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LAWYR.IT TEAM Senior Editors: Bianca Alexandra Prunea - 4th year, Babeş-Bolyai University Călin Mureşanu - 4th year, Babeş-Bolyai University Ioana Georgescu - 4th year, Babeş-Bolyai University Ioana Stupariu - 4th year, Babeş-Bolyai University PR Coordinators: Adrian Condraşov - 3rd year, N. Titulescu University, Bucharest Anny Stoikova - S.J.D. candidate, Central European University Delia Cristina Stamate - 3rd year, Ovidius University, Constanţa Dora Maria Demble - 2nd year, University of Vienna - Juridicum Ioana Atomulese - MBA, Alexandru Ioan Cuza University, Iaşi Stella Turnšek - 4th year, University of Zagreb Junior Editors: Alan Koh - 4th year, National University of Singapore; LL.M. candidate, Boston University School of Law Andrada Rusan - 4th year, Babeş-Bolyai University Andrada Florea - 4th year, Babeş-Bolyai University Andreia-Gemma Moraru - 3rd year, Babeş-Bolyai University Alexandru Coraş - 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-Cristina Gligan- 4th year, Babeş-Bolyai University Oana Iulia Irimia - 2nd year, Nicolae Titulescu University Raluca Alexandra Maxim - 2nd year, Babeş-Bolyai University
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EDITOR’S NOTE By Ioana Georgescu
It has been a full year since the Lawyr.it project was launched, and what a year
it has been. It started out with just four people, me and the other senior editors, not entirely sure of what was lying ahead of us, but highly motivated to make a change in the lives of law students. Over the past twelve months our number grew considerably, as new people joined the team. Looking back, I truly hope that it was a fruitful experience for everyone. I, for one, owe a lot to Lawyr.it. We all grew together with it, became better and better at our tasks. As the team grew, the roles were distributed among the old and new members, each now specialised in their ‘field of expertise’. Lawyr.it today is a lot different than what it started out as. However, the differences lie in new ideas and projects that were shaped with a great collective effort. We have launched the Lawyr.it Dictionary in order to ease the writing process for those wanting to submit articles, but also for anyone who needs to use English legal terms. We are committed to publishing one new word every week and have more than fifteen words and phrases so far. Another novelty is the Opportunities section, an old dream of ours that finally materialised. By following it you will be up to date with all the events related to the field of law and beyond – student competitions, conferences, essay competitions, internships, and much more. The new website allows members to engage more, share their ideas, and truly form a vibrant community of law students and young legal professionals. Lawyr.it is constantly expanding internationally, being present so far in Romania, Hungary, Austria, Croatia, and Bulgaria. In this anniversary issue the focus is mostly on international matters, perhaps a reflection of the increasing international exposure of the magazine. In the Domestic section you can find out more about the influence of common law in the Romanian legal system, in particular the acceptance of the judicial precedent. You can also read about the risks that comparative advertising poses to fair competition. Our Reflections section brings you an insight into lawyer’s work ethics and the inspiration that Aristotle and Lincoln can and should be to modern professionals. There is something of interest for anyone in the International section, whether you are into private or public law. The articles range from the constitutional systems in Europe and the United States, to the civil war in Syria, to the Common European Sales Law. Two of the articles are on the hot topic of internet surveillance, being awarded by ELSA Bucharest in an essay competition. This edition’s interview introduces you to Linda Hamid, Law Clerk at the International Criminal Court, and her views on international law. Finally, this issue’s debate sees a confrontation between two first-year law students, both long-time debaters, addressing the issue of patents for green technology. I hope that you will find our fourth issue an enjoyable one and that you are just as excited as we are of the endless possibilities that Lawyr.it can offer. I cannot wait to look back on this moment a year from now and realise how far we have come. Happy holidays! 4
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IN THIS EDITION Domestic Focus The fate of the judicial precedent (p. 8) The threats comparative advertising can pose to fair competition (p. 10)
Reflections Aristotle’s and Lincoln’s juridical teachings for the modern-day lawyer (p. 14)
Professional Spotlight Interview: Linda Hamid - Law Clerk - International Criminal Court (p. 18)
International Focus Constitutional Justice in Europe and United States of America. A comparative view (p. 24) Do EU citizens truly benefit from their EU citizenship when it comes to the visa regime? (p. 26) The law on Euthanasia in Britain and the Netherlands: Which is preferable? (p. 30) Syria: Taking sides in International Law (p. 32) The Common European Sales Law: A necessary tool? (p. 34) Surveillance of Internet communications in Romania and the EU (p. 36) Surveillance of Internet communication (p. 38) International criminal courts and internationalised criminal courts. Brief comparison (p. 42)
Devil’s Advocate Companies should not be allowed to have patents on green technology (p. 46)
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DOMESTIC FOCUS The fate of the judicial precedent
Common law relies on the
Very often, the initial solution is only partially suitable or even unsuitable for the new issue. This may cause certain difficulties in finding the right answer. Common law succeeds to tactfully resolve such contradictions by adapting the decision to the new situation. An essential change in the facts leads to a new solution. Therefore, common law is more about freedom of interpreting the law, using analogies,
judicial precedent, but what about the other legal systems? Can they be adapted to this kind of practice? The Romanian legal system seems reluctant to recognise the judicial precedent as a direct source of law, although it has made notable progress in this matter. The presumptions, and legal deductions. Stereotypes are decisions of the supra-national courts have constantly influenced national law. avoided, the very stereotypes that seem to harm the Their importance is growing, making the national Romanian legal system. courts slowly accept higher points of view and apply The game is more complicated than it seems. The them accordingly. players do not apply the rule over and over again. Parents attentively guide their children when tak- That would turn them into robots. Judges must reing their first steps. Similarly, mentors teach law stu- spect the precedents when solving the cases, but dents from the very beginning that the origin of any they are not forced to always use the exact previous rule is the law. Students then find out that there are rule. more legal sources and that each has a specific role in creating the law. As far as the judicial precedent Specialists severely criticise the rule of precedents. is concerned, Romanian experts in the field place it It has benefits, such as the constancy of the decisions among â&#x20AC;&#x2DC;other categories of sources of lawâ&#x20AC;&#x2122;. The cur- and the homogenous legal behaviour. However, too rent system does not recognise it as a direct source. many precedents lead to the inability to systematically cope with them. Despite its reputation, this Legal precedence follows a simple rule, that of system was able to influence other legal systems and standing by the previous decisions. A decision made make them more open towards the judicial precin a particular case must be applied in future cases edent. having identical or similar facts. In other words, every game implies a basic rule that serves as a pat- In Romania, before the new Civil Code came into tern for the following ones. The players just apply force, any attempt to introduce judicial practice what was initially established, thus forming a prec- would have been a failure. This is due to the rigorous respect towards the separation of powers, which edent for the future games. promotes a clear difference between making and apObviously, not every case is similar to another, as plying the law. The former is strictly a legislative ateach new legal problem has its own particularities. tribution, while the latter is in the competence of the 8
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judiciary. This clear distinction still exists in practice. It is still not possible to consider the judicial precedent an independent source of law. The idea of the judicial precedent acting as a source of law in Romania is quite vague and unclear. This attitude should definitely change.
ber states may ask the Court of Justice how to apply the European law in a certain case. The interpretation given by the European Court becomes legally binding for all the national courts. A famous precedent was established in the pollution tax matter (CJEU, Tatu v. Romania, 2009). The case concerned vehicles owners which were constrained to pay an outrageous polluThe decisions of the High Court of Cassation and Justion tax for their first registration. This tax was detice are relevant in this sense. They guarantee the hoclared illegal as it was contrary to the European regumogenous interpretation and application of the law. lations and Romanian authorities were compelled to However, although similar to the judicial precedent, pay major compensations. they do not generate new rules, but act as a guide for the national courts. They ensure the uniform application of the law, explain the real meaning of the law, The concept of the judicial precedent is not being and avoid contradictory points of view on the same ignored and its influence is growing. The Romanian subject. legal system is changing, but for now it does not recThe exceptions of unconstitutionality lodged in front ognise the judicial practice as an independent source of the Constitutional Court are also worth mention- of law. This matter is sensitive and has to be tackled ing, as they are legally binding in the future. This effect with responsibility. While experts in this field are still does not necessarily make them sources of law. Their reluctant, it is important to extract and keep only what main role is to ensure the authority of the Romanian is feasible and valid for our legal environment. Constitution. To be more precise, they are considered to behave as a civil source of law, but once again, not as a direct one. Thus, these situations are strictly ex- It seems that the judicial precedent has an actual ceptional and do not create, by analogy, a common chance in a rigorous, conservatory system. The once first year student, now a graduate, can be more oprule for the other national courts. timistic and analytical when it comes to interpreting Romaniaâ&#x20AC;&#x2122;s new modern codes cast a light on the matthe law. ter of judicial precedents. The new Code of Civil Procedure promotes the â&#x20AC;&#x2DC;prejudicial matterâ&#x20AC;&#x2122; mechanism. According to it, national courts may ask the High By Anca Lupas Court of Cassation and Justice for a preliminary decision, allowing it to solve contradictory legal issues. This is similar to the preliminary ruling mechanism of the Court of Justice of the European Union. According to Article 267 of the Treaty on the Functioning of the European Union, the national courts of the mem-
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DOMESTIC FOCUS The threats comparative advertising can pose to fair competition
Modern economies have long
now been striving to foster sane competition and to grant actors freedom of movement within their relevant markets. In competition law, the relevant market is the market in which one or more goods compete. Competition is desirable, as it leads to legitimate fight between people in the business. The winner of this fight is always the consumer, pampered with the best offers at stake. A variety of emerging technologies have diminished considerably the costs of imitation and forfeiture. This creates a breeding ground for dishonest commercial practices and makes competition harder to fit within the narrow confines of the Law.
position between one’s trade practices or products and those of a competitor. It casts a favourable light over the former by discrediting the latter. Free-riding comparative advertising, on the other hand, intends to have a ‘free-ride’ (getting unmerited benefit from the actions of another) on the reputation and good name of a competitor. The aim is associating their products with those of the rival and creating a connection between the two in the mind of the consumer. First, to discern between the cases of legitimate use of comparative advertising and unfair competition, it is necessary to clarify the meaning of the terms used by the Directive.
Who is ‘a competitor’? In brief, a competitor is anyone who develops their business within the same relevant product market (Cotuţiu, 2001). As emphasised by ECJ case-law, it is the type of goods in Unlawful competition practices may come in dif- the concrete case and the needs they cater for that ferent forms, most of which are difficult to spot by ultimately decide their ‘competitiveness’ (ECJ, De the unaware. Comparative advertising represents a Landtsheer Emmanuel SA v. CPVC and Vevue Cliborderline set of practices of this sort. This article quot Pontsardin SA, 2006). will offer brief overview of these practices, accomHow is a competitor ‘identified’ in an advertisepanied by concrete examples, in an attempt to determent? An advertisement may well fall within the mine where the border between lawful and unlawful provisions of the Comparative Advertising Direcshould be drawn. tive even if it does not offer the name of a specific Comparative advertising is regulated by the Eu- competitor, product or service. An implicit referropean Directive 2006/114/EC concerning com- ence is enough, even if more competitors will claim parative and misleading advertising (further called to have been identified in that way (ECJ, De LandtComparative Advertising Directive). Its provisions sheer Emmanuel SA v. CPVC and Vevue Cliquot were transposed into Romanian Law 158/2008. Ac- Pontsardin SA, 2006). It is enough for the advertisecording to Article 2 point (c) of the Directive, com- ment to clearly target one or more determined comparative advertising means any advertising which petitors. This is the case when consumers can idenexplicitly or by implication identifies a competitor tify who those are. The comparative advertisement is unfair each time the average consumer can realise or goods or services offered by a competitor. that the scope of the advertisement is to put in better The German doctrine made a suggestive distinction light the advantages of one’s products or services to between critical comparative advertising and free- the detriment of those of a competitor. This evaluriding comparative advertising (Eminescu, 1993). ation on behalf of the public depends on the nature Critical comparative advertising consists in an op10
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of the product. Advertisements of daily used, average priced, products and consumables will be perceived superficially, at first glance. Advertisements of rare or specialised products will come under more scrutiny from the intending consumer (Eminescu, 1993).
ing marks of a competitor, or of the designation of origin of competing products; 3.3. It does not represent goods or services as imitations or replicas of goods and services bearing a protected trademark or trade name.
