VOL. 2 | ED. 2 APRIL 30, 2014
INTRODUCING A WORLD OF OPPORTUNITIES A STEPPING STONE TO A SUCCESSFUL LEGAL CAREER
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LAWYR.IT TEAM Senior Editors Călin Mureşanu - 4th year, Babeş-Bolyai University Ioana Stupariu - 4th year, Babeş-Bolyai University Andrada Rusan - 4th year, Babeş-Bolyai University Andrada Florea - 4th year, Babeş-Bolyai University Oana-Cristina Gligan - 4th year, Babeş-Bolyai University
Junior Editors Alexandru Coraş - 3rd year, Babeş-Bolyai University Andreia-Gemma Moraru - 3rd year, Babeş-Bolyai University Dan Moroşan - 4th year, Babeş-Bolyai University Irina Negruţiu - 4th year, Babeş-Bolyai University Ioana Bărăian - 4th year, Babeş-Bolyai University Mădălina Perţe - 3rd year, Babeş-Bolyai University Neada Mullalli - 2nd year PhD, Central European University Oana Iulia Irimia - 2nd year, Nicolae Titulescu University, Bucharest Raluca Alexandra Maxim - 2nd year, Babeş-Bolyai University
PR Coordinators Adrian Condraşov - 3rd year, Nicolae Titulescu University, Bucharest Anny Stoikova - S.J.D. candidate, Central European University Delia Cristiana Stamate - 3rd year. Ovidius University, Constanţa Dora Maria Demble - 2nd year, University of Vienna - Juridicum Ioana Atomulese - MA, Alexandru Ioan Cuza University, Iasi Stella Turnsek - 4th year, University of Zagreb
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VOL. 2 | ED. 2
By Calin Muresanu
months have passed since December 20, 2013, when we released our fourth issue. As time has its way of changing things, Lawyr.it could not be an exception, and many changes have happened to the way our project looks like. New senior editors are now a part of our team, while, regrettably, old ones have had to leave us – we thank them through this note again for their invaluable contribution to our magazine. We have also added new content to our magazine and to our website, different sections, and, soon enough, we will announce a new project that will expand our efforts into achieving our initial aim: to provide a bridge between Law students in Central and Eastern Europe and the legal job market in these countries. Stay tuned to learn more! Moreover, we are proud to announce that the Lawyr.it Dictionary, a project which we have been working on since October last year, now comprises 31 terms defined and well referenced by our editors and keeps growing every week. However, we believe that change is good. Change is what keeps us dynamic, what makes sure that we do not get out-dated and it is only through change that we can keep up with the demands of a constantly developing market like the legal market is. We have faith in our young, dynamic team that the changes that they choose to implement will bring us closer to truly becoming a bridge between students and lawyers, a stepping stone to professional greatness. We hope that you will enjoy this fifth issue and that within its pages you will find the energy and the enthusiasm which characterises our team. Keep Lawyr-ing!
insights of this topic and analyse whether it should lie with the programmers or with the engineers that built the drones. On the other hand, our Professional Spotlight rubric will bring you not one, not two, but three interviews with different professionals! Also, as a consequence of our constant efforts to grow, there are a few new sections. You can find a report about studying law in the Netherlands, written by our own Andreia Moraru, who is currently undergoing an exchange at Utrecht University. Different lawyers answer our question of the issue, what’s the most valuable skill that a lawyer must have in order to be successful? Within our pages you can also find a section about various opportunities that law students can access and, lastly, Ioana Stupariu writes about the internships that some of the students whose articles we have published have received through our internship programme. Last but not least, this issue brings ten brand new articles, from various fields of law. You can read about the liability for lack of conformity with the contract in consumer law or find out what the effects of company law harmonization were in the UK. An article in the field of commercial law discusses the issue of non-financial reporting of companies in the EU. Furthermore, if you are more interested in civil law, you can read about a new trend in the matter of divorce: divorce by notary procedure. Moving into the field of European Union law, you can read a history of the multiple Treaties that the European Union is based upon and how these influenced the way in which the EU developed. In terms of Public Law, you can read about referendums and what their advantages and disadvantages are, or you can read about the rapid decline of the capital punishment. Lastly, you can explore an article on a hot topic in international law: the applicability of the doctrine of the responsibility to protect in Syria.
In this issue, The Devil’s Advocate rubric will bring you an interesting debate about where the responsi- We hope you will enjoy the read! bility for crimes committed by autonomous drones should be placed. Two students try to explore the 4
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IN THIS EDITION Domestic Focus The liability for lack of conformity with the contract - a promising achievement of Consumer Law (p. 8) Company Law Harmonization in the UK (p. 10) The new trend in the matter of divorce: the divorce by notary procedure (p. 12)
Studying Law in the Netherlands (p. 16) Opportunities for students (p. 18)
Referendum - the good, the bad and the very ugly (p. 22) Capital Punishment - A Rapid Decline (p. 24)
Professional Spotlight Interview: Daniel Nitu - Assistant Professor - Babes-Bolyai University (p. 28) Interview: Eugen Iordachescu - Senior Managing Partner - LLP Iordachescu & Associates (p. 32) Interview: Leonie van Leont - Assistant Professor - Utrecht University (p. 36) Question of the issue (p. 40) Special: Lawyr.it – a bridge between students and law firms (p. 44)
Applicability of the ‘Responsibility to protect’ doctrine in Syria (p. 48) Non-financial reporting of companies in the EU: a ‘voluntary obligation’? (p. 50) Does European Union citizenship impact upon national sovereignity? (p. 52) The complicated road between failure and success: the EU version (p. 54) Should EU legislation regarding the ‘made in Germany’ trademark for the automotive industry be revised? (p. 56)
Should engineers be held responsible instead of programmers in the case of autonomous drones? (p. 60) 5
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DOMESTIC FOCUS The liability for lack of conformity with the contract - a promising achievement of Consumer Law
The legislator built Consumer
tively or separately, if his expectations are not fulfilled. That is why we might find it surprising that Law to be the safety net of the there still are some situations when the guarantee everyday consumer in response for conformity with the contract is the only answer. to the booming trade and marketing industry. As President Why do we need it? Kennedy observed in his Special In order to reveal its genuine feature, a comparative Message to the Congress on Properspective is required. The obligation of conformtecting the Consumer Interest in ity with the contract becomes more determinant as 1962, the consumer mass reprethe lack of conformity is smaller. sents the most important economic group, but also the one Some simple hypotheses can answer the question whose needs are the least taken into account. better than any doctrinal presentation. Therefore, if you buy a wooden table and you are delivered a Even though this branch of law has experienced a couch, there should not be any problems when you very dynamic evolution, it never seems to complete ask the seller to change the product or you ask for its mission, as commercial law innovates. It must a refund. It is certain that your contract was not constantly improve and withstand the challenges executed. But what if you buy a wooden table and in order to rebalance the contract field in favour of instead you are delivered a metal one? Again, if the â€˜weaker partyâ€™. This was also the purpose of the you specified that your table should be made out of European Parliament and the Council on May 25, wood and the seller understood or at least should 1999 when they adopted the Directive 1999/44/EC have anticipated this option based on reasonable regarding certain aspects of the sale of consumer criteria, you can use the same remedies. You can ingoods and associated guarantees. The Directive was voke the non-compliance with the obligation, you enacted by all member states. Without any amendcan ask for a full price refund or, eventually, ask for ments, Romania acted accordingly adopting Law the contract to end. Things seem to get a bit more 449/2003. complicated in the next situation. The consumer buys a wooden table, he/she is delivered a wooden But what exactly is this guarantee? table, but the product has a latent defect. For examThe guarantee for conformity with the contract rep- ple there is a small termitarium (termite nest) inside resents the legal means by which a seller or a pro- the structure of the piece of furniture. It is a defect ducer is liable to the consumer for any lack of corre- that could have remained unknown even for the spondence between what the consumer legitimately seller himself, and could not have been spotted by expected from the product bought and what was a medium diligent consumer. This goes beyond the actually received. guarantee, it is a latent defect and the remedies in this case are regulated separately. The premise of its merits is that this guarantee was invented to fill a legislative gap. The main difficulties It is important to observe that whereas in the first encountered by consumers and the main source of two hypotheses the consumer did not receive the disputes with sellers concern the non-conformity of product he had bought, in the last situation, the goods with the contract. It might look like the buyer product apparently is the same with the one the can invoke a large range of legal remedies alterna- consumer had asked for, but the latent defect makes 8
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it unusable, and, therefore, different from the product A very important aspect regards the time limits in that the consumer wanted to buy. which the consumer must take action. The seller is to be held liable within two years from the delivery date The fourth example presents the situation where the for new products. For second-hand goods, the time guarantee for conformity becomes useful. The table limit is one year. Also, the consumer must inform the that the consumer buys is perfectly functional but he/ seller about the lack of conformity within a period of she is delivered a wooden table of a different colour two months from the date on which he detected such than the sample the buyer and the seller had agreed a lack of conformity. upon. Should the consumer be held to accept this minor non-conformity? What if the colour of the wood is In order to favour the consumer, the Directive uses fine but the expensive table he/she has bought for his/ the presumption that the lack of conformity that reher living room has notable scratches on the surface? veals itself within the first 6 months must have existed An aesthetic defect is as important as any other one at the time of delivery. It is up to the seller to prove in the Directive’s view. Since the discussion is about that the products delivered are in conformity with the products that are new, it is absolutely reasonable that order, or that they are fit for the normal purpose of the the consumer’s expectance is to receive flawless prod- product. (Rondey, 2005) ucts, even if the lack of conformity was minor (Goicovici, 2006). The same analysis applies when the con- To sum up: sumer revealed the particular usage he/she wanted to 1. The product delivered must be identical in terms of assign to the product and the seller guaranteed for it. quality and quantity with the product bought. The magnitude of the non-conformity is relevant for justifying the remedy that a consumer can use.
2. A notable difference from the other guarantees is that the seller is held liable for any lack of conformity.
What can the consumer do?
3. We can distinguish between two types of conformAccording to Article 3 of the Directive, in the case of a ity (I.F. Popa, 2006). The material conformity refers lack of conformity at the moment of the delivery, the to the identity of the product bought which must reconsumer is entitled to have the goods brought into veal the same quality, quantity and content as stated conformity free of charge by repair or replacement, or in the contract, the law, the commercial customs, or to get an appropriate discount or ask for the contract corresponding to a sample. The functional conformto be rescinded. These four remedies are not listed in ity refers to the use that the consumer wants to give to a random order but according to the gravity of their the product, usage that the seller guaranteed for or the effects on the seller’s patrimony. This criterion is to be product’s labels certified for. applied along with the principle of the most effective In conclusion, this regulation is more than welcome remedy from the consumer’s point of view. First, the and definitely provides an extra layer of protection for consumer should agree to have the product repaired consumers against abusive sellers/producers who take or replaced, unless this is impossible or dispropor- advantage of any law breach. Besides the fact that its tionate, as compared to another remedy. The solution practical input is undoubted, the guarantee’s fairness must be applied within a reasonable time and without is sustained by an objective criterion: the consumer’s any significant inconvenience for the consumer. The reasonable expectations legitimated by the law. nature of the goods and the purpose for which the By Diana Buzilă consumer required the goods have to be taken into consideration. If any one of these conditions is not respected, the consumer may require an appropriate reduction in the price or have the contract rescinded. However, the latter remedy does not apply if the lack of conformity is minor. Regarding damages, the Directive remains silent. 9
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DOMESTIC FOCUS Company Law Harmonization in the UK
UK institutions responsible for
bark on a fundamental review of the framework of core company law, in order to achieve a company the reform of corporate law can law that was competitive, and to provide a framevery well make their own great work in which British businesses could grow and plans, but in reality the focus compete effectively in an economic sense. and initiative has to be shifted towards Brussels. This essay will The result of this long process led to what was the discuss the effects of this shift on longest Act in the history of the Parliament: the English company law. For a bet- Companies Act 2006 (CA 2006). Although this ter understanding, one must first represents a major reform, it is not a revolution, as look at the evolution of UK Com- Dignam acknowledges (2011). It is a consolidatpany Law, then at the European ing statute which reflects the incremental growth Union’s reforms, the interconnection between the of company law with few fundamental changes. Its two, and finally at the current and future possible four key objectives as noted in the Regulatory Imimpact of the shift on British company law. pact Assessment are: (1) to make it easier to set up UK Reform. Since the foundations of company law were set in UK through the first Companies Act, passing in 1844, there has been a 20-year cycle of review resulting in Acts adopted in 1862, 1883, 1908, 1929, 1948, 1980, 1985, with the new Act entering in force in 2006. This indicates that there is a conscious effort to keep company law relevant to current needs (Omer, 2009). The Joint Stock Companies Act 1856 established the framework for the modern-style company, incorporated by registration and enjoying limited liability. From 1856 to the present day, the institution of the ‘company’ and the legislation dealing with it has not suffered any paradigm shifts. However, the Parliament has been busy in company affairs from time to time, passing, amending, and consolidating the Acts. The prevailing sentiment at the start of the general review of company law in 1998 was critical towards the ‘numerous additions, amendments and consolidations that have ‘created a patchwork of regulation that is immensely complex and seriously out of date ’ (Company Law Review Act 1998). The Company Law Review was created to overhaul this untidy, complex, and difficult to understand legislation. The declared aims of the project were to em10
and run a company; (2) to ensure better a regulation and a ‘Think Small First’ approach; (3) to enhance shareholder engagement and a long-term investment culture; and (4) to provide flexibility for the future. EU Reform. Since UK’s accession to the European Union in 1972, its options regarding law reform were bounded by its obligations to implement Community rules (Ferran, 2001). The objectives of the Treaty on the Functioning of the European Union (TFEU) include the facilitating of trade and the removal of barriers to people’s freedom to establish their businesses and invest their capital on a basis of equality throughout the EU. In order to achieve this integrated financial market, a plan for the ‘harmonisation’ of domestic company law was instituted (See TFEU, art. 44 (2) (g)). The legislative procedure dictates that the European Commission in Brussels makes proposals for Directives (or less often, Regulations) which are then adopted by the Council of the EU and the European Parliament. The flexible method of the Directive was chosen because the Directives are only binding on the member state, which must implement in their own law by its own legislation (Pettet, Lowry, and Reisberg, 2012).
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The thirteen Company Law Directives (out of which the fifth and tenth have not yet been adopted, and the ninth has been redrawn) have led to a number of important changes in technical company law. Such changes are the abolition of the external effect of the ultra vires rule (First Company Law Directive 68/151/ EEC), reforming the accounting and audit requirements (Fourth Company Law Directive 78/660/EEC, Seventh Company Law Directive 83/349/EEC and Eighth Company Law Directive 84/253/EEC), the area of mergers and acquisitions (Third Company Law Directive 78/855/EEC, Sixth Company Law Directive 82/891/EEC, Tenth Company Law Directive 2005/56/ EC and Thirteenth Company Law Directive 2004/25/ EC) and many others.
