No. 65Â· I - 2019
M A G A Z I N E
Magazine of the European Law Students' Association
60 YEARS OF EVOLUTION: THE EUROPEAN COURT OF HUMAN RIGHTS FROM 1959 TO THE PRESENT DAY
60 Years of Evolution: The European Court of Human Rights From 1959 to the Present DayI
LexisNexis launches Global Foundation to Advance the Rule of Law
The ELSA Rule of Law Advocacy Campaign
by Roderick Liddell
by Nigel Roberts
by Filipe Machado
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REGISTER LUXEMBOURG NOVEMBER 6-10, 2019 UIA CONGRESS
Main themes: Innovation and the Law: Where Passion Meets Reason Doing Business in Respect of Human Rights
ABOUT ELSA ELSA Members x 69,000
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Editor-in-Chief: Matteo Alessandro Design: Florian Weisbecker, Irem Ozener Proofreading: Jake Camilleri Contact: firstname.lastname@example.org
Dear All, It is with a very heavy heart that I 'pen' this message. In just a few hours, my term will come to an end, and I will hand over the reins to Irem. I would like to thank you all for making this year what it was. Matteo Alessandro Vice President for Marketing ELSA International 2018/2019
Thank you for attending ICMs, as well as SAM. Thank you for working as hard as possible to help me make Marketing what I believe to be a successful area. Thank you for my chairs throughout the meetings for keeping me in line. I would probably still be rambling on in Thessaloniki if you hadn't. (Margot, Irem, Ralitza, Sarah). Thank you to my countless secretaries, thank you to my ELSA Spirits, and thank you to the Organising Committees who made these meetings possible. I can not thank my International Team enough. My indefatigable design team, who helped me solidify ELSA's brand. (Margot, Marek, Florian, Chicco, Alexandra, Nigar, Beatriz, and Teodor) Thank you to Stela for her flawless work with the Synergy. Thank you to Andrea, the one man advertising team. Thank you to my board. You were never colleagues to me. You were never house mates. You were always family. You have made me a better person, and helped me grow professionally and personally. You've also made me way too central European for my liking, but a month in Malta will sort that out. I wish the best of luck to Ä°rem. This area is in very good hands. I hope you succeed in fulfilling all your goals. I have complete faith in you. Hard working, relentless, and quick to learn. This Association is lucky to have you. No year is perfect, but you guys made this one pretty damn close through all the ups and downs. I can only hope that I did
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justice to the magnitude of this area. Life goes on, but I will always be here for each and every one of you. I hope to see as many of you in Malta as possible. For one last time, VP MKT over and out.
TABLE OF CONTENTS HIGHLIGHTS
60 Years of Evolution: the European Court of Human Rights from 1959 to the present day
LexisNexis Launches Global Foundation to Advance the Rule of Law
The ELSA Rule of Law Advocacy Campaign
PARTNERS' AND EXTERNALS' PERSPECTIVE
06 10 14 16 18
60 years of evolution: the European Court of Human Rights from 1959 to the present day Demystify AI LexisNexis Launches Global Foundation to Advance the Rule of Law Does the Lawyer of the 21st Century Need to Be That Different? Steps towards the protection of the rule of law in the European Union
20 21 22 23 25
The 7th edition of the EHRMCC
WTO Reform and the G20 Summit in Osaka: Rejuvenating Global Trade Law
The potential of International Conferences of ELSA (ICE) The elsa rule of law advocacy campaign Training in the age of technology
The energy sector in international trade: An ongoing debate in the case of the 17th edition of the John H. Jackson MCC
THINK GLOBAL, ACT LOCAL
31 34 36 39
The principle of legality in the judicial system: the main problems of implementation Non-Refoulement and Human Rights Law Human rights protection in the European space: history and future perspectives New trade mark Directive (EU) 2015/2436: the most remarkable changes brought to IP
42 44 45 48 49
Protection gap of unrecognized environmental refugees Is access to drugs a human right? An overview of Emissions Trading in terms of the European Emissions Annual ELSA Malta Moot Court Crime 101 Empowering Students Through Activism SYNERGY Magazine | 5