Second, Article 4 of the Comparative Advertising Directive lists a few situations when comparison is al- These are three distinct situations which are often linked in ECJ case law. Imitating a product means taklowed. ing an unfair advantage of it, which can discredit the 1. Comparison is allowed if it is not misleading. A reputation of the competitor. ‘Taking an unfair advanmisleading comparison is incomplete, biased, and it tage’ is a broad concept which includes any gain made conveniently leaves out information that would make by illegally using a value created by another (Nims, it detrimental to the product advertised. For instance, 1936). An iconic case is L’Oreal v. Bellure, where an advertisement is misleading if it claims that one’s cheap Bellure perfumes were produced to smell like prices are lower than those of a competitor, but it fails L’Oreal fragrances, and dressed in packaging similar to mention that the price of the competitor includes to the shape marks registered by L’Oreal. In addition, comparison lists were provided to distributors. A corsome accessories of the product. respondence was drawn between each famous L’Oreal 2. Comparison is allowed when it compares goods or perfume and its cheaper Bellure imitation. The Court services meeting the same needs or intended for the ruled that even though there was no actual risk of consame purpose. This ensures transparency over mar- fusion between the two, Bellure’s actions gave them an kets of similar goods and offers more protection to unfair advantage at the expense of L’Oreal. That is inconsumers. However, it must be determined to what consistent with the standards of fair competition and extent the compared products are interchangeable. thus considered unlawful (ECJ, L’Oreal SA & others v. A plaintiff in such a case will always argue that their Bellure, 2009). products are not comparable to the defendant’s. Their superior quality automatically means they do not meet To conclude, there is a fine line between lawful and the same needs and are not intended for the same unlawful comparative advertising. Trespassing may purpose. Admitting such an argument rules out any result in a blink of an eye. When it does, the offenders possibility of comparison between many categories of can receive administrative sanctions, but this is not consumer goods, especially foodstuffs. It would make enough. The appropriate course of action for anyone this provision eternally inapplicable. Therefore, the harmed by the dishonest practices is to bring a claim ECJ offered the broadest interpretation of this aspect, before a Court according to Law 11/1991 on unfair and the one most favourable to allowing comparisons. competition. This ensures that any form of unjust enIt said that the Comparative Advertisement Directive richment at the expense of a competitor is reprehensidid not ‘prejudge the angle from which a comparison ble in the collective consciousness. might be lawfully made or the characteristics of the products to which comparative advertising might refer’ (Practical Law. ECJ, Lidl SNC v. Vierzon DistribuBy Andrada Rusan tion SA, 2010). 3. Comparison is allowed when: 3.1. It does not discredit or denigrate the trademarks, trade names, other distinguishing marks, goods, services, activities, or circumstances of a competitor; 3.2. It does not take unfair advantage of the reputation of a trade mark, trade name, or other distinguish11
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REFLECTIONS Aristotle’s and Lincoln’s juridical teachings for the modernday lawyer
I believe that a lawyer’s success
depends both on his internal structure, virtue, and the moral principles he or she abides by, as well as the external environment and circumstances encountered in his or her activity. However, nowadays the legal profession is going through an ethical crisis. In this context I wonder to what extent do lawyers maintain their set of ethical codes and conduct to reach the wanted victory in Court and, implicitly, in professional life? Given the commercialisation of the legal practice, do old juridical principles still apply in the profession?
primary goals those depending heavily on fortune and external circumstances (Sherman, 1999). In Aristotle’s view, law is reason, free from passion. Although the rational element dominates, a person is also expected to be just and brave to face the penalties this attitude might imply, while cultivating rigidity and stability in character (Sherman, 1999).
Although Aristotle was not a lawyer, his set of principles influenced the later legal systems. To him, practical wisdom, the equivalent of today’s sound judgment, is the foundation of the practice of law. The context is crucial in each case, so the lawyer must be able to exercise this judgment depending on circumstances, beyond the strict letter of the law. Another Throughout this paper I will present the legal profes- trait a successful lawyer should have, according to sion as it is today and then analyse the way in which Aristotle, is the ability to judge human character, its Aristotle’s and Lincoln’s ethical principles still apply complexity, and its irrational side. However, one can only get this by connecting with all types of clients, to the modern-day lawyer. outside the abstract of legal books. In Plato’s days, lawyers were feared because of their ability to debate. Now, this ability stands at their very Aristotle believed that in the legal field it is very nature, since they must keep a critical attitude and important to find people who stand as role modconstantly search for solutions. Faced with the cur- els, because of their inspirational decisions. One of rent economic conditions, the legal practice is be- them was Abraham Lincoln, more famous for his coming more and more a commercial, profit-based, political life than for his competences as an advocorporate profession. Beyond the legal ethics jour- cate of his people. What most of us probably do not nals and the ethics courses taught in law schools, it know is that Lincoln represented the most powerful is ultimately each lawyer’s responsibility to adopt an economic machine of the nineteenth century – the railroads. He handled over 5,600 cases along a caethical conduct. reer which lasted 24 years and was the attorney for One of the first treaties on ethics was created by four cases brought before the United States Supreme Aristotle. According to him, someone whose life is Court. guided by practical reason will develop and exercise it while attaining his or her goals. This automatically One might ask, for example, how was he able to implies that a wise person is unlikely to choose as defend the railroads and endorse the workers who 14
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sued the railroad, at the same time. Although he had a practical character, he was not prepared to make a moral compromise regarding the sensible issue of slavery in the United States. How can the modern-day lawyer apply Lincoln’s pragmatism and idealism into the profession? Just like Lincoln, the lawyer should be self-disciplined and passionate about his/her work, ethical without being perfect. The lawyer must contribute to the public good, but become a fierce advocate when needed. Lincoln’s realities were very similar to the legal environment today. If he were still alive, he would probably be a partner at a prestigious law firm. Even though the legal profession underwent considerable changes since Lincoln’s time, choosing him as a role model for today’s lawyers can be justified by the fact that he represents a tangible character. His ethical law standards should be maintained. Those include reasonable fees, public service, litigation fairness, competence, confidentiality, and loyalty. In 1854, Lincoln handled a famous case. Cyrus H. McCormick invented in 1834 a reaping machine that revolutionised the farming industry. McCormick sued John H. Manny in 1854 for infringement of his patents. Manny enlisted the services of George Harding and the case was set to be heard in Chicago. The elite team of patent and trial lawyers chose Lincoln as the main attorney. However, as the trial date grew closer, the case was moved to Cincinnati. Lincoln was informed by the attorney Edwin McMasters Stanton, who had been added to the defence team, that he would no longer be part of the litigation at all. Although the McCormick affair does not seem to show Lincoln’s abilities as a lawyer, it speaks a lot about his ethical qualities. He never argued or participated in the case, but he chose to remain in Cincinnati for a week, to observe the trial. Lincoln’s actions in this case show his humility, his recognition of what he lacks, beyond the arrogance instituted by the bar. Lincoln exhibited a raw will to progress, which ultimately de-
termined an impressive diligence. Lincoln never considered himself one of the premier legal scholars of his time, but he compensated for that by hard work. He argued that one’s resolution to succeed is more important than any other thing. Lincoln believed and showed that through determination and will one can become a successful lawyer. The example above is a perfect illustration of the fact that justice always needed its representatives to be concerned with the common good of the community, thus ensuring the progress of society. However, the external goods also contribute to a person’s welfare, since many actions are performed by means of friends, money, and political power (Sherman, 1999, p. 42). From this point of view, many lawyers now believe they can get the best results by being less concerned with the justness of the necessary actions that must be carried out to triumph. But, when bearing in mind Aristotle’s and Lincoln’s ethical models, lawyers will act promptly, with due diligence, adequate preparation, and competence in representing their client. It is clear that the legal system is an imperfect institution. While fostering justice, it must interact with every breed of criminality and injustice (Ellis, 2009). Aristotle believed that law is a compromise between moral principles and practical possibilities. Daily, lawyers are faced with barriers like involution, lack of morality, the ordinary citizen’s scepticism regarding the judicial system, and the general loss of faith in the concept of justice. Despite all these, they must remain confident in their calling and in the greater purpose existing beyond the profession. A great lawyer is not the one who only applies the law, but the one who constantly enriches his or her expertise. By Oana Gligan
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Interview: Linda Hamid Law Clerk - International Criminal Court
Hamid is a law clerk in the Chambers of H.E. Judge Christine Van Den Wyngaert at the International Criminal Court, as well as a PhD candidate at the University of Leuven (Belgium), where she is currently writing her thesis on the status, rights, and obligations of unrecognised states in international law. She holds a bachelorâ&#x20AC;&#x2122;s degree in law (First class honours) from Babes-Bolyai University and a masterâ&#x20AC;&#x2122;s degree in public international law (cum laude) from Utrecht University (The Netherlands).
the war of aggression. Although I am a firm believer in the idea that the concept of law is not always the same as that of justice, it also remains true that the line between them is a thin one. When I grew older and it was time to choose a path in life, my leap from a passion for justice to a law career came naturally. There is much injustice in this world, so I have since kept very busy. Lawyr.it: Your passion for international law is clear, judging from your current and previous activities. When did this passion occur and in what circumstances?