For instance, it is not possible for a Public Limited Company (PLC) in the United Kingdom to transfer the registered office to another Member State without winding up the UK operations and reregistering in another Member State, whereas the SE rules provide this opportunity. However, the UK has shown little interest in this, as a government consultation on the issue of interest in SE and Societas Privata Europeae (SPE) in 2008 attracted only 14 responses. Therefore, it is unlikely that it will become a more attractive form than the UK private companies form. At first glance, the UK Government has been sympathetic towards the liberalising approach of the European Union, due to the impact it will have on other Member States. However, as noticed by Cremers and Wolters, the debate on company law reform in the United Kingdom has not been greatly influenced by the European developments, although a number of directives were implemented during and after the last reform process (2011). The main reason for this is that the UK corporate law system has always been at the forefront of innovation, and, as a result, some EU reforms were either modelled after the English model (e.g. The Market Abuse Directive), or they already existed, but not in a codified form (e.g. the abolition of the ultra vires rule).
Moreover, the European Union enacted the European Company Statute (the Societas Europaea or SE) by EC Regulation in 2001 which is intended to be available to companies above and beyond the legal forms available at a national level. According to Johnson, this could be compared to a ‘European citizenship’ in the sense that it does not impinge upon the nationality of the legal person, which has to be granted by the member state where the company is registered (2005). However, it gives rise to an extra bundle of rights and advantages not available to the national corporate form, among them, the right to corporate mobility within the EU subject to a specific set of processes which must be In conclusion, the shift of Company Law reform focus from the UK to the European institutions has not followed. had a great impact so far on domestic law, but the harImpact of the reform shift to EU. The desired ef- monisation process is far from being over. The consefect of the Company Law harmonisation programme quence of levelling the playing field and harmonising is to bring national laws closer together in order to the set of rules that govern Company Law can have help achieve a common European market. However, the effect of being able to satisfy people’s preferences a direct consequence of this is that UK (and of course more than a decentralised system. This can also lead other Member States) will not have the unhindered to excessive regulation and an increasing legal uncerfreedom to regulate (or deregulate) as they wish. As tainty in an already complex Company Law. Therea result, Ferran opined that ‘[t]he UK is unable to up- fore, the drawbacks in how the harmonisation prodate its company laws in ways that have commended gram affects UK Company Law seem to outweigh the themselves to other common law states that, histori- advantages. In order for this to change in the future, cally, had company law systems derived from the Brit- the European Commission needs to propose more ish model ’ (2001). freedom-enhancing measures. As Gérard Hertig said Another possible outcome is that this will cause fur- in a conference in Brussels in 2004, the European Unther market integration in Europe by lowering obsta- ion, through the Commission should ‘have the courcles for cross-border offering and trading, while also age of doing [almost] nothing’. making it easier and more attractive to transfer the By Radu Şomlea real seat of a company or reincorporate (Luca, 2005). 11
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DOMESTIC FOCUS The new trend in the matter of divorce: the divorce by notary procedure
This article aims to present
age, the divorce had an exceptional character (Florian, 2011) and it was allowed only in few restrictive the particularities of the divorce situations. The divorce was seen as a threat for the procedure before a notary as it social order, as an attack to the principles and the is regulated by the Romanian morals. Understandably, a consensual divorce as it Civil Code. In these more than is stated today by our Civil Code, was inconceivable. three years since this procedure has been introduced in our leg- Law 59/1993 eliminated some of the old restrictions islation, more and more people concerning the divorce and made the consensual have chosen this procedure in divorce possible. However, this type of divorce had order to put an end to their mar- some admissibility conditions: the marriage must riage. The reasons why couples have lasted more than a year and the couple must turn to a notary in order to divorce are the swiftness not have had underage children. The consensual and the less formal character of the procedure com- divorce is possible, according to the current Civil Code, even if the couple has underage children and pared to the judicial one. regardless of the length of the marriage. Both of Firstly, I will present the current regulations as well the new extrajudicial procedures have the main adas the previous ones, in order to highlight the rea- vantage of celerity. The most important aspect that sons that led to the legislative update. Secondly, I distinguishes one from the other is that, while the will point out the main characteristics of the notary notary procedure is allowed for couples with underprocedure for divorce and its specificities compared age children, the administrative procedure does not to the other two procedures. I will conclude by put- allow it (divorce by a registrar). ting forward my own opinion on the matter. One of the requirements of the divorce by public The notary procedure regarding the divorce was notary is the mutual consent of the couple regardfirst introduced in our legislation through the Law ing the name that each of them will have after their 202/2010, and it is now part of our Civil Code as separation. There are two possibilities: (1) they can well. It is defined as an extrajudicial procedure by keep the same name they used to have during the which a married couple can divorce in front of a marriage or (2) they can choose the name they had notary public, as long as their request reflects their before getting married. If they do not agree on the mutual consent. In my opinion, the two new extra- matter of their future last name, the public notary judicial procedures of divorce (the procedure before will dismiss their divorce request. a notary and the one before a registrar) are a good alternative for the judicial process, given the large In the case of couples with underage children, acnumber of cases that are brought before the courts cording to our Civil Code, their agreement on several issues is mandatory. These issues are: the exerand the lengthy procedures. cise of the parental authority by both of them, the I believe that these modern and updated provisions childrenâ€™s home after the divorce, the ways used were mandatory for our country. Romania needed for keeping the personal connections between the to replace the old regulations, enacted by the com- separated parent and his/her child, as well as the munist legislation, with new ones, in accordance contribution of the parents at the costs of growth, with the evolution of our society and the new con- education and professional training of the children. cepts regarding family life. During the communist 12
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The absence of this agreement will also lead to the dismissal of the divorce request. Regarding the territorial competence of the notary, the consorts can choose between the notary from the place where they married, or from the place of their last common home. In my opinion, this is another advantage of the notary procedure compared to the judicial one, as, in that case, the couple is bound to select a court in a certain order, as settled by the Civil Procedure Code (Florian, 2011). After a period of thirty days since the couple expressed their will to divorce in front of a notary public, they have to come personally and reaffirm that they maintain their choice. This thirty days term is both mandatory and prohibitive (Gavrilescu, 2011), as, during this period, the marriage cannot end. The purpose of this period, in the law-makersâ€™ view, is to allow the couple to reconsider their choice. This term is the best proof that the lawmakers did not mean to minimise the importance of the family through these updates. Their only purpose was to adapt the laws to the mentality of the society and its new needs.
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In my opinion, the law-makers have taken an inspired decision by introducing two new procedures of divorce, proven by the fact that more and more Romanians are choosing one of them when they decide to separate. The divorce before a notary is the best option for two consorts who agree to end their marriage. The Romanian society needed an assembly of rules capable of responding to the current views on marriage and family matters in general. Therefore, I believe that these new legal provisions on family matters are a step forward for the legislative process. I cannot agree with the opinion voiced in the doctrine which claims that overly permissive provisions could lead to the decline of the importance of the family. The existence of multiple ways to end a marriage does not increase the number of divorces and, conversely, restrictive divorce procedures will not determine people to be aware of the true value of family. For too many years the Romanian people have been the slaves of limited and obsolete laws. It is time to open our minds to the changes that have come to pass around us, and let them be reflected in our legal system. By Trinca-Gavan Raluca Andreea 13
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BRIEFING Studying Law in the Netherlands
Andreia is a third year stu-
dent at Babes-Bolyai University Law School, currently pursuing a one-year ERASMUS exchange at University of Utrecht. After being involved in several national and international organisations and working as a paralegal in a Law Firm, she decided to join the Lawyr.it team because she believes that continuous self-improvement is brought by new challenges. She believes that Lawyr.it will help Law students to find their next challenge and will help them expand their horizons. Interested in International Law? Go study in the Netherlands! The Netherlands is known to be the home of the International Law as it hosts the International Court of Justice, the International Criminal Court or the International Criminal Tribunal for former Yugoslavia. Therefore, studying Law in the Netherlands represents a very appealing option for everybody who wishes to pursue a career in this field. All the academic dreams can come true in the Law School of one of their top Universities: UV Amsterdam University, University of Amsterdam, University of Groningen, Leiden University, Maastricht University, Radboud University Nijmegen, Erasmus University Rotterdam, Tilburg University, or Utrecht University. All these Universities offer prestigious programs in International Law which are chosen every year by thousands of students from all over the world. So if you are interested in this field and you are wishing to study in an international environment, the Netherlands might be the perfect place.
educational system is the division of the academic year in quadmesters. Although universities are free to choose how they organise the academic term, most of them choose this option. The study programs that are divided into four terms require the student to choose a minimum of two subjects per block. The advantage of this system is that it allows the student to focus on two subjects at once and to truly dive into their depths. Since the exams are scheduled at the end of the block, which lasts approximately two months, the student has to start studying and preparing for it from the first weeks. If the division into semesters offers the student more flexibility in terms of studying schedule, the quadmester system compels the student to work on a weekly basis from the beginning and continue in the same pace throughout the whole academic term. Lectures and Seminars
Almost all the courses organise both lectures and seminars, only a few of them just lectures. Both are interactive and the professors and lecturers are always trying to involve the students by asking them questions and encouraging them to form their own opinion starting from the views of well known academicians in the field. During seminars, students are often required to prepare presentations and weekly assignments, to work in groups or in pairs to defend different points of view on various challenging topics. Very often, the course coordinators invite guest professors from other universities to hold the lectures for the particular subjects they are specialised in. All the content presented during a lecture is provided in a digital format, therefore students are able to focus their whole attention on what is being presented, making it easier for students to get actively involved by asking questions and making observations during the lectures. At the end of each block, the course coordinators encourage the students to Division of the academic year provide feedback on the content of the course, form One of the distinctive characteristics of the Dutch of examination, and their performance. 16
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Assignments and Evaluation
pared for an assignment and fulfils all the requirements, they will only score an 8. The 9 is reserved for The evaluation is different from subject to subject. the students who have done an outstanding job and The most popular option is the one involving one or exceeded the expectations and the requirements of more group or individual papers on subjects chosen the lecturer. The 10 is reserved only for the truly brilby the students and a final exam, each weighting 50% liant students who show a high interest and true pasof the final grade. There are course coordinators that sion for that particular subject and who possess more organise moot courts instead of the written papers, knowledge than the best students. but there are also professors who opt only for written exam. The written papers and the moot courts Student life help the law student to develop more skills than the classic written exam, such as research, public speak- If you choose to study in the Netherlands you will find ing, legal writing and cooperation skills, which are all that it is impossible not to find an extra-curricular acvital in any type of legal career. They are also much tivity or hobby that suits your taste. From sororities more interactive and dynamic than the classic written and fraternities, to student associations with different exam and encourage the students to discover more profiles; from great libraries, museums and parks, to than what is taught during the lecture and go further cosy coffee or tea houses and entertaining clubs, the than the compulsory literature. In addition, students Netherlands has something to offer to everybody. The are acquainted before graduation with writing, struc- Dutch people have a very rich culture which is very turing and formatting academic papers, which will be exciting to explore. Moreover, the Dutch are known essential for the ones who will want to pursue a career for their openness and impeccable English and they in the academia, not to mention that it is also a good will make you feel like home from the first day, wherever you are from. exercise for their final thesis. Grading system The grading system is from 1 to 10. However, the standards are very high: if a student is very well pre-
By Andreia Moraru
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BRIEFING Summer Opportunities for Law Students June June, 9-20: Summer School: Women, Peace and Security. University of Leiden. The courses will focus on the relevant international law in the matter, as well as workshops and fieldtrips to the International Criminal Court. Those who wish to participate are required to apply until May 1, 2014. The cost of the summer school is EUR 1050, and there is a limited number of scholarships available.
The programme’s aim to improve the students’ basic knowledge of European private law systems through intensive training (lectures, special courses, workshops) provided by renowned scholars and practitioners. The programme will focus on a general introduction to legal systems and the law of property, as well as the rules which govern the breach of contract in countries such as: Germany, France, Great Britain, The Netherlands, Romania, Russia, Spain, Turkey and many more. The application deadline is April 30, 2014.
June 23 – July 4: Summer School on Interna- June 30 – July 25: Columbia Summer Program. tional Criminal Law. University of Leiden. Leiden University in collaboration with Amsterdam The main topics will be core crimes, gender crimes, University and Columbia University, New York. The modes of liability, victims participation, and rights main courses will be corporate law, constitutional of the accused. There will be excursions to the Inter- law, tax law, torts, deals, etc. The EUR 2950 particinational Criminal Court, as well a summer school pation fee covers tuition, accommodation, study moot court. The tuition fee for students is EUR materials for the courses and all administrative expenses, including those of the extracurricular activ1250. The application deadline is May 1, 2014. ities. The application deadline is May 1, 2014. June, 29: A.U.K. Peace Building Post-Conflict Transformation and Development Program. July This program is a summer program concerned with July 7-11: Summer School on International conflict resolution and post-conflict reconstruction Children’s Rights. University of Leiden. in the diplomatic, military and civilianfields, focusing on the Balkans’ extended region. The courses will focus on children’s rights from different perspectives: international criminal law, juvenile justice, protection, and participation in armed conflicts. There will be a seminar held by UNICEF & Defence for Children International. The tuition fee is EUR 875. The application deadline is May 1, 2014. July, 07 - 25: Paris Summer University on Continental Law.
June, 30: Salzburg Summer School. 18
The Summer University of Continental law is a unique opportunity to deepen the core subjects of civil law in a prestigious environment alongside leading international teachers, specialists in their field. The school provides a 60 hour course in Eng-
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lish or French. Registration is open until April 30, August, 07 – 14: ELSA Sarajevo Summer Law 2014. School – Media Law. There are no eligibility conditions, but costs differ based on membership in ELSA, the country of origin as well as whether the participant is a student or The Tom Lantos Institute (TLI) and the National not. Favoured Countries: Albania, Azerbaijan, BosUniversity of Public Service (NUPS), and the Mid- nia & Herzegovina, Bulgaria, Georgia, Kazakhstan, dlesex University (MU), London, with the support Latvia, Montenegro, Rep. of Macedonia, Romania, of the Ministry of Foreign Affairs of Hungary, are Serbia, Turkey, Ukraine organising their second international Summer School on Minority Rights. Their focus is on civil August 25 – September 13: Summer School on society, political participation, and minority rights. German Law and German Legal Language. Application deadline: May 1, 2014. The summer school is open to those who want to study at a German University, as either an ERAMUS July 14-18: Summer School on Human Rights or an L.L.M. student. The main courses are: German and Transnational Justice. University of Legal Language, German Private Law, and German Leiden. Constitutional Law. July, 12-20: Budapest Global Minority Rights Summer School.
