VOL. 3 | ED. 3 October 19, 2015
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LAWYR.IT TEAM Managing Editor Andreia Moraru (LL.M in Public International Law, Leiden University)
Executive Editor Raluca Alexandra Maxim (4th year, Babeş-Bolyai University)
Senior Editors Andrada Rusan (LL.M in International Commercial Arbitration, University of Bucharest) • Alexandru Coraş (4th year, Babeş-Bolyai University) • Oana Cristina Gligan (4th year, Babeş-Bolyai University) • Radu Șomlea (4th year, Babeş-Bolyai University)
Junior Editors Alexandra Mureșan (4th year, Babeş-Bolyai University) • Anamaria Pintea (4th year, BabeşBolyai University) • Ioana Bărăian (4th year, Babeş-Bolyai University) • Mădălina Perțe (4th year, Babeş-Bolyai University) • Mădălina Moldovan (4th year, Babeş-Bolyai University) • Oana Iulia Irimia (4th year, Nicolae Titulescu University in Bucharest) • Raluca TrîncăGăvan (4th year, Babeş-Bolyai University) • Ruxandra Popescu (4th year, University of Bucharest)
PR Managers Adrian Condrașov (4th year, Nicolae Titulescu University in Bucharest) • Delia Cristiana Stamate (4th year, Ovidius University from Constanța) • Dora Maria Demble (4th year, University of Vienna - Juridicum) • Paula Alexandra Ungureanu (4th year, Alexandru Ioan Cuza University in Iași) • Oana Silea (4th year, Ștefan cel Mare University in Suceava)
Legal Researchers Ioana Rațiu (LL.M in European and National Business Law, Babeş-Bolyai University) • Diana Buzilă (LL.M in International and Comparative Business Law, Babeş-Bolyai University) Disclaimer: Given that Lawyr.it is a fully student-run magazine, nothing from its pages should be understood as legal advice of any kind. Any questions about legal assertions, conclusions, sources used or representations made in these pages will be re-directed to the person who made them. If you do want to get in touch with one of the authors, please write to us at editors@lawyr.it at any time.
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EDITOR'S NOTE By Andreia Moraru & Raluca Maxim
New beginnings are always sparked with a mix of overwhelming feelings. The excitement of a new challenge coupled with the desire to rise up to the expectations, and the occasional fear that you will not be able to surpass the difficulties. The new editorial team has experienced all these feelings in the past couple of months, but we can all relax and celebrate now, because the new issue is finally out! We have carefully selected the articles which are published in this issue and we hope that you will enjoy reading them as much as we did. The Domestic section covers a broad area of legal issues, from tax law to military law. You will read in this issue about the motor vehicle taxes, the detention of property, judicial independence, labour conflicts, but also about the status of the military personnel, and sexual crimes against Andreia Moraru minors. The Reflections section features two very interesting opinions on the balance between international law and politics, and the European elections. Last, but not least, the International section brings attention to an intensely debated topic, the states’ consent in international law. In the other sections, you will read, as usual, about the latest Opportunities for law students. You will also read a Report on the Symposium on Reform of Secured Transactions Laws and another one on the Summer University for Continental Law in Paris. This issue features two inspiring interviews, one with Prof. Louise Gullifer, and the other with attorney-at-law Monica Moisin. This issue’s question, ‘what represented the turning point in your legal career?’ features very interesting answers from students and practitioners. Lastly, the Debate brings forward a hotly debated topic in international law, whether the United Nations Charter can effectively protect international peace and security from the contemporary threats. We are very proud of the new issue and we can only hope that you will enjoy reading it and find the information included in it useful! We wish you a pleasant read!
It is my pleasure, as the Executive Editor of Lawyr.it, to let you know that, over
the past month, the Lawyr.it team has concluded its transition process, and we are now able to properly welcome our new 30 members: 12 Junior Editors, 12 Legal Researchers, and 6 Regional PR Managers, from across 6 countries in the Central and Eastern European region. Raluca Maxim We are also delighted to be able to let you know that this has been our largest selection process as of yet, with bright, competent, and gifted candidates. We have carried out our assessment based on the added value that each of them was able to bring to the team, as well as their potential to grow within the project. However, the task at hand was far from easy, as all our candidates’ applications deemed them worthy of becoming a Lawyr.it member.
The results of the selection process reflect our strong belief that each of these new members will succeed in making a meaningful contribution to the project’s development, and that the experience will mould and polish them up for their prospective legal careers. Meet our newest members on our page, under the Our Team tab in the menu. Meanwhile, enjoy the read!
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IN THIS EDITION Briefing Summer University for Continental Law - an outstanding legal journey in the City of Lights (p. 8) Symposium on Reform of Secured Transactions Laws – an insightful experience for law students, professionals, and academ (p. 12) Opportunities for law students: what's next (p. 16)
Domestic Focus The motor vehicle taxes in Romanian legislation and the relevant CJEU case law (p. 20) Responsibility without time constraints - about the exclusion of the statute of limitations of certain sexual crimes against minors (p. 22) The Statute of Military Personnel in Romania (p. 26) An overview of judicial independence in Romania (p. 28) The true legal nature of ‘detention’ of property (p. 30)
Reflections Balance between International Law and Politics (p. 36) European elections: why people demand their rights, but do not take the occasion to use them? (p. 39) Special Guest: The case for alternative measures in labour conflict (p. 42)
International Focus Does consent always matter in international law? (p. 48)
Professional Spotlight Interview: Louise Gullifer, Professor of Commercial Law at Oxford University (p. 54) Interview: Monica Bota Moisin, Junior Associate at Biris Goran SPARL (p. 60)
Question of the Issue What was the biggest turning point in your career or during your legal studies? (p. 66)
Devil's Advocate Is the Charter of the United Nations sufficient to cope with the contemporary threats to the international peace and security? (p. 72) 5
BRIEFING
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BRIEFING Summer University for Continental Law - an outstanding legal journey in the City of Lights For this issue of our magazine, we have prepared a special briefing on the Summer University for Continental Law. This summer school took place in Paris, France, in July, and it was organised under the supervision of the Foundation of Continental Law, in partnership with Paris 2 Pantheon-Assas University. The Summer University for Continental Law is focused on preparing students or legal professionals during a three week programme consisting of trainings, courses, conferences, and visits. The courses are offered in English and French, depending on the preference of the attendees. At the end of the programme, students are required to attend the final exam session. Mircea Dan Bob, assistant professor at the Faculty of Law of Babeș-Bolyai University, and a member of the International Scientific Council of the Foundation of Continental Law, is in charge with selecting the applications of Romanian students for the Summer University for Continental Law. The number and the quality of the applications seem to have surprised him this year, as himself confessed. As a consequence, he added, deciding who would participate was quite a difficult task. Professor Bob was also invited to the Summer University, in order to teach the Introduction to Romanist Law Systems course. Professor Bob pointed out that applying for a summer school is highly recommended for any student. ‘Attending summer schools and summer universities is very important for at least two reasons: firstly, because it broadens your horizons, and, secondly, because you are doing something useful from a professional and personal point of view during your summer holiday. While I was traveling abroad to participate in international congresses, for research purposes or as a visiting professor, I noticed how important it is to see how other people teach and how they study. Furthermore, to understand that they are not necessarily smarter or more hard-working, but sometimes they may have
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better life conditions or more resources for their studies. This way, you get to be more open minded: you realise that things are different. Staying only in your home country might distort and limit your perception on the surrounding world. The second reason is related to being active even during the summer holidays, which is very necessary, in my opinion. I believe it is preferable to go to a place where you can combine acquiring knowledge with having fun, which is more useful than staying at home, laying in the sun or spending your time in night clubs. For a law student, the holiday time must consist especially in relaxation, but an active relaxation – a double standard easy to reach by a well organized summer school.’ In order to have a thorough presentation of the Paris Summer University, Lawyr.it has also invited four Romanian students who have participated in this summer school to share their experience. Lavinia Ghenț, Bogdan Prodișteanu, Ștefan Socol, and Sebastian Telecan, are all in the senior year at the Faculty of Law from Babeș-Bolyai University, and this was the first time they participated at a summer university. Why have they chosen the Summer University for Continental Law? There are many reasons for applying to this summer school, probably the most important ones being the types of courses, the location, and the people involved in the programme. Lavinia Ghenț explained that the first thing which drew her attention to this summer school was its location, the beautiful city of Paris. ‘I have chosen this summer school especially for the city and its very rich culture. I was also curious to find out more about the French legal system, which has influenced many other legal systems over the time, including the Romanian one. Furthermore, I have had the possibility to study the subjects in French, which has given me the chance to improve my French language skills. All these added
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to the many enthusiastic recommendations from col- great opportunity for Romanian students to have the leagues who had previously participated at the Sum- chance to study abroad, in the same way that impormer University’. tant Romanian academic figures have done it some time ago. ‘Essentially, it is about traveling to the City For Sebastian Telecan, one of the reasons in choosing of Lights, and participating in lectures in the same this summer school is the fact that it is mostly focused places where Aurelian Ionașcu, Traian Pop and most on private law, his main area of interest. ‘The Foun- of the distinguished Romanian jurists have studied in dation for Continental Law offered me the chance to the last two centuries.’ reflect on some of my knowledge in the field of private law, from a comparative perspective. Another reason Ștefan Socol outlined the fact that there are some was the possibility to study in a different language similarities between the Romanian teaching system than my mother tongue’, Sebastian said. He also added and the teaching method used by the academic staff that, out of all the summer programmes that he had during this summer school. ‘We had to identify differheard about, this one seemed one of the best, in terms ent legal issues, and then solve the problems, the same of its structure, with complex and rigorously sched- as we are taught in law school. However, the major uled activities, comprising not only courses, but also difference lies in the elements of comparative law that conferences and visits to public institutions. we have learned, with regard to continental law issues. Additionally, the programme included an introduc‘Of course, the reputation of the prestigious university tion to some principles of common law.’ of Pantheon-Assas of Paris 2, the chance to meet important professors, such as Michel Grimaldi, and the Sebastian Telecan also noticed that the Romanian lewide range of courses offered were very important in gal education he is familiar with is very much alike making this decision’ said Bogdan Prodișteanu. ‘How- to the teaching approach of Paris Summer University. ever, I believe that participating in any summer school He emphasized that both of them use similar teachand the experience you gain with it are much more ing methods and share some common aspects when it important than choosing a certain summer school”’ comes to evaluating students. he added. However, the international dimension of this sumProfessor Mircea Dan Bob emphasized that it is a mer school seems to set some differences. ‘The Paris
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BRIEFING Summer University for Continental Law - an outstanding legal journey in the City of Lights Summer University is known for its unique teaching methods, as the staff involved in the academic activities comes from different countries and continents. For instance, there were professors from France, Italy, Luxembourg, Switzerland, Colombia, and the USA. Each of them had a different teaching style, combined with very solid knowledge of their legal system and a lot of practical experience as legal professionals’, Sebastian told us. Schedule and structure
the subjects are very useful for any legal professional. The majority of the classes covered aspects of private law, but we also had some connected to public law, such as a subject on administrative law’, said Ștefan. ‘I think that the fact that this summer school is focused more on private law is not that relevant. Probably all participants, including myself, have chosen this summer school mostly for the unique experience, not only for a set of subjects’, said Bogdan.
Sebastian pointed out that the majority of the particiIn spite of the introduction, the Summer University pants were actually legal practitioners of private law in for Continental Law is not only about private law. As their home countries. ‘I could say there have not been all attendees have noticed, the variety of legal subjects that many public law enthusiasts, even though there makes this summer school a perfect way for preparing was a course of Public Contracts.’ any skilled professional, no matter their area of interProfessor Mircea Dan Bob told us that the schedule of est, private or public law. this summer school was very complex. ‘In the mornThe programme consists of two core subjects: (1) The ing, the students attended the lectures, while some of Civil Law Systems in a Comparative Perspective and the afternoons were dedicated to visiting the Cham(2) European and International Contract Law. Addi- ber of Deputies, the Senate, the Supreme Court, or the tionally, students were required to choose four other Constitutional Council’, he said. For sure, the fact that we are discussing about a prominent academic programme might suggest a certain degree of strictness. Nevertheless, the Paris Summer University is widely known for being a very friendly teaching environment. As an example, Bogdan Prodișteanu told us about professor Mauro Bussani, ‘whose friendly way of teaching has really made an impression on me. He has a great sense of humour, he knows how to insert humour into serious moments, in order to create a nice and relaxed atmosphere during classes.’ courses from the following subjects: (1) Settlement of International Disputes, (2) Intellectual property, (3) Family Law, (4) Public Contract, (5) Compared European Civil Liability Law. ‘In spite of the official name of this summer university,
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From our talks with the Romanian students, it seemed that the most popular courses among the participants were the Compared Civil Liability Law course and the Settlement of International Disputes course, with the Intellectual Property subject coming very close behind.
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‘The Comparative Civil Liability Law course was taught in a comparative manner. I liked the fact that it made me more aware of the issues we discussed during the second year of law school, in the Obligations classes. All these added to the analyse of tort liability, specific to common law, which offered us an intereting perspective of general principles of civil liability in the UK, USA or other states with similar legal systems’, Ștefan told us.
Bogdan said that ‘this has been a very rich experience, as I have never had the chance to interact with such a diverse community before. The result: unique and amazing memories.’
Apart from the knowledge gained during the three week summer school, participants have made friends and exchanged thoughts about experiences from their academic background. Lavinia said it was really interesting to find out new things about legal systems from ‘I was a bit disappointed by the Contracts course, as other countries, such as Senegal, Ivory Coast, Tunisia, I felt it was too theoretical and abstract. On the other Colombia, Venezuela, Russia. Lavinia also mentioned side, I enjoyed the Intellectual property course and she made some friends during the Summer University the subject on alternative ways of solving disputes. and that she keeps in touch with them. Moreover, I liked the Comparative Civil Liability Law course, which was excellently taught and raised some very interesting issues that need a solution’, said Bogdan. When it comes to his favourite subjects, Sebastian listed the following as his favourites: Civil Law Systems in a comparative perspective, Comparative Civil Liability Law, International Disputes Resolution, and Intellectual Property. ‘Each of the professors who taught these subjects had a very positive and valuable impact on my experience during the summer school. Not only have I learned many new theoretical things from them, but they were also very kind to share their ‘During this summer school, we socialised with stuexperiences with us.’ dents or practitioners from other countries, we have learned how they study and how they prepare for exUnlike the boys, Lavinia mentioned the European ams’ Ștefan told Lawyr.it. He also added that he keeps and International Contract Law course as her favour- in touch with some of the people he met during this ite one, saying that the interactive way of teaching summer programme. aroused her curiosity. ‘The debate on the reform of contract law in France got my attention. It was a very Conclusions interesting course. We were given different tasks and we had to work in groups to complete them, which After completing the programme, Ștefan realised he wanted to discover new things with regard to comparencouraged us to communicate.’ ative law. Bogdan seemed very enthusiastic about the International profile knowledge he gained during the courses, saying that it gave him a broader perspective regarding his future as Each year, the Summer University of Continental Law a young legal professional. For Lavinia, the Summer brings together students from all around the world, University might be the beginning of another foreign which makes this international experience even more academic experience, as she is now considering to apexciting. The group of students coming from Roma- ply for a master’s degree programme in France. nia joined a community of students and young professionals from over fourty different countries! By Alexandra Mureșan
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BRIEFING Symposium Opportunities onfor Reform law students: of Secured what's Transactions next Laws – an insightful experience for law students, professionals, and academics The Legal Studies department at Central European University hosted on September 25 the Symposium Reform of Secured Transactions Laws – Chinese and European Experiences Compared. This event focused on current reforms of secured transactions law and its global and local perspectives, comparing reforms in European countries as well as in China. The Symposium was organised by the Department of Legal Studies at Central European University (CEU) together with the China-EU School of Law (CESL), which is a unique project and school for China-EU legal education, research and professional training and a platform for dialogue and exchange. CESL is based on an international governmental agreement by between China and the European Union.
ternational organisations.
The timing of this Symposium could not be better given the increasing acknowledgment by states of the influence Secured Transactions law has on economic growth. Countries of the world made several attempts to reform their laws, the reform of Secured Transactions laws becoming one of the top priorities for many national systems on all continents and for various in-
In the context, the symposium tried to offer a thorough overview of the current situation, by inviting some of the most prolific Secured Transactions experts, who flew from all over the world: Prof. Armin Hatje, professor for Public Law and European Law at the University of Hamburg, who opened the conference; Prof. Louise Gullifer, Professor of Commercial Law at Oxford University and the executive director of the Secured Transaction Law Reform Project; Prof. Ignacio Tirado, Professor of Corporate and Insolvency Law at the Universidad Autónoma of Madrid (Spain), Senior Legal Consultant at the World Bank’s Financial Sector Practice and Consultant on insolvency-related matters to the IMF’s Legal Department; Dr. Ole Boeger, Judge at the Landgericht Bremen and the Federal Ministry of Justice as well as for Consumer Protection in Berlin, and member of the drafting team of DCFR Book IX; Drs. Frederic Helsen, PhD researcher at the Institute for Commercial and Insolvency Law at KU Leuven, Belgium; Prof. Yong Wang, professor and director at the Institute of Business Law
Participants during conference
Prof. Armin Hatje
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Debjyoti Ghosh
Albana Karapanço
Dr. Alexandra Horváthová
at the China University of Political Science and Law; Prof. Li Shuguang, the founder and the director of the Bankruptcy Law and Restructuring Research Center, the Executive Dean of the Graduate School of the China University of Political Science and Law (CUPL), and the Deputy Director of Legislative Application Institute of the Supreme People’s Court of China.
