Special Edition January 7, 2015
Celebrating 2 years of activity The editorial team selected best of every category, plus some surprise materials!
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LAWYR.IT TEAM Managing Editor Ioana Stupariu (LL.M in International Business Law, Central European University)
Assistant Managing Editor Călin Mureşanu (4th year, Babeş-Bolyai University)
Senior Editors Andrada Rusan (LLM in International Commercial Arbitration, University of Bucharest) • Andrada Florea (LL.M in Human Rights & International Humanitarian Law, Geneva Academy) • Oana Cristina Gligan (4th year, Babeş-Bolyai University)
Junior Editors Alexandru Coraş (4th year, Babeş-Bolyai University) • Alexandra Mureșan (3rd year, Babeş-Bolyai University) • Anamaria Pintea (3rd year, Babeş-Bolyai University) • AndreiaGemma Moraru (4th year, Babeș-Bolyai University) • Dan Moroşan (LL.M in International Law, Maastricht University) • Ioana Bărăian (4th year, Babeş-Bolyai University) • Mădălina Perțe (4th year, Babeş-Bolyai University) • Mădălina Moldovan (3rd year, Babeş-Bolyai University) • Mircea Farcău (4th year, Babeş-Bolyai University) • Oana Iulia Irimia (3rd year, Nicolae Titulescu University in Bucharest) • Raluca Trîncă-Găvan (3rd year, Babeş-Bolyai University) • Raluca Alexandra Maxim (3rd year, Babeş-Bolyai University) • Radu Șomlea (3rd year, Babeş-Bolyai University) • Ruxandra Popescu (4th year, University of Bucharest)
PR Coordinators Adrian Condrașov (4th year, Nicolae Titulescu University in Bucharest) • Anny Stoikova (S.J.D. Candidate, Central European University) • Delia Cristiana Stamate (4th year, Ovidius University from Constanța) • Dora Maria Demble (3rd year, University of Vienna - Juridicum) • Paula Alexandra Ungureanu (3rd year, Alexandru Ioan Cuza University in Iași) • Stella Turnsek (5th year, University of Zagreb) Paula Ungureanu (3rd year, Alexandru Ioan Cuza University in Iași) • Oana Silea (4th year, Ștefan cel Mare University in Suceava) Disclaimer: Given that Lawyr.it is a fully student-run magazine, nothing from its pages should be understood as legal advice of any kind. Any questions about legal assertions, conclusions, sources used or representations made in these pages will be re-directed to the person who made them. If you do want to get in touch with one of the authors, please write to us at email@example.com at any time.
EDITOR'S NOTE By Raluca Maxim
It is with great honour and enthusiasm that we now celebrate Lawyr.it’s two years of
existence. The past couple of years have been although challenging, also rewarding and, as we grew as a team, so did the magazine and our community of readers. We have expanded over 5 countries in Central and Eastern Europe and gathered articles from nationals of various others, we have over 1,500 followers on Facebook, and we have doubled the magazine’s content compared to our first issue. The editorial team has decided that the best way to celebrate our anniversary is to take a look at the past, and to shed light on the pinnacle of each of the magazine’s sections. This was, by all means, a very difficult choice, as all the contributions were, to start with, notable and well-grounded. In what concerns the Domestic section, after running through all our criteria, we came to the decision that the article which corresponded most to them is Andrada Rusan’s ‘The threats comparative advertising can pose to fair competition’. The author exploited the thin line between the legitimate use of comparative advertising and unfair competition in order to come up with different perspectives on the matter. The end-result was a very welldocumented article which demonstrated skillfulness and worthiness. We felt that the Reflections section was best represented by Stella Turnsek’ ’Referendum: the good, the bad, and the very ugly’. The article brought a well-researched perspective, amidst the tense Crimean and the hotly debated Scottish referendum The author provided valuable Croation input on the matter and corroborated it with relevant facts. The International Focus section puts one of our first articles in the limelight - ‘A case for legitimizing abduction as a means of procuring the defendant’ by Irina Negruţiu, Călin Mureşanu, and Dan Moroşan. As it is the creation of three contributors, the article is a very complex piece of writing, covering both the national and the foreign doctrinaire views on the subject. Our highly appreciated section, the Devil’s Advocate, was enriched with the debate topic, ‘Has the International Criminal Court (ICC) failed?’. As the issue has been at the core of various disputes over the last decade, with wellfounded hopes and fears coming from both sides, we felt that we should draw some of the conclusions over its evolution so far. We would like to thank Jamie Brown and Maria Manolescu, two passionate young students and professionals in the international criminal law field, for their extremely valuable contribution to this piece. And, last but not least, we have prepared a special interview for this anniversary issue. As we were covering ELSA Cluj-Napoca’s Summer Law School on the World Trade Organization (WTO), we could not resist interviewing some of their most distinguished guests: Ms. Weiwei Zhang, Mr. Roberto Rios Herran, and Mr. Jan Bohanes, all professors at Barcelona University’s IELPO (LLM International Economic Law and Policy). We look forward to see how the magazine will develop over the next years and we invite you to be a part of it, either as our reader, a supporter, or as a member of the team. Thank you for your invaluable support!
IN THIS SPECIAL EDITION Domestic Focus The threats comparative advertising can pose to fair competition (p. 7)
Reflections Referendum â€“ the good, the bad, and the very ugly (p. 11)
International Focus A case for legitimising abduction as a means of procuring the defendant (p. 15)
Professional Spotlight Special Interview (p. 19)
Devil's Advocate Has the International Criminal Court (ICC) failed? (p. 28)kil
you acquire it?
Donâ€™t forget to also take a look at our seventh issue, the first in 2015! 5
DOMESTIC FOCUS The threats comparative advertising can pose to fair competition Vol. 2 Ed. 1. December 20, 2013
Tthis article has been published in our fourth issue, published in December 2013.
The author is Andrada Rusan. She is currently completing an International Arbitration LL.M at the University of Bucharest, and is also a junior lawyer within a Magic Circle law firm starting this fall. Dreaming of being a lawyer since she was 7 years old, she has always believed that the pursuit of a legal career is a matter of vocation and life-long commitment. It is now her firm conviction that the future of business Law belongs to an emerging team of lawyers-to-be that are equally innovative and visionary. She is also a Senior Editor in the Lawyr.it team.