The main topics will be related to the complementarity, legacy, outreach between the transnational justice, and the international courts and tribunals. The tuition fee for students is EUR 875. The application deadline is May 1, 2014.
By Raluca Maxim and Dan Morosan
August August, 03 – 10: ELSA Summer Law School on WTO. ELSA Cluj-Napoca is organizing a summer school focused on the World Trade Organization (WTO). Participants will have the chance to improve their knowledge in international trade law and an opportunity to enlarge their professional network. Application deadline: April 28, 2014. August 3 – 15: Salzburg Summer Law School on International Criminal Law, Humanitarian Law, and Human Rights Law. The school will focus on the overview of the First World War centenary and its legacy. The participation fee is EUR 750. In order to apply, students are required to fill in an online form, and to submit a CV and a letter of intent until May 9. 19
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REFLECTIONS Referendum - the good, the bad and the very ugly
Referendum is a way of di-
rect decision-making through which citizens express their opinion by voting, usually on the matter of accepting or rejecting a proposal of a legal act (e.g. Constitution or an ordinary law) or a political decision. As one of the most democratic tools, it provides citizens the opportunity to express their opinion directly. Usually, the electorate can choose between two options: either accept the proposal or reject it. In some countries, there might also be referendums which provide multiple choices. Through this instrument, people participate in decision-making and, this way, are kept engaged in democracy matters. It is also a way of giving them a voice on topics of their interest. Considered to be in general an important tool in exercising the democratic rights, there are also some who criticise it, claiming it is a way of undermining the role of elected representatives. Moreover, using the referendum, citizen’s representatives can avoid tackling sensitive issues and place decision-making on unpopular topics in the hands of the people. Some of them often are misinformed or not at all informed and can make ill decisions on serious and complex matters. Referendum is a simple and direct way of decisionmaking, since there are usually two potential answers given to the asked question. Even though simple alternative answers may be suitable for simple questions, very often more complex topics cannot be satisfactorily addressed by this method. Depending on how the question is formulated and on the context of the referendum, it can be used to manipulate the electorate. Another downside is the high cost, 22
as referendums are generally a significant financial expense. This, together with a low voter turnout, might question their relevance and impact. A recently held referendum on the status of Crimea raised many tensions in already heated situation in Ukraine. The Venice Commission did not recognise it as lawful and the European Union and USA are claiming it to be illegal. Another referendum that caused criticism was Switzerland’s 2009 referendum on banning the construction of new minarets, initiated by a group of people mainly from right-oriented Swiss People’s Party and the Federal Democratic Union of Switzerland, that questioned human rights and religious freedom. In light of those events – could the referendum be considered a rather negative instrument? Has the people’s direct decision-making power become just a marionette for expressing the interests of smaller, but influential groups? To analyse these questions, the Croatian situation could be highly relevant. One of the most important and positive events in modern day Croatia was the independence referendum held on May 19, 1991, where 93,94% of the Croatians decided in favour of Croatia’s independence from former Yugoslavia. On a second referendum, Croatians decided over the membership in the European Union, with 66,27% of people voting in favour of joining the European Union. More recently, a lot of sparks flew from a controversial referendum where citizens had to decide whether the Constitution should include the definition of ‘marriage’ as a union between a man and a woman. At first glance, it may not seem controversial, but with 65,87% of votes in favour of that definition, it prevented same-sex marriages. The petition that led to referendum was initiated by the organisation ‘In the Name of the Family’. While the opponents of the referendum said that the referendum was a way of repressing the rights of homo-
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sexual minorities, the other side claimed they were protecting traditional values of marriage. Irrespective of their arguments, it cannot be denied that this referendum, costing approximately 6 million Euros, was a big financial outlay for Croatia, raising legitimate questions about its necessity, while other priorities were still unresolved. People’s decision-making took a swing over the last months with petitioners demanding yet another referendum in Croatia. This time it was regarding official usage of languages of minorities besides Croatian in the local government, civil service and judiciary, if the percentage of minorities was at least 50%. The demand for this referendum had a larger and more serious background: (1) the Serbo-Croatian war that took place during the ‘90s, which was still causing tension between the two nations, especially in Vukovar, a city in Croatia severely damaged during the war and (2) people not wanting Serbian Cyrillic script as another official language. Again, people were divided in two sides discussing the legitimacy of such proposal. Even though minority rights were protected within the Constitution (their freedom to express their national affiliation and to preserve their cultural autonomy Article 15, Constitution of Republic of Croatia), opponents of the referendum were still fearing a potential repression of the rights of minorities. The same argument was invoked by some politicians, who aggressively opposed the idea of referendum, sustaining that it must be stopped and that they would not let it happen. All this happened in spite of the 650.000 votes in petition for referendum. However, this was not a question whether these minorities should be taken away their rights, but rather a procedural proposal, concerning the raise of the minimum number of people needed to accept another language as official. Under these circumstances, by opposing the referendum, don’t these politicians actually deny the rights of people to express their opinions in a lawful way through direct democracy, rather than fight for minorities’ rights as they claim?
many tensions that reflect on a society in a negative way. Quite often, poorly informed people, led by pressure groups and potentially influenced by strong media, make decisions that change some people’s lives. However, there is no doubt that referendums are needed and have positive impact on people’s participation in politics, especially when their interests are at stake. It changes people’s positions from passive citizens to participants willing to conduct public affairs, gives them a chance to voice their opinion regarding major political issues, and helps them keep in touch with the government, despite the risk of politicians using this instrument as a direction for their own politics to improve their relations with the electorate. But for a true participation it is not enough to circle ‘yes’ or ‘no’ a couple of times in a lifetime. People should inform and educate themselves to form an opinion that truly reflects who they are and what they think about society as a whole and its best interest before voting on policies that will have strong effect not just on other individuals, but on society as a whole. The upcoming Scottish referendum on independence, taking place this year, might just prove to be another relevant example to evidentiate all these aspects. However, one thing is clear: through referendums, public opinion changes history.
By Stella Turnsek
One thing is clear: with simple ‘yes or no’ answers, referendums can tear people in two directions, causing 23
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REFLECTIONS Capital Punishment - A Rapid Decline
Defined as the lawful inflic-
tion of death by the state as punishment for committing crimes, the death penalty, also known as capital punishment, may seem like an outdated, barbaric practice, especially in the context of the prevalence of human rights protection. In this article, I present various views on the use of capital punishment throughout history, as well as an analysis of its efficiency. Legal origins Originally, capital punishment represented the application of the law of retaliation, or what the Ancient Romans called lex talionis. As an example, in the Code of Hammurabi, adopted by the sixth Babylonian king about 1780 BC, it was primarily used to punish crimes such as false testimony, disruption of justice, and false accusation, with the purpose of ensuring the sound application of the law and the good functioning of the early Babylonian legal system. Utilising the principle of ‘an eye for an eye‘, capital punishment was also given for any kind of action that resulted in a person’s death or caused a life threatening situation. In addition, it was also used against thieves, fraudulent sale, disorderly conduct, adultery, and seduction (Johns, 1903).
Humane executions? Ranging from stoning to scaphism, Ancient and Medieval execution methods could be unbelievably cruel. Hanging was most used, and, even then, certain steps had to be taken in order to ensure the quickest, most painless death possible for the offender. As attitudes towards the death penalty softened in the late 19th century, most Western states started to orient towards more humane methods of execution. In 1889, in the state of New York, USA, the first electric chair was built, and first used a year later, in order to execute axe murderer William Kemler. It soon became the primary method of execution in the US, being adopted by half of the federate states in the beginning of the 20th century. Today, because of the high risk of botching and because it was deemed too painful and, thus, too cruel to be considered legal in accordance with the US Constitution, it is only used as a secondary method, after the lethal injection.
Originally a compound of three different chemicals, an anesthetic and two different paralysers, the lethal injection was first introduced in the United States through Oklahoma Statute Title 22, Section 1014(A) in 1977, and was subsequently adopted by all but one of the states. It is still in use in the USA, China, Saudi Arabia, and an array of other states. However, the humanity of this method of execution has been contested. Some executions have lasted more than 20 minutes, and later autopsies revealed chemical burns on the bodies of the executed. In In 621 BC, Draco, replacing the previous tradition 2006, in USA Supreme Court case Hill v. McDonof oral law of Ancient Greece, laid down the first ough, Clarence Hill claimed that the use of lethal written constitution of Athens, most of which is injection violated the Eighth Amendment, which now lost. Later to be repealed by Solon, the Draco- bans cruel and unusual punishments. The Supreme nian laws were known for their excessive harshness. Court judges unanimously decided in favour of Hill, Draco considered that even lesser crimes warrant- but did not overturn his death sentence. ed the death punishment, and that there was none greater for the more serious offences (Stewart and Today, it is harder and harder to obtain lethal injection drugs, as numerous European companies reLong, 1894). 24
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fuse to sell them (Business Week, 2011). Capital punishment today
Conversely, its use as a deterrent was much discussed among law scholars, criminologists, behaviour specialists, and politicians. An early study claimed that for every execution, at least eight lives were saved (Ehrlich, 1975, cited in Fagan, 2006). Newer ones, such as the one done in 2002 by economist Paul H. Rubin, assert the fact that for each death sentence that was carried out, an approximate number of 18 homicides were averted (Rubin, 2002, cited in Radelet and Lacock, 2009). However, these studies were heavily criticised by peers, as they failed to acknowledge noncapital punishments as a homicide deterrent.
Nowadays, most nations, along with several international organisations, have adopted a strong stance against death penalty. Adopted on April 28, 1983 in Strasbourg, France, the Sixth Protocol to the European Convention of Human Rights has been signed and ratified by all Council of Europe members, except Russia. As a result, the signatory states have to remove the death sentence from their internal legislation, without reserves or derogations, except for a set of criminal acts committed during wartime (ChiriČ›Äƒ, But how much does the threat of execution actually 2008). influence people from choosing between criminal In 2007, the United Nations General Assembly adopt- and non-criminal behaviour? A percentage of 88.2 of ed Resolution 62/149, calling for a worldwide morato- criminologists believe that capital punishment does rium on executions, by a majority of 104 UN member not discourage the murder rate in states whose legisstates in favour, 54 countries against and 29 absten- lations contain such provisions (Radelet and Lacock, tions. Resolution 62/149, considered ground break- 2009). In addition, statistics have shown that there is ing at the time, is not legally binding, but it indicates little difference in the US between the homicide rate a significant worldwide souring of attitudes towards of the states that use capital punishment and those capital punishment. This stance was reaffirmed in that do not. In some cases, the homicide rate is even 2008 and, for a second time, in 2010, the number of lower in abolitionist states (FBI, 2013). countries in favour rising each time. Moreover, the management of the death penalty (litiIn 2013, 140 countries have abolished executions in gation, incarceration, and execution itself) leads to law or in practice. Only 58 worldwide retain the death costs that can be even five times higher than the entire penalty as a means of punishing criminals, including cost of incarceration for a criminal sentenced to life China, the United States of America (the only country without chance of parole (Fagan, 2006). Death senin the American continents to still have capital pun- tence trials take longer hours, cost much more money, ishment), Iran, Iraq, Saudi Arabia, Sudan, and Yemen. and use more manpower than any life-without-parole All countries but one applied at least one death sen- trial, and all of these costs have to be endured by the tence, totalising a number of almost 2000. However, budgets of local governments. only twenty-two have actually carried out executions, to a sum of over 770 people, not counting those that Conclusion have happened in China, as those numbers are being Once a staple of most penal systems, the use of capital kept secret (Amnesty International, 2013). punishment has faced a steady decline in recent hisAn inefficient way of preventing criminality tory. Most democratic states have abolished it, at least in practice if not through legislative actions. Taking all The death penalty, like most legal punishments, oper- these things into consideration, especially the fact that ates as both a deterrent to future crimes and an actual legal mistakes are easy to make and almost impossible retributive measure. The latter functionâ€™s purpose is to amend, the diminishing of death penalties can only obvious, along with its efficiency. There are no other be seen as being positive. punishments as harsh as death, no matter the way it is employed. By Ana Pintea 25
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Professional Spotlight Interview: Asist. univ. dr. Daniel Nitu Assistant Professor - Babes-Bolyai University
Lect. univ. dr. Daniel Niţu is in the Criminal Sci-
ences teaching staff of Babeș-Bolyai University, being a teaching assistant for both second year and masters degree law students. He has a Ph.D. in Criminal Law since 2012 and was a member on several committees for the Ministry of Justice and the Superior Council of Magistracy (CSM). He is also a member of Cluj Bar. Lawyr.it: Why did you choose a legal career? Was there a deciding moment for your decision, or was it based on circumstance?
she just retired. I had a class mate in high school that was constantly participating at the mathematics national contests and she now is a high school teacher, but these examples are very rare. As a result, the general level of preparation is low among students. Adding to this problem, I notice a lack of effort and labor consciousness. Plus, students have exaggerated expectations. During college, grades are pumped for the statistics. Unfortunately, it is an application of the principle ‘everybody is doing it, so why can’t we?’, just like the Cranberries album.