Commercial Code, and the English system, to presenting the approach taken by China, specifically with regards to the Secured Transactions reforms undertaken in China so far and the floating charge system in place. The Symposium also offered some insights into the experiences of three major Central and Eastern European countries - Hungary, Romania and Slovakia - that have in the past two decades reformed their Secured Transactions laws. The audience, comprised of The conference also attracted some of the local experts, legal professionals interested in the topics chosen for such as Prof. Attila Menyhárd, Assistant Professor discussion, legal researchers, and young academics, of Civil Law and Head of the Civil Law Department was encouraged to ask questions and make comments at Eötvös Loránd University (ELTE) in Budapest, as after every session, transforming the Symposium into well as Prof. Tibor Tajti, Professor of Law at Central the go-to forum for discussions and debate in the field European University and head of the International of ST reform. Business Law Program, who was in fact the one who initiated and organized the entire event. Moreover, We asked some of the speakers and participants at the two alumni of the CEU Legal Studies department - conference to share from their experience. Alexandra International Business Law stream, Alexandra Hor- Horváthová, SJD in International Business Law in váthová S.J.D. and Cătălin Gabriel Stănescu S.J.D. 2015, talked about the post-1990 Secured Transactions completed the list of speakers with their presentations reforms in Slovakia and chaired one of the discussion on the Slovakian, respectively Romanian recent re- panels. Dr. Horváthová’s central field of interest is the forms in the field. law of finance, including secured transactions, financial regulation and private equity. She considers the The topics covered at the conference varied from ofarea of secured transactions law ‘a dynamic field of fering an overview over the current regional and inlaw that is essential for any economy and we should ternational framework of Secured Transactions Law, continue to try for the most effective regulation.’ by analysing the UNCITRAL solutions, the European Draft Common Frame of Reference, the US Uniform According to Dr. Horváthová, the Symposium was ‘an
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BRIEFING Symposium Opportunities onfor Reform law students: of Secured what's Transactions next Laws – an insightful experience for law students, professionals, and academics excellent opportunity to meet and discuss the novel and former ideas in secured transaction law that have been applied in diverse jurisdictions all over the world. It is always beneficial to meet, analytically dismantle the ideas and subsequently assess them from diverse perspectives. (...) We all left the symposium this year with many stimulating ideas.’
Flying from Tirana particularly for this conference, she found it ‘very valuable’. For her, one of the biggest selling points was the line-up of guests whose presentations explored some of the most challenging aspects of ST laws nowadays: ‘[The Symposium] brought together a panel of distinguished professors from institutions worldwide and it provided an insight of different legal systems. I believe that the presentations The conference was of interest for some of CEU’s and interactive discussions gave food for thought to alumni as well. Albana Karapanço (Albania), CEU attendants interested in the topic.’ Legal Studies graduate of 2015, explained her reasons for attending the conference: ‘During my Master stud- The Symposium was also attended by students whose ies In International Business Law I started having a area of research is not connected to Secured Transacparticular interest in Secured Transactions Law due to tions law, but who considered it to be an opportunity the course taught in the third module. Having in mind to expand their academic horizons. Debjyoti Ghosh the importance of the topic especially for the emerg- (India), SJD Candidate in Constitutional Law without ing markets and the high attention given to the se- any prior knowledge about this field of law, explained cured transactions law reform in many jurisdictions, I how this conference opened new perspectives for decided to attend the Conference.’ him, making him acknowledge the importance of analysing and comparing different frameworks and legal systems. ‘For a novice like me, the conference on Secured Transactions posed a very interesting juxtaposition of different jurisdictions with different yet similar systems and the need for a common frame of reference, much like the way we frame rights within the frameworks of constitutions, while keeping in mind universal rights’ documents. It was extremely interesting and informative, and made me look into secured transactions in India, and how it has been reformed over the years keeping in mind international norms.’ More information about the speakers and conference can be found here. Prof. Yong Wang
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By Ioana Stupariu
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Are you looking for new challenges? Would you like to do something useful and interesting, but you do not know where to look? Check out our
Opportunities section
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BRIEFING Opportunities for law students: what's next November
tember 11, 2015 (for the October issue), November 6, 2015 (for the December issue), January 8, 2016 (for November 1: registration for European So- the February issue), and April 1, 2016 (for the May ciety of International Law Research Forum issue). The Law School at Koç University and the Center for November 5-7: International Law Weekend Global Public Law in Istanbul are calling for papers 2015, New York for the 2016 European Society of International Law (ESIL) Research Forum that will take place during The American Branch of the International Law AssoApril 21-22, 2016. PhD students are expected to write ciation (ABILA) and the International Law Students’ their papers addressing the theme of the making of Association (ILSA) are organising this year’s edition international law. of the International Law Weekend. International Law Weekend 2015 will take place in the beautiful city of The abstracts, which should have no more than 750 New York, awaiting hundreds of academics, diplowords, must be sent to the email address: ESIL- mats, members of the governmental and nongovernRF2016@ku.edu.tr. Along with the abstracts, the ap- mental sectors, as well as foreign policy and law stuplicants must send their name, email address and a dents to discuss about the conference’s theme: Global one-page CV. Problems, Legal Solutions: Challenges for ContempoNovember 2: registration for Telders Inter- rary International Lawyers. national Law Moot Court Competition November 8: Registration for European HuTelders International Law Moot Court Competition, one of the most prestigious and important competition on international law is expecting law students at the 39th edition of the contest that will be held during May 19-26, 2016. The case is about the interception in the Vinous Sea Dispute. The dispute will be put before the United Nations’ most important legal organ, the International Court of Justice. Teams can register until November 2, 2015 November 6: ILSA Quarterly - open call for articles
man Rights Moot Court Competition
The European Law Students’ Association (ELSA) in cooperation with the Council of Europe are organising the fourth edition of the Moot Court Competition on Human Rights. The prizes consist in amounts of money for the first three teams and traineeships at the European Court of Human Rights for the winning team. The contest is open to all law students in ELSA Member Countries as well as the Council of Europe Member Countries.
November 29: Registration for Moot Court Competition on WTO LAW The International Law Students Association invites students to submit articles for publication in the ILSA The ELSA Moot Court Competition (EMC²) on WTO Quarterly. Full length articles, brief articles covering Law is a competition with the aim of helping students current events or developments in international law, develop their written and oral legal skills in the matter interviews with international law practitioners are the of WTO Law. Students from all over the world are inkind of articles that ILSA is waiting for. The authors vited to send their written submissions for both comcan send their articles to this email address: quarter- plainant and respondent of a fictitious case written. ly@ilsa.org After the written preliminary round, the teams will
ILSA Quarterly is published four times a year and have the opportunity to present their oral submission there are four deadlines to submit your article: Sep- for the complainant as well as for the respondent in front of a Panel which consists of WTO and trade law 16 16
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experts.
Registry officials. At the end of the internship, the participants are given a certificate which describes and The final round will be held in Geneva, Switzerland, evaluates the activities performed during the internduring June 7-12, 2016. The online registration is ship. open until November 29, 2015. The teams must send their written submissions until January 24, 2016 at the Internship at the ICC Sales Administration email address: emc2@elsa.org. The Sales Administration unit offers the opportunity December to students willing to complement their studies with a contact with the professional world to acquire a December 31, 2015: Deadline for applica- practical experience in an international organisation. tions for an Internship at the UN Develop- As Sales Administration Interns, students will have ment Programme the opportunity to work across several departments The United Nations Development Programme is of- (Training and Conferences, Publications, and the Infering internships to students interested in gain- stitute of World Business Law). ing experience with the UN. The purpose of the in- The applicants must undertake the application proternship is to serve as a complement to the intern’s cess two or three months in advance. studies. The intern’s duties will include conducting research, writing documents, cataloguing informa- Internships at the Organisation for Secution. The selected intern must speak fluent English, rity and Cooperation in Europe while speaking Russian and Belarusian are an asset. The OSCE is offering unpaid internships from one to This internship is open to students who have com- six months to young people interested in working in pleted at least four years of full-time studies. the organisation’s sphere of interest. Interns can work in one of their offices in Viena, Warsaw, Prague or the December Hague, as well as with the OSCE’s missions in AlbaDecember 31, 2015: Deadline for registra- nia, Armenia, Bosnia & Herzegovina, Croatia, Kotion for International Conference in Rac- sovo, Serbia, Montenegro, Ukraine. Candidates must be in their last year of studies, or fresh graduates, and ism, Nationalism and Xenophobia must speak English fluently. The age limit is 30. An international interdisciplinary conference in Internships at the UNHCR Racism, Nationalism and Xenophobia will be held in Warsaw, Poland this spring between March 17- Internships at UNHCR are on an on-going basis and 18, 2016. Those interested in participation are re- are offered throughout the year, depending on the quested to submit a 300 words abstract of their availability of meaningful assignments and the needs proposed presentation, and a short biographi- and capacity of units/offices to receive and supervise cal note both to Prof. Wojciech Owczarski: wow- interns. There is no deadline for sending in your apczarki1@tlen.pl, and to racismnationalism@tlen. plication form. UNHCR does not provide any finanpl. The conference working language is English. cial support for interns. On-going opportunities
For the internship to be worthwhile and effective, Internships at the International Court of they will normally last no less than two months and no more than six months. Justice Students and post-graduates interested in broaden- More opportunities can be found on www.lawyr.it, in ing their knowledge and improving their professional the Opportunities rubric. skills can apply for internships within the Interna- By Raluca-Andreea Trîncă-Găvan tional Court of Justice. The internships last for one to three months and are done under the supervision of
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DOMESTIC FOCUS
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DOMESTIC FOCUS The motor vehicle taxes in Romanian legislation and the relevant CJEU case law
This paper provides a short
with EU law.
presentation of the Romanian legislation concerning the motor vehicles taxes imposed starting with 2008. In addition, the paper includes a commentary of the most important Court of Justice of the European Union (CJEU) cases regarding the compatibility of the Romanian taxes
In order for the Romanian law to be in compliance with EU law, in January 2012 came into force a new tax, replacing the Government Emergency Order No 50/2008 introducing a pollution tax for motor vehicles with Law 9/2012 which remained in force March 14, 2013. Subsequently, in February 2014 (following to a CJEU order) it is established that the tax from January 2012 was contrary to EU law for the reasons set out below. Starting with March 15, 2013, the Romanian Government replaced the former tax with the environment tax by adopting Order 9/2013. Under the law, this tax should be paid once the first registration in Romania or the first transcription of title, for both new and second-hand motor vehicles, for which no tax was paid at the time of registration. The last CJEU decision on motor vehicles tax was released on April 14, 2015. The CJEU gave its decision in case C-76/14 Manea, stating on the preliminary reference addressed by the Brasov Court of Appeal concerning the interpretation of Article 110 TFEU. The request was made in context of the dispute between Mr. Manea, on one side, and the Prefect’s Institution20
Romania, on the other. The object of the dispute was the payment of a tax for registration in Romania of a second-hand vehicle imported from another Member State. The Brasov Court of Appeal decided to send two questions to the ECJ for a preliminary ruling. First question: ‘Having regard to the provisions of Law 9/2012 and to the subject of the tax provided for under that law, must Article 110 TFEU be interpreted as precluding a Member State of the European Union from establishing a tax on pollutant emissions applicable to all foreign motor vehicles upon their registration in that Member State, but to national motor vehicles upon the transfer of ownership of such vehicles, except where such a tax or a similar tax has already been paid?’. Second question: ‘Having regard to the provisions of Law 9/2012 and to the subject of the tax provided for under that law, must Article 110 TFEU be interpreted as precluding a Member State of the European Union from establishing a tax on pollutant emissions which is applicable, in the case of all foreign motor vehicles, upon their registration in that Member State, but which, in the case of national motor vehicles, is due only on the transfer of ownership of such vehicles, the result being that a foreign vehicle cannot be used unless the tax is paid, but a national vehicle can be used for an unlimited time without the tax being paid, until the ownership of that vehicle is transferred, if such a transfer takes place?’. In other words, the Brasov Court of Appeal was pursuing to establish the compatibility of first registration tax imposed by the Romanian State with Article 110 TFEU (article that prohibits all Member States from imposing on products of the other Member States internal taxation in excess of that imposed on similar domestic products). The second question refers to the possibility for those who paid another tax to be exempted from paying this tax, which was subsequently declared incom-
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patible with EU law.
from introducing a tax on motor vehicles which is levied on imported second-hand vehicles at the time of their first registration in that Member State and on vehicles already registered in that Member State at the time of the first transfer, within that Member State, of the ownership of those vehicles. Furthermore, it shall be interpreted as preventing that Member State from exempting from that tax vehicles already registered and in respect of which a tax previously in force but found to be incompatible with EU law has been paid.
For the purposes of interpretation, the Court considered that it was appropriate to follow the reasoning according to which the tax neutrality must be verified from the point of view of competition between second-hand vehicles imported from another Member State and similar Romanian vehicles, which were registered within national territory without payment of a similar tax. Afterwards, it should be examined the neutrality of that tax as between second-hand vehicles from Member States other than Romania and simi- It is important to mention other CJEU cases conlar second-hand domestic vehicles which were taxed cerning the interpretation of Article 110 TFEU. One when they have registered. of them is C-402/09 Tatu. The Court considered that Article 110 TFEU must be interpreted as precluding In the first case, the conclusion was that neutrality is a Member State from introducing a pollution tax levrespected. The Court considered that the tax burden ied on motor vehicles on their first registration in that resulting from Law 9/2012, as applicable during the Member State if that tax is arranged in such a way that period relevant to the case in the main proceedings, it discourages the placing in circulation in that Memwas the same for taxpayers who had bought a second- ber State of second-hand vehicles purchased in other hand motor vehicle from a Member State other than Member States without discouraging the purchase of Romania and had registered the vehicle in Romania, second-hand vehicles of the same age and condition as it was for taxpayers who had bought a second-hand on the domestic market. motor vehicle in Romania which had been registered there prior to January 1, 2007 and did not have the Another case worth mentioning is C-263/10 Nitax paid. Regarding the tax neutrality in relation to sipeanu, which reinforces previous decision concerncompetition between vehicles from other Member ing the pollution tax. In Case C-565/11 Irimia, the States and similar vehicles already registered in Ro- Court stated that the interest granted on repayment mania that had the tax paid, the Court declared the of a tax levied in breach European Union law must be tax incompatible with EU law. The Court held that the calculated from the day following the date of the claim amount of the tax levied at the time of registration of a for repayment of the tax. motor vehicle is incorporated into the value of that vehicle. In the case of a registered vehicle following pay- To conclude, the first registration tax is compatible ment of a tax in a Member State that is subsequently with EU law according to the interpretation offered by sold as a second-hand vehicle in that Member State, the CJEU in Manea case. On the other hand, some exits market value includes the residual registration tax. emptions were considered incompatible with the EU If the amount of registration tax collected on an im- law. This is the case with the exemption from tax of alported second-hand vehicle of the same type, charac- ready registered vehicles, which were previously taxed teristics and wear exceeds that residual tax, there will under the law, but later exempted from the tax due to be a breach of Article 110 TFEU. the incompatibility of the tax declared by the Court. After considering the reasoning above and the parties’ submissions, the Court stated that Article 110 TFEU shall be interpreted as not precluding a Member State
By Andreea Nicoleta Č˜tefan
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DOMESTIC FOCUS Responsibility without time constraints - about the exclusion of the statute of limitations of certain sexual crimes against minors
O ne
case that sparked public reaction regarding the rules of the statute of limitations is the case of Mr. Pรกl Sipos, a Hungarian former secondary school teacher who involved his students in sexual games many decades ago, but he is not liable now due to the rules of the statute of limitations. His case has had a great media and public resonance and served as a reference for the amendment of the new Hungarian Criminal Code (hereinafter referred to as Criminal Code). While writing this article, we kept two aims in view. Firstly, there are only a small number of professional reactions concerning the amendment of the statute of limitations rules. Therefore, its practical and theoretical background have not been clarified. Secondly, although the constitutionality of this measure cannot be objectionable in our view, several constitutional considerations are worth contemplating related to the amendment. As a preliminary chapter, we will outline the system of sexual crimes. Then, we will continue with the examination of the statute of limitations, especially for sexual crimes against minors. Furthermore, we will provide an international perspective from the issue of liability of perpetrators. Finally, we will highlight certain constitutional concerns raised by the amendment. Chapter XIX of the Hungarian Criminal Code 22
summarises the crimes against sexual freedom and sexual morality (hereinafter referred to as sexual crimes) and contains many new features compared to the previous Hungarian Criminal Code. The majority of the crimes of Chapter XIX is aggravated if the crime is committed against a person under a determined age or made of a recognised position of trust, authority or influence over the victim. In face of the irrebuttable presumption of the previous Criminal Code, the new law defines that the so-called sexual violence with consent (without pressure) also includes the situation in which the perpetrator commits a sexual act with a child under the age of twelve years or forces such person to perform a sexual act (Subsection 2 of Section 197). The sexual abuse occurs if a person over eighteen years of age engages in sexual activities with a person under the age of fourteen years, or persuades such person to engage in sexual activities with another person (Section 198). In any case, it constitutes a remission compared to the previous Criminal Code, because of the increased age of the offender. A sexual intercourse between a seventeen-year-old perpetrator and a thirteen-year-old victim was punished under the previous Code, but it is no longer illegal under the legislation in force. According to our view, this is problematic in several respects. The sexual act against a child under the age of twelve years is always a crime (sexual violence), but if the victim is under the age of fourteen, the offender can be only sentenced if he/she is a major. On the other hand, due to this age limit, certain legal sexual relationship could suddenly become prohibited after the eighteenth anniversary of one of the parties.
