness

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DIGNITAS n Constitutional Law

Pravica biti užaljen: se moramo utrditi?
Analiza pravne argumentacije v zadevi
Blackhorse V. Pro-Football Inc.
Povzetek
Predmet raziskovanja je vprašanje ali je uporaba izraza »Redskins« sporna in ali bi bilo treba uporabo tega izraza podpreti
s tehtnimi utemeljitvami, dokler se ne dokaže, da ta izraz ni
sporen. Ta znanstveni članek raziskuje polemike, povezane s
poimenovanjem športnega moštva Washington, prej znanega
kot Washington Redskins, ki igra ameriški nogomet. Nadalje
so v članku analizirani pravni argumenti za in proti, obenem
pa članek preučuje logične prednosti zaključkov, opisanih v
tej raziskavi. Da bi dosegli omenjene cilje, so v raziskavi analizirani relevantni akademski pogledi na to problematiko, opravljena pa je tudi analiza sodne odločbe v zadevi Blackhorse
V. Pro-Football Inc. Domneva se, da je bila argumentacija, ki
jo je v obrazložitvi navedene sodne odločbe uporabil sodnik
Gerald Bruce Lee napačna v delu o ugotovitvi kršitve pravice
do svobode govora iz prvega amandmaja ameriške ustave, ki
jo je predložila stranka Pro Football Inc. v povezavi s členom
2(a) Lanhamovega zakona. Omenjeni sklep je sodnik izpeljal na
podlagi argumentacije, ki je neracionalna in nepodprta z dokazi. Ker je bilo nujno razlikovanje izraza »zaničevanje« oziroma
»omalovaževanje« (med drugim) neustrezno uporabljeno v različnih kontekstih, to povzroča tudi pravne posledice. Vprašljiva
je namreč presumpcija, da je uporaba besede »Redskins« žaljiva
vedno in povsod, ne glede na kontekst, v katerem je uporabljena. Predvsem družbene spremembe, norme in različna časovna obdobja prispevajo k napačno razumljeni naravi različnih
izrazov oziroma njihovi (ne)žaljivosti. Zato je dobra pravna argumentacija zgolj tista, ki upošteva vse navedene okoliščine in
družbeno stanje.
Ključne besede: »Redskins«, »Omalovaževanje«, »Argumentacija«, »Družba«, »Žaljivost«

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DIGNITAS n The right to be offended: should we toughen up? Legal argumentation ...

1. Introduction
Washington Football Team, formerly known as the Washington Redskins is an American football team that was founded as
the Boston Braves in the year 1932 but changed its name the following year. From 1933 (Kirkland, 2017, pp. 480) until the franchise moved to Washington D.C. in 1937 the football team was
called the Boston Redskins. From 1937 to 2020 the team went
under the name of the Washington Redskins. This name sparked
many controversies. A group of people found the name to be
racially offensive and inappropriate. That is why Amanda Blackhorse, Marcus Briggs-Cloud, Phillip Gover, Jillian Pappan and
Courtney Tsotigh decided that it is time to end the use of the
name »Redskins« and filed a case with the Trademark Trial and
Appeal Board of the United States Patent and Trademark Office
in order to cancel the trademarks of the aforementioned name.
The Trademark Trial and Appeal Board of the United States Patent and Trademark Office decided (two to one) to cancel the
trademarked names, stating the reason behind it as disparaging
to a substantial number of Native Americans. They argued that
their decision is based on the fact that there is a significant drop
in the usage of the term amongst the members of the society
which should indicate that the term has a negative connotation.
The government agency also stated that it found the term »Redskins« to refer to Native Americans and it does not have a different meaning when it comes to the context of sports. The group
of petitioners provided evidence of disparagement in the shape
of references made by journalists and lines from movie scripts
that refer to »Redskins« as enemies. The Trademark Trial and
Appeal Board of the United States Patent and Trademark Office
followed this evidence and did not put any weight to the claims
of the football team that the term is solely descriptive and does
not differ from any other term that uses color to racially differentiate people.
The Washington Redskins filed the appeal on the grounds
that the government agency ignored the weight of the evidence
which caused the infringement of their First Amendment right
to free speech. The U.S. District Court of Alexandria in Virginia
affirmed the decision of the Trademark Trial and Appeal Board
finding that the evidence before the Court supports the legal con25

DIGNITAS n Constitutional Law

clusion that the use of the name »Redskins« may disparage Native
Americans.
On October 30, 2015 Pro-Footbal Inc. filed an appeal with the
United States Court of Appeals for the Fourth Circuit in Richmond,
Virginia. In this appeal they argued that there are many more
names that could be potentially deemed offensive but have been
given trademarks by the same government agency that now states
that one of that trademarks may disparage Native Americans.
United States Court of Appeals for the Fourth Circuit decided
that while the aforementioned appeal number 15-1874 was still
pending, the Supreme Court gave ruling in the Matal v. Tam
(SCOTUS, 137 S. Ct 1744, 1751) case, finding a violation of the
free speech clause of the First Amendment. In light of this case
that was decided by the Supreme Court of the United States the
United States Court of Appeals for the Fourth Circuit vacated
the order made by the district court and remanded for further
proceedings that should be consistent with the ruling in Matal
v. Tam.
This paper aims to analyze the legal argumentation behind the
verdict in the case mentioned at the beginning of this paper. The
main objective is to showcase the arguments that lead to certain
conclusions and test them for their logical strength.

2. Analysis
Before we start with our analysis we need to point out the legislation that Pro-Football Inc. argued as unconstitutional. According to Pro-Footbal Inc. Lanham Act, more precisely its Section 2(a)
which prohibits registration of marks which may disparage others
or bring them in contempt or dispute, causes unconstitutional
restrictions on free speech. It argued in front of The U.S. District
Court of Alexandria that such a restriction is too vague which
is unconstitutional and as such the Trademark Trial and Appeal
Board of the United States Patent and Trademark Office violated
due process by issuing a cancellation of their trademarks based
on unconstitutional legislation.
Judge Gerald Lee rejected the mentioned arguments and held
that there are no free speech concerns regarding Section 2(a) of
the Lanham Act. He went as far as saying that the federal trademark registration programme is government speech and thus
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DIGNITAS n The right to be offended: should we toughen up? Legal argumentation ...

exempt from the First Amendment scrutiny that was argued by
Pro-Football Inc.
In addition to that, judge Gerald Lee held that Section 2(a) of
the Lanham Act is not unconstitutionally vague due to the fact
that it provides a clear and fair warning regarding which conduct
is prohibited and which is allowed. His opinion was that the relevant section does not encourage arbitrary and discriminatory
enforcement. Is his argument based on solid grounds? To find out
we must first analyze Section 2(a) of the Lanham Act which states:
»No trademark by which the goods of the applicant may be distinguished from the goods of others shall be refused registration
on the principal register on account of its nature unless it— (a)
Consists of or comprises immoral, deceptive, or scandalous matter; or matter which may disparage or falsely suggest a connection
with persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute; or a geographical
indication which, when used on or in connection with wines or
spirits, identifies a place other than the origin of the goods and is
first used on or in connection with wines or spirits by the applicant on or after one year after the date on which the WTO Agreement (as defined in section 3501(9) of title 19) enters into force
with respect to the United States.” (U.S. Trademark Law Federal
Statutes, U.S. Patent & Trademark Office, 25.11.2013, § 2 (15 U.S.C.
§ 1052), pp. 9).
We can clearly see that there is an exemption from the obligation not to refuse registration on account of its nature. The
nature of the trademark needs to be of such matter that it either
comprises immoral, deceptive, or scandalous matter, or it may
disparage or falsely suggest a connection with persons (living or
dead), institutions, beliefs or national symbols, or bring them into
contempt or disrepute.
The wording of Section 2(a) is set out in a way that we can immediately see it needs some sort of judicial interpretation to enact the meaning of certain words such as »immoral«, »deceptive«,
scandalous« onto a case which the judge has in front of them. Not
to mention the wording »may disparage« and »bring them into
contempt or disrepute« which also gives a broader field of interpretation to the judge. Such interpretation can potentially lead to
judicial activism if the judge decides to go out of the frame that
the legislator intended and provided with the bill. But did judge
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DIGNITAS n Constitutional Law

Gerald Bruce Lee of the U.S. District Court of Alexandria impose
more than the legislator intended when deciding in the Blackhorse v. Pro-Football Inc. case? We will try to resolve this question.
The position that judge Gerald Bruce Lee took was marred
by the fact that the term »Redskins« was implied to be used in
a derogatory way. The Section 2(a) of the Lanham Act uses the
term »may disparage« but it is not clear whether Native Americans
were actually represented as being of little worth. When someone
or something is disparaged it is regarded or represented as being
of less worth. The role of the judge here was not to deem what
the name »Redskins« means but to rule in a case regarding the
trademark of the name. Before deciding in this case, there was a
need to decide if the use of the name »Redskins« regards Native
Americans as being of less worth or not. This was not done, as it
was by some absent logic decided that it does and then the Section 2(a) of the Lanham Act was applied onto the fact that was not
proven beforehand. It was merely stated by Amanda Blackhorse
and others. The court did not go deeper than that.
For example, we can highlight the Harjo v. Pro-Football Inc.
case from the year 1992 (Rasul, 2015, pp. 340) in which the Trademark Trial and Appeal Board decided that the term »Redskins«
may be disparaging of Native Americans because a group of Native Americans which were the petitioners in that case were offended. The Trademark Trial and Appeal Board followed entirely
the claims of the petitioners that they found the name to be a racist designation for a Native American person which brings Native
Americans into contempt, ridicule and disrepute only to have its
ruling reversed in September of 2003 by the United States District
Court for the District of Columbia which ruled that decision made
by the Trademark Trial and Appeal Board regarding disparagement was not supported by substantial evidence (Paczkowski,
2004, pp. 1).
The mentioned case is important because it shows that the
Trademark Trial and Appeal Board was quick to jump to a conclusion. A tad too quick if we recall the verdict of the United States
District Court for the District of Columbia. The main objective
that the Trademark Trial and Appeal Board had was to decide
whether the standard of disparagement was met, which included
looking at the dates when trademarks were registered and then
decide if it was disparaging back then to use such names. For the
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DIGNITAS n The right to be offended: should we toughen up? Legal argumentation ...

»Redskins« it was the time window from 1967 to 1990 regarding
the Hanjo v. Pro-Football Inc. case. At the time of solving this case
there was no precedent so the Trademark Trial and Appeal Board
had to set a precedent by first determining what is the meaning
of the word »disparage« (Paczkowski, 2004, pp. 2). On top of that,
the Trademark Trial and Appeal Board decided that the perception of the word needs to be tied to a reference group instead of
the views of the general population.
The United States District Court for the District of Columbia
heavily criticized the conclusion that the term »Redskins« can refer to either a Native American person and a football team since
there was no evidence supporting that. If the term was disparaging it would have already fallen out of use in society, to which
the United States District Court for the District of Columbia concluded that even if the term was disparaging or even offensive
to Native Americans, it would not mean that the use of this term
would be automatically offensive when used in the context of the
Washington Redskins football team (Paczkowski, 2004, pp. 3).
This is an important distinction that the United States District
Court for the District of Columbia. Even if the general use of the
term was to become virtually non-existent due to derogatory implications, this does not automatically disqualify the term from
its use in the context of sports. Knowing this we can now firmly
state, that there needs to be a line that is drawing at when and
where a term is used. Such a conclusion enables us to differentiate between the different contexts of use, be it formal or informal,
benevolent or malevolent. It would be of common logic to determine whether the context of the usage of the term wants to convey hostility or wants to link a certain tradition or historical meaning behind it. The proof of this is certainly the fans of the Washington Football Team that referred to the team by its registered
name due to the historical linkage which was given when the
team and franchise were founded, and not because they would
want to mock, slander, traduce or defame Native Americans.
Here lies the problem. The legal argumentation that judge Gerald Bruce Lee used was flawed because he did not deduce the
two operational uses for the term »Redskins«. His reasoning was
based on a fact that was not yet proven by substantial evidence.
His inductive reasoning was amiss because he failed to take into
account the precedent set forth by the United States District Court
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DIGNITAS n Constitutional Law

for the District of Columbia in giving terms their own context in
which they are used. At this point we can see the problem that the
slippery slope has caused. By not putting the right context around
the use of the term »Redskins« judge Gerald Bruce Lee wrongly
deemed it a disparaging term and then used it according to the
Section 2(a) which could not have given good results due to the
fact that the previous steps of legal reasoning that were done
could not aid in the legal argumentation that followed.
This shows that the argumentation used was flawed. The mistake was done partially also due to the flawed logical argumentation that followed. This happens when the steps of the argumentation are weakly connected (Novak, 2010, pp. 69).
But what if the use of the term »Redskins« is offensive no matter the context in which it is used? Do all those plaintiffs have the
right to be offended even if it was only used in sports jargon? Let
us delve into that.
Native Americans have long argued that the term »Redskins«
was racially unacceptable for the members of their tribes which
are now considered an ethnic group in the United States of America. But the majority of trademark registrations which are today
regarded as questionable was done in the 1960s and 1970s, which
means that there is a period of fifty years that has passed since
some of the registrations regarding sports teams. Undoubtedly
society changes significantly in such an amount of time, many
things that were once acceptable become (or are deemed) unacceptable by today`s standards. For example same can be said for
a few examples from Europe, such as Nestlé`s Beso de Negra,
Negroni`s Negerküsse, Sarotti-Mohr, Mohrenkopf also known as
Super Dickmann`s, Tête-de-négre or tête au chocolat, Haribo`s
Skipper Mix, Knorr`s Zigeuner sauce and La Negrita Rhum.
It is safe to say that the case of the Washington Football Team
shows how something that is not offensive, questionable or disparaging at the time of registration may turn out to be such at a
later time. Does that necessarily mean that people back in the day
of the 1960s and 1970s did not think anything of these names for
sports teams? This is difficult to determine. As it is known, the
Washington Redskins are not the only sports team that is named
with some sort of a derivative that implies there is something to
do with the Native American tradition: Chicago Blackhawks, the
Atlanta Braves, the Cleveland Indians, Gulf Coast Indians, Peoria
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DIGNITAS n The right to be offended: should we toughen up? Legal argumentation ...

Chiefs, Spokane Indians, Moose Jaw Warriors, Golden State Warriors, Chiliwack Chiefs, Burlington Chiefs, Brooklin Redmen, Elora
Mohawks and the Kansas City Chiefs (Tryce & Smith, 2015, pp.
2) to name a few are all connected to the tradition of the Native
Americans in the United States of America. We can speculate of
the reasons why these teams bear such names, be it for cultural
reasons, reasons of respecting heritage, paying tribute, or just
because it is a part of the American identity. One thing is certain,
there was a period in time in which naming the teams after the
Native American tradition or with the terms that are associated
with the Native Americans was contemporary.
Looking at this phenomenon now makes it look oldfangled.
Could this attribute to the legal argumentation used in the case
we are analysing? The answer is yes. It all comes down to the perception that is relevant in society at any given time. For example,
there were many sports teams that have either mascots or names
that were associated with Native Americans, but no longer have
them as it has become socially unnacceptable. In 1972, the University of Massachusetts replaced an Indian as the team mascot
with a Minuteman and Stanford University replaced an Indian
with a cardinal while Eastern Michigan, Syracuse and Dartmouth
all put an end to their team names and mascots that were referencing Native Americans (Pace, 1995, pp. 11). All of these teams
at some point felt that their names or mascots were either inappropriate or at least questionable from the societal point of view.
At the same time we might add that they also felt that the names
were appropriate at some point in time.
With this information we can set a claim, that the legal argumentation of the case we analyzed would have been completely
different were it based in the 1970s. Much of it goes hand in hand
with the fact that judge Gerald Bruce Lee decided in that case in
the year 2015. The verdict was reached on the 8th of July 2015.
The predecessor to the Lanham Act was put in force in the year
1905 (Pace, 1995, pp. 23) and it had the same prohibitions as the
Lanham Act, yet the name »Redskins« was still able to get registered even though it is now deemed to be disparaging. It was not
deemed as such at the time of registration despite the same provisions that prohibited disparaging terms from being trademarked.
This shows that we need to look at societal norms for the answer
to why it has become disparaging now. What is disparaging to
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DIGNITAS n Constitutional Law

society today might not have been disparaging to society at the
time it was trademarked.
Pace argues that the case law does not provide an appropriate definition of disparagement or a workable test to determine
when a mark is unregisterable because it could disparage, which
means that we should turn to the definition in the dictionary at
the time when Lanham Act was enacted which defines disparage
as to speak slightly of, to undervalue, to discredit, depreciate and
cheapen (Pace, 1995, pp. 32).
The Harjo case saw the Petition claim that the trademark was
at the time of registration and continues to be a pejorative, derogatory, denigrating, offensive, scandalous, contemptuous, disreputable, disparaging, and racist designation for Native American persons (30 U.S.P.Q. 2d BNA, PP.1828).
It is important to point out that the claim extends to the moment in which the trademark was given as well as the moment
in time when the petition was filed. This creates a window for
interpretation according to the standards put in place at the time
of trademark issue as well as in the present time. This is why it is
important to acknowledge such facts when it comes to inferring
the legal argumentation used in a verdict. A verdict that is surmised in a way that is not mindful of all the circumstances, including the state of society at any given historical time cannot provide
good legal argumentation for it can be, as seen in the case above,
anchored on weak arguments.
This brings us to the second part of this paper: Do Native
Americans have the right to be offended by the names of sports
teams? The answer to this question demands us to answer two
prior questions:
1) Did Native Americans find the term offensive in 1967 when
the »Redskins« trademark was registered?
2) Is the registered trademark in any way derogatory of Native
Americans in the context of sports?
The answer to the first question is not straightforward. According to the petitioners in the abovementioned cases, it would seem
affirmative. But this is only one group of people out of the entire
ethnic group present in the United States of America. When the
Trademark Trial and Appeal Board at the United States Patent and
Trademark Office on the 18th of June 2014 cancelled the trademarks of the Washington Redskins football team it stated that the
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DIGNITAS n The right to be offended: should we toughen up? Legal argumentation ...

petitioners have shown by a preponderance of the evidence that
a substantial composite of Native Americans found the term to be
disparaging in connection with respondent`s services between
the years of 1967 to 1990. (Amanda Blackhorse, Marcus BriggsCloud, Philip Gover, Jillian Pappan and Courtney Tostigh v. ProFootball Inc., 2014, Trademark Trial and Appeal Board, United
States Patent and Trademark Office, Cancellation No. 92046185,
pp. 72).
Board member Mark Bergsman dissented, stating that petitioners did not submit any evidence or argument as to what comprises a substantial composite of that population (Rimmer, 2016,
pp. 5).
Siclari put forth an opinion that proving disparagement as it
pertains to Section 2(a) of the Lanham Act is no easy task, mainly
due to the fact that the America Invents Act has made it harder
for petitioners to prevail on claims of disparagement, namely by
placing a higher evidentiary burden on those parties to show disparagement. (Siclari, 2015, pp. 34).
According to Siclari, a careful examination of the evidence
failed to show by a preponderance of the evidence that a substantial composite of Native Americans found the term to be disparaging, especially during the 1967-1990 period (Siclari, 2015, pp. 27).
What concerns most when it comes to the evidentiary burden
is the fact that there is no given amount that would substantiate
the prerequisite that is referred to as »substantial composite of the
referenced group«. This can bring up absurd situations in which
the Trademark Trial and Appeal Board at the United States Patent
and Trademark Office could say that a substantial composite of
the referenced group consists of (e.g.) dozen people that are affected by the term. The petitioners in the cases mentioned above
stated that there were many Native Americans who were offended but did not actually meet the high evidentiary burden as it is
set out by the legislator.
In the Harjo case, the Trademark Trial and Appeal Board at
the United States Patent and Trademark Office admitted that determination of whether the matter may be disparaging is highly
subjective, but it did not state how the subjectivity of the matter
influenced their decision.
In addition to that, the Harjo case gave an insight into how
Native Americans really feel about the use of the term »Redk33

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sins«. Due to the fact that the survey was done on the behalf of
the petitioners which provided their results obtained through the
labour of their chosen survey expert Dr. Ivan Ross, the results
are to be taken cum grano salis. Dr. Ross performed the survey
amongst three hundred and one (301) non-Native Americans
and three hundred and fifty-eight (358) Native Americans all over
the United States of America which made the sample of all the
Native American population stratified in order to determine the
substantial composite. The performed telephone survey showed
that 46.2% of the general population sample would be personally
offended by the use of the term »redskin« while only 36.6% of
the Native American population would be offended by the same
term (Siclari, 2015, pp. 9). Not even half of the sample of Native
Americans found the term to be offensive while almost half of
the general population found it offensive. This leads us to believe
that the use of the test by which the Trademark Trial and Appeal
Board at the United States Patent and Trademark Office finds the
disparagement amongst the referenced group is not showing the
result that the legislator wanted. If they deem it to be disparaging
but only when it comes to the general population, then it cannot
be said that they need to look for disparagement in the referenced group, in this case the Native Americans. If we adopt this
concept then it is no doubt left that the legal argumentation in the
aforementioned case was weak, since it was based on the incorrect perception of the test for the occurrence of disparagement.
We asked if Native Americans found the term offensive in 1967
when the »Redskins« trademark was registered and ironically the
answer shows that the circumstances around the naming might
prove to be rather peculiar. In fact, according to the reports from
Boston Globe, the name change from Braves to Redskins was in
accordance with keeping up with the plan to sign several Native
American players.
What is more, Kirkland points out that early historical records
of the origin for the name “Redskin” indicate that the term was
used by Native Americans themselves to differentiate themselves
from Americans and even when they negotiated with the French
and later with the Americans (Kirkland, 2017, pp.486). It goes
against logic that those who coined the term exclusively for
themselves would deem it derogatory or even disparaging. The
more likely conclusion would be, that due to the origin of the
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DIGNITAS n The right to be offended: should we toughen up? Legal argumentation ...

term, it has now become a part of their heritage and is in no way
meant to disparage the Native Americans as it was not intended
to disparage them from the beginning when they started calling
themselves by that term. In addition to that, Rogers found that
the name »Redskins« is not offensive to a large number of Native
Americans, moreover, the literature presents numerous examples
of universities with a predominantly Native American population
that have team names reflective of their origin (Moore et al, 2014,
pp. 10).
The dilemma which caused the weak legal argumentation in
the analyzed case lies in the fact that there is a serious discrepancy between the historical continuity and the perceived usage
of the name today. That is why we have questioned whether the
registered trademark is in any way derogatory of Native Americans in the context of sports.
The concept of Native Americans having the right to be offended only if the abovementioned questions are resolved positively
shows that if they found it to be offensive back in the year 1967
but today`s standards limit the use only to sports-related affairs
then there is no right to be offended by it and vice versa if they
did not find it to be offensive or disparaging in the year of 1967
then there is no higher likelihood that they would find the use offensive in the sports context today.
The element of heritage should not be forgotten when it
comes to the linguistic part. The term was first used by and for
Native Americans as they identified themselves through this term
when dealing with the French and the Americans. This is part of
their cultural history and heritage. Sports mascots are not meant
to diverge the image of the Native Americans and subject it to ridicule but to connect with their heritage and keep it alive. Such is
the nature of sports with its combativeness, that it needs mascots
which become the identity of the team and by doing so serve as
a way of fans identifying certain teams as theirs. The mascots`
priority is not to gather negative emotions but to provide a boost
to the fans. There should not be anything adversely connected
with sports mascots which also means that those who dislike the
mascots which link to the heritage of Native Americans wish not
to see the historical importance of Native Americans and their
cultural protagonism.
Judge Gerald Bruce Lee failed to realize that in order for the
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DIGNITAS n Constitutional Law

verdict to stay on the grounds of good legal argumentation he
must use logic to see how the evidence of the case correlates to
the case at hand and the law that needs to be applied. The representative for the Washington Redskins football team stated that a
vast majority of Native Americans had no objection to the name
when the trademarks were granted. The first one was granted in
1967. The first case that disputed the use of the term dating from
1992 (Harjo case). That shows a clear time frame of 25 years without any dispute regarding the offensiveness of the term and its
disparagement. Judge Gerald Bruce Lee ignored this fact and did
not agree with the argument of the representative for the Washington Redskins football team.
After a quarter of a century of being trademarked the term
»Redskins« came under scrutiny with the Trademark Trial and Appeal Board at the United States Patent and Trademark Office and
after almost half a century it was deemed to be offensive by the
court. The reasoning behind it does not entirely convince one,
especially due to the fact that all of a sudden many have voiced
out their concerns with several names of sports teams, calling out
the names as inappropriate or offensive.
Reiner points out a survey, published on September 24, 2004
by the Annenberg Public Policy Center of the University of Pennsylvania which found out that only ten percent of the Native
Americans find the term offensive, while almost 65,000 thousand
people surveyed of all races and nationalities do not find the term
offensive at all, which brings Reiner to conclude that general public needs to be educated about the term and its racial origins for it
to not be used as a denotative term for the Washington Redskins
football team (Reiner, 2005, pp. 33).
His conclusions are largely intertwined with the fact that he got
to experience the atmosphere at the stadium prior, during, and
post-football games where, as he writes, throngs of fans, young
and old, women and men, black and white, all wore headdresses
of Native Americans that symbolized support for their beloved
home team (Reiner, 2005, pp. 1).
The fans of the football team wore attire that was historically
a part of the Native American heritage. They wore it to symbolize
the support for the team, not to offend the Native Americans. In
no way was the name intended, as we have now proven, to offend or disparage. We should not generalize the term to cover all
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DIGNITAS n The right to be offended: should we toughen up? Legal argumentation ...