“As a practitioner, I can say
D.N.: Honestly, my father finished law school, an that there is a concerning level year earlier than professor Chirica, and also my sister finished law school, so I have family in the legal of disrespect between profesfield. During high school, I could not see myself doing anything else. I graduated a profile of mathematsions (judges-prosecutors-lawics, having eleven hours of mathematics every week. yers), and this is contrary to a Most of my class mates oriented towards math, physics and so on. I was the only one who knew legal system that should functhat I was not going to pursue a career in this field. I tion normally.” thought that law school is promising, especially after some of my teachers noticed my good memory and suggested to follow this path. So I said: ‘Let’s give it After graduation, no one else cares, and the student a try!’. I can’t say that there was a deciding moment is no longer ‘covered in fluff ’. Students have to see that in order to succeed, you need to invest a lot of for my decision. effort, especially in the first years of practice when Lawyr.it: How would you describe the current situ- the workload is high and the pay is low. These false ation of Romanian Criminal Law, from both a expectations are a problem. teacher’s and practitioner’s perspective? As a practitioner, I can say that there is a concernD.N.: As a teacher, I notice that many students act ing level of disrespect between professions (judgeschildish. A reason for this observation might be the prosecutors-lawyers), and this is contrary to a legal growing age gap between me and my students, keep- system that should function normally. On the other ing in mind that I get older every year and gather hand, I cannot say that the general preparation level experience, while the generations change. Moreo- is low. Both magistrates who are instructed at the ver, many of them have deficiencies that clearly have National Institute and lawyers who have to prepare their origins in school. Education is poorly fund- for a harder exam every year, tend to be better preed. Teachers, up to high school, are not motivated pared. Another problem that can be easily noticed enough, so obviously the only valuable teachers that is the great workload that magistrates have to deal remain in the system are the ones that do it with with, and this makes it harder for them to focus on passion. My mother was a high school teacher and the human component in each case. 28
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Professional Spotlight Lawyr.it: How do you think that Romanian legal ed- will have around four hundred pages that will cover ucation can be improved? the whole general regulations from The New Criminal Code. The new study will comment the articles, D.N. This is a difficult question. We suffer from with a special focus on the new provisions, so that the graphomania, we write and we do not read. We should institutions and the possible problematic issues to be make time each day to retreat and read. I went to the li- covered. brary today and read for two hours, it was quiet. ‘Feels like heaven’. College is a time when all students should Lawyr.it: What can you tell us about the Law School read like it is their full-time job, eight hours a day, each Hexagon competition involving the major Law one in their own way. Teachers should also empower Schools in Romania and the results Cluj has at crimiand encourage students somehow to read. The teach- nal Law? ing staff should realise that the main character in the D.N.: Regarding criminal Law, we won six times in past eight years. But the students deserve all the “The teaching staff should re- the credit. Every participant was very well prepared and alise that the main character all of them now are well accomplished career-wise. were also ambitious and, what I consider of esin the university is the student. They sential importance, modest. They did not consider Without him, all this rookery themselves champions before actually winning. The fact that they won cannot be considered luck, on the would be only an administra- other hand, you cannot expect to always win. There is important difference between an exam and a comtive construction.” an petition. When taking an exam, if the student is well prepared, he usually gets a high grade. On the conuniversity is the student. Without him, all this rook- trary, when taking part into a competition, no matter ery would be only an administrative construction. how well prepared the student is, his competitors can There are voices that say that legal education should be even better prepared, so ending up last is always a focus more on the practical component, but this does possibility. not mean that we should teach students how to draft Lawyr.it: Bearing in mind that you took the respondifferent procedural documents. We should be more sibility of preparing the Cluj students, do you believe involved in the life of the institution of Law School that there is a secret to success? and be faithful to it. Again, talking about the fact that the student needs to read more, he or she should also D.N.: There is no such thing, and the fact that I am receive useful and valuable information sources. In responsible for their preparation does not take away the Romanian legal education, there is a book infla- their credit. My only job is to organise them and tell tion, and this can easily be seen with the new Civil and them how to prepare, and my experience here comes Criminal Codes that entered into force. at handy. As a student, I took part in the competition Lawyr.it: We found out that, at this moment, you are working with professor Florin Streteanu on a new study of Criminal Law concerning The New Criminal Code. When should we expect it to come out? D.N.: At best, the publisher will receive our work at the beginning of June, that if we manage to mobilise. We do not want to sign something done superficially. Anyway, if the student was used to professor Streteanu’s old treaty, the new study will not be the same. It 30
for three years, and as a teacher since 2006, therefore I know what this competition implies. I tell my students not to write more than it is required at each task and try not to write less. As I said before, the students deserve all the credit. Lawyr.it: You inspire appreciation among students, but there are also some voices that claim that you sometimes have a critical tone. Did you know this aspect and do you have a message for them?
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D.N.: I admit it. I have high expectations from everyone, but especially from myself. I am not pleased that there are some aspects and goals that I am behind with, and I try to implement this mentality among students. I give my students at the end of each semester an anonymous test in which I ask them to give me feedback regarding my job as a teacher, and they did not fail to remind me that I sometimes act like a high school class master. This is why I asked them to stop me when I have these kind of outbursts. At the end of the day, if they do not read, it is their problem, and the exam will show the results. I use sarcasm as a method of encouragement, this is something I learned from my parents. When I notice spelling errors, I always suggest to invest in spelling books, and some people get offended. Therefore, my message for them is to ask me to stop when they feel I cross the line.
him and said: ’rewind please, I can’t believe this!’. From that point on, everyone started paying attention. Basically, what this guy did was that he climbed on the exterior of this block of flats up to the third floor because he saw the window half-open. Once he entered, he noticed that the apartment was in construction so
“I have high expectations from everyone, but especially from myself. I am not pleased that there are some aspects and goals that I am behind with, and I try to implement this mentality among students.”
with a student after a Hexagon that took place in Iasi and how he worried about the following exam in August, he wanted to become a magistrate. He failed in August, but he took it again and now he is a prosecutor in Cluj. I see him all the time, he is very well prepared and friends of mine tell me he is always doing his job extremely well. It is always a pride to see such examples of students that worked hard and managed to follow their dreams.
“It is always a pride to see such examples of students that worked hard and managed to follow their dreams.”
there was nothing to steal. Except the central heating system. So he tied everything to his back with ropes and went back down the window and using the exterior of the building again to get out. Needless to say Lawyr.it: Can you share with us a funny experience that the building had stairs. that you encountered in practice? Lawyr.it: And our last question: what advice would D.N.: Criminal Law usually deals with man’s freedom, you give to law students? therefore funny is not a word that could be often used to describe situations in practice. But I do remember D.N.: I would advise them to follow their dream. If one event that I think could fit the requirement. I re- they chose Law School, it means they wanted somemember I was once in court and the judge was an ex thing. Some want to become magistrates, some lawcolleague of mine. It was a simple case with three or yers and so on. It is not easy at all, but if they get orfour people that were already convicted of other seven ganised and put their mind to it, nothing can stop thousand crimes and they were admitting everything, them. Despite what media sometimes claims, these so no one in the court was paying attention, everyone exams are correct. It is true, they are complicated and was reading their own files. So, the judge, after asking scary and failures might occur. I remember one talk
By Alexandru Coras
the defendants if they admit everything, asked them to describe what happened ‘that night’. One of them started describing the events until the judge stopped 31
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Professional Spotlight Interview: Eugen Constantin Iordachescu Senior Managing Partner at LLP Iordachescu & Associates
Eugen Constantin Iordăchescu is Senior Manag-
the formidable movement of the hippies, the rockers. This paradigm shift brought along my choice for ing Partner at LLP Iordăchescu & Associates. After a legal career. completing his Bachelor’s Degree at the Faculty of Law, Babeș – Bolyai University, Mr. Iordăchescu Lawyr.it: What was the admission process like later became a prosecutor at the Prosecutor’s Of- when you were a student? fice at the Court of Appeal Cluj, as well as a coordinating financial prosecutor at the Chamber E. C. I.: At that time, getting admitted to law school of Accounts Cluj. In addition, he has experience was difficult as there were numerous filters. There in banking and financial law acquired while be- was a file-based selection: it had to be impeccable in ing manager of the Legal Affairs Directorate of order for you to hope that there was the possibility the Ministry of Public Finances. In recent years, to get to the next step, the admission exam. There he has become a lawyer specialised in criminal were very few law schools, with a limited number of and criminal procedure law, banking and finan- students. Cluj Napoca and Iași had, if I am not miscial law, fields in which he is widely reputed to be taken, 70 places, which were supplemented for forhighly skilled. He is also Chairman of the Insur- eign exchange students. There were approximately 100 students per year, 30 of them being from Middle ance Directorate of Lawyers - Cluj Branch. Eastern or African countries. Bucharest had about Lawyr.it: Firstly, we would like to know a bit more 120 places, while Sibiu had 30. about you. What determined you to choose a legal Even after the initial selection, there were approxicareer? mately 3000 candidates on 70 available spots. BeE. C. I.: It is a long story; I made this choice con- tween 1975 and 1977, there were 30 candidates per sidering the fact that, at the moment of my gradu- spot. I was unsuccessful in 1975 and opted for the ation from high school, my generation had an in- mandatory military service, but, having the strong clination towards other careers, mainly in medical, will to enter law school, I sat the admission exam mathematical and physical sciences. Law school was once again in 1977 and I was the 20th admitted out a potential target provided you had a certain incli- of 3000 candidates, which was not bad at all.
“The temptation in trying to change some aspects in our society was very strong, and I thought that a legal career in magistracy was the most appropriate choice for that.”
Lawyr.it: Your specialty is Criminal Law. Why did you choose this direction?
E. C. I.: The temptation in trying to change some aspects in our society was very strong, and I thought that a legal career in magistracy was the most appropriate choice for that. Things could not change in a system built in a certain manner, but the need to counteract the criminal phenomenon has and will always exist. As a prosecutor at that time, I was dealing with the same age-old issues faced by the socination towards social sciences, particularly towards ety: criminal acts which needed to be sanctioned, history and philosophy. The‘70s represented a pe- which were dangerous for the members of the soriod of opening to the West. There was also a strong ciety. I opted for forensics and then I came across influence coming from youth movements, such as my first professional satisfactions. I was confronted
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Professional Spotlight with the most serious criminal acts, offences against life, which, eventually, came to reflect one’s value as a professional, considering the fact that, most of the time, one had to uncover the criminal starting with nothing. We were trying to identify his/her persona and the legal measures against him/her, we were trying to rebuild that state of imperative balance. From my point of view, the work of a prosecutor is full of personal satisfactions. Lawyr.it: Who or what shaped you most as a professional? E. C. I.: My formation is humanistic par excellence. Few things had an impact on my formation as a professional and as a man. The contact with the Age of Enlightenment was especially significant. The French Revolution - both its good and bad aspects - marked my whole life.
ciples, so there is no strife regarding the functioning and organisation of the firm. There is always room for improvement, things which need to be rethought, reevaluated, improved, but, as long as all of this is based on principles, there are enough solutions. This is a very difficult job, as most jobs are, provided you want to do them well. It requires sacrifices and additional efforts, based on your ultimate goal. The problems do not lie inside our firm, they appear in our relationship with third parties – clients, the magistracy, the system that we are a part of. Our biggest regret is that our job is, unfortunately, not where it should be. Many people, law scholars, have noticed that. There is a groundless negative perception induced towards the lawyer’s profession. Seemingly, there are strong voices which criticise the decision-makers of our profession for having failed to protect it against unjust perceptions.
Lawyr.it: Concerning your choice of career, do you Lawyr.it: In that sense, do you believe that the lawsee a link between the ideas promoted by the Enlight- yer’s profession is slightly disadvantaged compared enment – for instance, freedom of thought – and the to other legal professions? situation you were in before the 1989 Revolution? E. C. I.: Not necessarily disadvantaged. An unjustified E. C. I.: This aspect was fundamental, because the con- anathema has been cast over this profession. That atcept of ‘Liberté, Egalité, Fraternité’ has guided me a titude is reflected by the inappropriate way in which lot so far and still is. The human being is the supreme many of our colleagues, mostly the very young ones, value. This is how the idea of freedom, of life being of are being treated by the magistrates. Unfortunately, utmost importance is born. There is a link between the treatment applied to lawyers by the magistrates is the significant historical period I have lived through my teenage years to youth and my professional choice. “We are not in a transition, we As a result, I relate my career to the idea of freedom, of are in the process of building respect for values. Lawyr.it: What defines you as a lawyer?
a better society, we wish to be treated as equals by other societies.”
E. C. I.: Being a lawyer is not my vocation. If you mean talent or vocation, clearly, my vocation lies in a different domain. But if I chose to become a lawyer, it means that I have to do it as good as I can – me, my being induced including by leaders at the highest level colleagues – respecting the same values, which I con- in our justice system. sider to be eternal. Lawyr.it: What would be the stake in inducing such Lawyr.it: Which are the main challenges that arise a perspective? from being a Managing Partner? E. C. I.: Stakes are hard to define, but they are visible E. C. I.: Our law firm is built around the need to respect for the public opinion, through the results brought the principles mentioned before. All our collaborators by the acts of justice. Unfortunately, ‘televised jusand associates have agreed to comply with these prin- tice’ and the constant political use of the magistracy’s 34
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power have harmed the act of justice, as well as the least we are building something. If it is a lot and badly, legal profession we represent. It is, nonetheless, true little and well, chaotically or organized, that is another question to address.
“Students need to realise that they are not only biological beings, because firstly they are human beings.”
that many lawyers, out of their desire to win money and trials, have strayed from fundamental principles. The issue is spread throughout the system, which is why we criticise the governing body of our profession. The Bar Union has failed to find the best way to protect our profession from the turmoil present in the Romanian society. There is, however, the hope that, in years, things will improve. Regrettably, we will not live enough to see it. Lawyr.it: Where does the hope stem from? E. C. I.: It stems from my everyday life and from the people I work with. We know exactly what we have built, that is, a firm based on solid principles. I believe there is hope.
Lawyr.it: Would you say the educational system in law schools is missing something highly important? E. C. I.: Nothing is perfect and that includes law schools and no one knows that better than those belonging to the system. However, no matter how the system functions, real value always finds a way to flourish. Obviously, some values may have to work harder than the others. I believe that, at faculty level, there is definitely room for improvement. The firm supports the BBU Law School as much as it can. To us, the BBU is a symbol and all its achievements rejoice us. The amount of support we offer to the faculty is probably best reflected by the results achieved by the students. We care for them and we are proud of them. Most of the lawyers at our firm have graduated from this faculty. Moreover, we have a strong academic component in the firm. As a consequence, it is vital to us that the faculty functions at the highest standards. Lawyr.it: If you were to give advice to law students, which personal qualities should they focus on improving?