Other recommended articles from this issue Domestic focus: The fate of the judicial precedent International focus: The law on Euthanasia in Britain and the Netherlands: Which is preferable? Syria: Taking sides in International Law The Common European Sales Law: A necessary tool? Reflections Aristotleâ€™s and Lincolnâ€™s juridical teachings for the modern-day lawyer Debate: Companies should not be allowed to have patents on green technology
Modern economies have long now been striving
of another) on the reputation and good name of a competitor. The aim is associating their products with to foster sane competition and to grant actors freethose of the rival and creating a connection between dom of movement within their relevant markets. In the two in the mind of the consumer. competition law the relevant market is the market in which one or more goods compete. Competition is First, to discern between the cases of legitimate use of desirable, as it leads to legitimate fight between peocomparative advertising and unfair competition, it is ple in the business. The winner of this fight is always necessary to clarify the meaning of the terms used by the consumer, pampered with the best offers at stake. the Directive. A variety of emerging technologies have diminished considerably the costs of imitation and forfeiture. This Who is ‘a competitor’? In brief, a competitor is anyone creates a breeding ground for dishonest commercial who develops their business within the same relevant practices and makes competition harder to fit within product market (Cotuţiu, 2001). As emphasised by the narrow confines of the Law. ECJ case-law, it is the type of goods in the concrete case and the needs they cater for that ultimately deUnlawful competition practices may come in different cide their ‘competitiveness’ (ECJ, De Landtsheer Emforms, most of which are difficult to spot by the unamanuel SA v. CPVC and Vevue Cliquot Pontsardin ware. Comparative advertising represents a borderline SA, 2006). set of practices of this sort. This article will offer brief overview of these practices, accompanied by concrete How is a competitor ‘identified’ in an advertisement? examples, in an attempt to determine where the borAn advertisement may well fall within the provisions der between lawful and unlawful should be drawn. of the Comparative Advertising Directive even if it does not offer the name of a specific competitor, prodComparative advertising is regulated by the European uct or service. An implicit reference is enough, even if Directive 2006/114/EC concerning comparative and more competitors will claim to have been identified in misleading advertising (further called Comparative that way (ECJ, De Landtsheer Emmanuel SA v. CPVC Advertising Directive). Its provisions were transposed and Vevue Cliquot Pontsardin SA, 2006). It is enough into Romanian Law 158/2008. According to Article for the advertisement to clearly target one or more de2 point (c) of the Directive, comparative advertising termined competitors. This is the case when consummeans any advertising which explicitly or by implicaers can identify who those are. The comparative adtion identifies a competitor or goods or services ofvertisement is unfair each time the average consumer fered by a competitor. can realise that the scope of the advertisement is to put in better light the advantages of one’s products The German doctrine made a suggestive distinction or services to the detriment of those of a competitor. between critical comparative advertising and free-ridThis evaluation on behalf of the public depends on the ing comparative advertising (Eminescu, 1993). Critinature of the product. Advertisements of daily used, cal comparative advertising consists in an opposition average priced, products and consumables will be between one’s trade practices or products and those of perceived superficially, at first glance. Advertisements a competitor. It casts a favourable light over the forof rare or specialised products will come under more mer by discrediting the latter. Free-riding comparascrutiny from the intending consumer (Eminescu, tive advertising, on the other hand, intends to have a 1993). ‘free-ride’ (getting unmerited benefit from the actions 8
reputation of a trade mark, trade name, or other disSecond, Article 4 of the Comparative Advertising Di- tinguishing marks of a competitor, or of the designarective lists eight situations when comparison is al- tion of origin of competing products; lowed. 3.3. It does not represent goods or services as imitations or replicas of goods and services bearing a 1. Comparison is allowed if it is not misleading. A protected trademark or trade name. misleading comparison is incomplete, biased, and it conveniently leaves out information that would make These are three distinct situations which are often it detrimental to the product advertised. For instance, linked in ECJ case law. Imitating a product means takan advertisement is misleading if it claims that one’s ing an unfair advantage of it, which can discredit the prices are lower than those of a competitor, but it fails reputation of the competitor. ‘Taking an unfair advanto mention that the price of the competitor includes tage’ is a broad concept which includes any gain made some accessories of the product. by illegally using a value created by another (Nims, 1936). An iconic case is L’Oreal v. Bellure, where 2. Comparison is allowed when it compares goods or cheap Bellure perfumes were produced to smell like services meeting the same needs or intended for the L’Oreal fragrances, and dressed in packaging similar same purpose. This ensures transparency over mar- to the shape marks registered by L’Oreal. In addition, kets of similar goods and offers more protection to comparison lists were provided to distributors. A corconsumers. However, it must be determined to what respondence was drawn between each famous L’Oreal extent the compared products are interchangeable. perfume and its cheaper Bellure imitation. The Court A plaintiff in such a case will always argue that their ruled that even though there was no actual risk of conproducts are not comparable to the defendant’s. Their fusion between the two, Bellure’s actions gave them an superior quality automatically means they do not meet unfair advantage at the expense of L’Oreal. That is inthe same needs and are not intended for the same consistent with the standards of fair competition and purpose. Admitting such an argument rules out any thus considered unlawful (ECJ, L’Oreal SA & others v. possibility of comparison between many categories of Bellure, 2009). consumer goods, especially foodstuffs. It would make this provision eternally inapplicable. Therefore, the To conclude, there is a fine line between lawful and ECJ offered the broadest interpretation of this aspect, unlawful comparative advertising. Trespassing may and the one most favourable to allowing comparisons. result in a blink of an eye. When it does, the offenders It said that the Comparative Advertisement Directive can receive administrative sanctions, but this is not did not ‘prejudge the angle from which a comparison enough. The appropriate course of action for anyone might be lawfully made or the characteristics of the harmed by the dishonest practices is to bring a claim products to which comparative advertising might re- before a Court according to Law 11/1991 on unfair fer’ (Practical Law. ECJ, Lidl SNC v. Vierzon Distribu- competition. This ensures that any form of unjust ention SA, 2010). richment at the expense of a competitor is reprehensible in the collective consciousness. 3. Comparison is allowed when: 3.1. It does not discredit or denigrate the trademarks, trade names, other distinguishing marks, By Andrada Rusan goods, services, activities, or circumstances of a competitor; 3.2. It does not take unfair advantage of the 9
REFLECTIONS Referendum – the good, the bad, and the very ugly Vol. 2 Ed. 2. April 30, 2014
Tthis article has been published in our fifth issue, published in the spring of 2014.
The author is Stella Turnsek. She is a senior student at the Faculty of Law of the University of Zagreb and has been participating in a student organization called Legal Clinic, where students provide free legal help and give legal opinions to people in need. Stella also decided to join the Lawyr.it team as she believes that it is a great opportunity to connect with law students on international level, to exchange experience and to improve academic skills. She is now a PR Coordinator, being responsible of making the Lawyr.it project known in her circles.
Other recommended articles from this issue Domestic focus: The liability for lack of conformity with the contract - a promising achievement of Consumer Law International focus: Applicability of the ‘Responsibility to Protect’ doctrine in Syria Non-financial reporting of companies in the EU: a ‘voluntary obligation’? Should European legislation regarding the ‘made in Germany’ trademark for the automotive component parts industry be revised? Debate: In the case of autonomous drones, engineers should be held responsible instead of programmers.
Unfortunately, social minorities, as vulnerable sec-
As Vrdjolak (2008) has noticed, ’from the 1648 Treaty of Westphalia to the present-day efforts to resolve the fate of Kosovo, the community of states have continually been preoccupied with minorities’. Moreover, this is also the reason why we must look at the international community for a correct and unified effort of ensuring its enforcement. As the same author also observes, ’minority groups cannot simply look to the state for alleviation of discrimination and persecution. Experience has shown that such acts are often perpetrated by state organs’.
tions of the population, often face the greatest barriers when struggling to uphold their rights through judicial mechanisms. In this essay I shall first clarify what the right to justice incorporates and what the concept of ‘social minorities’ embodies in actuality. Consequently, I shall try to balance the real and the mythological in the international community’s current strive in defending the social minorities’ prerogative to justice. Finally, I shall look at the most frequent issues connected to the constant infringements of the equal So, after establishing this set of semantic and juridiright to justice for minorities. cal demarcations, the question of this article appears In order to evaluate whether social minorities more clearly. Is the international community efficient, throughout the world enjoy a tangible right to justice, in the troubled modern times, with ensuring the imI must first establish what the right to justice should plementation of the right to justice for all minorities entail and which social minorities are in the most vulacross the globe? nerable positions. The right to justice in the narrow sense of the term can be coextensive with access to Undoubtedly, nowadays, key international actors are the courts, while in the wider connotation it embraces making efforts in ensuring the protection of an equal access to the political order and the benefits ensuing access to justice for all social categories. Whether they from the social and economic developments in the are displayed in the exceptional cases of UN peacekeeping operations or in the more common EU pracstate (Okogbule, 2005). tice pertaining to this matter, the international comIf it can be easily established that a cohesive right to munity is assiduously addressing this issue. justice means much more than a mere access to the courts, it is not so easy to determine what the concrete The ‘mythical’ side of this unified effort might appear content of the generic term ‘social minorities’ is, as the in territories where at some point in time or even answer will differ from country to country, or from currently, due to some political interests, this proacregion to region. For example, if this question were to tive, protectionist endeavour has lacked throughout. be posed to someone who lives in the UK, Germany For example, the inter-war agreements between Geror another European country with a high rate of im- many and Poland covering Upper Silesia that did not migration – the answer might be precisely a specific provide standing to minorities or their members the community of immigrants. But, if the same question enforcement of their rights or remedies for any violawas asked in Kosovo, the answer might be connected tions. There are times when the only thing that international entities that defend human rights can do, is to the ethnic Serbian minority. merely to report and highlight the existences of an isThis precise simultaneous existence of different social sue, a direct intervention being unviable. We are makminorities that pose different problems, which actuing reference, for example, to the situation in eastern ally change from era to era, lies at the very core of the Ukraine where a large ethnic Russian minority resides potential infringement of their prerogative to justice. 30 12
and whose violation of its rights to ’property ownership, wages and pensions, health service, labour rights, education and access to justice’ is the current concern of the UN High Commissioner for Human Rights Navi Pillay (UN Human Rights Report, April 15, 2014). Moreover, in many cases, discovering accessible solutions to issues that heavily impact upon the effectiveness of justice is a challenging task. This is also because, sometimes, the correct nature of the concrete obstructions to an equal access to justice is underestimated and ignored. Let us analyse the apparent unchallenging linguistic difficulties that immigrants may face and that might have a negative effect on the understanding of laws and their legal rights. For example, immigrants who want to conclude credit contracts may not be able ‘to fully understand and appreciate their terms and conditions, and thus risk being victims of economic fraud and pay beyond the odds or over-committing’. These types of subtle, apparently minor obstacles are the ones which might fall ‘out of the radar’ of the international community and might elude even the authorities of a state which is repeatedly confronted with them (Bello, 2011).