L.H.: Looking back, I can roughly identify three moments in my life that, in one way or another, have After completing her LL.M studies, Linda worked shaped my passion for international law. The first as a legal intern in the Defence Office of the Special was in 1990, when my mother and I were forced to Tribunal for Lebanon, a teaching assistant in pub- abandon Iraq after it had invaded its neighboring lic international law at Babes-Bolyai University, and country, Kuwait, and leave my father behind to an a trainee at the European Court of Human Rights. uncertain future as a soldier in the Iraqi army. She has recently been admitted to practice law in the The second was in March 2003, when, together with Cluj Bar. my father, I watched in horror, on a TV screen, how Lawyr.it: Who is Linda Hamid? Can you tell us a my country was crumbling in flames as a result of little about yourself and what made you choose a operation Shock and Awe. However, it was only when I first studied public international law during legal career? my university years that I finally made the connecL.H.: Oh my, that is a difficult question. I am sometion between the events that had shaped my life unone who constantly reinvents herself, so who I was til then and international law. yesterday might not be who I am today. However, there are certain things that have always remained As a person whose life has been directly impacted unchanged. Among these is my passion for justice, by the lack of respect for international law during which I acquired at a very young age, after having and in the aftermath of the Gulf War, I acquired the experienced, to a certain extent, something that I belief that the only practical foundation for rational perceive as one of the greatest injustices on earth: and sustainable relationships among states is respect 18
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for international law. For these reasons I decided to perceive my work as extremely interesting and chaldedicate myself to the study and practice of interna- lenging. As we like to say in our office – ‘Never a dull tional law. day!’ Lawyr.it: You are currently a law clerk at the Interna- Lawyr.it: Before working at the ICC, you were a legal tional Criminal Court. Tell us a little about the insti- intern in the Defence Office of the Special Tribunal tution and your work there. for Lebanon and a trainee at the European Court of Human Rights. Can you tell us about your experiL.H.: As you probably well know, the International ence there? Criminal Court, based in The Hague, is the first permanent international criminal court established to L.H.: My experience at the Special Tribunal for Lebahelp end impunity for the perpetrators of the most non was the first truly practical encounter I had with serious crimes of concern to the international com- international criminal law and one that I will never munity, namely genocide, crimes against humanity, forget because it forged my passion for this area of inwar crimes, and the crime of aggression. The Court is ternational law. What I really like about the tribunal is composed of four organs: the Presidency, the Cham- that it is quite different from other hybrid/internationbers, the Office of the Prosecutor and the Registry. I alised criminal tribunals because it has a very narrow currently work in Trial Chamber II for Judge Chris- jurisdiction (it only deals with the crime of terrorism), tine Van den Wyngaert, but I sometimes am also in- it applies in part Lebanese substantive law and in part volved with the work of Pre-Trial Chamber I. international criminal law, and it is the first international tribunal to have a Defence Office as an organ Lawyr.it: What was the most notorious/interesting of the tribunal with equal standing to the Office of the case that you had the chance to experience at the Prosecutor. All of the aforementioned have made my ICC? experience there seem quite unique to that of my felL.H.: Given that the International Criminal Court low colleagues who at that time were also interning at only deals with those bearing the greatest responsibil- international institutions and tribunals. ity for crimes within the jurisdiction of the Court, one My traineeship at the European Court of Human can say that all the cases that the Court is currently Rights was quite different from the one I had at the dealing with are notorious or interesting inasmuch as Special Tribunal for Lebanon because I solely dealt the accused are either current or former heads of state, with applications against the Romanian Government. statesmen, or military commanders, and they have reHowever, the experience was extremely fruitful, as it ally all made the news at one point or another. Judge helped me acquire an understanding of aspects of RoVan den Wyngaert currently serves as a judge in three manian domestic law that I had never really considsituations: the Democratic Republic of the Congo, ered. Looking at cases that seldom go through three Libya, and Côte d’Ivoire. I am assigned to work on the levels of jurisdiction back home before reaching the situation in the Democratic Republic of the Congo Court and analysing them through the spectrum of and even though the case is fast approaching its end the European Convention on Human Rights can be a (a final judgment is forthcoming in February 2014), I truly eye-opening experience. 20
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Professional Spotlight Moreover, I am also extremely happy that since I have joined the International Criminal Court, I have applied, on several occasions, the knowledge acquired in Strasbourg to my daily tasks at the Court, particularly with respect to issues dealing with fair trial rights.
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ways connected to social media and news outlets. In a world where any type of information we need or want is literally at the tip of our fingers, staying connected to world affairs is not only easy, but also, as far as I am concerned, a pleasant endeavour.
Lawyr.it: What is your opinion on the peopleâ&#x20AC;&#x2122;s aware- Lawyr.it: What do you see yourself doing in the funess regarding international situations, specifically ture? conflicts and their impact? L.H.: I am very happy with what I am currently doL.H.: It really depends. I currently work in an envi- ing, so to be honest I see myself continuing a career in ronment where people are extremely aware of what international criminal law. I also see myself complethappens across the world, not only because they are ing my PhD in the next three to four years and who genuinely interested in international affairs, but also knows, maybe even going back to academia, at least because being informed, particularly with respect to on a part-time basis. conflicts around the globe, is part of their job descripLawyr.it: And, as usual, our last question would be: tion. At the International Criminal Court we also have what advice would you give to law students? a Public Affairs Unit that makes sure to brief everyone within the Court on the daily developments in the in- L.H.: To understand that nowadays career opportunities for ambitious law students are endless. We no ternational arena. longer live in a world where the only options for law Lawyr.it: What motivates you in your work? graduates are to become a judge, a prosecutor, or a L.H.: The fact that my work, although fairly insignifi- lawyer. So many areas of law have expanded in the last cant if one takes into consideration the wider picture, few decades. Just think about European Law, Public has an impact on a greater level: on victims of war International Law, International Criminal Law, or Incrimes and crimes against humanity, on the concept ternational Commercial Arbitration. of international justice and, at the end of the day, My advice to you is to find a niche, an area of law when a judgment is rendered and a precedent is set, where there are few specialists, and strive to become on the very development of public international law. one. The world will then open up to you in ways you Lawyr.it: You have also been, for a short period of have never imagined. time, a teaching assistant in Public International Law at Babes-Bolyai University. What can you say By Alexandru Coras with respect to the studentsâ&#x20AC;&#x2122; interest in the subject? L.H.: Actually, I found that my students were quite interested in the subject, as opposed to my generation when I remember that merely a handful of people showed genuine interest in public international law. This is probably because your generation is al21
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INTERNATIONAL FOCUS Constitutional justice in Europe and the United States of America. A comparative view
The judicial systems world-
wide were created to be based on the rule of law. This is a principle which supports the authority of law as the unique way of regulating the behaviour of individuals, without infringing on their fundamental rights and freedoms (Carothers, 2006). Whilst the monopoly of law in society targeted the standardisation of social behaviour, it was therefore important to compound set up a hierarchy of juridical norms. People started to lay the foundation of written Fundamental Acts in the United States of America, Poland, and France in the eighteenth century. Two centuries later, Hans Kelsen, the author of the theory of pure law, set up a hierarchy of norms with the constitutional norms on the very top of it. Designing them in the form of a pyramid, he devised the constitutional rights as supreme norms from which any other legal norms (Kelsen, 1992). Before having knowledge of which legal norm is more important to society, the need of a governing body developed. Its goal is to guarantee the supremacy of the Fundamental Law. As a progressive perspective has its own significance in expressing how constitutional review appeared, the case of USSCt, Madison v. Marbury, 1803, became a landmark and symbolises the beginning of constitutional justice not only in the USA, but worldwide, with Switzerland, Norway, and Greece later following the American model (Wolfe, 1994).
to approve the nomination, refused to do it. In these circumstances, Marbury requested a writ of mandamus (a writ or order that is issued from a court of superior jurisdiction that commands an inferior tribunal, corporation, or individual to perform, or refrain from performing, a particular act, the performance or omission of which is required by law as an obligation) from the Supreme Court to compel Madison to endorse the commission, an application which was finally denied, and which established the Supreme Court’s position of arbiter of constitutionality. Despite of the significant influence the USA had on constitutional review methods in Europe, the two constitutional justice models, American and European, are now very dissimilar (Bakker, 1995). In the United States of America, the constitutional review can be made by any ordinary judge, as they have the authority to assess whether a norm is constitutional or not. This system is a decentralised one, as any courthouse may verify the conformity of an ordinary law with the Constitution, while the Supreme Court has the authority to control the decisions of the lower courts and to solve the most complex and most important litigations in a definitive manner. The latter’s area of responsibility extends not only to constitutional issues, but to legal matters as well. Its decisions have the power of a judicial precedent that any lower court must respect. However, the American Constitution does not mention the Supreme Courts’ power to affirm the unconstitutionality of a law or regulation. This responsibility has been assumed by the Supreme Court since USSCt, Marbury v. Madison, 1803.
Briefly, the case is about the intention of the president John Adams to name, among others, William Marbury as Justice of the Peace. Because the next day Adam’s term was set to expire, the newly-named Meanwhile, the European constitutional review Secretary of State, James Madison, whose task was model proposes a specific body with the special 24
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responsibility of checking the compatibility of a law with the Fundamental Law. This system, as opposed to the American one, is a centralised one. For example, whether we are talking about the Constitutional Court in Romania, the Constitutional Courthouse in Germany, or the Constitutional Council in France, they all describe the judicial institution in the position of guaranteeing the supremacy of the Constitution. Also, the Fundamental Acts stipulate how, when and to what juridical acts the constitutional review can be made. In Europe, the ordinary courts handle civil and criminal matters and can also refer the matters of unconstitutionality to the delegated body (see the cases of Romania, France).
Although the three types of procedure are fairly heterogeneous, they coexist and, most of the time, they go together. For instance, after a litigator states a question before a law court, the judge refers the question to the constitutional court, so the concrete method and the constitutional complaint method intertwine. The only difference between the two is the actor who raises the constitutional question – if it is the judge himself, the system is that of a concrete method, whereas if the litigator raises the question, the system is the constitutional complaint one.
The American review model is similar to the European ‘concrete method’, but with several, considerable particularities. Following the principle ‘the judge Furthermore, in the European model there are three makes the law’, established in the Anglo-Saxon law ways in which constitutional justice may be reached system, any court has the power to void a law as un(Sadurski, 2005): constitutional if it contravenes with the provisions of the Fundamental Law. On the contrary, in Europe, a 1. The abstract method is the type of review initiated judge holds only the authority to interpret the law, but by elected officials which refer a law for review in the not to create it, hence he is not allowed to decide upon absence of an actual judicial case. In this situation, a the accordance of a law with the Constitution. law goes under constitutional review before being enforced, but after being adopted. The primary conse- To conclude, while considering the distinct aspects of quence of using the abstract review is prevention of the two dissimilar types of judicial review, one canharmful effects on rights owners and this is why it is not make a hierarchy of constitutional review systems also called ‘preventive review’. by importance or effectiveness. Both European and American judicial systems represent effects of insti2. The concrete method is the type of review which tutional, political and cultural development throughinvolves a concrete case wherein the judge refers a out the centuries within the framework of permanent constitutional question to the qualified law court. The volubility of not only extern, but also domestic forces. constitutional court is bound to answer it in a reasonMay it be abstract or concrete method, they both have able time. The ordinary judge is bound by the conproved the capacity of moulding adequate legal strucstitutional court’s decision towards the constitutional tures to guarantee the supremacy of Fundamental issue in question and must apply it in the respective Law. litigation. 3. The constitutional complaint is based on the right of individuals to raise a certain constitutional issue before an ordinary court in the course of a lawsuit, as long as that respective issue affects the litigator. When conditions verify, it is the duty of the trial judge to forward the constitutional matter to the qualified judicial body.
By Andra Carabas
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INTERNATIONAL FOCUS Do EU citizens truly benefit from their EU citizenship when it comes to the visa regime?
issues involve both domestic and foreign policy matters within a state, affecting two categories of parties: people who want to travel, migrate, or transit, and the countries which would accept them. However, despite its primarily beneficial purposes, the visa regime can also create problems for both sides involved. This article will analyse the situation of EU citizens when trying to apply for visa in different categories of countries. Regarding the positive aspects, on one hand, positive attitudes arise from facilitating transit or residence conditions imposed by another state. The most important reasons are related to commercial, economic, cultural, or social issues. In general, countries with a low level of economic development perceive some satisfaction as a result of easing visa regimes, as their citizens can benefit from new opportunities in other states.
migrants and ethnic minorities (Gatestone Institute, 2012). An example on this topic would be the share of Muslim students in primary school in 2012 in the Antwerp region, which is 45 %.