Lawyr.it: Would you say that our society is in transition and, at some point, the values brought by our E. C. I.: Their options should be based on principles, recent opening to the West will become inherent to it? they should be stubborn, perseverant, they should uphold and never abandon values, they should never E. C. I.: We are not in a transition, we are in the pro- forget that they are human beings and fight for what cess of building a better society, we wish to be treat- they think freedom is. An actress whom I appreciate ed as equals by other societies. We are aware that we greatly, Olga Tudorache, was asked during an interneed to solve economic and social problems and that, view, somewhere in the ‘70s: ‘What do you like about throughout this construction, permanently, day by the world of today?’ and she answered ‘I like people’. day, hour by hour, many things have to be achieved. The journalist asked why and she said ‘Because they I would not call it a transition, because a transition are good and beautiful’; then, he asked what was it that implies that we are done with something, we are on a she did not like about the world of today and she said deadline and we begin something else, whereas, this is ‘Well, people’. Puzzled, the journalist asked how come a permanent construction, which will evolve accord- she liked and disliked people at the same time. She ing to the ever-changing aspirations and requirements said ‘It is easy, people can be better and more beautiof the Romanian people. People evolve, their require- ful’. Students need to realise that they are not only bioments multiply and, while the foundation remains logical beings, because firstly they are human beings. stable, the collateral aspects are always modifying. We If they are aware of that, if they know exactly what know what we want to build: a better society, in which they want to achieve, if they have a system of values, the individual becomes more significant. I believe that then they have the premise of a successful evolution. the Romanian society is built just as other societies are. At the moment, there are lapses, indeed, but at By Raluca Alexandra Maxim 35
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Professional Spotlight Interview: Leonie van Lent Assistant Professor - Utrecht University
Mrs Leonie van Lent is an assistant professor at
At the end of my studies, I came to the conclusion that I enjoyed doing legal research very much. That the Willem Pompe Institute for Criminal Law of is why I agreed to take on a position as PhD, and the Faculty of Law, Utrecht University. Her PhD- subsequently as lecturer/researcher. thesis covered the topic of the principle of publicity in Dutch criminal procedure. Her field of re- Lawyr.it: What are the positive and negative assearch and lectures is Dutch criminal procedure pects of working with young students? and comparative criminal procedure. L.L.: Positive aspects: it is great to see that students develop further understanding, gain more insight during the course and their studies. It is also particLawyr.it: What made you choose a legal career? ularly nice to support students writing their master L.L.: Law is everywhere; law is very much connected thesis, because then you are really in a position to to societal problems and interests. Law in the end re- help students to perform to the best of their abilifers to justice – an intriguing concept which can be ties. There are hardly any negative aspects, though studied, discussed and practiced in many ways. Law it is not very inspiring to encounter students during is therefore one of the most encompassing fields of the lectures who are not interested in studying, or study – of course you need to know about the law in law. itself, but you can and in fact must study also a bit of Lawyr.it: What do you think about women’s posiphilosophy, sociology, political sciences. tion in criminal law? Have you ever felt that it was
“I personally have experienced the limitations in career opportunities and research possibilities because of not being able to be available around the clock because of having a family life with small children.”
harder for you because you are a woman?
L.L.: Oh yes. I cannot speak for myself when judging women’s position in the practice of criminal law, but I do hear the complaints of friends. As to the university, I personally have experienced the limitations in career opportunities and research possibilities because of not being able to be available around the clock because of having a family life with small children. Lawyr.it: Why do you think projects of Comparative legal research are important? Would you encourage students to get involved in them?
Lawyr.it: When did you become interested in criminal law and why did you choose an academic ca- L.L.: They are important for broadening your perspective as to what law is and how it works, thereby reer in this field? also providing a better understanding of your own L.L.: I became interested in criminal law when stud- legal system. It makes you more attentive and sensiying law. The aspects that I mentioned before, about tive towards other perspectives and cultures. They the law being closely linked to societal interests and are also practically very relevant in our times, when the idea of justice are most prominent in the field of legal issues are very rarely national legal issues only. criminal law. Without comparative research no real harmoniza36
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tion on e.g. the EU level and implementation of supranational directions can be achieved. Lawyr.it: If you would have to choose to practice law in an inquisitorial or an adversarial system, which one would you choose and why? L.L.: That is a difficult question… That depends on the position. Being a defence counsel, an adversarial system gives you more opportunities and probably more interesting work. Being a public prosecutor seems much more interesting in an inquisitorial system; the position of a judge is interesting in both systems.
“Without comparative research no real harmonization on e.g. the EU level and implementation of supranational directions can be achieved.” in another discipline or a career in criminal legislation and policy, or maybe practice law as a judge. Lawyr.it: What advice would you give to law students?
Lawyr.it: Had you not have chosen an academic L.L.: To take your studies seriously, but to also take career in criminal law, what else you would have yourself seriously and to take the path (study, field, job) that interests you most. done? L.L.: It would either have been an academic career
By Andreia-Gemma Moraru
QUESTION OF THE ISSUE
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Question of the Issue What do you consider to be the most valuable quality or skill a lawyer should have to acquire success?
Lawyr.it is presenting a new section in the magazine: Question of the Issue. For this edition, we tried to find out from lawyers all over CEE what they consider to be the most valuable quality or skill a lawyer should have in order to become successful in doing his job, and why. We invite you to read our guests’ perspective on the matter, to whom we are truly thankful for their contributions. “These are clearly challenging times for lawyers, particularly business lawyers. The environment is competitive and the requirement for overall excellence has never been greater. I think the most valuable lawyering skill, though, is probably one of the most traditional: the ability to effectively communicate in writing. I would put a special emphasis on the word “effectively”. Like it or not, a good part of our work product is now viewed on mobile devices and incorporated into the business decision making process at a very rapid pace. Practical recommendations must be stated early in the text, reasoning must be short and to the point, and everything must be tuned to the intended audience. These days if you try to hide behind your prose you will likely just be ignored.” Ronald B. Given - Managing Partner - Zagreb Branch Wolf Theiss “I believe a lawyer’s success is conditioned by a set of five essential qualities: perseverance, intelligence, ambition, spontaneity and honesty. I consider all of them equally important: lacking one of them considerably diminishes the value of the others. Also, these qualities are essential to comply with the high standards of the legal market. Moreover, expectations from fresh graduates and youngest lawyers are even tougher at the moment, given the highly competitive and rapidly evolving market, as well as the recent changes regarding the Bar admission exams. Without any of these qualities, being successful becomes a more than difficult goal to attain.” Cristian Băcanu - Off Counsel MDM Legal – Bucharest
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“At DLA Piper we are first and foremost committed to growing our firm organically, by developing the skills and potential of young talents we invite to cooperate with us at university level and enabling them to continue their career path within the firm. As such, we are constantly on the lookout for engaged, solution oriented candidates, whom - besides a strong command of English - are also open to challenging experiences, constructive relationships and excel in logical thinking. Besides a strong academic background and desirable skill set we also seek individuals with a passion for non-legal activities, as we feel driven people are most ambitious and dedicated. This approach is to ensure that we are bringing the most talented people into our firm - individuals, yet with an openness for teamwork and strong social skills. From our side we offer the opportunity to work in a supportive, international environment and exposure to practical experience of practicing law, irrespective of seniority level within the firm.“ Krzysztof Wiater - CEE Regional Managing Partner - DLA Piper “Clients want to be heard. Their case/project is the most important. Therefore, the lawyer must allocate to each of its clients the necessary time resources, it must be updated with the facts of the case/project and it must offer the best solutions with the sole purpose of obtaining the success of each project/case. Moreover, besides the thorough knowledge of the law, the lawyer must be very flexible in order to keep up with all aspects which could spontaneously arise in relation to its legal activity: short deadlines, deadlines which appear from a day to another, etc. In such situations, the lawyer must be completely focused and involved in the respective matter. Equally important, or maybe more important than any other qualities or competences, are the will and the capacity to be trustworthy to the clients, as a person, as well as a professional. It is also a matter of charisma, negotiation skills, persuasion, logical thinking and good communication skills, but also adaptability/ flexibility, a capacity of permanent learning, tenacity and optimism. But in order to be successful as a lawyer (and not only as a lawyer), I believe the most important part is that of being an ambitious person who cannot be easily discouraged by any obstacles which may appear on its path. An advice for the young lawyers: You must motivate yourselves and have trust in you, you must fight to be the best and you must keep your faith that you shall win, or at least that you did your best for your client.” Iulia Ciobotaru - Partner, CSMG – Ciobotaru, Schelean, Maier, Gavrila SCA, Bucharest
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Question of the Issue What do you consider to be the most valuable quality or skill a lawyer should have to acquire success?
“The most important quality of a successful lawyers is to have multiple qualities. On top of them all, I would place rigour.” Florentin Ţuca, Managing Partner – Ţuca Zbârcea and Associates - Bucharest
“In my view, there is not a single magic skill which would make the lawyer a genius. The world of legal counselling is – for good or bad – much more complex than that. Clearly, a good lawyer needs a set of diverse skills to succeed. I also think that the skill’s preference may vary from country to country and from time to time. Obviously, any lawyer needs to be smart, intelligent and knowledgeable. She or he needs also to have a focus and concentration on the substance – without it, she or he may get lost easily in this society which is clearly overwhelmed by the information and the information rubbish. The lawyer would also need to have an understanding (and ideally also an education) about the business and the industry sector, which she or he prefers. As an example, I have found very useful to orient myself on the energy sector and the clients seem to appreciate a counsel who has a good knowledge of the market, applicable regulation and up-to-date information about the current trends, ongoing projects and plans of the key players. Last but not the least, she or he needs to have a common sense and critical mind. “ Tomáš Rychlý – Partner Wolf Theiss - Prague
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“I believe that this noble profession, through which the lawyer, as a ‘representative of the community’, fulfills his professional and social mission, can only reach the maximal level of recognition if he or she generates trust. From this perspective, the ability to generate trust is an essential characteristic that a lawyer must have and make use of. Professionalism, credibility, ethics, efficiency and many other such professional qualities have this common root of trust. This happens because, in the end, being a lawyer involves continuous human interaction, irrespective of whether we are referring to the lawyerclient interaction or the lawyer-third parties relationship (be it individuals, institutions or courts). To conclude, the ability to generate trust, used continuously, is the key to success as a lawyer.” Mihai Bejenaru-Dragos – Senior Managing Partner Bejenaru & Partners - Cluj-Napoca
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Special Lawyr.it – a bridge between students and law firms
As part of our mission, we
both proved to be highly receptive and prompt in accomplishing the tasks they were given. During their tried to offer law students a internships, we noticed the high level of theoretical platform to develop their skills knowledge, thus managing easily to put the knowland put their legal knowledge edge they have gained so far into practice. From our into practice in order to become perspective, other important aspects of our collabobetter prepared to fulfill the le- ration were their dedication, as well as their interest gal market’s requirements. shown for the activities they have been involved in. First and foremost, we tried to We consider all these qualities as premises for a future ease the access of law students successful career. to internships in order to offer We also want to show our gratitude and send our conthem a platform to experience gratulations to the two students, as well as to the Lawlawyers’ daily professional lives and put what they yr.it team. Thanks to our continuous collaborations have learnt in law school into practice. with law school students, we manage to be actively inFollowing the launch of our third issue, in September 2013, our partners from Cărăbaș Lungu have offered internships to two Babes-Bolyai University students who published an article in the third, respectively fourth issue. Mihai Cărăbaș, Partner, has offered a few insights from their collaborations with the selected students:
“Gaining some professional experience during university studies represents a positive step towards a successful career in the legal field, irrespective of the chosen profession. Cărăbaș, Lungu Law Firm’s lawyers are happy to have been able to offer such an opportunity to two students, Oana Cotoară and Diana Gal. As a continuation of a tradition started when our law firm was created, we have managed to offer new internships to law school students, now under Lawyr. it’s umbrella.
volved in their professional path by offering them the possibility to experience some of the activities which are specific for lawyers, thus fulfilling our promise we made towards law students a few years ago. “
Diana Gal, author of the article The Common European Sales Law: A necessary tool?, who was at the time pursuing a masters’ degree, speaks about her experience at Cărăbaș Lungu: “I was offered a two weeks internship at Cărăbaș Lungu, during which I have learned a lot about what truly happens in practice. I really enjoyed the group and I have been well treated. What I liked the most were the people I have worked with, who proved to be very sociable, wise and hardworking people. I had a lot to learn from their work ethics and speaking abilities. I hope to keep in touch with them, as for now, I am very grateful I had the opportunity to benefit from this experience.”
Our partners from the Bucharest based MDM Legal Our collaboration with the two students met the have also offered an internship to Raluca Elena Cirhighest standards that we have been used to coming jan, a fourth year law students at University of Buchafrom Babes-Bolyai University’s law students. They rest, following her article about Surveillance of Inter44
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net communications, published in the fourth issue. More recently, Lawyr.it has partnered up with local law firm Iordăchescu & Associates in a new internship project. Students will be able to apply for internships in two different fields, civil or criminal law, by May 15, by sending a letter of intent and their contact details to editors@ lawyr.it. Selected students will then have to contribute to a new section, powered by Iordăchescu & Associates, which will comprise case studies and commented jurisprudence. Starting this month, Lawyr.it is launching a new project meant to fulfill Lawyr.it’s aim, which is to address students’ professional needs. More details on this will follow soon. This fifth issue will also bring new internships offered to students who published in the law review. We can only hope that the number and quality of internships will increase in the future, as new law firms will join our project as supporters, and more students will get published in our issues. By Ioana Stupariu
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INTERNATIONAL FOCUS Applicability of the Responsibility to protect doctrine in Syria
This article aims to analyse
the thesis of the ‘responsibility to protect’ doctrine and its application to the situation in Syria. I will debate the reasons for and against an approval from the UN (United Nations) for a military intervention from the perspective of the ‘responsibility to protect’ guiding principles, along with a brief overview on the doctrine and the Syrian war. What is the Responsibility to Protect? The doctrine of ‘the responsibility to protect’, known as R2P, is a concept that stipulates an obligation of means for the international community and for the states towards the citizens of the world, adopted at the 60th UN Summit, in 2005. The obligation is stipulated in a document which was unanimously ratified by all member states, although it is not legally binding.
between the Ba’ath Government forces and the rebels who request a change of regime, as part of the movement known as the Arab Spring. What began as a peaceful demonstration degenerated into a fullfledged civil war. At the order of President Bashar al-Assad, the Syrian Army and the Shabiha militia started to use violence against the population. A special UN report from 2012 claimed that, once the rebels were armed, the conflict began to develop a pregnant sectarian nature. On one side, there was the Shia group of government and Shabiha forces, and on the other side were the Sunni rebel groups. Both sides have denied that the conflict had such a nature. Another report established that Syria’s Government, through the means of the Syrian Army and Shabiha militia, but also the rebels, have committed crimes against humanity and war crimes. Among the crimes committed by the government’s representatives were: use of weapons against unarmed civilians, campaigns of ‘door to door arrests’, killing of medical staff, and deliberate destruction of drugs. The government’s actions started to evolve from sporadic murders to targeted attacks and mass killings. Moreover, there were aerial bomb attacks and use of chemical agents by the Syrian Army.