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The sexual crimes are of particular importance to the statute of limitations rules. If there was a long lapse of time after committing a crime without knowing the perpetrator, the justification would become difficult and the general principles of the criminal law could not prevail exactly. Therefore, the statute of limitations creates an exemption from criminal responsibility. The related provisions can be examined at three levels. The Criminal Code in force states that the prosecution is barred upon the lapse of time equal to the maximum penalty prescribed, or after not less than five years (Subsection 1 of Section 26). The second level consists of the crimes where the victim’s age is really determining. The Criminal Code, for example, in connection with the sexual crimes, extended the limitation period until the victim reaches the age of twenty-three years. It was later modified by an amendment which expressed that the limitation period begins to run when the victim has reached the age of eighteen. The third level is about the exclusion of the statute of limitations, so there is no time limit for punishing the defendant of certain crimes. According to the Criminal Code, there is no statute of limitations applied to the crimes against humanity, the war crimes and to the crimes carrying a maximum penalty of life imprisonment (Subsection 3 of Section 26). In September 2014, Ms. Gabriella Selmeczi and Mr. Erik Bånki, both members of the Hungarian Parliament, submitted a motion to prevent the lapse of punishments for sexual crimes towards minors. The Parliament unanimously approved the amendment and it was published. Finally, one of the three proposed cases has been added to the crimes which are not subject to the statute of limitations and in light of this, the special rule of limitation has been modified. We must emphasise that the new law is applied to the crimes which have been committed after its entry into force, so it cannot be applied to the crimes com-
mitted before December 21, 2014. Actually, the exclusion of the statute of limitations will be relevant only after years or decades. Nevertheless, the deterrent effect of the law may be already noticeable for the potential perpetrators. Articles 19 and 34 of the United Nations Convention on the Rights of the Child highlight that States Parties shall take all appropriate measures to protect children from all forms of exploitation, including sexual abuse. The Convention has already been ratified by all members of the United Nations (except the United States). Hereinafter, we will present several examples of relevant legislation from different countries. As reported by TheOpinionSite.org (2015), in Britain, there is no statute of limitations for serious sexual crimes. The Polish Criminal Code states that if the victim is underage (under the age of eighteen years) and he/she is a victim of a specific crime (including sexual crimes), the statutory period starts at the age of thirty of the victim. Piquet (2014) argues that in May 2014, the French Senate initiated the extension from twenty years to thirty years (from the date the child reaches the age of majority) of the period of limitations of serious sexual crimes against minors. In December 2014, the deputies of the National Assembly rejected the proposal, so the old rules remained in effect, prescribing that the victim could initiate a criminal proceeding until the age of thirty-eight. As indicated by the German Federal Government (2011) in 2010, a round table on sexual abuse against children was set up. This advisory, policy and decision-making body recommended introducing a much longer period of statute of limitations for prosecuting the perpetrator. The amendment of the German Criminal Code was published in January 2015. According to this amendment, until the age of thirty of the victim (previously the age of twenty), the limitation period of certain sexual crimes is suspended.
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DOMESTIC FOCUS In light of these international examples, we shall raise the question: is the Hungarian amendment sufficient for the protection of children? We are convinced that this solution is well-founded from the perspective of the rights of children, since the liability of the perpetrators are temporally unlimited. Sense of guilt, disgrace, self-accusation, devolution. In most of the cases, these feelings explain why several sexual crimes are revealed only more years later than they had been committed (Herczog, 2007). The exclusion of the statute of limitations is an important element of the legal response, but without further mechanisms, it is not sufficient. In 2014, the Committee on the Rights of the Child has also noted that the sexual crimes often remain „invisible’. However, with the help of informative campaigns, mechanisms of complaints, and with more efficient warning systems, the latency of sexual crimes could be reduced. Apart from the limitation rules, the proper strategies for prevention, as well as the active and proactive intervention of the warning system, are also essential to prevent the abuses. The exclusion of the statute of limitations for certain crimes is possible only in a narrow circle, with the respect of the constitutional standards. In the field of criminal law, it has been widely contested in relation with the democratic transition. The main issue was whether the politically motivated crimes during the communist period are subject of the statute of limitations or not. The decisions of the Hungarian Constitutional Court have outlined the constitutional interpretation of the statute of limitations regarding criminal law: firstly, the term of limitation amounts to an essential element of the legal security and, secondly, a decision on the constitutional standards of the exclusion of statute of limitation.
24
The statute of limitations could be neglected on the basis of three possible grounds. Firstly, the international law could declare the abolishment of the statute of limitations for certain, very serious crimes. For instance, statute of limitations shall not be applied for genocide, and for crimes against humanity. Secondly, the legislation could abolish the statute of limitations due to a special historical situation. Nevertheless, the theoretic background of restitution, and the proper balance between the requirements of legal state and social expectations are still to be clarified. For this reason, the constituent power entrenched a separate constitutional article on the exclusion of the statute of limitations with regard to communist crimes. Finally, the term of limitation could be excluded for a specified group of very serious crimes. This category contains the provision concerning sexual crimes against minors. Previously, this framework has included only the crimes which are sanctioned with life-long imprisonment. Therefore, it has been based on an objective criterion. By contrast, with the incorporation of a specific group of crimes, the legislature adapted the rules from statute of limitation for a certain circle of crimes. This means that the exclusion of term of limitation could be decided on a case-by-case basis and the constitutional review shall comply with this diversity of standards. In the present case, the exclusion of term of limitation may be justified by the character of the crimes concerned. These crimes have extremely harmful psychological consequences, and a high probability of late reveal of evidences, as the draft on the amendment of the Criminal Code states. In light of the relevant instruments of international law, the constitutional provisions from the distinguished protection of children and the limited scope of the amendment (only those crimes are concerned which may be sanctioned with a
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longer imprisonment than five years), the intervention concerned would meet the necessity or proportionality standards in case of a constitutional review. Though, on the ground of similar reasoning, the exclusion of statute of limitation for other crimes may be also justified. Currently, we do not see any reason to consider that the legislature had this intent. Nevertheless, we shall raise the interest of professional discourse to this potential risk in due time. The exclusion of term of limitation is a legitimate, but extraordinary means for the legislature, which could be applied only under exceptional circumstances. The amendment from the autumn of 2014 undoubtedly fulfils these requirements, but the proper balance between the elements of legal state and social expectations remains possible only if the exclusion of statute of limitation for the characteristics of certain crimes would not tend to be a general practice. Accordingly, the amendment of the Criminal Code does not generate any concrete constitutional issue. However, it has remarkable constitutional consequences.
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We would conclude that, from the perspective of children’s rights, the amendment is strongly justified, but it should be noted that the exclusion of statute of limitations is only one of the several instruments of the child protection. The exclusion of statute of limitations should not mean that we could play down the significance of other mechanisms for the protection of children. The constitutional aspect demonstrates that there is no any relevant argument which would undermine the constitutionality of the provision concerned. Nevertheless, we shall highlight some factors of uncertainty, which create some risk for the prevalence of the framework of rule of law. By Boldizsár Szentgáli-Tóth dr. and Fanni Murányi dr.
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DOMESTIC FOCUS The Statute of Military Personnel in Romania
This article aims to shed
light on a current issue in Romania’s military administration - the statute of the military personnel. This subject is, unfortunately, not widely discussed. The burden, as it seems, to offer a possible solution lies within the obligations of the domestic Courts, and not of the scholars. By leaving this subject to be solved by Courts in a Civil Law system, certain problems can arise, such as various solutions that could contradict one another. Thus, the two main solutions Courts have given in the past years assimilate military personnel with public officers and public officers with special statute. The consequences of providing different solutions are determining which laws are applicable for military personnel, and which Courts have jurisdiction to offer said solutions. 1. The Problem Decree no. 80/1990 on the statute of military personnel does not provide whether military employees are public officers or not. Moreover, it does not mention the jurisdiction of domestic Courts. Article 2 paragraph 1 of Law 188/1999 on the Statute of Public Officers defines the public officer as a person named, in the conditions of law, in a public function. This definition, however, does not provide a full understanding to what a public officer actually is. However, article 2 paragraph 3 of the same Law mentions the activities such public officers undergo. Enforcing the law and other normative acts, elaborating regulation projects specific for that public authority, elaborating political strategies, and representing the interests of that public 26
authority in relation with public or private persons, are some of these activities. Decree 88/1990 on the statute of military personnel sets forth different obligations to respect, such as being loyal and devoted to the country, to strictly keep the military secret, and to participate in military operations abroad. The conclusion to be drawn here is that the obligations and activities relating to military personnel and public officers are very different. This is one argument sustaining that military personnel are not public officers, in the sense of Law 188/1999. Another argument is the custom developed by the courts, meaning that disputes involving military employees are brought in front of the Courts of Appeal, while Law 188/1999, in article 109 refers to the Tribunal as being the competent Court. Thirdly, military personnel are not part of the National Agency of Public Officers, a special administrative entity under the guidance of the Ministry of Internal Affairs, which is mentioned in the Law on the Statute of Public Officers. On the other hand, the same Law lists public officers with special statutes (e.g: employees within the special structures of the Presidential Administration, diplomats and consuls, border authorities, and police officers). The same article also mentions that employees in other public services established by law can benefit from a special statute. If the legislator deliberately omitted to mention this in Decree 88/1990, logic dictates that the purpose was either to consider military personnel as being something different than a public officer and a public officer with special statute, or to consider them as being public officers, with equal rights and duties as any other public officer. As explained before, the latter possibility would not be probable. If the omission of the legislator was not deliberate, then military personnel, according to the
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courts, should be considered public officers with spe- most logical conclusion is that it was meant not to ascial statute. Either way, Decree 88/1990, needs to be similate them to being public officers at all. This result modified to clarify the problem. has the same consequence, concerning the applicable legislation, as if they would be assimilated with public 2. Case law officers with special statute. S.I. vs. The Ministry of National Defense case submitted before the Bucharest Court of Appeal in 2012, is still pending. The Court of Appeal declined its jurisdiction to the Third Sector Tribunal. In the reasoning, without providing explanations, the Court concluded that military personnel are public officers and they must also respect the provisions of Law 188/1999, therefore, the dispute must be solved by the Third Sector Tribunal. The latter Court also declined its jurisdiction back to the Bucharest Court of Appeal, arguing that military personnel are public officers with special statute. In the conclusion, the Court mentioned that, since there is a separate law, which establishes the legal status of military personnel, and taking into consideration the legal custom of solving this nature of disputes in front of the Court of Appeal, military employees should be assimilated to public officers with special statute. As a consequence, the case was sent to the Romanian Supreme Court of Justice to determine the jurisdiction. This is just one example of many more such cases. 3. Consequences
The second problem regards the lack of uniformity in judicial practice. With this confusion, Courts decline their jurisdiction to other Courts, motivating that military personnel are public officers, or public officers with special statute, depending on the case. This leads to a sense of insecurity regarding the judicial system, and to simple disputes, such as sanctioning an administrative act as being void, lasting over three years, which is against the European Court of Human Rights’ principle on the right to real access to a justice system. 4. Conclusion While the justice system disputes through judicial decisions whether military personnel are public officers or public officers with special statute, the law is silently suggesting that they are neither. Without pinning the fault on anyone, I am suggesting that the law has to speak clearly, and until that happens, the Courts have to reach a consensus to prevent further abuses, such as unreasonably long judicial disputes. The most efficient option, until the Law is modified, is for the High Court of Cassation and Justice (the highest jurisdiction Court in Romania), to pronounce an appeal in the interest of the law to standardize judicial practice. Judging from an utilitarian perspective, the best solution would be to assimilate military personnel to public officers with special statute, due to the fact that the number of cases brought before a Tribunal are significantly greater in number than those brought before a Court of Appeal.
There are two main consequences to this problem. The first regards the laws applicable in the case of military personnel. Generally, a law is completed by other laws. In this case, Decree no. 80/1990, is completed by rules, such as Law 554/2004 on the procedure of administrative disputes, the Civil Code, and the Civil Procedure Code. If military personnel are assimilated with public officers, then Decree no. 80/1990 will also be completed with Law 188/1999. Otherwise, if military personnel are assimilated with public officers with special statute, then Law 188/1999 will not be applicable. As I said earlier, if the omission of the legislator to mention whether military personnel are public officers with special statute was deliberate, then the
By Cantemir Păcuraru
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DOMESTIC FOCUS An overview of judicial independence in Romania
Justice appeared along with
the first forms of organisation of human communities. At the dawn of civilisation, the conflicts that arose in human relationships were resolved directly by litigants and often ended in physical contact, where the strongest one became the right one. Gradually, people realised that they needed leaders, protection, and systems developed in order to ensure that the solution of a dispute is somehow objective. In the case of the judicial independence, justice is represented by the mechanisms owned by a state through which it imposes a balanced environment based on equity, pursuing the overall good of society. This can only be attained through a good law system and a fair application of justice. This article tries to portrait an image of how the system evolved and, more important, how we got to a judicial system in Romania that is more or less independent. Exactly how independent? Let is see!
today. We assimilate her sword with the way justice is imposed, using punishment when necessary, her balance in regard to the equilibrium and interpretation of laws, and her covered eyes with impartiality –‘All citizens are equal in front of the law and public authorities, without any privilege or discrimination’ (Romanian Constitution, Article 16, Paragraph (1)). Furthermore, the Romanian Constitution states that justice ‘is unique, impartial and equal for all’ (Romanian Constitution, Article 124, Paragraph (2)), and certain special courts, extraordinary or autonomous, such as Stabor, a traditional Romani form of judicial organisation, are prohibited. A first step toward independence was abandoning the religion and justice related formalism. In order to obtain the secularization of law and an independent system of justice, John Locke proposed the principle of separation of powers. Montesquieu’s theories (Montesquieu, 1784) were the basis of modern constitutional states and they envisage a tripartite organisational form in which the power of a form of organisation should be divided: the legislature that legislates for the society, the executive which organizes and enforces law, and the judiciary that solves disputes, based on the interpretation of laws. These three powers cannot be absolutely independent, as their balanced collaboration remains necessary. The responsibility lays on the State and its institutions to ensure and monitor the independence of the judiciary related to other powers and to ensure that ‘no one is above the law’ (Romanian Constitution, Article 16, Paragraph (2)). The separation of authority and state leadership is another milestone in the independence of the judiciary. For a modern state this is an essential issue (Deleanu, 2003, p. 221).
Based on a relative impartiality, society starts to create an entity to resolve conflicts, thus taking the first forms of justice that were based on an external authority. Since ancient times, faith was the main authority. The first forms of justice were strongly religious, as we know from the Old Roman Law, when a solution could be given auguri (the practice from ancient Romans of interpreting omens from the observed flight of birds) (Hanga & Bob, 2014). When the need of dealing with the cause core issues became stronger, law and justice evolved towards new concepts: the State created fundamental values and prioritized principles that were imposed by coercion. The legitimacy of justice comes Besides the core principles exposed by the State in from the willingness of people to have impartial and the Constitution, laws created by the Parliament also objective decision means for litigation. have a major impact on how judicial independence is perceived and respected. In order to have a good sysOne of the most iconic images that one can have when tem, law must relate to the Constitution in all aspects. hearing the term ‘justice’ is Themis’ image, the Greek Therefore, I believe that some laws, such as those contitaness statue picturing a metaphor for justice even cerning the procedural immunity of the members of 28
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the Romanian Parliament, affect how justice is made and, consequently, its autonomy from the Parliament. Laws should focus on respecting all the principles even if special categories of people or institutions are taken into consideration. The state has a number of institutions aimed at enforcing the judiciary and its independence. One of the roles of the Romanian Superior Council of Magistracy (hereinafter referred to as SCM) is to guarantee the independence of the judicial system (Romanian Constitution, Article 33, Paragraph (1)). SCM has a number of powers that consider the proper functioning of the judiciary: it proposes judges, it consents to the judicial accountability of judges, and it sets court presidents. In conclusion, state laws and institutions influence the judiciary and its independence. Judges’ incompatibility with most of the other jobs and complex forms of control from other organisms are intended to ensure fairness. Random assignment of cases to judges favour fair solutions and the existence of compulsory procedures for everyone involved in the trial (prosecutors, judges, lawyers, parties etc.) ensure the impartiality of justice. Speaking about the other participants in trials, another problem may be raised. In criminal law, the prosecutors have a more privileged position in terms of procedure and during the trial. The fact that the prosecutor and the defendant’s attorney might not be perceived as being on the same level in front of the judge may harm the equality between the parties. Even though one is prosecuting and the other one is defending a person, equality and fairness would help a lot the independence of justice. So the impartiality between parts and their qualities are also decisive.
providing the judge with any financial and technical support that is needed for the sentencing and a good remuneration should be ensured by State. The independence of judges from each other in sentencing is another determinant of judicial independence. Therefore, in any judicial system, it is desirable that a judge’s sentence not be affected at all by any future decision of a higher court or a fellow judge. Basically, a judge should have no restraint to give a decision he believes in, even if, taking into consideration the decisions of other courts, it infers that the first decision will be appealed, and the trial will be resolved differently by another Court. In my opinion, even if it seems a bit utopian, judges’ identities should not be publicly known in a trial. Even if both the trial and the decision were to be published, the judges should lead the trial without disclosing their identity. I believe this could be done while respecting people’s access to all Court’s decisions. Probably this is not feasible in all cases, but a system for protecting privacy that already exists in other public services could be used. This could lead to more trust in the judges and a better connection between judges and citizens. I think that, in this way, several problems currently occurring in a trial could be solved (corruption, pressure, influencing the judge, guarding judges’ independence, protection if one of the parties is not satisfied with the result and would like to take revenge).