the prejudice that hovers over the Native Americans in American
society, neither should we idolize it. But what we should do, prior
to any verdicts made, be it regarding a trademark or its offensiveness, we should see in what way it is being used.
Where should we draw the line? Should we limit everything
that has to do with Native Americans or other ethnical groups or
should we allow everything as long as it is not derogatory? The
latter seems to be a better place to start. The name of a sports
team has no intention of offending anyone as long as it is not
hostile towards a certain group of people or derogatory. The
complicated part is allowing the margin for freedom of speech
while also containing the correct amount of dignity and respect
for those who might be involved with the content of this speech.
The retention of Native American names might mean embracing
the common historical tradition and heritage of the American
people. The elimination of Native American names on the other
hand might mean distancing oneself from the common historical
heritage of the American people living on American soil.
The point we want to make is threefold: First, the Native American group should not be actively pushed out of the society in
which they live, be it with eliminating all the Native American
names or censoring anything that has to do with Native Americans. Second, by assigning positive connotations of valued cultural virtues instead of savagery and heathendom, the Native Americans should not feel that the name »Redskins« describes anything
of despiteful nature. Third, the problematic term should not be
evaluated solely with the intent to vilify it and observe it as a racial slur. We can now see why judge Gerald Bruce Lee used the
legal argumentation that he used in the analyzed case, as he was
coming from a point of view from which only negativity was seen
upon the term »Redskins«.
Thornton, himself being a member of the Cherokees, spoke
of the use of Native American names, mascots, terms, and tribe
names with respect, adding that this only brings honor and recognition to Native Americans (Reiner, 2005, pp. 1).
Davidson, a Native American who supports the Washington
professional football team stated that the Washington Redskins
have chosen to honor Native Americans and their ancestors by
using both Native American names and images for their football organization because those names and images represent a
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DIGNITAS n Constitutional Law

great tribute to Native Americans (Grimshaw, 2016, pp. 58). Native Americans themselves have used the term in their own communities too (Phillips, 2018, pp. 1078).
On the other hand, Kirkland states that the name »Redskins«
itself is derogatory, but it is not up to the government to decide
whether it should or should not receive protection under the federal trademark laws, due to the fact that when it comes to governments regulating speech, no matter if the term was derogatory in
the past or not, but if it is derogatory in the present and will be
regarded as such in the future, it should not be up to the government to decide, especially if the decision is made on the basis
of past beliefs of how the mark is currently perceived (Kirkland,
2017, pp. 505).
Epstein even goes so far as to say the name »Redskins« is culturally insensitive (Epstein, 2013, pp. 57). Hylton alternately says
that the early Native American team names were just that – team
names and the main idea behind naming teams after Native American cultural circumstances were to promote geographic identifiers and plainly as patriotic gestures (Hylton, 2010, pp. 902).
Hylton stated that the Native American community is actually divided on the issues of the Indian team mascots and names
(Hylton, 2010, pp. 881). This is another indicator that the legal
argumentation used by judge Gerald Bruce Lee was not backed
up by solid facts. If the Native American community still remains
divided upon this issue, there can be no (logical) assumption that
the term is disparaging to a »substantial composite of the referenced group« since the entire community is divided on this issue.
The judge had to make a fact solid, in order to build his argumentation onto this fact. The problem is that the fact he perceived as
true was inasmuch true as he needed it to be true in order for his
legal argument to stand. The reality of the matter is far from the
picture that was painted in accordance with the result of the analyzed legal argumentation. The sheer preponderance of facts that
speak of a different position is a sure sign that the judge should
not have used the statement of disparagement to a substantial
composite of the referenced group as a given fact because there
is as much of those who are not offended by the term as is those
who are (see supra).
The following dilemma occurs; if the Native Americans have
the right to be offended by the term, then there is no need for
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DIGNITAS n The right to be offended: should we toughen up? Legal argumentation ...

the petitioners to prove that a substantial composite of the referenced group finds it offensive. Because if there is a right to
be offended by the term, there should not be additional checks
to see if this right is exercised by everyone. If someone has the
right to be offended, there is no use in checking whether everybody consumed this given right to be offended. We are going
into extremes here, but the purpose of this is to find out why did
the Lanham Act provide additional hoops to jump through? The
main objective was to determine if a substantial composite of the
referenced group finds the term disparaging. This means that the
created standard presupposes a term to be disparaging but afterward limits the reach of the effects of such disparagement by putting a volume barrier. This volume barrier gives the court some
leeway to determine if the effects of the presumed disparagement
of the term have the extend that would comply with the wording
of the statute, in this case Lanham Act, Section 2(a).
With this in mind, we can see where judge Gerald Bruce Lee
was coming from. The basis, given in the Lanham Act and with
the standards upheld by the court it is clear that there is little to
no margin in which a term might be (potentially) analyzed as benevolent or at least contextualized without any negative agenda
attached to it. This can surely be one of the reasons why the legal
argumentation used by judge Gerald Bruce Lee was such. One of
the options to mend this would be for the Congress to step in and
reform the Lanham Act as it did for the National Football league
with the Communications Act of 1934 regarding blackouts (Fecteau, 1995, pp. 233).
Changing the legislation is not the only way in solving this
problem. Riley and Carpenter have shared their findings that the
calls for action, coming from Native Americans are primarily not
for laws, but education and understanding (Riley, 2016, pp. 917).
This means that a lot of the desired progress in society can be
achieved through education, which in turn means that amending
the laws would come as a last resort.
We mentioned that naming professional sports teams with
terms that are connected with the historic aspect of the American
continent has become a part of the general American heritage.
This statement is backed by the fact that the naming habit goes as
far back as the year 1886 when this practice began. Hylton mentions that there were no Native American team names in 1885,
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but the following year there were teams called the Indians in New
York, Missouri, Arkansas, Ohio and Pennsylvania (Hylton, 2010,
pp. 895). We can see that this practice of naming sports teams
with names that derive from the Native American culture is more
than 130 years old.
There is no evidence that the purpose of naming sports teams
after Native American cultural heritage terms sprouted from hate
or malice intent. There are no records that would show the purpose of naming teams was done with deprecatory means or with
the intent to belittle the Native American community. After all,
it is well known that the American people take sports seriously and can get very passionate about them. There is no logic in
claims that derogatory names were used to mock Native Americans through the use of such terms of America`s favourite home
teams. This is proven by the fact that the name »Braves« (the name
initially given to the Boston Braves team) is in no way connected
to the Native American community but was used due to the fact
that the pretend »braves« threw the British tea overboard during
the Boston Tea Party, and in addition to that the term was attached to the Honorable Artillery Company, an honorary military
unit based in Boston, who also had nothing to do with the Native
American cultural usage of the term (Hylton, 2010, pp. 897).
On top of that, it was the Boston sportswriters who started
using the phrases »going on the warpath« and »getting scalped«,
dubbing Braves Field »the Wigwam«, while the team did not do
anything to exploit the Native American name, other than using
the symbol on their uniform (Hylton, 2010, pp. 898).
Here we are at a point where we need to differentiate between
the usage of the term in sports and the usage of the term as a racial slur. To accentuate that we need to remind once more, that
there should not be a single-minded approach to understanding
the meaning of the term »Redskins«. There is no doubt that any
word can be used as an offensive racial slur if society wants to
perceive it as such. In fact, it is up to each individual to assign
certain meanings to certain words. Some words have more meanings and undoubtedly the term »Redskins« is one of them, but this
does not limit the perceived disparagement to solely one meaning of the word. Oxford Living Dictionaries describes the word
»Redskin« as dated and offensive but also adds an explanation,
that the term originally had a neutral meaning and was used by
40

DIGNITAS n The right to be offended: should we toughen up? Legal argumentation ...

North American Indians themselves, only eventually did it acquire
an unfavourable connotation (Lyne, 2019, pp. 16). As we can see,
the complexity of this term is quite severe.
Regarding meanings, Gibbons explains that the semiotic theory of trademark law recognizes and symbols all exist prior to the
creation of the mark, which means that the mark is created with
the attachment of secondary meaning to it, basically the symbols
add one additional meaning which functions as a source, origin
or sponsorship indicator (Gibbons, 2005, pp. 198). By following
the semiotic theory of trademark law it becomes evident that the
term »Redskins« can also refer to the secondary meaning, which
is of the football team from Washington and not solely as a term
exclusively used to refer to Native Americans.
We mentioned at the beginning of this paper, that the Supreme
Court of the United States ruled in the Tam case, wherein it found
that the disparagement clause of the Lanham Act is unconstitutional as it violates the Free Speech Clause of the First Amendment, with Justice Samuel Alito adding that speech may not be
banned on the ground that it expresses ideas that offend (Phillips,
2018, pp. 1065). This ruling shows that free speech is of utmost
importance, it trumps the right of the individual to remain unoffended. In addition to that, it gave Washington Redskins a win
against the 2014 decision to cancel six trademarks on the basis
that they disparage Native Americans (Macinnis, 2017, pp. 26).
As the importance of free speech remains recognized as the
most important aspect in American society, there exists a dilemma
why should anyone feel the need to not use the term »Redskins« as
they please. The reason behind it lies in the type of usage that the
term is subjected to. Calling a football team by their name is not
intended to hurt anyone`s feelings, but ridiculing Native Americans on the basis of their physiognomical traits definitely falls out
of the protection of the free speech concept. This is where judge
Gerald Bruce Lee failed to differentiate, before making his legal
argumentation regarding disparagement. Disparagement clearly
indicates degrading and depreciating intent of denigration. Without such intent, there is no case for disparagement and consequently no actual logic in connecting the name of a sports team
with the intent of offending an ethnic group.
By limiting the access to the use of the name »Redskins« we
not only shrink the concept of free speech but also go down the
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rabbit hole of making potential exceptions to the use of the term.
For example, if only Native Americans can use the term »Redskins« then this might clearly lead to expostulation of all the words
regarding the right to use it. Such concept is not only absurd, but
also wrong.
Tsosie argues that the decisions of the Trademark Trial and
Appeal Board at the United States Patent and Trademark Office
to deny trademark protection are a positive development and
adds that as long as individuals and corporations are allowed to
exploit aspects of Native cultural identity as »property« the battle
will continue (Tsosie, 2016, pp. 11).The problem with this statement is the fact that the petitioners did not want to be associated
with the term »Redskins« and they did not want anything to do
with it, let alone take it as part of their Native cultural identity,
which means there is actually nothing to exploit if the name is
to be denounced. This just comes to show, that the entire debate
regarding symbols of the Native American culture and heritage
boils down to a tug and pull contention. Grimshaw confirms this
by stating that the »ideograph of equality dominates the controversy and serves as an organizing principle for both sides in ways
that maintain the controversy« (Grimshaw, 2016, pp. 74).
Smith points out that Section 2(a) of the Lanham Act creates
two distinct bars to trademark registration, the first one revolves
around the scandalous meaning of the term and the second
around the disparaging meaning of the term (Smith, 2002, p.
1304). The Harjo case showed these two distinctions greatly, as
the Trademark Trial and Appeal Board at the United States Patent and Trademark Office came to a conclusion that a substantial
composite of the general population would not find the term
»Redskins« shocking to their sense of truth, decency or property,
finding that the media coverage and fan support of the Washington Redskins since the 1940s was inconsistent with a sense of
outrage from the general population that is necessary to prove a
term scandalous (Smith, 2002, pp. 1313).
Out of the two significant distinctions between »scandalous
matter« and »disparaging matter« the former was not found. That
left to checking only whether the term »Redskins« was disparaging. To check this, the Trademark Trial and Appeal Board at the
United States Patent and Trademark Office decided that the general public`s viewpoints are irrelevant when deciding whether
42

DIGNITAS n The right to be offended: should we toughen up? Legal argumentation ...

the term is disparaging (Smith, 2002, pp. 1314). By doing so a
clear distinction between the two approaches was set, giving way
to formulating a dissimilar standard independent to the approach
for determining whether the term is scandalous.
The Disparagement standard was shaped through case law
and formulated by the Trademark Trial and Appeal Board at the
United States Patent and Trademark Office, thus labelling a mark
as disparaging only if it is to be considered offensive or objectionable to a reasonable person of ordinary sensibilities (Guggenheim, 1999, pp. 296).
This in term means that the task at hand was to consider
whether the term “Redskins” can be reasonably understood to
refer to Native Americans and that such a term is offensive or
objectionable from a Native American`s point of view. The legal
argumentation from the analyzed case failed in connecting the
latter. There is no clear fact that the Native Americans find it offensive or objectionable due to the fact that there are many who
do not consider the term to be either of it.
The slippery slope argument was clearly manifested once
judge Gerald Bruce Lee took it as a known fact that the Native
Americans find the term offensive or objectionable. The fallacious
nature of such legal argument shows in the fact that the presupposed actuality needed to have been structured beforehand, for
the verdict to not be reversed due to weak arguments. Otherwise
(if there was no known fact for the offensiveness or objectionableness to the Native Americans) such argument would not stand.
The error in legal argumentation was made due to unconfirmed
assumptions.
The standard was criticized by Smith, mainly due to the fact
that the »substantial composite approach« ignores the majority
of the implicated group members` viewpoints when deciding
whether a trademark is disparaging (Smith, 2002, pp. 1315). Smith
also disagreed with the decision of the Trademark Trial and Appeal Board at the United States Patent and Trademark Office to
disregard the claims that Pro-Football Inc. made when stating that
the trademarks were used in the context of temporary attitudes
with respectful nature (Smith, 2002, pp. 1315).
Was this the reason why judge Gerald Bruce Lee erred in his
legal argumentation? Was the standard set too wide? This paper
disclosed that this was actually the case. Not only was there insuf43

DIGNITAS n Constitutional Law

ficient data of the amount of Native Americans who perceived the
term as disparaging, but the data available showed that there was
no such thing as a substantial composite of the referenced group
that perceived the term as disparaging, judging by the numbers
alone. Neither did the context in which the term was used show
that it was used in a way that would be disparaging to the Native
Americans (see supra).
A survey that was conducted exclusively amongst Native Americans (sample of three hundred and fifty-one) gave results that go
against the whole »substantial composite« argument of disparagement. The survey revealed that seventy-five percent out of all the
surveyed Native Americans were not offended by the name »redskins« and sixty-nine percent of all surveyed Native Americans
feel it is acceptable for Pro-Football to continue using the name
»Redskins« (Price, 2002, pp. 72).
This survey shows that a substantial composite of the referenced group does not find the name disparaging. In addition to
the fact that the Washington football team is a respected organization that does not disparagingly use the trademarks, one is hardpressed to see the reasoning behind the use of an unconfirmed
assumption in the legal argumentation of the ruling that we have
analyzed.
Would the outcome be any different if the standard for disparagement would not consider a substantial composite of the referenced group but instead a substantial composite of the general
population? Not likely. A survey from 2015 conducted by Benson
showed that (on a scale of 1 that equals minimum and 10 that
equals maximum) a sample of 254 white/caucasian people out of
306 people surveyed, expressed a preference for the Washington
Redskins logo, placed at 6.48 (Benson, 2015, pp. 21).
On top of that, the Washington football team appears to have
had a much more attractive name and logo than other teams of
the National Football league, judging by the increase in ranking of
licensed merchandise sales in 1995 which was worth just less than
one million dollars in additional sales (Nagel & Rascher, 2007, pp.
802).
This paper does not aim to disregard the social changes that
happened from the year 1967 up to today, even though the Trademark Trial and Appeal Board at the United States Patent and
Trademark Office found that the term »Redskins« was already dis44

DIGNITAS n The right to be offended: should we toughen up? Legal argumentation ...

paraging to a substantial composite of Native Americans during
the time the registration was sought (Wasserman, 2016, pp. 1513)
without taking into account the different societal aspects of that
era. The main reason for concern lies in the fact that a judge`s
argumentation in the ruling strayed away from the facts and data
collected in the surveys, moving ostensibly in the direction of the
societal narrative from recent years.
The Blackhorse case suffers from the same problems and inconsistencies of evidence when it comes to demonstrating the
preponderance of the evidence for a conclusion that the term is
disparaging to a substantial composite of Native Americans, just
like the initial Harjo Litigation (Hopkins & Joraanstad, 2015, pp.
294). This is one of the reasons why it is difficult to logically decipher why similar evidence would yield different results. In addition to that, in the opening brief of the appellant that was filed
on the 30th of October 2015 there is a clear mention of the fact
that no one has identified how many Native Americans constitute a substantial composite which is an omission that precludes
a meaningful defense (Page-Proof Opening Brief of Appellant
Pro-Football, Inc. v. Amanda Blackhorse, Marcus Briggs-Cloud,
Phillip Gover, Jillian Pappan, Courtney Tsotigh, No. 15-1874 In the
United States Court of Appeals for the Forth Circuit, On Appeal
from the United States District Court for the Eastern District of
Virginia, Alexandria Division No. 1:14-cv-01043, pp. 48). This leads
us to ponder whether it would be necessary to first determine the
exact amount that constitutes the substantial composite even before the evidence was analyzed and the ruling was made. It would
definitely add one more view of legitimacy to the overall definitive quality of the verdict at hand, mainly because there would be
a solid foundation of the argument on why the »Disparagement
standard« from the Sector 2(s) of the Lanham Act was met in the
first place. We can project that the legal argumentation would be
better once the substantial composite was determined and not
left to the assumptions of the judge in the case.

3. Conclusion
When it comes to assuring legal argumentation of the highest quality there is no room for unconfirmed assumptions. This
paper displayed the adverse effects of anchoring argumentation
45

DIGNITAS n Constitutional Law

on non-proven (so-called) facts. The term »Redskins« has been
polarizing the opinion of society for decades but in recent years
we saw an increase in the demands for the term to be removed
from the use in the National Football league altogether. The term
itself has at least two meanings, one of them clearly attached to
the Washington football team. The meaning tied to the football
team invoked reactions from the petitioners claiming it to be disparaging. Surveys did not prove such claims, even though the
Disparagement standard demands the petitioners to prove a substantial composite of the referenced group is disparaged by the
term. A judge should not and cannot hold true something that
has not been proven. Any arguments that a judge makes, based
on non-existent evidence should be avoided as this only shows
unwanted judicial activism, possibly motivated by societal pressure. We showed in this paper that there are certain unequivocal
requirements in accordance with Section 2(A) of the Lanham Act,
especially when it comes to proving the existence of disparagement amongst the referenced group. The right to be offended
does not constitute the same matter as to be regarded sufficient
for the claim of disparagement amongst a substantial composite
of Native Americans. This holds especially true when there are
many circumstances regarding the term, that contradict the points
made by the petitioners in the case we analyzed.

Literature and sources
30 U.S.P.Q. 2d (BNA).
Amanda Blackhorse, Marcus Briggs-Cloud, Philip Gover, Jillian Pappan and Courtney Tostigh v. Pro-Football Inc. (18 June 2014), Trademark Trial and Appeal Board, United States Patent and Trademark Office, Cancellation No. 92046185.
Benson, J. (2015). The Washington Redskins: A brand in crisis, Sam M. Walton College of Business
University of Arkansas.
Epstein, A. (2013). Maryland Sports Law. University of Denver Sports and Entertainment Law Journal,
15, 49 – 72.
Fecteau, A. (1995). NFL Network Blackouts: Old Law Meets New Technology with the Advent of the
Satellite Dish. Marquette Sports Law Review, 5(2), 221 – 242.
Gibbons, J. L. (2005). Semiotics of the Scandalous and the Immoral and the Disparaging: Section
2(A) Trademark Law after Lawrence v. Texas. Marquette Intellectual Property Law Review, 9(2),
187 – 248.
Grimshaw, B. E. (2016). Redskins Revisited: Competing Constructions of the Washington Redskins
Mascot. University of Montana.
Guggenheim, A. J. (1999). Renaming the Redskins (and the Florida State University Seminoles?): The
Trademark Registration Decision and Alternative Remedies. Florida State University Law Review,
27(1), 287 – 319.

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DIGNITAS n The right to be offended: should we toughen up? Legal argumentation ...
Hopkins, A. J., Joraanstad, M. T. (2015). Challenge-Flag Thrown: The Trademark Trial and Appeal
Board`s Cancellation of the Redskins` Trademarks and Pro-Football`s Chances on Appeal. Journal
of Business & Technology Law, 10(2), 267 – 296.
Hylton, J. G. (2010). Before the Redskins Were the Redskins: The Use of Native American Team Names
in the Formative Era of American Sports 1857 – 1933. North Dakota Law Review, 86(4), 879 – 903.
Kirkland, M. G. (2017). An Offensive Mark on Offensive Lines: The Question of Violating the First
Amendment through the Cancellation of the Washington Redskins` Trademark. Hastings Constitutional Law Quarterly, 44(4), 479 – 506.
Lyne, N. (2019). In Whose Honour? Understanding Native American Sports Mascots, the Washington
Redskins, and the Divisive Online Discourse About Them. Fakulteten för humaniora, psykologi
och teologi Åbo Akademi.
Macinnis, A., Green, S. (2017). What slant should the law take on »scandalous« trade marks?, LSJ, 37,
26 – 27.
Moore, E. M., Zemanek, E. J., Chullen, L. C., Workman, D. L. (2014). Brand name ethics as a marketing
concern: a narrative inquiry of the Washington Redskins` debate. Innovative Marketing Journal,
10(4), 7 – 15.
Nagel, M., Rascher, D. (2007). Washington »Redskins« - Disparaging Term or Valuable Tradition?: Legal
and Economic Issues Concerning Harjo v. Pro-Football Inc. Fordham Intellectual Property, Media
and Entertainment Law Journal, 17(3), 789 – 808.
Novak, M. (2010). Pravna argumentacija v praksi. Planet GV.
Pace, A. K. (1995). The Washington Redskins Case and the Doctrine of Disparagement: How Politically
Correct Must a Trademark Be?. Pepperdine Law Review, 22(1), 7 – 57.
Paczkowski, L. (2004). The Best Offense is a Good Defense: How the Washington Redskins Overcame
Challenges to their Registered Trademarks. Boston College Intelectual Property & Technology
Forum, 1 – 15.
Page-Proof Opening Brief of Appellant Pro-Football, Inc. v. Amanda Blackhorse, Marcus Briggs-Cloud,
Phillip Gover, Jillian Pappan, Courtney Tsotigh, No. 15-1874 In the United States Court of Appeals
for the Forth Circuit, On Appeal from the United States District Court for the Eastern District of
Virginia, Alexandria Division No. 1:14-cv-01043.
Phillips, F. V. (2018). Beyond Trademark: The Washington Redskins Case and the Search For Dignity,
Chicago-Kent Law Review, 92(3), 1061 – 1086.
Price, S.L. (2002, March 4). The Indian Wars, Sports Illustrated: p. 72.
Rasul, H. (2015). Fourth and Long: The Time is Now for the »Washington Redskins« to Punt the Name.
University of Maryland Law Journal of Race, Religion, Gender and Class, 14(6), 338 – 355.
Reiner, J. (2005). Proud Traditions: The Reflections of a Lifelong Washington Redskins Fan on the
Harjo Decisions & the use of Native American Names in Sports. Willamette Sports Law Journal,
1, 1 – 33.
Riley, R. A., Carpenter, A. K. (2016). Owning Red: A theory of Indian (Cultural) Appropriation. Texas
Law Review, 94, 859 – 931.
Rimmer, M. (2016). Change the mascot: the Washington Redskins – offensive trade marks, freedom of
speech and racism in sport. Australian Intellectual Property Law Bulletin, 29(7), 178 – 198.
SCOTUS, 137 S. Ct 1744, 1751 19.6.2017.
Siclari, J. F. (2015). The Redskins` Trademark Controversy and the Evidentiary Problems Associated
with Proving Disparagement Under Section 2(a) of the Lanham Act. Seton Hall Law, 809 – 846.
Smith, C. (2002). Squeezing the Juice out of the Washington Redskins: Intellectual Property Rights
in »Scandalous« and »Disparaging« Trademarks after Harjo v. Pro-Football Inc. Washington Law
Review, 77(4), 1295 – 1328.
Tryce, A. S., Smith, B. (2015). A Mock Debate on the Washington Redskins Brand: Fostering Critical
Thinking and Cultural Sensitivity Among Sport Business Students, Saint Joseph`s University. Sport
Management Education Journal, 9, 1 – 10.
Tsosie, R. (2016). Indigenous Identity and Sports Mascots: The Battlefield of Cultural Production. The
Federal lawyer, 9 – 11.
U.S. Trademark Law Federal Statutes, U.S. Patent & Trademark Office. (25.11.2013). § 2 15 U.S.C. § 1052.
Wasserman, F. M. (2016). What Administrative Law Can Teach the Trademark System. Washington
University Law Review, 93(6), 15 – 25.

47

DIGNITAS n Constitutional Law

48

DIGNITAS n Life Satisfaction and Real Estate Living Conditions of the Elderly in Slovenia

Life Satisfaction and Real Estate
Living Conditions of the Elderly
in Slovenia
Bojan Grum*, Darja Kobal Grum**

Abstract
One of the greater challenges of a democratic society is to
find out how social housing policy should address the problems of housing for older people. The research objective of this
study is to explore the differences in life satisfaction of participants in late adulthood in relation to their housing conditions
and elderly care. We have focused on the maintenance costs of
real estate in Slovenia. On this basis, we investigate whether rising costs can have a significant impact on older people moving
to more appropriate surroundings. The basis for the analysis
is data collected using a psychological measure of life satisfaction and a measure of living conditions and property maintenance developed for the needs of the present study. A statistical
analysis, which includes a factor analysis of the questionnaire
and an analysis of its reliability, is carried out using analysis of
variance. We argue that housing policy should strengthen home
care in the residential environment, in particular reduce the cost
of property maintenance, as well as accelerate the intergenerational transfer of property in exchange for better home care and
cohabitation.
Keywords: life satisfaction; real estate living conditions; late
adulthood; social housing policy

**
**

New University, European Faculty of Law, Slovenia, Ljubljana, e-mail: constructa@siol.net.
University in Ljubljana, Faculty of Arts, Department of Psychology, Slovenia, Ljubljana.

