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Legal Researchers Angeliki Tsanta (London School of Economics and Political Science) - Coordinator Albana Karapanco (Central European University) • Alex Grădinaru (University of Exeter) • Alin-Ionuț Badea (University of Bucharest) • Andreea Cucos (Amsterdam University) • Angalit Siedentop (University of Debrecen) • Dajana Krajinovic (University of Belgrade) • Daniela Toma (Babeş-Bolyai University) • (Georgiana Caramihai (University of Bucharest) • Heraclea Giannakou (Aristotle University of Thessaloniki) • Karolina Zamankou (Aristotle University of Thessaloniki) • Mădălina Enea (Alexandru Ioan Cuza University) • Mirela Morar (Babeş-Bolyai University) • Sarka Silhankova (Masaryk University) • Vasiliki Fasoula (University Paris II Panthéon-Assas) 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 firstname.lastname@example.org at any time.
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EDITOR'S NOTE By Alex-Cătălin Sabău
A s we are already two months into 2017, we are excited to present you our latest issue, the 13th, which we hope is going to make a positive impact on you,
our readers. A lot has happened between the autumn edition and this one, the most important thing being the completion of our team during the open call. We believe that Lawyr.it is more than an online law journal; for us, it is a team, a hard-working group of students that are devoted to the same goal, of presenting interesting topics with each and every issue, while also trying to be direct about the current global state of affairs and presenting all the facts.
We have also celebrated four years of Lawyr.it, time in which we have been constantly trying to improve ourselves while also delivering quality content time and time again. And for that, we have to thank you, our readers, for being with us until now and hopefully in the future as well. I, personally, have been part of this amazing team for one and a half years now and I am really proud of what we have managed to achieve during my time here. And yes, we are always looking to deliver more and more new stuff, trying to be as responsive to your questions as possible, trying to incorporate all sorts of articles into our issues, and most importantly, trying to evolve. That is why I see us growing with each year passing, I see us having more and more team members from all over Europe and maybe from other continents too, I see us delivering content for all preferences, I see us doing a hard-copy version of our issues in the future (if you would be interested in that), and many more things. This is why this is from students, for students, and many other people. In this edition’s Domestic Focus, we will concentrate on a different range of subjects, rather than focusing on just one major topic. Moreover, these articles are extremely diverse, ranging from Romanian Tort Law to an economics-like view of the social security, while also addressing the civil and criminal consequences of owning a guard dog for protection. Halfway through our journal you will find the Reflections piece, which is by far our most forward and direct fragment of research on many different themes. It will ‘put under the microscope’ the forensic view on writing and how can authorities identify individuals based on their handwriting, while also addressing more ‘futuristic’ issues, such as the domain name system and how are countries trying to combat cybersquatting. Additionally, it tackles different perspectives on just causes of war and corporate responsibility with concrete and actual examples which provide a fresh and exciting view. The International Focus section also approaches some sensible points regarding the International Law stage, such as data surveillance issues, a topic that has been a nerve-wracking point on the agenda of many global powers for the past few years. Furthermore, this segment also calls up for discussion hot subjects like the current global regime of civil nuclear liability, or the present global regulations regarding extradition and other forms of illegal rendition. On this issue’s Professional Spotlight we are talking with Miss Irina Negruțiu, a Lawyr.it Alumni and a former Criminal Procedure Teaching Assistant at ‘Babeș-Bolyai’ University in Cluj-Napoca, who has recently got admitted to the National Institute of Magistracy (the INM), about her passion for the field of law, what fuelled it, and many more interesting subjects. As you may already know, our Question of the Issue is a perfect way to get in touch with opinions from different people, such as lawyers, students, and others that are invested in the law. This issue’s question focuses on their favourite subject whilst they were studying the law. And last but not least, the Devil’s Advocate section is tackling an exciting topic, that has been on the minds of many people for the past year or so, the possibility of social media networks to be sanctioned regarding false news of great public interest. This is all debated from the perspectives of two young students concerned about the current state of affairs. To end this on a positive note, we, the Lawyr.it team, want to wish you a great 2017, full of joy and accomplishments. We hope that you will keep following us this year because all this would not be possible without your help and excitement, and for that, a gracious ‘Thank you’. Enjoy the read! 4
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IN THIS EDITION Briefing Brexit – The search for salvation on a dead-end road (p.8) Opportunities for law students: what’s next (p.10)
Domestic Focus Choosing a guard dog for protection. Possible consequences in the field of criminal and civil liability (p.14) The Abuse of Right. A Concept between Tort Law and Breach of Contracts (p.18) The State Bank of Social Security (p.21)
Reflections CSR policy development: Is it better to prevent by regulating or to repair? CSR policies and impact on corporations in the light of the BP Horizon Water case (p.28) DNS – the US strategies and Romanian incentives to combat cybersquatting (p.33) A Forensic View on Writing (p.39) Jus ad bellum. Benchmark of concepts – just causes of war – for analysing a contemporary ongoing conflict (p.44)
International Focus Implications of mass surveillance in light of the General Data Protection Regulation (p.50) The impossible global regime of the civil nuclear liability (p.54) Telling the Difference between Extradition and Other Forms of Illegal Rendition (p.58)
Professional Spotlight Question of the Issue
Interview: Irina Negrutiu, National Institute of Magistracy (p.64)
Question of the Issue What was the most difficult subject for you as a student? (p.72)
Devil's Advocate Should large social networks (Twitter, Facebook, etc.) be sanctioned for allowing fake news of great public interest to be posted and shared? (p.80) 5
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GUEST ARTICLE Brexit – The search for salvation on a dead-end road A referendum is often portrayed as the means to redeem a basic principle of democracy: allowing citizens to take the future into their own hands. In order to expose the opinion of British citizens, the Brexit implied simplifyAdam Burt ing an enormously complex topic to a yes or no question, reducing any informed debate to propaganda and the mass media. But the idea was flawed from the very beginning: the debate around Brexit was so multifaceted that one cannot hope to fully appreciate and understand all the factors necessary for a reasonable and adequate consideration. Such complexity warps the intelligence behind any decision into a judgment easily clouded by emotion, politics and figments of isolated knowledge. The engaged British observer might have known the basic impact Brexit will have on the UK economy; falls in Sterling and the FSTE, cranking interest rates, a drop in house prices; all confirmed by the realization of an exit vote. However, when detailing exactly how much the FSTE would drop, or exactly how much interest rates would rise, ambiguity begins to creep in. Even the most pessimistic forecasts failed to predict an overnight 30 year low on the Sterling. If banks and economist groups
could not pinpoint the economic impacts of a Brexit, what hope does the average voter have? And yet, it is this very individual who is responsible for making the final decision. As of 2013, the EU accounted for 43% of foreign direct inward investment in the U.K, a figure that had remained relatively stable over the past decade. At face value this is an obvious indicator for a ‘remain’ vote; however, on more detailed analysis, EU investment has decreased by over 70% since 2005. So perhaps leaving the EU will not have such an impact on FDI because investment from the EU is decreasing anyway. Nevertheless, 2005 was a peak year for FDI in the UK, having doubled since 2004, meaning comparing FDI in 2013 to 2005 versus comparing it to 2004 will give very different results. Considering the guesswork required in predicting not only the terms of a Brexit negotiation, but the impact they will have on overall FDI, 5, or even 10 years down the line, this decision seems impossible. Another area of ambiguity concerns the true figure of UK contribution to the EU. While the EU gives £4.4bn back to UK firms and households through various common policies, the UK makes a £13.7bn means tested contribution to the EU and a £2.3bn contribution from VAT receipts totaling £16bn (2014/15). However, this figure is far from final: the math gets more complicated when you take into consideration the £4.6bn rebate and the £0.8bn duty collection fee, both returned to the UK, which, after subtraction, lead to a total figure of expenditure of £10.4bn. This number does not even consider the additional £3bn in cus-
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toms duties that the UK might retain, and the for advice. Perhaps it is no coincidence that potential trade agreements the UK might en- once the proverbial prisoner escaped, both ter into, reducing the true sum to actual guess- men turned their backs. work. The consequences are obvious. Mass market Moreover, one must consider some of the more volatility, record FX lows for the pound, and obscure aspects of the referendum debate. For forecast recession - the aftermath of poorly example, UK universities are the beneficiaries applied democracy. Moreover, the demise of of EU funded academic research grants. In fact, parliament, galvanization of one party politics the House of Lords Select Committee for Sci- and social divide that has ensued will make ence and Technology quote 18.3% of EU-UK history. Global markets have taken a beating funding is for scientific research and develop- and populism in the Union has never been ment. An exit vote not only jeopardizes future stronger. funding, but might restrict academic mobility. So what to draw from all this? Referenda ask Nonetheless, this figure is only an approximaindividuals with no specialist knowledge to tion. Furthermore, if an independent Britain make a decision on an extremely complex were to become an ‘associated country’, it may question that no individual can be expected be able to secure academic funding, although to make. Britain must now make the best of this seems unlikely under May’s government. its newfound ‘autonomy’ and negotiate what The above contrast is yet another example that trade deals it can. Talks of negotiations with illustrates the nature of the Brexit mosaic and China are already beginning to surface and reduces all arguments to, once again, guesswill no doubt progress once Article 50 is fulwork. Even now, half a year, a US presidential filled. Meanwhile the Union and each indielection, a new Prime Minister and a 12 point vidual State must turn and face the populist action plan later, we are no closer to knowing clamor given voice by the Brexit, as May cerwhat the future holds for Brexit. tainly did in her “12 point plan” speech, perIf individual assessment of the myriad of data haps a little too much. The future is impossirequired to achieve a calculated answer to ble to predict, but one certainty can be derived the Brexit question was not complex enough, from the events of the past months: referenda politicians made the task infinitely more diffi- cannot and should not be the used for comcult with propaganda, misdirection and scare- plex decision-making, or, at the very least, a mongering. Leaving the EU was likened by revision of their application is imperative. leave campaign figurehead Boris Johnson to By Adam Burt a ‘prisoner escaping jail’; whilst UKIP leader Nigel Farage voiced the slogan ‘we want our Trainee Associate at OPL Attorneys (Budapest, Hungary) & Student at University of Surrey country back’. The UK is clearly not a prisoner (United Kingdom) of the EU as Article 50 indicates, nor is it in the possession of the EU as Farage seems to believe. Such statements are by their very nature ridiculous, but made by political figureheads whom much of the public will have looked to
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BRIEFING Opportunities for law students: what's next March March 6: Interdisciplinary workshops “Subjects and Objects of Law” The Centre for Law & Social Justice at the University of Leeds School of Law and the Vulnerability and Human Condition Initiative at the Emory University School of Law are launching a new series of interdisciplinary workshops aimed at exploring topics related to the Subjects and Objects of Law. The first meeting, on May 31, 2017 will take place in the Moot Court Room of the Liberty Building, University of Leeds, will focus on the legal construction of animals. Participants from all scholarly and activist disciplines are invited to explore history, conflicts and debates around the inclusion/exclusion of animals within the category of legal persons.The deadline for abstract submission is March 6, 2017. March 15: International Investment Law & the Law of Armed Conflict - Call for Papers The Colloquium on ‘International Investment Law & the Law of Armed Conflict’, organised in the context of the Investment Law Initiative, is awaiting submissions for papers.The Colloquium will be taking place at the National and Kapodistrian University of Athens, Greece on October 5-6, 2017. Senior and junior academics and practitioners (including PhD candidates and post-doctoral researchers) are invited to send an anonymous abstract and a CV by March 15. Selected final papers will be published by Springer, subject to peer review, in the Special Issue of the European Yearbook of International Economic Law (EYIEL) on ‘International Investment Law & the Law of Armed Conflict’.
Forum Conference, which will be taking place at the Frederiksberg Campus, University of Copenhagen, Denmark on August 30 - September 1, 2017. The Conference’s theme is ‘Sustainable Management of Natural Resources–Legal Approaches & Instruments’. The themes are: 1) water management, 2) biodiversity and nature management, 3) air quality management, 4) raw materials and waste management, 5) Ecological sustainability: fundamental questions and implications for environmental law and governance. Interested senior as well as junior researchers, including PhD scholars and practitioners are invited to submit abstracts which have a European perspective or relevance by March 17. May May 1: Transparency International School on Integrity The Transparency International School on Integrity (TISI) will be held in Vilnius from July 10-16, 2017, at the Mykolas Romeris University student campus. The School on Integrity focuses on anti-corruption and accountability, giving the opportunity to future leaders to implement their ideas in practice. It aims to create an ‘integritybuilding’, ‘peer-to-peer learning’ environment through lectures, seminars, trainings and field trips. The deadline for scholarship applications is May 1, 2017. Non-scholarship applications can be submitted until May 15, 2017. The fee is EUR 600 and includes tuition, course material, accommodation, meals and extra-curricular activities. June June 12: Nelson Mandela Human Rights Moot Court Competition 2017
March 17: European Environmental Law The 9th Nelson Mandela Human Rights Moot Court Competition due to be held in Palais des Forum - Call for Papers Nations, in Geneva, Switzerland on July 18, 2017. The 2017 Annual European Environmental Law The competition involves a written phase after
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which teams are selected for the oral phase. Teams argue a hypothetical case on issues of international human rights law before a hypothetical Human Rights Court, on the basis of the International Bill of Human Rights and other applicable (including regional) human rights instruments. Participation is open to both undergraduate and master’s degree law students from all universities in the world. The deadline to register is June 12, 2017.
transcript or list of courses taken and, if available, a brief sample of research work in English or French. Internships usually cover a period of three months, from January to March, April to June, July to September and October to December. The deadline for applications for the January to March internship period is on September 30 of the previous year, while applications for the April to June period must be submitted by December 31.
DELI Call for Papers on Brexit
Durham European Law Institute (DELI) and Global Justice Durham invite academics, practitioners, researchers and advanced students with an interest in any field of EU law to submit contributions of 1500 to 3000 words examining all aspects of the recent decision by the British people to leave the European Union. Submissions can be emailed to Andreas Georgiou at email@example.com and Tom Sparks at firstname.lastname@example.org and will be published on the DELI Blog on a rolling basis.
The Model United Nations conference Euromun will take place April 26-30, 2017 in Maastricht and will host simulations of UN, EU and NATO committees. The committees include the European Parliament, EU council, UN Security Council, UN Economic and Social Committee, General Assembly 2nd Committee, NATO North Atlantic Council, African Union Assembly, UN Environmental Program, UN Global Compact, UN Human Rights Council, World Bank and WHO Assembly. Interested applicants have to submit a motivation letter along with their committee and country preferences. Participants can also opt to take part in a Brussels city trip, May 1-4, where they will also have the possibility to visit EU institutions. International Tribunal for the Law of the Sea Legal Office Internships
Become an EST Ambassador The European Student Think Tank Association invites youth from EU Member States, as well as from European countries that are currently applying for EU Membership, belong to the European Economic Area or have connections to the European Union to sign up for the position of EST Ambassador. The chosen participants will responsible with promoting the EST in their countries, as well as organising different events and building a network of contributors among students. Candidates should excellent English knowledge, as well as good written, verbal and social skills and be familiar with the higher education system of the country that they will represent. Ambassadors must also currently live in the country they represent.
The International Tribunal for the Law of the Sea in Hamburg offers approximately twenty internships each year for young government officials or students who have completed at least three years of university studies and are able to contribute to the work of the Tribunal in fields such as the law of the sea, public international law, international organisations and international relations. Interns of the Legal Office are expected to carry out research on a variety of legal issues and prepare memoranda and reports. Interns are not paid, unless funding is awarded from the Trust Fund. More opportunities can be found on www.lawyr.it, To apply, candidates must submit a completed in the Opportunities rubric. application form, attaching their résumé, grade
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DOMESTIC FOCUS Choosing a guard dog for protection. Possible consequences in the field of criminal and civil liability The present article aims to single out the legal implications of the situation in which a person decides to acquire a guard dog in order to protect himself/herself from possible threats. Staying alive is our basic daily task. Therefore, not surprisingly, humans Sabrina Matei resort to a multitude of mechanisms for protection in order to feel safe. The argumentation will be built by analysing a particular case that raises legal issues in the field of both criminal and civil liabilities in the Romanian legal system. I propose the following case. Let us picture X, a person who decides that the following night, he/ she will climb over the fence of a random household and will enter the house while the owners are asleep in order to steal some assets. X carries through with his/her criminal resolution and inconspicuously arrives at the gate of the chosen house. He notices that on the gate a fluorescent warning sign was placed, saying: ‘Beware! Dangerous dog! Enter at your own risk!’. X did not count on the dog and did not bring any weapons, but decides to carry out the plan, being fairly certain that he would manage to avoid stirring the animal. However, his attempts are without luck and the chained animal is more ferocious than expected. Feeling threatened, the dog charges for the thief. Eventually, X dies as a result of the canine attack.