To conclude, certainly, no judicial system is perfect and judicial independence cannot be absolute. However, beginning with Justice being independent from religion, from public authorities, and continuing with judges being, themselves, independent, all these could Because our society does not believe much in the prove to be a good way to start. It also depends on the goddess Themis anymore, nor other obsolete forms population’s vote for politicians who can determine of justice, their role was taken by judges. Firstly, The the desirable changes in judiciary legislation. MoreRomanian legal system has developed rules regarding over, it is the duty of the citizens, regardless of their judges, in order to ensure the judicial independence. positions, to respect the laws. On the other hand, it is Firstly, Romanian judges are irremovable; they are not the State’s duty to ensure compliance with legal norms hierarchically subordinated, and can be appointed, in society, as this is the only way that Justice can be transferred, detached, promoted and dismissed only independent. by special procedures. Secondly, they have procedural immunity and may be held accountable for the sen- By Călin Rus tences pronounced only in cases of gross negligence and only with the approval of the SCM. The econom- This essay was awarded the first prize at a competition ic independence of the judiciary is also important, organised by our partners, ELSA Cluj-Napoca. 29
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DOMESTIC FOCUS The true legal nature of ‘detention’ of property
Detention of property –
It is not a right, but a mere fact (Bârsan, 2015, p. 337 Stoica, 2013, p. 58). Understanding this distinction the Romanian law percepbetween rights and facts is crucial for the purposes of tion this article. In view of the positive effects on both theory and practice of maintaining coherence in legal reasoning, I aim to bring into focus the essence of ‘detention’ of property (n.ed. in Romanian, the concept is detenție; as it does not have an exact correspondant in English, we accepted to use this notion throughout this article; the term ‘detention’ has also been used in US law in relation to property law), a recurring concept in Romanian Civil Law. As I have noticed it to be rather ambiguously portrayed in the Romanian doctrine, my goal is to express an opinion regarding this institution, subsequent to underlining the current approach on the subject. 1. Approach of the author The Civil Code does not provide a definition of the topic. However, Article 918 lists the forms of control of property that do not constitute possession, but detention. This being the case, to ensure proper understanding, I will begin unravelling the nature of the article’s core issue with possession as a starting point, because this latter legal institution is far less cryptic. The Romanian doctrine considers that possession is a fact consisting in the exercising of the prerogatives of the right of ownership or of another real right, with the exception of accessory real rights (Bârsan, 2015, p. 336; Boroi, 2013, p. 225; Stoica, 2013, p. 58; Filipescu, 1994, p. 46). Despite its factual nature, possession is protected by law and produces legal effects by virtue of the law (Bârsan, 2015, p. 337; Stoica, 2013, p. 60). 30
2. Possession – a mere fact Possession plays multiple parts in the field of real rights: it ensures the publicity of real rights, which, due to their abstract nature, cannot be perceived otherwise (Article 936 of the Civil Code). It substantiates a legal presumption of ownership as means of providing evidence in Court (Article 919 of the Civil Code). In certain circumstances it can even result in the acquiring of the right of ownership (Article 937 of the Civil Code). Due to its importance, the law protects this fact, irrespective of the existence of a right, by means of the possessory actions to preserve legal order (Bârsan, 2015, p. 352; Stoica, 2013, p. 60 ; Boroi, 2013, p. 240). Consequently, possession is what H.L.A. Hart called a ‘non-legal word’ (Hart, 1954, p. 70). As observed by author Simon Douglas, Hart drew a distinction between ‘legal words or statements’ and ‘non-legal words or statements’ (Douglas, 2014, p. 57). In Hart’s view, the non-legal words are those that have a ‘straightforward connection with counterparts in the world of fact …’ (Hart, 1954, p. 38). It is really a simple distinction: words such as ‘dog’, ‘cat’ or ‘rain’ are ‘non-legal words’ because they are just facts and can be observed all around us. They are concrete. By contrast, ‘legal words’ do not have factual counterparts. That is, we cannot see them around us simply because they are intellectual notions created for legal purposes. They are abstract. For instance, the statement ‘X holds a right of ownership’ is a statement of law because a ‘right’ is an abstract notion, whereas the statement ‘X has possession of a thing’ is a statement of fact, be-
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cause possession is visually perceivable. 3. Possession and detention of property – both facts?
by analysing how a person may acquire possession of property. The entire doctrine agrees that in order for possession to exist two constitutive elements must be present. Firstly, what is called the material element, corpus, and, secondly, the intentional element, animus (Bârsan, 2015, p. 340; Boroi, 2013, p. 225; Stoica, 2013, p. 59; Baias, Chelaru, Constantinovici and Macovei, 2012, p. 947). As described by Yäell Emerich, the corpus requires physical control over the property and is portrayed as the exercise in fact of a real right (Emerich, 2014, p. 35). It is perceived as a complexity of behavioural actions consisting in the undertaking of material facts or legal titles involving the property (Boroi, 2013, p. 226; Bârsan, 2015, p. 337; Filipescu, 1994, p. 45). The animus implies the psychological intention of the possessor to behave as the holder of the real right he exercises (Emerich, 2014, p. 35; Stoica, 2013, p. 59).
I introduced this distinction, as it will serve to establish the nature of detention of property, a concept closely linked to possession and portrayed in the doctrine with the purpose of setting it apart from the latter. A person has detention when he/she holds property of another by virtue of a legal title (Bârsan, 2015, p. 338; Boroi, 2013, p. 227), having awareness and acceptance of the owner and not denying the latter’s right (Bârsan, 2015, p. 339; Boroi, 2013, p. 227; Baias, Chelaru, Constantinovici and Macovei, 2012, p. 946). Article 918 of the Civil Code provides examples of people exercising detention of property: a tenant, a depositary, a holder of a real right providing limited prerogatives as compared to ownership and any other person that holds someone else’s property with the owner’s consent (Baias, Chelaru, Constantinovici However, Article 916 of the Romanian Civil Code and Macovei, 2012, p. 948). states possession implies the exercise in fact of the right of ownership. This means that, in domestic law, As far as its nature is concerned, it has been expressed only the animus corresponding to the right of ownerin the doctrine that unlike possession, which is a fact ship may lead to possession. This animus is called ani(a ‘non-legal word’ in the terms of Hart), detention fits mus domini or animus sibi habendi or animus posinto the other category. That is, the statement claim- sidendi. The lack of this specific intention means lack ing ‘X has detention of property’ is considered to be of possession (Bârsan, 2015, p. 341; Stoica, 2013, p. 59; a statement of law (Bârsan, 2015, p. 339; Pop, 1996, Boroi, 2013, p. 227; Baias, Chelaru, Constantinovici p. 223; Baias, Chelaru, Constantinovici and Macovei, and Macovei, 2012, p. 946). Indeed, Article 918 clearly 2012, p. 948). This very issue is what the article aims underlines, as authors have noted, that the intention to clarify. of behaving as anything else except the owner is not possession, but detention (Bârsan, 2015, p. 339; Boroi, In my view, this endeavour to draw a sharp line be- 2013, p. 226; Baias, Chelaru, Constantinovici and tween these two concepts (possession and detention) Macovei, 2012, p. 947; Buciuman and David, 2012, p. is useful, but prone to generate confusion in other 6, 13). lines of argument. I believe it to be a matter of terminological imprecision and I will substantiate my claim However, a terminological inconsistency can be obby offering arguments to support the opinion that de- served. While authors claim that the specific animus tention is, despite its unique features, also a fact. for possession is animus domini, they also provide us with the definition of possession in the style of Emer4. A closer look at detention’s and possession’s fea- ich, claiming it to be the exercise in fact of any real tures right as suggested by the second paragraph of Article 916 (Bârsan, 2015, p. 336; Boroi, 2013, p.226; Stoica, Since I have already described possession, let us start 2013, p. 58). How do we solve this paradox? 31
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DOMESTIC FOCUS
As far as I am concerned, the Civil Code’s definition together with those of the authors and Article 918 clarify that even though our domestic law assigns the term possession only to the form of control of property accompanied by animus domini, detention is and was originary described by civil legal systems as a form (or better yet, a level) of possession (Descheemaeker, 2014, p. 8; Gherasim, 1986, p. 72). A person who has detention of certain property does not consider himself the owner; quite the contrary, he recognizes and respects the owner’s right and he holds the property not for himself, but for the owner (Bârsan, 2015, p. 339; Boroi, 2013, p. 227; Baias, Chelaru, Constantinovici and Macovei, 2012, p. 946; Stoica, 2013, p. 73). He does not have animus domini, but he does have another kind of animus, called animus detinendi, the will to consider himself as the holder of another right than ownership (Stoica, 2013, p. 59, 73; Buciuman and David, 2012, p. 13). Both possession and detention have the element corpus (physical control of property). The difference lies in the form of intention (animus). Therefore, I believe both concepts are species of the same genus. Consequently, detention is also a juridical fact. On the other hand, according to the second paragraph of Article 949, the possessory actions can also be used to protect detention, not only possession. It is unanimously agreed that the possessory actions are meant to protect possession as a fact, against adversities, in order to preserve this fact or to regain possession when lost. The possessory actions are always portrayed in contrast to actions that aim to protect a right (or a statement of law), while the former are set on protecting a fact, regardless of any existing right (Bârsan, 2015, p. 352; Stoica, 2013, p. 79-80; Baias, Chelaru, Constantinovici and Macovei, 2012, p. 991). In a possessory action, statements of law are never discussed and if they are ever brought up, they are irrelevant to the judge; furthermore, the Romanian Civ32
il Procedural Code (Article 1003) clearly states that by means of a possessory action one cannot plead for the protection of a right (Boroi, 2013, p. 244; Stoica, 2013, p. 80). In view of this legal context, the nature of detention can only be that of a fact. 5. Detention into possession Thirdly, we cannot ignore another important legal mechanism regulated by Article 920 of the Civil Code and analysed by all authors: transposition of detention into possession. This mechanism implies that, in strict circumstances, detention can be transformed into possession (Bârsan, 2015, p. 348; Boroi, 2013, p. 229; Stoica, 2013, p. 73; Baias, Chelaru, Constantinovici and Macovei, 2012, p. 946). Let us presume that the allegation ‘X has detention of property’ is a statement of law. Then this would mean detention is an abstract notion, something we cannot visually perceive. Detention would be a right, not a fact. However, if that were the case, why would a mechanism which turns a statement of law into a statement of fact be regulated? Even more, why would anyone who already has a right protected by law want his situation turned into a mere factual one? While the reverse mechanism (acquisitive prescription) has indeed its advantages, this one generates confusion in understanding legal concepts. The answer can only be that detention is a fact and with reference to my previous line of argument the only explanation for this transformation would be the transposition of animus detinendi into animus domini, exactly what Article 920 stipulates and a fact noticed by part of the legal doctrine (Stoica, 2013, p. 73). Moreover, let us have a closer look to the aforementioned acquisitive prescription. A constant mechanism in civil law, acquisitive prescription or usucaption (Article 928 of the Civil Code) is a legal effect of continuous possession, a means of acquiring the right of ownership or another real right (Bârsan, 2015, p. 386; Boroi, 2013, p. 272; Stoica, 2013, p. 363; Baias,
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Chelaru, Constantinovici and Macovei, 2012, p. 960). We can observe the authors claim not only the right of ownership can be acquired by means of acquisitive prescription, but also the other real rights (to be noted all mentioned authors use only the word ‘possession’, silently admitting that detention has the same nature as possession). I have already established that ‘possession’ of ‘the other real rights’ is the same as detention in domestic law. This means that acquisitive prescription also operates as a consequence of continuous detention of property, leading to the acquisition of other real rights than ownership. This being the case, I conclude that acquisitive prescription is a legal mechanism that transforms a statement of fact (‘X has possession of property’) into a statement of law (‘X holds a right of ownership’). Nevertheless, if detention were already considered a right, what part would this prescription play?
thing (something abstract) and the manifestation of that right (possession or detention) is another (something concrete). Detention is the result of a right, but not the right itself. Ever since ancient times, law has been indissolubly dependent upon the science of logic. From Aristotle claiming ‘the law is reason, free from passion’ to contemporary authors, logic has been an instrument of law. I believe the distinction between statements of fact and statements of law to be significant because it results in legal accuracy and brings what author Ron Villanova called ‘effective communication’. He claims precision of language is the only path to ensure rigorous sharing of concepts (Villanova, 1999, p. 11). Law juggles with concepts foreign to every day’s life, but which at the same time influence it greatly. This is why I believe terminological constancy should be a constant of law.
The detention of property is as factual as possession. 6. Conclusion The specific difference that sets it apart from the latter is its dependence upon a statement of law, upon a Finally, I believe that authors who assimilate deten- right. tion to a right aim to underline a special feature of detention, a feature possession does not show. We are By Sabrina Matei constantly being warned when reading about detention that at its basis there is a legal title (Bârsan, 2015, p. 339; Baias, Chelaru, Constantinovici and Macovei, 2012, p. 948). Of course, a tenant or a depositary, have all signed a contract with the owner. Moreover, since a contract is a means of acquiring rights, it seems fit to say that detention is a ‘legal word’ in the style of H.L.A. Hart. However, I believe we need to draw a clear line between facts and rights. If X buys a house, a contract is involved. X will have ownership of the thing he bought. Just like the tenant will have his specific right springing from his contract. And X will have possession of his thing as a result of his contract. Just like the tenant will have detention because of his. Just because possession can exist regardless of the existence of a right and detention cannot, that does not make possession or detention any less factual. The right is one 33
REFLECTIONS
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REFLECTIONS Balance between International Law and Politics
The
relation between politics and international law, when it comes to influence or determine a state’s decision, has always been a controversial topic. The aim of this article is to talk about the nature of this relation and the changes that currently are taking place. State decisions have always been determined by national interests, even if, sometimes, abstract concepts like peace or equality were invoked. Internal decisions can be justified by the national legislation or the legitimacy of the deciding institution or individuals. When we talk about external decision, things get a little more complicated. As explained before, every state will try to satisfy its own interests when making a decision. One state’s decision can go against another and that can lead to a conflict. In order to prevent that, states are using diplomacy in order to manage international relations and to support their decision. If we talk about the image and legitimacy that a state wants to show to the international community or about the standards that the state wants to respect, then state decisions must be well justified and adequate. Nowadays, this is where International Law usually sets in. One of the main objectives of International Law is to ‘mediate’ and solve the disputes between the states by creating an applicable set of rules (or sometimes simply recognising customary ones). If a state decision goes against the International Law, then that state can expect a reaction from the international community and that can be very disruptive for it. In order for one state to successfully reach its goals, it must justify their realpolitik (politics based on power and practical fac30 36
tors) decisions using International Law. If they do not, they will risk a reaction from the international community of labeling their decisions as being illegal and as constituting a breach of international law. The term ‘international law’ was first used by Jeremy Bentham in 1780 in his ‘Introduction to the Principles of Morals and Legislation’. Since about 1840, in the English and Romance languages it has replaced the older terminology ‘law of nations’ or ‘droit de gens’ which can be traced back to the Roman concept of ius gentium (law of nations), as it is observed by Malanczuk (1997). Malanczuk states in his book Akehurst’s ‘Modern Introduction To International Law’: ‘the actual role and capability of international law in governing the relations between states must not be exaggerated, in view of the decisive significance of military, economic, political and ideological factors of power. In fact, the role of international law in international relations has always been limited, but it is rarely insignificant. Its function in structuring the international system has been enhanced because of increasing global interdependence and the self-interest of states in regulating their intercourse rationally on the basis of reciprocity. Therefore, disputes between states are usually accompanied by—in a given case naturally often conflicting—references to international law.’ Unlike municipal law, there were no sanctions linked to the breach of international law. This has changed recently and we can see that states applied bilateral sanctions that were linked to the breach of international law (e.g. the sanctions applied to Russia). Therefore, the importance of international law is enhancing. The sources of international law are vast starting with treaties, customs, principles of law, judicial decisions and finishing with soft law, equity and acts of international organisations. According to the hierarchy of the sources preemptory norms are the most impor-
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tant and mandatory. Article 53 of the Vienna Convention on the Law of Treaties, 1969 states: ‘A treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm of general international law. For the purposes of the present Convention, a peremptory norm of general international law is a norm accepted and recognised by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character. It must find acceptance and recognition by the international community at large and cannot be imposed upon a significant minority of states’. Thus, an overwhelming majority of states is required, cutting across cultural and ideological differences. At present very few rules pass this test (Malanczuk, 1997). What happens when international law would not justify a state’s decision? We rely on interpretation and maybe in some cases one interpretation can justify the action. Context can give one norm a certain value and meaning, whereas the object and purpose of one norm if interpreted with good faith can lead you towards another result. The practice of states is very important in this aspect, as well, because it can bring the balance to one interpretation or another. The truth is that states interpret and apply international law in concordance to their interests and needs. Kosovo is a good example where a set of states do not recognize it as a new state in order to not encourage self-determination in their own countries, considering it as a dangerous precedent. In this case some of the states justify their decision by stating that Kosovo government is not effective and that it cannot bring stability to their people and region. However, South Sudan is recognised by the international community even though their government is arguably ineffective to the point of not existing. Other states say that Kosovo was created illegal, because if there is no oppression, then there is no self-determination. They continue by saying that after the reaction of UN, the problem was solved and thus Kosovo secession was not legal.