The current situation of movement within the EU Free movement of people from EU Member States has been a goal since the establishment of the European Communities. To highlight this rule, article 45 of the Treaty on the Functioning of the European Community promotes the free movement of citizens. According to this article, the most important benefits to EU citizens refer to: 1. Eradication of discrimination based on nationality between Member States regarding employment, remuneration, and other conditions of employment;
2. Residing in a Member State for the purpose of employment in accordance with the laws, regulations, and administrative provisions governing the On the other hand, however, the negative percepstate rules among employment of workers; tion on the visa regime is created by some states like those that host new immigrant categories. The 3. Remaining in the territory of a Member State acceptance of new immigrants carries a range of after having been employed in that state. mainly social and cultural pressure, but it can also impose an economic burden on those countries. France (The Telegraph, 2011) and Belgium are ex- The Schengen Area and how it is different from amples in this way, as some voices consider they are the EU becoming Islamic states. The explanation of this concept clarifies some misThe situation in Belgium is a landmark on the legal conceptions about the freedom of movement for citsystem within the EU that is too lenient with im- izens of non-EU countries within the EU. Its foun-
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dation was the Schengen Agreement in 1985, which The situation of non-EU/Schengen countries abolished all internal borders of the Member States. The main problem of the visa regime for EU citizens Thus, a unique external border has been created, alonly rises when they intend to transit the territory of lowing free movement of the signatory states. countries other than the EU Member States or memThe main measures that followed immediately after bers of the Schengen Area. signing the agreement focused on the activity of the Currently, Europe is composed of fifty declared soverPolice and internal protection structures, in order to eign states, with other five regions which are organised harmonise procedures at a state-level. on the basis of the national autonomy principle. Using For this purpose, the Schengen Information System basic math, it can be deduced that there are nineteen (SIS) was developed. It can be defined as a computer- states that do not have any rules within the EU and the operated platform updated on a ‘near-real time up- Schengen Agreement. date’ scheme. The system aims at providing informaThese non-EU/Schengen countries display a rather retional support to supervise any border points of this laxed regime for EU citizens, which can be explained area. from several perspectives: A clear distinction must be made between the geo1. The living standards of the EU and Schengen states graphical area of the EU and Schengen’s geographical are higher than in other states. area. Currently, the Schengen Area covers twenty-six members, of which only twenty-two are EU countries. 2. Investment is encouraged by offering domestic transit facilities. The visa regime for EU citizens in the Schengen Area is favourable; there is no need for transit or residence 3. States’ intention to improve long-term bilateral revisas. However, two EU countries have refused to sign lations with the EU and the Schengen Member States. the Schengen Agreement, positioning themselves outside this area: Great Britain and Ireland. Their justification was based on a desire to have a stronger border The visa regime for EU citizens outside Europe protection. The last redoubt from the perspective of visas is the The point of interest lies upon non-EU countries area outside Europe. While within the European conwhich are members of the Schengen Area. It is the tinent historical and traditional relations may be precase of Norway, Iceland, Lichtenstein, and Switzer- sumed, the situation is different as we talk about areas land. The first two states are members of the Nordic such as the United States of America, South America, Passport Union, which is affiliated with the Schen- Africa, the Middle East, or Pacific Asia. gen Area principles, being a signatory to the SchenCultural differences generally lead to two basic scegen Agreement. Switzerland signed the agreement in narios: aversion or harmonisation. Harmonisation, 2008, followed by Lichtenstein in 2011. the strategy chosen by European states’ officials in All citizens of these countries have the right to travel most of the countries, is characterised by converand work in any EU country without having to carry gence, multiculturalism, the uniformity of ideas and specific documents. practices.
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INTERNATIONAL FOCUS A very interesting statistic was developed by Henley & Partners, called Visa Restrictions, where EU is highlighted among the most welcoming states of the world. Actually, EU countries occupy the top six positions: Finland, Sweden, the United Kingdom, Denmark, Germany, and Luxembourg.
One of the main reasons for the limitations of freedom of movement is the repressive practice mostly aimed at their own citizens, as well as the existence of different practices intended to remain hidden to other states. Furthermore, states realise that contact with other developed societies can lead to frustrations and generate resentment in the minds of citiAs a country of destination, European citizens are zens. more prone to choosing friendlier countries, regardless of the motives which prompt them to tran- Additionally, wherever there is a certain reluctance sit those areas. EU citizens have a privileged status to EU citizens, and thus to EU Member States, EU in relation with the states which try to develop a citizens need transit or travel visa for most of these democratic system, promoting values such as free- states. The former Soviet bloc, as well as those coundom of speech, and making clear efforts to raise the tries which have not yet adopted democratic values, living standards of their citizens. remain consistent with their stricter values when it comes to visas for EU citizens. These states have relaxed the visa regime for EU citizens, as well as for the U.S., another model of democracy. Countries such as those of South America, Conclusion Oceanic Asia, and Australia display a positive attitude towards the EU, eliminating altogether the need If we were to weigh the advantages and disadvantagfor a visa to travel for periods of several months. es of being an EU citizen generated by the EU visa regime, it would certainly tilt in the benefits area. Having European citizenship gives people a superiThe particular situation of the former Soviet bloc or quality status compared to citizens coming from states non-EU countries, attracting numerous advantages for Member States. Taking the risk to hue in a discriminatory note some categories of transnational communities, it is clear that countries with a strong social-economic develBy Beniamin Viorel Branzas opment level only open their borders to countries with a similar status. On the other hand, countries with a lower level of development open their borders to a larger number of countries. Special circumstances are identified especially in the case of the former Soviet bloc, whose countries show strong resistance to other countries which are not sharing the same economic and social ideology. Examples such as Russia and Belarus are eloquent. 28
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INTERNATIONAL FOCUS The law on euthanasia in Britain and the Netherlands: which is preferable?
The respective Parliaments in
the Netherlands and in Britain embarked upon parallel tracks with regards to voluntary euthanasia. It remains a criminal offence in Britain, and will result in a murder decision; under S2 of the Suicide Act 1961, it is an offence to ‘aid, abet, counsel, or procure the suicide of another’. Conversely, it is legalised in the Netherlands, as a result of the Termination of Life on Request and Assisted Suicide (Review Procedures) Act 2001. Central to the concept of euthanasia are the principles of autonomy and the protection of life. Indeed, Baroness Hale stated that the ‘prime object must be to protect people who are vulnerable’ but also to ‘protect the right to exercise a genuinely autonomous choice’, thereby invoking a complex weighting exercise (R (on the application of Purdy) (Appellant) v. Director of Public Prosecutions (Respondent)  UKHL 45). This essay will examine this divergence, by looking into its legislative history and its resulting case law in order to determine where states should weigh the scales. The debate on euthanasia is of growing importance due to its increasing use - the number of assisted suicides in the Netherlands rose by 13% in 2012 (Guardian, 2013) as well as the ever-changing medical climate. As long as medical improvements continue, there will be a moment when life will become brutish and long (Ost and Mullock, 2011), making possibilities for reform even more crucial. Euthanasia is defined as ‘the painless killing of a patient suffering from an incurable and painful disease,
or in an irreversible coma’ (Oxford English Dictionary). In both Britain and the Netherlands, lay assisted death is unlawful. On October 23, 2013, Heringa was found guilty because he took the law into his own hands in assisting the suicide of his stepmother (Heringa v. Netherlands, 2013). However, the court decided not to impose a punishment in view of his age and his compassionate motivations (The Amsterdam Herald, 2013). Similarly, in the United Kingdom, Keir Starmer’s new emphasis on the suspects’ motivation draws a crucial distinction between ‘compassionate support’ and ‘malicious encouragement’ (Guardian, 2013). For instance, Frances Inglis was found guilty of murder for killing her son as she believed he was trapped in a ‘living hell’ following his accident (R v. Inglis  EWCA Crim 2637). Arguably she presented herself as too absorbed in her own emotional concerns to act fully in terms of what was right for her son. Conversely, Kay Gilderdale was acquitted of attempted murder; the judge described her as a ‘caring and loving mother’, who was attempting to follow her daughter’s wishes (Gilderdale v. UK, 2010). While Dutch law allows physician assisted suicide, its expanse is limited; it refuses to accept ‘tired of life’ cases as a justification. In Brongersma  HR , it was held that assistance would invite an unqualified right to patient self-determination and doubt was expressed as to the ‘unbearable’ nature of the suffering, which is one of the key criteria which permits euthanasia (Ost and Mullock, 2011). One may question whether the absence of a medical basis is enough to deny an individual the right to end their life. Their suffering may still be unbearable and
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hopeless –arguably the source is not the deciding fac- law continues to punish individuals who do not detor (Ost and Mullock, 2011). serve any form of punishment – they deserve nothing but sympathy for being driven, purely by love and In the Netherlands, General Practitioners are accompassion, to end the lives of their loved ones. Ironicountable for 87% of cases of Assisted Suicide; GPs cally, even if it seeks to preserve the moral fabric of soare favoured for their anti-paternalistic attitudes, ulciety, it is an illustration of the law’s moral ineptitude timately allowing the autonomy of the individual to in its dealings with euthanasia. prevail. In the Netherlands, Article 293 of the Criminal Code is preserved, but a special defence is granted Furthermore, the case of Tony Nicklinson illustrates to physicians – if the criteria of due care is fulfilled, it that the individual happiness of the patient is sacrigrants, not an excuse, but a justification of transgres- ficed. The courts regarded his desire to end his life as sion of the law. Arguably this is central to the concept the ultimate ‘harm’ even if it would relieve him of sufof Dutch tolerance – a pragmatic tool which allows fering, enabling him an escape from ‘his own personal discussion through the postponement of moral judg- purgatory’. Instead, the court overrode his ability to ment (Buruma, 2011). consent, and thus, as his daughter claims, ‘a stroke broke Dad’s body, but it was the British legal system On the other hand, in Britain, doctors are sometimes that broke his heart’. Conversely, the Dutch have protreated differently from parents as they face conflictgressed much further in recognising this in the legaliing duties. This is revealed by a Court of Appeal desation of physician assisted death, suggesting a victory cision on separation of conjoined twins, where the for autonomy and capacity to decide one’s own fate. doctors satisfied the test for the criminal intent of The Dutch model is clearly preferable, although one murder, yet the defence of necessity was granted (Re may question the effectiveness of a law which crimiA (Children)(Conjoined Twins: Surgical Separation) nalises and then effectively tolerates or forgives, with  2 WLR 480). Nevertheless, physician assisted regards to lay assisted death (Ost and Mullock, 2011). death remains unlawful in the UK. Thus the only opThe refusal of the Dutch to recognise existential suftion is to find someone willing to break the law (Ost fering remains a barrier which must be overcome. A and Mullock, 2011). Perhaps this is an illustration of change in the law is crucial. the difference between law and morality in Britain. Indeed, a fundamental operation of criminal law is the To conclude, the perpetual conflict between autonopreservation of society’s moral fabric through punish- my and protection of the individual is in clear need ment. This was revealed by a case where the defendant of resolution. While there must be safeguards to enwas convicted of the offence of conspiracy to corrupt sure that individuals are not being pressured to end public morals (Shaw v. DPP  AC 220). Howev- their lives, ultimately the individual is at the heart of er, Giles Fraser, in a recent debate, argues that compli- the matter and their autonomous wishes should precated moral dilemmas ‘can’t be dealt with by the blunt vail. Why prolong inevitable suffering for a life that no instrument of the law’. longer wants to be lived? In Britain the right to self-determination pervades the whole of the criminal law. It was held that respect for the liberty of the individual is ‘perhaps the most fundamental precept of the common law’ (R v. Kennedy  3 WLR 612). Regarding euthanasia, English
By Francesca Esposito
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INTERNATIONAL FOCUS Syria: Taking sides in International Law
Taking sides or providing aid
in any type of war is, without a doubt, a catalyst for future controversy. The issue is being able to choose the right side or, at least, the side which proves to be the most favourable in the long-run. War-gripped Syria has experienced low-scale rebellions. Slowly and steadily, they morphed into civil war and generated the question: whose side is the right side? The purpose of this article is to analyse and clarify the Syrian crisis from a legal point of view. It will determine the applicable international law on the matter and corroborate it with relevant facts. Foreign support and legitimacy According to Article 20 of the Draft Articles on the Responsibility of States for Internationally Wrongful Acts (International Law Commission, 2001), aid given following a government’s request is lawful as long as the state’s sovereignty remains intact. There would be no violation of the principle of non-intervention, upheld by customary international law. However, in Syria the principle of non-intervention clashes with the denial, by the government, of the right of self-determination of its people. The use of force as a means to disband a self-determination movement is forbidden, as is any aid given to that end by a third party (Gray, 2008). Recently the Syrian government was accused of using chemical weapons. In this light, Article 16 on State Responsibility states that ‘a state may incur responsibility [for internationally wrongful acts] if it provides material aid to a State that uses the aid to commit human rights violations’.