The first question to be raised is: according to Romanian law, is there someone to be held accountable for the demise of X? If so, who and on what legal ground will this person be held liable? Before answering these questions, let us focus in the case from a layperson’s point of view. As is the case in any state, the majority of Romanian citizens have not studied law. Thus, if we were to survey some of them regarding this case they would most likely not have the urge to resort to legal arguments. Probably, they will firstly turn to their instincts. And, more often than not, their instincts will tell them the following things: (1) stealing is bad. (2) stealing from somebody’s house at night after climbing the fence and forcing the entry is trespassing and is even worse. (3) if someone tries to hurt me it is normal for me to want to protect myself; everyone would do the same. (4) if someone dies while trying to hurt me why should I be held liable when that person’s own actions led to his death? Thus, the probable instinctual reaction of a layman would be to say that nobody should be held accountable for the thief ’s death, that the situation is misfortunate, but that it would be preposterous for the victim of the thief ’s endeavours to answer for his death. Law aims to rise above instincts and to bring reason into our inter-human relationships. Law works with general principles and norms that are impersonal, that apply to every situation of the same nature. And what is essential in our case is that a person has died. Law does not care about that person’s criminal record, about his/her history or other personal circumstances. The law protects life. Life, as the supreme social value, is naturally highly protected. Forcefully and pri-
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marily, by Criminal Law and secondly, by Civil Law. I will now divide the issues of both criminal and civil liability in order to establish how each of them are incident in the current case. Also, I will eventually alter the case so the reader may notice how the answers may change alongside the circumstances. With regard to criminal liability, it is noteworthy that Government Emergency Ordinance 55/2002 (hereinafter G.E.O. 55/2002), the statute that regulates the matter of dangerous or aggressive dogs does not apply to the case, as Article 2, paragraph (2) states that it does not apply in the situation of dogs that attack or bite people that have trespassed a property protected by that dog. However, our first scenario involves exactly those types of aggressive dogs. Therefore, we turn our attention to the Romanian Criminal Code. Of all crimes against life, this case revolves around Article 192, paragraph (1) concerning the Romanian version of manslaughter. It is noticeable that the owner of the dog did not aim to cause another’s death intentionally. This results from his actions: he wanted to protect himself and his property, so he chose an aggressive dog as a mechanism. He foresaw that the aggressive nature of the dog could lead to a trespasser’s death, but based on the measures of precaution taken, namely the warning sign, chaining the dog, he/she decided to carry out with this protection strategy, thinking the dog would at the most hurt a trespasser (Streteanu and Nițu, 2014, p. 333-336).
situation of presumed self-defence, as defined by the Criminal Code (Article 19, paragraph ), meaning the prosecution will have to prove that the legal conditions are not met. The problematic condition in our case is the proportionality of the fight back. In order for criminal liability to be removed by self-defence, the attacked person must respond with a typical criminal act of lesser or equal gravity to that of the attacker. However, scholars do draw attention to the fact that the attacked will have to deal with the consequences of the mechanism exceeding proportionality (Streteanu and Nițu, 2014, p. 358; Calderon and Choclán, 2001, p. 204).
The thief aimed to endanger the dog owner’s property. And the owner fought back, by means of the dog, resulting in the thief ’s demise. As stated in legal literature, the analysis of proportionality is not a mathematical one, but rather one that should put into balance the social values at stake (the attacker’s life vs. the property of the attacked) and the consequences that could have occurred (Streteanu and Nițu, 2014, p 367). Some authors claim that it is not justified to kill a person intentionally for the protection of property, but that in situations such as the analysed one (non-intentional killing), self-defence is not to be automatically excluded, provided the proportionality condition is met (Streteanu and Nițu, 2014, p. 369-370). Otherwise, the owner will be held liable according to Article 192, paragraph (1) of the Criminal Code. Of course, liability will be mitigated by the legal circumstance I have used the word ‘protection’ quite a few provided by Article 75, paragraph (1), letter (b) times and it is natural you would wonder: what of the Criminal Code, namely exceeding the limabout self-defence? As stated by authors (Strete- its of self-defence. anu and Nițu, 2014, p. 357-358), self-defence can be incident even when the attacked person I think the matter of proportionality is open to preventively installs automatic defence-systems, discussion and judges are likely to have various such as traps, electric devices or even aggres- opinions. I believe there are arguments in favour sive dogs, but only provided the other legal of self-defence, with the exclusion of criminal liconditions are met (Article 19 of the Romanian ability. Indeed, until the thief begins to steal, we Criminal Code). Our case describes a typical are only in the presence of trespassing and still, 15
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DOMESTIC FOCUS judging in concreto, on a case by case basis, the death of the trespasser may be justified. After all, the purpose of self-defence is to quench the attack and this happens in the given case only when the trespasser is removed from the property. The fact that G.E.O. 55/2002 which regulates special crimes in the matter of aggressive dogs is not applicable can also stand as an argument that the law considers this particular case from a selfdefence perspective. Similarly, there were cases in which the owner killed the trespasser and was afterwards exonerated (Craiova Court of Appeal, Casefile 1983/P/2006; High Court of Cassation and Justice, the Criminal Chamber, Decision 429/2003). On the other side, some may claim that mere trespassing cannot justify killing the trespasser and that liability can be indeed excluded only if Article 26, paragraph (1) of the Criminal Code is applicable, that is, the limits of self-defence were exceeded due to the fright caused by the trespassing. However, in the given case, this is not possible as the owner does not interfere in any way with the animal’s behaviour. Additionally, the High Court of Cassation and Justice (hereinafter H.C.C.J.) stated that Article 19, paragraph (3) of the Criminal Code is applicable only provided the attack is as described in paragraph (2) of the same Article (H.C.C.J, the Criminal Chamber, Decision 2406/2006). This raises the question: are we allowed to do anything to protect ourselves just because we do it on our property?
In a second scenario, let us think about a solution if the thief does not die, but is only bitten by the dog. Does anything change? In view of the aforementioned arguments, in this case I claim that the attack on the dog owner’s property vs. the fight back that leads to the thief being injured (being applicable Articles 193 or 194 of the Criminal Code) weigh relatively the same on the proportionality scale, meaning all the conditions of self-defence are met and consequently, criminal liability is removed (H.C.C.J, the Criminal Chamber, Decision 2406/2006).
What if the dog was not an aggressive one, but a regular pet? What if it was a Bichon? Or a Pekinese? And the thief was killed by it because, for instance, the dog had been severely affected by an unknown disease that had not yet manifested (such as rabies)? Setting aside the ridicule of the situation, would the death of the thief be assessed in the same terms? No, because in order for Article 192, paragraph (1) to be applicable we need to identify an element that proves mens rea (i.e. a form of guilt: negligence or recklessness). And we cannot argue about the existence of negligence because even if in this particular case the owner did not foresee the outcome (the thief ’s death), he was not bound to foresee it either. As shown by authors (Streteanu and Nițu, 2014, p. 338), negligence exists when the subject had, in concreto, the possibility to foresee the outcome. Even if another person could have foreseen it, our character could not, so he/she is not to be In the analysed case, provided the judge con- held liable. siders that the limits of self-defence have been exceeded, I believe the solution should not be The next paragraphs are dedicated to assessing a conviction. If all conditions are met, I suggest the issue of civil liability in the three scenarios one of the solutions provided by Articles 80 or 83 described above. As noticed by legal writers, a of the Criminal Code as alternatives to a prison strong correlation exists between the civil and sentence because the particularities of the case criminal liabilities (Eliescu, 1972, p. 31-34). One prove it would be excessive for the dog owner to does not exclude the other, as they have different purposes (Vasilescu, 2012, p. 565): one – to punsuffer the consequences of a conviction. ish (criminal liability) and the other – to repair 16
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the damage caused by illicit actions (civil liability). The two often overlap in a case, but it is also possible that only one of them is triggered. It all depends on the features of the illicit act (Eliescu, 1972, p. 32-33). In order for civil liability to be activated we need to identify: an illicit action, damage, the link of causality between them and sometimes a form of guilt (Vasilescu, 2012, p. 571; Pop, Popa, and Vidu, 2015, p. 329; Eliescu, 1972, p. 89). In this specific case, a certain form of civil liability is brought into focus: liability for animals, regulated by Articles 1375 to 1380 of the Civil Code. Its particularities clearly distinguish it from the criminal liability. As I have already mentioned, criminal liability demands a form of mens rea (guilt). By contrast, liability for animals is a strict liability (Article 1376 of the Civil Code; Eliescu, 1972, p. 372; Vasilescu, 2012, p. 662; Pop, Popa, and Vidu, 2015, p. 382-383), meaning the psychological position of the author is irrelevant to activate it. The fundament of this liability is considered to be the duty to guarantee for society’s safety as a consequence of the decision to own an animal (Vasilescu, 2012, p. 659, 662; Pop, Popa, and Vidu, 2015, p. 383; Eliescu, 1972, p. 374). Another special condition in order to trigger liability for animals is regulated by Articles 1376, paragraph (1) and 1377 of the Civil Code. The person who will be held liable for the animal’s conduct is the legal custodian of the animal, in our case, the owner of the dog (Pop, Popa, and Vidu, 2015, p. 384; Vasilescu, 2012, p. 652-656, 662; Eliescu, 1972, p. 336-342), the person that controls, supervises the animal and derives benefit from owning it.
of the Civil Code, the owner is exonerated when the damage is caused exclusively by the victim’s action (Pop, Popa, and Vidu, 2015, p. 385-386; Vasilescu, 2012, p. 601-602). In the present case, I would argue that it was the thief ’s sole action to trespass that caused his death, being his choice to disregard the warning sign. Regarding the scenario when the shield of self-defence is activated, this shield operates not only in the field of criminal liability. Self-defence is a legal institution that generates universal effects in law. Since self-defence turns an otherwise illicit action into a licit one, liability must be excluded in all branches of law (Article 1360, paragraph (2); Streteanu and Nițu, 2014, p. 370), because the first condition, that is, the illicit act, is missing. In the third case, where criminal liability is missing due to lack of guilt, since civil liability for animals is a strict one, the lack of mens rea is irrelevant. However, similarly to the first case, I believe Article 1380 of the Civil Code to be applicable, since the damage was caused due to the trespasser’s action, which triggered an unpredictable response from the otherwise harmless animal. Conclusively, while in the field of criminal law, the solution might vary from case to case due to the judge’s assessment regarding the conditions of self-defence, I believe the Civil Code provides ground to remove civil liability in all three scenarios described above.
By Sabrina Matei Babeș-Bolyai University, Cluj-Napoca
In view of the aforementioned arguments, in the first scenario, when the thief dies and the limits of self-defence are considered to be exceeded, all conditions seem to be met (a crime is, per se, an illicit act). However, according to Article 1380
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DOMESTIC FOCUS The Abuse of Right. A Concept between Tort Law and Breach of Contracts
Introduction In the field of contracts, the Romanian private law system underlines the presence of the principle of good faith in each phase of a contract, starting with the negotiation and ending with the Alexa Francesca Lara Buta performance of the obligations. Moreover, the Civil Code and doctrine also talk about good faith in the context of termination of the contract, when the parties have to choose between legal remedies. When it comes to breaking this public order obligation doctrine brings into question the existence of abuse of right. The delimitation between the normal exercise of a right and the abusive one is clear, but since the abuse of right must be punished, there are difficulties regarding the nature of the liability (i.e. the legal obligation to repair the damages caused by a tort). The main difficulty is caused by the fact that in the majority of cases the source of the right that is brought into discussion is a contract. Since, in our legal system, parties cannot choose between tort and contract law (the tort law is considered subsidiary), this study aims to clarify whether the abuse of right is a matter of tort law or a case of breach of contract.
Civil Code contains regulations regarding the abuse of right, as a result of inspiration coming from the Civil Code of QuĂŠbec. The 5th Article from our code was copied exactly after the 7th Article from the Code of QuĂŠbec and it states that no right can be used with the aim of causing one harm or in an excessive and unreasonable manner, contrary to good faith. It might be useful to conclude that the abusive exercise of a right does not always require the intention of causing harm as fundamental criteria. According to the legal doctrine, the simple lack of good faith when the right is being exercised can be sufficient (Reghini and Diaconescu, 2013, p. 376). Although, the abuse of right and good faith are independent legal concepts, the legislation and the case law tend to refer to both of them when trying to explain them separately. The legal obligation of good faith, mentioned in the 14th article of our Civil Code, represents the criteria used in assessing the legal behavior that is thought to be abusive. In deciding whether the parties have exercised their rights in an abusive manner or not, the court will apply a test based on the obligation of good faith. It must be kept in mind that the source of the right which is being exercised in an abusive manner is irrelevant, because the principle of bona fides is fundamental for the evaluation of the abuse of rights whether we talk about a breach of contract or tort law.
The importance of assessing the abuse of right 1. The principle of good faith and the abuse of through the concept of good faith is materialized right in keeping a balance between the performancCompared to the Civil Code from 1864, our New es and counter-performances of the parties in a 18
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contract, since a strict application of the principle of pacta sunt servanda could cause serious imbalances (Popa, 2014, p. 179). Bona fides also aims to protect the legitimate interests that could be harmed by an abusive exercise of a subjective right. Moreover,: Article 1183 from the Civil Code imposes this obligation during the negotiations between the parties before an agreement is reached and in the Article 1170 it is mentioned that the parties must respect the bona fides principle during the formation phase of the contract, before the offer is accepted. This last article also specifies that good faith is a legal obligation with a mandatory content, so it cannot be limited or removed by simple will of the parties under any circumstances.
govern the tort law and that the compensation for the tort will consist in damages (i.e. an amount of money). The difficulties will show up when the parties already signed an agreement., since this situation will question the nature of the liability and we would be tempted to consider that the breach of contract theory will be applied in all these cases.
The doctrine mentions that the good faith is an expression of an obligation that transcends the limits of a contract because it represents more than just a clause of an agreement, being a general and universal obligation in every field of private law (Floare, 2015, p. 103). Thus, the contract is not the base for good faith, but only a context in which it must be applied and respected. Breaking 2. The abuse of right â&#x20AC;&#x201C; a cause of liability based this obligation cannot be seen as a direct non-peron tort law formance or a defective performance of the contract (Floare, 2015, p. 151). In the Romanian private law system, the breach of contract represents an exception to tort law, which It is not only the intention of limiting or removbecomes subsidiary and can be raised as a basis of ing bona fides from a contract that becomes irthe liability only if the parties are not bound by relevant, but the expressed inclusion of it among a contractual agreement. Therefore, if all the le- other contractual clauses as well. Good faith govgal conditions are fulfilled, one party must base erns all legal relationships, no matter if the parties his or her request for the compensation of the choose to mention it or not. demage on the breach of contract, given that our legislation leaves no option between tort law and A famous French author wrote that, although the contract law (Pop, Popa and Vidu, 2015, p. 430). right that is used in an abusive manner finds its Knowing the nature of the liability is a fundamen- legal source in an agreement, the delict should tal matter, since, in our legal system, the unpre- be punished according to the rules of tort law dictable damages can only be repaired in the con- (Stoffel-Munck, 2007, p. 2844). He based his artext of tort law. gumentation on the fact that, when it comes to an abusive exercise of a right, the creditor invokes a In order to decide the nature of the liability, one right that has its source in the contract, but uses it should also take into consideration the nature with a different goal than the one that was given of the good faith obligation. The legal regulation to it by the agreement. The exercise of the right is from the Civil Code gives us a clue: good faith is conducted in the area of civil delicts and the legal an obligation of public order, which means the liability has the purpose to keep the creditorâ&#x20AC;&#x2122;s abuparties cannot agree in any valid manner to limit sive behavior between its normal and legal limits. it. When the parties are not bound by a contract, As a result, the tort law shall be the only approach it is clear that the judge will apply the rules that to provide the effectiveness and the efficiency of 19
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DOMESTIC FOCUS the good faith obligation.