49

DIGNITAS n Human Rights Law

Življenjsko zadovoljstvo, bivalni pogoji
in stanovanjska politika vezano na starejše
prebivalce v Sloveniji
Povzetek
Eden od večjih izzivov demokratične družbe je ugotoviti, kako
bi se socialna stanovanjska politika morala ukvarjati v zvezi s
problematiko stanovanjskega bivanja starejših. Raziskovalni cilj
te študije je ugotoviti razlike v življenjskem zadovoljstvu strešjih
udeležencev v povezavi s stanovanjskimi pogoji in njihovo oskrbo. Osredotočili smo se na stroške vzdrževanja njihovih nepremičnin v Sloveniji. Na tej osnovi preučujemo, ali lahko naraščajoči
stroški pomembno vplivajo na to, da se starejši ljudje preselijo v
bolj primerno okolje. Osnova za analizo merjenja življenjskega
zadovoljstva in merjenja pogojev bivanja ter vzdrževanja lastnine
so vprašalniki, razviti za potrebe te študije. Statistična analiza, ki
vključuje faktorsko analizo vprašalnika in analizo njegove zanesljivosti, se izvaja z uporabo analize variance. Trdimo, da bi morala stanovanjska politika okrepiti oskrbo na domu v bivalnem
okolju, zlasti zmanjšati stroške vzdrževanja lastnine, ter pospešiti
prenos lastnine med generacijami v zameno za boljšo oskrbo na
domu in sobivanje.
Ključne besede: življenjsko zadovoljstvo; pogoji bivanja nepremičnin; pozna odraslost; socialna stanovanjska politika

1. Introduction
The primary aim of this paper was to analyse the life satisfaction and real estate living conditions of older people in Slovenia.
According to the World Health Organization (2011), most developed nations have accepted the age of 65 as the threshold for the
group of people termed elderly. Therefore, an elderly person in
this paper refers to one who is aged 65 years and over. One of
the bigger challenges of a democratic society is finding answers
to the questions how social housing policy address the problems
of housing for the elderly. Addae-Dapaah and Shu Juan (2014)
argue that this is the key issue, citing two reasons: first, that elderly need a safe and comfortable home, and second, for elderly
50

DIGNITAS n Life Satisfaction and Real Estate Living Conditions of the Elderly in Slovenia

is important social inclusion, cohabitation and communication.
Iwarsson (2005) even states that older people are significantly
more sensitive to the social environment and related well-being,
health. Rubinstein and De Medeiros (2004), however, cite a correlation between housing and existing sociocultural background
of a person. Many researchers believe that housing satisfaction
reflects the perceived quality of the home in terms of a broad attitudinal valuation (Weideman, Anderson, 1985; Aragonés et al.,
2002, Boge et al., 2019). Our study focused on the question: do
real estate maintenance costs have a statistically significant influence on the expressed life satisfaction of participants?
The World Health Organization (1997) defines life satisfaction
as an individual’s perception of their position in life in the context
of the culture and value systems in which they live, and in relation
to their expectations and standards. Life satisfaction can be affected by the person’s physical health, level of independence, social
relationships, and relationships to the salient features of his environment (Addae-Dapaah, Shu Juan, 2014). The global judgment
of life satisfaction (Diener et al., 1999; Veenhoven, 1996) and also
the differentiated assessment of specific psychological domains,
such as the sense of mastery and competence in managing the
environment, have been found to be associated with health in
later life (Ryff, 1989; Ryff, Singer, Love, 2004). Life satisfaction
in strongly related with quality of life (Grum, 2017). Higher the
quality of life is, higher participants expressed life satisfaction
(Grum, 2017). Many researchers referred that quality of life (especially is that significand for older people) strongly correlates
with adequate living conditions (real estate living conditions),
adequate socio - economic coexistence in a built environment
and with health conditions (Rohe, Basolo, 1997; Erdogan et al.,
2008; Addae-Dapaah, Shu Juan, 2014; Grum, 2017). In Slovenia,
improving the quality of life has increasingly become a key political agenda as the country aspires to be an even more inclusive
and vibrant society. As people age real estate living conditions
become very important (Yen, 2009).
As people age, housing adjustments because of the declining
functions of the elderly become crucial and have a significant
impact on their well-being and independent in daily life (AARP,
2005; Gitlin, 2003; Wahl, 2001). Studies show that many elderly
people, especially those who live alone or in retired households,
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DIGNITAS n Human Rights Law

just barely cover current expenses and annual taxes (compensation for the use of building land, property tax), as well as other
obligations related to the maintenance of real estate, and often
do not have enough savings, which has a negative impact on the
value of the property (Kerbler, 2012; Grum, Kobal Grum, 2015;
Grum, 2017). That is why this study highlighted the problem of
real estate maintenance costs. We are particularly interested in
whether these costs significantly influence the expressed satisfaction of participants and, most importantly, whether these costs
can influence their decision to sell their real estate and\or to
move to cheaper, more suitable housing.
Building maintenance costs can be defined as all costs incurred
to maintain the condition of a building, but without the cost of
functional, aesthetic or physical improvements, other than those
that have to be made due to the deterioration of materials or components (Seeley, 1976). Mills (1980) defined maintenance cost as
cost required for maintenance for work undertaken in order to
keep, restore or improve every facility, i.e. every part of a building, its services and surrounds to a currently acceptable standard,
and to sustain the utility and value of the building (Mills, 1980).
Maintenance is synonymous with controlling the sustainable condition of a building, as is acceptable in a particular environment
(Shear, 1983). Maintenance of the building can therefore be defined as the implementation of all measures that must be taken
to maintain the acceptable condition of the building, but without
any improvements that are not essential and not part of routine
maintenance (Seeley, 1976). With the aging of the facility, maintenance costs increase (Seeley, 1976; Mills, 1980; Shear, 1983), but
with the aging of users, their economic strength decreases (Grum,
2017).

2. Life satisfaction and real estate living
conditions
Evidence from literature shows that life satisfaction is influenced by a broad array of objective and subjectively perceived
conditions (Theodori, 2001; Grum, Temeljotov Salaj, 2013; Grum,
Kobal Grum, 2015). Erdogan and others (2008) point out that
overall life satisfaction is directly influenced by perceived living conditions, while perceived living conditions are related to
52

DIGNITAS n Life Satisfaction and Real Estate Living Conditions of the Elderly in Slovenia

satisfaction with the physical surroundings, satisfaction with social relations, satisfaction with the performance of local authorities, and with the perceived quality of facilities, what we can
broadly refer as residential satisfaction. Danquah and Afram’s
(2014) summary of findings from literature in relation to various
perspectives from professionals points to ten parameters that
influence residential satisfaction. According to them, these are:
(1) the neighbourhood, (2) social demographic characteristics,
(3) dwelling unit features, (4) dwelling unit support services,
(5) housing conditions, (6) structure type, (7) housing and estate management, (8) facilities in the inhabited environment,
(9) environmental features of housing, and (10) neighbour relationships. Literature documents certain parameters that predict
people’s residential satisfaction. For instance, some researchers
(Theodori, 2001; Danquah, Afram, 2014; Grum, Temeljotov Salaj,
2013; Grum, Kobal Grum, 2015) state that housing conditions are
one of the main parameters in determining residential satisfaction (size of dwelling unit, presence of balcony, natural lighting,
peacefulness, age of building and neighbourhood, parking options, infrastructure of dwelling unit). They also impart that location and living environment factors (location, proximity to vital
facilities, accessibility, transport links), as well as socioeconomic
factors (maintenance costs, neighbourly relations, sense of security, sense of social connection, sense of suitable economic
status) are important parameters in determining residential satisfaction. Many researchers point out that living in one’s own
home has many positive effects that are especially beneficial for
the well-being and psycho-physical condition of elderly people.
According to Maisel and others (2008), studies have shown that
independent living promotes successful aging by improving
health and life satisfaction, and increasing the self-esteem of the
elderly, which can delay the transition of elderly people to the
institutional form of stay. Older people still generally prefer to
age in their own homes (Greenwald, Associates, 2003; Harper,
Bayer, 2000; Secker et al., 2003; Wylde, 2008), often because they
fear that moving to a collective or institutional living environment will inevitably mean losing their independence (Burholt,
Windle, 2007; Imamoglu, 2007; Parry et al., 2004). Space as it
relates to older people’s relationships with their living environment (Kemp et al., 2012) as a symbolic representation of “home”
53

DIGNITAS n Human Rights Law

as independence (Parry et al., 2004) can also provide a basis
for further conceptual refinement. Older people are not resilient in houses that are poorly repaired, cold, and expensive to
run (James, Saville-Smith, 2015). They can become unhealthy,
stressed and at risk of injury. British research has found that the
costs of repair are clearly unaffordable for some groups (Leather, 2000). Those on low and uncertain incomes are also likely to
under-invest. Again, older people are affected by this because
they are marginal to the employment market and their earning
power is limited by disability, illness or age (James, Saville-Smith,
2015). Roy and others (2018) found that important influences
relate to the built environment, as well as to the social, psychological, psychosocial, spatiotemporal and decisional contexts of
older adults. If the living environment (neighbourhood) is developed, orderly, clean and maintained, it is also expected for
the individual residential building to be property maintained,
in harmony with the neighbourhood, and in accordance with
the built environment in which it is located (Grum, 2017). However, the environment usually affects the level of expected (or
required) maintenance of the building itself (well-maintained
infrastructure usually requires well-maintained accommodation
facilities, otherwise the image of the neighbourhood is inconsistent and the welfare of users is worse) (Grum, 2017). Their
review emphasizes the importance of adapting dwellings and
communities to older adults wishing to stay at home in the residential environment that they know and value.
On this basis, we follow the question whether the rising maintenance cost can significantly influence the expressed satisfaction
of participants and, most importantly, whether these costs can
influence their decision to sell their real estate and\or to move to
cheaper, more suitable housing.

3. Method
The instruments used to measure the views of participants
were questionnaire created by the Satisfaction with Life Scale
Questionnaire (hereinafter referred to as SWLS) as a measure of
life satisfaction developed by Diener et al. (1985) and the Real
Estate Living Conditions and Care Questionnaire (hereinafter
referred to as RELCC) as an analysing participant’s demograph54

DIGNITAS n Life Satisfaction and Real Estate Living Conditions of the Elderly in Slovenia

ic characteristics developed by Grum (2014). In both questioners of the two main types of questions (Keats, 2000), multiplechoice and rank ordering were used. Participants answered the
questions using the Likert scale, where value 5 indicated that
they completely agree with a statement (very satisfied) and value 1 (very dissatisfied) that they completely disagree with a given statement. The data were collected via the internet and via
personal correspondence (individually and collectively). The
anonymity of participants included in the survey was assured.
Before entering data into the SPSS statistical program, any incorrectly completed questionnaires were removed. The number of these accounted for 2.1 percent of all collected surveys.
The exclusion criteria were an uncompleted questionnaire or
incompletely completed questionnaire, when the respondent
did answer the question, but chose non-standard possible answers.
A statistical analysis of the RELCC, which included a factor
analysis of the questionnaire and an analysis of its reliability
(Cronbach-alpha), was conducted using descriptive statistics and
analysis of variance. The questionnaire included 14 variables.
We defined 4 factors, which explain over 60% of the total variation (Bastič, 2006). The Kaiser-Meyer-Olkin measure of sampling
adequacy was 0.7. Bartlett’s Test (BT = 1037.1), which is statistically significant, showed that the defined factors can be interpreted. In our research we used the first extracted factor which
reveals the demographic characteristics of the participants and
combined it with a questionnaire SWLS that measures life satisfaction. SWLS is a short, 5-item instrument designed to measure
global cognitive judgments of satisfaction with one’s life. The
reliability of the questionnaire, established by the inner consistency method or Cronbach’s alpha coefficient, indicated that the
questionnaire expresses a high level of reliability. Cronbach’s
alpha coefficient for the first set of the questionnaire was 0.89.
The questions we asked regarding participants’ demographic
characteristic revealed in Table 1. The questions with which
we measure participants’ life satisfaction related to satisfaction
with current living conditions, attachment to the living environment, resettlement in another environment because of better
care, maintenance costs and possibility of selling property in
exchange for better care. The choice was made between using
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DIGNITAS n Human Rights Law

the analysis of variance and regression analysis and we followed
Field (2017). The analysis of variance is often used in research
or statistical method, such as a t-test for independent samples,
but in the analysis of variance, we can compare the average of
three or more groups. According to Field (2017) ANOVA is just
a special case of regression. We used it because ANOVA is an
omnibus test, with means that it tests for an overall experimental
effect (Field, 2017).
The survey was conducted in Slovenia from February to April
2018. The sample included participants who were selected according to gender, age (65-70 years, 70-80 years, over 80 years),
location (urban, rural, settlement), who they live with/their coresident(s) (spouse, family, alone, etc.), type of property/dwelling (apartment, house, home for elderly, etc.), ownership of real
estate (own, relatives, rented, etc.), and satisfaction with current
living conditions. 375 participants took part in the survey. The
structure of participants according to their demographic characteristics is shown in Table 1.
Table 1: Structure of the participants according to demographic
characteristics
Variable
Genter
Women
Men
Total
Age
65 to 70 years
71 to 80 years
81 and more
Total
Where do you live (location)
In the city centre
In a densely populated rural settlement
In a dispersed rural settlement
Total
56

Number Percentage
146
229
375

39.00%
61.00%
100.00%

114
141
120
375

30.50%
37.40%
32.10%
100.00%

221
107
47
375

59.10%
28.60%
12.30%
100.00%

DIGNITAS n Life Satisfaction and Real Estate Living Conditions of the Elderly in Slovenia

With whom you live
With a spouse
With children or grandchildren
Alone
Other
Total
According to type of apartment
In block of flats
House
Home for elderly
Other
Total
According to ownership of apartment
Owned or co-owned
Relatives
Market rent
Non-profit rent
Other
Total
Satisfaction with current living conditions
Very dissatisfied
Dissatisfied
Moderately satisfied
Satisfied
Very satisfied
Total

136
63
120
56
375

36.40%
16.60%
32.00%
15.00%
100.00%

118
142
112
3
375

31.50%
38.00%
29.70%
0.80%
100.00%

209
35
15
20
96
375

55.90%
9.40%
3.70%
5.30%
25.70%
100.00%

5
16
18
207
129
375

1.30%
4.30%
4.80%
55.30%
34.30%
100.00%

The participants were predominantly male. Some researchers
(Bourque et al., 2003; Pinquart, Sörensen, 2000) have suggested
that sense of life satisfaction is not determined by the same factors in men and women. Indeed, it has been shown (Pinquart,
Sörensen, 2000) that for women, life satisfaction is more strongly dependent on social integration than for men, and the reverse
57

DIGNITAS n Human Rights Law

is true for socioeconomic status. Nonetheless, these results concern all elderly people, raising the question of the influence of
living arrangements. As regards age structure, participants in
the age range between 71 and 80 years (37.40%) were predominant. Most of the participants live in the city centre (59.10%), in
a house (38.00%), and with their spouse (36.40%). Significant
differences can be observed between participants with respect
to ownership of housing. There were significantly more homeowners (55.90%). We attribute this to the structure of the proportion of homeowners in Slovenia, which is above 80 per cent
(Statistics Portal, 2014). Regarding satisfaction, the participants
expressed a high level of satisfaction (55.30 %) with their current living conditions. This can be explained by a survey in the
case of Baltimore, where buyers and tenants were observed and,
after a year and a half, the housing satisfaction of customers
was found to be greater than the satisfaction of tenants (Rohe,
Stegman, 1994). In a further three-year study, Rohe and Basalo
(1997) found that after a three-year ownership, homeowners
are still more complacent as tenants. Here, complacency was
defined as a combination of overall satisfaction with life, home
and neighbourhood (Rohe, Stewart, 1996). However, Kleinhans
and Elsing (2010) note that there is a strong correlation between
home ownership and a sense of independence, self-satisfaction
and loyalty to one’s neighbourhood.

4. Results and discussion
The results were statistically analyzed by the analysis of variance. As the dependent variable, sense of life satisfaction was
selected with regard to the basic demographic characteristics of
the participants (age, property location, with whom participant
live, type of residential real estate, ownership of real estate,)
and with regard to real estate living conditions in late adulthood (satisfaction with current living conditions, attachment to
the living environment, resettlement in another environment
because of better care, maintenance costs, possibility of selling
property in exchange for better care). The results are shown in
Table 2.

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DIGNITAS n Life Satisfaction and Real Estate Living Conditions of the Elderly in Slovenia

Table 2: Statistically significant differences according to the sense
of life satisfaction regard to the basic demographic characteristics of the participants and to real estate living conditions in late
adulthood
Dependent Variable
Property location

Sum of df Mean
Squares
Square
***

F

Sig.

6.000

2

3.134

2.353 0.037

5.144

3

1.715

1.281 0.281

*

16.851

3

4.214

3.217 0.013

Ownership of apartment *

14.458

4

3.614

2.746 0.028

Satisfaction with current ***
living conditions

61.991

4 15.498 13.118 0.000

Attachment to the living
environment

***

37.488

4

9.372

7.492 0.000

Resettlement in another
environment

**

24.727

4

6.182

4.802 0.010

Maintenance cost

*

7.238

1

7.238

5.460 0.020

23.03

4

5.757

4.456 0.002

With whom you live
Type of apartment

**
Selling the property in
exchange for better care

Note: *difference is statistically significant (p<0.05); **difference is statistically significant (p<0.01); ***difference is statistically significant (p<0.001)

The results show that there are statistically significant differences in the degree of sense of life satisfaction (p <0.05) regarding
property location, type of real estate, ownership, and maintenance
costs. The results show that there are statistically significant differences in the degree of sense of life satisfaction (p <0.01) regarding resettlement in another environment, and the sale of property
in exchange for better care. Statistically significant differences (p
<0.001) were expressed regarding satisfaction with current living
conditions and attachment to the living environment. The average
levels of agreement with sense of life satisfaction as regards the
basic demographic characteristics of participants and real estate
living conditions in late adulthood are shown in Table 3.
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DIGNITAS n Human Rights Law

Table 3: Average level of agreement to the sense of life satisfaction
Variables
Property
location

Average level of agreement
Urban
4.54

Type of real
estate
Apartment
4.68
Ownership

Rural
4.87
House
4.92

Settlements
4.44
Home for
elderly
4.40

Other
4.20
Not-market
Market rent
rent
Other
4.28
4.59
4.41
Medium
Strong
agreement Agreement agreement
3.68
4.63
4.10
Medium
Strong
agreement Agreement agreement
4.22
4.48
4.96
Strong
Medium
agreement Agreement agreement
4.95
4.59
4.08

Owned
Relatives
4.82
4.88
Strong dis- Disagreement
Satisfaction agreement
3.35
3.70
Strong dis- Disagreement
Attachment agreement
4.18
3.97
Resettle- Strong dis- Disagreeagreement
ment
ment
4.90
4.68
DisagreeMaintement
nance cost Agreement
4.76
4.43
Strong
Selling the Strong dis- Disagree- Medium Disagreement
agreement
ment
agreement
property agreement
4.93
4.86
4.65
4.33
4.16

The overall picture shows that those participants in Slovenia
who live in a rural environment expressed a considerably higher
sense of life satisfaction (average level of agreement 4.87) than
those who live in urban areas (average level of agreement 4.54).
The influence of the urban or rural environment in this regard is
still not well understood in the scientific community (Oguzturk,
2008). Tavares et al. (2014) found that the elderly in rural areas
had higher scores of quality of life than residents in urban areas
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DIGNITAS n Life Satisfaction and Real Estate Living Conditions of the Elderly in Slovenia

in most domains and facets. These data indicate that living in the
urban environment of the elderly has a negative impact on their
quality of life. A survey conducted in Concordia-Santa Catarina
shows that older men in rural areas expressed higher social and
health satisfaction than those living in urban areas. (Beltrame et
al., 2012). The greater proximity between households and health
facilities can improve access to health services and the active
search of the elderly through home visits. In Slovenia, along with
the relocation of caretaking activities into the home environment,
services must be carried out effectively and their quality must be
ensured through adaptation of the built living environment, the
introduction of new organizational procedures, and technical and
technological solutions (Kerbler, 2013).
The results show that the participants who live in houses expressed a considerably higher sense of life satisfaction (average
level of agreement 4.92) than those who live in homes for the
elderly (average level of agreement 4.40). The results also show
that the participants who owned real estate or who live with relatives in their dwellings expressed a considerably higher sense
of life satisfaction (average level of agreement 4.82 and 4.88,
respectively) than those who live in rented property (average
level of agreement 4.28 and 4.59, respectively). We explain the
difference between the expressed satisfaction level among participants by findings of the researches conducted by Rohe and
associates (1994, 1996, 1997, 2001). Rohe and associates (2001)
studied social advantages of apartment owners and established
that apartment owners compared to tenants express higher satisfaction with their living environment, they are socially more active in their living environment, relocate less often and contribute
more to social stability of the neighbourhood. They estimate that
the satisfaction level among apartment owners is higher (Rohne,
Stewart, 1996). In the example of Baltimore they observed apartment purchasers and tenants and after a year and a half found
that the apartment purchasers showed higher satisfaction than
the apartment tenants (Rohe, Stegman, 1994). In a further threeyear study Rohe and Basalo (1997) determined that even after a
three-year ownership the apartment owners were still more selfsatisfied than the tenants. They defined the self-satisfaction as the
combination of common satisfaction with life, apartment and
neighbourhood (Rohe, Stewart, 1996).
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DIGNITAS n Human Rights Law

It has also been observed that people living alone are less satisfied with their lives than those living with a partner (Grum, Temeljotov Salaj, 2013). For those living alone or with a partner,
taking part in leisure activities should be encouraged, since this
is positivity linked to life satisfaction.
Most of the participants expressed a high level of agreement
regarding satisfaction with current living conditions (average
level of agreement 4.63). Participants expressed an extremely
high level of agreement regarding attachment to their living
environment (average level of agreement 4.96), but we noted
with surprise that they expressed medium agreement regarding
the possibility of resettlement in another environment because
of better care (average level of agreement 4.95). As reported
by Borges Luz and others (2011), their population-based study
provided empirical evidence that satisfaction with the neighbourhood environment was directly associated with the health
of the elderly. These results support the potential importance
of including this indicator in an analysis of place and health
among the elderly. Borges Luz et al (2011) conclude that it is
important to support development programs and strategies that
foster connection with the built environment. It is interesting
to note that the participants expressed an extremely high level
of disagreement by selling their property in exchange for better care or more suitable real estate (average disagreement rate
4.93). Stronegger and Titze (2010) explain this with the finding
that it is precisely residential neighborhoods where the elderly
establish social connections, daily routine activities, consumer
beaver; that are why the familiar physical and social environment has a positive effect on their well-being and health. As
indicated by Borges Luz and others (2011), this can be particularly relevant for the elderly, given the combination of declines
in physical and cognitive functioning that tends to accompany
ageing, which leads to a greater dependence on the immediate residential neighbourhood for their health and well-being.
Our definition of neighbourhood refers to a person’s immediate residential environment. Therefore, it is important to understand that the elderly want to continue living in an environment
where they have spent most of their lives, and that this environment is most conducive to their satisfaction and, consequently, a
positive health effect (Yen, 2009). Housing thus becomes of new
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DIGNITAS n Life Satisfaction and Real Estate Living Conditions of the Elderly in Slovenia

importance in later life as a result of being in the same environment for a long time, being attached to it and being familiar with
it (Oswald, Wahl, 2005; Rubinstein, De Medeiros, 2004). Older
people seem to be particularly adept at adapting to different
objective living conditions and sustaining high levels of housing
satisfaction (Rowles et al., 2004).
Most of the participants expressed a high level of agreement
regarding high maintenance costs (average level of agreement
4.76). In another vein, the pension reforms being implemented
throughout Europe could have major consequences on the future
well-being of persons living with a partner, for whom financial
security is a priority (Gaymu, Springer, 2012). On the other hand,
most participants (despite high maintenance costs) expressed
strong disagreement with the sale of their property (average level
of disagreement 4.93). Research shows that the elderly want to
stay in their homes in the same known environment for as long
as possible, and they want to maintain their independence and
autonomy for as long as possible. They do not want to sell their
property or resettle in more suitable dwellings despite problems
related to maintenance costs. Trček (2005) establishes that the factor most closely related to investing in real estate is the monthly
household income. He notes that this factor mainly depends on
the participants’ education and the size of their household (Trček,
2005). Uršič (2005) further concluded that migration activity is
also significantly influenced by housing status and the number
of persons in a household (Uršič 2005). We attributed the lower
degree of agreement regarding maintenance costs? in urban centres to the higher educational structure of elderly people who are
more educated, consequently more financially strong, and who
live in more suitable (smaller) dwellings (multi-apartment buildings) (Boge et al., 2018). Houses are often too large, difficult to access and expensive to maintain, inadequate, in locations that are
difficult to access, and whose utility costs are higher year on year,
etc. (Žmahar, 2013). And not surprisingly, those participants who
already carried out intergenerational transmission expressed a
lower level of maintenance cost problems in comparison to those
who still owned real estate (Grum, 2017).
The study clearly shows that the issue of maintenance costs
that burden the older generation is a major one. The problem is
not only their distress, which in turn is reflected in their life satis63

DIGNITAS n Human Rights Law

faction, which, as a series of studies suggests, affects their health
and well-being (Skela Savič et al., 2010; Yuan et al., 2015; Deng et
al, 2017; Grum, 2017). The problem is also of concern to the wider
community, because, in addition to all of the above, the older
generation leaves behind unsupported, often later completely
useless, real estate that aesthetically and safety-wise burdens the
environment, and financially the owners who inherit such real estate. The research thus raises new, important questions that need
more effort in the future.