As I have foreshadowed at the beginning of this article, a way in which all these specific, state-related issues can be addressed in a more successful manner is through the use of international and regional mechanism. For example, even though Europe has perhaps the most developed articulation of minority rights, there is no doubt about the necessity of proactive regional human rights structures. A very good illustration of such a human rights actor is the European Court of Human Rights, which has at the core of its activity the Council of Europe’s European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) - the first legally binding multilateral human rights agreement. And even though the Convention does not refer to minorities specifically, it does prohibit discrimination on various grounds and can be efficiently used as a way of enforcing the minorities’ right to justice or correcting the mishaps that might appear in the process.
To conclude, we should be neither exceedingly optimistic, nor exceedingly pessimistic when it comes to the current protection of the right to justice for social minorities. This multifaceted topic is as complex as all the social factors that underlie it. From linguistic barriers, to being more likely detained on a street during On the other hand, in some cases, even if a particunight-time in a problematic ‘barrio’ (neighbourhood lar issue is visible to all the important authorities of in Spanish), the right of social minorities to justice a certain state as well to all the relevant international incorporates many hard to solve problems. The preactors, the problem at hand might be so deeply sewn rogative we have analysed is neither a concrete reality, in the social layers of a state that it can be very hard to nor a myth, but closer to a myth striving to become a be dealt with, transforming an equal access to justice reality. for minorities into a mere illusion. I am referring, for example, to the unsatisfactory treatment of minoriBy Stella Turnsek ties in the American criminal justice system. In this particular case, disparate treatment of minorities ‘begins at the very first stage of the criminal justice system: the investigation of suspected criminal activity by law enforcement officials’ (Dunnaville, 2000). As a result, innocent minority citizens are detained by the police far more often than the majority of the population. This is a perennial issue of the last decades for the American judicial system and it might never be completely eradicated. 13
INTERNATIONAL FOCUS A case for legitimising abduction as a means of procuring the defendant Vol. 1 Ed. 1. December 18, 2012
4th year, Babeș-Bolyai University
LLM Criminal Law, Babeș-Bolyai University
LL.M in International Law, Maastricht University
Other recommended articles from this issue Domestic focus: The starting point of the extinctive prescription Is Homosexuality truly accepted? A comparative analysis between Austria and Romania
International focus: Brief remarks regarding the dominant five trending views over the concept of Unjust Enrichment in common-law Human Trafficking in South Africa Reflections: Individuals as subjects in International Law
In a world where international law revolves around states, government officials abducting a person from another state without its consent is a violation of that state’s sovereignty. However, we believe that it is legitimate for a state to take such action when done with the purpose of instituting criminal procedures against a person charged with crimes against humanity under international law. We acknowledge that some reparation might be due, but for the purposes of effective prosecution, jurisdiction of courts should not be denied. Context For the purposes of this article, we will refer to abduction as the act of Government officials’ forcefully taking away a criminal offender from a different state and bringing them within the state of trial. Although we acknowledge an interesting discussion can be held around the situation when the abduction is perpetuated by private individuals, with no apparent link to any state, the purpose of this article does not provide the space for this. There is no unitary point of view on the matter in international law practice. Scholars, as well as courts, have notably adopted the vision according to which jurisdiction should not be denied on the basis of illegally procuring the defendant, thus promoting the male captus bene detentus policy (Eichmann). Despite this, recent decisions ruled against it (R. v. Hartley). Conditions for validating the abduction
tutes an infringement to the sovereignty of another state, we believe that not all crimes justify such action. Crimes against humanity are particularly grave, therefore we believe that sovereignty pales in importance when put in balance. Even if reparation should be due through other means (Constantin, 2010), sovereignty alone should never justify holding someone accused of such serious offences from prosecution. Modern international law is, and should be, focused less on statism and more on offering effective protection for individuals against genocide, torture and other similar acts (D’Amato, 1995). Thirdly, the state where the defendant is located at the time of the abduction should be either unable or unwilling to try them. Unwillingness of trial is incident in cases when, even if not explicitly or through the aid of Government officials, a state offers protection or shelter from prosecution to the defendant. This was the situation in the Eichmann case, where the Argentinian authorities have failed to prosecute Gen. Eichmann, thus justifying an incursion by the Israeli Special Forces. Often, protection is offered by some states on the basis of immunity, as some of the perpetrators of crimes against humanity are former heads of states or Government officials (Pinochet). We believe that in such circumstances it is legitimate for a third-party state to take action into its own hands, as otherwise justice would not be done. This is a consequence of a principle accepted in international law: aut dedere, aut judicare (Streteanu, 2008) - try the offender, or surrender them to others that will.