A well rounded analysis of the rebel side must determine their legal status according to international law. In international law, internal matters are pure facts which do not generate legal consequences. The sole exception is self-determination conflicts (Shaw, 2008). Can the rebellion in Syria be classified as a self-determination conflict, or is it merely an internal issue, meant to be dealt with by the authorities? Shaw proposes three types of statuses known in conflicts and recognised by traditional international law. These are rebellion, insurgency, and belligerency. Rebellion implies sporadic and isolated challenges to the legitimate authority. The rebels do not have any rights or duties and are not protected under international law (Higgins, 2004). Higgins highlights that any aid or intervention from a third State is prohibited as an unlawful intervention and interference with State sovereignty. Higgins points out two conditions for an insurgency. The rebels must occupy a large portion of the state’s territory and they must have enough military force to be of interest to neighbouring states. Both of these contribute to the partial internalisation of the conflict. Belligerency, on the other hand, involves a formally recognised status. In Higgins’ words, it requires ‘the acknowledgement of a juridical fact that there exists a state of hostilities between two groups contending for power or authority’ or ‘the recognition of the existence of war’. This status has its own conditions: (1) the occupation of a large portion of territory, (2) hostilities in accordance with the rules of war, (3) a responsible authority, and (4) the existence of a situa-
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tion which makes it mandatory for states to define their attitude. If these conditions are fulfilled, belligerency may be associated with a self-determination movement, protected under international law.
tance to choose one or another. This reluctance is also intricately linked to the radicalisation of militias (Holliday, 2012). The rebels’ increasing need for weapons and the Western reluctance to offer it led them to turn to Al Qaeda for help. This cautious approach is proved Does Syria’s case allow lawful foreign aid or inter- by the fact that the only country which has formally vention? The United Nations General Assembly af- recognised the Syrian National Council, the main opfirmed the right of states to offer support to those position body, as the legitimate authority, is Libya. struggling against colonial or racist regimes. This Other states, as France, Spain, the United States or the right included the possibility to provide weapons. United Kingdom have only acknowledged the SNC as the legitimate representative of the Syrian people. According to Dapo Akande, by extending this right, it is reasonable to believe that international law allows To conclude, should the Syrian opposition mateState support for groups fighting for self-determina- rialise as a viable replacement for the current govtion. The General Assembly Resolution 2649 (XXV) ernment, States may take the risk of officially recfrom 1970 states that other states must respect self- ognising it as a legitimate authority. This will allow determination struggles. It implies that self-determi- its people to determine their own political status. nation movements are capable as international actors. The International Covenants on Human Rights Syria’s legitimacy issues stipulates that ‘[a]ll peoples have the right to In Syria’s case, the main issue is to establish which self-determination and by virtue of that right of the movements can be acknowledged as the le- they freely determine their political status’. gitimate representative of the Syrian people. Gen- It is, nonetheless, safe to assume that an offieral Martin E. Dempsey of the U.S. Army stated that cial recognition of the government will ward ‘Syria today is not about choosing between two sides, off any potential hurdles related to the princibut rather about choosing one among many sides’. ple of non-intervention or the violation of State sovereignty. The legitimacy of the movement is the basis for a possible recognition by third parties, either as leBy Raluca Alexandra Maxim gitimate representatives or as a new government. In the first situation, Bashar Assad’s government will still be recognised as the government of Syria. The struggle of the liberation movement will gain legitimacy, creating the image of a ‘government in waiting and a group that is capable of taking over, at least on a transitional basis’ (Dapo Akande, 2012). This may lead to problems in defining the governmental authority entitled to request assistance (Shaw, 2008). The difficulty to identify the opposition led to the reluc33
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INTERNATIONAL FOCUS The Common European Sales Law: A necessary tool?
different legal systems. There should be differences between various laws for the competition among national legal systems. Parties will choose the jurisdiction that best satisfies their needs. The more information is available about CESL, the more likely it is that the parties will choose this instrument. Technologies can have an important role in making comparisons. It could be useful if websites offered rankThe aim of this paper is to em- ings of jurisdictions based on their attractiveness for phasize the possibility to ease parties. In this case parties would be able to choose cross-border transactions by the most suitable regime for them (Smits, 2012). making contract law more coherent and by reducing transaction costs. Do we need a European contract law for businesses and consumers? Do we need an optional regulation for contract law? are essential for running businesses nowadays. The rise of cross-border transactions leads to the necessity of translating different national contract laws when operating in the internal market.
One of the CESL’s objectives is to help Small and Medium-sized Enterprises (SMEs) to trade easier The European Union (EU) has been working on Eu- across the single market and avoid excessive costs ropean Sales Law for a decade. The proposed Regu- due to the consumer protection rules. Traders have lation for a Common European Sales Law (CESL), to pay more because of constantly adapting transunveiled on October 11, 2011, is considered to be actions to different national rules. Less complexnecessary for the harmonisation of contract laws. ity is preferred by businesses and legal differences resulting from national laws are an impediment to The CESL is an optional instrument which the proper functioning of the internal market. Busileaves Member State’s laws intact. It will coex- nesses sometimes refuse to sell products abroad. ist with the national law. The objective is to create a new secondary regime recognised in the EU. The CESL aims to provide a higher level of consumIf the CESL is attractive to private parties, they er protection. Consumers can apply the CESL rules will choose this European instrument over the in all their cross-border transactions (Kornet, 2012). Member State’s contract regimes (Schulze, 2012). CESL contains mandatory rules from which parties cannot derogate. The level of protection is equal or Furthermore, the European Commission start- higher than the current acquis. Consumers have ed a process of public consultation on the prob- better protection and certainty about their rights. lems arising from differences between contract laws. The European Parliament’s Legal Affairs On the other hand, according to some opinions, Committee voted in support of this instrument CESL will not offer a higher level of consumer protecto facilitate cross-border transactions (Ex- tion and consumers will be deprived of better standpert Group on European Contract Law, 2011). ards. Even if they will be able to opt for the applicable regime, CESL will not be optional because it is an According to another view, parties will hardly devi- adhesion contract. The weak party (the consumers) ate from the national system that provides safety and will not be able to compare the benefits of different stability. Consumers should be able to see the ad- laws and decide what is better for them (Pachl, 2012). vantages of a choice by comparing information from Context
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I highly believe that CESL offers a high lev- majority of European consumers shop only domesel of consumer protection and it will also re- tically because of their uncertainties about the conduce the current uncertainty of consumers. sumer rights. E-commerce facilitates the search for offers and the comparison of prices. Businesses would If the consumer buys a defective product, CESL trade with many Member States because of the lower allows the consumer the right to choose be- costs. The legal environment for cross-border trade tween replacing, repairing the product, demand- would be simpler (European Commission, 2011). ing a discount or cancelling the contract. Moreover, the future regulation will help traders to According to the proposed CESL Regulation, tradsimplify negotiations because of the neutral law which ers spend excessive sums of money, for example is available to both parties in their own language. €10.000 per business and country they want to sell to, on legal advices for adapting contracts to each Last but not least, European Commission en- national law. On the other hand, the Commission’s sures that ‘this proposal is without prejudice to evidence for calculating these costs is unclear. Also a future Commissions initiatives concerning the trader does not have to translate the contract term. liability for infringements of the Treaty on functioning of the EU, for example relating the com- Other statistics show that 90% of traders never petition rules’ (European Commission, 2011). refused to sell to foreign consumers because of the different terms and language (Pachl, 2012). Reducing contract-law-related transaction costs CESL’s objective is to help traders avoid excessive costs due to the consumer protection rules. Differences in laws lead to a tax on cross-border transactions. A possible solution for reducing costs is harmonisation and standardisation of contract laws. This solution creates network benefits. With an optional regime, the language would not be an impediment to cross-border transactions (Eidenmüller, 2012).
Conclusions and proposals The aim of CESL is to improve the functioning of the internal market by facilitating the expansion of crossborder trade. More cross-border trades will lead to more diverse products at lower prices. Consumers will not be discouraged to shop cross-border. They will have better offers: lower prices and higher quality.
I think a website should be established with Because of the differences in laws, there are additional comparative legal information about consumtransaction costs for adapting contracts, obtaining er rights in each Member State and training legal advice and negotiating the applicable law (Ko- for legal practitioners would also be adequate. rnet, 2012). Furthermore, in e-commerce transactions, traders must adapt the business’ website to the To conclude, I strongly believe that nowadays, due to legal requirements of each state where they sell. The the language barriers, a harmonisation of sales law costs resulting from interaction with various national is required. CESL will create a win-win situation for laws are an impediment, especially for SMEs. Usually both traders and consumers. Traders will avoid excesSMEs have to agree to apply the business partner’s sive costs and they will expand to new Member States law and support the costs of finding out the content markets. of the applicable law. Because of these impediments, By Diana Gal the number of traders is reduced, and this in turn generates a negative impact upon European consumers. Competitiveness decreases and this can lead to a more limited choice of products at a higher price. CESL is a good opportunity for consumers. They will benefit from more choices at lower prices. The 35
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INTERNATIONAL FOCUS Surveillance of Internet communications in Romania and the European Union
This article will be aimed at
analysing the current situation of the protection of personal data in the online environment, with examples from both EU and Romanian regulations and court decisions. Providing the right amount of protection of personal data for their citizen is a poignant issue of today’s modern states. In 2013 the general public has been confronted with news (especially in regards to the activity of the American National Surveillance Agency in the USA, but also across the globe) that shows the extent to which some countries have adopted a dystopian, Orwellian masssurveillance approach over their people (Carter and Capelouto, 2013). These violations clearly go beyond the right enjoyed by states in regards to limiting their citizens’ personal freedom, as was analysed in J.J. Rousseau’s ‘social contract’ theory (Rousseau, 1998). What role do the law and legislators play in the issue? The heated debates regarding the EU Anti-Counterfeiting Trade Agreement (2012) or about the adoption of the Romanian Law 82/2012 (mocked by the public opinion by being named ‘the Big Brother law’) point out the vivid concern of European citizens regarding a potential violation of their right to protection of personal data. The citizens’ concern has been echoed by the decision of different high courts, demonstrating that there are strong juridical arguments against an increase of the states’ power to carefully monitor different channels of communication. For example, in 2009, the Constitutional Court of Romania found unconstitutional the first version of the national law, which was supposed to implement the Directive 2006/24/CE on the retention of data generated or processed in connection with 36
the provision of publicly available electronic communications services or of public communications networks. Whilst admitting that limitations on the exercise of the right to protection of personal data are constitutionally possible, the Court subjected such constraints to the set of rules found in Art. 8 of the ECHR and Art. 53 of the Romanian Constitution. Therefore, the worries of the citizens were sanctioned as relevant, Law 82/2012 being ratified only after careful revision. However, although considered of a paramount importance and a fundamental right (Art. 1 in Directive 95/46/EC) at EU level, the right to protection of personal data (especially in regards to the online medium) is not properly safeguarded at the legislative level (neither at EU nor at a national level). This could happen simply because the emphasis is put on the prevention from it being used as a commercial asset by companies and businesses, and not on its protection regarding the state-citizen relationship. Similarly, from a protectionist perspective, at a national level, the laws that have been enacted (Law 677/2001, Law 506/2004) regard the same issue and therefore elude the scope of the matter at hand. Considering this, one could infer that the Courts have indeed intervened in order to avoid gross violations of the right to data protection. The negative decision of the European Union Court of Justice regarding the ratification, at a Union level, of the AntiCounterfeiting Trade Agreement can be considered such a relevant intervention (alongside of the example above of the Constitutional Court of Romania). Therefore the claims of the supporters of the AntiCounterfeiting Agreement which were contending that the limitations it brought to the protection of personal data and privacy in the online world was justified by its bigger goal of preventing piracy, were rejected by the European Union Court of Justice. However, stopping extreme violations from taking
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place is very different from providing an accurate protection of the right to data protection. It also has to be noted that these judicial decisions have been made under intense pressure from the citizens. As expected, individuals are not eager to have their personal conversations recorded (as the ‘Big Brother law’ seemed to be aimed at) or their Internet browsing history to be made available to third parties.