mance. Another example of such a clause could be the stipulation that allows company B to termi3. The correlation between the abuse of right nate the contract if company A refuses to pay for the first installation of the software because the and breach of contracts refusal to conterperform is described precisely. Firstly, we must insist on the necessity of a delimitation between rights that have their sources As a remedy for all these situations mentioned in a contract and are exercised abusively and an above, the judge shall often decide to paralyze the abusive refusal to perform or defective perfor- exercise of the right, refusing to guarantee promance (in this last case, the remedies are specific tection to these abusive behaviors. Although this to the breach of contract, as included in the Civil remedy is not specific to the breach of contracts, Code at Article 1516). Although in both cases it is examples in which other remedies will be applied a matter of breaking the obligation of good faith, could be imagined: one party establishes the price the remedies shall be different. of a good in an abusive manner. The aim of this defective performance of the contract is to obtain As examples for the first case, the following could an unjust financial advantage (De Vincelles, 2006, be mentioned: the abusive use of an agreement p. 2634). In the legal doctrine, it is specified that clause which subordinates the debitor’s possibil- in this case, the remedy could be chosen between ity to assign his contractual rights to the creditor’s the adjustment of the price and the termination agreement (Chirică, 2008, p. 121), a clause that of the contract (Popa, 2014, p. 186). In order to allows one party to establish a price in an uni- clarify, it must be said that establishing the price is lateral manner (Stoffel-Munck, 2007, p. 2843) or a contractual obligation, therefore its source is the the abusive use of a clause that allows one party agreement between the parties. Thus, the judge to decide on the termination of the contract. This has the possibility of applying one of the remedies last example refers to the possibility of the parties that were proposed in our doctrine. to agree over the defective performances that will Conclusion lead to the termination of the contract if there is no interest left to maintain it. When the creditor To conclude, the fact that the abuse of right can and the debitor choose to include such a clause in exist even in the context of an agreement, of a netheir agreement, they must describe in a precise gotiation or performance of the obligations in a manner the defective performances of the fail- contract does not remove the liability based on ures to perform that will give to the other party tort law. The good faith is a legal obligation that the ability to end the contract. As an example, let’s maintains its independence from the contract, suppose that company A signs a contract with therefore breaking it shall allow the judge to apply company B for the installation of a new software. the remedies specific to tort law. When parties agree upon the price, they also stipulate in the contract that the price must be paid in ByAlexa Francesca Lara Buta several installments as the work progresses. They Babeș-Bolyai University, Cluj-Napoca also include in their agreement a clause which states that if the software is not installed until the agreed date, company A may decide over the termination of their contract, without the legal condition of setting an additional time for the perfor20
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The State Bank of Social Security 1. Context
of the ‘contract’ and some procedural aspects regarding the management and destination of The social dimension funds and who is entitled to benefit from them of a state represents, will also be discussed. unquestionably, the foundation of its very 2. The state and social security existence. As a subject, cause and mobile of the Social security policies developed as instruments act of governing, soci- of compensation for the market’s weaknesses and ety justifies the crea- complementary to its mechanisms for that, as tion, implementation, the English speciality literature states, the fundaBogdan-Alexandru Petrescu maintenance and con- mental objective of social policies is to provide stant evolution of one the well-being of citizens. O’Connor and Gough of the largest known socio-political institutional both believed that advanced capitalist societies structures – the state. As such, society consists of require a specialised infrastructure for main‘a unitary and complex system of human inter- taining social peace and in order to develop acactions’ (Muraru & Tănăsescu, 2011, p. 1 sqq), ceptable education and health standards. Once which ‘can exist, develop and that can exercise the milestone of well-being is reached, it is conits power only in and by the means of organised sidered a won right and it cannot be restricted beyond its inferior limit, without breaching the structures’ (ibid). principles governing human rights and acting Given the profound social nature of the state as against the purpose of the social state itself. an entity, social policies (alongside tax policy and military provisions) stand out as core concerns Even though social policies are initiated or exin the development of governmental strategies. tended more intensively in times of social tenAs a result, social, economic and military (public sion, as noticed by Piven and Cloward, they are order) security are seen as fundamental values of constantly present in a state’s governing strategy, for that, at any given time, the risk of the econoany given contemporary society. my lacking the ability to self-adjust persists. Thus, Socio-economical security is mainly provid- social policies are the answer to the community’s ed by salaries, pensions, as well as other funds problems, so the higher the risk, the more inlike those managing social security institutions tense the state’s countervailing duty. As such, the charged with the protection of more vulner- state’s social-economic status quo consists of 3 able or economically-challenged social groups. elements fallen under the welfare state’s umbrella Even though the principles regarding pensions of responsibility: the social life of the community have crystallised in time, the need for clarifica- (with self-adjusting possibilities), standard social tion regarding certain aspects of this state busi- security policies and, respectively, extended and ness subsist. With that in mind, this article will initiated policies. focus mainly on the state’s responsibility and the parties’ quality and obligations. Also, the nature Rousseau’s ‘Social Contract’ engages all partici21
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DOMESTIC FOCUS pants in the state’s social life towards reaching a compromise: the workers acknowledge the capitalist state’s legitimacy for it to grant a sufficient profitability standard and an economic surplus on the basis of which social strategies will be applied. This way, society develops a forced solidarity system between generations in the matter of public pensions, in which the now working class pays for the now pensioned workers. Part of the worker’s earnings is, by law, distributed to the Public Pensions Fund in anticipation and with the aim of the ‘now’-ers of subsequently benefiting from the same security the ‘then’-ers are now granted through the working class’ contributions. The fight against poverty was accurately tackled in the ‘Beveridge Report’ (1942), regarding British social policy and social security services, as solidarity between members of the community by redistributing the national income, in the light of human rights standards and in consideration of individual economic power, expression of individual liberty, according to John Keynes. Moreover, The International Organisation for Migration, in the ‘The 21st century: development of social security’ report, describes social security broad-sensed as the providing of a security standard. In terms of economic global evolution and in consideration to Keynes’ affirmations, this implies the proportional evolution of rights (and the correspondent revenues) to the evolution of prices, so that the individual economic power complies to the set standards, in spite of inflation. Taking into consideration the above mentions, the general premises of the state’s responsibility in matters of pension consists of a national effort of implementing a state compensation system by means of mandatory measures (laws), a coordinated institutional activity of fundraising and the allocation of a part of the national resources (provided by individual contributions or direct allocations from the state budget) to a special fund (pension budgets). The resources
are then redistributed to a systematic process of answering the needs created by inequality, poverty, sickness, and illnesses. The state is charged with the primordial obligation of providing social security through available resources, overlaid by secondary individual contributions from citizens – in consideration to the principle of social solidarity (which nowadays represents a general global practice for the supporting of social security funds). The present Romanian legislation defines the contributor as an individual or legal entity which pays sums to the public pension system. The aim of this specific contribution is to obtain the contributed sums later, after the fulfilment of specific conditions. Now, how can the legal entity benefit from the pension? How can an individual person benefit from pension if death intervenes? How can the sums remain constant and proportional, given the evolution of economy and rights? Is the contributing conduct a risky economic activity? How does the social contract apply to pensions and is the contribution a deposit or is the pension a state-given credit? To bring light into these matters, we will take a look at the credit and deposit dimension of the pension funds as compared to banking activities and, also, the possibility of the National Administration of Public Pension to act as a state bank with a specific area of activity – social security. 3. The deposit A simple deposit happens between a depositor (offeror of sums) and a depositee (person who receives the sum) and is identified as ‘a sum of money entrusted conditioned by being entirely refundable, with or without interest or other facilities, on request or at a given date set by the depositor with the depositary, and which does not refer to transmission of property, provision of services, or granting of guarantees’ (Șaguna &
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Rațiu, 2007, p. 178). Regarding the contributor to the pension fund, the general individual’s subjective attitude is that he ‘saves money for hard times’, as such, the return is justified, but the target revenue varies depending on the years of contribution, the sums contributed, the quality of the depositor, and other aspects. The institution of interest is the one that raises a more complex debate regarding its justification and necessary nature, for that it represents an extra, in the context of repayment (through pension), covered by the state or other relatively undue revenues and solely justified by the evolution of rights. Interest is more efficiently justified by the contractual nature of a bank deposit, identified as any transaction where ‘any sum, including due interest from a bank account of any kind, including collective account, or from transitional situations provided by banking transactions, and which a credit institution owes to the account holder, according to legal and contractual applicable terms, or, also, any debt owed by the credit institution provided by a certificate issued by it […]‘ (Șaguna & Rațiu, 2007, p. 178). In this case, the sum may represent the monthly revenue (pension) correspondent to the previous contribution to which interest is added as compensation to the inflation rate and the devaluation of a fictive individual fund (resulted in a lesser economic individual power, subsequently a passive restriction of individual economic freedom). There is no physical account directly attributed to a contributor (client), but, in light of the principle of (forced) solidarity between contributors, all contributions are ‘stored’ in the collective account from which individual pensions will be later on determined (according to specific criteria – age, health, contributed sums according to the labour contract).
is aimed to become a free of use capital, a nonattributed sum, with no specific destination, whereas pension funds are destined to be immediately reintroduced in the economic circuit in order to perform the due obligations (payment of pension) to the pensioners. Still, workers’ contributions are performed in perspective, for that the fictive deposit is created under a suspensive condition, with a fictive state debt to the citizen, which becomes enforceable in the future, with the fulfilment, by the beneficiary, of the legal terms. As such, ‘deposits represent a source of credit’ (Șaguna & Rațiu, 2007, p. 179) (and of the state’s obligation of future payment) of the final non-refundable sum to be distributed to the beneficiary. Given the two states of being of the pension fund, we can identify its legal double-nature: ‘on the one side, it represents an obligation of the bank to the depositor and, on the other side, it represents debts of the depositor to the bank’ (Șaguna & Rațiu, 2007, p. 179).
Regarding the legal nature of the relation, Romanian doctrine rallied to the French perspective, considering ‘the bank deposit as a species of civil law deposit, on which grounds the banker becomes the owner of the raised amounts from the clients and has to refund the equivalent, and not the identical object received into depositing’ (Șaguna & Rațiu, 2007, p. 179). As such, the bank deposit can be identified as a ‘consumption loan, for the enforcement of which the client lends the bank a sum of money and the bank must return the equivalent of the borrowed goods’ (ibid). The clients’ sums are used in the enforcing of actual state obligations (principle of solidarity), for that they leave the potential beneficiary’s patrimony in exchange for a potential future right (pension), conditioned by the meeting of several legal terms. Regarding the equivalency of the reimAlthough quite similar, bank deposits and ‘pen- bursement, the final sum takes into considerasion deposits’ are fundamentally different in tion the evolution of rights and economy. Along terms of purpose, for that an ideal bank deposit with the standard contributed sum, there will
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DOMESTIC FOCUS also be offered a compensatory revenue, equivalent (in theory) to the devaluation of the initial goods (due to inflation) and as additional protection in case of a positive evolution of the level of social risks.
ated on the basis of the state’s obligation to grant individual social-economical security as a general objective of achieving social peace. In the same comparative manner will the second component of the dual nature of the public pension fund be revealed – the credit dimension. Similar to the deposit transaction, the credit activity also represents a fundamental banking activity. Generally speaking, by credit, we define ‘any payment commitment of a sum of money in exchange for the right of reimbursement of the sum, including the payment of interest or other related payments’ (Șaguna & Rațiu, 2007, p. 197). This definition is susceptible of various interpretations and also requires specific explanations in order to match the topic, but certain is the ability of this given contractual instrument of raising the bank’s obligation, the state’s obligation (by means of Public Pension Administration) to award the former contributor client (and actual beneficiary) a sum of money. As a result, the credit transaction ‘has been assimilated as a loan on the basis of which the bank is charged with the obligation of providing a sum of money at the disposal of a person’ (Șaguna & Rațiu, 2007, p. 198).
A non-typical form of neither deposit nor consumption loan, the contract between the contributing future beneficiary client and state (through the Public Pension Administration) can be identified as an unnamed contract. There is no contemporary contract equivalent describing such an interaction between the contributing future beneficiary client and the state. Nevertheless, the way the parties’ obligations are strictly determined, the means of enforcement and the contents of the interaction imply the framing of transactions as ‘contract’, a convention through which a current continuous contribution of the contributing client is being provided in exchange for the state’s continuous, future, monetary contribution to the citizen, destined to provide a standard of security to the same contributing client, became beneficiary. Simultaneously and separately from the contributing client’s contributions, sums originated from him are being reinvested/redistributed for the enforcement of state’s obligation to counter-execute the contract with the client debtor who fulfilled his obligations and meets Through the satisfaction of a public necessity, the legal terms to become an actual beneficiary. public service fulfils the urgency risen from ‘an activity of general interest, enforced by the administration, charged with the mission of satis4. The credit fying the general interest’, as noted by Vedinaș Credit transactions and the compensatory di- (2014). As such, state credits become non-remension of the state’s obligations derive from the imbursable, for that they originate in the state state legal theory. As concluded before, the state budget, so, even though ‘96% of social security entity consists of an organised form of people’s budget comes from contributions’ (Coste, 2016, power, enforcing the people’s will, as a unitary p. 29), the state still represents the basis of the moral entity. The exercise of people’s power ‘tar- public pension funds. gets the general interests of society and the state’s authorities find their reason of existence in di- 5. Public Pension Administration – bank of rectly or indirectly meeting specific needs or so- public security cial focus points: personal security’ (Balan, 2015, p. 40). The primordial contract is, as such, cre- As proven before, the Public Pension Administra24
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tion holds the operational competence of a typical bank, with the particularity of being financially supported by the state budget. This institution is able of, both, credit and deposit transactions, and other banking activities, such as passive banking (accepting deposits), active banking (investment of national resources in non-reimbursable credit transactions – state compensations), and other related activities (maintenance and cash, data providing activities, non-financial activities). Similar to banking strategies, the cash flow is transferred from the client’s patrimony to a collective investment account which, on request, individualises the correspondent equivalent sums to be subsequently retransferred to the client. Given the fact that a banking institution should be able of both credit and deposit activities, Public Pension Fund can be considered a sui generis (unique) banking institution, in the service of the citizen and managed by an autonomous state institution.
The springboard for tomorrow’s lawyers
6. Conclusions Given the discussed aspects, social security can unequivocally be considered a fundamental state investment leviathan, overseen by the people, through public administration, of which lack of synchronisation is tempered by the Public Pension Administration. Constituted as a social security-centred bank, this institution, by means of clients’ solidary individual contributions, provides the security of an unpredictable future and the well-being of lesser fortuned social classes, with the sole goal of achieving the state of harmonious general peace, understanding and development of a much-deserved providential state.
By Bogdan-Alexandru Petrescu Alexandru Ioan Cuza University of Iaşi
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REFLECTIONS Corporate social responsibility policy development: Is it better to prevent by regulating or to repair? CSR policies and impact on corporations in the light of the BP Horizon Water case
What is Corporate Social ity?
better world are not conflicting goals – they are both essential ingredients for long-term success” (Sustainability report, 2009/10). The second one is the quote of Benjamin Franklin, who believed that “It takes 20 years to build a reputation and five minutes to ruin it. If you think about that, you’ll do things differently”. I strongly believe that the focus should be on two matters, on one hand the general control and on the other hand, on holding multinationals in check which implies an ex-ante approach rather than an ex-post one, which always entails that harm has already been done.
As the field of human rights develops, wideness and increases in importance, it influences and also it intertwines with the corporations and business world. Therefore, the Alexandra Tomuța concept of corporate social responsibility has developed. We shall start Moreover, the development of CSR is linked with by defining this term. the right to healthy environment which is part The broadest definition of corporate social re- of the third generation of human rights which sponsibility, often abbreviated “CSR”, is con- now is in a transition from soft-law to hard, subcerned with what is or should be the relation- stantive law. It has been proclaimed both in the ship between global corporations, governments Stockholm Declaration 1972 (First proclamaof countries and individual citizens (Crowther tion) and in Rio Declaration 1992 (Principle 1). & Aras, 2008). It refers to a corporation’s ini- In March 2012, the UN Human Rights Council tiatives to assess and take responsibility for the decided to establish a mandate on human rights company’s effects on environmental and social and the environment focusing on the human wellbeing. The term generally applies to efforts rights obligations relating to the enjoyment of that go beyond what may be required by regula- a safe, clean, healthy and sustainable environtors or environmental protection groups. It may ment, while promoting the best practices relatalso be referred to as “corporate citizenship” and ing to the use of human rights in environmental can involve incurring short-term costs that do policymaking (Special Rapporteur on human not provide an immediate financial benefit to rights and the environment, 2015). There is a the company, but instead promote positive so- timely correspondence between this and the cial and environmental change (Investopedia, UN “Protect, Respect and Remedy” Framework (2008) and its practical implementation (2011). 2016). After having explained the terminology I would like to emphasise my opinion on the matter by employing two quotes of great men. The first quote belongs to William Clay Ford Jr., who said that “Creating a strong business and building a 30 28
As we can see, originally CSR refers to the conduct of the corporation outside the regulatory framework, but the current trend in policy is towards creating a legal instrument to govern this matter. They are addressing the companies
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directly, imposing obligations on them in order to prevent harm and deterring them from involving in violations of human rights and hence controlling the corporations, keeping them in check. UN intervention
er, 2011), which provides step-by-step guidance for states and businesses. However, they need further implementation from the states. National initiatives 1.1 United Kingdom
In addition to the work of the UN, the UK adopted Modern Slavery Act (first pillar) which refers to the presence of forced labour and slavery in the operations and supply chains and it urges companies who meet certain criteria regarding their total turnover (£ 36 m) to prepare each year a slavery and human trafficking statement (second pillar). In case businesses fail to comply with the requirements, the State Secretary will bring civil proceedings against them (Section 54 (11), Modern Slavery Act). This refers both to the business itself and also to the supply chains and it is aimed to control the corporations in order to prevent violations. Furthermore, at an overview of the Act’s table of content the rules The framework is built on three pillars. The first regarding prevention by both the State and the one concerns the protection, provided by the corporations outnumber those aimed towards state duty, against human right abuses commit- victims and reparations for damages. ted by third parties through policies and regulaThe benefits predicted by the UK Government tions. The second one delves into the corporate (Rt Hon Theresa May MP - Home Secretary, responsibility to respect by acting with due dili2015) include protecting and enhancing an gence in order not to violate the rights of others, organisation’s reputation and brand, protecting whilst, at the same time the third pillar spans and growing the organisation’s customer base into addressing any harm that might occur and - as more consumers seek out businesses with accessing an effective remedy. Evidently, the fohigher ethical standards, improved investor cus here, too, is on the prevention and also the confidence, greater staff retention and loyalty obligation imposed to the major actors (States based on values and respect, and finally develand Corporations) to act with due diligence in oping more responsive, stable and innovative order to avoid infringing on the rights of others supply chains. and only the last part addresses adverse effects that occur while providing access to those af- 1.2 United States of America fected to an effective remedy. On the same note, The United States took a step The UN “Protect, Respect and Remedy” Frame- into regulating CSR by introducing in August work for Business and Human Rights was im- 2012 the Conflict minerals rule - Section 1502 plemented through the “Guide Principles on DFA which requires to disclose annually whethBusiness and Human Rights” (United Nations er any conflict minerals that are necessary to the Human Rights Office of the High Commission- functionality or production of a product of the Proof of this is the UN “Protect, Respect and Remedy” Framework for Business and Human Rights (Ruggie, 2008), which was created to fill the governance gaps created by globalisation. Through the implementation of this Framework, the transnational corporation gain more and more rights in order to promote international trade and investments. This state of affair might lead to the instance where there is an imbalance of power between corporation and the State (Ruggie, 2008), the latter not being able to hold businesses in check which might be detrimental to human rights as they become collateral victims.