In order to have a legitimate action and validly exercise A fourth condition that we believe should be instituted jurisdiction over the offender, several conditions need is that of an acceptable conduct of the kidnappers toto be fulfilled. wards the abductee, meaning that Government officials Firstly, the state that tries the offender must have ju- should be treating the defendant no different from a risdiction over the alleged crimes on the basis of the person that has been extradited. This train of thought principles applicable in the matter, namely protective, has been expressed by the American courts with the ocnationality, passive, territorial and universal (Carter, casion of the Toscanino trial, an exception to the well 2008). Of these, given the nature of the crimes pros- known Ker-Frisbie principle establishing that the manecuted (offences that can qualify as crimes against hu- ner an accused was brought before the court is not relmanity), more often than not, the basis will be universal evant to the jurisdiction. Therefore, the conduct should jurisdiction (Lotus). Since the only legitimate purpose be ‘shocking’ or appalling like that in the Toscanino for an abduction is trial, we hold that jurisdiction is a trial in order to render the court unable to judge; this appreciation will be made ‘in abstracto’ as compared to prerequisite for such action. the extradited person as stated in the Lujan case. Secondly, we believe that the offender should be tried with crimes against humanity. As kidnapping consti16
French officials abducted the defendant from Sudan and prosecuted him for acts of terrorism, in all of these Probably the most pertinent critique that has been cases Courts ruling that they have no basis to refuse jubrought to this opinion is that formulated by human risdiction due to the means of procuring the defendant. rights activists, who argued that abduction goes against Furthermore, Sir Fawcett wrote that jurisdiction should the very principle of the extradition procedures, which not be denied, and that ‘the State must accept reparais to protect the right of the defendant (Selleck, 1985). tion’ in another form. (Fawcett, 1987) To this we have two responses. The primary effect of considering abduction a legitiFirstly, we believe that this critique can be removed by mate means of procuring the defendant is that Courts our fourth condition, namely the one stated by the Tos- have jurisdiction to try him. This means that Internacanino principle. Should the prosecuting state act just tional Criminal Law gains in effectiveness, and that it as if the defendant has been extradited, treating them is borderline impossible for international criminals to with the proper respect for human rights, and offering find legal protection and avoid the consequences of them all the safeguards against human rights abuses, their action. The rule of law is upheld and international such as habeas corpus, the rights of the defendant are law takes a great leap forward into providing effective sufficiently protected. protection for individuals against serious offences. Secondly, we believe that exceptions to the inviolability Subsidiary, this leads to the fact that the means of repaof the rights of the defendant can be sustained, if justi- ration for such ‘illegality’ will not be judicial, but rather fied by an imperative need. Such a justifying need may political. As happened in the Eichmann case, Israel isbe, in our case, that for upholding the rule of law. If the suing public apologies to Argentina for the abduction refusal to try or extradite the defendant leads to them was sufficient, meaning that justice did not suffer from avoiding the legal consequences of their action, abduc- the situation at hand. tion is necessary for justice to be served. Lastly, we believe this would act as a strong deterrent Effects regarding the jurisdiction of the national court against international criminals. We find it unacceptable if the manner in which the accused is brought before is that serious offenders can easily seek shelter in certain considered legitimate states that have constant practices of refusing extradiTo begin with, it is to be noted that there have been tion, or in states where they can hide behind various enough decisions in international practice to sustain immunities offered by the Government. We believe that there is a strong practice of abduction not inter- that taking a firmer stand against this type of behaviour fering with jurisdiction (Harris, 2004). Apart from would lead to a more cohesive approach toward fightthe pre-cited Eichmann and Lotus cases, there have ing crime, and towards individuals being deterred from also been the Alvarez-Machain case, where US courts committing such acts as they would know they can find tried the defendant for murder of a DEA member and no legal means of avoiding the consequences of their drug-trafficking, after they have procured him through action. abduction from Mexico, the Mordechai Vanunu case, Contrary opinions argue that the primary effects of where Israeli officials abducted an Israeli citizen from abduction should be breach of sovereignty, breach of Italy and prosecuted him for revealing state secrets, human rights and lack of jurisdiction. We have already Abrahams v. Ministry of Justice, where South African shown why the imperative need to try the defendant forces kidnapped the defendant from nowadays state primes over the first two (rationale also expressed in of Botswana and charged him under the Law for sup- Nikolic). With regards to lack of jurisdiction, as we pressing Communism, Dragan Nikolic case, with the have argued before, we believe it would be severely detdefendant forcefully removed from Bosnia-Hertze- rimental to the process of effective prosecution, withgovina by SFOR forces and put on trial by the ICTY, out having any rational justification (as we have shown Öcalan v. Turkey case, in which ECHR found no breach that sovereignty and human rights cannot be such jusof art. 5 of the Convention even though Turkish au- tification). thorities exercised jurisdiction outside territory as they kidnapped the terrorist from Nairobi airport, and the By Irina Negruțiu, Călin Mureșanu, Dan Moroșan Carlos the Jackal (Ilich Ramirez Sanchez) case, where 17
Interview Tthis special, anniversary issue presents an exclusive interview our editorial team prepared for our readers while covering ELSA Cluj-Napoca’s Summer Law School on the World Trade Organization (WTO), and event which Lawyr.it supported as media partners. We are happy to introduce the invaluable contributions of some of their most distinguished guests: Ms. Weiwei Zhang, Mr. Roberto Rios Herran, and Mr. Jan Bohanes, all professors at Barcelona University’s IELPO (LLM International Economic Law and Policy). This featured interview has been prepared by our Junior Editors - Raluca Alexandra Maxim and Ana Pintea. If you are interested in reading more interviews, here are some of the most popular interviews we realised so far:
• Interview with Asist. univ. dr. Daniel Nitu - Assistant Professor at Babes-Bolyai University
• Interview with Lecturer Andrea Chiş - Judge at Cluj Court of Appeal
• Interview with Florentin Ţuca - Managing Partner - Ţuca Zbârcea & Asociaţii
• Interview with Linda Hamid - Law Clerk at the International Criminal Court
Professional Spotlight Weiwei Zhang ELPO alumni Weiwei Zhang is PhD candidate and Research Assistant at the Graduate Institute in Geneva. In the past, she was a project manager for the EU-China Trade Project, after China’s accession to the WTO, she was an intern at the WTO’s Trade in Services Division, and she has worked as part of the WTO litigation team at Sidley Austin L.L.P.’s Geneva Office.
Jan Bohanes Jan Bohanes is a lecturer on Trade & Development at IELPO and speaks regularly at international conferences. He has worked for several years as an associate lawyer in Sidley Austin L.L.P.’s Geneva Office, and, prior to that, at the WTO’s Appellate Body Secretariat. He has also published numerous books and articles focusing on the WTO’s dispute settlement system. Currently, Mr. Bohanes works at the Advisory Centre on WTO Law in Geneva.
Roberto Rios Herran Roberto Rios Herran is an experienced lawyer, specialised in international trade matters and EU competition law. He holds a PhD in law from the Sorbonne University, Paris. Mr. Rios teaches the Trade & Energy course at IELPO and is a visiting lecturer at multiple European and American universities. He has also held the position of director of legal studies and research at the World Trade Institute.
Professional Spotlight Lawyr.it: The relevance of the World Trade organi- way or another. There are two ends on this specsation (WTO) has been heavily debated over the trum of debate. last years. What is your perspective on the issue? One extreme holds that the WTO is no longer relJ. B.: We need to distinguish between the differ- evant, contrasting the repeated failure of multilatent functions of the WTO. The negotiating/treaty- eral negotiations with the proliferation of Regional making aspect of the WTO’s activities has indeed trade arrangements (PTAs). For these people, WTO suffered, for a number of reasons, including the size is all about negotiation for further liberalization. of the membership, the enlarged circle of key de- However, this is not true. To provide a forum for cision-making Members and a reduced interest by trade negotiations is but one function of the WTO. many Members as their focus has shifted towards First and foremost, the WTO provides security and preferential trade agreements. In contrast, the dis- predictability to the trading system by locking in pute settlement system, or the quasi-judicial func- the level of trade liberalization in its Member states. tion, has flourished, even as the number of the free- This is achieved through managing the implementrade agreements with their own dispute settlement tation of a set of agreed rules as embodied in the fora has increased. multilateral trade agreements (e.g. GATT, GATS). Second, its dispute settlement system offers an opAnother aspect to consider – international affairs portunity for Members to solve trade disputes in a are often cyclical and the cycles can be long. The peaceful way. Furthermore, its Trade Policy Review history of the GATT 1947, the predecessor of the Mechanism contributes to greater transparency of WTO, went through very active and then less active trade policies and practices of its Members. Indeed, periods. The same is likewise true when we look despite the proliferation of PTAs, the bulk of interat the WTO in the long run. It is entirely possible national trade is conducted on a MFN basis and the that, in a few years, the momentum will be back at WTO remains a key arena where trade disputes are the multilateral (WTO) level and free-trade agree- brought to and trade concerns/disciplines are disments will receive less attention. Moreover, certain cussed. policy issues lend themselves inherently better to negotiations at the WTO level than at the regional Another extreme holds that the WTO is too interlevel – e.g. subsidies. vening into the sovereign states’ right to regulate: in other words, it is overreaching. They often refer to “The WTO has always been a sub- trade disputes where environmental issues are inThis is misleading too. WTO explicitly reject of debate in one way or an- volved. spects the Members’ right to regulate, as long as the other. There are two ends on this regulation is conducted in a non-discriminatory manner.
spectrum of debate.”