The context in which self-determination was first established as a principle in international law is important, as well. Nowadays, there are limited situations in which self- determination would be accepted. Even though it sounds simple, a lot of disputes in the international community are centered on this principle and even more are to come. At the beginning, selfdetermination was established so countries that in the past were colonies could freely become independent and could choose their international status with no external interference. In 1941 Allies of World War II signed the Atlantic Charter and accepted the principle of self-determination. In January, 1942 twentysix states signed the Declaration by United Nations, which accepted those principles. The ratification of the United Nations Charter in 1945 at the end of World War II placed the right of self-determination into the framework of international law and diplomacy. Later on, this right was recognised to cohesive national groups that would be denied the so called internal self- determination in the countries they would reside. However, with this new application another problem arose. Sometimes, with interpretation, states reached different results, because of the vague terms that were used when the norms were created. When we talk about self-determination, there was great ordeal to try to determine exactly what a ‘cohesive national group’ means. Do we lay weight on them having the same language, or religion, or background? Even today the specialists have not reach a consensus, even if even the Venice Commission tried to shed some light on the matter. Regardless of all the controversy, Kosovo is recognized today by a number of countries as an independent country. Serbia, on the other hand, still considers them as its own autonomous province. For example, one reason that burdens the possibility for Spain to recognize Kosovo is the increasing demands for an independence referendum in Spain’s province of Catalonia. In the end, it is still a problem of interpretation.
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What happened in Georgia is another good example. Georgia was accused by Russia that said that the Georgian government launched aggressive operations against South Ossetia. On August 8, 2008, Russia sent land, air and sea troops in order to bring back peace to the region. They called their action as being a ‘peace enforcement’ operation. The international community said that Russia’s actions were not legal, but they could not do more as Russia invoked precedent. They said that their operation is similar to the operation that the U.S. conducted in Afghanistan. Another argument that they used was that their intervention was caused by their duty to defend their co-nationals. Russia’s actions were controversial, but according to them, they had legal basis. I think that as international law gains more relevance, the international community would benefit from more stability. International law holds in high regard peaceful conflict solving and one of its basic principles is the equality of all states. Even if states are still far away from taking decision based only on international law, my opinion is that their recent behavior should give us hope.
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In conclusion, international law is becoming significant to the states when they make their international decisions, or at least when it comes to justify them in front of the international community. National interests govern the dynamics of international relations, but globalization and the importance of the new international actors (international organisations, non-governmental organisations) made the states thorough regarding their image and status on the international scene. If one state breaks international law, the other states are ready to sanction it, and, because of the dependency that we see today between countries, it will affect that country greatly.
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By Răzvan Boștinaru
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European elections: why people demand their rights, but do not take the occasion to use them?
Very often we hear peo-
homeless, disabled persons, and many others who lack access to the vote for a variety of reasons. Some ple complaing about how examples are poverty, illiteracy, intimidation, or untheir rights are not refair election processes. For this reason, I consider that spected. Unfortunately, people should always think twice before making a dewe do not live in a perfect cision about their right to vote. world, as many may want, but this is what the judicial The Europeans have not always had the right to vote system is for, whose role is the Members of the European Parliament (MEPs). to straighten any situation Until June, 1979, MEPs were elected from the memthat does not correspond bers of the national parliaments, nominated for this to legal norms. And yet we position. This system did not work effectively because have to talk about the situation when, although people the national and European mandate did not usually have rights, they do not take occasion to use them. correspond and MEPs had a double load, working People themselves should understand that the rights simultaneously in two parliaments. However, since they have are just as important, whether we speak of 1979, MEPs have been elected by direct universal sufthe right to life or about the right to vote. Although at frage for a five-year period. first glance it may seem like a huge difference between The Article 223 from the the Treaty on the Functionthem, both are fundamental human rights. In this ing of the European Union (TFEU) says that: ‘The article I intend to talk about the European Elections, European Parliament shall draw up a proposal to lay especially about the right to vote and how its impordown the provisions necessary for the election of its tance is often overlooked or undervalued by the votMembers by direct universal suffrage in accordance ers. Starting from the low turnout in elections to the with a uniform procedure in all Member States or in symbolical ‘sabotage’ used by the opposition parties at accordance with principles common to all Member the expence of the rulling political group, the article States.’ shows how the process of establishing a single electoral system in all Member States is an old problem of Establishing a single electoral system in all Member the European Union. Because of the fact that there is States is an old problem of the European Union, which no single electoral system, each Member State has its has been included in the text of the Treaties since the own election laws, which is why people are reluctant Treaty of Rome, but even until today it has not been and the lack of interest in voting appears. possible. A single electoral system would increase the representativeness of the European Parliament, the While the European voters have the right to vote building of a majority that accedes to the citizens’ and can take the occasion to use it in the European choice, the independence of the European Parliament elections, this right is not fully enforced for millions and of the MEPs from national political systems. As of individuals around the world, that includes nona result, the establishment of a uniform procedure citizens, young people, minorities, criminals, the would have a positive effect (Chopin, Deloy, 2010.). 39
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REFLECTIONS But because there is no single electoral system, each Member State has its own election laws and each one decides the date on which its citizens will vote. However, they must all apply the same democratic rules: the right to vote at eighteen, gender equality and the secret ballot.
Parliament, most often because of the competition at national level (Sasmatzoglou, 2014). Thus, voters occasionally used the elections for the European Parliament as an opportunity to protest against the party or parties who are in power in their national government, rather than to express their opinions about which party should have the most seats in the European Parliament. This situation has been observed from the first elections in 1979 until the last elections in 2014. However, the European elections should not be regarded or treated as national elections (Sasmatzoglou, 2014).
This is the reason why I think the reticence of the voters appears. In the current Romanian electoral system, the results of the vote are predictable, by using of social research tools. Because the candidates know if they will or not be elected, they will no longer be as committed to the electoral process. In Romania, the candidates for the European Parliament are elected on People must understand that the European elections a national list, in a closed voting system, which cancels provide the citizens of the EU the opportunity to vote any public power that may cause differences between for parties that are closer to their ideals, compared candidates in the vote (Ciucu, Dumitrescu, 2013). to the big parties that have different goals from their The last European elections were held between May own, but have a greater chance to form the majority. 22 to May 25, 2014 The first elections were held in Here are some arguments on why I think it is imporRomania in 2007 (the year we joined the European tant that people should vote: Union) and in 2009. In Romania, like in most of the 1. First of all, the European elections determine who Member States, the minimum voting age is eighteen establishes and directs the EU agenda, for a period (except Austria, where the minimum age is sixteen). of five years, which has a direct impact on more than I was dissapointed when I saw the lack of interest of 70% of national legislation (Saryusz-Wolski, 2014, p. the European voters. If before the 2014 elections, it 15). The new political majority resulted from the elecwas considered that the percentage of participation tions will elaborate the EU legislation in areas such in the 2009 elections (43%) was the lowest in history, as the single market to civil liberties. For this reason with 26% less than what it was in the 1979 elections alone, voters should pay attention to European Par(Saryusz-Wolski, 2014), after the elections of 2014, it liament elections and make them a priority. Unfortuwas 42.54% . nately, the opposite often happens. As a law student, I had a different perception about the 2. Second of all, the results of the elections in 2014 European elections, unlike ordinary people who, unhad a decisive role in choosing the new president of fortunately, do not always understand the importance the European Commission. For the first time in EU of these elections. But why don’t they understand the history, the European Parliament has chosen - and not meaning? Well, the answer is very simple. In Romajust approved – the European Commission, following nia, as in most of the Member States, disappointment a proposal by the European Council, according to with the internal political system has a major influthe rules laid down in the Lisbon Treaty (December ence on the European elections. The national parties 2009). The link between the election of the President usually choose to run a campaign without associating of the Commission and European Parliament electhemselves with political groups from the European 32 40
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tions in 2014 gives a new meaning and importance to European Parliament elections (Jacobs, 2014). 3. Also, as the only EU institution directly elected by citizens, the Parliament has the power and responsibility to hold the EU institutions accountable. The Parliament is the guardian of the Charter of Fundamental Rights, embedded in the Lisbon Treaty, as well as the newly established right of the citizens’ initiative, which allows people to ask for new policy proposals if one million people have signed a petition asking for it.
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4. The Parliament also elects the European Ombudsman (functionary who investigates complaints about maladministration in the institutions and bodies of the European Union) and holds hearings with candidates for the President and Board members of European Central Bank, the Court of Auditors and various EU agencies. These are only some of the reasons why people should understand that the right to vote is more important than some believe and that they should go and vote and pay more interest to the European elections. In conclusion, European elections should not be seen as a second-tier national elections. However, after eight rounds of direct elections to this institution (only three in Romania), the link between citizens and MEPs remains extremely weak. The Europeans do not primarily use the European elections to express their preferences on the policy issues on the EU agenda or to reward or punish the MEPs or the parties in the European Parliament for their performance in the EU. They use the European elections to punish the party or parties in power in their national government. Yet I live with the hope that people will understand how important is the role of the European Parliament and that they must go to the future elections in 2019.
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SPECIAL GUEST The case for alternative measures in labour conflict Given the importance of interdisciplinarity, Lawyr.it has invited two non-law students to write an article on a legal topic of interest for them. The following article was written by two authors with very diverse backgrounds: Diana Trăsnea, third year student at the Faculty of Political Science (University of Bucharest), and at the Faculty of Finance, Banks, Insurance and Stock Markets (Bucharest Academy of Economic Studies), and Octavia Domide, who is pursuing a master’s degree in Political Communication at Babes-Bolyai University in Cluj-Napoca. We hope you will enjoy the read!
The aim of this article is to analyse the Romanian solutions for labour conflict management, to see which are the authorities specialised in it, and what Romania should to do improve its system. In doing so, we will refer to good Diana Trăsnea practices of other member state of European Union, such as Germany, Sweden, Denmark or France, and see, on the comparative, what are the advantages that Romania could draw.
national Labour Organization on Voluntary Conciliation and Arbitrary, the dispute management system should be appropriate to national conditions and to respect the national laws. This is essential to ensure that the system is effective. In order to set the terms of this article, labour courts are defined as the courts that are handling the employment litigations, which are related to labour law, arising from contractual relations between employees and employers. These courts both deal with individual and collective labour disputes, which are regulated differently by each country’s law. Furthermore, the distinctions and the procedures in any country are influenced by its historical background of its labour relations system. However, there are certain universal regulations set by the International Labour Organization, to which Romania adhered to. In terms of the distinction between conciliation and mediation as practices, the differences amount to the extent of the third party’s power in solving the dispute.
We believe that in trying to analyse the cases of employees complaining about the treatment received in the workplaces, it is important to enumerate the institutions that may have the competence to solve those claims, especially if it is required to go to court. There are several types of alternative measures for handling these complaints, which most commonly take the form of conciliation, mediation or arbitration. Those measures can be applied to both the individual and collective negotiations. Dispute management In the Romanian systems vary from country to country. As stated legal system, both in Article 1 of Recommendation no. 92 of Interthe Labour Code 42
Octavia Domide
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(Law 53/2003) and the Social Dialogue Law (Law 62/2011) regulate the settlement of individual and collective labour disputes. Article 208 of the Labour Code specifies that ‘individual labour disputes shall be settled in the first instance by the court”’ On the other hand, compulsory conciliation, imposed by the Social Dialogue Law is an instituted procedure in the area of labour disputes. Individually, mediation covers conflicts of rights of employees, conflicts regarding the interpretation of ambiguous clauses of individual labour contracts, conflicts on payment, and conflicts relating to the nullity of individual labour contracts clauses.
to the Federal Ministry of Labour and Social Affairs. Most labour disputes are solved outside the courts. There are some cases in which the parties call on independent experts, but usually the lawyers or the representatives of organisations try to reach an agreement. Forty per cent of the labour disputes are solved outside courts and forty-seven per cent are solved after the first hearing (Italy, The Thirteenth Meeting of European Labour Court Judges, 2005) Specifically, a characteristic of the first hearing procedure in the German system is the existence of a conciliation meeting. The purpose of the meeting is to solve a case without going on a trial. All procedures of conciliations include a professional judge (BunThe first article of the Mediation Law (Law desarbeitsgericht, 2015). 192/2006) specifies that ‘mediation is an amicable way of dispute resolution with the help of a Referring to Denmark, which represents anoththird party, as specialised mediator, in conditions er example of good practice, there is a Labour of neutrality, impartiality, confidentiality and Court (Arbejdsretten), which is not part of the having the free consent of the parties.’ Mediation judicial system, and which has restricted compeimplies trust in the mediator as a facilitator of tence limited to collective labour conflicts and negations, and as a grantor of support in finding cases of violation of collective wage agreements a mutually convenient solution, that is both ef- and working conditions. According to the Danficient and sustainable. ish law, the process of conciliation or negotiation is mandatory. If one of the actors does not want In light of all of the above, we believe that Romato take part of the conciliation, it is considered nia would benefit greatly from focusing on the that they are breaking the set of rules adopted in development of the alternative practices, and on accordance with labour disputes (Hungary, The the mechanism to implement them. In this way, Thirteenth Meeting of European Labour Court conflicts that would have gone to court would be Judges, 2011). guided to a mediation settlement, which in turn would reduce the number of labour conflict cas- In France there is no specialised Labour Court. es. However, the Constitutional Court Decision As such, the complaints are addressed to the no. 266/2014 and the new Code of Civil Proce- Court of Appeal and the Social Chamber. When dure have both annulled the obligation stipulated a problem arises between the employer and the by law to inform about the process of mediation. employee, the conflict is solved in the Industrial Court. This procedure has a mandatory conciliIn contrast, we would like to show a few examation phase in front of a conciliation committee, ples of good practices of other states, to call into a mechanism which is stipulated in the Labour question the efficiency of the system. Code. In France, conciliation is a first attribute of For instance, Germany has the Federal Labour a legal court. (European Judicial Network in civil Court (Bundesarbeitsgericht), which is part of and commercial matters, 2005) the specialised justice courts and is subordinated Lastly, the Swedish system includes a Labour 43
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SPECIAL GUEST Court (Arbetsdomstolen), which is a special institution that was created with the purpose of solving disputes between employees and employers. Usually, before going to court, the parties try to solve the dispute in a cordial manner on the local level, or on the sectorial one. Here, about ninety per cent of the cases of the disputes are solved in a bilateral agreement. The Swedish system is built in such manner that it is desirable to first solve the conflicts through dialogue and negotiation. Eventually, if this fails the case can be sent to court. The state supports that the disputes should be solved outside the courts, considering the national laws and regulations. (Eurofound, 2010) Because in these European Union member states, certain institutions that have to deal only with labour disputes exist, the mechanism thus developed has rendered the solution-finding process easier, has permitted the specialisation of mediators in issues related to labour law, and has greatly sped up the process.
regulate the conciliation procedure of collective labour disputes at the units’ level. Upon the registration of a notification, three days are granted to the Labour Inspection to delegate a person to this case and thus notify and bring together the parties in a period of seven days. However, we believe that this inspection upholds a crucial role in the prevention of labour conflicts, through the enforcement of a mechanism that leads to the information of the parties on the rights and obligations of the involved actors. We acknowledge that the most pressing issue would be the expertise of the people that take office as mediators. This as a relevant point, and implementing a special statute for such cases could be a solution. The Mediation Law requires mediators to have no criminal record and a good reputation, to hold a university degree, to have a minimum of three years of work experience, and to have completed some training for mediators, accredited by the Mediation Council (Law 192/2006). However, we believe that the guidelines instituted are insufficient. We consider of utmost importance a minimum number of years of legal expertise. In turn, legal counsellors, for example, would have the possibility to take an exam, in order to fill this specific position. What is more, an internship within this field should also be required in order for the newcomers to comply with the high standards that this position upholds. As a result, relevant experience becomes a top priority, since this profession requires the mediator to take a step further into bringing the parties to a consensus.