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REFLECTIONS person, as defined in the provision, originated in the Democratic Republic of the Congo or an adjoining country. If the aforementioned is confirmed it is required to provide a report describing, among other matters, the measures taken to exercise due diligence on the source and chain of custody of those minerals, which must include an independent private sector audit of the report that is certified by the person filing the report. Certain aspects of this rulemaking will require consultation with other federal agencies, including the State Department, the Government Accountability Office, and the Commerce Department. People are not required to comply with these rules until their first full fiscal year after the date on which the Commission issues its final rules (U.S. Securities and Exchange Commission, 2014). The act is recognised to be a response (United States Department of State, 2011) to the Organisation for Economic Cooperation and Development’s “Due Diligence Guidance for Responsible Supply Chains of Minerals from Conflict Affected and High-Risk Areas” (Adopted as a recommendation by the OECD in May 2011, under the chairmanship of Hillary Clinton). The guideline promotes a 5-step framework (OECD, 2016) : firstly, to establish strong company management systems, then identify and assess risk in the supply chain, later on design and implement a strategy to respond to identified risks and finally, carry out an independent third party audit of supply chain due diligence and report annually on supply chain due diligence. Analysing the US Conflict Minerals Rule we realise that the disclosure element ensures the establishment of the strong company management as it obliges companies to have a thorough verification of their supply chain in order to identify risks and moreover, in the case that risks are indeed discovered, a report is required. This report would 30 30
be the last step in the OECD guideline, which comprises both the risk assessment and private audit. The four conflict minerals are: (1) columbitetantalinte (coltan), (2) cassiterite, (3) gold, and (4) wolframite or their derivatives, which are used for mobile phones, gaming systems and other electronic devices (Woody, 2012). It can be noted that the aim of the rule is to prevent companies from indirectly supporting financially the conflict in Central Africa and subsequently, to help them avoid committing a human rights violation by imposing transparency throughout the whole supply chain, as the rule is addressed not only to the manufacturers, but also to the contractors of manufacturers (Vytopil, 2013). Moreover, it must be underlined that there are no quantities mentioned in the act, therefore it imposes an extremely strict regime that reflects the seriousness and importance of the human rights violations, or more specifically the prevention of a reoccurrence . Despite the facts mentioned above, I strongly believe that the universal and broad application of section 1502 of DFA has a negative impact on Congo’s economy. Not all the mines are controlled by violent actors (Seay, 2012), a fact that is often disregarded and, as a result, the strict legislation fails to make a difference between violent and non-violent mineral suppliers in order to avoid extending the damage to the innocent parties involved . Given the fact that the mining industry is the country’s largest source of profit from export, and the amount of people that are working in the industry, if the current approach were to be fully implemented, it would lead to severe poverty as miners will no longer have a place to work (Morgan, 2009). This matter unfortunately is a serious and vast topic that requires extensive and separate research.
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REFLECTIONS The sanction on non-compliance with Section 1502 DFA therefore is also tied in with transparency: if the companies file untruthful information with the SEC, they may be held liable under Section 18 of the Securities and Exchange Act for false and misleading statements. There are no ‘harder’ sanctions in respect of Section 1502 DFA. A significant non-legal sanction, nonetheless, remains (Vytopil, 2013).
conducted (Rascoe, 2011) regarding the platform, problems would have been detected with the cement seal led to that seal failing at a critical juncture (A problem that BP encountered in a previous disaster - Piper Alpha). Therefore, if the State would have imposed such an obligation on the corporation the whole catastrophe could have been avoided. Also, from a financial point of view, the price of the test is impossible to compare with the tenths of billions that BP Therefore, it can be observed that the American had to pay in the end. Not to mention that, deAct focuses on preventing the violations as it spite the exorbitant amount of compensations contains no provision addressing the victims afand cleaning expenses the environment was affected by these violations. fected perhaps in an irreversible manner. BP Deepwater Horizon case Conclusion Why it is better to keep companies in check and In conclusion, the prevention of damage from prevent CSR violations CSR violations can only be accomplished Moreover, to the issues described so far, I have through an extensive and ongoing effort to come to the conclusion that by focusing on control and keep the companies in check. The keeping corporations in check and by using due victims’ compensation that is required after exdiligence processes and risk assessment mecha- treme violations that result to immense environnisms, companies are likely to reduce costs by mental repercussions are extremely expensive avoiding the expenses of a civil suit itself, as well for the companies and, at the same time, inefas the repercussion on the image and the overall fective for the injured. One of the most typical company value. In order to support my state- examples are the people from the Niger Delta ment, I will refer to the unfortunate case of BP that were greatly affected by the Shell oil leaks and as a result have, according to current assessDeepwater Horizon. ments, become refugees (Donatus, 2016). This BP Deepwater Horizon was the biggest oil leak unfortunate example showcases not only the in history (Pallardy, 2016). Could it have been inability to bring justice to the people affected prevented? The price of BP shares on the New but also thedifficulty to restore the natural balYork Stock Exchange on April 20, 2010 was ance after serious environmental incidents. This 60.45 $, but it slowly began to drop, reaching fact further reinforces the need to focus on the 52.43 $ in just ten days on April 30, 2010 and by prevention of such incidents in order to avoid June 29, 2010 the price hit the alarming value of the irreparable social and environmental conse27.32 $ (Yahoo! Finance, 2010) - almost a 55% quences. decrease in value of the shares and therefore of the company. In only one year, BP had to pay over $40 billion in costs associated with clean up By Alexandra Tomuța and recovery, not to mention the expense of the lawsuits, settlements and penalties. It is considBabeș-Bolyai University ered that if an independent test would have been Utrecht Universiteit – Erasmus Student 30 32
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Domain Name System – the US strategies and Romanian incentives to combat cybersquatting
It is common knowl-
edge that in our national field regarding cyberspace, the harmonisation of laws concerning The Domain Name System represents a serious issue, as there is a lack of effectiveness in what concerns the legislation ought to protect intellectual property.
A slight glimpse back to the origins of the internet depicts a common use of the internet – communication. Although the purpose was different (easy communication as a way to protect from Russian threats), the main reason represents the need of facilitating sending and receiving information. Notwithstanding the great success of this innovation, major problems have been posed ever since commerce represents a fast growing part of the internet. Its perpetual development has led to many disputes which require legal intervention to a significant extent.
ent market and does not create any kind of confusion among the goods or products” (Searing, 2000). Consequently, The Federal Trademark Dilution Act (FTDA) does not specifically prohibit cybersquatting, therefore cybersquatters have not abandoned their practices. In order to outline the effect of this action, an incident mentioned by HAMILTON (G.W. 1995, p.7), involving McDonald’s stands as a good example: Joshua Quittner, a writer for Wired magazine, decided to register the domain name “mcdonalds. com” and create an e-mail address at “ronald@ mcdonalds.com” to prove his point that it is too easy to register a well-known name; McDonald’s eventually discovered the registry and requested the relinquishment of the domain name. Quittner agreed to do so, but only if McDonald’s donated $3,500 to a junior high school, which McDonald’s did.
On the basis of the example mentioned above, the effects of this conduct aims to discourage the consumers’ use of the internet, undermine confidence and, to a greater extent, destroy the value of brand-names and trademarks, leading to inequity towards fair businesses; these are the reasons Cybersquatting means domain name traffic, while which were presented to the President of the US Domain name represents the identification used and which eventually led to the attempts to solve the problems. within the internet. Why is it a problem?
How does the law regulate the issue ?
The main problem consists of the meaning of the two misunderstood notions, trandemark and domain name. The shortcomings that have risen include the confusion between these concepts which somehow lead to the lack of effectiveness concerning the practice of ”cybersquatting”. It is worth mentioning that the ”multiple use of a trademark is allowed as long as it used in a differ-
The United States Anticybersquatting Consumer Protection Act (ACPA) has been enacted in order to protect the interests of fair businesses by establishing factors which determine bad-faith. These factors include: 1. whether or not the domain name was registered
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REFLECTIONS 2. the extent to which the domain name consists of the legal name of the person or a name that is commonly used to identify that person, such as nicknames 3. the person’s prior use, if any, of the domain name
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4. the person’s bona fide noncommercial or fair use of the mark in a site accessible under the domain name 5. the intent to divert consumers from the mark owner’s online location to a site accessible under the domain name that could harm the image of the business, either for commercial gain or with the intent to destroy the value of the mark 6. the offer to transfer, sell, or otherwise assign the domain name to the mark owner or any third party for financial gain without having used, or having an intent to use, the domain name in the „bona fide” (since an offer of sale alone cannot be considered enough to prove bad-faith) 7. the provision of material and misleading false contact information when applying for the registration of the domain name 8. the registration or acquisition of multiple domain names which the person knows are identical, dilutive of famous marks or confusingly similar to marks of others that are distinctive at the time of registration of such domain names, without regard to the goods or services of the parties
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The ACPA also states/remarks the consequences that have to be faced in order to restore the prejudice: if a violation of the ACPA is found, a court can order the forfeiture or cancellation of the [offending] domain name or its transfer to the owner of the mark. The mark owner can also recover up to three times his actual demages and obtain injunctive relief. Actual damages include the profits that the domain name registrant made from his use of the mark, as well as losses sustained by the mark holder as a result of the domain name registrant’s
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actions, such as lost sales or harm to the mark’s domain name in connection to the domain name holder; or 3)a good faith intent to use the domain reputation. name in a non-commercial way. It was not until 1998 that an effective measure was in fact taken, as there were no international Despite numerous conflicts resolved by these laws, laws to protect consumers against cybersquatting. they are not however flawless, for there are many The efforts to stop this misdemeanour had come problems that still need to be overcome. There are to fruition as the US Department of Commerce the well-known laws of nature which have proven addressed the issue to the World International to be the strongest winning factors. If we were Property Organization (WIPO). They requested to transpose this principle in the world of comthe developement of a uniform trademark and merce, the issue that remains is that the prodicybersquatting resolution. Thus, WIPO created gious corporations, worldwide known businesses a non--profit international corporation, Internet are in the habit of intimidating smaller businesses Corporation for Assigned Names and Numbers even if they are fully legitimate. (ICANN). Alongside the aspect mentioned above, another ICANN aims to develop and administer an inter- shortcoming is the misunderstood term ”domain”. national policy regarding the domain names. As According to Searing (2000), courts have a tena result, it founded the Uniform Domain Name dency to consider the domain name (DN) as beDispute Resolution Policy (UDNDRP) which has ing internet addresses, not making it the property the role of handling these sort of disputes and of- of the registrant despite the fact that it is precisely fers an effective and more profitable lawful mech- what should be done. Even if there is no identity between the trademark and the DN, and the conanism, as an alternative to litigation. fusion must be avoided, it is often difficult since The UDNDRP consists of three elements: name, the DN represents the identity of the business, in interest and bad faith. Therefore, the parties have a manner similar to the trademark. to determine the: name and whether it is similar or identical; the interest in the domain and more Compared to Anticybersquatting Consumer Proparticularly if it is legitimate; and lastly if it has tection Act (ACPA), Uniform Domain Name Disbeen registered in bad faith. Although the UN- pute Resolution Policy (UDNDRP) provides, as DNRP does not include a definition of the term LATHAM AND WATKINS (2000) have noted: bad-faith, it exemplifies it as: ”registering a do- ”no remedy other than the transfer of the domain main name to sell to the owner of the trademark to the trademark holder”. As a result, businesses for an inflated cost; registering a domain name to have no option but to suffer the demages caused prevent the owner of the trademark from using by the cybersquatters, their sole guarantee being it; registering a domain name to harm another’s the recovery of the exclusive use of the domain business; or attracting consumers to a website by name. confusing the cybersquatter’s domain name with A rather interesting aspect is the conflict that arisanother. es with free speech rights (U.S. CONST. amend. The complainant has the initial burden of prov- I. “Congress shall make no law[...]abridging the ing bad faith intent. As a defence, the respondent freedom of speech”). A case which shows that must demonstrate their right to the domain name usually trademark infringements are taken into by showing one of the following: 1) a bona fide consideration leaving aside the free speech rights use of the domain name; 2) a common use of the is Yankee Pub. Inc.v.News America Pub. Inc, case 35
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REFLECTIONS in which the court stated the following: ”To grant one person with the exclusive right to use a set of words or symbols in trade can collide with the free speech rights of others. When another’s trademark (or a confusingly similar mark) is used without permission for the purpose of source identification, the trademark law generally prevails over the First Amendment”. Therefore, what is to be taken into consideration are the regulations of trademark law due to the fact that free speech rights do not apply to labelling or advertising to the extend of creating a conflict with other rights. Additionally, in Denver Area Education Telecommunications Consortium, Inc. v. Federal Communications Commission, the Supreme Court stated that it is not practical to protect domain names since technology is advancing so quickly. Furthermore, the court noted that it is possible, in the future, for domain names to be considered a form of protected speech. Free speech protection only applies to those words that have a communicative message even if there is another’s trademark in that message. As long as the domain name that is identical or similar to a trademark is not used for “commercial” gain, it cannot be considered as an intentional consumer confusion or harm to the corporation’s trademark reputation. Searing (2000) argues that despite the violation of the right to free speech, the entire judicial system must be aware of the potential infringement of the trademark, even if there is no commercial gain. Therefore, the Anti-cybersquatting Consumer Protection Act (hereinafter called ACPA) enables trademark holders to keep a domain name from being registered. Free speech impediment occurs when a person, who wants to register a domain name for a political or commentary purpose, would be impeded to do so because of the ACPA. If free speech were infringed in that manner, corporations would be able to prohibit and/or control protected speech, especially critical commentary, 30 36
for more information see L.L. Bean, Inc. v. Drake Publishers, Inc. Case-law have shown that even though a domain name may be functional, such as providing an address, there is a communicative aspect that implies protection under the First Amendment, fact which proves that the value of domain names, as well as the value of the information they allow the user to access, is being realized. The Anti-cybersquatting Consumer Protection Act and the Uniform Domain Name Dispute Resolution Policy both try to find a lawful mechanism which aims to reach a balance between the protection of trademark owners and in the same time permitting the non-commercial use of a trademark (commentary, parody, critique, or news reporting). The ACPA states that the domain name holder has the burden of proof. He is responsible for providing evidence to show that the website name qualifies as one of the protected forms of speech, the sole resolution being through litigation. Moreover, he has to show that the website is not prone to confuse consumers, for instance a parody must be obvious to the consumer immediately upon opening the website. Solutions to the problem One suggestion to solve the domain name problems is to create many new types of Top Level Domains (TLDs). As noted by Denniston and Kubiszyn (2000), some would be .com clones, like .inc, .biz, .web, .zone, .store, .firm, .mall, etc. Others would be particular to types of activity, such as .software, .consultant, .sex, .usedcars, .flowers or .drugstore. Also proposed is the use of “.shop” (for small businesses) and “.banc” (for banks and financial institutions). ”One or two new types of TLDs might reduce some of the current problems. One option would be to use the TLD “.home” or “.pers” for personal domain names” (Searing, 200,
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Lawyr.it Legal Dictionary
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REFLECTIONS p.140). Under the law the domain name must be considered property of the business and must be offered judicial protection accordingly, because businesses benefit the society in terms of economy, diversity and posibility of development. Laws being put into effect are the first steps in ensuring the proper usage of the Internet. Regarding Romanian legislation, I consider our attempts to create an effective mechanism quite timid. A Governmental Act no. 1424/2003 aims to provide protection against property law infringement which includes cybersquatting, as
well. However, the cyberspace disputes are highly nuanced and problems concerning the effectiveness of the legislation arise. I am inclined to believe that as time passes by, with the support of international legislation our judicial system will represent an example of fairness and equity regarding the Domain Name System.
By Cătălina Ciucu Babeș-Bolyai University, Cluj-Napoca
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A Forensic View on Writing
A Forensic View on Writing
A Forensic View on Writing
As a source of unlimit-
ed fascination due to its topics, forensic science has a significant place in the legal system of every country in the world and an irreplaceable influence upon criminal investigations. This study is designed according to a twin approach in view: Iulia Ioana Dranca a scientific approach towards the characteristics of handwriting on the one hand, and a practical view centred on the graphic elements – which are subjects to graphoscopic examination – on the other. The main points of interest to be discussed in the following article are: the difference between graphology and graphoscopy; the scientific basis of identifying an individual based on his handwriting; the handwriting’s individuality, relative stability, reactivity and naturalness, along with its general and special features; and also the means of falsification. 1. Graphology vs. Graphoscopy Graphology and graphoscopy are very similar at first sight because of their names (they have the same origin, dating back to the Antiquity) and both have developed through history as a sum of concepts, together with intuitive and experimental methods, designed with the purpose of examining human handwriting. The main common aspect of graphology and graphoscopy is their point of interest and analysis: the handwriting. However, they demonstrate different perspectives on handwriting. Graphology represents the science of discovering the personality of an individual by examining his/her handwriting only, while
graphoscopy represents a field of forensic science used in the identification process of an unknown author of a piece of handwriting (including punctuation marks, numbers, signatures), based on a system formed by physiological, anatomical, psychological, calligraphic and graphological parameters, as presented by Alămoreanu & Lazăr (2008). Through the development process, multiple definitions were given to the two notions in order to accurately determine their meaning and reduce the risk of confusion. Graphology was defined as “the portrayal of an individual’s character through his handwriting” (Stahl, 1930, p.11) and “the psychological study of the written documents” (Athanasiu, 1996, p.10). Alămoreanu (2000, p.101) shaped its essence as “a scientific discipline which aims to discover the human personality, the manner in which the writing reflects the psychological traits of the author, by only using the interpretation and examination of this person’s handwriting”. As it can be inferred, graphology is a cognitive approach, which focuses on revealing the psychological traits of the known author of a clear and accurate piece of handwriting, using the methods of psychology, writing and semantics. Graphoscopy was, for quite a long period of time, an integrated part of graphology. Nevertheless, it evolved slowly but surely into a distinct field of forensic science which focuses on revealing the unknown author of a false, clandestine and disputed handwriting. Graphoscopy examines scripts as finite products, pursuing the identification of the author by analysing the graphic elements such as dimension, direction, pressure, continuity and inclination. The physical laws of writing and elements of psychology are used scarcely and without proper interpretation. In addition to finding the unknown author of a handwriting, graphoscopy 39
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REFLECTIONS also deals with the discovery of false documents, the restoration of a voluntarily or involuntarily damaged writing, or appraising the authenticity of a certain handwriting or document. 2. The scientific background From an empirical point of view, writing is a way of communication, but from the forensic perspective it represents an atypical trace with special features, created by a human’s body mechanism. In forensics this trace means “the modification created at the crime scene in the process of committing a crime, through the movement and the action of the person involved or generated by other beings, objects or phenomena, which is useful for the forensic research through its appearance, characteristics, position and content” (Alămoreanu, pp.5758). In other words, the trace is “the entirety of the physical elements whose formation is determined by the perpetration of a crime” (Suciu, 1972, p.200). The atypicality of writing as a trace stands in the fact that, instead of being transferred from one object to another object or place, it appears as an array of graphic elements produced as a result of nervous and muscular activity executed by an individual and has to be seen as a dynamic reality, not a static one (Ionescu, 2006). Another difference is that two scripts with the same content and executed by the same person will never be identical if they are authentic, however, this rule does not apply to the traditional traces. The scientific basis of identifying an individual through his handwriting is the existence of some particular elements in the handwriting of each person, which depend on the nervous activity of the cerebral cortex as concluded by Alecu (2004). This results in a series of movements that once will become a skill as a consequence of the bonds between the centres of excitation and conditioned reflexes. Writing is, first of all, an intellectual skill, an automatism, an instinct developed as a result of repeated exercise, part of a learning pro40
cess. The development of handwriting has several stages: the elementary handwriting (here the first graphic elements are taught), the correct writing of letters and words (in this stage the graphic elements acquired in the previous stage start to become a skill and a series of individual peculiarities start to appear), while the final stage is of fast handwriting.The latter is the most important element of the process; the faster a person writes, the more developed the handwriting is. The completion of the process takes place at around the age of twenty-two. If categorised on the basis of the level of development, the handwriting can be inferior (weakly coordinated), poorly developed, medium developed (equable, neat) and superior (with simplified letters and multiple variations of the same letter).The characteristics of handwriting as a developed skill are its individuality, stability, reactivity and as some authors say, naturalness (Frățilă, 2013). 2.1. The individuality This characteristic implies the fact that every individual’s handwriting, overall and in detail, is unique; there cannot be two individuals with identical handwriting and that is why this type of identification is possible. Even if some graphic elements can be found to be the same by more than one individual, in reality, there are numerous combinations that can be executed using the same graphic elements and this is where the uniqueness appears. Individuality can be observed not only when linked to the shape of the letters, but also with regards to the content, as a consequence of intellectual development. This is the reason why it is said that the more developed a handwriting is, the more it expresses the individuality of the author. Individuality, according to Ionescu (2010), is influenced by force, balance, the mobility of the superior nervous processes and sometimes by the actual writing conditions. The force refers to the
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functional capacity of the nervous cells to determine the ease or difficulty in the appearance of conditioned reflexes that are the basis of the writing process, with direct influence to the muscle tone of the hand that carries out the writing. Balance refers to the ratio between excitation and inhibition which determines the capacity of reaction control and coordination when writing. In addition, mobility represents the ability of the nervous processes to adapt to new realities and occurrences. Even if there is some amount of adaptability, it does not exclude the handwriting’s stability, since all the changes take place in certain parameters that do not influence the general stability.