The WTO Members certainly need to reflect on ways to make the system more efficient. But in all it Finally, even if the trend towards regional trade is still a system highly relevant in today’s business agreements continues, there will always be a need world. for a global platform on which these trade agreements meet Certainly, the question is how dynam- R. R. H.: I believe that the WTO is, and will remain, ic, powerful and prestigious this platform will be. an important forum for trade liberalization. Countries have much to gain from actively participating Time will tell. in this process. Take for example the expected gains W. Z.: I guess if it were some 19 years ago, few peo- that can be obtained from the implementation of ple would doubt the relevance of the WTO. The the Trade facilitation Agreement (TFA). We are promising prospective of the multilateral trading talking about the creation of about 21 million jobs, system was heralded by the successful conclusion and an increase of about USD$523 billion in the of the Uruguay Round, which led to the creation of GDP of developing countries. This by any means is the World Trade Organisation in 1995. Since then, an important result to be achieved if and when the the WTO has always been a subject of debate in one TFA will be ratified an implemented. 20
The current impasse in the ratification process of the TFA shows, however, that the WTO needs to adapt to the new realities of the international trade scene. The Doha Round has been going on for just too long to the detriment of the WTO’s main objective of being a permanent forum for trade negotiations. Something has to be done in this respect. Nowadays, much trade liberalization has been achieved through regional trade organisations, and free trade areas. This, unfortunately, is against the efficient functioning of the WTO, which has come to be seen as a divided and fractioned forum where it is very hard to obtain concrete results.
have the legal capacity to participate at WTO level. Therefore, only Members can influence the way in which the WTO operates. To reflect this, we use to say that the WTO is a ‘Member Driven’ organisation. It is, however, very important to have in place a systemic way at State level, with clear and transparent rules, organising the way in which non-state actors can participate in consultations when a given Member is planning its trade policy, and also let the State know if and when non-state actors (mainly businesses) are facing entry barriers in other WTO member territory.
“The way forward for the WTO
Therefore, the way forward for the WTO may include shifting away from its current working meth- may include shifting away from its odology to try to achieve big results covering many current working methodology to industries to the promotion of deal making and try to achieve concrete (albeit more modest ones) try to achieve big results covering results in specific industries in shorter periods of time. In the event that consensus among WTO many industries.” Members cannot be achieved, the WTO should allow some members to be willing to implement this J. B.: Decision-making processes at the national levparticular deal and move forward while leaving the el should always involve non-state actors, such as option open for other Members to join later. commercial stakeholders, consumer groups, NGOs - civil society in general. Interest groups lobby and Lawyr.it: Would you say that there is an increase seek to influence the domestic decision-making in the involvement of non-state actors in the deci- process; that is their right in any functioning desion-making processes at state-levels? If yes, how mocracy and it is important for the legitimacy of will this influence the functioning of the WTO? any national decision-making system. However, I am not sure that one can say that there is an inW. Z.: Although the WTO’s membership is limited crease in the involvement of such interest groups at to governments, the private sectors have always a state level. If it were, I would welcome it. been an important force in shaping the multilateral trade disciplines. Through their governments’ pres- At the WTO level, however, it is probably best for ence in the WTO, the private sectors are pushing the various processes to be managed exclusively by for trade liberalization through various rounds of WTO Member governments, without the involvetrade negotiations; and bringing trade concerns to ment of non-state actors. This could undermine the WTO. the support for the organisation by some WTO members: e.g. developing countries are distrustful R. R. H.: I would rather say that there is an active towards western NGOs, whom they perceive to be participation from non-state actors (mainly busi- apologists for Western protectionist policies paradnesses) in making their concerns and potential ing as environmental, labour or responsible conobjectives heard at a State level. This is known as sumption policies. economic diplomacy, and it is a good way for governments to achieve a higher degree of legitimacy of Lawyr.it: What are primary positive aspects in the their commercial policies by allowing and encour- membership of a developing country or a least deaging the participation of non-state actors (NGO’s, veloped country in the WTO? Are there any negaprivate business, industry associations, consumer tive aspects? groups, etc.) when planning their trade policy. R. R. H.: I think the main positive aspect of memberLet us remember that only Members (i.e. States) ship for developing and least developed countries is 21
Professional Spotlight to have access to other markets for their products and services (currently WTO membership is 160 countries) on a (sometimes) preferential, transparent and non-discriminatory way. And also, to incorporate in their national legislation best practices regarding the protection of intellectual property rights and TBT and SPS related issues. Above all, WTO Membership allows these countries to send a signal worldwide that they are implementing clear and transparent international standards in their national legislation, which in turn facilitates the promotion of these countries as acceptable places to attract foreign direct investment.
in ensuring that even their very powerful trading partners respect the WTO disciplines and do not impose protectionist measures.
Some of the key challenges that WTO developing country Members face are at a domestic level: e.g. how effective is the government in promoting and fostering a favourable economic climate and innovation? How well does the government communicate with the private sector in identifying priorities for national trade policy, including the most important barriers to goods or services trade. These are policy challenges that a multilateral institution – be it the WTO or any other international organisation Perhaps the main negative aspect is the one related – cannot really solve. Rather, it is for the develto the costs that the transposition in their national oping countries themselves to address these challegislations and implementation of the WTO agree- lenges. ments may have for these countries. There are, “The most significant value for however, flexibilities in terms of time frames available for these countries to do so at WTO level, in a developing country (...) is that addition to the possibility of receiving technical assistance by the WTO. through making binding commitJ. B.: The WTO is a system governed by law and backed up by a well-functioning dispute settlement system. Typically, such legal systems are good for weak members of any community – the strong members already have the power anyway, so a rules-based system will tend to shift some power back to the weaker members. Hence, WTO Membership for developing countries and LDCs is to be encouraged, because it remedies at least in part the power imbalances that naturally exist in international relations.
ments for trade liberalization and accepting agreed trade disciplines, they are building up credibility to their domestic economic reform.”