Having considered this, I still do not think that states can bring the aforementioned argument in their favour in order to defend mass-surveillance programs. Although the limits between private and public are at present a little diffuse, they have not disappeared. Also, the freedom of an environment is an uncontested reality. As John Perry Barlow stated, in the early nineties, in ‘A declaration of the independence of cyberspace’, today’s states’ governments cannot rapidly and discreBy analysing all the possible means of communication tionarily impose their unlimited power over this enviof today’s modern man, the one that seems to raise ronment (Barlow, 1996). While at some point, during the most important questions is the online environ- communist regimes, some means of communication ment. In the present, many people seem to be relying have proven to be easily submitted to surveillance and on various social media tools that, although enter- control, the Internet appears as an environment that taining, pose many risks regarding one’s right to his still belongs to the people. personal image or privacy. Until recently, if the government wanted to infringe the privacy of ordinary Of course, all these philosophical and sociological arpeople, they had to instrument a serious amount of guments have to receive a judicial ‘coat’ and be translabour to intercept and read paper mail. Today, email formed into pieces of legislation that can ultimately can be routinely and automatically scanned for inter- defend the citizens’ right to the protection of their esting keywords, on a vast scale, without detection personal data. The recent violations that have taken (Zimmermann and Philip, 1998). place in the United States of America and Great Britain, where the national surveillance agencies have Nowadays, the concept of ‘personal content’ (when trespassed all boundaries set forth by their citizens’ writing an article on a blog or a status message on right to the protection of personal data, are only two Facebook) has been completely diluted and so have examples of the actual infringements that are taking the lines between what is private and what is public. place nowadays. Today’s means of communication, as This raises many issues, because the legislator cannot modern and efficient as they are, strike us as also exefficiently protect a right that is based on concepts tremely vulnerable. The legislator should pick up on that do not possess a precise meaning. Indeed, at this these elements that are present at the social level, and point in time, when both national and international offer us a just and efficient set of rules. Courts have asked themselves what is public and what is private referring generally to Facebook (but also By Elena Mihaela Gheorghe MySpace or Twitter), the protection of personal data seems to be hindered by the lack of precise boundaries between these levels. How would a Court analyse a status message posted on a user’s Facebook wall in This article received the 1st prize at an essay competiwhich he threatens to bomb a metro station? As a pri- tion organised recently by ELSA Bucharest on the theme vate or a public content? of Surveillance of Internet communications. This lack of semantic and judicial clarity is being used as an excuse by governments in order to justify their interference with citizens’ personal data in the online medium. Moreover, in states where public defence is very a delicate issue, some people could actually agree with their government’s perspective.
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INTERNATIONAL FOCUS Surveillance of Internet communication
Internet Surveillance turned private communication into fiction? Interception and monitoring are becoming more widespread and invasive, just as our reliance on electronic communications increases. Strict and independent audit of the means of surveillance, surveillance requests, and data handling should be a key element of any surveillance framework. The aim of this essay is to examine different aspects of the surveillance of Internet communication, in the light of the Romanian and European Union legislation. Highlighting positive aspects, as well as the arguable ones, the essay clarifies how Internet surveillance works and how to save the concept of internet privacy, without putting the brakes on new technology and services that can be extremely useful. The essay also approaches the issue of legal provisions protecting the privacy of communications. Information technologies and the internet have brought fundamental changes to how society functions. Perhaps the most significant of these changes is the way in which we communicate. The technical capabilities of the internet not only allow surveillance, they also encourage us, through convenience, to place more and more of our lives into the spotlight. The question is whether the Internet Surveillance has turned private communication into fiction. Although the Internet has become a mainstream communications mechanism, most of the users enjoy the benefits without knowing the implications of this means of communication. Computers communicate over the Internet by breaking up mes-
sages (emails, images, videos, web pages, files, etc.) into small chunks called ‘packets’. These are routed through a network of computers, until they reach their destination, where they are assembled back into a complete ‘message’ again. Packet Capture Appliance is responsible for the monitoring of data traffic on a computer network. It intercepts these packets as they are travelling through the network, in order to examine their contents using other programs. A packet capture gathers ‘messages’, but it does not analyse them and figure out what they mean. Other programs are needed to perform traffic analysis and sift through intercepted data looking for useful information. Automated Internet surveillance computers sift through the vast amount of intercepted Internet traffic and filter it. Then they report those bits of relevant information, such as the use of certain words or phrases, visiting certain types of web sites, or communicating via email or chat with a certain individual or group. In the modern technological world, nearly all major international agreements on human rights protect the right of individuals to be free from unwarranted surveillance. Internet privacy involves the right to personal privacy concerning (1) the storing, (2) repurposing, (3) provision to third-parties, and (4) displaying of personal information via the Internet. E-mail, instant messaging, and peer-to-peer file transfers, combined with the digitisation of content, changed how we experience the world, the means by which we access information, and the shape of our social networks. Nevertheless, in ‘Visions of Social Control’, Stanley Cohen focuses on crime, punishment, and classification, stating that contemporary society developed a system of classifications into good v. bad and nor-
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mal v. abnormal, that makes control and surveillance necessary. The move to internet-based communications have largely replaced many traditional services. Police and intelligence services are understandably concerned that criminal activities or the use of internet should be subject to investigation and punishment. In many countries, law enforcement agencies require internet providers and telecommunications companies to monitor usersâ&#x20AC;&#x2122; traffic. The reasons seem to be in compliance with the law, as the powers help tackle serious organised crime. The question is whether surveillance is possible without facing the violation of the right to Internet privacy. The solution in order to achieve conciliation between ethics and social needs lies in an effective legislation. As privacy is core to the European legal framework, one of the key aims is to give people more control over their private details on the web and to tackle other growing problems, including identity theft. There are crimes that are unique to the internet, such as hacking or distributed denial of service attacks against websites. In many cases, the internet simply provides a new medium for more traditional crimes. These include blackmail, fraud, or dealing in stolen property such as credit cards. There are significant dangers in monitoring online communications, unless the mechanisms and policies of surveillance are subject to strict and legally enforceable standards of transparency, oversight, and control, both nationally and internationally. In most democratic countries, intercepts of oral, telephone, and digital communications are initiated by law enforcement or intelligence agencies only after approval by a judge, and only during the investigation of serious crimes.
give vital personal information, such as name, address, and credit card number. Under European Union law, personal data can only be gathered legally under strict conditions and for a legitimate purpose. People or organisations which collect and manage personal information must protect it from misuse and must respect certain rights of the data owners guaranteed by European Union law. Therefore, the European Union has established common rules to ensure that personal data enjoys a high standard of protection. Citizens have the right to complain and obtain redress if their data is misused anywhere within the European Union. Under the Data Protection Directive, every European Union country must provide one or more data protection supervisory authorities to ensure that data protection law is correctly applied. Complaints regarding breaches of data protection law should be addressed to the relevant national supervisory authority. The Commission has no competence to monitor compliance of data controllers or to impose penalties. The supervisory authority must investigate complaints and may temporarily ban data processing which is the subject of a complaint. If the supervisory authority finds that data protection law has been violated, it can order the data erased or destroyed and/or ban further processing. Decisions by the supervisory authorities which give rise to complaints may be appealed through the courts. The protection of personal data represents a new field for Romaniaâ&#x20AC;&#x2122;s legislative space. The Romanian Constitution recognises the right of privacy, inviolability of domicile, freedom of conscience and expression, under Title II (Fundamental Rights, Freedoms, and Duties).
In November 2001, the Parliament enacted Law 676/2001 on the Processing of Personal Data and the There are both ethical and technological limits to Protections of Privacy in the Telecommunications data-driven surveillance. Simply because data is genSector. That law applied to the operators of public erated and can be stored does not suggest that states telecommunications networks and the providers of should abandon fundamental principles and monitor publicly available telecommunications services. In the entire populations, rather than targeted individuals. context of their activities, these carried out personal Whenever someone opens a bank account, joins a so- data processing. cial networking website, or books a flight online, they 39
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INTERNATIONAL FOCUS In 2004, Law 676/2001 was replaced by Law 506/2004, closely following Directive 2002/58/CE of the European Parliament and the Council on personal data processing and privacy protection in the electronic communication sector. In order to harmonise the Romanian legislation to the acquis communitaire, Law 102/2005 set up the National Authority for the Supervision of Personal Data Processing.
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The Authority carries out its activity in terms of complete independence and impartiality. It supervises and controls the legality of the personal data processing which falls under the Law 677/2001. Law 677/2001 implemented Directive no. 95/46/EC, which sets up the general juridical frame of the personal data protection at European Union level. To conclude, pervasive and detailed information on individuals is a powerful tool. The use of surveillance to investigate and prevent crime almost unavoidably carries with it the risk of infringing on individual rights to privacy and freedom of expression, such as those set out in the European Convention on Human Rights. It is crucial to take into consideration achieving its stated goals against the risks of failure, abuse, and misapplication. By Elena Raluca Cirjan
This article received the 2nd prize at an essay competition organised recently by ELSA Bucharest on the theme of Surveillance of Internet communications.