The thesis is based on three pillars, namely: (1) a state has the responsibility to protect its own citizens from genocide, war crimes, crimes against humanity and ethnic cleansing; (2) the International community is obliged to assist the states in accomplishing their obligation of protecting the citizens; (3) if states fail to prevent the four crimes earlier Application of R2P in Syria. UN Secretary-General mentioned, the international community shall in- Ban-Ki Moon has underlined the urgent necessity of tervene, using military intervention as a last resort. a solution to end the crisis in Syria, which, in the last The concept of R2P implies the task of prevention, years, led to the death of over 130.000 civilians and the international community being encouraged to to serious humanitarian crises. He asked the interuse economic penalties, mediation and good offices national community, especially the Security Counbefore passing to the measures of Chapter VII of the cil, to unite and to offer their full support to find a UN Charter, whose nature is military. R2P admits political solution to the Syrian conflict. The debates that in some situations the military intervention is of the Security Council regarding the intervention in necessary, but holds that it shall be used only for a Syria have revealed a series of difficulties concerning the application of R2P. Essentially, the problem was just cause and if all the other means have failed. establishing the criteria used to approve military inThe situation in Syria. The Syrian Civil War is an tervention. On one hand, some claimed that the inongoing-armed conflict on the territory of Syria, ternational community had to respect the principle 48
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of state sovereignty. On the other hand, it was stated that there is an urgent need to protect Syrian civilians. The creators of R2P let to international community’s judgment the moment when they should intervene, this moment depending from case to case.
reactions to different norm violations. The possibility of a prompt reaction, with a potential military nature, is more likely in the case of security norms than in the case of human rights violations. In Syria, this aspect is obvious, because until the `Report on the Alleged Use of Chemical Weapons in the Ghouta Area of DamasBut first and foremost, the primary question stands as cus on 21 August 2013` confirmed the use of chemical to whether the requirements for a military interven- weapons, no one wanted to intervene at all. tion based on R2P are fulfilled. The first requirement is the just cause. Even though the doctrinarian views Although one can claim that military intervention in are divergent, theorists and the ICISS (International case of using of weapons of mass destruction has a Commission on Intervention and State Sovereignty) humanitarian side, the security threat it poses is the report on R2P agree that large-scale loss of human main reason of such use of force. Eventually, this is no lives and ethnic cleansing met the condition, as the more an intervention based on R2P. number of civilian deaths topped 130.000, while both rebels and government are accused of crimes against A second problem that occurs is the violation of the humanity and war crimes. The second one is right in- territorial sovereignty based only on a moral obligatention, as the purpose of an intervention would be to tion because R2P is not a legal obligation. This isput an end to the killings against civilians. States could sue was raised by two member states of the Security meet this requirement, as they did in Libya or Kosovo, Council, Russia and China. They claimed that the sitbut they should restrain from other actions. The third uation would resemble the ‘Military and Paramilitary condition is of last resort, because a military interven- activities of the US in Nicaragua’ case, where the Intion could be justified only if the other non-military ternational Court of Justice stated that the sending of options of prevention and peaceful settlement have armed troops on other state’s territory is a violation of been exhausted. In Syria’s case, this condition is met as territorial sovereignty and political independence and the conflict enters its third year of conflict and failed this measure is not an intervention for the protection efforts of mediation, sanctions and peace talks. The of civilians. Also, states have become reserved to R2P fourth requirement is that of proportionality and of after seeing what happened in Libya, when the scope of reasonable perspective, as the duration, scope and in- R2P changed from protecting civilians to establishing tensity of the military intervention should be at mini- a new regime. As a following to this situation a quesmum and there should be a chance of avoiding any tion arises: if the UN member states will send armed more life loses by this intervention. The assessment of forces sent in Syria, will they protect the civilians from this criteria is made on prospective judgments, which the atrocities, or will they attempt overthrowing the are, inevitably, debatable and uncertain. Thus, an as- Bashar al-Assad regime, which would surpass the limsessment over the accomplishment of the criteria is its of R2P? According to R2P, they should intervene possible only after an intervention. The fifth condition as neutral troops, but the Libyan precedent does not is proper authority and that can only be the Security support this theory. This is one more reason for the Council. Before any intervention, states should seek Security Council to hesitate in issuing a resolution for the approval of the Security Council and its five per- military intervention in Syria. manent members should restrain from using the veto In conclusion, a military intervention in Syria accordif their interests are not involved, so that the interven- ing to R2P doctrine is hard to accomplish, because tion can be legal and in time for saving lives of Syrian there is a strong feeling within the international comcitizens and ending the war. munity regarding the difficulty to apply the theory to Thus, at first sight, one can say that all conditions for the current situation in Syria. an intervention are met, but in reality, some problems arose, and the intervention was delayed.
By Radu Suicescu
One of the first issues was that states have different 49
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INTERNATIONAL FOCUS Non-financial reporting of companies in the EU: a ‘voluntary obligation’?
This paper tries to point out
The issue of social and environmental disclosure is no foreign matter for the European Union, since it the indispensable need of an has been on its agenda for at least a decade. More enhanced business transparen- specifically, the disclosure of non-financial informacy on social and environmental tion is currently addressed in the European Union matters, whilst it reviews the legislation via the Accounting Directives. current and future frameworks regarding the non-financial in- These require companies to include into their anformation disclosure, which nual reports, environmental and employee-related can be found within the Euro- information, but only when it is considered appropriate and to the extent to which it is supposed to pean Union. be necessary for an understanding of the company’s Given the fact that non-finan- development, performance or position. Therefore, cial reporting is not a new concept in the corporate the uncertainty of this legislation could be easily world, the European Commission adopted a pro- used to benefit the opposing party. Although other posal for a Directive, to amend the current legisla- European Union frameworks that address this spetive framework on non-financial information dis- cific issue, such us the Accounting Directives, could closure within the European Union. Regarding this be identified, the concept of transparency is still matter at the European Union level, The European uncertain and not yet fully understood. The issue Commission defines corporate social responsibility, of non-inadequate transparency, when it comes to in the Renewed EU Strategy 2011-2014 for Corpo- non-financial information, has been the subject of rate Social Responsibility, as ‘the responsibility of public debates for a while, since non-financial perenterprises for their impacts on society’. Responsi- formance appears to be considered increasingly imbility or not, it is a sure thing to say that only a few portant for investment strategies, particularly with a large companies, adopted the procedure of volun- long-term perspective. But what is the cause for this tary submitting such non-financial reports in the lack of transparency? past. Moreover, only a few included relevant inforAccording to the European Commission’s impact mation. assessment, the drivers of this inadequate level of Therefore, the European Commission initiated this transparency appear to be caused by both market motion, with a goal in mind: for this reporting to and regulatory failure. Although some steps have significantly contribute to the European Union’s been made forward, some enterprises still do not treaty objectives of sustainable development, and have enough incentives to disclose non-financial infor a competitive social market economy at the same formation. For example, the obligation introduced time. Although progress has been made in the past by current Directives could be considered to be inyears, when talking about corporate transparency, effective, mainly due to its ambiguity and openness the legislative framework is still uncertain and full to interpretation. Enterprises can easily enact the current reporting system as purely voluntary since of shortcomings and gaps, waiting to be filled. the present wording ‘where appropriate’ and ‘to the This being said, the proposal launched by the Eu- extent for an understanding of ’ clearly fails to proropean Commission on non-financial information vide a straight obligation for the enterprises. disclosure is a significant and effective step to adThe instability of the current legislation, which can dress this issue. 50
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be found both at European Union’s and at the Member States’ level, will not provide in the future, a clear perspective on what disclosure should look like and on what obligations a company has, regarding the issue of social and environmental disclosure.
by the European Parliament, on April 15, 2014, there is a long way ahead since it first needs to be adopted by the Council and published in the EU Official Journal, in order to become mandatory and to produce full effects. As the implementation of this Directive, the Commission will have to develop a series of guideTherefore, we cannot expect for significant improve- lines in order to forward the disclosure of non-finanment to be made in the absence of a stable and clear cial information by companies. legislative framework. The EU’s initiation of such a proposal, was a long overdue act, since more trans- Nevertheless, this type of action found at the Europarency for both internal and external stakeholders is pean Union’s level was much needed in order to furconsidered to be an important asset for companies, in ther coordinate the non-financial reporting field and order to improve management of risks and to deliver to ensure a proper functioning internal market. Better better results. and more transparent disclosure of non-financial information could be a valuable tool to further increase The proposal itself provides that large companies the number of European Union enterprises that are should disclose non-financial information supported successfully integrating and reflecting sustainability by a set of requirements, shaped so that it can increase and environmental responsibility into their organizatransparency but noting that it will not put any undue tional culture. administrative burden on companies. Although several Member States recently adopted legislation that requires additional disclosure in the field, this proBy Ruxandra Popescu posal respects the principle of subsidiary. Since these initiatives proved ineffective because of diversity and fragmentation of the legal environment that can easily lead to difficulties in implementing the concept itself. As far as the recipients of this proposal are concerned, the disclosure requirements under this Directive will only apply to companies whose average number of employees, during the financial year, exceeds 500. Comparing the threshold found in the current Accounting Directives (250 employees), it can be easily observed that changes were made. These concern the audience to whom it is addressed, this being a consequence of the Directive’s authors try to avoid administrative burden on smaller companies, hence the difficulty they face in collecting and analysing information. The European Commission’s proposal, as a novelty, also requires large companies to provide information regarding their diversity policy, including aspects in the matter of age, gender, geographical diversity, and educational and professional background. Although it could be admitted that this new proposal for a directive adopted by the European Commission brings a new perspective on the non-financial reporting and also on its currently uncertain obligations, it is safe to say that even though it was recently adopted
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INTERNATIONAL FOCUS Does European Union citizenship impact upon national sovereignity?
was introduced by the European Union Treaty (Consolidated Version of the Treaty on Functioning of the European Union  OJ C326/47). Article 20(1) intends to give the ordinary citizen a deeper and more tangible sense of belonging, in compliance with the fundamental aim of integration at the heart of the European Union (EU). Citizenship encompasses the notion of uniting people by going beyond nationality in order to achieve peace, prosperity and solidarity (Schuman Declaration, 1950). However, there is an assertion in literature that citizenship is part of the emergence of a supranational state, thereby encroaching upon national sovereignty (Shaw 1997, p.4). Conversely, intergovernmentalists view Member States as playing a more prominent role within the Union, viewing them as the gatekeepers who ultimately possess power (Kostakopoulou 2007, p.626). Before examining these two conflicting views, this essay must first establish what the concept includes, and then examine its relationship with the Member States as exhibited in case law and portrayed throughout literature. Historically, the market citizenship approach has prevailed. Consequently, Article 45 was interpreted narrowly, yet this reductionist view regarded individuals as merely economic actors, which effectively stripped them of identity and personality. Therefore, a rights-based approach has emerged as a critique - ‘the Migrant Worker is not to be viewed as a mere source of labour, but as a human being’ (Case 7/75 F v Belgian State  ECR 679). However, free movement is in clear conflict with the interests of Member States, which are keen to assert that the entry of individuals into their Community falls within their sovereign prerogative and often 52
enact regulations to control levels of migration. The introduction of citizenship was a significant step towards creating transnational solidarity by eliminating barriers to free movement. The four special rights conferred by the Union citizenship clearly attempt to fulfil this aim. However, the rights conferred are rather limited, partially diluting the revolutionary impact of such an introduction, compounded by the uncontroversial and nebulous nature of the provisions. It has been claimed that this is ‘a purely decorative and symbolic institution’ (Kostakopoulou 2007, p.623), arguably amounting to a mere codification of existing rights. Thus surely this empty concept poses little threat to national sovereignty as it is seemingly a label devoid of substance. Indeed, an intergovernmentalist perspective may advance the view that citizenship is ‘an example of pure symbolic gesture politics which does not actually strike at the heart of national sovereignty’ (Shaw 1997, p.3). However, an analysis of the case law reveals that it is absurd to suggest that citizenship is merely decorative. One cannot escape the fact that ‘citizenship encompasses strengthened rights, with regard to free movement and residence and prohibition on discrimination on grounds of nationality…’ (Craig & De Búrca 2011, p.819). Despite the fact that competence as to nationality is ‘jealously guarded by Member States’, (O’Keeffe 1996, p.358) this has not prevented intervention by the ECJ (European Court of Justice). There have certainly been a number of cases in which the ECJ has challenged ‘core aspects of Member States’ migration policies’ (Craig & De Búrca 2011, p.832), as exhibited in Sala (C-85/96 Maria Martínez Sala v Freistaat Bayern  ECR I-2691). In this matter, the ECJ was willing to ‘explode the linkages’ (O’Leary, p.77) which had previously been required to apply the principle of non-discrimination Given the fact that they were EU citizens, they were entitled to equal access to social benefits available to nationals solely on basis of nationality (Craig & De Búrca, p.836). The ECJ has displayed a
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willingness to override the views of the Member States - in Grzelcyk (Case C-184/99 Rudy Grzelcykv CPAS  ECR I-6193). The influence of EU citizenship on the outcome of the case was once again crucial (Craig & De Búrca, p.837), and, most fundamentally, legal rights have been expanded even in the face of vocal Member State opposition (Craig & De Búrca, p.837).
viduals can assert their parallel identities (O’Keeffe, p.374). Perhaps EU citizenship is over-arching, but not necessarily intrusive upon Member States; it should be regarded as an invitation to join other networks (Preuss, p.280). This appears to recognise that citizenship should not seek to undermine, or to compromise attachment to an individual’s national state.
Citizenship conveys notions of identity and Community belonging as it exhibits the notion of a political bond based on residence and transcending nationality completely. It is clear that many provisions are enacted with the aim to ‘facilitate their mobility within the Community’ (Case C-315/94 Peter de Vos v Stadt Bielefeld  ECR I-1417), subsequently regarding individuals as fully integrated into the fabric of society. Indeed, they are no longer regarded as aliens or guests, but are entitled to receive full equality of treatment (Case C-321/87 Commission v Belgium  ECR 997). Thus, despite the lack of the conferral of duties, EU citizenship still negatively impacts upon national sovereignty.
However, much of the threat to national sovereignty arguably lies not in what citizenship confers at the present moment, but in what it has the potential to. Perhaps the importance of citizenship lies in the fact that the first step has been taken (O’Keeffe, p.374). There are certainly two opposing paths that could be ventured – citizenship may either ‘remain what it actually appears to be, namely a terminological pooling of the few rights which the individual enjoys…’ (Preuss, p.268) or it ‘could ultimately even pave the way for the transition to a European Federal State’ (Preuss, p.268). While it may currently be difficult to discern which path will be taken, there is no doubt that citizenship has matured as an institution (Kostakopoulou, p.624), and is certainly ‘dynamic’ in nature (O’Keeffe, p.350).