Therefore, I do not see downsides from a WTO membership for developing countries or LDCs. However, it is possible that some countries do not take advantage of all of the possibilities that WTO membership offers them, whether due to insuffiOne can argue about whether all aspects of WTO cient domestic capacity or for other reasons. disciplines are ideal and leave enough space for good economic development policies of developing W. Z.: In my opinion, the most significant value for members. Some argue that developing countries a developing country or a least developed country’s need more ‘policy space’ than WTO disciplines of- membership in the WTO is that through making fer them, e.g. in how to foster domestic industries. binding commitments for trade liberalization and My view is that there is enough flexibility in those accepting agreed trade disciplines, they are buildrules to accommodate specific developing country ing up credibility to their domestic economic reinterests. Most economist also seem to agree that form. This credibility will in turn bring in foreign the bulk of WTO disciplines have a positive eco- and private capital, which is needed for their develnomic effect on developing countries and, moreo- opment. ver, improve domestic governance, e.g. by fostering transparency and keeping in check excessively In addition, developing countries often suffer from influential domestic interest groups (e.g. domes- unequal negotiating power at a bilateral level. This tic protectionist-minded industries). Developing is not the case in the WTO. The WTO decisioncountries also benefit immensely from the well- making process features the principle of consensus, functioning WTO dispute settlement mechanism, which means agreement can only be made if no 22
member formally objects to the proposed decision. Lawyr.it: You are fluent in more than six languagIt ensures the interests of developing and least de- es, and proficient in two more. Has your knowlveloped countries can be more fairly reflected. edge of foreign languages affected your experience in the field of international trade law? Lawyr.it: What made you join the Advisory Centre on WTO Law? How is it different from your pre- J. B.: Yes it has, but probably less than an outsider vious work in a law firm, and which one do you would expect. In my professional field, the crucial prefer? skill in international litigation has been flawless and eloquent English. That may be enough in terms J. B.: The ACWL is, in essence, a subsidized law of language skills for a successful international lefirm for developing countries. Structurally, the gal career. Indeed, some of the top WTO lawyers work is very comparable to a commercial law firm in Geneva work exclusively in English and do not – legal advice and litigation. Perhaps one difference know other ”big” languages. If their work requires is that the ACWL also provides significant training capacity in another language, their office can proto government officials, which is an activity that at vide that. least the top all law firms typically do not consider as sufficiently lucrative. Given that the ACWL’s Additional languages can certainly be an asset, and work is not subject to a commercial imperative, the they can certainly influence your career and your ACWL does not actively seek out work, e.g. by pro- market value. My Spanish skills have enabled me posing potential disputes to member governments. to litigate a case entirely in Spanish, and probably (This passive role is also necessary for other institu- 30 per cent of my work at the Centre is in Spantional reasons, e.g. to ensure continued support by ish. My Portuguese skills came in handy for another the developed country Members). case I did several years ago. Generally, a law firm in my field may choose one applicant over another I like the public service aspect of the ACWL’s work. because she speaks the language of an important I think it is a unique institution, one that confers client or sets of clients. greater legitimacy on the system as a whole, and I like the idea to be contributing to that special insti- But it is also easy to overestimate the importance tution. I suppose also, on average, that the ACWL of foreign language skills, on average. I am not sure ensures a better work-life balance than a law firm my career – or those of the bulk of WTO practitiondoes. However, when you are in the middle of a dis- ers that I know – would have been radically differpute, there is not much of a difference in the hours ent if they spoke a language more or less. you have to put in at a law firm or at the Centre. For students reading this interview, I would say: Lawyr.it: Your original training was in economics make sure your English is impeccable and sophistiand your first contact with law was the LL.M. pro- cated, whether oral or written. That is true for any gramme in international economic law and policy international practice of law, whether EU law, comat IELPO. What made you choose a career path in mercial or investment arbitration, EU anti-trust or the legal field and what are your plans for the fu- WTO law. If on top of that, you are professionally ture? functional in other languages, it can be helpful and it will also enrich you at the human level. But do W. Z.: This decision originates from my passion for not overestimate the return on your investment. In the multilateral trading systems. Being an econo- any event, if you plan to invest in another language mist, I strongly believe in open trade. WTO, being and you are interested in the international trade the only multilateral institutional setting to enable law, I recommend for example Russian or Chinese. open trade, was my focus of research during my Whatever extra language you decide to learn, make master’s degree in economics. After some years of sure you learn it really well – your employer will studying and working, I realised that in order to not care that you can order a drink or have a basic better understand the system, I need systematic conversation, they will want you to be able to read training in law because the WTO is, after all, a body and draft and negotiate in it. of law. This is why I decided to join the IELPO and finally end up practicing trade law. Lawyr.it: You have an extensive background in 23
Professional Spotlight international law, as well as a long experience in teaching and leadership. What is your opinion on the current state of WTO Law education in both Europe and the rest of the world? Would you change anything? R. R. H.: Unfortunately, it is not very good. WTO courses are not systematically taught in law schools (when they are offered at all!), where WTO law is not included in the normal curricula. Students interested in developing their knowledge of WTO often have to look for elective courses, which in some schools are available only during the last year of studies, or wait until the end of their studies to do a Master’s Degree such as the IELPO in the Universidad de Barcelona.
Thirdly, the venue was perfect. The place where we had the classes was great and very comfortable. Really first class. And of course Cluj. What a beautiful city it is! It offers students a high variety of activities after classes and this only increases the quality of the WTO Summer Course.
J. B.: The students responsible for the Summer School deserve a huge compliment. The organisation was not only flawless – it went far beyond the call of duty. The committee and all those involved made sure everybody felt taken care of, they paid attention to so many details – I was very impressed. Indeed, this has been my consistent experience in Cluj-Napoca, whether with the Moot Court or the Summer School. I realise that every organising committee does their own work and does not Due to the peculiarities of the discipline, I will sug- necessarily build on the work of their predecessors. gest to include WTO courses as elective courses to So the success of each event is the merit of each be offered maybe during the last year of studies. organising committee and the people that work on that event. But there is consistency and continuity in the tradition of organising extremely well such “For students reading this in- events. That is also the reason why I like to come back to Cluj.
terview, I would say: make sure your English is impeccable and sophisticated, whether oral or written.”
At the individual level, I am also very impressed with the professional and human qualities of the students that I have encountered over the years, including in this Summer School. They are cosmopolitan, seem very competent, speak excellent English and other languages, and engage very naturally Lawyr.it: What can you tell us about your expe- with the speakers. I wish I had been like that when rience at the WTO Law Summer School in Cluj- I was a student. Napoca this year? W. Z.: First of all, I was impressed by the organisaR. R. H.: I can only say positive things. Firstly, I was tion of this event. As a student-run initiative, I was very impressed by the high degree of professional- surprised that everything was organised in such an ism, enthusiasm and commitment shown by all of efficient and pleasant manner. I felt like home in the members of the organising committee. This Cluj thanks to the enormous efforts made by our made our stay in Cluj a very pleasant one since eve- Cluj hosts. rything had been organised for us to the last detail. Second, I was impressed by the composition of this Secondly, I was very favourably impressed by the year’s students. They were very well chosen – inquality of the participants and their interest for telligent, committed, active and lovely. I was even the discipline. The discussions we had during the touched by the friendship they developed through classes were very interesting and educational. This this one-week course. I believe all of them will have only shows that they took their participation in the a promising future. Summer School very seriously, and this was reflected in the high scores we had in the final exam. The Third, I felt grateful for my co-speakers. I learnt a students were very receptive during the courses and lot from them and it was a great pleasure working showed what teachers value highly: intellectual cu- with them. riosity and interest in the discipline. 24
Last but not least, I was impressed by Cluj – a city with history, culture, good food and warm people.
Who knows – maybe you will discover that you do not like the day-to-day of a human rights advocate or the bureaucracy in international organisations Lawyr.it: You worked on a project aimed to assist that deal with human rights. If you think arbitraChina’s implementation of its WTO commitments. tion appeals to you, try to intern first in a firm that What are, in your view, the most important ben- does arbitration first before you do an LLM focused efits of China’s membership in the WTO? on arbitration. Who knows – maybe you will discover you do not actually like large-scale litigation, W.Z.: Very briefly: China’s membership in the but prefer transactional work. WTO helped China to consolidate the results of its domestic economic reform since late 1970s. Second, when applying for jobs, do not excessively focus on a particular organisation, e.g. an intergovEconomically, China’s producers benefited from ernmental organisation or a Ministry within your an open global market (through tariff conces- government. Focus on getting a job where you work sions made by other WTO Members); and at the with good people, where you can develop well as a same time, China’s consumers also benefited from professional, within your desired field, where you larger consumption varieties from world suppliers will be able to assume responsibility, where you can (through tariff concessions made by China). In grow and hone your skills as a legal professional. other words, China and the rest of the world benefit You can always get later into your preferred organifrom China’s WTO membership in a mutual man- sation: e.g. getting practical, hands-on experience in ner. your national government, and only later going to an international organisation that today seems like Lawyr.it: What would you say is your proudest the most desirable place, can be much better than achievement in the field of international trade starting in a bland bureaucratic job in that internalaw? tional organisation. Obviously, it all depends on the particular circumstances of each case, though. R. R. H.:I would say is to encounter former students of mine working in the field of WTO law, or W. Z.: I believe through the years of legal study, doing a LLM or Masters’ Degree in this field. It is law students must be very familiar with some of always very gratifying when the students say that the most important capacities to obtain, e.g. to dethey have decided to develop further their knowl- velop a good sense of reasoning. For students who edge of WTO related matters after taking one of my want to specialize in international economic law, I courses. Being able to transmit the passion I feel only have one particular advice. I would encourage for this discipline to young people is my proudest them to broaden their scope of knowledge. For exachievement. ample, some acquaintance with economics and international relations will help them understand the Lawyr.it: What advice would you give to law stu- rationale behind the shaping of law. After all, the dents? WTO is not all about law – it is a result of the batJ. B.: I suppose any advice I can pretend to give is tle between commercial interests vis-à-vis political necessarily geared towards those who are interest- compromises. ed in pursuing international legal careers and are asking themselves how to go about it. Perhaps two points.