natural variability of the handwriting, and depending on the author’s psychosomatic characteristics the variability can be high, medium or low, but never unlimited, so forensic experts must pay special attention to this aspect. 2.4. The naturalness
Naturalness is a characteristic rarely found in specialized studies. Frățilă (2013) believes that this characteristic results from the fact that handwriting is a developed skill and naturalness is emphasized when the handwriting is executed without any external or internal constraint. It concerns not only the overall writing but also some points of interest like the accuracy of the graphic elements, 2.2. The relative stability the coordination, the graphic harmony, or, on the Once certain characteristics of the handwriting contrary, its disorganisation (especially when the are developed, they tend to remain stable for the writing starts to degrade due to old age). rest of the author’s life, but without reaching an 3. Writing’s features from the forensic perspecabsolute stability –ascertain small changes may tive occur. Relative stability means that some changes may appear in one’s handwriting due to the devel- From the numerous classifications that can be opment of the writing, the author’s psychosomat- found in specialised studies, probably the differic condition as a result of a certain physiological entiation between general and special features is state (illness or extreme fatigue), the hand direct- the most important. Another point of interest is ing made by another person, a certain state of outside the graphic sphere, and it is the handwritintoxication (with alcohol, tranquilizers, drugs), ing’s content, especially when forensic experts age, or the necessity of very fast writing (in the have to analyse an anonymous script. This type case of students or doctors). Besides, temporary of analysis focuses on the type of language used causes such as extreme cold, the position of the (to determine the level of culture of the author); author, and the necessity of writing in a means of the complexity and the phrases of the constructransportation may also play a remarkable role. tion; the correct use of grammar rules, the style; However, these changes cannot be confused with the type of vocabulary used; and punctuation the variability of an individual’s handwriting, i.e. marks. Another crucial point is the layout: the the ability to have more types of handwriting. positioning on the writing surface; the size of the paragraphs and their alignment; the spacing; or 2.3. The reactivity the location of certain mentions like signature. Reactivity takes into consideration the handwrit- Some authors, such as Ionescu (1973), consider ing’s capacity to be influenced by every external positioning on the writing surface to be one of the stimulus, resulting in different versions of the general features. same handwriting. It represents the basis of the The general features are also known as graphic
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REFLECTIONS dominants that consider the overall handwriting and, if analysed separately, they are found in different individuals’ writings. The general features include the stage of development; the shape; the dimensions; the tilt and the cohesion (the continuity of the handwriting). In addition, the speed of writing; the pressure and the rows’ form can also be ranked into this category. The stage of development refers to the extent to which one individual has developed his handwriting skill. The shape refers to the overall appearance of the handwriting, including the way letters are drawn. When it comes to the dimension perspective, the height and width of the letters are taken into consideration, distinguishing small, medium and large writings. The tilt of the handwriting represents the letters’ position in comparison to the horizontal line of the rows. Cohesion refers to the binding mode of the letters and the number of letters drawn with an uninterrupted movement of a pen. The writing speed increases with the evolution of the writing. Pressure refers to the pressing force of the writing instrument (e.g. inferior handwritings present the highest pressure because of the weak coordination and lesser control of the writing instrument).
handwriting and not as a result of external occurrences. The purpose is not to be discovered and this method is often used for ransom or threat letters. Concretely, disguise can be done by distorting the graphic features. This may include imitating a less developed writing – however, it is important to note that a superior handwriting can never be disguised by a person with an inferior writing –; writing with capital letters; writing with the left hand (for the right-handed) and vice versa. A disguised handwriting is easy to discover because the author often preserves some features of his personal handwriting.
The special features, known as individual or particular features, amount to every graphic element used and emphasize the manner in which every letter or group of letters are executed. The special features help avoid the errors in identification which can appear because of the apparent resemblance of two different scripts. General features can easily be falsified by comparing them to the special ones and that is why the special features are really useful in forensic expertise.
To summarise the statements and ideas presented in the article: graphology and graphoscopy are two entirely differing approaches on handwriting, the only common element being handwriting itself, as the object of examination. It can clearly be inferred that from a forensic perspective, handwriting represents an atypical trace. The scientific basis of its identification stands in the cognitive processes of the human brain, which determine the formation of conditional reflexes such as the handwriting. As a consequence, the main characteristics of the handwriting are its individuality, relative stability, reactivity, and naturalness. From the forensic perspective, handwriting features can be categorised as general ones, known as graphic dominants, and special ones, that are used in
4. Methods of falsification Basically, there are two methods of handwriting falsification: disguise and counterfeit. When talking about disguising the writing, the author’s will has major importance: he voluntarily changes his 42
Counterfeit is a specific method of falsification used especially for signatures that can be done by imitation or transcription. The difference between copying and imitation is the fact that while the first one is more accurate, the second one has the advantage of naturalness. The disadvantages are that the copied signatures are often executed with high and constant pressure and the imitated signatures can capture some personal writing features of the imitator, these aspects being of significant use in forensic expertise. 5. Conclusions
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knowledge, only by examining a piece of handwriting one can discover not only the true personality of an individual but also the identity of the author, his peculiarities and his intentions. All these being said, it once more it proven that the biggest discoveries stay not in plain sight but in It is marvellous how such an usual activity as the the smallest, hidden details. handwriting which is done daily and easily by most of the people, can be influenced by so many By Iulia Ioana Dranca different factors and disguises, such an important BabeČ&#x2122;-Bolyai University, Cluj-Napoca amount of information about the person who has written it. It is fascinating that, with proper graphoscopic examination, being of remarkable use in the process of characterising handwriting. Moreover, a specific point of interest can be the analysis of the content of the writing and the positioning on the writing surface.
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REFLECTIONS Jus ad bellum. Benchmark of concepts – just causes of war – for analysing a contemporary ongoing conflict this comparison might predict for the future. Preparing the ground
In an attempt to summarise the events presented around the globe through news and reports (Chervonenko, 2015), we will note that after the overthrow of the then government in Ukraine, in February 2014, serious problems began. In March 2014, in major cities in the East of Ukraine some pro-Russian separatist strikes started, which immediately escalated into armed terrorist attacks with the result of seizing of administrative buildings and police offices. The Ukrainian government responded with an anti-terrorist operation and the whole situation turned into a real military conflict. The Russian Federation is believed by the international community not only to take an active part in seizing the cities of the Donetsk region, but also to supply the separatists with weapons. It is highly reported that the Federal Security Service of the Russian Federation, the Russian Armed Forces and armed mercenaries carried out attacks on local government and media buildings in Donbas (Censor.net, 2017). All in all, it resulted in an invasion of the territory of Ukraine made by regular units of the Armed Forces of the Russian Federation (Mashovets, 2014). In the course of the conflict these territories were proclaimed Donetsk and Luhansk People’s Republics in Donbas, but they are still not recognized by the international community. Military actions are still continuing there (6 April 2014 – present; 2 years, 9 months and counting – Censor.net, 2017) and despite numerous Minsk agreements, the conflict has not been stopped.
In this article, we try to see how, relating to maybe the one of the most eye-catching ongoing war, the one fought in the Donbass region of Ukraine (also called the War in Ukraine or War in Eastern Ukraine), the parts of the war, Russia and of course Ukraine each justified their reasons of entering and continuing the conflict. The reason for this approach does not have any political aspect or message, the viable reason of our analysis is the proximity of the authors to the conflict and the easy access to an extended bibliography. We will watch closely how their reasoning of engaging into this war relate and match to a philosophical, international, and an Eastern European (more specifically, Romanian, the reasons being the originating country of the authors and the second one being the vicinity the country has with the conflict) view of a just war. Additionally, we will try as objectively as possible to compare those reasons to a benchmark of just motives to go and continue a war which we have analysed. Moreover, we will try to emphasize also the adjacent problems and implications Developing the benchmark, outlining the con30 44
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cepts From a philosophical perspective, among the voices who have espoused some form of a just war philosophy, the views of St. Thomas Aquinas and Hugo Grotius can be seen as the most influential and relevant for this paper. In Saint Thomas Aquinas’ works were put down the origins of the just war theory - the most systematic exposition of the traditional just war theory as discussed in modern universities was outlined in the Summa Theologicae (Internet Encyclopedia of Philoshopy, 2017). Aquinas’ thoughts became model for the towering figure in philosophy, political theory and law, Hugo Grotius, who in turn had a paramount concern towards the normative status of war (Stanford Encyclopedia of Philosophy, 2017). St. Thomas Aquinas narrowed down the problem of justifying a war to three main points. He states the first just reason to wage war for a state is when it has authority to go to war, the second being when the state had a just cause – wars for fighting wrongs, to restore what has been unjustly taken away. Lastly, when the warring party goes to war not with the passions of revenge, but in the name of restoring peace (Berkowitz, 2012). Similarly, Grotius, the founder of modern legalist approaches to justifying war, also understands in his De jure belli ac pacis (1968) that by the law of nature, he argues, war is simply an extension of the basic right of every animal to defend itself. He writes and states that it is lawful to repel force by force, and it is a right apparently provided by nature to repel arms with arms. And not only in nature, but also through history and the laws of nations Grotius argues that war is not necessarily to be condemned. Rather, he believed the law of nations allows us to repel violence and injury in order to protect the people.
proportionality principle, as in his vision, the war does not have to appear excessive in relation with the offence or the prejudice. Hence, he cites the classification of just terms belonging to the authors before him: defence, recovery of the unfairly lost goods and sanction administration. To the question “when is it justifiable to go to war?”, the most relevant international statement is the modern condemnation of war found in Article 2, §4 of the United Nations Charter which stipulates that: “All members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations”. The reference to the Purpose of the United Nations is illuminated by Article 1, §1 of the UN Charter, which proclaims that the United Nations exists “to maintain international peace and security, and to that end: to take effective measures for the prevention and removal of threats to the peace, and for the suppression of acts of aggression or other breaches of the peace […]”. War, in the light of the UN Charter, is to be suppressed. War is banned, with the single exception of self-defence. All war is imagined as a crime of aggression, and self-defence against the crime of aggression along is widely accepted as the single paradigmatic instance of a just war.
If we are to search through the Eastern European doctrine, the Romanian Valentin Constantin (2010, p. 424-429) notes that judicially, there are two relevant types of justified wars. The first one is the one in which force is utilized for protecting the nationals that are found on the territory of another state. The only problem that arises is that this type of intervention using force is contested on the grounds that it can constitute the source of politically motivated abuses. Anyway, following the way the UN’s competences are organized and taking into consideration the When Grotius turns to the actual “just causes” instruments it has at its disposal, nobody could that make a war a just war, he highly relies on the state that the customary right of the states of 45
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REFLECTIONS protecting (self-help) has been erased. The second is the authorized war, the only war whose justification is undoubted is the one which is authorized by the Security Council of the UN. The problem here though, says Constantin, would be the occurrence of an ex post facto authorization and implicit authorization. Summarizing and bringing to common denominators, we agree that the resulting prevalent concepts to relate to when justifying waging a war could be: 1 – authorization; 2 – self-help; 3 – self-defence; 4 – just cause/restoring peace. The case study. Filtering the perspectives Going further on, we will firstly take into analysing the justification of Ukraine related to how the war started and still continues these days, followed by the Russian one. As about military actions conducted by Ukraine, things are pretty simple. Ukrainian troops are fighting on its territory (so fully justified, according to the above-mentioned concepts), having the right to protect it from aggression by a foreign state. Besides this right being enshrined, in particular, in Art. 51 of the Charter of the UN, the military response of Ukraine also falls under our justified reason for conducting and, in this case, also continuing a war – it is matching our third (self-defence) and, to an extensive reach, the fourth just war concept (it can be argued that Ukraine tries to restore peace on its territory). Proceeding in analysing how the Russian Federation justifies military actions on the territory of Ukraine, we note that the Russian government claims that it protects the population in Donbass, because it is threatened by a new “Russophobic”, “nationalist” Ukrainian government. It would seem that this reason could fall under one of the four justified concepts when starting a war – the self-help. Even so, it might seem that Russia would have no grounds for its 46
implementation because the population in the East of Ukraine has not been threatened by new Ukrainian government, there is no evidence of the need for such a protection (Kuzio, 2016), there have been no credible reports of threats to the Russian-descent or Russian-speaking-population (Eitze, Gleichmann, 2014). This way, this reasoning should be dismissed. The Government of the Russian Federation also stated that they started the invasion at the request of the then President of Ukraine, Viktor Yanukovych (which would make the Russian intervention an authorized one). Even so, according to the Constitution of Ukraine the decision on the admission of the armed forces of another state may be adopted only by the Parliament, not by the President. Not only this, but there is no United Nations Security Council Resolutions that would allow/authorise the Russian intervention (United Nations Security Council, 2017). It would seem this way, that searching for a match in our just war concepts, the first one – authorisation (of any kind) – does not match in this instance. As we can see, the self-defence reason is (obviously) missing from the Russian justification. However, what is left to reflect on is if the last concept – just cause/restoring peace – could be regarded, in the future, as a just reason for the Russian intervention. As one could only suppose (but not argue legally) that Russia has intervened in the Ukrainian territory in the hopes of stabilising the situation, we intended to let this issue be analysed in further studies when the development and results of this situation would be more clearly analysed from this point of view. Conclusion To conclude, alongside suggesting the reflection upon the benchmark and the above analysis, we additionally recommend reflecting on the probability of the occurrence of an implicit authori-
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zation of the Russian military intervention in Ukraine. Furthermore, attention could be paid not only to the fact that the actions of the Russian Federation are an explicit violation of all ten principles of international law that are its basis – it was stated they are clearly violating the principles of inviolability of borders, territorial integrity, refrain from the threat or use of force, and the principle of respect for human rights (Zadorozhniy, 2015) – but also to the UN and OSCE reports stating in human rights violations, intimidation and violence (Eitze, Gleichmann, 2014). All these only resulted in the “alarming deterioration” in human rights in territory held by insurgents affiliated with the Donetsk People’s Republic (DPR) and Luhansk People’s Republic (LPR) (BBC, 2014).