In Romania, two institutions cover the areas of individual labour disputes: the National Council for Combating Discrimination and the Romanian Ombudsman (whose duties are set by Law 35/1997, republished). However, in the domain of labour relations, the settlement of individual labour disputes through these two institutions is not a common approach. As a result, most cases make their way to court, regardless of the nature of the labour dispute and the available alternative ways of finding a solution. I acknowledge that some enterprise used to appeal to independent authorized mediators in case of individual labour How do we see this institution being created? We disputes; however, they do not make the subject believe that a separate institution should be deof this article. veloped, independent from the courts of justice, and not as an extension of the system. This would Labour Inspection, which is subordinate to the lead to a more efficient system since the main state, exercises the control in the areas of labour issue is quantified in the overcrowded courts. relations, occupational health and safety and marThus, lawyers and judges would be relieved of a ket surveillance. Law 62/2011, Articles 166-174 44
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burden, which would lead to a more proper way Directorate of Social Dialogue in collaboration of distributing the time at hand to do their work. with the National Mediator of Norway, aimed to train people in the profession of mediators, speTwo main points arise from this debate: first, we cialised in collective labour disputes and collecbelieve that it is extremely important to properly tive bargaining, in partnership with trade unions develop the position of labour conflict mediaand employers representatives. We believe that, tors since the solutions found in such cases have setting aside any legislative aspects, conducting a visible, quantifiable result in the real economy, campaigns that promote mediation, through exwith an immediate effect, especially in collective amples of good practice of other countries is by disputes. For example, there are states that put all itself a way of increasing the awareness and ustheir faith in strikes – should those fail, there is age of alternative resolution of individual labour an immediate economic effect. Second, there is disputes. a certain commanding appearance that both the trade unions and the employers’ organizations In conclusion, although the Law on Social Dianeed to respect. Thus, a third party represents logue (Law 62/2011) specifies that an Office for an objective means that does not jeopardize that Mediation for Collective Labour Disputes shall appearance. This means that both parties have a be implemented, almost half a decade has since further incentive to reach a convergence point. passed and there is still no sign of such an institution. In our view, bringing under discussion The direct benefits of creating a mediation office the law means that the matter of better regulatwould see its results for two types of interested ing and enforcing it becomes urgent. As such, we parties on one hand, the lawyers and judges that believe that an office should be created, as a sepatake up this function at present, as we have alrate entity, considering the previously identified ready explained. On the other hand, concerning needs. Secondly, it is imperative that the statute the plaintiffs, not only would they significantly of the mediator should be revised. Lastly, we reduce the associated costs, but they would also believe that Romania should focus on the good have the time frames of the decisions reduced practices of other European states whose systems and thus better focus on their immediate work on mediation work, as seen by the indicated staconcerns. In turn, this would create a more effitistics, and thus create a framework of accessible cient system, in which due diligence would not be information on alternative solutions and the prowaived, thus leading to an increase in the workmotion of the concept with all its aforementioned ers’ trust in the state. advantages, as it is crucial for Romania to develIn this context, the Ministry of Labour, Fam- op its ability to institutionally deal with labour ily, Social Protection and Elderly has launched conflicts. a number of programs in order to facilitate the By Diana Trăsnea and Octavia Domide process and thus help trade unions in increasing their capacity to mediate both individual and collective labour disputes. For instance, the National Agency of Employment has conducted training programs on mediation certified by the Mediation Council, a project in which the social partners are involved. Another project was launched by the Ministry of Labour in Romania (based on EEA and Norway Grants), under which the 45
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INTERNATIONAL FOCUS
Does consent always matter in international law?
Consent
plays a pivotal role in the development of international law. It can be used as an instrument of protecting the sovereign equality of nations and jealously guard one’s interest (Guzman, 2011). Given the heterogeneous interest of nations, however, it can also be an impediment for the development of international rules (Guzman, 2011). Positive law theorists emphasized that a state must give its consent to be effectively bound by the international law, but the naturalists support the idea that international law can exist without the will of the nations (D’Amato, 2010). State consent has the potential to increasing compliance of nations with international laws and bolster legitimacy or/and constituency, and help to tackle frequent, or rather haphazard deviation from the international obligations.
Particular, Establishing Rules Expressly Recognised by the Contesting States Treaties are principally dependent on the consent of the Contracting Parties, and they cannot give rights and impose obligations on third states (pacta tertlis nec nocent nec prosunt). But there are some exceptions to the rule pacta sunt servanda. Firstly, when the intention of the State Parties is to accord right(s) to or impose obligations on a third party, and if the latter accepts the treaty, the agreement will be binding on the third state. Secondly, Treaties that declare the crystallised international customary law are applicable to the non-state parties, too. But the non-parties are subject to the rule not because of the treaty but the customary rules (Shearer, 2014). Thirdly, ‘multilateral treaties creating new rules of international law may bind nonparties […] or de facto applied to them as standard setting instrument’ (Shearer, 2014, p. 406) and the application of certain multilateral conventions may extend to non-parties. (Treaties that create erga omnes may bound third states and The application of the Geneva Drug Convention (1931) which is replaced by the Single Convention on Narcotic Drugs (1975) as amended in 1975, extends to non-State Parties) (Shearer, 2014). Fourthly, non-signatory states may be bound by the agreement if the treaty is ‘establishing a special international regime and an international organisation.’ (Wallace, 2002) Even though, Wallace (2002) argues that Article 2 Paragraph (6) of the United Nations Charter binds a non-member state, that is not the case, rather this provision dictates the UN to persuade nonmember states to act in accordance with the principles that are fleshed out in the Charter.
Though there is no direct reference of ‘source’, the generally recognised authoritative statement where international laws fountain from is the Statute of the International Court of Justice. It would be pertinent to single out and discuss each source of international law that are enshrined under Article 38 Paragraph (1) of the Statute to scrutinise whether the concept of consent is fake in the realm of international law. There are live debates whether or not certain conducts, like a unilateral declaration of governments and Resolution passed by the General Assembly, constitute sources of international law and has a normative effect. This piece, however, stepping aside these discourses try to In relation to the first two scenarios, the consent of the limit its focus on sources of international law envis- state is vital, but in the latter two, states may fall under the jurisdiction of an agreement without their will. aged by Article 38 of the ICJ Statute. 1. International Conventions, Whether General or The unilateral statement that meant to exclude or 48
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modify the legal effect of a certain specific provision of a treaty—Reservation, is a caveat to states to be part of a treaty system and insulate its interests. Reservation is an epitomise of the manifestation of the role of state consent while crafting an international law. 2. International Custom, As Evidence of a General Practice Accepted As Law The establishment of customary international laws involves three activities of states. A State can (1) freely subject itself to the customary rule (consent), (2) can keep silent (acquiescence) or (3) consistently object the application of the rule. As the manifestation of state sovereignty, nations can give recognition for the application of customary rules. One of the scenarios that scholars agree upon in relation to the development of customary international law is acquiescencestate’s silence. This silence may be interpreted as implied acceptance, or being indifferent towards the issue (Crawford, 2012). A state can be bound by the crystallised international customary rule albeit it has not expressed its consent as long as the rule fulfills the opinion juris and ‘state practice’ requirements. The binding force of the customary rule, in acquiescence, emanates from the silence of the state (implicit consent) and it may not be opposable to that state. The purpose of interpretation of silence as acceptance is the difficulty of proving consent (Wallace, 2002). But consent would be difficult only if the state keeps silent. If it protest or accept the rule, it would not be difficult to infer the intention. However, I opined that even the silence should not be interpreted as an acceptance. The silence, however, should not amount to acceptance, but if so, the rule becomes a binding law without the explicit approval of the state and makes the positivist concept of consent futile. Despite the existence of International customary law, a state cannot be bound by it if it has been contesting the application of the rule since its inception. This idea is more fortified when ICJ expressly underpinned it in the Anglo Norwegian Fisheries case: ‘…the ten-mile rule would appear to be inapplicable as against Norway inasmuch as she has always opposed any attempt to apply it to the Norwegian coast.’
The dissention shall be made during the whole life of the customary rule and if it is abandoned at a certain point of time, the protest will remain without a tooth. Therefore, ‘…the persistent objection rule reinforces the principles of state consent in the creation of custom’ (Crawford, 2012). In the majority of the cases, the persistent objection is considered as an expression of intention not to be bound by the newly emerging customary rule. But some scholars are trying to annul the concept of consent even from the realm of customary rule formation. ‘…custom at present no longer maintain its original ‘consensual features’. This proposition can be advanced on two grounds. First, no one could deny the current community-oriented configuration of international relations (which are much less individualistic, and more social values oriented). At present, it is extremely difficult for an individual state to eschew the strong pressure of the vast majority of members of the community. Second, there is no firm support in state practice and international case law for a rule on ‘persistent objector’. The only explicit contention in favor of this contention is set out in two obiter dicta of the ICJ (in Asylum and Fisheries) and in the pleadings of the UK and Norway in fisheries.’ If the rule is a matter created for the common goods (e.g. for climate change and preservation of fish stock) states can even be bound by the customary rule if they oppose let alone in acquiescence. Despite the lack of consistent case law, it is generally accepted that the state can relieve itself from the customary rule obligations if it persistently protests against the rule from the outset (Evans , 2014). Had it not been for the persistent objection principle, customary international law would have been ‘created by the majority and imposed willy-nilly on the minority’(Evans, 2014, p.103). Any newly established state, whether agrees this or not, is bound by the duly established customary international law (Evans, 2014, Wallace, 2002, Cassese, 2005). This idea also makes the concept of free will that is enshrined in the preamble of Vienna Convention on the Law of Treaties unavailing. It dictates the adher49
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INTERNATIONAL FOCUS ence of states to the international norm created without their participation and will. The new state, however, should get an opportunity to express its feeling to accept, acquiesce or persistently object the customary rule (Shaw, 2008).
ICJ utilised to solve the puzzle that the state is a party? Obviously, the state is not consented to the application of that principle. So, for the principles that are found in all legal systems, it is safe to conclude that all nations have given their consent. However, if the principle is not recognised by the domestic legal system of Consent is not the basis of the binding force of customthe state in contention, the states are not assented to ary international law for newly created states and for be bound. those who keep silent towards the development of the new customary rule. I opined that the newly created 4. Judicial Decisions and the Teachings of the Most state should get the chance of expressing their feeling Highly Qualified Publicists of The Various Nations than making all customary rules binding by default. As inferred from the word ‘subsidiary’ in Article 38 Acquiescence may amounts to tacit consensual acceptParagraph (1) (D) of ICJ statute, judicial decisions are ance of the customary rule. not an actual source of international law, rather help3. The General Principles of Law Recognised By Civ- ing to prop up the court’s decisions (Shaw, 2008). The ilized Nation decision of the court is only binding between the parties and applicable only in respect of the particular Article 38 Paragraph (1) (C) of the ICJ Statute audispute. Not only the decision of ICJ and its predethorizes the court to borrow some international and cessor, the Permanent Court of International Justice, national precepts from the developed legal systems but also verdicts passed by national courts and other when non-liquet situation happens (Crawford, 2012). international tribunals can also be considered by the ICJ can infer some principles from the advanced legal court (Shaw, 2008). The states can cite decisions of systems of the world. If a certain principle is deduced court(s) while presenting their case before the court. from a legal system that a state belongs to and analoIf the court applies the decision cited by the parties or gized to solve a problem to which the state is a party, it verdicts passed by their national courts, to solve any might be possible to conclude that the concerned state bone of contention, it can be considered that the states has consented for the principle. But, what if the princiare consented to be bound by the rule of interpretaple is not recognized in the domestic legal system, but
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tion or the principles that they cited or applied in their domestic courts. Nevertheless, the court can also apply decision by its own initiation and it can utilize principles developed by another state’s court. In this case, the state is not assented to be subjected by the principles which are developed by domestic courts and later borrowed by the ICJ.
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Academic writings play a pivotal role in the development of the international rules by ‘stimulating thoughts… pointing out the defects… and making suggestions as to the future’ (Shaw, 2008, p.113). With similar note, it can be possible to say that states have consented to a certain way of argument or interpretation of rules if they cite a specific writing, as an authority, in their claim or defense. The court’s applications of rules and writings by its own motion does not necessary make states to subscribe for that reasoning or way of looking. It seems possible to say that states have consented for any agreement, reasoning, and norms that are applied by the court when they accept the contentious jurisdiction of the court. However, this line of argument will not be promising because if that is so, the court could also apply any treaty that state parties are not a signatory. This is manifestly against the sovereignty of states (even against the limited sovereignty principle) and contrary to the principle that the international norm built up on. Generally, though consent has some places in Article 38 Paragraph (1) of ICJ Statute (treaty, persistent objector), it is not as strong as it imagined being the basis of international law. A cursory glance at the article, together with the court’s practice, exposes the weakness of the role of consent in the contemporary development of international norms, but does not by any means signify that consent is irrelevant. By Henok Abebe Gebeyehu
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PROFESSIONAL SPOTLIGHT
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PROFESSIONAL SPOTLIGHT Interview: Louise Gullifer Professor of Commercial Law at Oxford University
Louise Gullifer is Professor of Commercial Law
at Oxford University, and Fellow and Tutor in Law at Harris Manchester College, Oxford, where she has been the senior law tutor since 1999. She has been teaching at Oxford since 1991, and, before that, she practiced as a barrister. Her research interests focus broadly on commercial law and corporate finance and she writes extensively in areas such as security and title financing, corporate finance, corporate insolvency, personal property and set-off. Professor Gullifer is executive director of the Secured Transaction Law Reform Project and has been recently invited as a speaker at the Reform of Secured Transactions Law Conference, organised by Central European University and Chinese-EU School of Law in Budapest, on September 25.
rister, you need to face a very competitive market, and go through lots of different, complicated interviews and other admissions processes. To become a barrister, you first have to do a pupillage (ed.n. apprenticeship to a member of the Bar, which allows a barrister to practice independently in the UK). In those days, it was reasonably easy to get a pupillage (it is now much more difficult). After pupillage, I practiced for five-six years and, I must confess, I never thought of doing anything else. I mainly practiced in commercial law, banking and banking fraud, but also did some criminal law work.
In 1991, after a short break, some people in Chambers (ed.n. organization under which most barristers practice law, though they remain independent) arranged for me to meet Professor Roy Goode, who was setting up a commercial law course for which he needed help with teaching, opportunity that I Lawyr.it: Lawyr.it: First of all, we would like to could not refuse. After a couple of tutorials, I startknow Professor Louise Gullifer better. What made ed to do more and more teaching. I eventually nevyou choose a legal career and how did your career evolve?
“Nowadays, to become a barrister,
L.G.: At the age of about fourteen I decided I wanted to be a barrister after I saw a television program you need to face a very competitive about the Bar and what being a barrister entailed, market, and go through lots of difand I thought this would be a nice thing to do. Then ferent, complicated interviews and I applied to Oxford to study Law, which, I must say, other admissions processes.” I really enjoyed. I also did a graduate program – the BCL (ed.n. Bachelor of Civil Law), on which I now teach courses in Corporate Finance Law and Legal er got back to the Bar as I got a permanent teaching job at Oxford University. Therefore, as you can see, Concepts of Financial Law. I was really intending to be only a practitioner, but For me, it was relatively easy to become a barrisI ended up being an academic. ter, but I must say things were really different back then, thirty years ago. Nowadays, to become a bar- Lawyr.it: You have been teaching at Oxford for 54
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PROFESSIONAL SPOTLIGHT over two decades now, but have practiced as an at- times quite difficult. See for instance areas such as torney as well. Which one did you find more chal- financial collateral, intermediate securities, set-off. lenging and why? People simply do them. It is happening all the time. And then it is up to academics to try to turn them L.G.: I believe they have different challenges. into a proper set of conceptual rules. Though as a practitioner I never got senior enough to see the whole perspective, since I have only prac- Lawyr.it: How is Secured Transactions law taught ticed law for six years, most of my friends are senior at Oxford and how do your students perceive Selawyers and actually some of my best friends are cured Transaction law? judges so I can see what they are going through. L.G.: At Oxford, at Undergraduate level, we only With regards to academia, I have been teaching for teach a bit of Secured Transactions (ST) law, as a long time and I find it very challenging, though part of the commercial law course, not as an indeI do love teaching. One of the reasons why I think pendent course, and commercial law itself is only being a professor is so great is because, maybe suroptional (around twenty-five students per year). prisingly, I have a lot of contact with practice. When However, if I am not mistaken, I believe we already I was at the Bar, most of my contacts were with othteach more Secured Transactions compared to er barristers and with solicitors who did litigation. most of the undergraduate commercial law courses Nowadays, for example, I interact a lot with soliciin England (although we spend only three weeks on tors who do not do litigation, but who are in charge this), and this is because of Professor Roy Goode of setting up transactions (rather than dealing with who set up the course. But, from what I noticed, their later problems). To be honest, though teachstudents love it, possibly because, while technical, ing is simply great, I would probably enjoy equally it is very interesting. going back to the Bar. Some of my colleagues from academia have done some practice as well, but I “To be honest, though teaching is could never figure out how they found time to do it! Lawyr.it: Your research focuses on commercial law, corporate finance, and secured transactions law. What do you consider to be the biggest challenges you encountered in researching these topics? L.G.: Generally, they all are very technical subjects. However, I find the real challenge in trying to work out what the law is and what the law should be, taking into account both the technical law and the way in which it has developed, and what is going on in practice. Sometimes you see a practice that goes on and you get to wonder ‘But how can that really work, given the technical and conceptual side of the law?’, and getting these two together is some56
simply great, I would probably enjoy equally going back to the Bar. Some of my colleagues from academia have done some practice as well, but I could never figure out how they found time to do it!”
At Graduate level, where students come from all over the world, we have quite a lot of students (around forty) who already have an interest in Corporate Finance, some of whom who have already practised in the field. At Oxford, we do not do a separate course on Secured Transactions Law as
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such, but several courses cover ST elements, such as securities, financial collateral, intermediate securities, securitisation. Also, at this level, though we also teach English law, it is much more of an international discourse. We try to make them think about the conceptual building blocks that are used to shift and manage risks on the financial market. We are not doing a separate class on Secured Transactions regulations. Usually, in England, Secured Transactions Law is taught as part of several classes, so we do cover the most important concepts. What we do not do is apply the American model and teach a full, separate Secured Transactions Law course, with very few exceptions (such an exception is UCL).
L.G.: While we have carried on with the initial project, we have also tried to engage in what was going on around the world on all fronts, and see what we could learn from different countries’ Secured Transactions law reforms. This has, in fact, led to us putting together a book on the topic, which hopefully will come out at the beginning of 2016. We also started to organise a couple of conferences.