R. R. H.: Study hard, and work harder. This is the only way they will succeed professionally. But do not forget to have fun from time to time, and enjoy First, seek to define a field you are interested in, but life. Try to reach a balance in this respect. And albefore you invest time and resources in that field ways keep in mind how the song goes: ‘a little party (e.g. an LLM), make sure your interest is not pure- never killed nobody.’ ly abstract and driven by an image of yourself, but By Ana Pintea and Raluca Alexandra Maxim rather is an interest based on some practical experience. E.g. if you think you are interested in human rights, try to do some internships in that area before you do an entire LLM focusing on human rights. 25
Best of... DEVIL’S ADVOCATE
DEVIL'S ADVOCATE Has the International Criminal Court (ICC) failed?
This issue's advocates: PROs: Jamie Brown Jamie is a graduate student with an LL.B from the University of Groningen in the Netherlands. He is currently taking the LL.M in International Criminal Law at Columbia Law School and the Amsterdam Law School. He is currently doing an internship with the Coalition for the International Criminal Court office in New York City.
CONs: Maria Manolescu Maria is a proud graduate of the Law Faculty of Babes-Bolyai University (2012). She has an LL.M. in International Law from the Sorbonne University in Paris, France and recently obtained her Advanced LL.M. degree in Peace, Justice and Development at Leiden University in the Netherlands. She is currently working as a Case Manager at the International Criminal Court.
Debate Foreword. Moderator's note Dear readers, The following debate questions the effectiveness of the International Criminal Court (ICC), which was created in 2002 to bring justice to the victims of war crimes, crimes against humanity, genocide and crimes of aggression. At its creation legal scholars, politicians, diplomats and victims were hoping that this institution will be able to truly fulfill its aims. After 12 years and only 2 convictions, and after failing to start investigating the perpetrators of current armed conflicts, the international community starts to assess if its existence it is beneficial for the victims and if the ICC is capable to investigate these crimes shortly after they are committed. Keep reading to discover some very interesting arguments from two uprising specialists in international criminal law! 28
By Andreia Moraru
Opening Remarks Jamie Brown: The International Criminal Court has failed. It has failed in its ultimate goal of ending impunity for war crimes and crimes against humanity. It has failed in its task of prosecuting the worst international criminals effectively and expeditiously. It has failed to dissuade more violent and ruthless people from committing atrocities. It has failed to foster judicial reform where it has been most desperately needed. It has failed to fulfil its purpose as a court of last resort and assist countries in prosecuting war criminals. Worst of all, it has failed to inspire hope that there can be justice for all. Twelve years of experience later, it is high time to admit that the ICC experiment is not working. The ICC’s institutional arrangement is weak and in need of serious reform. A domestic court should be independent and impartial, subject to the political whims of none. But this is not the case with the ICC. The procedure may be initiated either by a state itself, by the Prosecutor or due to the UN’s referral. The latter though is problematic to say the least. There are many individuals in non-signatory States that have engaged in horrific acts of state-sponsored violence and atrocities. But since the ICC has subordinated itself to the Security Council, and therefore the accursed P5 veto, there will be no justice. A state and its officials can practically guarantee themselves impunity by being allies or strategic partners of the Great Powers. A friendless state like Libya gets referred by Security Council resolution, but attempts to refer a non-signatory state like Syria to the ICC will be blocked by Russia and China. So despite a convincing body of evidence that some serious atrocities occurred during the Syrian Civil War, the worst Syrian offenders will be granted effective immunity from prosecution because the Security Council can tie the ICC’s hands.
Maria Manolescu: Arguing that the ICC has failed might seem a little too bold. Though I completely agree with my opponent’s claim that the ICC’s mechanism needs improvement, efforts must be directed towards its improvement and not dissolution. My opponent argues that the Court is neither independent, nor impartial. On the contrary, the ICC has not subordinated itself to the Security Council, mainly because its jurisdiction does not depend entirely on the aforementioned body. As Jamie points out, the prosecutor has the power to commence an investigation, without referral from states or from the Council. This power is limited to those states that are parties to the Statute, therefore the Prosecutor could not have started an investigation in Syria without either Syria’s or the Council’s referral. I do believe that the Council’s decisional system needs improvement when it comes to referrals to the ICC. For example, the prosecutor should have the power to submit a proposal for referral to the Council; the latter, after consulting the Prosecutor, should adopt a generally valid list of criteria based on which decisions on referrals would be taken. The Council would still have the power to reject such a proposal, but its political accountability would be more evident. Such an important decision that might determine the infringement of a state’s sovereignty should not be at the authority of the Prosecutor.
Discussions on any international court cannot be separated from politics. International Law and politics are intertwined and interdependent. International Law is made by the states and they are also the ones that need to abide by it. However, no international mechanism that could infringe a state’s sovereignty can be brought into existence without the explicit consent of that state. The ICC is the creation of a treaty signed by states and only those who committed themselves to the Rome Treaty are bound by it. Considering that the ICC must work in tandem with Thinking otherwise would be like deploring that the its member states, being entirely reliant on their as- European Court of Justice does not settle disputes in-
DEVIL'S ADVOCATE sistance in the arrest or extradition of criminals, the Court has not exactly cultivated a strong network of friends and supporters among non-Western aligned states. As a result of the botched prosecutions and its African focus, the ICC has failed to gather support from several African leaders, most of them blaming it for being a modern day tool of colonial power. The ICC has failed to play the diplomatic game properly, it has squandered its goodwill and, as a result, its friends have not backed it up when it needed the most. Impunity for the worst crimes is in desperate need of being ceased and yet the ICC is doing nothing in this regard. A permanent, global, centralised court might simply be too distant, too slow and too weak to be effective. During its twelve years of existence, the ICC has only completed two cases, neither of them free from accusations of controversial procedures and questionable judicial standards. One might argue that these are simply teething problems and that the ICC is still following its evolution course, but yet there is still doubt upon what actual good the ICC has ever done. The pessimist in me thinks that these early problems are more than mere teething, suggesting instead a more severe dysfunction that would eventually deprive International Criminal Law of any voice in the legal arena. It is therefore my deep seated belief that it is high time to admit that the ICC is not effective and that alternatives must be sought.
volving Asian states. Would an ICC with global jurisdiction be preferable? Of course. My opponent is right when arguing that a lot more effort and perhaps a different approach need to be taken by the ICC in determining more states to ratify the Rome Treaty. While such an ideal global court could also be achieved through a Security Council resolution, I believe politics makes this path unlikely in the near future. In conclusion, I agree improvements need to be done in the way ICC works, to its administrative mechanisms, the procedure, delays, and so forth, as well as in what its diplomatic approach to new potential parties of the Rome Statute is concerned. Where I disagree fundamentally is that the ICC has failed entirely and that we would be better without it. Yes, cases have taken a long time, but we should not lose sight of the nature of crimes the court tackles; crimes against humanity, war crimes and genocide are not simple affairs, therefore expecting the ICC to decide on such intense and complex matters in a short time does not seem adequate. What should be borne in mind is that the Court has been dealing with several important situations of core crimes and it thus ensures justice is delivered to victims and the perpetrators are confronted with their acts. If we do not opt for improving the way the ICC works, we are left with two choices: no justice at all or waiting for a court with global jurisdiction, which is by no means foreseeable in the near future. It is thus better to take a step towards impunity, rather than none. For these reasons cited above I submit that consumer disputes must be non-arbitrable and that such disputes should be submitted exclusively to courts.