By Olha Romanyshyn Masters in International Law, Faculty of International Relations, Department of International Law, Ivan Franko National University of Lviv, Ukraine & Cătălin Pop Babeș-Bolyai University, Romania
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INTERNATIONAL FOCUS Implications of mass surveillance in light of the General Data Protection Regulation
In light of the Euro-
So how do we differentiate between the limitations of a right still between the pean Convention on bounds of democracy and a violation of Human Rights, we that right? may notice that some, if not all fundamental Violation, by definition, goes far beyond rights, are being af- what is acceptable as a limitation or interfected by the measures ference of the state which is necessary. The taken by governments European Court of Human Rights already to assure social pro- settled a dispute regarding what “necestection through sur- sity” means in this matter. The decision veillance. The main stated that there must be a “pressing soIoana-Liliana Puica difference regarding cial need” for the measure of limitation of these fundamental rights is whether they rights to be taken (Handyside v. United allow any interference or limitations, sep- Kingdom, ECHR 5493/72). Moreover , the arating the relative rights from the abso- General Data Protection Regulation (herelute ones. The absolute rights do not allow inafter GDPR), besides being the most any violations or limitations, whereas the amended piece of legislation with over relative rights are structured in such a way 3000 texts proposed, is to be making sigthat they might support the state’s inter- nificant changes regarding the protection, ference, but only as an exception, and with storage, and transfer of personal data. certain and strict regulations. Is this, in any way, interfering with our Although the right to privacy is a funda- fundamental rights? mental right in the light of the Convention, its limitations are often drawn sub- First of all, we must examine the term of jectively by the states under the cover of ‘personal data’ and its limits. The GDPR is necessity. To maintain a democratic soci- defining it as ‘any information relating to ety and to assure goals such as national se- an identified or identifiable natural percurity, prevention of crime, and an effec- son (“data subject”); an identifiable natutive battle against terrorism, states have ral person is one who can be identified, decided that mass surveillance is indeed directly or indirectly, in particular by refan efficient measure against the threats erence to an identifier such as a name, an mentioned earlier, and are allowed to as- identification number, location data, an online identifier or to one or more factors sess the limits of this regulation. specific to the physical, physiological, geNational security versus the right to pri- netic, mental, economic, cultural or social vacy identity of that natural person’(Article 4, 50
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INTERNATIONAL FOCUS gives a solution to the individual as “the right to be forgotten”, which implies that the data subject has the right to obtain the erasure of the information stored by the controller, but only when the information is no longer relevant, necessary or lawfully collected (Article 17, Regulation (EU) 2016/679). The controller has the right to refuse the individual’s request under the reason of “public interest”, which means that the authorities are given a margin of appreciation on the subject of one’s fundamental rights and private life. But do we have the assurance that the data will be properly stored and no data subject will be the victim of identity theft or any sort of abuse coming from the authorities? The Regulation mentions that data shall be properly stored, meaning that the controller and the processor of the data shall ‘implement appropriate technical and organisational measures to ensure a level of security appropriate to the risk’ (Article 24, 1.,Regulation (EU) 2016/679). In other words, it implies data encryption, pseudonymisation in some cases, and regularly testing the security of the system. These measures are indeed effective for the purpose they serve, but this involves certain costs and programs, that not many states may have access to, which can make the system, and along with it, the individual, vulnerable in front of identity theft or any sort of abuse. In order to establish adequate measures that reach their purpose of protecting the data storage, supplementary costs shall be taken into consideration, along with the not so positive reaction of the public opinion.
Another question arises as we ponder about the conditions of data transfer to a third country or an international organisation. In the 2013 Safe Harbor case, personal data had been transferred from the Facebook Headquarters in Ireland to the United States of America, where it was processed and stored. The fact that the American Intelligence Program had been made public along with the activities of the National Security Agency (‘the NSA’) has revealed how the United States does not offer proper protection against surveillance. In this case, the Court of Justice stated that ‘legislation permitting the public authorities to have access on a generalised basis to the content of communications must be regarded as compromising the essence of the fundamental right to respect for private life’ (Maximillian Schrems v. Data Protection Commissioner, CJEU C-362/14).This decision attests that the means of communications and the information sent through a social network that have not been made public by the individual must not be seen as an ‘open source’ by the states. The General Data Protection Regulation, from this point of view, makes the transfer of personal data much more complicated than the actual Data Protection Directive.
Under the new rule of law, the third country or the international organisation, which is to be receiving the data, must ensure an adequate level of protection. The Commission involved in data transfer shall take into consideration the rule of law in that specific country, the protecInternational transfers of Personal Data tion of fundamental rights, as well as the 52
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security measures taken to ensure data protection (Article 45, Regulation (EU) 2016/679). In accordance with the extent of the principles which rule the regulation, the information collected, whether it concerns citizens of member states or subjects whose actions take place within the Union, can be easily transferred between EU states, which implies a more effective communication and also the opportunity to develop better interstate relations regarding not only the practice of the law, but also issues concerning public health, security, and commerce.
we must also take into consideration that in the times we live in, in order to prevent acts of terrorism and to combat organized crime, appropriate measures must be taken, and in order to attain such objectives, sacrifices must be made. Even though the processes involves profiling and acts of identification of the individual, the GDPR offers the data subject the possibility to request the erasure of the information collected, unlike the Data Protection Directive, which had traced only general principles, leaving the states a large margin of appreciation.
Although the data collected concerns mostly the daily activities of the citizens, it interferes with the privacy of those individuals, deeply affecting not only the confidentiality of their personal life, but also their freedom of expression and freedom of speech, which are traits of a democratic society, making many people question the real nature and the purpose of these measures.
Although this piece of legislation makes data transfer much more complicated, the questions regarding whether such measures, where fundamental rights suffer limitations, are necessary, still stand. The General Data Protection Directive might be seen as an interference, or worse, as a violation of fundamental human rights such as the right to privacy because of the massive personal data which is to be collected, processed, and stored. However,
By Ioana-Liliana Puica Babes-Bolyai University, Romania
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INTERNATIONAL FOCUS The impossible global regime of the civil nuclear liability
Introduction On March 11, 2011, following a particularly violent earthquake, Japan has suffered a nuclear accident rated as a level 7, “major accident”, on the International Nuclear Event Scale, according to the website of the Fukushima Daiichi NuRebecca-Georgia Dunca clear Power Plant. The above-mentioned level is the highest on the international scale for nuclear incidents, International Nuclear and Radiological Event Scale, and the same level assigned to the 1986 disaster at Chernobyl in Ukraine. As a consequence of the catastrophe represented by the Fukushima nuclear accident, where human lives, material goods and the environment were harmed, the government of the democratic party of Japan decided to close the fifty-four nuclear reactors. The reopening of the Sendai plant owned by Kyushu Electric Power and located in Japan’s southwest, on August 11, 2015 by the Conservative Government of the Prime Minister Shinzo Abe, raises a lot of questions. This situation would be an opportunity to globally define the fundamental principles of civil nuclear liability. Legally, this would result in the establishment of a global and international instrument, and also in the transposition of these rules into the national legislature of the states.
Several regulations of nuclear responsibility exist. First, the Paris Convention on Nuclear Third Party Liability, adopted on the 29th July, 1960 and including 16 additional contracting parties in 2013, has established a special liability statute law for nuclear accidents. It deals particularly with a strict liability that may be incurred through no fault of the operator of a nuclear installation and which regards both human and property damages (Article 3 of the Convention on Third Party Liability in the Field of Nuclear Energy of 29th July 1960), as well as the Vienna Convention of May 21, 1963, regarding the Civil Liability for Nuclear Damages, adding 39 contracting parties in the same year. At the same time, there is a common Protocol from 1988 for the application of these two Conventions, the 1988 Joint Protocol Relating to the Application of the Vienna Convention and the Paris Convention, which reflects an effort to harmonize by extending the compensation system from one of the Conventions to the victims of the states which are contracting parties to the other convention. The concept of victims is also broad since it takes into account not only the countries where the accident occurred, but also the neighboring countries.
However, although the Paris Convention, like the subsequently implemented legislation, seemed to place a heavy burden on the operator of the nuclear industry, in reality these were texts trying to find a compromise between compensation for victims and the protection of the 1. Civil nuclear liability does not yet have an operator. Indeed, these texts set a type of chaninternational harmonization. neled strict liability, by limiting it to a clearing threshold designed to limit the burden of the
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operator in case of an accident. In France, this amount was fixed by Law 68-943/1968 at the equivalent of 91.5 million euros and currently this amount is still valid but it should have been increased to 700 million euros after the Protocol of 2004 came into force.
international agreement concerning nuclear responsibility, common rules concerning the definition of nuclear damage, a minimum amount of repair and jurisdiction are necessary.
2. Background disagreements creating obThe international law has established a com- stacles plementary solution in the Brussels ConvenThough the establishment of a global nuclear tion of January 31, 1963, which provides a liability regulation appears necessary, fundasystem of compensation based on funds from mental disagreements persist. A majority of nuclear accidents. The liability of the state in countries, including France and the United which the accident occurred, as well as that of States, seem to agree on a responsibility which all the states parties to the Convention, were is limited in duration and in the amount of brought into play in order to allow for better repairs to the operator of the nuclear power compensation for the victims. plant accident. However, other states including The Vienna Convention of May 21, 1963, which Japan, consider that the burden of the operacame into force in 1977, provided that the sum tor is unlimited (even though from a certain of the compensation paid by the operator, to- amount, the financial guarantee may be supgether with that of the state, amounts to a to- ported by the Japanese Government). tal of about 300 million euros. Such a system Moreover, all the regulations of civil nuclear remained insufficient as was demonstrated by liability face the same obstacle: the compensathe Chernobyl accident in 1991. This ceiling of tion amounts assured are too small compared 300 million euros is derisory in view of the exto the magnitude of the damage caused by a tent of the damage generated. nuclear accident. In fact, the Institute for RaThe international law went then even further diological Protection and Nuclear Safety asby putting the risk on all the operators of a sessed the damage in a range of 120 to 430 bilnuclear installation, even though they did not lion euros. More precisely, The French Nuclear cause the accident and regardless of their na- Safety Institute (IRSN) said in a study on the tionality. This is actually the objective of the possible financial impact of a nuclear crisis that common Protocol of September 21, 1988, pre- a nuclear accident similar to the one at Japanâ&#x20AC;&#x2122;s Fukushima reactor would cost France about viously mentioned. 430 billion euros ($580 billion)/20 percent of Moreover, The Convention on Supplemen- its economic output. Or, for example, the full tary Compensation for Nuclear Damages was compensation mentioned in the Paris Convenadopted on September 12, 1997, representing tion, which means the one provided for the opa competing international system. However, erator, the state and all the contracting parties, only four states have ratified it on that date, raises to a little over 600 billion euros. meaning that this Convention could not have 3. Different definitions of the existing nuclebecome effective. ar damage However, certain states, such as Japan, are not parties at any of these international treaties. Disagreements also subsist concerning the Therefore, if states want to move towards an definition of the nuclear damages, 55
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INTERNATIONAL FOCUS fundamental for the establishment of the those related to safe nuclear activity. The first ones are subject of a legislation that has been method of reparation and compensation. constantly under construction in recent decAccording to the Vienna and Paris Conven- ades, notably thanks to international law. For tions, human and material loss will be com- the second ones, the protection of victims is pensated. The other damages caused by the ac- currently less well regulated. However, the incident shall be submitted to the discretion of ternal law is likely to evolve into prospective the competent court. law in the light of recent advances in the field The Convention on Supplementary Compen- of environmental liability. sation for Damages, initiated by the United Nevertheless, I think that a common effort exStates, proposes to define five categories of ists in all the states for establishing the ministrict damages: goods, people, environmental mum compensation cap principle. Despite the degradation, preventive measures and conse- fact that only the goods and the people are quencial damages. Japan stands out once again taken into account, and that these amounts in compensating only the goods and the peo- are not the same according to the regulation ple. of civil nuclear liability, a consensus is starting Limiting the liability of the operator has the effect of widening the areas where compensation is possible. In this way, as the amount and duration of responsibility are higher there are fewer areas even entering the field of compensation. For example, in Japan, if the liability of the operator of the damaged nuclear power plant is unlimited, the compensation must bear the damages to property and people from the scene of the accident. Therefore, the damages caused to the environment are not covered. The Convention on Supplementary Compensation for Damages does not require an unlimited civil liability of the operator of the power plant, as long as the latter can guarantee the compensation of these five categories. The compensation will thus be higher for an unlimited liability. Conclusion Nuclear power does not come without risks, so a specific regulation of civil liability for nuclear damages was gradually established. This regulation should however distinguish between the damages caused by nuclear accidents and 56
to crystallize regarding the person of the operator. Indeed, the countries which are or not parties to different International Conventions, consider that the liability for a nuclear accident is limited to the plant operator. As a consequence, regardless of the location of the accident, the victims and the authorities turn firstly against the operator. Finally, countries also agree that victims can receive compensation without regard to their nationality. Considering all these aspects, Fukushima Daiichi debate brings a new focus on international responsibility, one that is not just about theoretical problems and effects of a nuclear accident, but one which animates Plato’s quote: “Accidents and calamities…are the universal legislators of the world.”.
By Rebecca-Georgia Dunca Babes-Bolyai University, Romania
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INTERNATIONAL FOCUS Telling the Difference between Extradition and Other Forms of Illegal Rendition
ing the national laws of both, the requesting and the requested state. Other forms of extraordinary rendition are illegal (i.e. they are not supported by official documents or law Governments seek to provisions like the procedure of extradition). apprehend, prosecute and convict criminals 1.Theoretical and practical aspects of exto protect themselves traterritorial abductions and their citizenry Extraterritorial abductions represent an infrom the perpetrators fringement of customary international law of illegal acts. Historiand of the sovereignty of a nation; they may cally, there has been also violate conventional proscriptions. The Vesna Stefanovska a need to protect both traditional notion that only states are subsuspected criminals and innocent citizens jects of international law, but not individufrom the excessive actions of overzealous als, leaves captured suspects without the crime-fighters. possibility to complain of these violations of The usual and legal method for the interna- international law. tional apprehension of suspects is the process International law views extradition treaties of extradition. Extradition is the procedure as being for the benefit of states and thus not by which a person accused or convicted of a conferring any rights or standing upon indicrime (although not usually in absentia - in viduals (Bassiouni, 1995). Some have argued, his absence) is formally transferred to a state using the principle inclusio unius est exclusio where he/she is wanted for trial or to serve alterius, (the expression of one thing is the his/her sentence (Aust, 2005, p.264). Howexclusion of another), that the availability of ever, it is not unknown for states to resort extradition, especially as provided for by bito methods outside of extraterritorial apprelateral treaties, means that international law hension. These methods include: abduction prohibits by implication alternative methods by state agents acting unilaterally, abduction of obtaining suspects from within the jurisby police agents, expulsion of suspect, and diction of other nations. many other illegal forms. Although extraterritorial abductions cannot In the present article, we will focus on analysbe justified in any case, because they repreing the differences between extradition and sent a grave infringement of national and other forms of rendition. The major differinternational human rights standards, there ence lies in the legitimacy of the procedure. are three main reasons why states resort to Extradition is a rendition of a wanted crimithem. Firstly, the existing extradition arnal offender and it is exercised in accordance rangements might not cover the offence for with the international conventions, respect58
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which the request is made or the individual may raise a legitimate objection to their extradition. Furthermore, the authorities of the state of refuge are either unwilling to prosecute the alleged offender or are unable to do so. And finally, some states widen the reach of their laws beyond their borders in response to expanding transnational criminal activities and are ready to go to great lengths to obtain custody of an alleged criminal wherever they seek asylum (Costi, 2003). This last reason, in particular may create tensions between the prosecuting state and the state of refuge as the conduct might not qualify as a crime in the state where it wasn’t performed, making extradition from that state impossible.
can Convention on the Rights and Duties of Man (Bogota Declaration 1948) also guarantee the right to liberty and security of the person and prohibit arbitrary arrest and detention.
Further, the International Covenant on Civil and Political Rights (Resolution 2200A (XXI)/1966) in its Article 7 prescribes: ‘No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment’. Article 9 of the same convention states that: ‘Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention’. Provisions, similar to the ones mentioned above can also be found in the 1969 American Convention on Human Rights, the 1981 African 2. Consequences of extraterritorial abduc- Charter on Human and Peoples Rights and many other mechanisms for the safeguard of tions and human rights violations guaranteed and inviolable human rights. If the suspected criminal has been subjected to extraterritorial abduction or another form In extraterritorial abductions, international of illegal rendition, in that case his/her hu- human rights treaties as those mentioned man rights have been violated in accordance before, suffer from many limitations. First, if with the international conventions. For ex- the state carrying out abduction is not party ample the European Convention for the Pro- to a treaty, it will not be bound by its protection of Human Rights and Fundamental visions. Secondly, only the European Court Freedoms (ECHR, 1950) in its Article 3 pro- of Human Rights (ECtHR) gives the right vides the following: ‘No one shall be sub- to all persons who have suffered an alleged jected to torture or to inhuman or degrad- violation of a right contained in the Euroing treatment or punishment’. According to pean Convention for the Protection of Huthis, an argument based on Article 3 could man Rights and Fundamental Freedoms to be raised if the abducting agents subject the lodge a complaint against a state party to the individual to inhuman and degrading treat- Convention. In the other cases, the right of ment. Article 5 of the same convention re- individuals to bring petitions against a state fers to the liberty and security as follows: depends on the consent of the state. Even so, ‘Everyone has the right to liberty and secu- the application might be rejected on the barity of person. No one shall be deprived of sis of a procedural defect (Costi, 2003). his liberty […]’, with a few exceptions, ‘and 3. Differences between extradition and in accordance with the procedure prescribed rendition: A legal point of view by law’. The Universal Declaration on Human Rights (UDHR 1948) and the Ameri- Except extraterritorial abduction, there are 59
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INTERNATIONAL FOCUS some other differences that can be noticed between rendition and extradition. The rendition in itself is not a judicial procedure because it lacks a judicial warrant and, in reality, is mostly a highly covert police or military operation, with the risk of infringing upon the sovereignty of other states (depending on the cooperation of that state). If the state had active cooperation in the rendition, in that case there are no breaches of sovereignty, having in mind that the State was informed about the rendition and actively participated in it. During the last few decades, aims of preventive detention have been enlarged from a measure of social defense to a measure to protect national security, especially in the field of counter-terrorism and they were further delinked from criminal justice and trial. Anticipating risk has also become a driving force in criminal justice, integrating national security into criminal justice (Vervaele, 2013). Rendition to justice can be described as a technique by which a suspect is forcibly abducted and transported to another state, if it is impossible to bring this suspect to stand trial by the normal extradition procedure. This means that the rendition is only applied when there is an outstanding arrest warrant for the person and with the aim of criminal adjudication in the abducting State (Nadelmann, 1993). The abduction of Adolf Eichmann by Mossad in 1960 in Argentina for his rendition to justice in Israel was certainly one of the first and most famous cases of extraterritorial abduction known to the public. Eichmann was in charge of implementing Hitler’s Fi60
nal Solution for the Jewish people. After the war, he was captured by Allied forces, but he escaped and fled to Argentina. A complicated operation, involving about a dozen agents, was prepared and executed in May 1960. Eichmann, who was living in Buenos Aires under the alias Ricardo Klement, was secretly photographed and the images were compared to those from his SS file. From the shape of his ears it was concluded that Eichmann and Klement were the same person. An elaborate plan to spirit him out of he country without alerting the Argentinian authorities was put into action. An El Al plane brought an official Israeli delegation to Buenos Aires as a cover for taking the highvalue target back. He was passed off as a sick airline employee, dressed in an El Al uniformas reported by The Guardian (2012). On a global scale, in recent years, there have been several cases of extraterritorial abduction where the rendition was conducted by the CIA (Central Intelligence Agency). Another very controversial case of extraordinary rendition, was the capture of Abdullah Öcalan (founder and supremo of the Kurdish Workers’ Party), by Turkish special agents in Kenya in 1999 with active participation of the United States (Weiner, 1999). Rendition may take the form of deportation or expulsion, functioning in intent and effect as ‘de facto extradition’. In such instances, the rendering state may either provide procedural protections, or its officials may summarily expel the individual, often in violation of domestic or international legal obligations (Fitzpatrick, 2003). The general purpose of renditions, however regular or illegal, is to accommodate the receiving state’s desire to place the individual on trial for rec-
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ognizable criminal offences. In the instance of suspected terrorists, however, security concerns of the rendering state are sometimes the sole motivation, with indifference to subsequent prosecution or detention of the person rendered (ibid). Security detentions must be lawful and used in a matter that does not lead to arbitrariness or abuse of power. Moreover, it must be submitted to prompt and effective judicial review (habeas corpus).
satisfy the demands of bringing criminals to justice, and/or that states are unwillingly bound by such frameworks.