4. Conclusions
Our main research goal was to investigate differences in the
life satisfaction of participants in late adulthood based on their
real estate living conditions and care for the elderly. The instruments used to measure the views of participants were questionnaire created by the Satisfaction with Life Scale Questionnaire
(SWLS) developed by Diener et al. (1985) and the Real Estate Living Conditions and Care Questionnaire (RELCC) developed by
Grum (2014). 357 participants aged over 65 years took part. The
results show that there are statistically significant differences in
the degree of sense of life satisfaction (p <0.05) as regards property location, type of real estate, ownership, and maintenance
costs. The results show that there are statistically significant differences in the degree of sense of life satisfaction (p <0.01) regarding resettlement in another environment and sale of property in
exchange for better care. Statistically significant differences (p
<0.001) were observed regarding satisfaction with current living
conditions and attachment to the living environment.
The results show that most participants expressed a high level
of agreement regarding high maintenance costs. On the other
hand, most of them expressed strong disagreement with the sale
of their property (despite the high maintenance costs). Elderly
people want to stay in their homes in the same familiar environment for as long as possible, and they want to maintain their independence and autonomy for as long as possible. They do not
want to sell their property or resettle in more suitable dwellings
despite the problems related to high maintain costs. Older people
exhibit a high attachment to their property and living environment, which provide them with a higher level of life satisfaction
64

DIGNITAS n Life Satisfaction and Real Estate Living Conditions of the Elderly in Slovenia

than the possibility of moving to another dwelling place that provides better quality environment.
The overall picture shows that those participants who live in a
rural environment expressed a considerably higher sense of life
satisfaction than those who live in urban areas. The greater proximity between households and health facilities can improve access to health services and the active search of the elderly through
home visits. In Slovenia, along with the relocation of caretaking
activities into the home environment, services must be carried out
effectively and their quality must be ensured through adaptation
of the built living environment, the introduction of new organizational procedures, and technical and technological solutions. The
results show that those participants who live in houses expressed
a considerably higher sense of life satisfaction than those who live
in homes for the elderly. The results also show that participants
who own real estate or who live with relatives in their dwellings
expressed a considerably higher sense of life satisfaction than
those who live in rented property.
Most participants expressed a high level of agreement regarding satisfaction with their current living conditions. They expressed an extremely high level of agreement regarding attachment to their living environment, though we noted with surprise
that they expressed medium agreement regarding the possibility
of resettlement in another environment because of better care.
On the other hand, they expressed an extremely high level of disagreement regarding the possibility of selling their property in exchange for better care. Neighbourhoods are the most important
places to establish connections with other individuals, daily routine activities and consumption habits; therefore, their physical
and social environments affect the health and health behaviour of
residents. This can be particularly relevant for the elderly, given
the combination of declines in physical and cognitive functioning
that tends to accompany ageing, which leads to a greater dependence on the immediate residential neighbourhood for their health
and well-being. Our definition of neighbourhood refers to a person’s immediate residential environment. In this regard, however,
it is important to remark/note that older adults tend to spend a
greater proportion of their lives closer to home; therefore, their
proximal environment could be more relevant to their health and
well-being.
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DIGNITAS n Human Rights Law

Elderly people exhibit a high attachment to their property and
living environment, which provide them with a higher level of
life satisfaction than the possibility of moving to another supposedly better quality environment. We suggest that social housing
policy should increase home care in the living environment, as
well as accelerate the intergenerational transmission of real estate
in exchange for better home care and coexistence. Aging populations require innovative solutions to the problems of maintaining independence, dignity and home care, and assisted living
technologies. As Smith (2001) points out, the elderly deserve to
live their final years in dignity, understanding the relationship
between health and (subjective) well-being in old age, which is
of great socio-political importance. Moving elderly care activities
to homes demands that effective service provision and service
quality be adapted to the living environment, and that new organizational procedures and technological solutions be implemented. The research opens up a series of questions about how to
provide elderly people with an adequate, safe and healthy home
environment even at a late age, both in technical and economic
terms. Therefore, we suggest further research in the indicated direction, because only a comprehensive treatment of the problem
will be able to convince housing decision-makers to take action.
Knowing these aspects can lead to policy subsidizing specific actions for a healthier environment taking into account all real facts.
Older people deserve special consideration in government social
housing policy, community support and industry response, but
they are often a low priority for resource allocation or policy innovation because of their relative lack of economic and political
power.
The authors acknowledge the financial support from the Slovenian Research and Innovation Agency (research core funding
No. J7-4599 and project ID J5-3112).

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DIGNITAS n Life Satisfaction and Real Estate Living Conditions of the Elderly in Slovenia
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& C. M. Werner (Eds.). Human behavior and environment, 8, pp. 153–182. New York: Plenum Press.
World Health Organization. (2011). Definition of an older or elderly person. WHO.
http://www.who.int/healthinfo/survey/ageingdefnolder/en/index.html (accessed May 2019).
World Health Organization. (1997). Measuring Quality of Life. The World Health Organization Quality
of Life Instruments, WHO.
Yen, I. (2009). Neighborhood environment in studies of health of older adults. American Journal of
Preventive Medicine, 37, pp. 455–63.
Yuan, F., Qian, D., Huang, C., Tian, M., Xiang, Y., He, Z., Feng, Z. (2015). Analysis of awareness of health
knowledge among rural residents in Western China. BMC Public Health, 15, pp.15–55.

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»Guarding the cosmos«: exploring
(non)existing legal frameworks
for sustainable space activities
Eva Robida

Abstract
The concept of sustainability in space may seem strange at first
sight. After all, space is often seen as a vast, empty place without
life and natural resources. However, our activities in space, including satellite deployment, space tourism and future plans for
possible colonisation, pose potential risks to the delicate balance
of this extraterrestrial environment. The legal framework for the
sustainable implementation of space activities is examined in this
article. A central chapter is devoted to the concept of sustainability and its extension to space, researching the existing legal regulation of space sustainability, or lack thereof. The link between
the 2030 Agenda for Sustainable Development and space is also
examined. The work analyses how the 2030 Agenda‘s goals of
combating climate change, sustainable industry and sustainable
resource management can be achieved through space technology. Finally, the legal and environmental aspects of space tourism
are addressed. It explores how this form of space activity is (un)
regulated and what are the environmental aspects that need to be
taken into account. The aim of this work is to highlight the problem of the absence of binding legal regulation of the sustainable
conduct of space activities and to point out that the adoption of
appropriate legislation would be more akin to a natural evolution of the existing legal system than to a revolutionary change.
Introducing the principles of sustainable development might offer a potential remedy for certain systemic issues within space
law, especially concerning the safeguarding of outer space from
space debris.
Keywords: space law, sustainable development, space activities, space debris, Agenda 2030, space tourism
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»Varovanje vesolja«: analiza (ne)obstoječih
pravnih okvirov za trajnostno izvajanje
vesoljskih dejavnosti
POVZETEK
Koncept trajnosti v vesolju se morda na prvi pogled zdi nenavaden. Navsezadnje se vesolje pogosto obravnava kot ogromen,
prazen prostor brez življenja in naravnih virov. Vendar pa naše
dejavnosti v vesolju, vključno z nameščanjem satelitov, vesoljskim
turizmom in prihodnjimi načrti za morebitno kolonizacijo, predstavljajo potencialna tveganja za občutljivo ravnovesje tega zunajzemeljskega okolja. V članku je obravnavana pravna ureditev
trajnostnega izvajanja vesoljskih dejavnosti. Osrednje poglavje je
namenjeno konceptu trajnosti ter njegovi razširitvi na vesolje, pri
čemer se raziskuje obstoječo pravno ureditev trajnosti vesolja oziroma pomanjkanje le-te. Preučena je tudi povezava med Agendo
2030 za trajnostni razvoj in vesoljem. Članek predstavi, kako se
lahko cilji Agende 2030, kot so boj proti podnebnim spremembam, trajnostna industrija in vzdržno upravljanje z viri, uresničijo
s pomočjo vesoljske tehnologije. Nazadnje je obravnavan tudi
pravni in okoljevarstveni vidik vesoljskega turizma. Raziskuje
se, kako je ta oblika vesoljske dejavnosti (ne)urejena ter kakšni
so okoljski vidiki, ki jih je treba upoštevati. Namen tega dela je
izpostaviti problem odsotnosti zavezujoče pravne ureditve trajnostnega izvajanja vesoljskih dejavnosti in poudariti, da bi bilo
sprejetje ustrezne zakonodaje bolj podobno naravnemu razvoju
obstoječega pravnega sistema kot revolucionarni spremembi.
Uvedba načel trajnostnega razvoja bi lahko ponudila potencialno
rešitev za nekatera sistemska vprašanja v vesoljskem pravu, zlasti
v zvezi z varovanjem vesolja pred vesoljskimi odpadki.
Ključne besede: vesoljsko pravo, trajnostni razvoj, vesoljske dejavnosti, vesoljski odpadki, Agenda 2030, vesoljski turizem

1. Introduction
On 4 October 1957, Soviet scientists launched the first artificial
satellite, Sputnik 1, from the Baikonur Cosmodrome1 into Earth
1

Baikonur Cosmodrome is a space launch site in the desert steppes of Kazakhstan. It is one of the

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orbit. The satellite became the first product of mankind to orbit
the Earth, marking the official beginning of the Space Age (Lai,
2021, p. 8). The latter brought rapid advances in space technology
and the exploration of space by humans and unmanned spacecraft. Over the past 60 years, the Space Age has produced some
of the greatest scientific and technological advances in human
history, from the landing of man on the Moon to the exploration
of the outer reaches of our Solar System (Millbrooke, 2009, p. 1).
In the field of space law, the limitless vastness of outer space
is combined with the complexity of legal frameworks. In an era
of increasing exploration and exploitation beyond our planet,
the need for rules and guidelines governing the sustainable use
of outer space has become crucial. The concept of sustainability
transcends earthly boundaries and includes the preservation of
celestial environments, resources and the delicate balance of our
interconnected universe.
As we head towards 2030, an important milestone marked by
the 2030 Agenda for Sustainable Development on Earth, the space
sector is inextricably intertwined with the global sustainability effort. From poverty eradication and environmental conservation
to social equity and technological progress, the 2030 Agenda sets
out a comprehensive roadmap to address humanity‘s pressing
challenges.
In the vast expanse of outer space, one important area of interest is the developing field of space tourism. As private spaceflight
gains prominence and offers civilians unparalleled opportunities
to travel beyond the Earth‘s borders, the need for robust regulatory frameworks becomes apparent. Balancing safety, sustainability and equitable access to the space tourism experience is
paramount in shaping this emerging industry.
The sustainable use of outer space is of paramount importance. The exploitation of space resources, space tourism and
other space-related activities must comply with the principles of
sustainability, ensuring long-term benefits for present and future
generations. As humanity expands its presence beyond Earth, it
is essential to strike a delicate balance between exploration and
oldest and largest space launch sites in the world and has been in operation since the late 1950s. It
was originally built by the Soviet Union in response to the successful launch of Sputnik 1. The site was
chosen because of its remoteness, flat terrain and proximity to the equator, which provides a natural
boost for rockets launched from the site (Howell, 2018).

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conservation, pioneering progress and protecting the integrity
of celestial ecosystems. Space law, which is the legal basis for
these efforts, has a crucial role to play in shaping the future of
our space endeavours. It includes a range of legal principles,
treaties and guidelines that govern the activities of States, organisations and individuals in outer space. Space law acts as a
framework to ensure responsible behaviour, manage potential
conflicts and protect the common interests of all humanity in
outer space.

2. Space law essentials
International space law is defined as a branch of general (public) international law that covers the rules, rights and obligations
of States relating to outer space and to activities in or relating to
outer space (Von der Dunk, 2015, p. 29). Compared to other areas
of law, space law is a relatively new area of law, the emergence
of which is a process of new discoveries and achievements of
mankind. International space law strives to secure the exploration and utilization of outer space in a manner that is peaceful,
cooperative, and responsible (United Nations, 2023). Its goal is to
advance the collective interests of all nations while ensuring the
well-being of humanity as a whole.
The basic principles of space law are set out in five international treaties and agreements ratified by many States around the
world. Together, they form the basis of modern space law, or corpus juris spatialis in the strict sense (Steer, 2017, p. 3). The Outer
Space Treaty (hereafter »OST«) became effective on October 10,
1967, The Rescue Agreement, focusing on the rescue and return
of astronauts and objects launched into outer space, took effect
on December 3, 1968. Subsequently, The Liability Convention,
addressing international liability for damage caused by space objects, came into force on September 1, 1972. The Registration
Convention, focusing on the registration of objects launched into
outer space, entered into force on September 15, 1976. Lastly,
The Moon Agreement, governing state activities on the Moon and
other celestial bodies, became effective on July 11, 1984 (Jankowitsch, 2015, p. 5).
But international space law is much more than these five instruments. It also encompasses the various conventions and
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resolutions of the United Nations General Assembly, the rules,
regulations and recommendations of international organisations,
national laws that interact with the international system and, last
but not least, »general international law« (Flis, 2018, p. 53). Corpus
juris spatialis is therefore a term used in a broader sense to refer
to a comprehensive legal framework that includes legal sources
intended to regulate human activities in outer space (Steer, 2017,
p. 3).
The United Nations Outer Space Treaties form a comprehensive global legal framework for regulating human activities in
outer space. The pace at which states ratify these treaties may
fluctuate, reflecting variations in adoption rates; however, their
significance as the cornerstone of international space law remains
indisputable (Von der Dunk, 2015, p. 29). Undoubtedly, these
treaties constitute the primary legal foundation on the international stage, steering and overseeing a myriad of activities conducted in outer space. It‘s crucial to recognize that the evolving
landscape of space exploration, technological advancements, and
geopolitical dynamics underscores the enduring importance of
these treaties (Von der Dunk, 2015, p. 29). As the linchpin of international space law, these agreements provide a foundational
structure that not only addresses current challenges but also anticipates and adapts to the ever-changing nature of space activities.
They serve as a testament to the collaborative efforts of nations to
establish a coherent and universally applicable legal framework
that transcends individual interests, fostering cooperation and
responsible conduct in the exploration and use of outer space.
After the conclusion of the Moon Agreement, the progress of
multilateral legislation through treaties under the United Nations
(hereafter »UN«) experienced a significant slowdown, influenced
by various factors (Jankowitsch, 2015, p. 6). In lieu of this slowdown, non-legally binding instruments meticulously crafted by
Committee on the Peaceful Uses of Outer Space (hereafter »COPUOS«) and subsequently endorsed by the UN General Assembly
have emerged as instrumental tools in fine-tuning the principles
of space law. Good example are Guidelines for the Long-Term
Sustainability of Outer Space Activities and Space Debris Mitigation Guidelines.2
2
The LTS Guidelines developed by the United Nations, offer instructions for the sustainable oversight of space activities. This includes measures to prevent space debris and encourage collaboration

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Furthermore, beyond the scope of COPUOS, an array of additional soft law instruments has emerged, significantly influencing the conduct of space actors. The diverse nature of these
non-legally binding instruments adds a layer of flexibility, but
it‘s noteworthy that their acknowledgment and adoption remain
voluntary. However, this voluntariness doesn‘t diminish their
impact; instead, it emphasizes the collaborative and cooperative
nature of the international space community, allowing for a dynamic and adaptable framework that responds to the evolving
challenges of space exploration and utilization (Palmroth et al.,
2021, p. 3).
The growing adoption of non-binding guidelines and standards
has sparked an increased commitment among nations to develop
national space laws. These laws, extending beyond creating a binding framework for space activities within national borders, play a
crucial role in bridging the gap between international and domestic legal systems and navigating the interface between legal obligations and soft law. The seamless integration of non-binding norms
into national space laws transforms them into enforceable regulations within the jurisdiction of the state (Marboe, 2015, p. 128).

3. Sustainability beyond borders
The term »sustainability« has its origin in the Latin verb »sustinere«, with »tenere« meaning »to hold« and »sus« meaning »up«. Its
essence lies in the ability to sustain an activity at a particular stage
or level. Since the 1980s, this term has evolved beyond its original
roots, expanding to encompass not only the capacity to maintain
but also the responsible and enduring aspects of human habitation and the utilization of Earth and its resources. This evolution
has culminated in the widely embraced concept of »sustainable
development« (Martinez, 2015, p. 259). It is worth noting that the
progression of the term reflects a growing global awareness of
the interconnectedness between human activities, environmental
well-being, and the responsible stewardship of natural resources.
The adoption of »sustainable development« signifies a collective
commitment to harmonizing societal progress with ecological
among stakeholders. On the other hand, the SDM Guidelines focus on tackling the problem of space
debris. They provide guidance on the design, construction, and management of space objects to
minimize collision risks and maintain long-term access to outer space.

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integrity, acknowledging the imperative to strike a balance that
ensures the well-being of present and future generations.
The idea of sustainable development hasn‘t been expressly
applied to space. However, it‘s important to note that space has
never been excluded from its consideration (Pogorzelska, 2013,
p. 4). Interestingly, one of the principles in the Rio Declaration3
emphasizes that states bear the responsibility of ensuring that
activities within their jurisdiction or control do not result in environmental harm beyond national boundaries (Rio Declaration,
1992, Article 2).
According to Articles 1 and 2 of the OST, outer space is an
area beyond national jurisdiction. It is part of the so-called »global
commons« and its legal status is defined as »the domain of all mankind«, which cannot be subject to national appropriation (OST,
1967, Article 1 and 2). Two years following the Rio Declaration,
the International Law Association explicitly stated that the responsibility to safeguard areas beyond national jurisdiction should be
expanded to encompass Earth‘s orbital space (Pogorzelska, 2013,
p. 3). This expansion of responsibility aligns with the dynamic
nature of international law, adapting to the advancements and
challenges posed by the ever-expanding realm of human activities, including those beyond our planet. Moreover, according to
Article 3 of the OST, it is stipulated that States Parties are obligated
to conduct activities related to the exploration and utilization of
outer space in compliance with international law, including the
UN Charter (OST, 1967, Article 3). This Article effectively incorporates the principles of space law into the broader framework
of general international standards, of which sustainable development constitutes a vital component (Pogorzelska, 2013, p. 4).
The recognition of sustainable development within the broader
international standards reinforces the idea that responsible and
ethical engagement in outer space activities should not only align
with the specific principles of space law but also contribute to
the overarching global goals of sustainability and harmonious
coexistence.
So the idea of sustainable development isn‘t unfamiliar in the
context of space regulations; instead, it appears to be a logical
3
The Rio Declaration on Environment and Development, adopted at the United Nations Conference
on Environment and Development (UNCED) in Rio de Janeiro in 1992, consists of 27 principles that
articulate the key elements of sustainable development.

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progression of the system, more like a natural evolution than a
radical transformation (Pogorzelska, 2013, p. 6). Interestingly, the
OST anticipates the emergence of sustainability concepts. In Article 1, it asserts the freedom of outer space exploration for all
nations on an equal basis, without any form of discrimination
(OST, 1967, Article 1). This provision can be viewed as laying the
groundwork for principles like intergenerational and intragenerational equality within space law. The emphasis on equal access
to outer space, as enshrined in the OST, reflects a foundational
commitment to fairness and cooperation among nations in the
exploration of the cosmos. This equitable approach inherently
aligns with the principles of sustainability, fostering a collective
responsibility to ensure that the benefits and opportunities offered by space exploration are shared across generations. Therefore, the OST not only sets the stage for space law but also lays
a solid foundation for integrating sustainable development principles into the fabric of international cooperation in outer space
activities.
As both sustainable development and space law inherently
prioritize human interests, their integration wouldn‘t usher in a
drastic shift towards environmental-centric values. Rather, it implies that states should factor in environmental considerations
when strategizing satellite launches or planning space missions
(Viikari, 2008, p. 134).The essential tenets of sustainable development, such as the judicious use of natural resources, the
amalgamation of environmental protection with economic progress, the right to development, and the pursuit of both intergenerational and intragenerational equity, can seamlessly align
with the requisites of the space sector (Pogorzelska, 2013, p.
4). This alignment between sustainable development principles
and space activities is not only pragmatic but also visionary. It
recognizes the interconnectedness of human activities on Earth
and in outer space and emphasizes the importance of responsible stewardship of resources. By integrating these principles,
the space sector can contribute to a more holistic and balanced
approach, ensuring that advancements in space exploration
and utilization benefit not only the present generation but also
future generations while safeguarding the delicate balance of
our planetary ecosystem. This interconnected perspective reinforces the idea that responsible space endeavors can serve as a
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model for sustainable and equitable development on a global
scale.
Another compelling argument supporting the incorporation
of sustainable development in outer space is its significant potential to tackle certain systemic challenges within space law regulation (Pogorzelska, 2013, p. 5). These challenges stem, in part, from
the broad and ambiguous nature of space law norms concerning
the safeguarding of outer space. A notable issue lies in the increasing disparity between regulation and the evolving reality of
space activities. Without a revitalization of norms, this misalignment could impede the effectiveness of treaty instruments aimed
at preserving outer space (Viikari, 2008, p. 134). Furthermore,
within the treaty regimes, disagreements emerge. For instance,
while the OST aims to facilitate the utilization of outer space, it
overlooks the critical issue of space debris, posing a threat to the
secure use of outer space (Pogorzelska, 2013, p. 5). It could be
argued that the concept of sustainable development necessitates
a reevaluation of norms with unsustainable consequences, urging
their interpretation in alignment with the principles of sustainable development.
The sustainability of space activities faces an array of challenges that necessitate careful consideration and mitigation strategies. One key concern lies in the increasing congestion of Earth‘s
orbit with satellites and space debris, posing risks of collisions
and generating long-term environmental hazards. Effective space
traffic management and debris mitigation efforts are imperative
to ensure the long-term viability of space activities. Additionally,
the rapid pace of technological advancements and the commercialization of space raise questions about resource utilization and
exploitation. Striking a balance between economic interests and
sustainable practices is crucial to prevent over-exploitation and
the depletion of space resources. Furthermore, the environmental impacts of rocket launches and space exploration activities,
including potential contamination of celestial bodies, demand
comprehensive regulations and responsible practices (Viikari,
2008, p. 29).
Although the UN treaties governing outer space primarily focus on aspects like peaceful exploration and equitable resource
sharing, they indirectly promote sustainability through fundamental principles. Despite the absence of an explicit reference
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to sustainability and a formal definition within the UN treaties
on outer space, it is crucial to acknowledge that these treaties do
not neglect forward-looking environmental considerations. While
sustainability may not be explicitly named, the principles embedded in the pursuit of utility, responsible behavior, and risk mitigation are essential foundations supporting the safe and sustainable
use of outer space (Palmroth et al., 2021, p. 3). These principles
not only align with the spirit of the UN Outer Space Treaties but
also underscore a commitment to addressing evolving environmental challenges. Consequently, even without explicit terminology, the treaties lay a foundation for responsible and environmentally conscious conduct in space activities, contributing to the
overarching goals of sustainability in the context of outer space
exploration and utilization (Deva Prasad, 2019, p. 3).
A critical facet of space sustainability and the associated norms
of responsible space behavior, extensively deliberated and regulated over the past two decades, primarily centers on the mitigation of space debris. Recognizing that an uncontrolled and uncoordinated surge in orbital debris could adversely affect the space
activities of all stakeholders, whether governmental or private, established or emerging, has prompted the formulation of progressive regulatory measures (Palmroth et al., 2021, p. 4). Despite the
primarily voluntary and technical nature of regulations targeting
the reduction of space debris proliferation, numerous national
legislators have not only embraced these rules but have also elevated them to mandatory conditions at the national level (Palmroth et al., 2021, p. 3). Recognizing that space activities inherently transcend national boundaries, the collaborative influence
of international law, national regulations, and soft law is poised
to uniquely contribute to the establishment of shared goals and
ensure compliance among all space actors.
As the discussion around space sustainability continues to
evolve, it becomes evident that responsible space behavior extends beyond the reduction of space debris. New challenges
and opportunities arise, necessitating ongoing collaboration and
adaptability in the legal and behavioral frameworks governing
outer space activities. Issues such as resource utilization, space
traffic management, and international cooperation in scientific exploration are gaining prominence, further emphasizing the need
for a comprehensive and forward-looking approach to space law
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that incorporates sustainability as a guiding principle for the benefit of all spacefaring nations.

4. Linking sustainability principles on earth
with the cosmos
The 2030 Agenda and its 17 Sustainable Development Goals
(hereafter »SDGs«) represent a transformative vision for a more
sustainable and equitable future for our planet and its people.
Achieving these ambitious goals requires innovative approaches
and collaboration across sectors, and space technology is proving
to be a powerful tool in this regard (Contribution to the »Space
2030« Agenda: EU Space Supporting a World of 8 Billion People,
2023, p. 29). In fact, space technology is an indispensable ally in
achieving the SDGs, offering innovative solutions, comprehensive monitoring capabilities and global connectivity. By harnessing the power of satellites and space-based instruments, we can
collect critical data, improve our understanding of complex challenges and implement targeted actions that contribute to sustainable development across multiple dimensions (Contribution to
the »Space 2030« Agenda: EU Space Supporting a World of 8 Billion People, 2023, p. 30).
However, to ensure that space technology continues to be
used for good and contributes to the 2030 Agenda, laws and
regulations must be put in place that promote sustainable and
responsible practices. Legislation should explicitly recognise and
align with the SDGs. By incorporating the principles and goals of
the 2030 Agenda into space-related laws, governments can create
a legal framework that prioritises sustainable development, environmental protection and social well-being.
Space activities often involve multiple countries and stakeholders. Laws should promote international cooperation and collaboration and encourage the sharing of information, resources
and expertise to jointly address global challenges. International
agreements and guidelines, such as the OST and the SDGs, can
provide a basis for collaborative efforts (Ferretti, Imhof, Balogh,
2020, p. 271). Legislation should also require transparency and
accountability from space actors. This includes clear reporting
mechanisms, disclosure of activities and their potential impacts,
and mechanisms for stakeholder engagement. By promoting
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transparency, governments and organisations can ensure that
space technology is used responsibly and in line with the SDGs
(Deva Prasad, 2019, p. 3).
It is also crucial that legislation contains provisions to manage and mitigate the environmental impact of space activities.
This can include measures to reduce space debris, regulate satellite launches and operations, and promote sustainable use of
resources. Environmental impact assessments and monitoring
mechanisms can help identify and reduce potential environmental risks (Popova, Schaus, 2018, p. 6). It is also important
that legislation supports ethical standards and ensures inclusiveness in space-related activities. It should address issues such as
privacy, data protection and equitable access to space services.
It should also promote diversity and equal opportunities in the
space industry to ensure that the benefits of space technology
are accessible to all.
Governments should establish or strengthen existing regulatory bodies to oversee space activities and ensure compliance
with sustainable practices. These bodies can monitor compliance with laws, review applications for space missions and promote responsible behaviour by space actors. Collaboration between governments, industry, academia and civil society in the
creation of these regulatory bodies can promote comprehensive
and effective oversight (Di Pippo et al., 2021, p. 19). Laws and
regulations governing space activities should be regularly reviewed and adapted to reflect technological advances, societal
needs and changing environmental conditions. Regular evaluation ensures that the legal framework is up-to-date and responds
to new challenges and opportunities (Contribution to the »Space
2030« Agenda: EU Space Supporting a World of 8 Billion People,
2023, p. 29).
By including these elements in legislation, governments can
create an enabling environment that harnesses the potential
of space technology for sustainable development. Legislation
should provide clear guidance, promote responsible behaviour
and ensure that space activities are in line with the 2030 Agenda,
ultimately contributing to the achievement of the SDGs and improving society as a whole.