“Secured Transactions law reform has lately become quite of a big thing around the world, as many states, including in Europe, have reformed their systems, or are currently working on that.”
Lawyr.it: Let us now inquire about the Secured Transaction Law Reform in which you have been Moreover, we have been collaborating with the involved, which was set up in 2010. How did it all English government in reforming different smaller start? fields, such as the registration system or overridL.G.: The project was Professor’s Roy Goode idea. ing anti-assignment clauses. There is also a Secured I was only part of the project. He has always been Transactions Draft Code, a really interesting prokeen on reforming the law in England and there ject with which we would like to engage, which was have been a number of government committees set up by the City of London’s Law Society. Howand commissions looking at it. Several attempts ever, we are still firmly of a view that the best way have been made starting from 2001, but none was forward for the UK would be a whole sale reform, successful enough, in my opinion, as there were too along the lines of PPSA (ed.n. Personal Property Semany limitations imposed. That is what he wanted curity Act, which is a statute passed by all common to do: set up a reform project that was not bound law provinces of Canada). Of course, we would still by any scope, time or political limitations. To do have to figure out what aspects of the PPSA would that, he gathered a group of people, including my- work best in the UK. self, to work with practitioners, policy makers, and We use the word PPSA to describe the generic UCC basically everyone that was interested on putting Article 9 – type reform, but actually the PPSAs together proposals for a reform in Secured Transin different countries, though not completely difactions law in England. It was only a couple of years ferent, are quite different. UCC Article 9 is quite ago, when Roy decided it was time to retire, when I distant from the Canadian PPSA (both in terms of took over the entire project. drafting and content), the Australian PPSA differs Lawyr.it: How did the project later evolve? quite a lot from the Canadian and New Zealand’s 57
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PROFESSIONAL SPOTLIGHT PPSA. There are various models to use now, so we are trying to analyse them in detail and work out what is best for UK, and by UK I mean England, Wales and Northern Ireland (as Scotland has a different status in private law, based on civil law).
taken by Central and Eastern European countries? How effective would you say they were?
L.G.: I first have to mention that our information is based on what people from these countries, for instance, Lithuania, have offered us. Then, from what As you can see, we are not just an academic project, I could notice, many of these reforms have taken we are well aware that we cannot be focused only on place in stages, and you can see why. It is very hard theory. We have to be practical and engage in what to adopt a completely new system. The problem, is going on as well. however, with a reform that takes place in stages, is that, until you get to the last stage, you cannot get a Lawyr.it: What are the external legislative sources system that works well. This leads to a high level of that you used as an inspiration? How helpful have complexity, as only part of your system is reformed, the UCC Article 9, as well as the Australian, Canaas well as a constant state of change. dian and New Zealand personal property security laws been in your endeavour? Maybe a reason why it is very hard to assess the success of a certain reform is that you can never really L.G.: UCC Article 9 is a great source in theory, but tell whether a problem comes from the reform in in practice not really, as it does not translate too itself or from another source. Maybe the fact that a well in English law, primarily in terms of drafting. freshly reformed system is not working well is not a The Canadian and New Zealand laws were easier to consequence of a fault in the system, but of external use for our purpose. causes, such as the financial crisis. Lawyr.it: What is your opinion about Secured Transactions law reforms around the world, hav“The problem, however, with a ing studied and analysed so many different at- reform that takes place in stages, is tempts and processes (over thirty countries)?
that, until you get to the last stage, you cannot get a system that works well. This leads to a high level of complexity, as only part of your system is reformed, as well as a constant state of change.�
L.G.: Secured Transactions law reform has lately become quite of a big thing around the world, as many states, including in Europe, have reformed their systems, or are currently working on that. Various organisations, like EBRD or World Bank, have also stepped in to help out world countries accomplish this goal. In any case, after seeing so many examples, what I can say is that successfully reforming Secured Transactions law takes a long time. It is a Lawyr.it: In your opinion, given the different bit daunting, but it is actually true, as you need to manner in which several European states have remake sure that everybody gets it right. formed their ST laws, how plausible is that Europe eventually embraces one common model of SeLawyr.it: How about the reforms that were undercured Transactions law? 58
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L.G.: That is a very good question, and a huge problem is, I think, the differences between the civil and common law systems, the fact that we see things in a very different manner. For instance, a civil jurisdiction’s view on how you create propriety interests is not compatible with the English law system and an Article 9 – type system. Having said this, there are enormous efforts trying to overcome these obstacles. Such examples are the UNCITRAL Model Law and the DCFR (ed.n. Draft Common Frame of Reference) that tried to produce a common model.. The thing is that, even if you harmonise the laws of several countries as it happened with the laws on financial collateral, it has to fit in with the law of all countries. If it does not fit, the harmonisation process would simply not happen efficiently. As to whether harmonisation per se is desirable, there are, indeed, several advantages of harmonisation, particularly when it comes to assets being moved between jurisdictions. Whether that would happen is a completely different thing.
Convention on International Interests in Mobile Equipment from 2001) to rail equipment and possibly to other mobile equipment as well. The next one would be, at least in English law, to enact a law on financial collateral. We will try and do our best to help with that, as that is an area that may become extremely problematic, as case law seems to point out. Another area could be security of Intellectual Property (IP). This is an area that really needs to be sorted out, as smaller companies encounter difficulties in obtaining financing. One issue, specifically, that needs to be clarified, relates to the valuation of IP.
“Unless you reform common law in itself and how it sees propriety interests, some provisions such as Book IX of the DCFR’s would not fit within the current system. And property law is something that can be hard to reform.”
Lawyr.it: What do you think about the Book IX of the DCFR (on secured transactions) as a potential viable solution for the harmonisation of European Secured Transactions laws? Lawyr.it: Lastly, our trademark questions: if you have to give one piece of advice from your experiL.G.: The main question stands as how well it would ence, what would you recommend to law students? fit in different countries’ legislative frameworks. For example, I think some bits of the DCFR would not L.G.: This is a very Oxford answer, but I would recwork in England. Unless you reform common law ommend them to make sure they read the primary in itself and how it sees propriety interests, some materials. There is an enormous tendency to rely provisions such as Book IX of the DCFR’s would on secondary sources, such as lectures, textbooks, not fit within the current system. And property law slides. I think that good law students should know is something that can be hard to reform. well the primary materials, as that is what makes a good lawyer. Lawyr.it: What do you think will be the next big challenge in the ST field? By Ioana Stupariu L.G.: One thing that will definitely be on the agenda is the extension of the Cape Town Convention (ed.n. 59
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PROFESSIONAL SPOTLIGHT Interview: Monica Bota Moisin Junior Associate at Biris Goran SPARL
Monica Boța Moisin is an ambitious lawyer on
the pursuit of professional excellence and spiritual growth. With a double degree in French and Romanian Law from the Faculty of Law at the University of Bucharest and from Collège Juridique Franco-Roumain, Université Paris 1 Panthéon-Sorbonne, she is currently a junior associate at Biriș Goran SPARL, a Bucharest based law firm. Having completed a master’s degree at the University of Bucharest with a focus on international arbitration, she is currently working in obtaining a PhD in Law, with an interdisciplinary focus, proposing a research subject at the very crossroads of law, art and cultural studies: ‘The Romanian Blouse – country brand: national symbol – element of cultural property legally protected worldwide’. At the same time, with the support of the online community ‘La blouse roumaine’, Monica is coordinating the drafting of a legislative proposal on the recognition of IA (the Romanian Blouse) as a national symbol of Romania and country brand.
ary. She has been my inspiration and motivation. Lawyr.it: What kind of law do you practice and why did you choose this area? MM: Currently, I practice primarily corporate law and Intellectual Property (IP). I chose IP out of passion and corporate law is the legal alphabet of entrepreneurship - start-ups, joint ventures, investment rounds etc. Knowing about them is insufficient; knowing how to implement them is essential. I believe in dual specialisation when it comes to emerging fields of law.
“Being a lawyer gives you a lot of freedom, meaning that most times it is you that must set the boundaries.” Lawyr.it: What is something you wish you had known about the work of a lawyer before becoming one?
MM: Looking back after two years of legal practice I realise I knew almost nothing about the work of Lawyr.it: How did you decide you wanted to be a a lawyer before I actually became one. I think everything I have learned so far is part of the process lawyer? and I am sure I will rediscover this profession year MM: I chose law because I wanted to step into my by year. Being a lawyer gives you a lot of freedom, grandmother`s shoes. I did not know exactly what meaning that most times it is you that must set her job was all about but I wanted to be like her. My the boundaries. Bob Dylan had a saying: ‘A hero is grandmother was the head of the Bihor Bar until someone who understands the responsibility that she passed away in 1992. I was too young then to comes with his freedom’. In that sense I wish I knew learn professional lessons from her, but her deterthat being a lawyer is not about fancy suits and cormination, sharpness, skill, and elegance are legend60
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PROFESSIONAL SPOTLIGHT ner offices but a story of heroes and villains. Lawyr.it: What do you like best about your job? MM: The versatility. Lawyr.it: What do you find the most challenging in your job?
ber of practice areas covered. Numerous elements must be taken into consideration for making a career choice so the key is asking questions and looking for the place that best fits your expectations. Lawyr.it: You are aiming to pursue a PhD in Intellectual Property (IP) Law. Why a PhD and why did you choose this subject?
MM: Finding the area of practice that suits one`s personality and way of thinking. Law requires a MM: This PhD comes from an internal need to constant work of the mind. If the mind is ‘unhappy’, build on the knowledge and experience I accuthe whole edifice falls down. mulated so far. It is time for sedimentation meta-
“Law requires a constant work of the mind. If the mind is ‘unhappy’, the whole edifice falls down.” Lawyr.it: What are some pros and cons of pursuing a masters programme right after graduating
phorically speaking. IP is my area of interest since law school. My bachelor degree is centred on IP in cinema and, since the last year of university, I have developed a socio-cultural trademark - “ReaDress” - focused on fashion and IP education of Romanian designers and creators.
Lawyr.it: Your area of research will be country brands. Why do you believe it is necessary to creMM: It depends very much on the individual. There ate such a right under IP Law? is no right or wrong or pros and cons. For me personally, the LL.M (n.ed. in International Arbitration MM: Each community has a symbol, an autochwith the University of Bucharest, Law Faculty) right thonous element that is not only specific for that after graduation was an excellent professional step- community but encompasses traditional knowping stone. It did imply juggling work with lectures, how, values of the community, and a set of unwritlong hours at the office with writing essays and pre- ten lessons to be passed on to future generations. paring for exams, but got me two major advantages “In the new age of the mix of cul– it opened the door of opportunities for doctoral post-graduate studies and catalysed my career tures, country brands will become choice between litigation and consultancy. cultural identity matrixes. Why Lawyr.it: Big, small, or boutique law firms? Which one do you think is the best place for young lawyers to start their careers?
start from scratch when we are so rich in cultural knowledge and tradition?”
MM: This is not a ‘one size fits all’ kind of answer. You want a pole position at the start of your career Such elements should be secured through a mechabut that pole position is not limited to the ranking nism that ensures authenticity, encourages creativof the law firm, the amount billed/hour or the num62
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ity and innovation with respect of national identity, and translates economically the cultural value of tradition. As a legal concept, the country brand, as I envisage it, is a sui-generis form of intellectual property protection which pertains to the field of cultural intellectual property. Following a similar logic to that of the right to self-determination, the country band as a mechanism of intellectual property protection, grants its holder, namely the people – a community, a cultural intellectual property right susceptible of monetisation, as well as all prerogatives specific to intellectual property rights in general. In the new age of the mix of cultures, country brands will become cultural identity matrixes. Why start from scratch when we are so rich in cultural knowledge and tradition? Lawyr.it: How is the increasingly accessible and present internet affecting IP Law and how do you think it will continue to in the future?
dent who is still trying to discover which career path they should follow? MM: To keep looking. Never settle. And it is in moments of greatest distress that enlightenment comes.
“Interconnectivity is reality. In a digitalized world, IP is a constant presence in everyday life. From the photo you have posted on Facebook to the shopping you are now doing online everything has an IP component. ” The best success stories start with ‘After failing … I was devastated. But I was soon going to find out that it was the best thing that had happened to me’. I am not saying that failure is a prerequisite to finding the right career path. I am saying that failure is not a dead-end but an opportunity. Law will always be one step behind reality, as it is humans that make laws contrary to the divine law theory. And this means that if you are well centred in reality, with your feet on the ground and your head in the sky, you can foresee the way things will turn out, and choose wisely. Wise for yourself.
MM: Interconnectivity is reality. In a digitalized world, IP is a constant presence in everyday life. From the photo you have posted on Facebook to the shopping you are now doing online everything has an IP component. And this is not the peak of IP Law. New niches will emerge and a myriad of ques tions will require solutions. People are shifting to digitised identity. I know people saying ‘If you`re not on Facebook, you do not exist’.
By Radu Șomlea
Lawyr.it: What do you think about that? MM: In eleven years of existence Facebook only has generated a treaty worth of legal issues and caselaw on intellectual property. IP is expanding at high speed. Lawyr.it: What advice would you give a Law stu-
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QUESTION OF THE ISSUE
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QUESTION OF THE ISSUE What was the biggest turning point in your career or during your legal studies?
Since its launch, Lawyr.it has been encouraging our readers and supporters to express themselves, not
only by submitting articles, but also by answering different questions concerning their preferences, challenges, or achievements. This Question of the Issue section presents the stories of some law students and young professionals on the biggest turning point of their career. We kindly thank them for their responses and we invite you to find out more in the following!
“The biggest turning point as a student was definitely joining ELSA (the European Law Students’ Association). Even if this was in my first year, I say it was a turning point because ELSA helped me improve some soft skills which I consider to be of utmost importance in our domain, such as public speaking, leadership, interaction with others. Involving in ELSA’s projects and spending a lot of time with this forced me to be more organised, to avoid wasting time, so that I do not neglect learning and going to classes. Managing to do all this is quite a challenge, but this challenge prepares you for the future life you will have after finishing the University. ELSA also gave me the opportunity to meet new people, at first from our University, then from Romania and from all around the Europe, and it is a nice feeling to know that you are a part of a network which includes forty thousand law students.” Dorel Herinean 3rd year, Faculty of Law, Babeş-Bolyai University, Romania
What would you like to read about in the next issue in this rubric? E-mail us your suggestions at editors@lawyr.it! 66
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“The biggest turning point in my career has been without doubt co-founding the law firm Chirita si asociatii. The reason for which I consider this the biggest turning point is because from that point on my responsibilities, perspectives and thus, the way I did my job changed entirely. It was from that point on that I realised that I was three times responsible: for my own actions, for my co-workers’ actions and for my clients’ actions and that doing well each of the three responsibilities’ task is a goal. To be more specific, whereas as an employed lawyer or an associate you rely on the feeling that in the end, if you make a mistake, there is someone above you to correct it the situation is completely different when you are the one in charge. It was after my turning point that I realised I had to do my best in making no mistakes and by making no mistakes I mean myself and my colleagues. It was only after that point that I realised that doing my best is a real must because there are several people depending on me – our clients as well as our colleagues and that irrespective of my own problems solving theirs is also the priority. The turning point also made significant changes in my activity as a lawyer because each time I go to court I must be an example for both myself and my colleagues who many times are in court behind me watching and wanting to learn. Last but not least, as odd as it may seem it was from my turning point on that I saw how important it is to communicate with others because if you lack communication skills I believe that your duties as a lawyer and a partner in a law firm are impossible to deliver. It has been four years since I have had my turning point changed my career to the extent that I really love doing my job/jobs. Looking back over the past for years I am proud of what our firm has become and I am looking forward to the future with more enthusiasm than ever.” Oana Chiriţă Senior Partner at Chiriţă & Asociaţii, Romania
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QUESTION OF THE ISSUE What was the biggest turning point in your career or during your legal studies? “The turning point of my student life came when I discovered my core of strength. When my peers dreamt of joining a Magic Circle law firm, I dreamt about creating a platform for law students from all continents to come together and work for making a change. I looked upon European Law Students’ Association (ELSA) which had been doing a commendable job in Europe, and incorporated The Network for International Law Students (NILS), which could cater the needs of students, not just from Europe but all continents. One and a half years have passed, and I am happy to have taken this organisation to fourteen countries across three continents. My core of strength which I have already talked about is my leadership and management skills. Resting on this strength of mine, I co-founded two other projects: Global Affairs Review (which boasts to be a student-run online magazine involving over hundred students from thirty different countries), and Indian Union Debate Forum (which seeks to promote Union-styled debates in India and foster public debates).” Pratik Bakshi 3rd year, The National University of Advanced Legal Studies, Kochi “The so-called ‘turning point’ is too often regarded as a mere moment of revelation in our careers. However, in my path as a law student, this has proven to be a process lasting the semester I immersed myself in the study of Human Rights. The subject in itself composed primarily of a daunting amount of jurisprudence is fascinating, but I found that its raw appeal was the impact in the contemporary society. It had suddenly occurred to me that the ultimate focus in a law career should be, rather than following the abstract notion of ‘justice’, sheltering the people and consequently, through this, preserving the thing that makes us human - our conscience.” Andrada Savu 3rd year, Faculty of Law, Babeş-Bolyai University, Romania 68
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“The biggest turning point in my experience as a student was the moment I decided to move to Vienna and continue my studies there. I did not expect this change to be major, because I was still studying law and I thought it could not be very different to what I studied in Cluj. When I arrived in Vienna, I realised that they have a different approach to studying law, and I had to forget all I had learned in Romania in order to understand and adapt to the new system. At first I was forced to learn how to study for my exams here, so I browsed through the examples of last years hoping to find a way to understand better the requirements. Thankfully I came to see that their approach is very calculated and mathematical. So I had to see every case or question as a math problem and I had to go through every step and rule out every other possibility in order to demonstrate the final result. What dazzled me was the fact that the students are taught from high school how to solve these requests in strict patterns, the professors are not interested by the amount of the writing but by the precision and clarity one solves a case. Therefore my biggest turning point was to adapt to this mathematical way of thinking and solving different requirements.” Iulia Manchevici 3rd year, Faculty of Law, Universität Wien, Austria “It was a few months before graduating high school when I decided upon joining the Police Academy. I started preparing for admissions, only to find out, when the time came to apply, that they had changed the height criteria, making me no longer eligible. You can imagine how upset I was. All my hard work went up in smoke. Oddly enough, it was the only year when the height limit was raised, returning to normal the following year. I did not know it at the time, but that was the turning point in my career choice, as it led me towards Law School and then further on to a career as a magistrate. So, in the end, I guess it paid off being slightly shorter.” Anghel Marian Pop Judge and Teaching assistant at Babeş-Bolyai University, Romania 69
DEVIL'S ADVOCATE
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DEVIL'S ADVOCATE Is the Charter of the United Nations sufficient to cope with the contemporary threats to the international peace and security? This issue's advocates: PROs: Călin Mureșanu Călin graduated in 2015 from the Babes-Bolyai University (L.L.B in Law) and has recently been admitted to the Bucharest Bar. He was one of the four founding members of the Lawyr.it project and has been a Senior Editor until June. As a law student, he was also involved in the university’s debate team, as well as a member of the editorial board of Criminal Law Writings. Currently, he is working as an Associate at Reff & Associates SCA, member of Deloitte Legal, Romania. CONs: Henok Abebe Gebeyehu Henok Gebeyehu graduated in 2013 with Bachelor Degree in Laws (LLB) with Great Distinction from Addis Ababa University. Since November 2013, he has been working as Instructor of Law at College of Law, Haramaya University, Ethiopia. Currently, he is an LL.M Human Rights student at Central European University, being their representative at the Student Union and a Student Union Board member.