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One year of Lawyr.it! In this special edition, a few Lawyr.it team members share from their experiences, motivations, and plans for the future, at the end of a first full Lawyr.it year. ‘For me, Lawyr.it is the equivalent for passion for legal writing and teamwork. I decided to get involved because it represents a scale for continuous growth, an opportunity to acquire and develop new competences. That is why I believe the Lawyr.it project will continue to challenge ourselves and exceed everyone’s expectations.’ Oana Gligan, Junior Editor/Communications & Learning Coordinator ‘Lawyr.it was and still is unique to me. I got involved because I believe there is something more to life, be it academic, than drawing inside the lines. I am sure the project is going to grow into something that will make us all very proud and satisfied.’ Bianca-Alexandra Prunea, Senior Editor/ Internships & Projects Coordinator
‘I decided to get involved for many reasons. For me, working as a PR is more than just a job. In my opinion, it is all about managing reputation. I like to get involved in different projects, I like to be a volunteer, I love law and being part of Lawyr.it team is the best thing that happened to me in the last months of 2013! As for the future…you will definitely hear more and more of Lawyr.it. Get involved! You are Lawyr.it, you are the future!’ Delia Stamate, Regional PR Coordinator
‘I could not resist getting involved in this project as Lawyr.it is a platform that provides limitless opportunities of expansion for the Law students. It is a real pleasure to be a part of a team that not only believes that Law students should ‘Lawyr.it has been everything I be creative, but also encourages them to think outside the box. I am sure that had hoped it would be: passionthe magazine is only the beginning of an outstanding project.’ driven minds, all working for the Andreia-Gemma Moraru, Junior Editor same purpose. I joined the journal because I wanted to take a stand, ‘My experience in the Lawyr.it team so far felt like a time well to have my say and Lawyr.it has spent. I met here committed and passionate people, loving what been the perfect framework for they are doing, or, how we like to say it, ‘lawyr-ing’. I decided to that. Lawyr.it is definitely going get involved because I wanted to be a part of the unique - powered to make a significant difference by law students - magazine, because it has a promising future in the legal world.’ among law students and practitioners. I believe you will hear Raluca Maxim, Junior Editor more and more about our magazine in the future.’ Adrian Condraşov, Regional PR Coordinator ‘Promising as it was, the Lawyr.it project led to the germination of a concept per se. Best defined by opportunity, professionalism, and success, the Journal stands as a generator of potential for any Law School student willing to stand out amongst his peers. I can honestly say that joining the Lawyr.it team was one of the best decisions I have ever taken!’ Andrada Florea, Junior Editor/International Relations Coordinator
See you all next year! 41
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INTERNATIONAL FOCUS International criminal courts and internationalised criminal courts. Brief comparison
Whether international or in-
ternationalised, the activity of the criminal courts set up in the last decades with the help of the UN demonstrated that the concept of universal justice is not obsolete. In time, the international jurisdiction proved to be the most evolved mechanism for imposing international justice. Along with ad-hoc courts, an international permanent court (the International Criminal Court, or ‘ICC’) was created. I intend to sketch a short comparison between the international criminal courts and the internationalised, or hybrid courts with an emphasis on the practical advantages and disadvantages of forming and using one of these jurisdictions in order to try a certain violation of international humanitarian law or human rights. The second half of the 20th Century witnessed bloody inter-ethnic armed conflicts. To successfully end the civil wars, states were encouraged to ask for the intervention of a neutral party in trials involving violations of human rights and international humanitarian law. This is how ad-hoc tribunals developed a new subspecies, the hybrid criminal tribunal, adapted to both national and international circumstances. The mixed composition of these courts allowed them to possess relevant information from the local context, but also expertise in international humanitarian law. Brief History International criminal courts have their origins in the Common Act (1943) signed by the Allied Forces. The act set up two military courts in order to try and punish war criminals from National-Socialist Germany and Japan - the Nuremberg and Tokyo international criminal courts. The Nuremberg Charter incriminated several types of crimes: crimes against peace, crimes of war and, for the first time, crimes against humanity, as a separate juridical category. Later on, this innovation made the trials of the International Criminal Court
for former Yugoslavia and the International Criminal Court for Rwanda possible (Onica-Jarka, 2011, p. 157). The first permanent international court - the ICC - was established in 2002, as a consequence of the signing of a multilateral treaty, the Rome Statute, adopted during an UN conference. The competence of this Court is limited to the most serious crimes, such as crimes of aggression, crimes of war, crimes against humanity and genocide. The crimes against humanity and the war crimes are strictly determined in the Statute, in order to limit any interpretation. The Court has jurisdiction for crimes committed during both international and internal armed conflicts. The jurisdiction of the International Criminal Court has the aim of completing the national jurisdictions and it functions only in the cases in which the state on which territory the violation has occurred cannot or will not start a trial. The first ad-hoc court was the Court of Sierra Leone (CSSL), set up in 2002 by an international agreement between the Republic of Sierra Leone and the UN (Onica-Jarka, 2008, p. 178). The problem with ad-hoc courts is that, as a consequence of having a bilateral agreement instead of a multilateral one, the courts will not be preeminent over the national jurisdiction of third parties (other states) and will not be in position to give an order of extradition. However, the courts’ decisions are compulsory for the state which signed the agreement (in CSSL’s case, art. 8 of the Statute), a clear advantage in comparison with the courts of Yugoslavia and Rwanda. The obligation for Sierra Leone to cooperate with the CSSL at all levels of jurisdiction is stipulated in Article 17 of its Special Agreement, but the lack of power to oblige other states to comply has created many difficult situations. Such an example is the case of the Liberian president Charles Taylor, accused of war crimes, crimes against humanity and other grave violations of international humanitarian law by the CSSL and Ghana’s refusal to arrest him. In order to express its support for the ad-hoc Court and to encourage other states in
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acting according to their international obligations, the UN Security Council adopted Resolution 1470/2003 to affirm its commitment to the CSSL and to recommend all states to cooperate with it. Moreover, the UN Secretary General particularly emphasised that there is no connection between the adhoc courts created by the UNSC and the Special Court for Sierra Leone, as they are all independent from each other. Even more, the CSSL has a separate Chamber of Appeal as an additional guarantee of its independence and credibility. Comparison between international and internationalised courts Having noted the main aspects of both types of courts, the international criminal courts and the ad-hoc ones, there are some significant differences to be emphasised. Firstly, a main difference between them is the manner they were established and, as a consequence, their jurisdiction. The international criminal courts are generally created by a number of states, making their jurisdiction universal, which is clearly an advantage, as these courts are not restricted territorially. On the other hand, hybrid courts are based on an agreement between the interested state and a UN body (generally the UN Secretary General), giving courts a specific regional jurisdiction. This might become an important obstacle when prosecuting a person that travels and hides in other countries, as those respective states can simply refuse to cooperate, as seen above. Secondly, another distinction is the composition of the courts. The composition of this court is mixed â&#x20AC;&#x201C; it has both international and national judges, personnel and prosecutors. Some of them are named by the UN Secretary and others by the national authorities of the state. However, in the case of other ad-hoc courts (such as Extraordinary Chambers from Cambodia and the Special Panels of the Dili District Court, Eastern Timor), the presence of the international judges is rather symbolic (Onica-Jarka, 2008, p. 217). The hybrid form attributed to this ad-hoc court is also given by the fact that it is neither a subsidiary body of the UN, nor an international organisation of cooperation or a supranational organisation; it is rather an association between a state and an international organisation. The international courts are not composed by judges who are nationals in the conflict countries. Meanwhile the mixed composition of the hybrid courts gives them
the capacity of better understanding the situation as well as neutrality. National judges and prosecutors are more accustomed with the local law and mentality and international members are more likely to be objective being foreign to the conflict. Moreover, another advantage of the dual composition of the hybrid courts is that it facilitates the exchange of knowledge and experience between judges coming from different jurisdictions, securing a permanent, constructive communication between legal systems. Thirdly, these two courts may trial different types of crimes. The temporary character of ad-hoc tribunals makes them more specific, but in the same time it limits their mandate on a certain period of time. This limitation is given by the allocated budget and the political will of the members of the UN and their sensitivity to the crimes of international concern. The crimes investigated by the ICC are not only crimes of genocide, crimes against humanity, war crimes and crimes of aggression, but also terrorism, hostage taking, hijacking and international drug trafficking. The crimes investigated by adhoc courts, however, particularly the hybrid criminal courts, are strictly stipulated in their initial agreement and may also include crimes incriminated only by the national legislation. Conclusions To conclude, there are important differences between international and hybrid (or internationalised) criminal tribunals. However, one must have their specific view and mandate in mind before choosing which one is the most suitable option for a given armed conflict. The main advantage of international criminal courts is their universal vocation in searching and prosecuting perpetrators of the values protected by the international community. At the same time, even though hybrid courts have a limited mandate, I believe that their nature gives them the advantage of having a more accurate, closer view to the events, with smaller costs. All these aspects come to sustain the importance of the principle of complementarity, also stated in Rome Statute, placing the enormous responsibility on states to end the culture of impunity and impose international justice.
By Oana Iulia Irimia
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DEVILâ&#x20AC;&#x2122;S ADVOCATE Companies should not be allowed to have patents for green technology This issueâ&#x20AC;&#x2122;s advocates PROS: Anda Prunea Anda Prunea is a first year law student at Babes-Bolyai University. She has been an active member of a debate club for four years and she intends to be involved in debate-related activities at university as well. It is her firm belief that debating benefits people in a way that school cannot. That is why she became a trainer for high school students. She plans to take advantage of all the opportunities she has this year to take part in various activities and focus more on internships.
CONS: Mihai Morar Mihai is a first year student at the Law Faculty in ClujNapoca, and so far he likes it. He has received several awards at national and international debating competitions. Although everybody dreams of changing the world, he is confident he will succeed in doing so. He loves people and thinks we can learn from everyone around us, as we are defined by our friends and peers. He also wishes to get the chance to skydive before he dies.
Debate Foreword In our anniversary edition, celebrating one year of activity, we wanted to make our debating section special. This is why we invited two debaters to argue pro and against the motion, in the way they do when they attend debating competitions with their peers. These two first year law students have been debating for more than four years and have recently won Vienna Freshersâ&#x20AC;&#x2122; Debating Tournament 2013. Therefore, we believe you are up for a treat. Climate change is subject to various debates in the media, in parliaments, or between academicians. It affects every single country, regardless of their pollution level. This makes it a collective action problem and environmentalists suggest that it should be fought on all levels in order to achieve success. This is why we proposed this motion for this issue. Ia it justified to overstep the right of an individual actor in order to protect a bigger group, be it the entire planet? Is it the best way to achieve a sustainable environment? Our guests tackled the motion from various perspectives. Both agreed that eco-friendly technologies are something to strive for. Their opening statements provide arguments regarding the optimal method to do so. Enjoy the read!
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Opening Statements Anda Prunea: As the world faces the challenges of climate change, it seems that optimising the investment in renewable energy is the only way to create a sustainable environment. Achieving efficiency out of the way we produce and distribute is going to ensure energy security on the long term. Otherwise, sectors that we strongly rely on, like agriculture, will be seriously harmed in the near future. In order for green technology to reach its goal, production must be incentivised and consumers need to afford eco-friendly products.
Mihai Morar: In a world where ideas can change everything and people are paid more to think than to do hard work, one needs to acknowledge the importance of patents. On this side of the motion, the main goal will be to prove that companies should be allowed to have patents on green technology. Contrary to the opinion of some representatives in the United States, I realise the importance of green energy and see global warming as a major problem. The line of reasoning that will be followed will prove the importance of reAs it is a matter of public interest, if someone owns warding people and companies for their great ideas, precious information on how to fight climate change, and incentivising them to create more green energy. accessing it should not be conditioned in any way. I am going to prove that by analysing how giving com- First, we live in a world fuelled by new ideas and inpanies that amount of control over the use of their novation. What keeps the earth spinning is that every methods is not desirable as it brings prejudice to the time we encounter a problem, a brilliant person or a main purpose of the invention. There are two main ar- group of people comes with the idea that saves us. More than that, we face maybe one of the greatest problems guments for this. humanity ever had to deal with. It is the first time in First, patenting green technology alters competition. history when the progress and the massive industriA patent is the exclusive right granted to an inventor alisation are creating a bad environment for future to prevent others from making, using, or selling the invention for a certain period of time (twenty years in generations. The consequences vary from melted glamost of the cases), in exchange for public disclosure ciers to underwater cities, from hurricanes to lack of of that discovery. If someone else wants to exploit the food and poverty. Companies that are trying to repair patenteeâ&#x20AC;&#x2122;s invention by commercialising it, they need their previous mistakes in order for our children to be to pay royalties to the owner. If a company has the first able to live in a fresh environment should be rewarded mover advantage by being the first one to produce for their effort. New ideas take time, research, hours something, this leaves other companies on the market of work, and sleep deprivation. Companies should be with two options: either pay patent royalties and make allowed to win money if they create new technology. profit by selling the patenteeâ&#x20AC;&#x2122;s products, or invest in Without allowing them to patent their inventions, the their own research and produce themselves. effort is not being rewarded, as other companies have If they decide to spend resources on research and come the possibility to use the same technology in which up with innovative and more efficient technology, the they never invested. New ideas and hard work should final price of the product will have to cover both man- be rewarded and that is why we need patents. ufacturing and research costs, therefore probably not 47
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DEVILâ&#x20AC;&#x2122;S ADVOCATE being substantially lower than the price they are trying to compete with. Paying patent royalties leads to the monopolisation of the patentee company. This usually translates into the lack of innovation and competition. Hence, a more efficient way to encourage competition and stimulate improvement in the environmental friendly technologies would be to let the ideas circulate freely and avoid spending a lot of resources when it is not needed.