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5. Space tourism‘s toll
Following the milestone of the inaugural »tourist« spaceflight
in 2001, suborbital travel4 has emerged as a novel dimension within commercial space activities. The rapid expansion of space tourism introduces unique legal challenges, demanding attention to
ensure safety, accountability, and ethical practices in this dynamic
industry. The current framework of space law, initially crafted for
government-led exploration, proves inadequate in addressing the
intricate legal issues associated with private space ventures (Von
der Dunk, 2019, p. 178–179). As the momentum of space tourism
accelerates, there arises a critical need to establish robust regulatory structures that skillfully navigate the delicate equilibrium between fostering innovation and safeguarding the broader public
interest.
When space law was initially developed, the status of passengers on spacecraft did not pose any challenge, as only astronauts
and cosmonauts participated in space flights and missions. Now,
defining the legal status and rights of commercial space travelers,
or tourists, becomes crucial. Ambiguity arises from using terms
like »astronaut« and »spacecraft personnel« without clear definitions in international space law, as seen in treaties like the OST
and Rescue Agreement (Hobe, 2007, p. 455.). Complicating matters, these terms vary in meaning across treaties. Stephan Hobe
suggests a distinction, with »astronaut« reflecting a scientific role
and »spacecraft personnel« having a functional meaning (Hobe,
2007, p. 455). This lack of clarity highlights the need for a nuanced approach in adapting space law to accommodate the commercialization of space activities.
The rapid technological strides in space tourism bring forth
intricate legal dilemmas, with space vehicles embodying a hybrid
nature, leveraging features from both conventional aircraft and
spacecraft. These dual-purpose vehicles find themselves straddling the realms of both aviation and space laws, casting uncertainties on how to navigate registration and liability issues, parSuborbital space tourism, exemplified by companies like Virgin Galactic, involves brief trips to the
edge of space, providing passengers with a taste of weightlessness and stunning views of Earth‘s
curvature. Moving into orbital space tourism, companies like SpaceX offer longer stays in Earth‘s
orbit, allowing travelers to witness multiple orbits and experience extended weightlessness. Beyond
these Earthly orbits lies the concept of tourism beyond Earth, envisioning interplanetary travel and
stays in space habitats, including potential visits to the Moon or Mars.
4

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ticularly concerning suborbital commercial space vehicles (Von
der Dunk, 2019, p. 185). This quandary gains urgency as the production of two-part vehicles becomes a standard practice in the
burgeoning field of space tourism. It‘s now paramount to shed
light on these intricacies, emphasizing the pressing need to decipher the operational and legal complexities surrounding these
cutting-edge vehicles. This evolving scenario underscores the necessity for regulatory frameworks to adeptly accommodate the
distinct characteristics of the space tourism industry.
Engaging in space activities entails inherent risks and dangers.
Thus, when delving into the legal aspects of space tourism, it
becomes imperative to prioritize the intricacies and challenges
within the existing liability framework outlined in the corpus juris
spatialis. Since the 1963 UN Declaration on Legal Principles Governing the Activities of States in the Exploration and Use of Outer
Space, alongside the 1967 OST and the 1972 Liability Convention,
liability regulation has stood as a pivotal component in governing outer space activities. However, the present liability structure,
narrowly defined, falls short of accommodating the demands of
the commercial advancements witnessed in the past two decades.
Despite various provisions in current national and international
regulations addressing liability for commercial space activities,
persistent legal issues arise concerning the commercialization
and privatization of space endeavors (Masson-Zwaan, Freeland,
2010, p. 1598). The existing liability regime has never been practically applied, leaving room for ongoing legal challenges, although
the COSMOS 954 accident in 1978 almost set a precedent.5
As we delve into the realm of space tourism and its technological strides, it‘s imperative to scrutinize the potential environmental repercussions associated with this burgeoning industry. In the
context of space law‘s philosophy of the »common heritage of
mankind«, safeguarding the cosmic environment becomes paramount (Masson-Zwaan, Freeland, 2010, p. 1606). The upsurge in
commercial space activities, notably space flights, significantly
impacts the environment by harming the ozone layer and releasing pollutants like black carbon. Suborbital journeys, exemplified
by Virgin Galactic, introduce black carbon into the atmosphere,
COSMOS 954 was a Soviet satellite that had a nuclear reactor on board to power its systems. On 24
January 1978, the satellite suffered a critical malfunction which caused it to disintegrate and scatter
its debris over a wide area, including the Canadian Arctic region (Byers, Boley, 2023, p. 64).

5

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potentially altering global weather patterns (Byers, Boley, 2023, p.
38–41). While U.S. agencies have urged companies to study and
mitigate their atmospheric impact, a more extensive international
collaboration and commitment to sustainable practices are essential (McCue, 2022, p. 1097).
Beyond environmental concerns, ethical considerations
emerge. Embarking on space tourism comes with a hefty price
tag, making it an exclusive experience for a fortunate few. Critics contend that this exacerbates social disparities, sparking concerns about fairness and justice. The considerable financial and
technological assets required for space tourism could instead be
directed towards addressing urgent global issues like poverty,
education, or climate change. Sooner or later, the status of important sites in space that are (and will be) historically significant
will have to be regulated. Legislation will be needed to provide
for »heritage zones« to protect certain sites, such as the site of the
first manned lunar landing, from accidental or deliberate damage
by space tourists (Masson-Zwaan, Freeland, 2010, p. 1606).
The current state of space law struggles to keep up with the dynamic landscape of the growing space tourism industry. It‘s seen
as too inflexible to serve as a reliable foundation for space tourism. There‘s a pressing need for a fresh international convention
solely dedicated to regulating commercial space tourism, aiming
to clear up uncertainties in the field. Such a unified tool should
consider and adopt elements from existing aviation law, treating
it as a guiding model, especially when it comes to dealing with
questions of liability. Establishing a comprehensive legal strategy
is a key component in advancing the broader development of
commercial aspects in space. This means that as we venture into
economic activities in space, there should be a parallel implementation of a legal framework, overseen by an international body,
to ensure robust support as a coherent system (Masson-Zwaan,
Freeland, 2010, p. 1607).

6. The path forward
Space-age developments and innovations have led to a growing number of space actors, transforming a traditionally government-led industry into an increasingly commercialised one (Gaspari, Oliva, 2019, p. 188). The range of possible space applications
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DIGNITAS n International Law

is expanding and the international community is becoming increasingly dependent on space activities. Space helps to improve
the lives of people around the world and helps us to face the
challenges of our time. Space imagery and data allow experts to
develop strategies to combat climate change and reduce the damage caused by environmental disasters.
The issue of space debris and other challenges to the sustainability of outer space clearly shows that space activities, if carried
out without proper legal and environmental considerations, can
pose a major threat to humanity and the environment, and shows
us that the international community must work towards a more
effective and comprehensive legal regime that ensures and contributes to sustainability on Earth and in outer space.
Existing international space law addresses the sustainability
of outer space indirectly and does not provide a comprehensive
legal framework for the protection of the space environment, nor
does it contain strict sustainability guidelines and principles on
how to conduct space activities. The general obligations relating
to the environmental aspects of space exploration and use found
in UN treaties or principles need to be adapted to current scientific, technological and industrial developments.
The lack of adequate regulation for the sustainable implementation of space activities is like an ominous black hole that
threatens the space environment, the implementation of the 2030
Agenda and future generations. While humanity is struggling to
achieve sustainable development on Earth, a »Wild West« is unfolding in space without real rules. Space, which could be our
partner in achieving the global goals, is becoming an arena for
private space actors who indulge in a privileged experience at
the expense of social inequality and environmental destruction.
It is time for the international community to come together
and set clear guidelines to steer space activities in a direction
that benefits all and ensures the long-term sustainability of our
exploration and exploitation of space. Humanity deserves more
than a chaotic space circus - it deserves a sustainable and responsible exploration of the unknown depths of space for the
benefit of us all.

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DIGNITAS n »Guarding the cosmos«: exploring (non)existing legal frameworks for ...
LITERATURE AND SOURCES
Byers, M., Boley, A. (2023). Who Owns Outer Space? Cambridge: Cambridge University Press.
Contribution to the »Space2030« Agenda: EU Space Supporting a World of 8 Billion People. (2023).
Dunaj: UNOOSA.
Deva Prasad, M. (2019). Relevance of the Sustainable Development Concept for International Space
Law: An Analysis. Space Policy, 47, p. 166–174.
Di Pippo, S., et al. (2021). From Millennium to Sustainable Development Goals: Evolving discourses
and their reflection in policy coherence for development. Earth System Governance, 7, p. 1–22.
Ferretti, S., Imhof, B., Balogh, W. (2020). Future Space Technologies for Sustainability on Earth. In:
Space Capacity Building in the XXI Century / Ferretti, S. (ur.). Cham: Springer, p. 265–280.
Flis, S. (2018). Vesoljsko pravo varstva okolja (Master‘s thesis). Kranj: Nova Univerza, Faculty of government and european studies.
Gaspari, F. ,Oliva, A. (2019). The Consolidation of the Five UN Space Treaties into One Comprehensive and Modernized Law of Outer Space Convention: Toward a Global Space Organization. In: The
Space Treaties at Crossroads / Kyriakopoulos, G. D., Manoli, M. (ur.). Cham: Springer, p. 183–197.
Hobe, S. (2007). Legal Aspects of Space Tourism. Nebraska Law Review, 86(2), p. 439–458.
Howell, E. Baikonur Cosmodrome: Russian Launch Complex. Space.com, 16. 6. 2018. URL: https://
www.space.com/33947-baikonur-cosmodrome.html, 16. 1. 2024.
Jankowitsch, P. (2015). The Background and History of Space Law. In: Handbook of Space Law / Von
der Dunk, F., Tronchetti, F. (ur.). Cheltenham; Northampton: Edward Elgar Publishing Limited, p.
1–28.
Lai, A. K. (2021). The Cold War, the Space Race, and the Law of Outer Space: Space for Peace. London,
New York: Routledge.
Marboe, I. (2015). National Space Law. In: Handbook of Space Law / Von der Dunk, F., Tronchetti, F.
(ur.). Cheltenham; Northampton: Edward Elgar Publishing Limited, p. 127–204.
Martinez, P. (2015). Space sustainability. In: Handbook of Space Security: Policies, Applications and
Programs / Kai-Uwe Schrogl K., Hays P. L., Robinson, J., Moura, D., Giannopapa, C. (ur.). New York:
Springer, p. 258–272.
Masson-Zwaan, T., Freeland, S. (2010). Between heaven and earth: The legal challenges of human
space travel. Acta Astronautica, 2010 (66), p. 1597–1607.
McCue, M. M. (2022). A Regulatory Scheme for the Dawn of Space Tourism. Vanderbilt Law Review,
55(6), p. 1087–1116.
Millbrooke, A. (2009). History of the Space Age. In: Handbook of Space Engineering, Archaeology,
and Heritage / Darrin, A. G., O’Leary, B. L. (ur.). London: CRC Press of Taylor & Francis Group, p.
195–207.
Outer Space Must Be a Place for Peace and Cooperation, Not an Arms Race, Speakers Affirm, as Fourth Committee Takes Up Space Matters. United Nations, 24. 10. 2023. URL: https://press.un.org/
en/2023/gaspd788.doc.htm, 16. 1. 2024.
Palmroth, M., et al. (2021). Toward Sustainable Use of Space: Economic, Technological, and Legal
Perspectives. Space Policy, 57.
Pogorzelska, K. (2013). Space Debris in the Perspective of Sustainable Development. Darmstadt:
European Space Agency.
Popova, R., Schaus, V. (2018). The legal Framework for Space Debris Remediation as a Tool for Sustainability in Outer Space. Aerospace, 5(2), p. 1– 17.
Rio Declaration on Environment and Development (Rio Declaration). UN Doc. A/CONF.151/26 (vol.
I), 31 ILM 874, Rio de Janeiro, 1992.
Steer, C. (2017). Sources and law-making processes relating to space activities. In: Routledge Handbook Of Space Law / Jakhu, R. S., Dempsey, P. S. (ur.). Abingdon; New York: Routledge, p. 3–24.
Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space,
including the Moon and Other Celestial Bodies (OUTER Space Treaty). 1967, 18 U.S.T. 2410, 610
U.N.T.S. 205.
Viikari, L. (2008). The Environmental Element in Space Law: Assessing the Present and Charting the
Future. Leiden; Boston: Martius Nijhoff Publishers.
Von der Dunk, F. (2015). International Space Law. In: Handbook of Space Law / Von der Dunk, F.,
Tronchetti, F. (ur.). Cheltenham; Northampton: Edward Elgar Publishing Limited, p. 29–126.
Von der Dunk, F. (2019). The Regulation of Space Tourism. In: Space Tourism: The Elusive Dream /
Cohen, E., Spector, S. (ur.). Bingley: Emerald Publishing Limited, p. 177–203.

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88

DIGNITAS n Liability for damages in case of sports injuries

Liability for damages in case
of sports injuries
Nik Šabec

Abstract
For sports and its participants, injuries are something entirely
common. Upon the occurrence of an injury, certain damage always occurs to the individual, raising the question in such situations of who or if anyone is liable for the resulting damage.
Due to the nature of sports, the liability for damages in cases
of sports injuries is supposed to be more of an exception than a
rule. Otherwise, individuals could potentially lose motivation for
sports participation, and in such a scenario, the sport itself might
lose its meaning and attractiveness.
Every sport is to some extent specific, and individuals can participate in sports in various ways or roles. Consequently, liability
relationships for injuries in sports can be diverse but can generally be categorized into two groups: reciprocal liability for damages of athletes and liability for damages of organizers of sports
events and managers of sports equipment.
By the very nature of things in the case of sports injuries, each
specific case is unique, so only judicial practice can offer definitive answers to questions about liability for damages in the respective cases.
Keywords: sports, sports injuries, liability for damages, reciprocal liability for damages of athletes, liability for damages of organizers of sports events and managers of sports equipment

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DIGNITAS n Sports Law

Odškodninska odgovornost ob nastanku
poškodbe pri športu
Povzetek
Za šport in njegove udeležence so poškodbe nekaj povsem
običajnega. Ob nastanku poškodbe posamezniku vselej nastane
določena škoda, pri čemer se v takšnih situacijah vedno pojavi
vprašanje, kdo oz. če kdo odškodninsko odgovoren za nastalo
škodo.
Zaradi narave športa naj bi odškodninska odgovornost za
poškodbe pri športu predstavljala bolj izjemo kot pravilo. V
nasprotnem primeru bi namreč lahko posamezniki izgubili motivacijo za športno udejstvovanje, šport kot tak pa bi v tem primeru
izgubil svoj smisel in atraktivnost.
Vsak šport je do neke mere specifičen, posamezniki pa lahko
v športu sodelujejo na različne načine oz. v različnih vlogah.
Posledično so lahko odškodninska razmerja v primeru nastanka
poškodbe pri športu različna, vendar jih je v osnovi mogoče razdeliti na dve skupni primerov, in sicer na medsebojno odškodninsko
odgovornost športnikov in na odškodninsko odgovornost organizatorjev športnih prireditev ter upravljalcev športne opreme.
Že po naravi stvari pri poškodbah v športu vsak konkretni
primer predstavlja posebnost zase, zato lahko šele pravna kazuistika ponudi dokončne odgovore na vprašanja o odškodninski
odgovornosti v tovrstnih primerih.
Ključne besede: šport, poškodbe pri športu, odškodninska
odgovornost, medsebojna odškodninska odgovornost športnikov,
odškodninska odgovornost organizatorjev športnih prireditev in
upravljalcev športne opreme

1. Introduction
Sports is a highly diverse and complex activity that is both beneficial and, to some extent, also risky. Individuals can participate
in sports in various roles – as professional or amateur athletes,
coaches or instructors, organizers of sports events, managers of
sports facilities, manufacturers of sports equipment, spectators,
etc. (Možina, 2020, p. 115).
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DIGNITAS n Liability for damages in case of sports injuries

Injuries are quite common in sports and for its participants.
Their occurrence always results in some form of harm to the individual, prompting the question of who, if anyone, is liable for the
incurred damage and whether the injured individual is entitled to
compensation for the suffered harm (Možina, 2020, p. 115).
In legal theory, especially in the theory of sports law, three
different perspectives on liability for damages in case of sports
injuries have emerged. Two are diametrically opposed in their
approach to determining liability, while the third falls somewhere
between these two extremes (Králík, 2015, p. 1021).
The first group of theorists believes that sports participants
should be held liable for injuries in sports without limitations.
They do not consider sports to be such a specific area of human
activity that justifies the potential application of a special legal
regime when determining liability for damages in case of sports
injuries (Králík, 2015, p. 1021).
In contrast, the second group of theorists almost completely excludes the application of rules on liability for damages in
case of sports injuries. Advocates of this viewpoint argue that the
world of sports is a sphere into which the law should not intrude
(Králík, 2015, p. 1022).
The third group of theorists accepts the role of law in sportsrelated matters but modifies the traditional idea of liability for
damages in case of sports injuries by considering the unique nature of sports (Králík, 2015, p. 1022).
Due to the nature of sports, liability for damages in cases of
sports injuries is seen as an exception rather than a rule; otherwise, individuals might be discouraged from participating in
sports, and the sports themselves would lose their meaning and
appeal (Šabec, 2023, p. 70). Consequently, assessing liability for
damages in cases of sports injuries poses a special challenge for
courts worldwide. This often leads to situations where, in certain
cases, especially in foreign jurisdictions, legal precedents refer to
the practices of other countries in similar cases (Králík, p. 1032).
The question of liability for damages in cases of sports injuries
can arise in various situations, depending on the role played by
the injured party and the party potentially liable for damages. Liability relationships for injuries in sports can be diverse but can
generally be categorized into two groups: reciprocal liability for
damages of athletes and liability for damages of organizers of
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DIGNITAS n Sports Law

sports events and managers of sports equipment (Možina, 2020,
p. 116).
Liability for damages in cases of sports injuries can be contractual or non-contractual. In the Republic of Slovenia, general rules
of law of damages (the provisions of the Obligations Code (OZ))
apply to matters concerning injuries in sports. For someone to be
held liable for damages, and for the injured party to be entitled
to compensation, the prerequisites of liability for damages must
be satisfied. In other words, a foundation for liability for damages
must exist for the awarding of compensation (Možina, 2020, p.
115).
The Slovenian legal system distinguishes between objective
and fault-based liability for damages, differing in whether fault is
one of the prerequisites for the emergence of liability for damages or not. The distinction lies in the fact that in fault-based liability
for damages, fault is a prerequisite for the emergence of liability,
whereas in objective liability for damages, fault is not a condition
that must be fulfilled for the occurrence of liability for damages
(Plavšak et al., 2003, str. 690).
In determining or assessing the basis of liability, the evaluation
of unlawfulness is crucial, where the autonomous rules of individual sports play a key role (Možina, 2020, p. 117–119)
Given that each sport is governed by autonomous rules, any
injury in sports is, by its nature, a unique case. Therefore, only judicial practice can provide definitive answers to questions about
liability for damages arising from sports injuries (Cerar, 2007, esource).
In the following parts of this article, it will be presented how
Slovenian judicial practice assesses the existence of the prerequisites for liability for damages in cases where the question of
liability for damages in cases of sports injuries arises. It will also
be presented what determines the type of liability (subjective or
objective) attributed to organizers of sports events or managers
of sports equipment for the damage.

2. The peculiarity of assessing unlawfulness
in sports
When assessing the unlawfulness of actions resulting in injury
in sports, circumstances such as freedom of movement, the at92

DIGNITAS n Liability for damages in case of sports injuries

tractiveness of sports competitions, and individual sports for all
stakeholders are crucial. Additionally, autonomous rules established by sports associations, which have been adopted by sports
federations, are highly significant in determining unlawfulness
(Možina, 2020, p. 116–117).
These rules can serve as a valuable guide in determining the
expected behaviour of athletes, organizers of sports events, or
managers of sports facilities or equipment. They also define the
permissible scope of the so-called “combat element”, preventing
injuries caused by dangerous play, roughness, and unsportsmanlike behaviour (Možina, 2020, p. 117). Despite this, it is necessary
to emphasize that sports rules do not constitute the sole source
for distinguishing between permissible yet firm (rough) play and
conduct that is prohibited, dangerous, or unsportsmanlike. Besides rules, other circumstances must be considered, especially
the nature of each individual sport. Additionally, when evaluating
what constitutes sportsmanlike or unsportsmanlike behaviour,
a certain degree of discretion should be entrusted to the sports
referee. (Možina, 2020, p. 129).
A drawback of sports rules is that they do not regulate all sports
or all situations that may arise in a particular sport. Consequently,
when assessing the unlawfulness of actions resulting in injury in
sports, it is primarily necessary to consider the general obligation
of exercising due diligence and avoiding causing harm. While
sports rules can complement this obligation, they cannot replace
it (Možina, 2020, p. 117).
The standard of due diligence also plays a crucial role as it
is necessary, when assessing unlawfulness of actions resulting
in injury in sports, to determine whether the responsible party,
despite violating sports rules, acted differently than an average
careful athlete would have in a comparable situation (VSRS Sodba
II Ips 108/2016, 5. 1. 2017).
In any case, it holds true that an athlete who causes harm to
another through their actions is not liable for damages if their
behaviour is in accordance with the rules of the game, as it is not
considered unlawful in such cases (Stanec, Milanović, 2019, p. 28).
Similarly, not every violation of sports rules implies unacceptable conduct as an element of liability for damages, as some rule
violations in a particular sport are so common and characteristic that they have become an integral part of that sport. Without
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DIGNITAS n Sports Law

such violations, the game/sport could become uninteresting, or
at least significantly less appealing to both athletes and spectators. Demanding strict adherence to the rules during play could
negatively impact the ongoing development of a sport. Athletes
are undoubtedly aware that rule violations will occur during the
game, as they often intentionally break the rules, creating hazardous situations for themselves and others. Consequently, minor
rule violations committed through negligence during sports play
cannot be considered unlawful or unacceptable conduct (VSRS
Sodba II Ips 108/2016, 5. 1. 2017).
Within the framework of sports games, the basis for liability
for damages should only be a violation of the rules that, by its
nature and intensity, exceeds the framework of the rules of the
game. Due to the nature of sports and sports delicts, each being
unique, when answering the crucial question of what constitutes
a violation of sports rules sufficient to deem it an unlawful act, it is
necessary to assess the circumstances of each individual case and
consider existing judicial practice (Cerar, 2007, e-source).

3. Reciprocal liability for damages of athletes
Sports can be divided into two groups based on their nature:
individual sports, where participants generally do not have physical contact, and sports with a combat element, where physical
contact among participants is quite common or even necessary.
(Možina, 2020, p. 120).
The group of sports with a combat element includes various team sports such as football (soccer), basketball, handball,
hockey (Stanec, Milanović, 2019, p. 28), and combat sports like
boxing, where mutual physical contact among participants is
inevitable (Možina, 2020, p. 120). Consequently, the risk and
likelihood of injuries in these sports are much higher (Možina,
2020, p. 127).
Sports with a combat element are practically inconceivable
without mutual physical contact among participants or without
violations of sports rules. In these sports, rule violations are practically an integral part, such as tactical fouls committed for strategic reasons and not with the intent to harm opposing participants
(Praprotnik, 2017, p. 20–22).
As a result, in assessing the liability for damages of athletes,
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DIGNITAS n Liability for damages in case of sports injuries

the law must consider the fact that sports with a combat element
inherently involve an increased probability of participant injuries.
Moreover, the rules of these sports allow and anticipate physical
contact, especially in the context of the sporting battle. In this
type of sports, the principle of alterum non laedere is limited to
the extent that participants are not held liable for injuries sustained by others, even if caused by a rule violation, if the violation
occurred »in the heat of the game«, due to fatigue, thoughtlessness, or other similar reasons (Možina, 2020, p. 127).
In Slovenian judicial practice, for some time there was a prevailing view that the conduct of an athlete (specifically a football
player) is not unlawful only in the case of intentional injury but
also in the case of a serious violation of rules or when it involves
particularly audacious moves. The conduct was deemed unlawful
even if the athlete committing the offense should (just) have been
aware that their actions could result in either hitting an opposing
player or the ball (VSL Sodba II Cp 3900/2010, 20. 4. 2011; VSK
Sodba I Cp 244/2015, 2. 9. 2015).
The described position of the judicial practice could be understood in a way that every foul, committed with a tackle from
behind or any other intentionally committed offense, regardless
of its intensity, constitutes unlawful conduct that forms the basis
for liability for damages. However, this position was considered
untenable, even by legal theorists, as such offenses are common
in football matches (Praprotnik, 2017, p. 21). The Supreme Court
of the Republic of Slovenia shared the same view, emphasizing
that in sports with a combat element characterized by frequent
direct contact between players, it would be overly strict for the
court to label every action by a player who knowingly hits an opponent as unlawful. Fouls are an integral part of football, and the
mere violation of the rules of the game, even when the perpetrator intentionally hits an opposing player, cannot be decisive in
assessing the unlawfulness of the player’s conduct. Consequently,
the Supreme Court of the Republic of Slovenia defined a serious
violation of the rules of football, emphasizing that such a violation occurs only when the player’s behaviour is inappropriate
and of an extreme nature. In simpler terms, a serious violation
occurs when a player commits a foul using excessive force that
the other player could not reasonably anticipate (VSRS Sodba II
Ips 108/2016, 5. 1. 2017).
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DIGNITAS n Sports Law

The same stance was taken by the courts in the case of other
team sports. For instance, the Supreme Court of the Republic of
Slovenia, when assessing unlawfulness in handball, concluded
that the actions of a handball player are not unlawful if the rule
violation was not committed in an unsportsmanlike or audacious
manner or in excessively rough play (VSRS Sklep II Ips 208/2003,
11. 3. 2004). The absolute prohibition of physical contact and
violations of handball rules, whether intentional or unintentional,
would, in the view of the Slovenian judicial practice, effectively negate the essence of the handball game (VSL Sodba II Cp
2008/2011, 30. 11. 2011).
The Higher Court in Ljubljana made the same decision in a case
where an injury occurred during a basketball game, emphasizing
that the basketball player’s conduct would be considered unlawful only if it was unusual for basketball and deviated from typical
fouls in terms of aggression, excessive roughness, unsportsmanlike behaviour, and recklessness (VSL Sodba I Cp 1486/2013, 2.
10. 2013).
Similarly, this applies to martial arts, where an athlete’s conduct is not unlawful if it adheres to the rules. It only becomes
unlawful if the athlete intentionally and grossly violates the rules
of the sport (Donnellan, 2016, e-source). This means that athletes,
in these cases, are not liable for injuries, including those that may
result in death, if the injury is a consequence of conduct in accordance with the rules (Možina, 2020, p. 130). This is also linked
to the concept of the injured party’s consent, as a person who voluntarily participates in sports activities is considered to consent
to the risks inherent in that sport (VSRS Sodba II Ips 284/2016,
30. 8. 2018).
In the second group of sports, i.e., individual sports, there
are activities in which physical contact between athletes is neither necessary nor desirable. However, this does not mean that
injuries cannot occur. In most cases, injuries happen in sports
conducted in confined spaces. Athletes must exercise care and
behave towards others in a manner that does not endanger or
inappropriately obstruct each other (Možina, 2020, p. 121).
The assessment of unlawfulness in individual sports has been
much less common in Slovenian judicial practice compared
to the evaluation of unlawfulness in sports with a combat element.
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DIGNITAS n Liability for damages in case of sports injuries

For example, the Higher Court in Ljubljana determined that
a cyclist who collided with a parked car was deemed liable for
damages. This was because he fell behind the closed section of
the cycling marathon to the extent that he was actually riding
outside of the closed section. As a result, he was subject to road
traffic regulations, which he violated in his actions (VSL Sodba I
Cp 312/2010, 24. 5. 2010).
In general, participants in a cycling race are required to comply with safety rules, as rule violations form the basis for assessing
unlawfulness in the event of an accident (Možina, 2020, p. 127).
Similarly, this applies to golf, where it is possible to speak of a
player’s liability if they violate the rules of the game and golf ethics (VSL Sodba II Cp 1518/2022, 14. 11. 2022).
Unlike Slovenian judicial practice, German case law has also
addressed the assessment of unlawfulness in other sports, such as
skating, tennis, and squash. Decisions of German courts suggest
that, especially in cases where there are no specific sports rules
(e.g., in skating), it is necessary to consider the standard of due
diligence in assessing unlawfulness. In cases where such rules exist, it must be determined whether they were violated at all, and if
so, whether it was done intentionally or negligently, as otherwise,
there is no liability for damages (Možina, 2020, p. 122–123).
A unique aspect of individual sports is represented by skiing, a
sport in which participants move at high speeds in various directions on a limited surface. Despite its nature, i.e., its association
with certain dangers or risks, skiing does not constitute a hazardous activity, and in the event of damage, it is not possible to speak
of objective liability for damages (VSRS Sodba II Ips 787/2009, 25.
4. 2013).
The skier must assume the risks that are normal for skiing,
such as the speed of skiing, specialized equipment, and the high
likelihood of situations that are unpredictable for skiers (VSRS
Sodba II Ips 661/2007, 10. 9. 2008). This does not include the
improper conduct of other participants, especially if they violate
regulations regarding prohibited and mandatory actions on the
ski slopes (VSRS Sodba II Ips 1129/2008, 16. 2. 2012).
One of the key sources of rules for behaviour on the ski slopes
is the International Ski Federation rules, which are in Republic of
Slovenia largely reflected in Article 23 of the Ski Area Safety Act
(ZVSmuč-1) (Možina, 2020, p. 121).
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DIGNITAS n Sports Law

In assessing the liability of a skier, it is not only the skiing
(sports) rules that matter but also general rules prohibiting causing harm to others. Consequently, when an injury occurs on
the ski slope, it is necessary to evaluate on a case-by-case basis
whether the skier primarily adhered to skiing rules and, secondarily, exercised appropriate due diligence, or behaved in a manner consistent with how an average careful skier would act in a
comparable situation (VSRS Sodba II Ips 1129/2008, 16. 2. 2012).