Debate Foreword. Moderator's note Dear readers, The following debate questions the effectiveness of the Charter of the United Nations. Developed in 1945, its ability to keep its relevance amidst the latest developments concerning Syria, and the emergence of asymmetric threats in the form of rebel or terrorist groups is open to question. We would like to point out that this is a special debate to us, as we have Călin Mureșanu, a Lawyr.it alumni and Vice-president of the Lawyr.it board, as a guest contributor in what is an Old Editors v New Editors debate. Keep reading the interesting arguments put forward by our debaters, and feel free to send us your own opinion on the issue, at editors@lawyr.it. The most interesting opinion will be published in our upcoming issue. By Raluca Maxim 72
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Opening Remarks Călin MureČ™anu: The United Nations was established after World War II, following the failure of the League of Nations in preventing the escalation of large-scale conflicts. In the three and a half decades up to the establishment of the UN, over 70 million people had perished in the two major conflagrations. A strong international organisation was needed, one which would include the major powers and respect their interests while also forcing them to keep each other in check, so as to prevent the occurrence of a third war of similar magnitude. I argue that it has succeeded in its mission, and has done so not because of the lack of challenges, as the world has since seen many smaller-scale armed conflicts, as well as a 44-year long Cold War. My opponent argues that the United Nations Security Council fails to act promptly because of the veto power, leading to the occurrence of bloodletting crises, such as the one in Syria. My response is twofold. Firstly, I argue that in analysing if such events amount to enough of a problem to deem the whole system as dysfunctional, we need to have a broader perspective. I do not argue that the system is perfect – conflicts will happen. However, the role of the right to veto is to maintain the fragile balance where the interests of the major political and military forces of the world are kept in check, while also giving them enough political power to make sure that they adhere to the organization and the system rather than choose to simply ignore the framework. Note that International Law does not have the same enforcing mechanisms as National Law does, and it heavily relies on States willingly cooperating with each other. Some conflicts may happen under the system, but the system makes sure that no interest of a major power is infringed upon in such a significant way to cause a larger-scale conflict. Secondly, when failure to act happens, such as was the case in Syria, it happens because there are underlying reasons for major actors to exercise their veto power. Syria was the battleground of a myriad of conflicting interests and agendas. At no point was it evident that the intervention was the proper course
Henok Abebe Gebeyehu: The maintenance of international peace and security, which is the linchpin of all purposes, is the number one chartered mission of the United Nations (UN), established to spare the generation from the scourge of war. We, the peoples of the United Nations, are sailing in the same boat where your infliction is mine, and my enchantment is yours as well. The General Assembly (GA), during the 2005 World Submit, affirmed that the relevant provisions of the UN Charter are sufficient to effectively deal with the contemporary threats to the international peace and security. I argue, however, that there are certain loopholes that still impede the entity from effectively achieving its ambitions (Guzman, 2011). First, one of its main organs, the Security Council (SC), is entangled with the veto power scheme. The SC has been failing to act resolutely during situations that have paramount ramifications on the international concord. The Permanent Member States of the SC are jealously guarded, with the help of the anachronistic veto power, their strategic interest, and political motives at the expense of their international responsibility. The double standard problem and the veto power scheme epitomise the failure of the SC to swiftly react in the bloodletting crisis of Syria. The failure is piled with the lack of a well-developed and binding international norm of the responsibility to protect, and humanitarian intervention principles. Pursuant to the Uniting for Peace Resolution, the General Assembly (GA), however, has certain recommendation powers, but they are short of legal binding force. Second, the failure of the UN Charter to encompass the new developments of prohibition of the threat and use of force and self-defence against private actors makes the organisation less effective. The right to self-defence, an inherent right of states, is an exception to Article 2 (4) which restrains states from resorting to the threat or use of force, when an armed attack is launched by a state against the territorial integrity or political independence of another member state. Resort to self-help is allowed only when the entity whose acts are attributable to the state has performed the armed attack. However, nowadays, states tend to use Article 51 against an73
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DEVIL'S ADVOCATE of action and that it would lead to long-standing peace in the Middle East. Furthermore, individual states, including states with the veto right, had strategic geo-economic and geo-political interests at stake which also needed protection. These interests are there regardless of the system we put in place to protect international security. In spite of all of this, the UNSC has eventually managed to reach a consensus and has been taking steps to find a long-term solution for Syria as of August 2015.
other state when it is the terrorists or rebel groups who attack, and the host state is unable or unwilling to curtail the harmful conduct. Among other things, terrorism is one of the greatest menace to international peace and security. Prohibition of the threat and use of force is meant to effectively tackle the infliction of massive injury by states. Despite the glaring fact that non-state actors are as capable as states to inflict massive injury, however, the right to resort to self-help to terminate a pernicious attack committed by private parties is not permitted With respect to the UN’s implication in threats pro- by the Charter. moted by individual actors, we need to nuance the Pursuant to the Charter, harbouring a rebel or tercases where the actions of an individual amount to rorist group does not amount to an armed attack such a threat that they are under the scope of the UN by a State. Nor does the Charter envisage the right Charter. The Charter was designed as a framework to self-defence against the safe-harbor state. Selfto developing international peace, to prevent inter- defence against a state for an act committed by state conflicts. When an individual poses a threat to non-state actors, and counterterrorism responses the peace of an individual state, it is rarely an inter- as a self-help right against private actors hosted state matter and more often a case of an individual in another state are unwarranted self-defence accommitting a crime that he/she should be punished tions that contravene Article 2 (4) and 51 of the for. Whereas terrorism may indeed be international UN Charter. Despite all the prohibitions, states are in effect, in the sense that a group of individuals utilising their inherent unilateral self-defense right. from one country may pose threats to people from The dissonance between the real state actions and other countries, such individuals do not act as rep- the Charter is one of the constraints of the UN and resentatives of any state, falling outside the scope makes the Charter less effective to maintain the inof the UN Charter. There are other mechanisms ternational peace and security. specifically targeting such crimes committed by the Third, the advent of the notion of peremptory selfindividuals, such as the ICC. The actions of such defence and the proliferation of weapons of mass individuals may be addressed by individual states destruction makes the Charter, not least Article 51 based on national and international criminal law. that requires the occurrence of an armed attack, fuTo the extent that a state actively condones terror- tile and archaic. States are exercising anticipatory ism, I argue that Article 51 of the UN charter is fully self-defence, which is not envisaged by the Charter, assuming that to wait until the trigger is pulled and applicable and does not present a lacuna. the bullet is ignited would certainly result in irrepaTo conclude, whereas I do not believe that the UN rable and irreplaceable annihilation. Charter is perfect or that it provides a silver bullet for combating threats to global security, I argue that Therefore, it is hardly possible to imagine that the the past 70 years of relative peace have proved that UN Charter, while it fails to address such de facto lacunas, is sufficient to effectively deal with the the UN Charter is a functioning tool. contemporary threats to international peace and security. Moderator’s Note: Henok’s main argument resolves around the Security Council’s inability to act, in accordance with its powers, due to the existence of the veto right, the scantiness of provisions relating to non-state actors, as well as the failure of Article 51 to incorporate anticipatory self-defense. The blockage, according to Henok, results from the geo-economic and geopolitical interests of its members. Călin, on the other hand, provides a new perspective, arguing that the failure in finding a common ground cannot be solely attributed to the veto right. He also counters Henok’s reference to terrorism and non-state actors, arguing that a group of individuals do not act as state representatives, and, as a result, the UN Charter is not applicable to their actions. 74
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Rebuttal Călin Mureșanu: It is without doubt that failures occur under the framework set forth by the UN Charter. I agree with my opponent that it is foolish to argue that the Charter is an impeccable tool for defending peace internationally. However, we need to analyse the extent to which these failures are caused by a flaw of the system and the extent to which a different system would yield less failures, without any significant disadvantage. It is easy to point out failures; these become more obvious as the loss of human life (often in high number) occurs. However, success is less quantifiable – it is harder to notice that which did not happen. I argue that the UN (especially because of the UNSC) has successfully kept a state of relative peace for the last 70 years. My opponent’s main argument relies on the fact that the right to veto allows for conflagrations to escalate around the world because of key strategic interests of individual countries that urge them to exercise the use of the veto and block intervention. My opponent is correct in pointing this out. However, what my opponent doesn’t point out in his argumentation is that it is specifically because of this veto power that major poles of power (such as the USSR for the majority of the existence of the UN) are incentivised to invest into the organisation and uphold its resolutions as norms of international law. As I mentioned before, international law does not benefit from the same enforceability that national law has. In a national jurisdiction, the State has a monopoly over the use of force, as well as authority to regulate what individuals can and cannot do. This allows for a mechanism where the legislative body of a State defines a set of rules that all individuals must follow, a State-approved Court of Law decides when an individual has breached said rules, and the State’s law enforcement can then proceed to prosecute individuals and enforce the law (or Court ruling) with authority. At an international law, there is no such monopoly over power, nor is there a powerful enforcement mechanism that we can use to enforce rules of international law. These norms only
Henok Abebe Gebeyehu: It is neither a pertinent nor a wise move to turn our neck backward to argue whether the UN Charter is an impeccable instrument to effectively handle contemporary threats to the international peace and security. The Syrian conflict is the epitome, but not the sole mess that the SC has failed to address. The Council has been impotent in so many instances, such as Rwanda, Darfur, Bosnia, and its failure to condemn Russia’s annexation of Crimea. The mechanism envisaged by the founding members might have been meant to effectively keep the influential power holders, but, as it is evidenced from history, the veto design makes the Council to act with one hand tied behind its back. Referring to the veto right of the P5 states, the collective self-defence scheme failed to halt a conflict that bears a chilling effect on the international peace and security. The international community is experiencing repetitive annihilation, as the conflict opens a Pandora’s Box for similar sufferings, and the SC will not react if the interest of one of the permanent members is at stake. And then, how can the UNSC maintain the international harmony at the same time pursuing the uncompromising interest of its super powers? The problem is not all about the existence of greedy political interest in a certain conflict prone area; rather it is all about leaving the international peace and security under the mercy of their selfish interest. My opponent has argued that whether veto power is schematised or not, conflicts might happen, but I also say that the anguish could have been ameliorated had there not been a veto power scheme or had there been a system of expedited intervention mechanism. Unaddressed state conducts are multiplying. The charter did not envisage the US military operation in 75
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DEVIL'S ADVOCATE gain the status of ‘mandatory’ law that States must follow through willing adhesion from the States to the norms. It is therefore essential that we respect individual States’ interests and incentivise them to ‘buy-in’ to the system that we create, especially if said States are major poles of power in the absence of which the system could hardly be called ‘international’.
Afghanistan under the guise of dismantling terrorist groups. The right to resort to the self-defence is applicable when the attack is launched by another state. A new development of the self-help right against non-state actors is, however, springing up and looming over the international peace and security, while the Charter fails short of solutions.
It is this very mechanism of respecting State interests and sovereignty that has led to the greatest success of the UNSC so far – preventing a conflagration of the scale of the two World Wars. Note that we live in a world where ‘Mutually-Assured Destruction’ is a term we have gotten used to and are strangely comfortable with. Note that the United States and Russia, the states with the world’s largest nuclear arsenals were in a Cold War for more than four decades. This state of global peace is largely due to countries’ unwillingness to defy this highest expression of international law – The United Nations with its Security Council (Sieff, 2013). In the absence of the right to veto, this would not happen.
There are conducts seen as crimes, which fall under the jurisdiction of national or/and international adjudicatory systems. What if the states resort to taking the law into their own hands? That would be similar to what Ethiopia did against Al-Shabaab in Somalia, and the USA in Afghanistan and Iraq. The Charter is far from addressing the practical state conducts that shrouded over the international peace and security. Israel destroyed the Osirak Nuclear Reactor of Iraq in 1981 under the doctrine of anticipatory selfdefence. No state, especially a capable one, will wait for the nuclear attack to be launched. This is another The underlying assumption that is present in my unaddressed threat to the international harmony that opponent’s argumentation is that the UN is a failure will pose a threat to the UN’s ability to maintain its in that it protects States’ interests unequally, giving missions. significantly more protection to the P5 countries than to all other countries. That may be the case; one could argue that the League of Nations was ‘fairer’. But the League of Nations failed. In our struggle to achieve world peace, we need to acknowledge that the issue is not about democracy – it is about balancing effectiveness, legitimacy and rights (Muravchik, 2006). Moderator’s Note: At this point, Henok consolidates his arguments by explaining the consequences resulted from the failure of the collective self-defense scheme, and he counters Călin’s point on the underlying causes of the SC’s inaction, by stating that it is the countries’ selfish interest which leads to the blockage, rather than the geopolitical interests reserved to a certain area. Călin, in turn, argues that, as criticisable the veto right is, the UN has successfully prevented a large-scale conflict over the past 70 years, and moreover, it has been a powerful tool in trying to build a similar level of enforceability of international law norms as is the case with national law. I hope you enjoyed the debate and the conclusions will help you form an opinion of your own!
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Closing Remarks Călin Mureșanu: The United Nations greatest success probably is the fact that the ‘Cold War’ happened, rather than ‘World War III’. It is a system that effectively deals with major threats to peace and security worldwide. It has succeeded in creating a world worthy of its name – a world where global powers of vastly competing interests are not just able, but more importantly willing to cooperate on providing solutions to escalating conflicts and upholding a global notion of peace.
Henok Abebe Gebeyehu: Having the mission to maintain the international peace and security at the crux of its purpose, the UN has been passed through myriads of vicissitudes, traversed into the doomed and gloomed Cold War epoch and finally reached the age of extremism and terrorism. It is difficult to get a conventional success metric as the best indicator of the achievements and failures of the UN, but, still, it is worth noticing that the organisation has managed to achieve a small part of success. There has never been, after the establishment of the UN, a In arguing against the effectiveness of the UNSC, similar war like the two World Wars, and this can be US secretary of state Cordell Hull says that the ‘en- considered as the roaring success of the entity. tire plan’ of the United Nations rests on the premise New threats to the international peace and security, that the permanent members of the Security Counwhich were not envisaged by the founding fathers of cil consider themselves morally bound to cooperate the UN, are emerging. The SC ensnared by the veto with each other in maintaining peace, but that only power and succumbed to take measures that could the US and UK act on morality. The others three have assuaged the destruction and plights. Our topowers follow foreign policies out of pure egoism, morrow, together as the citizenry of the globe, can untainted by any trace of morality (Muravchik, be bright or gloom. The turmoil at the Middle East 2006). This is correct. However, this is a reality that has the potential to disturb the whole world. If a cannot be changed by any international organisa- system fails to preserve peace and protect humantion. Instead of foolishly hoping that the reality will ity at a certain corner of the globe, we, too, all are change, we need to acknowledge this fact and cher- responsible for that. ish the fact that the UNSC does not solely rely on morality; it provides these states with a means to The onset of terrorism and proxy wars makes Artiselfishly protect their interests – the right to veto. cle 51 of the charter futile, as states, under the guise This keeps them invested into the organisation, and of dismantling terrorism, claim they are using an is thus a necessary evil without which global peace inherent self-defence right against non-state actors, although the article permits the use of force only would suffer dearly. when an attack directed against a member state by another member state.
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