Nonetheless, there is a danger of overstating the impact that citizenship has had upon national sovereignty. Certainly, joining the EU implied a loss of sovereignty (Kostakopoulou, p.628), perhaps constituting ‘a novel and dangerous invasion by a Community institution of the sovereignty of the UK Parliament’ (Case C-213/89 Factortame I  ECR I-2433). But this was arguably ‘based on a misconception’ (Factortame) any limitation was ‘entirely voluntary’ (R v Secretary of State for Transport Ex p. Factortame Ltd (No.2)  1 AC 603) when the UK entered the EU when it passed the European Communities Act 1972. Supremacy ‘should by no means be confused with any kind of all-purpose subordination of member-state-law to Community law’ (MacCormick, p.117). Consequently, the general form of consent granted by the Member States when they joined the EU also entails consent to any provisions enacted thereafter, suggesting that the introduction of citizenship does not further impact upon national sovereignty. Perhaps there is even merit in the view that ‘nationality and citizenship complement one another. Without a common national identity, there is nothing to hold citizens together…’ (Miller, p.85). There is no reason why the two of them cannot coexist, and provide a ‘shared platform’ in which indi-
To conclude, upon its introduction, many feared that citizenship would lead to a dilution of national sovereignty. Yet upon further examination, many have argued that the introduction of citizenship was purely symbolic, due to the absence of duties and the limited conferral of rights, therefore having very little impact on national sovereignty. However, the abundance of case law illustrates the importance of citizenship in its strengthening of rights, particularly with regards to free movement. It truly demonstrates a shift from citizens being regarded as economic actors to individuals with rights, ambitions and aspirations. In conferring such rights, the courts have often overridden the interests of Member States even in the face of strong vocal opposition (Craig & De Búrca, p.837). While ‘European citizenship was nothing more than a pale shadow’ (Kostakopoulou, p.625), arguably it is now emerging from the shadows, and posing a threat to national sovereignty. Moreover, its future may be uncertain, but it is clear that the evolution of citizenship, and thus the impact on the sovereignty of Member States cannot be underestimated. Many have confidently asserted the view that there is no doubt that this ‘embryonic concept’ (Lodge, p.380) will continue to grow. By Francesca Esposito 53
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INTERNATIONAL FOCUS The complicated road between failure and success: the EU version
In the early 2000’s, due to the
enlargement of the European Union (EU) with a significant number of new members, an institutional reform was necessary in order to avoid a paralysed decision-making system. The system set up in 1950 for a Community which comprised six Member States was no longer operating efficiently within a Union of 15 and, subsequently, 25 Member States. The process of adoption of three important tools - The Nice Treaty, the Treaty establishing a Constitution for Europe and the Lisbon Treaty - lead to numerous fundamental and institutional problems that had to be dealt with.
lative framework. The simplification of the treaties was an objective to be attained post-Nice; however, unsuccessfully, taking out of force the existing treaties and the entry into force of the Constitutional Treaty did not take place. From an evolutionary point of view, if up to the Treaty of Nice, the competences of the European Union were not specifically mentioned, beginning with the Constitutional Treaty, a classification has been carried out, which, at present, is to be found in the Treaty of Lisbon. It cannot be denied that this is an ‘element of substantial progress made in the European construction’, whereas such an approach simplifies and clarifies the Union’s actions and shall give them an increase of democracy, with regard to the benefits of transparency for nationals of Member States.
After the Nice Treaty, the role of national Parliaments has been brought into discussion, the provisions of the Constitutional Treaty being further accepted in the framework of the Treaty of Lisbon. In order to ensure a higher degree of transparency, certain obligations had to be introduced for European institutions: to cooperate and collaborate with national Parliaments, to respect certain basic principles of the European Union’s law, namely those of subsidiarity and proportionality. In addition to the obligations imposed upon European institutions, A substantial difference between the Nice Treaty, the competence of national Parliaments was regulatthe Lisbon Treaty and the Constitutional Treaty rep- ed, primarily in what resents the objective sought by each of them. The concerns their power Treaty of Nice was aimed to ensure an institutional to influence decisionsystem for a Union consisting of nearly 30 Mem- making at Union level ber States. In contrast, the Constitutional Treaty by means of different was setting up a new legal instrument containing procedures. rules easily understandable by the Member States’ nationals, which also emphasised the symbolic idea Among the objectives of ‘Constitution”’ This Treaty was output as a conse- to be attained which quence of the existing treaties, which did not hap- were questioned at the pen in the case of the Nice Treaty and the Lisbon time the Nice Treaty Treaty, as they were maintaining an effective legis- was prepared, we can The Nice Treaty was concluded on December 11, 2000 and signed on February 26, 2001, presented not only as a treaty of institutional reform, but also as a step towards the constitutionalisation of the European Union. An argument for this is the proclamation of the Charter of Fundamental Rights. The Reform Treaty, also named the Lisbon Treaty, entered into force on December 1, 2009, and was meant to be a more successful version of the Treaty establishing a Constitution for Europe.
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also find issues introduced by the Constitutional Treaty, in turn taken over or not by the Treaty of Lisbon. Among them, we can mention the principles of subsidiarity and proportionality, which found a new justification in the light of the provisions regarding the allocation of competences, newly introduced by the Constitutional Treaty. The same principles can now all be found within Protocol no. 2 annexed to the Lisbon Treaty. The principle of supremacy of EU law was not specifically mentioned by the Treaty of Nice, being later developed by the European Union’s Court of Justice. The Constitutional Treaty included it in its text, but, upon entry into force of the Treaty of Lisbon, it remained at the level of unwritten principle of the EU, being referred to only in a Declaration annexed to the Treaty.
Parliament and Council of the European Union and approved by the Member States, but its legal status has been put on the list of objectives post-Nice. In 2004, the Constitutional Treaty incorporated in its second part the Charter provisions, giving it legal compulsory value, also regulating the European citizenship, an idea taken over by the Treaty of Lisbon as well. Subsequently, the Lisbon Treaty has provided the legal value of the Charter as being equal to that of the treaties, but, unlike the Constitutional Treaty, it was not built in, but annexed to the Treaty. The adoption of a catalogue of human rights brought about a change on the initial economic objectives of the EU.
One of the fundamental news brought after the Nice Treaty is the opportunity of a Member State to be able to withdraw from the European Union, established by The Constitutional Treaty has a characteristic sym- the Constitutional Treaty, and maintained by the Lisbolic and legal load that also comes from the ‘consti- bon Treaty, as a guarantee of their sovereignty. tution element’ found in its title. It even regulates the symbols of the European Union, such as the flag, the With regard to the relationship between the EU and anthem, the currency, the day of Europe, for an even the Member States, we must mention the first express greater emotional significance, a highlighted Europe- regulation of the legal personality of the Union by the an identity. In addition, it contained specific names: Constitutional Treaty and then the Lisbon Treaty. ‘European laws’ for regulations, and ‘European frame- To conclude, the three treaties derive from one anwork laws’ for directives. Because of this deep symbol- other, as a result of an evolutionary process of the ic load which it had for nationals of Member States, enlarged European Union. The Constitutional Treaty the Treaty of Lisbon did not choose to use them. The might be considered an evolved form of the Treaty citizens were not prepared for such an involvement of Nice, whereas the Lisbon Treaty is a ‘mild’ form of and dedication to the idea of a European identity. the ’Constitution’. Even if the bond between Nice and Among the common elements of the Treaty establish- Lisbon was less successful, it was not a less important ing a Constitution for Europe and the Treaty of Lis- Constitutional attempt, which made the transition bon, we can also find the ‘citizen initiative’. The citi- easy. zens can directly ask the Commission to propose an initiative that is of interest to them and which is reBy Ingrid Amelia Apetrei and lated to the EU competence, by adding together one million signatures from various Member States. Both Andreea Nicoleta Ştefan devote strengthened protection for citizens through the provisions relating to the space of freedom, security and justice laid down by the Constitutional Treaty, and mention the formation of a European Prosecutor’s Office. An element embraced by the three treaties which are the subject of our study is represented by the Charter of Fundamental Rights of the European Union. In the summit of the European Council in Nice in December 2000, it was solemnly proclaimed by the Commission, 55
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INTERNATIONAL FOCUS Should EU legislation regarding the ‘made in Germany’ trademark for the automotive industry be revised?
the current increasingly competitive automotive industry and in an insecure economic climate in Europe, the case of Germany stands as an example for growth in a country’s export activities. German reputation for well-made automotive component parts and the attention paid to details persisted in the last decades. However, policy makers in Brussels, especially Italy and France, aim at building a new legal framework regarding the ‘made in Germany’ trademark. These new regulations envisage the conditions that must be accomplished by German car manufacturing companies, in order to be able to associate the ‘made in Germany’ trademark with their products. My paper analyses this current debate, presenting and developing the arguments on both sides, and their corresponding implications. According to the estimates made by the Chambers of Commerce and Industry in Germany, the ‘made in Germany’ trademark is worth more than a billion Euros on world markets. However, 127 years ago, this trademark represented a stigma. As the economic and political rivalry between Germany and Britain was rising in 1887, German products were sold under the ‘made in Britain’ label to increase their access to world markets. In order to protect the economy and identify foreign imports, the British Parliament passed the Merchandise Marks Act, which required Germany to clearly distinguish its products. However, instead of alerting consumers regarding its inferiority, the ‘made in Germany’ trademark became a guarantee for reliability and durability. 56
According to the European Union’s current legislation, a product’s country of origin is considered to be the country in which the last stage of the assembling process takes place. Therefore, big German car manufacturing companies outsourced a part of their automotive component parts industry to developing countries, where they found cheap labour force. Hence, many cars manufactured with component parts produced on the Asian markets are traded as German cars, just because they are assembled in Germany. In response, the European Union is now considering modifying the legislation and adopting stricter regulations, by imposing producers to use the ‘made in Germany’ trademark only if at least 45 % of the automotive manufacturing process takes place in Germany. The new legal framework would provide clarification regarding each stage of the automotive manufacturing process. That is because at the moment the Germans take full responsibility for the product’s quality, whereas the suppliers are unknown entities. Therefore, the automotive parts’ lack of resistance matches their mediocrity. In this context, the European Union’s position could be a welcome initiative. The ‘made in Germany’ trademark would not appear on automotive component parts which are only assembled in Germany and not actually produced there. At the same time, the investors’ departure towards other countries would stop. Romania, for example, represents an oasis for the German automotive parts manufacturers. Bosch, the component parts leader in Europe, has more than 2,000 employees in Romania, and Continental, around 12,000 employees. With the foreseeable changing legislation regarding the usage of the ‘made in Germany’ trademark for the automotive component parts industry, one might be legitimate to wonder whether you are not actually producing a Romanian
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car instead of a German one if most of the manufac- manufacturing act took place. turing process takes place in Romania. Let us take the example of Bosch, which produces car component These big German car manufacturers also object to the fact that bureaucracy will be increased, because parts in Romania. they will have to keep records for each production These are ultimately assembled in Germany on a Mer- stage in order to establish where most of the value of cedes that bears the ‘made in Germany’ trademark. the component parts was added. This legal prevision Thus, if the European legislation changes, in this case, that the members of the European Commission want Mercedes will no longer be able to use the ‘made in to enforce will ultimately generate an increase in the Germany’ trademark, because most of its compo- manufacturing costs, as well. That is why German car nent parts are manufactured in Romania, including manufacturers suspect European companies hope for the component parts made by Bosch for the engine, a competitive edge, considering that Germany’s trade and the component parts for the gear box made by balance of automotive component parts with the nonDaimler at their factory in Sebeş. If a new legislation euro-zone countries created this disagreement with is adopted, German manufacturing companies could the European Union. also consider reducing their manufacturing activities, which will ultimately generate unemployment for One thing is certain: regular consumers, as well as companies, prefer purchasing German products, many people working in developing countries. renowned for their quality, even if their price is sigThe ‘made in Germany’ origin labeling proposal is still nificant higher than that of similar products. Despite in discussion. The EU states that German companies all the current debate and arguments over adopting would only benefit from this labeling if the automo- a new legislation regarding the ‘made in Germany’ tive component parts were truly manufactured in trademark for the automotive component parts indusGermany. This regulation would ease cars recall and try, the European institutions still have to approve the would increase customer’s reliability in the durability, new provisions. However, the law is unlikely to come performance, and quality of German cars. This new into force before the European elections in May 2014. legal framework would also prevent unfair businesses For now, we just have to wait and see whether the Gerwhich use fake labels or no labels at all. At the same man car manufacturers and implicitly Germany will time it would provide protection for consumers, be- abide by this regulation, and whether they will be able cause they will be informed regarding the production to maintain the production costs under control and process and the automotive component parts’ origin. ultimately trade their cars at competitive prices. Small and medium-sized German automotive companies are in favour of the proposal, given the fact that their car manufacturing process occurs within the By Oana Gligan country, without appealing to external suppliers. On the other hand, a unitary resolution within the EU regarding the ‘made in Germany’ trademark would risk creating further confusion. There are 28 member states in the European Union and it could be difficult to reach a consensus among them and thus harmonise legislation regarding origin labeling. Moreover, big German car manufacturers like Mercedes Benz, Audi, BMW and Volkswagen consider the EU proposal unpopular. The EU proposal scraps the law in force now, which defines the country of origin as the country in which the last economically justified and substantial 57
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DEVIL'S ADVOCATE Should engineers be held responsible instead of programmers in the case of autonomous drones? This issue's advocates PROS: Andrei Stoica Andrei is a future graduate of law studies at Nicolae Titulescu University, in Bucharest. He enjoys studying technology, old and new, law, foreign history and culture. What he is hoping to achieve is working and studying in a more globalised world that has new ways of doing legal work and to be part in helping technology integrate in everyoneâ€™s day to day life, as the future unfolds.
CONS: Oana Iulia Irimia
Oana is presently studying European and International Law at Nicolae Titulescu University from Bucharest. Passionate about ethics and philosophy of law, she believes it is essential to combine theoretical aspects with applied law and to encourage new directions of research. She considers that a new perspective needs to use an interdisciplinary approach and to position law students and practitioners in key roles.
Debate Foreword Dear readers, You are about to read a very interesting debate, with implications in humanitarian, criminal and military law. Much like in the case of self-driving cars, the liability for autonomous drones is a hot debate, especially due to their advantages and well spread usage. Autonomous drones are aircrafts without a human pilot aboard. They are also known as unmanned aerial vehicle (UAV). There are various actors that could be held accountable in case something goes wrong. In our debate, we narrowed it down to the most interesting two: the programmer, who decides what the drone does once put into use, or the engineer, who decides what the drone can do in any circumstance. Stay tuned to see who wins! By Bianca Alexandra Prunea 60
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Opening Remarks Andrei Stoica: New weapons and new technologies revolutionised warfare. The shifts brought by the XXth century technology were accompanied by the change of the nature of war and the way it is seen at national and international level. Drones are no exception, and after an analysis on their spread and the clear strategic possibilities they offer, one could certainly say that their use must be strictly assessed by specialists in international humanitarian law and human rights. For example, in 2004, only 41 states had this technology and the first prototypes, but by 2011 their number almost doubled, drones being used in 76 states today. Until now, only the USA, the United Kingdom and Israel are believed to have used armed drones, while the Republic of China and Iran are the only other countries with operationally deployed armed drones.
Oana Iulia Irimia: TDrone technology brings forth a series of questions that appear as fast as the technology evolves. Most of them can be answered, such as drone specifications, or how much can a drone do in contrast to its equipment.