4. Liability for damages of sports event
organizers
In sports, in addition to the reciprocal liability for damages of
athletes, there is also a multitude of various relationships of liability. Besides athletes, liability for damages can also be attributed
to sports event organizers, associations, federations, teachers,
coaches, facility managers, manufacturers, and sellers of sports
equipment, etc. (Možina, 2020, p. 122–123).
The legal basis for the liability for damages of these entities,
in addition to unlawful conduct, is also contractual relationships
established between athletes and competition or event organizers, as well as facility managers, and also between organizers and
spectators (Možina, 2020, p. 134). The organizer of a sports event
or the manager of sports equipment can be held liable for damages to spectators under Article 157 of the OZ (VSL Sodba III Cp
3032/2010, 31. 8. 2010). This applies equally to damages incurred
by those who gather in larger numbers in a specific area solely
due to a sports event and who may be endangered precisely because of exceptional circumstances related to an unusually large
number of people (VSC Sodba Cp 356/2021, 3. 11. 2021).
The organizer has a duty to, in accordance with relevant regulations (laws, rules of sports associations, technical rules, etc.),
implement appropriate safety measures that can prevent those
dangers exceeding the usual risks associated with the execution
of a particular sports event (Možina, 2020, p. 134–135).
Stated differently, the organizer must take safety measures
against all risks that are not typical for the execution of a particular sports activity and clearly visible to the participants and are
such that participants cannot avoid them with average care (VSRS
Sodba II Ips 313/2017, 7. 2. 2019).
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DIGNITAS n Liability for damages in case of sports injuries

The safety measures taken must prevent the danger that can be
reasonably expected. Their intensity depends on the probability
of damage, the extent of the danger, the imminent harm, and the
possibilities and costs of averting the danger (Možina, 2020, p.
134–135).
In this regard, the Supreme Court of the Republic of Slovenia
emphasized that the organizer is not free from the obligation to
organize sports activities in accordance with the standards of
professional care, even if the risk typical for a particular sport
is assumed by the participant themselves (VSRS Sodba II Ips
690/2008, 9. 6. 2011). Nevertheless, these requirements should
not be understood in a way that the organizer must take measures to prevent the occurrence of any accident or injury, as such
a demand would establish the organizer’s objective liability for
all injuries, which would be contrary to the purpose of sports
(VSL Sodba II Cp 1518/2022, 14. 11. 2022). In other words, it is
not the organizer’s duty to arrange the sports activity in a way
that injuries could never occur (VSRS Sklep II Ips 208/2003, 11.
3. 2004). However, measures must be provided to ensure the
safety and protection of spectators, judges, and residents in the
vicinity of the sports facility where the sports activity is taking
place (Možina, 2020, p. 140).
In certain cases, the organizer may also have a duty to alert the
athlete to an impending danger, unless it is obvious or apparent.
Warning beginners and younger athletes about the impending
danger is even more crucial (Možina, 2020, p. 135).
From established Slovenian judicial practice, it can be inferred
that the liability for damages of the organizer towards athletes
is mostly assessed based on the principle of fault, whether for
contractual or non-contractual liability for damages. The organizer’s objective liability for damages arises only exceptionally, i.e.,
in cases where particularly dangerous circumstances exist (VSL
Sklep II Cp 1561/2018, 16. 1. 2019).
It is also crucial to distinguish between cases where an individual voluntarily chooses to engage in a sports activity (recreation and/or entertainment) and cases where participation in or
at a sports activity is mandatory (in school or as part of work
tasks). If an individual engages in sports voluntarily, the organizer
of the sports event can only be held liable for damage resulting
from their negligence. In such cases, the organizer is not liable for
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damage caused by the inherent risks of the sport (VSL Sodba I Cp
641/2020, 4. 11. 2020).
Participants who voluntarily join an association engaged in a
dangerous sport accept the dangers, risks, and the possibility of
damage. Consequently, an association involved in a dangerous
sport cannot be held objectively liable for the damage but only
for negligence. In one of the cases, the sports club was not held liable for damages when the plaintiff suffered catastrophic injuries
resulting in tetraplegia during the landing phase of a parachute
training jump. The sole reason for plaintiff’s fall upon landing was
her sudden loss of consciousness while maneuvering before the
landing, which no one could have anticipated (VSRS Sodba II Ips
222/2005, 26. 4. 2007).
The communicative significance of the cited decision of the
Supreme Court of the Republic of Slovenia is that the positive
aspects of a sports activity, even if it is dangerous, outweigh the
risks associated with it, and the operator of the activity assumes
these risks. The operator, defined as someone with an interest
in the positive aspects of the activity, is considered the bearer of
the activity. This is also linked to the voluntary participation or
engagement in this activity. Nonetheless, this by no means implies that voluntary participation in a (sports) activity excludes
the operator’s liability for negligence (VSRS Vmesna sodba II Ips
110/2021, 1. 12. 2021).
When assessing the liability of a coach, it is necessary to consider that coaching requires professional knowledge, and coaches are expected to act with a higher due diligence, namely, with
professional diligence or the care of a good expert. Due to the
constant development of sports, coaches must continually update
their knowledge, as neglecting such conduct could jeopardize
athletes or expose them to unpredictable risks. In this regard, it
can be concluded that the expected standard of conduct from a
coach is dynamic and depends on the experience, abilities, and
age of the individual athlete. Coaches are expected to exercise
supervision over athletes, provide them with appropriate instructions, ensure the safe use of sports equipment, and, in the event
of injuries, provide suitable and prompt medical care. It is also the
coach’s responsibility to prevent injured athletes from participating in sports activities, whether during training or competition
(Zuljan, 2022, p. 65).
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In connection with the question of the coach’s duty of care in
team sports, the Supreme Court of the Republic of Slovenia emphasized that such duty arises only when the athlete’s behaviour
deviates from the normal and customary aspects of the sports
game, which a coach could have prevented through vigilant observation (VSRS Sodba II Ips 788/2008, 30. 9. 2010).
In this regard, the Higher Court in Ljubljana concluded that the
omission of the coach’s duty was not established in a case where,
before the start of judo practice, another participant in the judo
junior class ran past one of the judokas and pushed him, causing
him to collide headfirst with the victim’s nose. The court reached
this decision because the coach managed to prove that he had
been observing the children throughout the time (they were not
running uncontrollably in the gym), but despite that, he could
not have prevented the harmful event as he was not obliged to
anticipate it (VSL Sodba I Cp 1635/2010, 9. 6. 2010).
Slovenian courts have addressed the evaluation of a coach’s
due diligence over several years in a case involving an injury to
a ski jumper. The injury occurred when the ski jumper, following the coach’s instructions, took off from a higher starting point
(compared to previous jumps) during the last jump of the first
training session of the new season. Consequently, he jumped too
far and, upon landing, suffered injuries to the ligaments of his
right knee due to excessive forces. In the end, an interim judgment was issued, which became final, establishing the basis for
full (100%) liability for damages because the coach’s conduct was
deemed professionally unfounded. This conclusion was reached
by the first-instance and second-instance courts based on expert
opinion, which indicated that the coach’s actions were inconsistent with professional standards. The appellate court added that
proper training planning is one of the most critical aspects of
the competitive sports process (VSL Sodba II Cp 1785/2020, 6. 1.
2021).
As mentioned earlier, it is necessary to distinguish between
cases where an individual voluntarily decides to engage in a
sports activity (recreation and/or entertainment) and cases where
participation in or attendance at a sports activity is mandatory
(school, professional activity). Thus, Slovenian judicial practice
has repeatedly dealt with assessing unlawfulness when an injury
occurred during the performance of work duties or at school, and
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when the sports activity was organized either by the employer or
an educational institution. In connection with this, the question
of the objective liability of the organizer arises. Slovenian judicial
practice has addressed this issue in several cases.
For example, in the case of an employee’s injury during a basketball game played by employees as part of practical training
in martial arts (within the scope of regular work duties), the employer’s liability was not established (VSRS Sodba II Ips 760/2005,
31. 1. 2008). The same decision was taken in the case of a police
officer’s injury during self-defence skills training as part of an exercise within the police officer’s educational process. The court
justified its decision by stating that the injured party was familiar
with the execution of the exercise, having performed it several
times before. Additionally, he chose his sparring partner himself,
and the training took place after the warm-up and under the supervision of the instructor (VSL Sodba II Cp 2293/2009, 21. 10.
2009).
A diametrically opposite decision was made in a case where
the injured party (a police candidate) was harmed during the
execution of a martial arts exercise that he was not familiar with,
and it was not practically presented to him, even though he was
performing it for the first time. The decision regarding objective
liability was justified by stating that, in this specific case, it did
not involve an experienced fighter, or an individual engaged in
martial arts for an extended period. Therefore, the specific situation had to be treated differently. In this particular instance, the
activity was deemed unpredictable and dangerous because the
injured party was performing the exercise for the first time, which
was unfamiliar to him, and he lacked experience or knowledge of
martial arts; therefore, the objective liability of the employer was
established (VDSS Sodba Pdp 1376/2010, 11. 3. 2011).
The same decision was reached in cases where a soldier was
injured during the execution of an exercise on a combined (gripping) climbing frame, popularly known as »Tarzan.« In this regard,
the established Slovenian judicial practice holds the view that this
exercise is considered a dangerous activity due to the height of
the obstacle and the way it is overcome, especially if the bars are
wet (VDSS Sodba Pdp 35/2014, 20. 2. 2014).
In assessing the liability for damages of the school or teacher,
the courts must first determine the cause of the damage. They
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must assess whether the damage is either the result of any unlawful conduct or the failure to perform the required actions by
the teacher (acting with insufficient care), or it is the result of an
unfortunate accident (Mandič, 2019, p. 8).
The school must organize classes and sports activities to prevent harm to participants and instructors, adhering to the principle of “neminem leadere” (VSRS Sodba II Ips 487/98, 26. 5. 1999)
and acting in accordance with the rules of the profession, customs, and the diligence of a good professional (VSRS Sodba II Ips
299/2002, 19. 2. 2003).
The school must organize classes and a teacher must exercise
careful supervision over students in their work, with the intensity
of supervision varying according to the age of the students or pupils. The level of supervision that teachers must provide is highest
in the first three years of schooling and gradually decreases thereafter. In high schools, it should be such that teachers, through
their occasional presence, clearly communicate to students that
they are not left to themselves or allowed to exceed the limits
of what is permitted. Complete abandonment of supervision is
never allowed (Mandič, 2019, p. 9).
Careful supervision represents a legal standard that needs to
be filled with the use of substantive law, thus determining, from
case to case, how a prudent teacher would act in a specific situation (VSRS Sodba II Ips 741/2006, 12. 7. 2007). In doing so, it is essential to consider that it would be excessive and contrary to the
fundamental goals of the educational process to demand from
educators the implementation of overly strict supervision. In such
cases, educators might begin to avoid activities that are unpredictable yet essential for the healthy psychophysical development of
children (Mandič, 2019, p. 8).
Consequently, when fulfilling the legal standard of careful supervision, it is necessary to seek a balance between the demand
for ensuring the safety of children and the need to structure the
educational process in a way that allows children a certain level
of autonomy based on their age and abilities (VSRS Sodba II Ips
238/2011, 21. 3. 2013). Implementing excessive supervision could
negatively impact the personal development and upbringing of
children (Mandič, 2019, p. 8).
While the injured party can seek compensation directly from
the teacher if they can prove that the teacher intentionally caused
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the damage (OZ, Article 147, Paragraph 2), generally, the school,
as the teacher’s employer, is liable for damage incurred by students due to the teacher’s unlawful actions or insufficient care,
unless it can be proven that the teacher acted appropriately in the
given circumstances (OZ, Article 147, Paragraph 1).
This was demonstrated in the case of a student’s injury during
a football game on an asphalt playground when a violation occurred against him during physical education class, leading to his
fall and a broken arm. In this specific instance, the court concluded that the teacher could not have prevented the injury through
more careful supervision, given that football is a sport involving
physical contact, is highly unpredictable, and injuries are difficult
to avoid (VSRS Sodba II Ips 414/2006, 9. 10. 2008).
On the contrary, the school’s liability for damages was established in a case where a student was injured during a sports day
involving ice-skating. At that time, other skaters were also on the
ice rink, behaving recklessly and disturbing the students on the
sports day. Consequently, the accompanying teachers should
have either demanded that the rink operator remove the dangerous skaters from the rink or relocated the students away from the
rink, as they are expected to act with greater care, equivalent to
that of a good professional. However, they failed to take any of
these actions (VSRS Sodba II Ips 299/2002, 19. 2. 2003).
The failure of careful supervision was also determined in a
case where a student was injured during physical education class,
specifically when falling from gymnastics parallel bars. According to the court, the physical education teacher should have anticipated that, without his presence, assistance, and supervision, a
fall from the gymnastic equipment could occur. He should have
expected it and consequently organized physical education class
accordingly. In this particular case, it was found that although the
physical education teacher provided instructions to the students
regarding the exercise, he did not supervise the execution or was
present during the exercise, as he was evaluating other students
on the opposite side of the gymnasium. Consequently, the school
was found liable for the damages incurred by the student (VSRS
Sodba II Ips 668/2007, 23. 7. 2009).
A different standpoint, asserting that the school is not liable for
damages, emerged in a case where a student was injured while
jumping from playground equipment. The injured party accused
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the school of negligence, contending that the teachers should
have even prohibited her from using the playground equipment.
The courts determined that the injured party had received warnings about using the playground equipment that, given her age,
she was capable of understanding and should have heeded. Furthermore, the courts found that the injured party had used the
playground equipment, which was not inherently dangerous, on
multiple occasions before. The present teachers had monitored
it through collaborative supervision at an appropriate distance,
evident from their prompt detection of an awkward landing. The
level of supervision advocated by the injured party, considering
the minimal risk of injury during play in this specific situation,
was deemed excessive by the courts and contrary to the goals
of the pedagogical process (VSRS Sodba II Ips 594/2007, 16. 9.
2010).

5. Liability for damages of managers
of sports parks and sports equipment
For the fault-based liability for damages of the manager of a
sports park and/or sports equipment, it is not necessary for any
legal norm to specifically prohibit or command certain conduct.
The manager’s actions can be unlawful even if their conduct (act
or omission) is generally impermissible (contrary to commonly accepted rules). In these cases, when assessing unlawfulness,
it must be determined whether it was (objectively) foreseeable
that the omission would lead to the occurrence of damage (VSRS
Sklep II Ips 46/2016, 1. 2. 2018). Throughout all of this, it is necessary to consider the general principle of neminem leadere, which,
according to the stance of the Supreme Court of the Republic of
Slovenia, is not so broad that injured parties can invoke it solely
because the damage occurred on sports surfaces intended for a
wider range of users. Consequently, they cannot demand compensation from the owners or managers based solely on this principle. It is entirely normal for various obstacles or devices to be
present on sports surfaces, as they can be an integral or functional
part of them. Users must also expect this and use sports facilities
with the necessary care in a way that ensures their own safety. If
they fail to do so, the actions of the manager or owner are not
considered unlawful (VSRS Sodba II Ips 252/2016, 21. 6. 2018).
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Considering the above, the Higher Court in Ljubljana, in a
case involving an injury during rollerblading in a sports park
(the injured party hit a stone on the asphalt surface, fell, and injured their wrist), upheld the decision of the first-instance court,
which dismissed the injured party’s lawsuit. The court based
its decision on the fact that the occurrence of the damage was
not objectively foreseeable because the manager regularly maintained and cleaned the sports park and periodically inspected it.
Another crucial finding was that the stones on the sports park
were evidently brought there, as the sports park was fenced and
delimited by concrete curbs and greenery, and unquestionably
flawless at all times (except for the critical day). In addition, the
Higher Court in Ljubljana concluded that the injured party, by
using the external asphalt surface, assumed the risk of the asphalt surface being scattered with small stones, a consequence
of the sports park being located in nature. The court criticized
the injured party for not acting diligently, as he did not inspect
the asphalt surface before starting rollerblading (VSL Sodba II
Cp 2555/2018, 8. 5. 2019).
Just like when using a sports facility, the user of fitness equipment must also be attentive and mindful of typical and foreseeable risks. Therefore, according to Slovenian judicial practice,
the duty of the manager of fitness equipment is to ensure safety
measures that go beyond ordinary risk, excluding the provision
of a person who would constantly monitor or control each individual user of fitness equipment. Similarly, the manager of fitness
equipment is not obligated to employ a person with a personal
trainer license (VSC Sodba Cp 192/2013, 29. 8. 2013).
If the occurrence of damage or injury were due to the incorrect
use of fitness equipment, which would be a direct result of the absence of instructions (especially if fitness equipment did not have
labels with information about the manufacturer and instructions
for use) and supervision by the manager of sports equipment, the
latter could be accused of acting with insufficient due diligence
(unless the injury occurred when the participant was not using
the equipment, as in that case, instructions on the correct use of
the equipment and supervision could not prevent the injury). The
same could be concluded if the manager of fitness equipment did
not provide appropriate protective equipment (VSL Sodba II Cp
138/2021, 3. 6. 2021).
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DIGNITAS n Liability for damages in case of sports injuries

Despite the above, the manager of fitness equipment is not
liable for damages that occur to the user of fitness equipment if,
after being informed of the correct use, they still use the fitness
equipment incorrectly or in a manner that exceeds their physical
capabilities (VSRS Sodba in sklep II Ips 187/2011, 20. 3. 2014).
A certain peculiarity exists when it comes to ski area operators, as they bear a specific responsibility to ensure that avalanche protection is arranged on avalanche-prone parts of the ski
slopes. Additionally, they must provide protection for dangerous
areas unsuitable for skiing, secure areas around the pillars of ski
lifts and snowmaking devices. Furthermore, they are required to
safeguard waiting lines in front of ski lifts and organize skiing
programs on connecting, entry, and exit trails. They must also
ensure proper marking and surveillance of the ski slopes, as well
as emergency services or a rescuer with rescue equipment for
smaller ski resorts. Moreover, they should appropriately arrange
and mark the space for the arrival of the rescue vehicle, ensure
an adequate number and equipped supervisors, and provide devices (auditory and visual) to inform skiers that motor vehicles
are used on the ski slopes during operation (ZVSmuč-1, Article 5
Paragraph 1).
In addition to the mentioned responsibilities, ski area operators must conduct safety inspections of the ski slopes before the
start of operation, during operation, and after the end of operation. They should ensure that all trails (including entry and exit
paths) are properly prepared, and the snow surface is appropriately treated with a snow groomer. Surfaces that are not groomed
must be adequately marked and maintained in another suitable
manner. Ski area operators must also develop an emergency response plan for cases of injury or sudden illness on the ski slopes
(ZVSmuč-1, Article 6 Paragraph 1–3).
In simpler terms, ski area operators are obligated to implement
safety measures on the slopes in accordance with the ZVSmuč-1,
professional standards, and common practices (VSRS Sodba II
Ips 1129/2008, 16. 2. 2012). However, this doesn’t mean that skiers can use the ski resort entirely carefree; they must also take
actions to protect themselves and other skiers (VSRS Sodba II Ips
116/2005, 28. 4. 2005).
Contrary to users of the ski area, its operator is generally always liable for damages according to the principles of fault-based
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liability for damages (VSRS Sodba in sklep II Ips 525/92, 17. 2.
1993), i.e., if they act improperly or with insufficient due diligence
when managing the ski area (VSRS Sodba in sklep II Ips 246/2007,
8. 10. 2009). Their liability for damages could only become objective in extremely exceptional circumstances that would transform
the ski area into a hazardous object, which is not inherently the
case (VSRS Sodba in sklep II Ips 525/92, 17. 2. 1993). Similarly,
managing a ski area is not considered a hazardous activity (VSRS
Sodba in sklep II Ips 246/2007, 8. 10. 2009).
The ski area operator can be relieved of liability if they prove
that the skier’s damage occurred without their fault because they
ensured the proper maintenance of the ski area in accordance
with the provisions of the ZVSmuč-1 (VSL Sodba II Cp 358/99,
12. 12. 1999), professional rules, and customs (VSRS Sodba II Ips
1129/2008, 16. 2. 2012).
For damage caused among skiers themselves, the ski area operator is liable for damages only if the skier’s actions that caused
the damage are a result of the operator’s negligence. The operator is not liable for damages resulting from the unauthorized actions of the skiers themselves (VSRS Sodba II Ips 1129/2008, 16.
2. 2012).
The requirements for a properly maintained ski slope cannot
be understood in a way that the ski area operator must eliminate
slippery spots, clumps, ridges, or minor bumps on the slope. The
occurrence of these features is entirely common on ski slopes,
and a skier must expect and adapt their skiing to them. According
to the Supreme Court of the Republic of Slovenia, clumpy remnants from grooming and frozen ridges or depressions on the ski
slope do not pose such a danger that the operator should remove
them or specifically warn skiers about them. Similarly, the ski area
operator is not obliged to provide specific protection, such as a
fence or net, for the strip of untouched snow located next to the
slope, as it does not constitute a hazardous area like a gap. Consequently, when fulfilling the legal standard for the other dangerous
place from the second indent of the first paragraph of Article 1 of
ZVSmuč-1, it must be interpreted restrictively (VSRS Sodba II Ips
661/2007, 10. 9. 2008).
Although ZVSmuč-1 prescribes that the ski area operator must
ensure an adequate number and equipment of supervisors, these
requirements should not be interpreted in a way that the ski area
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operator (through supervisors) must exercise absolute control
over all skiers and snowboarders. It would be excessively strict
and unreasonable to demand that supervisors prevent every unsafe skiing (VSRS Sodba II Ips 1023/2008, 19. 1. 2012) and, in the
case of unsafe skiing, exclude a skier or snowboarder from the
ski slope (VSL Sodba I Cp 1104/2017, 10. 1. 2018).
However, the failure to suspend operations in dense fog or
adverse weather conditions, which are so deteriorated that a skier
cannot follow signs and other participants on the ski slopes, constitutes conduct contrary to the due diligence expected of the ski
area operator (VSRS Sodba II Ips 116/2005, 28. 4. 2005).