Nowadays it is obvious that extradition exists as a judicial procedure for the surrender of criminal suspects and it has been used by many states as a model of cooperation in combating organised crime and terrorism. In this connotation, we must ask ourselves: Should extraterritorial abductions be used in order to achieve justice by any cost necesExtraordinary rendition is also a special ad- sary? Are they in these cases illegal? ministrative measure, but one that fundaIn my opinion, extradition should be the mentally changes the meaning of rendition, only validated procedure for rendition of as the aim is no longer to adjudicate a percriminal suspects from one state to anson, but to keep him/her in secret detention other. This is supported with the fact that for interrogation. It is used for transfer of courts accept only extradition for transfer detainees to foreign countries for interrogaof a suspect from one state to another. Yes, tion, outside of the law, where there is a risk it is not arguable that in most of the cases that the person might be tortured or subjectextraterritorial abductions are effective, but ed to other ill-treatment. The States involved the consequences that they leave behind are in extraordinary rendition have to apply the enormous. Some of these irreparable conrequirements of international human rights sequences are violations of the international law. In contrary, they will be an accessory to conventions, especially the provisions which these infringements. concerns human rights (e.g. the right to life, Conclusion prohibition of torture, and right to liberty and security) which could be engaged in When extradition fails or is unavailable, a the procedure before the European Court of state seeking to gain custody of a suspect is Human Rights. left with two options: it can consider the case closed or, it can employ methods outside the â&#x20AC;&#x2DC;formalâ&#x20AC;&#x2122; framework. In situations where the By Vesna Stefanovska individual in question is wanted for serious crimes, the latter alternative may very well PhD in Law, South East European University be the chosen option (Mc Dermott, 2014). The apprehension of individuals outside a legal extradition framework would suggest that formal mechanisms for the transfer of suspects from one state to another or to an international court or tribunal are unable to 61
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PROFESSIONAL SPOTLIGHT Interview: Irina Negrutiu National Institute of Magistracy Ms. Negruțiu has been a Criminal Procedure Law Teaching Assistant at ‘Babeș-Bolyai’ University in Cluj-Napoca (hereinafter, BBU) since 2015 and was recently admitted to the National Institute of Magistracy (hereinafter, the NIM), soon to become a prosecutor. Her educational background is quite diverse, having completed her Bachelor of Laws in 2014 and her Master in Criminal Science and Forensics in 2015, both at the same University she has been teaching at, BBU,. While studying at BBU, she graduated from the University of Salzburg’s Summer School, focused on the main characteristics of European Private Law, and also attended a Summer University of Continental Law at the Pantheon-Assas University in Paris. To top it all, Ms. Negruțiu is a former Lawyr.it member, a debate enthusiast, was a member of the Constitutional Law and Human Rights Studies Association (Asociația de Studii în Dreptul constituțional și drepturile omului) and was also an Adult Leader for the National Organisation of Romanian Scouts.
Lawyr.it: First of all, congratulations on being admitted to the NIM. Given your various activities, it is obvious that you are really passionate about the field of law, especially about criminal law and criminal procedure. Could you tell us what you enjoy the most about it? 64
I.N.: The reason why I chose to study law, in general, was that I felt it was the best scenario in which my studies could be directly applied towards helping others. I was mostly right – as a student, I felt most of the things I learned were both interesting and of concern to others. Issues such as: how to challenge a fine, what are your rights as an employee, what can you do if you get robbed – these are just a few of the questions a typical student is asked by friends and acquaintances during his/ her studies. As a legal professional you get to solve these problems and by that you help others. The passion for criminal law and criminal procedure law was the result of more factors. I had a certain gut feeling that this is my calling, however this was great-
“ The reason why I chose to study law, in general, was that I felt it was the best scenario in which my studies could be directly applied towards helping others.” ly enhanced by the passion my mother and her father had for the profession of prosecutor and which seems to have been passed on, as well as the extraordinary professors in faculty (both criminal law and criminal procedure law).
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PROFESSIONAL SPOTLIGHT Lawyr.it: Since you have transitioned relatively quickly from being a student to a young teacher, how hard was it to cross that bridge and how would you describe the relationships with your students? I.N.: The transition was indeed relatively quick and quite unexpected, I must say. A university career was not something I was aiming for as a law student. However, following intensive research on a topic that was underdeveloped in legal literature, which turned into a thesis coordinated by professor Gheorghiță Mateuț, I was offered the opportunity of teaching criminal procedure while studying for my Masters’ degree.
“I would say that what the educational system needs is some adjustment rather than radical change.” While teaching in itself was not something entirely new to me, teaching law was inherently different from anything I had done before and posed two main challenges. Firstly, I had to master criminal procedure law at a significantly more in depth level in order to be able to answer all questions posed by my students. This was particularly challenging, as students at BBU are generally very wellprepared, curious, and intelligent, and would always find interesting problems for us to tackle. Secondly, the seminars were meant to be fun to participate in, but also serious enough for students not to neglect their part in the learning process, and that was a balance not easily 66
struck. Looking back, I must say that teaching was by far my greatest experience so far and I hope I will be able to resume it after graduating from the NIM. Lawyr.it: Now that you have been through such different academic and professional stages (student, teacher, and practitioner), what would you change about the legal educational system, in order to build a better-prepared generation of young law practitioners? I.N.: Before answering the question, there is a clarification I have to make. While it is true that I have been both a student and a teaching assistant, I have not become a practitioner yet. In order to become a judge or a prosecutor, one must graduate from the NIM, which means that I am currently in the learning process rather than in a position where I can call myself a practitioner. As to the question, there is this idea that there must be radical change in the educational system, which has been around for a while now. This constant change led to some instability – it is somewhat confusing for both teachers and students for things to be changing rapidly and significantly, without any predictability. I would say that what the educational system needs is some adjustment rather than radical change. Law schools are in a position where they must provide students with knowledge delivered in the best way and, at the same time, make sure that students are also accustomed to certain assessment methods used in professional
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PROFESSIONAL SPOTLIGHT admission exams (bar exam, the NIM, notary exam and so on). Of course, an ample discussion could be carried out regarding such assessment methods, however in the current status quo I believe the need to adapt to the currently existing methods somewhat limits the teachers’ leeway in changing their approach to teaching.
“Learning more than what is it strictly needed for a student to pass an exam in university or the professional exams is what makes the future practitioner better in his/her job.”
“Law schools are in a position where they must provide students with knowledge delivered in the best way and, at the same time, make sure that students are also accustomed to certain assessment methods used in professional admission exams (bar exam, the NIM, notary exam and so on).”
I.N.: I do not think I can stress enough the importance of going the extra mile – and I mean that quite literally. Learning more than what is it strictly needed for a student to pass an exam in university or the professional exams is what makes the future practitioner better in his/her job.
ogy as a learning instrument, are the key However, at least some, if not most pro- to a better educational system. fessors at BBU, have already made some Lawyr.it: You have a wide background, adjustments in order to better prepare having studied in different environstudents for professional life. I can think ments and different cultures. How imof two telling examples. For instance, as portant do you think it is for a student or a student, one part of the exam which a young lawyer to expand his/her knowlfocused on the European Convention of edge by getting acquainted with differHuman Rights was drafting an applicaent types of legal perspectives?
tion to the court. The other example is that of criminal procedure law seminars which, in the second semester, require students to draft certain documents which are used in a criminal trial. I believe that this kind of adjustments, in which theory is intertwined with practical aspects, and a better use of technol-
There are two major benefits that one gains from participating in an international university programme. The first one that comes to mind is gaining knowledge – finding out that the same problem has multiple possible outcomes depending on the law system and the applicable law. Reflecting on the reasons at the core of such differences gives you a better overall view and a clearer perspective. The other, and probably more important one, is meeting people from all over the world, who come from very different cultural backgrounds. Not only does this 67
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PROFESSIONAL SPOTLIGHT make you more tolerant to different views of the world (which, more often than not, translates into different and sometimes even opposite regulations), but will also connect you with professionals who can offer you support in your research endeavours and also help you make new friends.
â&#x20AC;&#x153;There is only so much that school can do to prepare us for the profession, but there are plenty of activities to complement the knowledge gained in university and develop the necessary skills and abilities.â&#x20AC;? Lawyr.it: A follow-up to the previous question: since you were and are active in many different organisations and involved in so many projects, do you feel that students can benefit from being participants in these types of extracurricular activities and why? Tell us your secret, how can a student juggle law school, while also being involved in different organisations? I.N.: Law school offers you the proper instruments to answer the question of `what to do?`, while the right extracurricular activities will help you find the answer to the question of `how to do it?`. There is only so much that school can do to prepare us for the profession, but there are plenty of activities to complement the knowledge gained in university and develop the necessary skills and abilities. A student has quite a lot of possibilities, ranging from internships, moot 68
court competitions, different non-profit organisations, debating championships, and so on. Most of these activities involve team work, which I believe is crucial even for those who do not follow a profession which requires team work abilities. All future professions involve quite a lot of interaction with people, so students must learn how to understand others, make compromises in order to better achieve a common goal, and express themselves in the best way. Lawyr.it: Since you have a mixed educational background, as in your Master of Laws in on Criminal Science and Forensics, but you also studied European Private Law, do you feel this has made you a better practitioner, with a strong general knowledge, or do you think students should focus on just one field of law and stick with it? I.N.: In order to have a better understanding of law, I believe students (but also working professionals) have to study both public and private law thoroughly. That is not to say one should not specialise in a certain field of law, but without losing sight of the bigger picture. That is even more stringent as most problems practitioners face involve more than one field of law, so in order to tackle them correctly, they must have this broader view and possess knowledge regarding all law fields involved. Lawyr.it: We are nearing the end, so we must ask you, what can you tell us about your experience as a Lawyr.it member, what it meant for you and if it had any impact on your career?
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PROFESSIONAL SPOTLIGHT I.N.: I joined the Lawyr.it team right after the first issue was published. Not only were the founders my close friends from faculty, so that there was a certain appeal to a group activity, but I also thought that Lawyr.it had great potential. To my knowledge, there was not a single fully student-powered law journal in Romania and there was an acute need for information – not only legal articles, but also information regarding internship opportunities and summer schools.
(while proof-reading and documenting for the Dictionary). Last, but definitely not least, as the Lawyr.it team expanded, I met new people and gained some new friends. Lawyr.it: And finally, our trademark question: if you have to give one piece of advice to law students and young professionals, what would you recommend them?
“In order to have a better under-
I was also incredibly excited to create and standing of law, I believe students coordinate the Lawyr.it Dictionary team, which had a difficult job – to provide (but also working professionals) readers with accurate definitions and a have to study both public and priright translation of legal terms. There vate law thoroughly. ” were very few such dictionaries, most of which did not take the difference between legal systems into account when providing the corresponding term and none of I.N.: Stay connected – not only to changwhich listed references to relevant legises in the legislation or new trends in legal lation or legal articles. reasoning, but to each other! Law is such vast branch of knowledge that it is im“Lawyr.it offered me not only a apossible for a single person to master it meaningful way to spend my past all. So you need others to fill in the gap time, but also team work experi- and offer you support to deal with every ence and some exposure.” situation, the best way possible. Lawyr.it offered me not only a meaningful way to spend my past time, but also team work experience and some exposure. Clearly, the experience was a plus on my résumé, but I believe that the time spent working for the magazine was time very well spent – I was constantly improving my legal English, editing skills, and learning about other legal systems
By Cătălin Sabău
QUESTION OF THE ISSUE
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QUESTION OF THE ISSUE What was the most difficult subject for you as a student?
Now that exams are over, we decided to ask some students and young professionals what was the most
difficult subject for them, as law students. This Question of the Issue presents their answers and we hope you will enjoy reading them. We kindly thank them for their responses!
By Diana Lucaciu, Oana Bahnean, Alexandru Rotariu
“I think that the most difficult subject for me as a law student was administrative law mainly because I am a pragmatic person and also because I always knew I wanted to become a lawyer specialised in criminal law. The subject itself was sort of demanding but this was not the problem. I think that I found this subject particularly challenging because of the fact that I liked other subjects that were more useful for the bar exam. All in all, the thing is if you study hard you always find a way, so that is what I did. I started studying interesting administrative law cases that were very useful for the exam and that was it. After I passed the Bar exam, I managed to focus on real cases that were more challenging than a particular subject for law school.” Bogdan Urs Attorney-at-law, Cluj Bar “Initially, like most of the Law School students, I thought that Civil Law would be the proper answer, considering that it is a three year long study with a lot of difficult aspects which you have to put together in order to reach the correct answer. Then I realised that, in fact, the most difficult subject for me during Law School was Civil Procedure. I studied it during the final year, just before the degree exam and the magistracy exam. I knew that it was one of the most important subjects during Law school, it was someway different than what I studied before and it had a lot of connections with civil law. Moreover, mix-ups were impending, considering that I had already studied criminal procedure the year before and we also had to work with both Old and New Civil Procedure Codes.” Mihnea Stoicescu Jugde, Sector 2 Bucharest Local Court 72
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“I will start by saying that the first year as a law student was the hardest, specifically the first semester, only because everything was extremely new to me and I was trying hard to adapt. Also, finding the best way to study was quite tough and I am glad that I eventually figured it out. The most interesting subject for me in the first semester was also the most difficult one, and that was Roman law. I thought that studying for this subject was going to be a piece of cake, but soon I found it to be much more complicated and detailed. The reason was that it contained a lot of topics that would be studied in the following semesters and Latin maxims and phrases I have never heard until then, which are often used in legal terminology. But although it was not an easy subject at all, it helped me understand better other subjects and moreover, realize the importance of Roman law, as it was the perfect introduction to our legal system.” Erdei Alexandra Maria, 3rd year, Faculty of Law, Babeș-Bolyai University “In my opinion, civil law is the most difficult legal area to study. First of all, we should be aware of the fact that this area involves a lot of sub-branches, each with its own particularities, but with significant connections between them. So, basically, even if you enjoy real estate law, you will not be able to handle this area properly without facing tort law issues. Also, even if the Romanian civil law legislation has not seen many changes in the last centuries, the interpretation of the legal provisions in this matter has always been establishing various solutions for all the issues in the area. As an impact, I think that civil law, as a whole, cannot be defined as a stable branch of law. An important fact that makes civil law more complex is its current tendency to capture business law inside it. For example, in Romania, the Commercial Code has been repealed and its traditional rules have been included in the Civil Code. This solution seems to determine certain confusions between the features of these branches. Many Romanian authors consider that the new facets of the business law as a part of the civil law are yet to be settled.” Alexandru Matache LL.M, Faculty of Law, Babeș Bolyai-University
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QUESTION OF THE ISSUE What was the most difficult subject for you as a student? “To me, the hardest subject so far was Criminal Law, the General Part. Looking back, I think it was not only the subject which at some points appeared as it was no way you can master it whatsoever, but also that the exam itself was reputed to be an insurmountable obstacle. It was definitely complex, therefore I felt impelled to rise up to the challenge. The thing is, as a law student, there is a lot of pressure, given the fact that you are responsible for the way you study a certain subject because it is basically the way you will use the knowledge required in real life. It was even more so when approaching Criminal Law, but the experience was rewarding. Although I spent a great deal of time studying, it was quite an achievement to feel that I did have a proper use of all the concepts I`ve learnt.” Diana Bâlc 3rd year, Faculty of Law, Babeș-Bolyai University
“I believe law school implies dealing with subjects that are a challenge per se. To me, difficult does not only mean a subject that requires a long time to study in order to master it, but rather a challenge that makes me feel outside my comfort zone. Such a subject was Tax and Finance Law, mostly because the concepts from this branch of law were completely foreign to me as they are based on other concepts from areas I have not had contact with, such as economics. While I was studying for this subject, I always felt like I was missing something and that was because I did not possess enough financial basis to build my reasoning on. I find it distressing to simply memorise information, so I put some effort into grasping some of the most important notions in economics. Of course, this required additional study time and dealing with unfamiliar terms, making me perceive Tax and Finance Law as overwhelming.”