Moderatorâ€™s Note: By now, we have learned from our debate that the ICC is the first permanent criminal court and that its jurisdiction is limited to the state parties if the Rome Statute and it complements the national jurisdiction. Both sides believe that the ICC is an institution that still has to improve in many ways. However, Maria argues that its effectiveness should not be judged according to the number of convictions, but according to its mechanisms, quality and thoroughness of the prosecutorsâ€™ office activities, etc. Conversely, Jamie believes that ICCâ€™s mechanisms do not work properly, as it is far too dependent on the UN Security Council and failed to gain credibility in the former colonies. 30
Rebuttal Jamie Brown: Although I admit that the ICC should be subject to improvement, I neither agree that there are no real better alternatives, nor do I think that we would erase all progress by doing so. With all due respect to my opponent’s arguments, some of them reminded me of what the ICC is on paper, which does not always represent what it actually is. Firstly, let us address the issue of just what we are basing our critique upon. As Maria has pointed out, it took the ICTY about four years to conclude a judgement. However, a cursory glance at the ICTY concluded cases list reveals that the court managed to get through 61 cases. A similar number shall be encountered in the ICC’s activity, with about 51 cases concluded. If we are going to argue that there are few better alternatives, then what basis do we argue this upon? It is quite clear that a centralised institution is incapable of dealing with a weighty case load in a similar manner to a specialised court or tribunal. The ICC is considerably behind in judicial expediency, despite its limited case load. Maria points out that the role of a court is not limited to conviction. Indeed, but the ICC is rather a special court. Given the role of the Prosecutor and the importance of going after the worst offenders, there should be a high probability of conviction for indicted fellows, otherwise there would be no point in initiating proceedings. Thus, the quality of the judges, the prosecution and the counsels does depend on the number of convictions. There are a lot of people deserving to be prosecuted and convicted by the ICC and the extremely low number just reveals the incompetence. Secondly, I do not think that reforming the court would annul the work done so far and I doubt that this would be an unfortunate outcome. If we were to think what we have truly gained in the past 12 years, I think that would actually be how not to do it. Coming to accept the hard truth that the ICC is failing, then we will at least learn from that failure
Maria Manolescu: Arguing that the ICC has failed might seem a little too bold. Though I completely agree with my opponent’s claim that the ICC’s mechanism needs improvement, efforts must be directed towards its improvement and not dissolution. My opponent argues that the Court is neither independent, nor impartial. On the contrary, the ICC has not subordinated itself to the Security Council, mainly because its jurisdiction does not depend entirely on the aforementioned body. As Jamie points out, the prosecutor has the power to commence an investigation, without referral from states or from the Council. This power is limited to those states that are parties to the Statute, therefore the Prosecutor could not have started an investigation in Syria without either Syria’s or the Council’s referral. I do believe that the Council’s decisional system needs improvement when it comes to referrals to the ICC. For example, the prosecutor should have the power to submit a proposal for referral to the Council; the latter, after consulting the Prosecutor, should adopt a generally valid list of criteria based on which decisions on referrals would be taken. The Council would still have the power to reject such a proposal, but its political accountability would be more evident. Such an important decision that might determine the infringement of a state’s sovereignty should not be at the authority of the Prosecutor. Discussions on any international court cannot be separated from politics. International Law and politics are intertwined and interdependent. International Law is made by the states and they are also the ones that need to abide by it. However, no international mechanism that could infringe a state’s sovereignty can be brought into existence without the explicit consent of that state. The ICC is the creation of a treaty signed by states and only those who committed themselves to the Rome Treaty are bound by it. Thinking otherwise would be like deploring that the European Court of Justice does not settle disputes in-
DEVIL'S ADVOCATE and hopefully build a more successful system for volving Asian states. prosecuting the worst crimes. Would an ICC with global jurisdiction be preferable? Alternatives need to be sought. I tend to question Of course. My opponent is right when arguing that a my opponent’s claim that national systems are best lot more effort and perhaps a different approach need for international crimes, as if a court that truly dis- to be taken by the ICC in determining more states regards official capacity and prosecutes leaders is to ratify the Rome Treaty. While such an ideal globwanted, then it cannot be left up to the national al court could also be achieved through a Security court systems. Instead, attention should be paid to Council resolution, I believe politics makes this path past attempts like the Nuremberg Trials, the ICTR, unlikely in the near future. and the ICTY. These have shown that specialised, decentralised courts can work far better than the In conclusion, I agree improvements need to be done ICC. Why not continue with the model, which has in the way ICC works, to its administrative mechaproven itself to be far more successful? If we have nisms, the procedure, delays, and so forth, as well lost the ability to set up further such specialised as in what its diplomatic approach to new potential courts because of the ICC’s existence, then the ICC parties of the Rome Statute is concerned. Where I disagree fundamentally is that the ICC has failed is not just failing, but blocking justice. entirely and that we would be better without it. Yes, So the ICC rates badly in comparison to similar cases have taken a long time, but we should not lose courts, it cannot reliably gain convictions, and it sight of the nature of crimes the court tackles; crimes may be a block to superior alternatives. We must against humanity, war crimes and genocide are not eventually ask ourselves not only if ICC was indeed simple affairs, therefore expecting the ICC to decide a gain, but as well if it was not rather a loss. on such intense and complex matters in a short time does not seem adequate. What should be borne in mind is that the Court has been dealing with several important situations of core crimes and it thus ensures justice is delivered to victims and the perpetrators are confronted with their acts. If we do not opt for improving the way the ICC works, we are left with two choices: no justice at all or waiting for a court with global jurisdiction, which is by no means foreseeable in the near future. It is thus better to take a step towards impunity, rather than none.
Moderator’s Note: In the second part, both opponents affirm that the ICC’s mechanisms can and should be improved. However, Maria states that the role of the UN Security Council in the commencement of an investigation is necessary and that is hard to separate international law from politics. In opposition, Jamie argues that the ICC has failed as a centralised court and alternatives must me sought, especially since we have witnessed examples of specialised courts with much better results than the ICC. I hope you enjoyed this lively debate and managed to form an opinion of your own!
Closing Remarks Jamie Brown: Having weighed the arguments, one may be eager to come to a conclusion. Drawing it at this point would be counterproductive though to the issue at hand: figuring out where to go next. For the above given reasons, I believe that the ICC needs to be reformed. If it cannot be reformed, then sadly it has to be abolished and alternative means of securing International Criminal Justice must be sought.
Maria Manolescu: According to the Statute, the PreTrial Chamber must find reasonable basis to authorise an investigation. For an arrest warrant to be delivered, reasonable grounds to believe the individual committed the crime he or she is accused of should exist; for the charges to be confirmed, the grounds need to be substantial, whereas the Chamber needs to be convinced beyond reasonable doubt in order for the accused to be sentenced.
My opponent brings some good responses to the table and states her arguments well. It is as she said: International Law and International Politics are intertwined and interdependent, but my main point still stands: the ICC is bad at law and even worse at politics. Treaty observance issues abound and the signatories are doing as little as possible to uphold the Rome Statute. Though I do not underestimate the ICC’s efforts of ending impunity for the worst crimes and criminals, the international community should push for alternatives, perhaps more specialised courts and tribunals. After 12 years of performance, the ICC is not living up to its promise and nor is its future very promising.
Accepting the argument that there should be a high probability of conviction does not only disregard the statutory provisions, but it completely ignores the principle of presumption of innocence. Suggesting that the number of convictions reflects the judges’ character is preposterous – claiming that a judge is bad because he or she does not convict people is against the very idea of justice. Regarding the question of why not continuing with the ICTY/ICTR model, the feedback cannot be but negative. The Security Council will not grant global jurisdiction to a Court when its members will surely be investigated. The Council should be reformed and a universal Court would be best; but this is currently unrealistic. Denying the possibility of justice over heinous crimes in 122 countries, instead of improving the system, would be a failure of the international scene. What I am advocating for is a reform that focuses on improving the working of the Prosecutor’s office and developing diplomatic means to increase the number of parties.
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