6. Conclusion
In light of the above, it can be concluded that the assessment
of unlawfulness in cases of sports injuries could be divided into
two groups, both sharing the commonality that unlawfulness in
sports is more of an exception than a rule.
In sports with an element of combat, only those extreme actions and serious violations of sports rules that clearly deviate
from the criteria of ordinary rule violations for a particular sport
can be considered unlawful.
Such a violation can occur in practice either when the perpetrator intentionally and/or grossly violates sports rules and aims
to cause harmful consequences (injury), i. e, acts with direct intent or when they are aware that their actions can cause harmful
consequences and accept the possibility of their occurrence, but
nevertheless continue with their actions and carry them out with
the thought »whatever happens, happens«, i. e., acts with eventual
intent.
Consequently, in practice, actions in sports with an element
of combat could be defined as unlawful only when the perpetrator acts intentionally (either with direct or eventual intent), as in
sports with an element of combat, a sportsperson, in a practical
sense, cannot »seriously or grossly« violate sports rules merely
through negligent (unintentional) actions.
On the other hand, in individual sports, unlawfulness is established if the athlete violates sports rules even through negligent
behaviour (or omission) or acts contrary to the general prohibition of causing harm (the principle of neminem leadere).
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The basis for the »stricter« treatment of athletes in individual sports undoubtedly lies in the fact that in this type of sports,
physical contact between athletes should not occur in principle.
Consequently, the possibility of injuries due to the actions of another athlete in these sports is considered to be much smaller.
Therefore, in cases of such injuries, they are subjected to a stricter
assessment due to their exceptional nature.
A special position is held in assessing the unlawfulness in the
individual sport of skiing since permissible and impermissible actions in this sport are regulated in the International Ski Federation
rules, which are in Republic of Slovenia largely reflected in Article 23 of ZVSmuč-1. Consequently, the unlawfulness of a skier’s
conduct is already established ex lege if it does not comply with
the provisions of the International Ski Federation rules or, in the
Republic of Slovenia, with the provisions of ZVSmuč-1.
In the context of liability for damages for organizers of sports
events, gatherings, and managers of sports parks and equipment,
the conclusion can be drawn that, in Slovenian judicial practice,
the predominant decisions generally affirm the liability of these
entities for damages to participants or users, relying on the principles of fault-based liability for damages. Nonetheless, it cannot be
unequivocally asserted that the mentioned entities would never
be held liable for damages to participants or users based on the
principles of objective liability for damages.
One could say that the use of rules regarding the fault-based liability for damages of organizers and managers is the norm, while
the use of rules regarding objective liability for damages is the
exception and a rarity in practice. Rules of objective liability for
organizers or managers can only be applied when circumstances
are present that exceed the ordinary for a specific sport and collectively make the sports activity hazardous. Such circumstances
are extremely rare in practice and mostly occur in cases where the
injured party does not voluntarily participate in the sports activity
but rather as part of their work duties. An additional argument in
favour of applying rules of objective liability for damages in such
cases is the circumstance in which the injured party encounters a
specific sports activity for the first time.
When participants voluntarily engage in hazardous (adrenaline) sports activities, the use of rules regarding objective liability for damages is conceptually excluded, and in these cases (in
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adrenaline or dangerous sports), organizers and managers can
be held liable for damages solely based on the principles of faultbased liability for damages.

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IPS.1129.2008.
VSRS Sodba II Ips 313/2017, Vrhovno sodišče Republike Slovenije, 7. 2. 2019, ECLI:SI:VSRS:2019:II.
IPS.313.2017.
VSRS Sodba II Ips 690/2008, Vrhovno sodišče Republike Slovenije, 9. 6. 2011, ECLI:SI:VSRS:2011:II.
IPS.690.2008.
VSRS Sodba II Ips 222/2005, Vrhovno sodišče Republike Slovenije, 26. 4. 2007, ECLI:SI:VSRS:2007:II.
IPS.222.2005.
VSRS Vmesna sodba II Ips 110/2021, Vrhovno sodišče Republike Slovenije, 1. 12. 2021,
ECLI:SI:VSRS:2021:II.IPS.110.2021.
VSRS Sodba II Ips 788/2008, Vrhovno sodišče Republike Slovenije, 30. 9. 2010, ECLI:SI:VSRS:2010:II.
IPS.788.2008.
VSRS Sodba II Ips 760/2005, Vrhovno sodišče Republike Slovenije, 31. 1. 2008, ECLI:SI:VSRS:2008:II.
IPS.760.2005.
VDSS Sodba Pdp 1376/2010, Višje delovno in socialno sodišče, 11. 3. 2011, ECLI:SI:VDSS:2011:P
DP.1376.2010.
VSRS Sodba II Ips 487/98, Vrhovno sodišče Republike Slovenije, 26. 5. 1999, ECLI:SI:VSRS:1999:II.
IPS.487.98.

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DIGNITAS n Sports Law
VSRS Sodba II Ips 299/2002, Vrhovno sodišče Republike Slovenije, 19. 2. 2003, ECLI:SI:VSRS:2003:II.
IPS.299.2002.
VSRS Sodba II Ips 741/2006, Vrhovno sodišče Republike Slovenije, 12. 7. 2007, ECLI:SI:VSRS:2007:II.
IPS.741.2006.
VSRS Sodba II Ips 238/2011, Vrhovno sodišče Republike Slovenije, 21. 3. 2013, ECLI:SI:VSRS:2013:II.
IPS.238.2011.
VSRS Sodba II Ips 594/2007, Vrhovno sodišče Republike Slovenije, 16. 9. 2010, ECLI:SI:VSRS:2010:II.
IPS.594.2007.
VSRS Sodba II Ips 414/2006, Vrhovno sodišče Republike Slovenije, 9. 10. 2008, ECLI:SI:VSRS:2008:II.
IPS.414.2006.
VSRS Sodba II Ips 668/2007, Vrhovno sodišče Republike Slovenije, 23. 7. 2009, ECLI:SI:VSRS:2009:II.
IPS.668.2007.
VSRS Sklep II Ips 46/2016, Vrhovno sodišče Republike Slovenije, 1. 2. 2018, ECLI:SI:VSRS:2018:II.
IPS.46.2016.
VSRS Sodba II Ips 252/2016, Vrhovno sodišče Republike Slovenije, 21. 6. 2018, ECLI:SI:VSRS:2018:II.
IPS.252.2016.
VSRS Sodba in sklep II Ips 187/2011, Vrhovno sodišče Republike Slovenije, 20. 3. 2014,
ECLI:SI:VSRS:2014:II.IPS.187.2011.
VSRS Sodba II Ips 116/2005, Vrhovno sodišče Republike Slovenije, 28. 4. 2005, ECLI:SI:VSRS:2005:II.
IPS.116.2005.
VSRS Sodba in sklep II Ips 525/92, Vrhovno sodišče Republike Slovenije, 17. 2. 1993, ECLI:SI:VSRS:1993:II.
IPS.525.92.
VSRS Sodba in sklep II Ips 246/2007, Vrhovno sodišče Republike Slovenije, 8. 10. 2009,
ECLI:SI:VSRS:2009:II.IPS.246.2007.
VSRS Sodba II Ips 1023/2008, Vrhovno sodišče Republike Slovenije, 19. 1. 2012, ECLI:SI:VSRS:2012:II.
IPS.1023.2008.
VSL Sodba II Cp 2293/2009, Višje sodišče v Ljubljani, 21. 10. 2009, ECLI:SI:VSLJ:2009:II.CP.2293.2009.
VSL Sodba III Cp 3032/2010, Višje sodišče v Ljubljani, 31. 8. 2010, ECLI:SI:VSLJ:2010:III.CP.3032.2010.
VSL Sodba II Cp 2008/2011, Višje sodišče v Ljubljani, 30. 11. 2011, ECLI:SI:VSLJ:2011:II.CP.2008.2011.
VSL Sodba II Cp 1518/2022, Višje sodišče v Ljubljani, 14. 11. 2022, ECLI:SI:VSLJ:2022:II.CP.1518.2022.
VSL sodba II Cp 358/99, Višje sodišče v Ljubljani, 12. 12. 1999, ECLI:SI:VSLJ:1999:II.CP.358.99.
VSL Sodba I Cp 312/2010, Višje sodišče v Ljubljani, 24. 5. 2010, ECLI:SI:VSLJ:2010:I.CP.312.2010.
VSL Sodba I Cp 1635/2010, Višje sodišče v Ljubljani, 9. 6. 2010, ECLI:SI:VSLJ:2010:I.CP.1635.2010.
VSL Sodba II Cp 3900/2010, Višje sodišče v Ljubljani, 20. 4. 2011, ECLI:SI:VSLJ:2011:II.CP.3900.2010.
VSC Sodba Cp 192/2013, Višje sodišče v Celju, 29. 8. 2013, ECLI:SI:VSCE:2013:CP.192.2013.
VSL Sodba I Cp 1486/2013, Višje sodišče v Ljubljani, 2. 10. 2013, ECLI:SI:VSLJ:2013:I.CP.1486.2013.
VSK Sodba I Cp 244/2015, Višje sodišče v Kopru, 2. 9. 2015, ECLI:SI:VSKP:2015:I.CP.244.2015.
VSL Sodba I Cp 1104/2017, Višje sodišče v Ljubljani, 10. 1. 2018, ECLI:SI:VSLJ:2018:I.CP.1104.2017.
VSL Sklep II Cp 1561/2018, Višje sodišče v Ljubljani, 16. 1. 2019, ECLI:SI:VSLJ:2019:II.CP.1561.2018.
VSL Sodba II Cp 2555/2018, Višje sodišče v Ljubljani, 8. 5. 2019, ECLI:SI:VSLJ:2019:II.CP.2555.2018.
VSL Sodba I Cp 641/2020, Višje sodišče v Ljubljani, 4. 11. 2020, ECLI:SI:VSLJ:2020:I.CP.641.2020.
VSL Sodba II Cp 1785/2020, Višje sodišče v Ljubljani, 6. 1. 2021, ECLI:SI:VSLJ:2021:II.CP.1785.2020.
VSL Sodba II Cp 138/2021, Višje sodišče v Ljubljani, 3. 6. 2021, ECLI:SI:VSLJ:2021:II.CP.138.2021.
VSC Sodba Cp 356/2021, Višje sodišče v Celju, 3. 11. 2021, ECLI:SI:VSCE:2021:CP.356.2021.
VDSS Sodba Pdp 35/2014, Višje delovno in socialno sodišče, 20. 2. 2014, ECLI:SI:VDSS:2014:PDP.35.2014.

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DIGNITAS n Naravne nesreče, človekove pravice in okolje: Vloga in obveznosti države ...

Naravne nesreče, človekove pravice
in okolje: Vloga in obveznosti države
in gospodarstva*
Tanja Malovrh, Petra Weingerl,
Gorazd Justinek, Jernej Letnar Černič

Jernej Letnar Černič: Lep pozdrav. Dobrodošli na Akademskem forumu Nove univerze z naslovom »Naravne sreče, človekove pravice in okolje: Vloga in obveznosti države in gospodarstva«.
Današnji akademski forum poteka v okviru Jean Monnet modula
o spoštovanju človekovih pravic v gospodarstvu v Evropski uniji,
ki se s finančno pomočjo Evropske unije že drugo leto izvaja na
Fakulteti za državne in evropske študije Nove univerze. Moje ime
je Jernej Letnar Černič, sem profesor na Novi univerzi. Zahvaljujem
se kolegicam in kolegom, da ste si danes vzeli čas. Z menoj so še
gospa Tanja Malovrh iz podjetja Elum d.o.o., kolegica profesorica
Petra Weingerl z Univerze v Mariboru in kolega profesor Gorazd
Justinek, dekan Fakultete za državne in evropske študije Nove univerze. Tema današnjega foruma so naravne nesreče, ki smo jim bili
priča v začetku avgusta v Sloveniji. V zadnjih tednih je prišlo do
številnih naravnih nesreč od Maroka, Libije in Bolgarije do Grčije.
Povzročene so bile obsežne škode, izgubljena številna življenja. V
Maroku, na primer, je bilo več kot 3.000 smrtnih žrtev, v Libiji še več,
prav tako so poplave povzročile žrtve tudi v Sloveniji. Smrtne žrtve
so bile tudi v Grčiji. Bolgarija je prav tako utrpela izjemno finančno
škodo, ki je prizadela tako običajne ljudi kot gospodarske družbe.
Trenutno je zabeležena škoda, ki so jo sporočile občine, blizu
treh milijard evrov. Gospodarstvo, po drugi strani, poroča o skoraj 300 milijonih evrov povzročene škode, kmetijstvo pa o skoraj
150 milijonih povzročene škode. Poplave so povzročile izjemno
škodo na številnih proizvodnih obratih gospodarskih družb v najbolj ogroženih področjih, ki so doživela obilna deževja. Naj našte*
Uredniško urejeno besedilo Jean Monnet Akademskega foruma Nove univerze, Naravne nesreče,
človekove pravice in okolje: Vloga in obveznosti države in gospodarstva, ki je potekal 25. septembra
2023. Besedilo Akademskega foruma je objavljeno v okviru projekta »Jean Monnet Module: EU Human Rights and Business Law«, ki med 1. oktobrom 2022 in 30. septembrom 2025 poteka na Fakulteti
za državne in evropske študije Nove univerze. Jean Monnet Modul sofinancira Evropska unija.

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DIGNITAS n Utrinek z akademskega foruma

jem nekaj primerov podjetij, ki so utrpela največjo škodo: denimo podjetje Bisol, nato pa tudi podjetje KLS Ljubno, ki poroča o
nekaj deset milijonov evrov visoki škodi. Potem pa tudi podjetje
BSH Hišni aparati, ki je del skupine Bosch, prav tako poroča o
številnih škodnih dogodkih. In ko govorimo o odgovornosti države in gospodarskih družb, se pogosto poraja vprašanje, kje so
meje državne odgovornosti in kje meje odgovornosti gospodarskih družb. Nedavno sem v medijih zasledil izjavo odgovornih iz
podjetja KLS Ljubno, kjer poudarjajo, da je škoda, ki so jo utrpeli,
deloma posledica tega, da država v zadnjih desetletjih ni izvedla
ustreznih preventivnih del za preprečevanje poplav v Savinjski
dolini, kar je privedlo do obsežne škode.
Mogoče začnemo z vprašanjem, kakšne so obveznosti držav
na splošno, da preprečijo naravne nesreče. Kako bi, spoštovani
kolegici in kolega, lahko izpostavili kakšne dobre ali slabe prakse?
Ali morda obstaja tudi kakšna povezava med stopnjo korupcije,
vladavine prava in posledicami naravnih nesreč? Mogoče, če začnemo z vami, gospa Malovrh.
Tanja Malovrh: Vsekakor je tukaj ogromno dejavnikov, ki so
se zgodili ob istem času. Naravne nesreče so bile prisotne v preteklosti in bodo tudi v prihodnje. Vprašanje je kako odreagirati v
takšnih trenutkih. Kot ste že omenili, prizadetih je bilo ogromno
podjetij in družin. Če gledamo iz vidika države, kaj je razlika med
podobnimi naravnimi nesrečami v preteklosti in danes. Govorimo o dogodkih izpred 20, 30 ali celo 100 let. Razlika je to, da imamo tehnologijo, ki nam omogoča predvidevanje naravnih nesreč.
Ne moremo točno vedeti kdaj se bo zgodilo in v kakšnem obsegu,
vseeno pa lahko na podlagi obstoječih podatkov predvidevamo
mogoče rešitve za naprej. Izhajam iz svojega področja dela, ki ne
zajema zgolj pravnega vidika, temveč tudi ustrezne rešitve v dobi
digitalizacije.
Na splošno lahko zaznamo kar nekaj nedelujočih državnih mehanizmov, kot so na primer vidno pomanjkanje ustreznih preventivnih del, neprimerno urbano planiranje, dovoljenja za gradnjo
na lokacijah katere v današnjem času sploh niso ustrezne za gradnjo. Na tem mestu lahko govorimo o korupciji. Če se vprašamo kaj lahko država naredi za naprej, obstaja tu veliko rešitev,
ki temeljijo na tehnologiji, trajnostnih pogledih in sodelovanju
skupnosti pri pripravi urbanih načrtov z namenom zmanjšanja
učinka naravnih nesreč.
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DIGNITAS n Naravne nesreče, človekove pravice in okolje: Vloga in obveznosti države ...

Pogovarjamo se o tem kako lahko preprečimo korupcijo in
učinkovito obvladujemo nastalo situacijo. Kot primer mi pade na
misel razdeljevanje pomoči. V novicah je gospa povedala, da so
ji dostavili štirideset štruc kruha. Ker so zgolj ena družina takšne
količine niso potrebovali, hkrati tudi ni njihova naloga razdeljevati prejete dobrine naprej. To so praktični primeri na katerih
se učimo kako voditi donacije skozi zbirni center ob naravnih
nesrečah. Pa to niso samo poplave, so tudi požari in pa še marsikaj drugega, kar se lahko v bistvu zgodi iz danes na jutri. Takšne
dobre ali slabe prakse so osnova za prihodnja leta, da bo lahko
država bolj učinkovito odreagirala, morda nekatere stvari naredila
preventivno in bo v prihodnje drugače kot je bilo do sedaj.
Jernej Letnar Černič: Ja, res je. Čez čas se tudi obveznosti
države spreminjajo. Tudi če pogledamo nesreče iz zadnjih tednov
po Evropi in Severni Afriki, lahko vidimo različno kakovost odzivov držav, na primer na potres v Maroku ali na naravno nesrečo
v Boliviji, pa tudi v Bolgariji in Grčiji. In če to primerjamo z odzivom naše države, lahko vidimo, da morda v naši državi marsikaj
dobro deluje. Primerjava s temi tremi državami zagotovo ponuja
številne priložnosti za izboljšanje.
Petra Weingerl: Lepo pozdravljeni vsi! Tudi sama se strinjam
s tem, kar je bilo povedano. Idealno bi bilo, da bi preventiva zadoščala in kurativa niti ne bi bila potrebna. Torej da bi zadostoval
dober regulativni okvir skupaj z učinkovitim izvajanjem v praksi,
kar bi zadoščalo za večino primerov. Do kurative pa bi potem
prišlo v izrednih razmerah, kot smo jim bili priča. Zavedati pa
se moramo, da tudi v izrednih razmerah ni vse neprepričljivo. V
takih primerih je ključen regulativni okvir, torej, da se določi odgovorne organe, osebe za vzdrževanje vodotokov, jarkov, cest in
tako dalje. Glede teh zadev naj bi se kar pogosto kršila zakonodaja. V praksi se dogaja, da recimo občine kdaj zamižijo na eno oko.
Današnji članek na spletnem portalu govori ravno o tem, in sicer
o neki inšpekcijski odločbi, ker v občini odpadne vode odtekajo
v kanalizacijsko omrežje, kar seveda povzroča probleme ob večji
količini dežja in tako naprej. Tudi taka neustrezna stanja so prispevala k obsegu škode. Ni dovolj, da so zgolj določena področja
dobro regulirana, kar pri nas verjetno v veliki meri so. Potrebna je
tudi učinkovita implementacija v praksi, da ne prihaja do kršitev.
Kar se kurative tiče, se seveda strinjam s prej povedanim. Imamo
srečo, da imamo res dobro organizirano lokalno raven civilne
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DIGNITAS n Utrinek z akademskega foruma

zaščite in gasilcev. Problemi v praksi, o katerih se pogovarjamo,
so drugačne narave. Ampak kar se tiče neposredne pomoči pri
reševanju življenj in premoženja, glede tega se mi zdi, da imamo
dobro urejeno. Kar se pa tiče drugih vprašanj, glede povrnitve
škode in tako naprej, tu pa lahko pričakujemo določene probleme v praksi.
Če povzamem, kar se tiče obveznosti držav, se mi zdi ključno,
da se regulativni okvir spoštuje in da se torej tudi izvršuje v praksi. Kot drugo pa se mi zdi izjemno pomembno, da se obvešča
deležnike. V tej točki povezujem naravne nesreče s podnebnimi
spremembami in pomenom osveščanja deležnikov. Na primer,
da se jih obvešča o določenih obveznostih, ki jih ima država. V
mislih imam recimo obveznosti glede Nature 2000, o čemer beremo v medijih. Potem recimo obveznosti gospodarskih družb,
trajnostno poročanje itd. Torej neke nove obveznosti, ki jih bo
prinašala zakonodaja. Kar se tiče teh novih obveznosti, ki se nanašajo tudi na prehod na krožno gospodarstvo, gre v bistvu za spremembe navad. Tega pa se ne more vsiljevati, potreben bo dialog,
da se doseže nek družbeni konsenz. Se mi zdi, da je to ključno, da
bomo potem sprejemali te novosti kot potrošniki, kmetje, družbe
itd. No, toliko na kratko, kar se tiče obveznosti držav. Lahko kasneje še kaj dodam. Glede omenjenih tožb – Slovenija še ni bila
tožena individualno v takih primerih, je pa tožena kot članica EU
v zadevi, v katerih šest mladih Portugalcev pred Evropskim sodiščem za človekove pravice toži 32 držav. Imamo tudi že kar nekaj
nacionalnih sodb, v katerih so sodišča že ugotovila, da so bile
države krive za okoljsko škodo, glede prispevanja k podnebnim
spremembam itd. Npr. Nizozemska, Francija, Irska, gre za zelo
zanimiva vprašanja, ampak bi zaenkrat o tem zgolj na kratko.
Jernej Letnar Černič: Ta pravni in normativni okvir je zagotovo pomemben. In tukaj smo znova pri načelu pravne države,
ki ga vedno izpostavljamo v naši državi. Načelo pravne države
in njegovo pomanjkljivo uresničevanje lahko opazujemo v vseh
porah slovenske družbe. Zadnje poplave in analize avgusta letošnjega leta so v bistvu odkrile določene pomanjkljivosti iz prejšnjih desetletij. Če se spomnimo, kaj se je dogajalo v prejšnjih
desetletjih v Zgornji Mežiški dolini, ki je tudi v zadnjih poplavah
utrpela veliko škodo. Poplave so na vrh znova prinesle s svincem
onesnaženo zemljo, ki je še vedno problematična zaradi rudarjenja v Mežiški dolini. Država tam kljub normativnemu okviru in
116

DIGNITAS n Naravne nesreče, človekove pravice in okolje: Vloga in obveznosti države ...