Second, currently there is little incentive to invest in green energy. Removing the ability of companies to patent their ideas and work will definitely make slow the progress of fighting global warming. Most of the times, companies, especially the powerful ones, are driven by profit. The reason Toyota was able to develop the first all-electric SUV is the profit it will bring on the long term. The fact that they are the only company that is able to create such cars and sell them is due to the patent laws in the US (Anon, 2013). The removal of such laws will definitely halt the progress. The reasoning of the companies is simple. If you cannot profit from it, why should you do it? Furthermore, if any other company can benefit from the ideas and hard work for free, why would they invest so much money in the first place? By removing patents laws there will be a race to the bottom where companies are no longer incentivised to develop green energy. As a result, all efforts to fight climate change will be in vain. There will be no new technologies created to help reduce the amount of pollution caused by, for instance, greenhouse gas emissions. Companies invest in green technology because, at this moment, innovation equals profit (Gattari, 2013).
Second, patenting severely damages developing countries. These countries are more vulnerable to the perils of climate change due to their inability to invest heavily in healthcare or infrastructure. This makes them more prone to be affected by global warming, as it would be difficult to cope with a natural disaster. Given the fact that the investment environment is usually insecure in these countries, they have no or very few means to properly invest in green technology. They rely on the discoveries of the developed countries and their imitative capacities, or on trade. Supplying the final products is not enough. It will not tackle climate change if domestic production does not go green as well. They need to have the possibility to develop their own clean technology to meet the demand. At the moment, the problem is that companies in developed countries only allow foreign access to the information in exchange of In conclusion, there are two major reasons for allowcertain fees. As companies in less wealthy countries ing companies to have patents in green technology. cannot afford the expensive patent taxes, this inhibits Profit is the only thing that keeps them investing, prodevelopment by discouraging technological catch-up. ducing, and saving us all. They should be allowed to All in all, patenting on green technology hinders benefit from their ideas and inventions, and be incenboth domestic competition and the development of a tivised to go on with their great work. Only then will sustainable environment where it is most needed. It they be able to explore the renewable energy at its fullharms efficient productivity and innovation in a cru- est potential and come up with new methods to save cial domain that should be revolutionised. Environthe environment. mental security should therefore be prioritised to the detriment of the right to intellectual property.
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Rebuttal Statements Moderator’s Note: As you noticed, there are two main lines of argumentation in this debate. Anda argues that patenting alters competition, which has negative consequences on the overall positive change in green technologies and the way we protect the environment. She is also concerned about the effect patenting has upon developing economies, where going green is not all that fashionable, or affordable, at the moment. On the other hand, Mihai believes that it is unjust to deprive somebody of the reward they deserve for their ideas. He also argues that this has real world consequences, as taking away an important incentive for companies will have devastating effects upon the developing of eco-friendly technologies. Keep reading to see how these two views conflict in the next part of our debates. Anda Prunea: While one must agree that spending time and energy on an invention should be somehow rewarded, I am going to show how patenting is not the way to do it. People need to be encouraged to come up with bright ideas, but these ideas also need to compete with each other and be improved, if we indeed strive for progress. The system of patent-granting harms the entire mechanism of advancement by generating huge disproportions in market shares. As a result, it impedes the evolution of a certain field, as some companies are not given the chance to be competitive. Regarding the opponent’s first argument, there is no need to argue whether an individual should be cheered up for his great work or not. The discussion should be whether extra profit is justified, even when it can be a disincentive to work more in order to enhance the initial outcome. If the assumption is that there is a moral legitimacy attached to patents and it is not even about the profit, then recompense for the hard work can materialise in something other than money, like awards. But if the background for patents is strictly linked to the need for a pecuniary advantage, then their use should not be validated, as I have shown previously how it affects progress by altering competition. There are some domains where exploration and improvement are crucial for future security, like that of green energy. In these domains, the guarantee of constant optimisation is more important than one’s profit.
Mihai Morar: Even if the importance of innovation and cheap technology in fighting climate change is to be accepted, the world will make a major mistake if patents for green technology will be eliminated. There are certain assumptions made in the first speech and I will try to prove that the arguments written by my colleague are based mostly on false premises. As a community of people living together, we have agreed on some regulations and laws that shall guide our actions and impose limitations. Rules are not rules if we try to avoid them every time another problem comes forward. On the other hand, the right of intellectual property is sacred as long as people are not afraid to think and act upon their thoughts.
Starting with the premise of the first argument, one has to acknowledge the meaning of the word competition. A race to the top is happening right now in our capitalist markets, where companies are not allowed to copy ideas and take credit from someone else’s work. Competition between companies is what solved major problems, like the high cost of living and being able to afford three meals a day. The message sent if the motion is approved is simple. One can lie on their back and wait for someone else to provide ideas. More than that, if they steal them and take credit for them, the market will reward them. This kind of approach will Next, I am going to show why people would still be limit the innovation and competition between commotivated to invest even without the patents. In light panies, because everyone will be afraid to invest in re-
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DEVILâ&#x20AC;&#x2122;S ADVOCATE of the increase of the devastating effects of climate change, there is a growing demand for renewable energy. Also, there is a lot of room for improvement as global warming is advancing rapidly. Green technology seems to provide an emerging industry. Companies that want to invest in this sector would have to be really competitive and have efficient marketing strategies in a no-patent system. That should bring them the profit they are driven by.
search when anyone else can use their results. If I am not the only one than can benefit from my ideas, why should I produce them in the first place? On the argument of developing countries, there are a few mistakes in the line of reasoning. First, the fact that we call them developing countries, and that most of the times they do not have money for health-care or infrastructure, does not mean that they do not do scientific research. Let us take the example of India and China, which both have a functioning space program. Second, the market in developing countries is available for western companies. What does this mean? It is simple. If a developing country wants to pay patent royalties, they are able to do so. The cost might be even cheaper than investing into research. More than that, people in developing countries have access to modern technology and they are able to directly buy western products. On the other hand, incentivising companies to invest and discover new forms of green technology is only going to work if their ability to steal ideas from others is limited. A company based in a developing country can benefit the same way from a patent as a company in a developed country.
In response to the opponentâ&#x20AC;&#x2122;s second argument, the reason why patenting actually sabotages innovation is the monopolisation that it creates. If an invention is patented, other people stop researching that particular area, leaving it to just that company to exploit and improve that technology. As I have shown in my first argument, they would rather not spend their resources on the same research that is likely to produce the same product, as that would make them less competitive than desired on the market. Consequently, if one company were willing to pay for the research and share it for free, it would allow itself and the other companies to invest in the improvement of the invention. That would create more chances to innovate based on that research. By patenting, the number of researchers working to develop the technology is limited. Thus, it is not maximising the potential of every single tech- In conclusion, the world is facing yet another major nology. problem that is directly affecting our future. During the fight with climate change we cannot forget our baOverall, for green technology to produce the change that we want, it needs to be affordable, so as many sic human needs, and what drives and makes us come people as possible use it. Because there are just a few up with new ideas and innovate. Especially if we are companies that produce and benefit from the sales of talking about companies, they are driven by profit and eco-friendly technology, there is a lack of competition. this is a good thing. Research and innovation, new This leads to prices that are not necessarily compatible ideas, should be rewarded and this can only happen if with what people afford. For instance, patented phar- the ability of companies to patent green technology is maceuticals are extremely expensive. On the whole, it preserved. should be much more about covering the needs than taking credit.
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Closing Statements Moderatorâ&#x20AC;&#x2122;s Note: Rebuttals are usually the most intense part of each debate. There were two interesting ideas that came out of the opponentsâ&#x20AC;&#x2122; remarks. First, there was the clash between meritocracy and the right of others to a sustainable environment. While Anda believes that it is justified to reward companies for their investment in research, she thinks that patenting is not the way to do it due to the implications it has on the fight against climate change. Mihai argues that we can have the best of both worlds, as rewarding companies incentivises them to innovate. Second, there was the issue of developing countries. It is true that most of the times these countries must focus on investing in economy rather than worrying about the environment, as poverty is an immediate threat. However, these countries suffer the most from climate change. The question remains, how is it best to tackle the issue: have them go green structurally or transfer eco-friendly technology from developed economies? I guess it is up to you to determine the winner. I hope you enjoyed our debate! Happy Holidays! Anda Prunea: There were two main clashes in this debate. First, whether patenting disservices competition or not. Second, if developing countries stand a chance to develop their own green technology, or should the wealthier countries transfer it to them. On the point of competition, the importance of incentivising people to compete with one another in order to innovate seems to be commonly accepted. But patenting only enables companies to have a monopoly on the market and prevents others from competing, reducing therefore the possibility of innovation. As I have shown, people would innovate in the field of renewable energy even without the patents, as right now the increasing demand makes it a booming industry.
Mihai Morar: One can clearly see that there are two kinds of arguments in this debate. The main clash is between the power and free will of the individual, or the company in this case, and the needs of the world or the state. Each and every time, governments try to uphold their intrusive policies by arguing that they are going to help the society and those in need. While I agree that climate change is a major problem, I think that only by allowing companies to patent their invention the problem is going to be solved.
On this side of the house, I believe that progress is made with effort and those who want to invest should The problem with developing countries is that providbe rewarded, not with awards, but with money. ing them western eco-friendly products does not suffice. Their own manufacturing process has to be green. Right now, companies have this possibility and one For instance, their factories must cut the carbon emis- can clearly observe the huge progress that was made sions as well. China might invest in research. However, in this domain because companies have an incentive in other developing countries the standard of living is to spend time and money to provide consumers elecso low that people are not prepared to face the immediate devastating effects of climate change, such as tric cars, solar panels, and other kinds of green energy. massive floods. Therefore, transferring green technol- One needs to acknowledge how companies need an ogy to them for free will help prevent that. incentive to provide better and better ideas, not just Clearly, the debate behind this debate is whether peo- copy or improve the old ones. ple should be rewarded for their inventions. If by rewarding them the utility of that invention is harmed, then not doing so is completely legitimate.
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WE WOULD LIKE TO THANK ALL THOSE WHO CONTRIBUTED TO THIS FOURTH EDITION: Anca Lupas Anda Prunea Andra Carabas Andrada Rusan Beniamin Viorel Branzas Elena Mihaela Gheorghe Elena Raluca Cirjan
Francesca Esposito Diana Gal Mihai Morar Oana Iulia Irimia Oana Gligan Raluca Alexandra Maxim
We would like to extend special thanks to Ms. Linda Hamid, Law Clerk at the International Criminal Court, for offering us an interview. We would also like to thank Ana Condor for contributing with this editionâ&#x20AC;&#x2122;s photos (visit her on Facebook at AC Photography&Art).
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