Sabrina Matei, 4th year, Faculty of Law, Babeș-Bolyai University
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“The most difficult subject I had to deal with during Law school was Civil Law. Not only it is very wide, but it also requires advanced logical reasoning. In order to understand the regulation, a considerable effort should be made and it is one of the first subjects which teaches us how to use the legislation during the learning process and, later, in our carrer. Furthermore, Civil Law is the basis for the whole judicial system, that is why we need to know it solidly and, thus, it covers most of the years spent at the university. Anyway, to me, this area was the most exciting and challenging in the curriculum and I made my carrier choice based on this “close relationship.” Viviana Dinu Auditor of Justice, The National Institute of Magistracy
“After more than seven years since I graduated Law School at the University of Bucharest, I was delighted to receive such a surprising question as what did I consider to be the most difficult class and for what reason. As most law students would agree, we are all building virtual cathedrals with the power of our minds. Law school is in itself very difficult as you need to pursue a permanent process of interconnecting the various fields of regulation and legal institutions towards a coherent finality. Nevertheless, after you discover your own way of learning, all subjects may become more or less accessible and success is strictly dependent on the expectations of the teacher and of the students. This cannot be the case of Forensic Sciences. The subject in itself is the most spectacular, but totally unusual as it is expected that law students learn very technical information such as the components of a microscope and a lot of physical, chemical, biological phenomena or even aspects of biology. The University of Bucharest has a beautiful Forensic Lab and all our seminars were held there, but its one thing playing with the spectacular gadgets, and a totally different thing to actually learn the theory and strings behind it all. All in all, I fondly remember the classes and seminars of Forensic Sciences.” Alin-Ioan Axente Managing Associate STOICA & Asociații 75
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QUESTION OF THE ISSUE What was the most difficult subject for you as a student? “Thinking back to law school, several ideas come to mind when asked which subject was the most difficult. I believe that one needs to be honest about his past and present and therefore, in this respect, many, if not all subjects were difficult, each in its own unique manner. However, the truth is that some were more difficult than others, one’s view depending on his or her qualities and flaws. There’s a joke that runs among law school alumni in the Netherlands: we all start as experts in public law, but only some evolve and become good in private law - in my case, I apparently never evolved. Jokes aside, I was always good in public law subjects and thus, they seemed simpler, regardless of the many hours spent trying to understand them. As opposed to the former, private law was more of a challenge, starting from the ground up. If I had to be completely honest and pinpoint a subject in particular, I would say that neither one… – or property rights. ” Dan Moroșan PhD Candidate, Faculty of Law, Babeș-Bolyai University
“If I would have to choose the most difficult subject until this moment, that would be Criminal procedure. I find this one to be complex and challenging because you have to corroborate many articles and understand the reason behind them. But this is what makes it so intriguing and attractive. Also, it links with Criminal law which I equally like very much and would be the career I would pursue in the future. It is the subject which implies a practical side of law and that is another reason I find it so interesting.” Valentina Dinu 3rd year, Faculty of Law, University of Bucharest
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What should be the next issueâ&#x20AC;&#x2122;s question? Who should we approach? Would you like to contribute? We welcome your suggestions at firstname.lastname@example.org by April 15! 77
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DEVIL'S ADVOCATE Should large social networks (Twitter, Facebook, etc.) be sanctioned for allowing fake news of great public interest to be posted and shared? This issue's advocates: PROs: Vlad Coman Vlad is a second year student at the Faculty of Law from Babes-Bolyai University in Cluj-Napoca. Last year he had the chance to gain some experience in the field by working with a local law firm. He is interested in public speaking and academic debate. He aims to follow a career as lawyer. CONs: Bernadett Koroknai Bernadett is also a second year student at the Faculty of Law from Babeș-Bolyai University in ClujNapoca. She has a passion for law ever since studying it for the first time during her Erasmus semester. She is also a graduate of the Faculty of Letters from Cluj-Napoca in the field of translation and interpretation in Romanian – English – German.
Debate Foreword. Moderator's note After the rumors about fake news intentionally being spread through the internet during the US elections turned out to be true, a lot of questions began to rise: Do we need to be concerned? Who needs to take action? Who is responsible? A few states decided that social networks need to be held accountable for this, because allowing this sort of news to reach millions of people without putting any constraints should not be left unpunished. Whether or not this is a good idea, we will let you decide after you read the arguments for both sides of this matter. We hope you will enjoy this battle of ideas as much as we did! By Adina Ionescu 80
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Opening Remarks Vlad Coman: The world has 1.2 billion Facebook users, 540 million Google+ users and almost 300 million Twitter users. Given the fact that of the 7 billion of Earth’s inhabitants, only about 2,4 billion have Internet access (through a computer or a mobile phone), those first figures seem pretty big. What we are proposing in the following paper is to understand how do these big social networks generate income, why is that hugely important to this given debate, and how allowing them to perpetrate fake news of great interest can generate a great deal of misconception of the world that surrounds us. How do social networks make money? As we all know, we have free access to Facebook, Twitter, and other social networks. Knowing that they have thousands of employees, expensive servers to run and impressive headquarters, one might start to wonder how they can afford all that. To cut right to the chase, the answer would be advertising: they display adverts that every user sees while they navigate. Depending on how many people see and click those adverts, these social networks get paid. Last year, for instance, Facebook calculated how much income generated each user and the result was a bit over 5$. Every one of us contributed with 5 dollars to Facebook last year, even if we had no idea, just by using their product (free of charges). The conclusion is that they need us, because the more users they have, the more revenue they receive. Why does that even matter? What we have proven so far is that big social media is financially interested in us clicking links to third party websites, which is why a strange thing came into existence: clickbaiting. This term designates a tendency especially for news broadcasters to come up with sensationalistic headlines or intriguing thumbnails just to attract social media users. Those websites generate income through the exact same mechanism explained above. Do not be fooled into thinking that news providers, when they show up in the advertising section of your newsfeed, do not follow the money circuit aforesaid, because they do. This is why they too are financially interested into people hitting the click
Bernadett Koroknai: Since the last U.S. election, the importance of fake news in constructing the public’s view of the world has increased considerably. Because of fake news, in Washington D.C., a gunman has ‘self-investigated’ a pizzeria that was falsely reported to house a paedophilia ring. The news was published on many social networks and again highlighted the problem of who, and to what extent, should be sanctioned for the spread of fake news. Many politicians and organisations, even whole countries, like Germany, want the sanction of social media networks such as Facebook, in case they fail to delete fake news within the first 24 hours of notifying them about their existence, German Chancellor Angela Merkel together with the Justice Minister Heiko Maas want a fine of up to 500.000 euros. Surely, even the idea of sanctioning a social media site that is only the medium on which news travel, would equal the sanctioning of a piece of paper if we would have to compare it to the days when social media was inexistent but fake news still made the rounds. It sounds utterly inconsequential. Social networks like Facebook, Twitter and the others are Internet service providers that have made our daily communications much easier. You are a click away from your friends and family. The use of these networks can be done just by registering and clicking the Terms and Conditions, which most of do not read, yet we want them to be sanctioned for our misconduct. For example, Facebook, in its Statement of Rights and Responsibilities clearly states that the users should not post fake news, hate speech, and other malicious or unlawful materials. They also state that they cannot be held liable for these misconducts of the users and any lawsuit arising from these unlawful materials will not involve them. As we know, by clicking the terms and conditions, we agree to a contract, which is law between the parties. The fact that one of them did not read the specifications is not the failure of the other. Moreover, according to Section 230 of the Communication Decency Act, social networks are given an immunity from liability for the information provided by others and in compliance with § 12-14 of Directive 2000/31/EC social networks are not liable, thus cannot be sanctioned for the mere conduit (transmission of information provided by a recipient), caching (transmission and temporarily storage of information provided by a recipient), and/or hosting (storage of information provided 81
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DEVIL'S ADVOCATE button to their websites. Now, what would take for an average Facebook or Twitter user, who usually scrolls down boringly through his/her newsfeed, to click on a news website? The forecast? The fact that a flight got cancelled? The Government’s new tax policy? Most likely, no. It takes extraordinary news to catch someone’s eye: a war, a surprising cure to cancer, or “the wonders that onions make”. Sounds familiar? Sadly, it does. After clicking on those bombastic headlines we realise we’ve been fooled. That was fake news. There is no new cure to cancer. Surprisingly, we keep seeing similar clickbaits every day, and those “news providers” do not cease to exist. That is because everybody is directly interested in those news to be out there and to generate clicks despite the fact they only seek to mislead. How does that affect us? In Australia, fake news was shared regarding blameable religious practices in the Muslim communities. Fake American news regarding the Chinese elections in 2016 was a huge argument for the Chinese authorities to censor even more the Internet there. In Romania fake news about “scientific correlation between vaccines and autism” generated an unprecedented mass hysteria with hundreds of parents refusing to vaccinate their babies. The elections in the USA last year generated some mind-boggling headlines too: “Pope Francis shocks the World, endorses Donald Trump for president” (Ending the Fed)/ “WikiLeaks confirms Hillary sold weapons to ISIS” (The Political Insider) and the list goes on. Such dramatic effects like people taking political standpoints or putting their children’s lives in jeopardy due to fake news motivate us to take action and to demand big social media to be sanctioned for allowing fake news of great interest to be posted and shared. One’s financial gain should never justify the other’s misinformation.
by a recipient) of information.However, even with the existence of their own Directive, Martin Schulz, President of the European Parliament, considers that since fake news are a good source of income, they should become expensive fines for the social networks that act as a medium to display and access them. The problem is, what happens when the news is being covered as they are displayed? For example, the details of a mass shooting in the first few hours of the coverage are usually imprecise, should the social networks be fined for that too? Surely not. The most important thing, though, is that social networks are working towards a solution. Albeit they could not counteract fake news during the elections, they have since updated policies and assume their responsibility to delete fake news as soon as detected. Facebook for example is working with Snopes, Factcheck.org, ABC News and PolitiFact to identify fake news and eliminate them. Google will ban sites that ‘misrepresent, misstate or conceal information’. This good will nature of the social networks for wanting to work together with involved parties to root out fake news should be considered the first and most important step which must be helped by the more than 2 billion users, by reporting fake news and checking facts themselves. Vlad argues in favour of sanctioning social networks, because as long as they gain money if the sites containing fake news are accessed, they also need to have responsibilities. He states that the situation is unacceptable due to moral reasons as well, because someone’s misinformation should not be a source of money for anyone. On the other hand, Bernadett talks about how the social networks are just a platform on which this news is displayed, being the users’ fault if such information gets spread. Her point of view is sustained by the fact that users agree with the terms and conditions of the social networks when they access them, and such situations are already regulated there, along with the already existent laws which give social networks immunity from liability for the information provided by others. Moreover, social networks are already taking important steps to stop such incidents.
Moderator’s Note: Vlad argues in favour of sanctioning social networks, because as long as they gain money if the sites containing fake news are accessed, they also need to have responsibilities. He states that the situation is unacceptable due to moral reasons as well, because someone’s misinformation should not be a source of money for anyone. On the other hand, Bernadett talks about how the social networks are just a platform on which this news is displayed, being the users’ fault if such information gets spread. Her point of view is sustained by the fact that users agree with the terms and conditions of the social networks when they access them, and such situations are already regulated there, along with the already existent laws which give social networks immunity from liability for the information provided by others. Moreover, social networks are already taking important steps to stop such incidents. 82
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Rebuttal Vlad Coman: I’ve identified 4 main points in Bernadett Koroknai: I think that the economic Bernadett’s opening statement. In the following factor in this debate should be considered from I will summarise and try to counter-argue them. various sides. Vlad pointed out that advertisements are at the core of social networks’ reve1. Big social media is only a “mean of travel” nue and every user contributed $5 to their infor fake news, therefore it would be inefficient come, but this income enables social networks to sanction them. to encourage economic growth and jobs through three effects: being a tool for every marketer, a I believe social media is not only a place for platform for application developers, and a core fake news to be disseminated, but Facebook and for global connectivity. It is estimated that Faother similar platforms are the very reason fake cebook alone has enabled $227bn of economic news exist. I have made an entire point in my impact and 4.5 million jobs worldwide in 2014 opening statement on the financial convenience alone. Social networks have the tools and means for so-called news broadcasters to deliver such to help businesses present themselves in a reachfake news. To adhere to Bernadett’s compari- able and easy way, thus employing more people. son with the old days’ newspapers, fake news The marketing effects that were facilitated by Faexisted only because they were displayed in a cebook in 2014 are estimated to be worth $148bn newspaper. Therefore, we would not sanction and the economic impact of the developer tools “the piece of paper”, but the legal person that al- reaches $29bn worth of economic impact. lowed for the fake news to be published in order for that not to happen again. We need to sanc- Their economic prowess is so important, that tion big social media because they gain profit you have to consider twice if you want to hold them liable for every fake news that appears on from allowing and encouraging this practice. the internet. By allowing these kind of lawsuits, 2. As the convention between the user and the where you sanction mere mediums that allow provider states that the provider should not people to connect with each other, you do not be liable for the user’s fake posts, there is no reach the essence of the problem (namely the reason to sanction the provider. Moreover, people who construct these fake news), but you there are regulatory documents worldwide could be starting an avalanche of lawsuits that that state the same (for instance, European have the potential to weaken their internal economy, forcing them to dismiss employees, thus Directives). increasing the unemployment rate. Less skilled Although Bernadett’s point is perfectly vi- people that can work on the system means worse able for any jurist who reads it, we must keep quality, which affects app developers, marketers in mind that this debate is about whether we and every other user too. should change the legislation or not. To appeal to a legal distinction, this debate is a judgment A basic principle of criminal law is that you cannot be held accountable for another person’s acin equitas, rather than one in jure. Moreover, altions and cannot be sanctioned for them either. though any contract is law between parties, that If we are to sanction social networks, who are doesn’t mean that they are not regulated. It’s the merely the medium which transmits the inforlegislator’s duty to intervene by allowing some mation, we would be acting against this basic clauses and banning others. De lege lata Berna- principle on one hand. On the other, we would dett has a point. De lege ferenda I believe it is completely disregard these social networks’ actime to sanction big social media. tive steps in combating fake news. Facebook has 83
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DEVIL'S ADVOCATE 3. The problem with the news being covered upgraded its way of reporting fake news and flagging them as unreliable sources. Google Adas they are displayed. Sense will automatically ban everyone who does Clearly, in a situation of mass shooting, an in- not comply with its new, stricter rules to advercorrect estimation of the number of victims tise. doesn’t qualify as “fake news”. To be fake news there should not be any shooting. Slightly in- The problem here is to identify the source where accurate side information does not misinform the fake news originated, and make those people or deceive. It is a great achievement for our so- responsible for their actions. They are the reaciety to be able to cover events as they unfold. son why some parents in Romania didn’t vacciBasically, every one of us can turn into a news nate their children, because they falsely thought reporter due to social media. In our view we it would cause cancer. They are the root of that couldn’t, by any means, sanction a social me- onion that makes wonders. dia platform for allowing some news that aren’t I do understand Vlad’s point that fake news can perfectly accurate to be posted and shared as and did lead to crimes and that not just the peolong as the core information is authentic. ple who acted because of them should be held liable, but also the people who stand behind it. 4. Social networks already try to solve this The problem here is that social network comproblem by themselves. panies are not the ones who write and start the The problem is that the remedy is not efficient. spread of fake news. They already identified the The main response from the social platforms problem and are working to solve it, but with was adding the institution of false flags. What such a big system of connections and millions of this means is that if readers appreciate news to lines of code to write, test, and then implement, be fake, they can “flag” it, meaning that other fake news cannot be wiped out overnight. They readers could see that tag while they see the took the necessary steps for the problem to be solved, and now it is up to the wide public to article. It is not really clear, though, how can educate themselves on how to research news, on this change people’s behaviour towards reading what they should and should not believe. a flagged article. As a result, there’s hardly any change in the fake news department, and that is A computer code can only give the means to help just because any article could be flagged as fake, take action (e.g. possibility of flagging and rethis system being extremely vulnerable. We porting of fake news), but the human factor is need social platforms to take action not by flag- here the decisive one. We need to stop making ging articles, but rather by verifying every sin- up news for profit, we need to stop reading, begle news coming from reporters that had shown lieving, and spreading them. Fake news is a manmade problem and can only be solved by us. a consistent tendency of posting fake news. Moderator’s Note: At this point, Vlad refutes Bernadett’s line of reasoning which concerns the existent tools created to regulate the display of fake news, arguing that not only they are and should always be open to changes, but they are also not efficient. He also nuances the portrayal of social networks, pointing out that more than a mean of news to travel, they also represent the very reason why it is so easy for fake news to exist and spread. Bernadett, on the other hand, points out that Vlad’s solution does not combat the root of the problem: the people behind the fake news. As long as we have social networks who are doing their best to fight against fake news, our focus should be to seek their source and try to combat that, not some companies who don’t create them and proved to be very useful to our society from so many perspectives. I hope this debate was a pleasure to read, and the conclusions will help you form your own opinion!
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Closing Remarks Vlad Coman: One of the main clashes in this debate was the economic mechanism that triggers the need of social networks to support the existence of fake news. As my point demonstrated that, I believe this is a major argument in sanctioning social networks. It’s undeniable that they provide jobs and pay taxes, but this couldn’t, by any means, justify their bad faith in dealing with this issue.
Bernadett Koroknai: I believe that Vlad’s idea of verifying every piece of news from reporters that have shown a tendency to post fake news is satisfying and achievable, but, again, there are many fake news that are not posted by reporters, but other people or entities. The number of these actors is so high, that Vlad’s solution only applies to small sectors of the problem at hand.
What I think to be of importance is not to find a cure for the immediate effect of the fake news, but to rather go through a process to eradicate the problem at its core. This process has been started, as I said in the opening statement, by the social networks. They are trying to give a good solution for every party involved by implementing what I believe to be the first generation of means on how to combat fake news. Legislation that is in effect now should continue to be applied, and whether or not it needs Although Bernadett has a point saying that we changing should depend on the success of the need to stop propagating fake news, we (the big measures taken. public) don’t seem to mind, and without any legislative regulation in this matter, we will continue to read and believe what we are served. Also, Facebook, Twitter and the rest cannot be considered just a third part in this problem. Being directly interested for the fake news to be viewed by as many people as possible, they’re a part of the problem. Most of the sites that provide fake news would not last too much in a free market economy, but they thrive because of the social platforms which propel their articles to the big public. Therefore, by sanctioning these platforms we would deal with the main problem by dealing with the problem’s way of propagating itself: social networks.
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