številnim mednarodnim obveznostim ni storila še dovolj, da bi zagotovila učinkovito varstvo pravice do življenja. Hkrati pa ima gospodarstvo v naši državi zagotovo odločilno vlogo; gospodarstvo
je generator dodane vrednosti in tudi rasti v slovenski družbi ter
bolj kakovostnega življenja. Kako vidiš, Gorazd, povezavo med
pravno državo, gospodarstvom in naravnimi nesrečami?
Gorazd Justinek: Ja, hvala lepa Jernej. Lep pozdrav z moje
strani in pohvale za organizacijo. Naj postrežem nekaj podatkov
recimo za izhodišče. To so sicer podatki za prvo polovico letošnjega leta in pa globalno, torej za cel svet. Recimo. Nekako je
ocena škode v ameriških dolarjih približno za 110 milijonov USD
za prvo poletje zaradi naravnih nesreč. Gledano globalno je to
pač neka visoka številka, ampak je treba seveda dati to v kontekst.
kajti, če vzamemo desetletno povprečje, torej teh stroškov za zadnjih deset let, je to bilo približno 98 milijonov. Letos torej odstopa vsaj za 10% od dolgoletnega povprečja. So pa potem tu še
zavarovanja, kjer je mogoče škod zelo natančno izmeriti. Škoda,
ki je bila zavarovana in pri tem ocenjena spet gledamo polovico
letošnjega leta, znaša na globalni ravni 43 milijonov USD. In spet,
če damo to nek relativni kontekst gledano na 10 letno povprečje
je bilo slednje nekje 34 milijonov USD. Tukaj pa se še bolj natančno vidi, saj gre za 30% povečanje, saj gre za čisto konkretne oprijemljive stroške, ki se potem prelijejo tudi v premije in tako dalje,
ki jih potem vsi, ki pač plačujemo zavarovalnine, tako ali drugače
nekako poplačamo.
Stroški so torej bili enormni. Če se spomnimo na ukrepe za
časa Covida, ko so države močno intervenirale v gospodarstvo, so
tudi tam nastali izjemno stroški, kar se pozna v zadolžitvah teh držav. Ob tem pa je potrebno imeti v mislih, da je zgolj v zahodnem
delu sveta bilo tako, torej zgolj cca. 1/8 prebivalstva je bila dežena takih intervencij in ekspanzivne ekonomske politike. Večina
preostalega sveta, v Afriki, Aziji itd., takih ukrepov ni sprejemala.
Daleč od tega, da je to bila praksa, predvsem svetovna. In tudi tele
nesreče, ki se jih našteva v Afriki, Aziji, ne tu. Turčija je npr. poleti
zabeležila ogromen potresa, kjer je nastala tudi ogromna škoda.
In pa še glede civilne zaščite v Sloveniji. Slednja je res dobro organizirana, ker gre tudi za večstoletno tradicijo organiziranosti
prostovoljnega gasilstva pri nas.
Jernej Letnar Černič: Hvala, Gorazd, za te komentarje. Je
pa res, da je gospodarstvo utrpelo obsežno škodo. Škoda je zelo
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visoka, podobno kot v drugih državah. A med podjetji se škoda
razlikuje. Razlikuje se tudi odziv podjetij oziroma utrpela škoda
glede na to, za kakšna podjetja gre – ali gre za srednje velika podjetja ali za majhna. Denimo, če povzamem podatek, podjetje BSH
Hišni aparati, ki je del skupine Bosch, je utrpelo nekaj deset milijonsko škodo. Podjetje, ki je del kolektivne zavarovalne sheme
korporacije Bosch, sploh ni zaprosilo oziroma naj ne bi zaprosilo
za povrnitev dela škode s strani države, medtem ko se večina
drugih podjetij sooča s številnimi težavami pri povračilu škode.
Kot smo omenili, lahko države že prej storijo več pri preventivnih ukrepih. Če vas zdaj vprašam, kakšno vlogo imajo lokalne
skupnosti in gospodarske družbe pri teh preventivnih ukrepih?
Vemo, da so številne industrijske cone zgrajene na območjih, ki
so že desetletja označena kot poplavna, kjer je tveganje za poplave zelo visoko, a so se številna podjetja kljub temu odločila
postaviti proizvodnjo tudi tam. Ta odziv na posledice poplav je
bil najboljši in najhitrejši na horizontalni ravni, ko so se ljudje in
civilno družbene organizacije hitro odzvale na te res grozne posledice. Kako je z vlogo zasebnih akterjev, denimo gospodarskih
družb? Kakšne obveznosti ima morda tudi civilna družba?
Tanja Malovrh: Tu se morda lahko dotaknemo tematike pravičnosti, percepcije okolice, delovanja v lokalni skupnosti, nekih
lastnih prepričanj ali interesov. Mislim, da tukaj ljudje igramo zelo
veliko vlogo kako se bomo odzvali. Vsekakor imamo vrsto primerov dobre prakse, ki jih lahko uporabimo za naprej. Moramo pa
se zavedati, da so se lastniki na lastno pest odločili za takšne tvegane investicije, kjer so bili v ozadju bodisi kratkoročni dobički ali
druge osebne koristi. Na tem mestu se moramo torej vprašati kaj
lahko storimo, da ne bo prihajalo do tega v prihodnje.
Poleg tega se mi je porajalo še eno vprašanje, saj ni vse tako
črno belo kot je predstavljeno v medijih. Poslušamo namreč, da
se dogaja nepravično razdeljevanje državne pomoči. Podjetja kot
ste omenili na eni strani ne potrebujejo pomoči, ker so sposobna
sama sanirati škodo, medtem ko na drugi strani prihaja veliko takšnih, ki pomoči ne dobijo a so mnenja, da so do nje upravičeni.
Kako zastaviti takšen sistem, ki bo pravičen za vse?
Pravičnost ima namreč lahko zelo različne definicije. Če vprašam vsakega izmed vas po definiciji, bo vsak imel svoje mnenje
o tem. Vsak ima svojo osebno ali poslovno zgodbo pri kateri izhaja iz nekih svojih okoliščin, ko si ustvarja definicijo pravičnosti.
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Kako bi torej po vašem mnenju lahko sestavili takšen sistem, ki bo
pravičen za vse in bo v prihodnje pomagal, da se ne bomo znašli
v takšni krizi ali situaciji, ki ne ščiti človekovih pravic?
Jernej Letnar Černič: Drži, težka vprašanja.
Petra Weingerl: Delno, vsekakor nimam namena razviti teorije pravičnosti, ki bo univerzalno veljavna, ampak bi se povezala
s tem, kar ste že malo odprli, tj. zavarovalne premije. Omenjena
družba, ki je bila zmagovalka glede spoštovanja človekovih pravic
v gospodarstvu, je torej to imela urejeno. To je gotovo stvar, ki se
pričakuje, sploh od dobrega gospodarstvenika, da zavaruje svoje
premoženje, pa tudi od dobrega gospodarja, torej tudi vsakega
zasebnega lastnika. Jasno je, da si vsi tega ne morejo privoščiti.
To je druga zgodba, ki se potem rešuje na neki drugi ravni. Druga stvar pa je, da nekateri si to lahko privoščijo, pa mogoče niso
niti vedeli, kaj in kako so zavarovali. In to se je dogajalo recimo
po tej naravni nesreči, ko so ljudje, ki jih poznam, pregledovali
svoje zavarovalne police, in so ugotovili, da imajo v bistvu kritje
za poplavo v višini tisoč evrov, kritje v višini 200.000 evrov bi pa
lahko imeli v bistvu za podobno zavarovalno premijo. Tu je nekaj
odgovornosti tudi na zavarovalnicah, kar se tiče obveščanja in
drobnega tiska. Če imamo sistem, po katerem se premoženjska
škoda lahko zavaruje, je gotovo pričakovano, da se zavaruje, če
se lahko. Toda spet opozarjam na izjeme, ki tega ne zmorejo. Pri
podjetjih se verjetno pričakuje, da se to zmore.
Pomembno je tudi ozaveščanje ljudi in podjetij, da vedo, kaj
je potrebno že preventivno storiti, da se obseg morebitne škode
zmanjša. Informacij je dovolj, v današnjem času morda še celo
preveč, ampak do tistih pravih informacij pa mogoče ne pridemo
ali pa se o njih niti ne sprašujemo, dokler ne pride do nesreče.
Tukaj bi se povsem strinjala z že povedanim.
Jernej Letnar Černič: Se strinjam s teboj, Petra. V našem
okolju se morda tako zasebniki kot tudi poslovni subjekti preveč
zanašamo na odgovornost države, saj bo že bolje poskrbela za vse
nas, če bo šlo kaj narobe. In v teh odzivih na poplave je to moč
videti v različnih korakih, v različnih koncih, enako tudi pri podjetjih. Po eni strani določeni zasebniki pričakujejo, da bo država
povrnila sto in še več odstotkov škode. Ali je pravično, da država
povrne podjetjem škodo v višini 100 odstotkov, zasebnikom, ki
so izgubili hiše, pa na višini 100 odstotkov ali še več? Ali je to
pravično v razmerju do celotnega prebivalstva, celotnih davčnih
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zavezancev v slovenski državi? Lahko se vprašamo, za koliko let
bo naša država izgubila razvojno moč. Strokovnjaki napovedujejo, da bomo izgubili od treh do pet let razvoja. In seveda, če gre
za povrnitev škode, ali se naj država odloči za dodatno obdavčitev pravnih subjektov?. Vprašanje je, kaj je pravično. Zagotovo
načrtovanje pravičnosti poskuša odgovoriti na to vprašanje, kaj
je predmet nekega družbenega konsenza. Seveda pa to mora biti
tudi ustavno skladno, skladno tudi s človekovimi pravicami. Gorazd, mogoče še tvoj komentar glede same odgovornosti gospodarskih družb, oziroma kaj je pravično. Kako mora država oziroma kako morajo gospodarske družbe ravnati pravično v primeru
naravnih nesreč?
Gorazd Justinek: Glede pravičnosti so najbrž ostali sogovorniki bolj kvalificirani, sam pa bom poizkusil zadev osvetliti iz druge perspektive. Tekom covida 19 so države, spet mislimo na naš
del sveta, izvajale zelo ekstenzivno ekonomsko politiko in subvencionirale številne zadeve. Ne bomo se na tem mestu spuščali v
debate, kaj je prav in ne. in kaj bi bilo bolj, saj je vprašanje, kaj pa
bi sploh lahko bil plan b. Je pa to bil nedvomno nek precedens,
da bi države praktično dve leti subvencionirale številne zadeve.
Ampak vsako tako deljenje denarja in subvencioniranje privede
v končni fazi do inflacije, kaj račun se vedno plača na koncu. In
ključno je torej zame vprašanje z vidika pravičnosti, ali je prav,
da država subvencionira delovanje nekega zasebnega podjetja,
račun za to pa bomo plačali vsi ostali, preko višjih zavarovalnih
premij, oz. visoke inflacije.
Je pa tak način politično oportun, saj politika rada deli bombončke in so nasploh obnaša širokogrudno. Ampak kot rečeno,
nobeno kosilo ni zastonj in vedno je na koncu potrebno plačati račun. Ta račun v Evropi plačujemo v obliki visoke inflacije,
predvsem pa ko pogledamo na račun v trgovini ali na položnico
za elektriko itd. Sam se niti ne spomnim, kdaj bi v Evropi beležili
dvomestno inflacijo.
Jernej Letnar Černič: Kdo bo pokril stroške odprave posledic poplave? Do katere mere bo država povrnila te stroške?
Ali bomo škodo krili vsi davčni zavezanci? Ali bo država pokrila
stroške iz svojega premoženja? In še eno od odprtih vprašanj
nove slovenske družbe: Ali bo uveden dodaten davek na dohodnino ali dodatni davki na kapitalske dobičke, dividende in tako
naprej? Ali pa bo država morda uporabila nekaj svojih depozi120

DIGNITAS n Naravne nesreče, človekove pravice in okolje: Vloga in obveznosti države ...

tov, ki jih ima pri Evropski centralni banki? Ali pa morda porabila dobičke nekaterih slovenskih, denimo energetskih podjetij,
ki so bila izjemno uspešna v zadnjih letih, vsaj po prihodkih in
dobičkih? Kakšne obveznosti ima država, pa tudi gospodarske
družbe, da preprečijo podnebne spremembe ali da sprejmejo
preventivne ukrepe? Vemo, da je trenutno v pripravi predlog
novega zakona o energetski politiki, ki, če se ne motim, predvideva zelo visoke cilje tako za gospodarstvo kot za državo, glede
obnovljivih virov energije. To bo res zahtevalo spremembo paradigme. Kot pravi naš anonimni komentator, kako vidite ta prehod in spremembo paradigme tako na strani države kot tudi v
gospodarstvu? Kaj je potrebno, da v Sloveniji resnično preprečimo te hude naravne nesreče? Negativnih podnebnih sprememb
bo verjetno v prihodnosti kar precej, če ne bomo konkretno
spremenili svojega ravnanja.
Tanja Malovrh: Naravnih pojavov ne moremo preprečiti, ker
se bodo zgodili ne glede na naša dejanja. Ne znamo jih popolnoma napovedati, kdaj in v kakšnem obsegu. Kot sem omenila že v
začetku, bodo morala podjetja na nek način ukrepati, da zmanjšajo vpliv na okolje. Zdi se mi, da je to bolj sprememba v razmišljanju. Ali obstajajo posamezniki, ki so kot vodje sposobni vpeljati
to drugačno razmišljanje v podjetje, da je potem tudi celoten tim
pripravljen sprejeti to spremembo?
Kot posamezniki se lahko borimo za marsikatero stvar na tem
svetu, ampak podjetja še vedno predstavljajo velik del okoljskega
onesnaževanja. Lahko si ogledamo ogromno, ne samo dokumentarcev, ampak tudi novic in drugih informacij na spletu, koliko je
dejansko onesnaževanja multinacionalk nenaklonjenim rešitvam
v trajnostno smer. Kljub temu obstajajo izjeme in dobre prakse.
Danes sem recimo prebrala takšen plastičen primer. Proizvajalec LEGO kock je vključil 150 svojih strokovnjakov v razvoj alternativne rešitve izdelave kock iz plastenk. Ugotovili so, da predelana plastika iz plastenk potrebuje določene dodatke, da lahko
zagotovijo kvaliteto in trdnost LEGO kock. Pri tem bi porabili
bistveno več energije kot v obstoječem procesu. Po treh letih razvoja in iskanja različnih kombinacij okolju prijaznih materialov
so tako ugotovili, da s ponovno uporabljeno plastiko ne morejo
doseči želenega rezultata. Pa vendar so se odločili potrojiti svojo
investicijo v razvoj trajnostnih rešitev in nadaljujejo svoja prizadevanja k izboljšavi njihovega procesa.
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Jaz vidim to kot primer iniciative, kjer so pripravljeni narediti
spremembo. Torej v primeru, ko je podjetje pripravljeno investirati v področje trajnosti, se bo dolgoročno sprememba tudi
zgodila. Takšna podjetja je potrebno tudi primerno podpreti. Ne
trdim, da je LEGO podjetje popoln primer, ampak te kocke lahko
večkrat ponovno uporabimo in potujejo tudi v roke naslednjih
generacij. Če bi šli z logiko kock v proizvodnjo drugih dobrin,
ki jih uporabljamo vsakodnevno že v samem začetku procesa, bi
lahko marsikaj izboljšali in razbremenili okolje. Dejstvo pa je, da
so si podjetja različna.
Mi lahko kot posamezniki vplivamo na dogajanje na lokalni
ravni, medtem ko lahko podjetja te spremembe uvajajo bistveno
širše. V nobenem primeru ne moremo preprečiti spremembe v
okolju, saj so se dogajale kot rečeno že v preteklosti in se bodo
tudi v prihodnje. Moramo pa najti mehanizme znotraj posamezne
države in pozvati lokalne skupnosti, da pri tem pomagajo. Predvsem se moramo naučiti spoprijeti s težavami v danem trenutku.
O tem smo razpravljali že med samim pogovorom in podali nekaj
primerov, ki predstavljajo dobro osnovo za prihodnje razmišljanje.
Jernej Letnar Černič: Tudi poseben poročevalec OZN za
razvoj in človekove pravice, Surya Deva, je v svojem letnem poročilu, ki je bilo objavljeno pred nekaj tedni, v bistvu podal enako misel. Podjetja morajo spremeniti svoje poslanstvo. Ne samo
pehanje za dobičkom, temveč tudi spremeniti poslanstvo poslovanja v bolj družbeno odgovorno smer, ki je skladna z okoljem,
človekovimi pravicami in bojem zoper korupcijo. Ja, morda še
Petra in Gorazd, vajino mnenje glede samega poslanstva podjetij
v kontekstu podnebnih sprememb. Kako se lotiti preventivnih
ukrepov?
Petra Weingerl: Se popolnoma strinjam s Tanjo. Posamezniki
imamo glede tega res pomembno vlogo, recimo kot potrošniki,
ki lahko taka podjetja, ki se dejansko trudijo in se odločajo za
trajnostne rešitve, nagradimo. Nagradimo jih tako, da se odločamo za trajnostne rešitve, proizvode, storitve. Pred kratkim je
bila predstavljena nova cargo ladja družbe Maersk, njena botra
je Ursula von der Leyen. Gre za prvo tovorno ladjo na zeleni
metanol. V okviru te predstavitve so povedali, da se velika večina
blaga prevozi z ladjami. Skozi čas bo vse več plovb temeljijo na
zelenem metanolu. Torej mogoče je to en primer, da se podjetja,
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ki se trudijo vpeljevati trajnostne rešitve, pri tem podprejo. Vsi ti
izdelki so za nas potrošnike. Tudi električni avtomobili so za nas.
Na nas pa je, da se odločamo za rešitve, ki so trajnostne.
Jernej Letnar Černič: Ja, drži, ne gre samo za to, so tudi težke odločitve. Če se navežem na ladje, Petra, tudi v Benetkah so
se že pred dvema ali tremi leti odločili, da ne bodo več spuščali
teh velikih križark v center mesta. Zdaj pa te križarke bolj pogosto prihajajo k nam v Koper. Ena križarka, mimogrede, onesnaži
okolje tako, kot če bi se v Koper prišlo 10.000 tovornjakov vsak
dan. Zato so takšne odločitve težke za lokalno skupnost glede
potencialne prihodke, dodano vrednost, gospodarsko rast in razvoj lokalne skupnosti. Niso lahke odločitve, a zagotovo se lahko
strinjamo s tabo, da se vse začne pri vsakem izmed nas. Gorazd,
izvoli.
Gorazd Justinek: Ja, hvala za to zanimivo debato. Če se navežem na trajnost o kateri je Tanja govorila. Pred časom sem bil presenečen, da so npr. prenehali polniti Donat v steklenice, saj da je
polnjenje v bio plastiko bolj trajnostno. Torej bolj okoljsko sprejemljivo, kot pa uporaba steklenic. To me je presenetilo. Podobno
je tudi z električnimi avtomobili. Na prvo žogo res deluje to bolj
okoljsko sprejemljivo, ampak tudi elektrika mora od nekod priti.
In v Sloveniji je to primarno ali nuklearka ali pa termoelektrarna.
Globalno pa bi na tem področju morala več storiti mednarodna skupnost, v prvi vrsti z OZN na čelu. Res smo sprejeli milenijske cilje in potem še SDGje, ampak organizacija kot je OZN
bi morala tukaj prevzeti vodilno vlogo, saj so učinki podnebnih
sprememb in okoljskih vidikov mednarodni in čezmejni. Če se
samo spomnim pred leti, ko je na Štajerskem poplavljala Drava,
ker so v Avstriji povečali njen pretok itd. Skratka, večja vloga mednarodne skupnosti je potrebna.
Jernej Letnar Černič: Ja, res. OZN ima pomembno vlogo. V
zadnjih dneh smo lahko spremljali govore generalnega sekretarja Guterresa, ki je govoril v tej smeri, a sam ne more spremeniti
situacije. OZN je bolj telo, ki ustvarja javne politike. Potrebno je
tudi na terenu storiti korake naprej. V osrednji Sloveniji smo denimo pred težko odločitvijo glede izgradnje nove sežigalnice v
Ljubljani. Hvala lepa, dragi kolegici, dragi kolega, hvala za vaš čas,
pa tudi občinstvu, da ste ste nas poslušali.

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DIGNITAS
SLOVENIAN JOURNAL OF HUMAN RIGHTS
EDITORIAL POLICY

1 ABOUT
Scientific Journal Dignitas – Slovenian Journal of Human Rights
aims to publish original scientific articles and short case notes on
constitutional and international human rights law. It occasionally also publishes concise translations of critical judgments of the
European Court of Human Rights of the Council of Europe, especially those regarding the claims of Slovene complainants, legal
commentaries on decisions of the European Court of Justice, key
documents, studies, opinions, and conclusions of the European
Commission for Democracy through Law (Venice Commission),
general information about important events in the area of human
rights protection in Slovenia and internationally.
The Journal aims to publish three yearly issues with 5 to 7 scientific articles in each issue. Scientific magazine Dignitas is a part
of the international IBZ base.
2 EDITORIAL TEAM
Editor-in-Chief
Jernaj Letnar Černič, Ph.D. (New University, Slovenia)
Managing Editor
Marko Novak, Ph.D. (New University, Slovenia)
Journal Manager
Sebastjan Svete (New University, Slovenia)
Associate Managers
Matej Avbelj Ph.D. (New University, Slovenia)
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Darko Darovec Ph.D. (New University, Slovenia)
Boštjan Brezovnik Ph.D. (New University, Slovenia)
dr. Jaroslaw Kostrubiec Ph.D. (jMaria Curie-Sklodowska University, Faculty of Law and Administration)
Michal Radvan Ph.D. (Masaryk University, Faculty of Law)
Istvan Hoffman Ph.D. (Eotvos Lorand University Budapest, Faculty of Law)
Head of the Editorial board
Peter Jambrek, Ph.D. (New University, Slovenia)
Editorial board
1. Ludwig Adamovich (former judge of the European Court of
Human Rights)
2. Gudmundur Alfredsson (Ph.D., Stefansson Arctic Institute)
3. Sergio Bartole (Ph.D. (University of Trieste, Italy)
4. Elena D’Orlando (Ph.D. (University of Udine, Italy)
5. Oliver De Schutter (Ph.D. (Catholic University of Louvain,
Belgium)
6. Eduardo Ferrer Mac-Gregor Poisot (Ph.D. (Judge, Inter-American Court of Human Rights, Costarica)
7. Carlos A. Gabuardi (Ph.D. (University of Monterrey, Mexico)
8. Daniel Halberstam (Ph.D. (University of Michigan, United
States)
9. Mahulena Hofmann (Ph.D. (University of Luxemburg,
Luxemburg)
10. George Katrougalos (Ph.D. (University of Bern, Switzerland)
11. Peter Krug (Ph.D. (University of Oklahoma, United State)
12. Mattias Kumm (Ph.D. (Berlin Social Science Centre, Germany)
13. Fozia Lone, Ph.D. (Ph.D (City University, Hong Kong)
14. Paul Mahoney (former Judge of the European Court of Human rights
15. Ruslan Myrzalimov (Ph.D. (Parliament of the Republic of
Kyrgyzstan)
16. Tomiyuki Ogawa (Ph.D. (University of Tohoko, Hapan)
17. Miguel Poiares Maduro (Ph.D, Catolica Global School of
Law, Italy)
18. Wojciech Sadurski (Ph.D. (University of Sydney, Australia)
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19. Herman Schwartz (Ph.D. (American University Washington
College of Law)
20. László Sólyom (former Judge of the Hungarian Constituional
Court)
21. Brigit Toebes (Ph.D. (University of Bern, Switzerland)
22. Axel Tschentscher ((Ph.D. (Riga Graduate School of Law, the
Netherlands)
23. Ineta Ziemele (Ph.D. (Riga Graduate School of Law, the Netherlands)
24. Giuseppe Martinico (Ph.D. (Sant‘Anna School of Advanced
Studies, Italy)
25. Daniel Augenstein (Ph.D. (University of Tilburg, the Netherlands)
26. Tara Van Ho (Ph.D. (University of Essex, UK)
3 ARTICLES
The journal publishes original articles and short notes on recent case law. Each original scientific article must have a title, abstract, and keywords in Slovenian and English.
4 PEER REVIEW PROCESS
All the articles submitted to the Dignitas – Slovenian Journal
of Human Rights are peer-reviewed in double-blind form by two
anonymous peer reviewers. The Editorial Board will inform the
authors of the results of the reviewers‘ and editors‘ work on the
text in due time. The Editors reserve the right to make necessary
adjustments to the text according to the propositions and standards of the English language.
5 PUBLICATION FREQUENCY
Dignitas – Slovenian Journal of Human Rights is published
three times per year (in February, June and October).
6 PLAGIARISM DETECTION
New University is a member of the CrossCheck plagiarism detection initiative. In cases of suspected plagiarism CrossCheck report
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is available to editors of Dignitas – Slovenian Journal of Human Rights to detect instances of overlapping and similar text in submitted manuscripts. CrossCheck is a multi-publisher initiative allowing
the screening of published and submitted content for originality.
7 PUBLICATION ETHICS AND PUBLICATION MALPRACTICE
STATEMENT
For all parties involved in the act of publishing (the author, the
journal editor(s), the peer reviewer, and the publisher) it is necessary to agree upon standards of expected ethical behavior. The
ethics statements for Dignitas – Slovenian Journal of Human Rights are based on the Committee on Publication Ethics (COPE)
Best Practice Guidelines for Journal Editors.
8 EDITOR RESPONSIBILITIES
8.1 Accountability

The editor of a peer-reviewed journal is responsible for deciding which articles submitted to the journal should be published, and, moreover, is accountable for everything published in
the journal. In making these decisions, the editor may be guided
by the policies of the journal’s editorial board as well as by legal
requirements regarding libel, copyright infringement, and plagiarism. The editor may confer with other editors or reviewers when
making publication decisions. The editor should maintain the
integrity of the academic record, preclude business needs from
compromising intellectual and ethical standards, and always be
willing to publish corrections, clarifications, retractions, and apologies when needed.
8.2 Fairness

The editor should evaluate manuscripts for intellectual content
without regard to race, gender, sexual orientation, religious belief,
ethnic origin, citizenship, or political philosophy of the author(s).
The editor will not disclose any information about a manuscript
under consideration to anyone other than the author(s), reviewers
and potential reviewers, and in some instances the editorial board
members, as appropriate.
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8.3 Confidentiality

The editor and any editorial staff must not disclose any information about a submitted manuscript to anyone other than the
corresponding author, reviewers, potential reviewers, other editorial advisers, and the publisher, as appropriate.
8.4 Disclosure, conflicts of interest, and other issues

The editor will be guided by COPE’s Guidelines for Retracting
Articles when considering retracting, issuing expressions of concern about, and issuing corrections pertaining to articles that have
been published in Dignitas – Slovenian Journal of Human Rights.
Unpublished materials disclosed in a submitted manuscript
must not be used in an editor’s own research without the express
written consent of the author. Privileged information or ideas
obtained through peer review must be kept confidential and not
used for personal advantage.
The editor is committed to ensuring that advertising, reprint or
other commercial revenue has no impact or influence on editorial
decisions.
The editor should seek to ensure a fair and appropriate peer review process. Editors should recuse themselves (i.e. should ask a
co-editor, associate editor or other members of the editorial board
instead to review and consider) from considering manuscripts in
which they have conflicts of interest resulting from competitive,
collaborative, or other relationships or connections with any of
the authors, companies, or (possibly) institutions connected to
the papers. Editors should require all contributors to disclose relevant competing interests and publish corrections if competing
interests are revealed after publication. If needed, other appropriate action should be taken, such as the publication of a retraction
or expression of concern.
8.5 Involvement and cooperation in investigations

Editors should guard the integrity of the published record by
issuing corrections and retractions when needed and pursuing
suspected or alleged research and publication misconduct. Editors should pursue reviewer and editorial misconduct. An editor
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plaints have been presented concerning a submitted manuscript
or published paper.
9 REVIEWER RESPONSIBILITIES
9.1 Contribution to editorial decisions

Peer review assists the editor in making editorial decisions and,
through the editorial communication with the author, may also assist the author in improving the manuscript.
9.2 Promptness

Any invited referee who feels unqualified to review the research reported in a manuscript or knows that its timely review will
be impossible should immediately notify the editor so that alternative reviewers can be contacted.
9.3 Confidentiality

Any manuscripts received for review must be treated as confidential documents. They must not be shown to or discussed with
others except if authorized by the editor.
9.4 Standards of objectivity

Reviews should be conducted objectively. Personal criticism of
the author is unacceptable. Referees should express their views
clearly with appropriate supporting arguments.
9.5 Acknowledgement of sources

Reviewers should identify relevant published work that has not
been cited by the authors. Any statement that an observation, derivation, or argument had been previously reported should be accompanied by the relevant citation. A reviewer should also call to
the editor‘s attention any substantial similarity or overlap between the manuscript under consideration and any other published
data of which they have personal knowledge.
9.6 Disclosure and conflict of interest

Privileged information or ideas obtained through peer review
must be kept confidential and not used for personal advantage.
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Reviewers should not consider evaluating manuscripts in which
they have conflicts of interest resulting from competitive, collaborative, or other relationships or connections with any of the
authors, companies, or institutions connected to the submission.
10 Author Responsibilities
Reporting standards Authors reporting results of original research should present an accurate account of the work performed
as well as an objective discussion of its significance. Underlying
data should be represented accurately in the manuscript. A paper
should contain sufficient detail and references to permit others
to replicate the work. Fraudulent or knowingly inaccurate statements constitute unethical behaviour and are unacceptable.
10.1 Originality and Plagiarism

The authors should ensure that they have written entirely original works, and if the authors have used the work and/or words of
others that this has been appropriately cited or quoted.
10.2 Multiple, redundant or concurrent publication

An author should not, in general, publish manuscripts describing essentially the same research in more than one journal or
primary publication. Parallel submission of the same manuscript
to more than one journal constitutes unethical publishing behaviour and is unacceptable.
10.3 Acknowledgment of sources

Proper acknowledgment of the work of others must always be
given. Authors should also cite publications that have been influential in determining the nature of the reported work.
10.4 Authorship of a manuscript

Authorship should be limited to those who have made a significant contribution to the conception, design, execution, or interpretation of the reported study. All those who have made significant contributions should be listed as co-authors. Where there
are others who have participated in certain substantive aspects
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of the research project, they should be named in an Acknowledgement section. The corresponding author should ensure that all
appropriate co-authors (according to the above definition) and
no inappropriate co-authors are included in the author list of the
manuscript and that all co-authors have seen and approved the
final version of the paper and have agreed to its submission for
publication.
10.5 Hazards and human or animal subjects

If the work involves chemicals, procedures or equipment that
have any unusual hazards inherent in their use, the authors must
clearly identify these in the manuscript.
10.6 Disclosure and conflicts of interest

All authors should disclose in their manuscript any financial or
other substantive conflicts of interest that might be construed to
influence the results or their interpretation in the manuscript. All
sources of financial support for the project should be disclosed.
10.7 Fundamental errors in published works

When an author discovers a significant error or inaccuracy
in his/her own published work, it is the author’s obligation to
promptly notify the journal’s editor or publisher and cooperate
with them to either retract the paper or to publish an appropriate
erratum.
10.8 Publisher’s Confirmation

In cases of alleged or proven scientific misconduct, fraudulent
publication or plagiarism the publisher, in close collaboration
with the editors, will take all appropriate measures to clarify the
situation and to amend the article in question. This includes the
prompt publication of an erratum or, in the most severe cases, the
complete retraction of the affected work.

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