A real question that cannot be answered at this time is who is responsible for the droneâ€™s actions? In the military, commanders must respect the Yamashita standard, a standard that dictates accountability for war crimes, both for those done on the ground and for those committed from hundreds of kilometres away. Since military drones are flown by a pilot in the army, the accountability is applicable to them as well, because such drone pilots have the same legal treatment, even if they just fly a drone. But what about civilians who fly and build drones? How are they accountable One particular issue derived from the specific nature for their creations? of this kind of weapon is the responsibility for the Since by todayâ€™s standards we cannot hold artificial inactions and consequences of the use of autonomous telligence accountable, we only have the human factor armed drones during armed conflicts. Given the fact as a liable party. that autonomous drones are not controlled by any human being, responsibility is distributed between the My first argument for the liability of the programmers engineer and the programmer, but the most significant is the fact that he designed the drone and the program part is given to the first party. In order to demonstrate behind it to prevent civilian damage and most of all my position, I will invoke several arguments. to prevent innocent victims in armed conflict. This falls under the criminal negligence or product liability Firstly, in warfare, a truly autonomous system capable provisions that most law systems include. While the to adapt to changing circumstances, thus with artificial latter might feel more in place, a drone forcedly used intelligence, can be programmed to behave more ethiby a third party would prove almost impossible for a cally and cautiously on the battlefield than a human programmer to be tried for damages since he took all soldier. However, it has not been proven if it is technithe necessary steps, yet somebody else executed the cally possible to respect the principles of distinction unlawful action. and proportionality at all times. Given these particular aspects, it is safe to assume that the most significant Retribution would most likely fall under the criminal impact on the conduct of a drone is not the software, negligence. This way if the programmer would not because it rapidly changes due to the circumstances carry out all the necessary research in the system, he and to the need to take rapid decisions, while the orig- will be prosecuted for negligence. This is also applica-
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DEVIL'S ADVOCATE inal technical structure is due to remain identical.
ble to the legal person as well, since corporations will handle programming projects and as such the legal Secondly, I would like to emphasize the essential role person will be the one held accountable. of the engineer during the use of the particular drone. The engineers are the only ones competent to give a My second argument is that current technology is verdict when their product does not seem to work as under the banner of being open sourced technology, expected and when it could make the wrong decisions. meaning anybody can develop applications, mobile This is because they designed the structure of the and desktop devices and operating systems. If for exdrone and made all the necessary simulations before ample, a person would develop an application that implementing certain software, so they are the only transforms a civilian drone that was designed for hobones who know which are the possible flaws or errors by photography into a dive-bomb or a spy camera, that that could appear. would mean that the developer alongside the user and platform designer would all be held responsible, since Thirdly, given that automated weapon systems funcall of them allowed such reckless technology to exist. tion in a self-contained and independent manner once While current legislation does not fully protect manudeployed, the only cause of any error of a system that factures, they can still protect themselves from these is in a continuous progress is technical. Examples of unlawful designers by imposing product censorship. such systems include automated sentry guns, sensorIf a person developed a dive-bomber application on fused munitions and certain anti-vehicle landmines. iOS and published on the application store, for free, Although deployed by humans, such systems indebut under a different name and description, then Appendently verify or detect a particular type of target ple could protect itself, but if the application was deand then attack. An automated sentry gun, for inveloped and marketed in the exact way the developer stance, may fire or not, following voice verification of expressed it, then they are part of the problem. This a potential intruder based on a password. Their degree brings further the need for distinct programmer and of precision is very high. However some cases of automanufacturer legislations. matic attacks on civilian targets have been signalled. A possible explanation to this is the lack of control or the To sum up, as it currently stands, programmers are low quality of sensors used to discriminate between prone to be prosecuted for criminal negligence or combatants and civilian population. product liability since they have the legal, if not moral obligation to ensure that their product meets the reTo sum up, it is important to remember that the tehniquested market criteria and do not blatantly violate cal structure is the only constant for a drone system basic human rights. To further conclude the idea bein a permanent change. It is of equal importance that hind having the need of a stronger legal framework, the manufacturer is the only one who knows the poswhat the future legal provisions must ensure is a dissible shortcomings of a drone and has the possibility tinction behind who can become a software developer to replace a certain weapon with another one in case for drones and who a manufacturer is of said gadgets, of uncertainty regarding the targets or the environsince in the current economy, drone manufacturers ment. Consequently, one must conclude that the role are not the same as software developers. Even though of the engineer is far more decisive than the role of a they tend to work side by side, there will always exist programmer in terms of responsability for the errors freelancing software developers that create other types committed by a drone. of applications, either harmful or beneficial.
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Rebuttal Moderator’s Note: By now you have learned from our debate how autonomous drones work, how they are used and what can possibly go wrong. Most importantly, both sides showed you who should be liable in case something goes wrong. Their arguments go far beyond the mere mechanism of classic responsibility. This is because, as stated above, the use of drones has various implications. Holding a person accountable for the use of such a device does not fit in the mould of responsibility for products, as Andrei has shown. On the other hand, due to the very widespread implications and the changing circumstances in which a drone must function, Oana believes that it is the engineer that can prevent damage, and not doing so can be a basis for liability. In order to see how they respond to these issues, keep reading! Andrei Stoica: Even though autonomous drones are Oana Iulia Irimia: Autonomous drones do exist and currently used in several purposes like domestic po- have been in tests for quite a while. For example, the licing, commercial aerial surveillance and motion pic- United States of America uses the new X-47B drone ture filmmaking, sports or for disaster relief, their use that is capable of autonomous surveillance missions in combat was not made official by any state. Armed and could be modified to hold weapons in the future, unmanned aerial vehicles were developed especially according to mass-media (Huffington Post, 2013; Popas a response to the vulnerability of remote controlled sci, 2011), since this new drone is still considered a work-in-progress. drones to cyber-attacks. Despite considering drones safer because they would reduce collateral damage, many incidents in Pakistan, Afghanistan or Yemen demonstrated their incapability to distinguish between combatants and non-combatants. They killed children and the participants to a wedding and several other dozens of civilians in Pakistan (BBC NEWS, 2013). In the case of autonomous and armed drones, things could get much more complicated.
As a response to the idea behind drone killings in flashpoints, such as Pakistan or Afghanistan, recall that those drones were not autonomous, they had a human pilot taking decisions, and they had a hierarchy that gives the order, even though the current drone program of the United States is under the Central Intelligence Agency. This means that the drones used there were simple tools and not higher forms of intelligence that take these kinds of decisions by themselves.
In response to the opponent’s first argument, I would like to add that the programmer is not the first to be held responsible in case the drone takes an unfortunate decision by not distinguishing between combatants and non-combatants. This is because such a mechanism has artificial intelligence, so it was created to modify its patterns depending on the circumstances on the field. The only unchanging feature will remain the structure and the capacity of the weapons. More than that, when designing the drone, engineers should also have in mind the characteristics of the area in order to calculate the risk of collateral damage and, in consequence, offer both lethal and non-lethal weapons in order to use them depending on the specific targets and minimise the risk of collateral damage.
As a reply to the idea that a drone should have different types of arsenal, the current legal framework in most states provides a clear manifest that civilian drones be armed as little as possible and that the armament should only be non-lethal. This is the case of Canada, which uses ‘persuasive’ shock or gas technology in law enforcement. As such, current human operated drones have the option to use non-lethal weapons. Also, current civilian usage prohibits lethally armed drones, even for self-defence.
The idea behind it is that there are low resolution and quality cameras in the current generation of drones (Predator MQ-1). They are almost a decade old technology and as such mistakes will be made. This, coupled with the gun phobia and the preemptive strategy Next, I am going to demonstrate that allowing drones that the United States of America developed over the 63
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DEVIL'S ADVOCATE to use both lethal and non-lethal weapons depending on the specific conditions is more useful. One can see this is true, by looking at several examples from the most famous fields where these autonomous drones were used .In many cases, drone pilots invoked the low quality of images in order to justify their incapacity to discriminate between a man with a gun or with a shovel in his hands. In the case of autonomous drones with sophisticated mechanism, but without subjectivity or doubt, they could target more innocent civilians, or sick or wounded combatants. In these cases where the degree of probability for collateral victims is very high, a special programme should be used to calculate this report and decide to use non-lethal weapons in order to make a balance between utility and safety. In response to the opponentâ€™s second argument, I must stress upon the fact that the product censorship will not solve the problems caused by the independent programme designers because, as we can observe, more and more technicians or programmers give out relevant data intentionally or non-intentionally that is further hunted by terrorists or other groups. However, in these cases, both technicians and programmers are held guilty for negligence, but especially technicians, since they offered the technical possibility of re-using the same mechanism for two different missions. In other words, the complexity of an autonomous drone mechanism is very hard to reproduce and in order to make sure it is not used by a third party, a self-destruction mechanism could be integrated in it. This would be the job of the manufacturer. The application could be theoretically bought from the internet, but given the fact that it should be compatible with an intelligent computer, it is easily deductible that anyone could buy such a programme, but not anyone could build such a mechanism. In conclusion, the use of autonomous drones by unauthorised persons is most likely the result of the negligence of the engineers rather than programmers. They, as I already said, are the only ones capable of taking the decision to authorise the use of a drone, because they have most of the information needed. Due to this, they should take all possible measures to adapt their design to the specific circumstances in which the drone will be used. 64
years, will lead to more mistakes than needed. Autonomous drones can be used with more efficiency, but having two kinds of armaments will not be feasible as this will cause weight problems for drones. The current drone programs in any state have a package that implies intelligence, surveillance and reconnaissance. This means that for a drone to fully be autonomous, it must have access to these packages, and decision is based more on a high quality report, rather than a hunch. Lastly, I would like to respond to the argument of not using product censorship or faulty criminal negligence prosecution. The idea behind giving a drone information, relevant or not, is part of the intelligence of the human agency or group that is using it. This means that not even the intelligence gathered will always be 100% true, but current drone technology, developed after the 2011 Iranian incident, ensures that when a drone discovers that it has a faulty system, it will go back home on its own or abandon the mission without the human part to instruct it to do so. This is a better mechanism than implementing a self-destruct mechanism, as this would be counterproductive to the cost of developing and building such a device. Drone operating programs are software that is developed specifically for a purpose. Military software is only equipped in a military computerised system and it is heavily monitored by capable personnel. This ensures criminal law to be applicable as a form of retribution. Civilian software, however, is very limited in functions, and this is exactly why it is easily accessible. The responsibility for faulty programming is still given to the programmer or software engineer, while equipping the drone with devices falls under the manufacturer who only provides what the market requests. It is important to understand that military or even terrorist factions buy drones and redesign some aspects to better serve their purposes. This means that if it is substantial, then the manufacturer can no longer be held responsible. In conclusion, autonomous and semi-autonomous weapon systems are designed to allow commanders and operators to exercise appropriate levels of human judgment over the use of force and therefore they should be held responsible for the consequences that occur.
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Conclusion Moderator’s Note: This debate took a quite interesting turn. While in the first part the opponents argued on the liability of the programmers or the engineer for their own actions in the use of a drone, in the second part, both opponents took the discussion further and analysed the possibility of liability for the actions of others who use the drone and damage third parties. I hope you enjoyed it and it provided some food for thought! Andrei Stoica: It can be clearly seen that the main clash- Oana Iulia Irimia: To sum up the ideas behind the necessity of having drone programmers, manufactures in the debate formed around four ideas. ers and pilots accountable for drone usage, one has to Firstly, even though both the technician and the pro- look at the technology that was also considered harmgrammer should be held responsible for the acts of au- ful at its conception, but soon proved that it has more tonomous drones, the technician should be held respon- strengths than weaknesses. To compare this idea, take sible for the acts of an artificial intelligence designed the internet. It has evolved since ARPANET first started by him, while the programmer should be controlled in to develop the framework. Since then, people with the terms of the results of the software created by him. intent of causing damage started to use the internet and Secondly, in the case of terrorist groups that buy these as such legal framework has been in effect to stop them, drones, transform them mechanically and use certain with a high yielding result. In the same way, drone prosoftware in order to change their initial purpose - maybe grammers should be dealt with, by existing legislation only for surveillance -, we cannot hold the engineer li- and future legal provisions, which envision the need of able for the acts of that particular drone. In this case, the licensing by an aviation administration. For example, the manufacturer should be charged for criminal negligence ‘Snoopy’ drone, developed by Glenn Wilkinson, a secufor selling these products, for lack of surveillance in case rity researcher, can fly over hundreds of people in a few they were stolen from the factories, along with the ones minutes and steal data located on their mobile phones without them knowing, by simulating a Wi-Fi connecwho intentionally made the changes. tion. This paves the way for the idea that drone operators Thirdly, automated weapon system, created to indepen- and drone software developers should be prosecuted for dently verify and detect different targets, have various unlawful usage of the gadgets. forms of control, such as voice verification. This is why the errors that appeared in several contexts of automated While civilians have their share of legal provisions, milifire over civilians have a unique explanation – the techni- tary pilots are susceptible of falling under the principle of the chain of command, as Peter Mauer, president of cal errors that must be fully attributed to the engineer. the International Committee of the Red Cross, stated in Lastly, there is the possibility of using two kinds of weap- 2013, and as such they will be treated as combatants even ons for autonomous drones, depending on the specific if they are miles away from the battlefield. circumstances in order to give the system the possibility to immobilise non-combatants or combatants that can Autonomous drones will never be left unchecked by a be found very close to innocent victims. In this regard, human overseer and as such the same person will be however, the discussion remains open, as up to this mo- prosecuted and judged for every action taken up until ment current civilian usage prohibits the use of lethally that point. This is in part of due to the democratic values armed drones because they present a high degree of risk. and principles of humanity that we have since birth, and in part due to the public opinion which will always be against self-aware artificial intelligence.
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Should European legislation regarding the ‘made in Germany’ trademark for the automotive component parts industry be revised?
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WE WOULD LIKE TO THANK ALL THOSE WHO CONTRIBUTED TO THIS FIFTH EDITION: Alexandru Coras Ana Pintea Andreea Stefan Andreia-Gemma Moraru Bianca Alexandra Prunea Diana Buzila Francesca Esposito Ingrid Apetrei Oana Iulia Irimia
Oana Gligan Radu Somlea Radu Suicescu Raluca Alexandra Maxim Raluca-Andreea TrincaGavan Ruxandra Popescu Stella Turnsek
We would like to extend a special thank you to Mr Daniel Nitu, Mr Eugen Iordachescu, and Ms Leonie van Lent for taking the time to offer us an interview, to Andrei Stoica, for his contribution to this edition's debate and to all lawyers who answered this issue's question.
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