60 YEARS OF EVOLUTION: THE EUROPEAN COURT OF HUMAN RIGHTS FROM 1959 TO THE PRESENT DAY
PARTNERS' & EXTERNALS' PERSPECTIVE
Registrar of the Court1
At the formal inauguration of the European Court of Human Rights in Strasbourg on 20 April 1959, on the occasion of the 10th anniversary of the Council of Europe, Lord Arnold Duncan McNair (who would be elected President of the Court five months later), made a short speech before the Judges who took their oath on that day.2 The European Commission had already been in operation for more than four years at this point and had dealt with a number of cases. According to the European Convention on Human Rights, adopted nine years earlier in 1950, the Court could only be constituted when at least eight Contracting Parties had recognized its jurisdiction as being compulsory. This condition was fulfilled on 3 September 1958 when Iceland and Austria deposited the declarations required with the Secretary General of the Council of Europe. In fact, the European Court of Human Rights nearly never saw the light of day. At the Senior Officials Conference, held in Strasbourg between 8 -17 June 1950, a serious difference of opinion had arisen over the fundamental question whether a European 1 The views expressed in this article are the author’s own. Thanks are due to Rachael Kondak of the Registry for her assistance. 2 Speech by Lord McNair, at the formal inauguration of the European Court of Human Rights at Strasbourg on 20 April 1959, Yearbook of the European Convention on Human Rights, The European Commission and European Court of Human Rights, 1958-1959. 6 | SYNERGY Magazine
Court of Human Rights should be created at all. The representatives of a number of States were opposed to the creation of a Court on the ground that the needs of the Convention would be covered by the Commission and the Committee of Ministers. Other representatives felt that only the creation of an independent Court would be able to ensure the efficient protection of human rights. The potential of the Court to limit national sovereignty was a concern.3 The compromise solution of optional jurisdiction was sought. Only those States who wanted to would declare their willingness to accept the Court’s jurisdiction (and for a limited period of time). While in 1959 eight Member States of the Council of Europe had accepted the jurisdiction of the Court (Austria, Belgium, Denmark, The Federal Republic of Germany, Iceland, Ireland, Luxembourg and the Netherlands), the Convention stipulated that there would be as many Judges as Member States to the Council of Europe, so 15. Accordingly, every Council of Europe Member State would be entitled to be involved in the process for the nomination of a Judge, whether or not it had subscribed
3 See H. Lauterpaacht, Transactions of the Grotius SocietyVol. 35, Problems of Public and Private International Law, Transactions for the Year 1949 (1949), “The Proposed European Court of Human Rights”.
Partners' and Externals' Perspective to the Court’s jurisdiction.4 Lord McNair explained that at the crux of the establishment of the Court was the potential conflict between the individual and his or her Government. While the constitutions of many countries guaranteed individuals certain elementary rights and freedoms, it was recognized, and experience had shown, that these constitutional guarantees, when remaining purely national, were not always strong enough to secure their aim, and were liable to be overridden by governments or their officials in neglect or mistake, or on purpose. It was this conception which had inspired instruments such as the Universal Declaration of Human Rights proclaimed by the General Assembly of the United Nations in December 1948. In 1949 the Council of Europe was formed, whose 70th anniversary we are celebrating this 4 Ed Bates, “The Evolution of the European Convention on Human Rights: From its Inception to the Creation of a Permanent Court of Human Rights”, Oxford University Press (2010), p. 124
year. In 1950 the European Convention on Human Rights was adopted, containing a detailed elaboration of the rights contained in the Universal Declaration. For Lord McNair the Convention was the expression of the Contracting States’ democratic tradition, and further recognition of rights and freedoms was also a method for achieving greater unity amongst its members. This twofold description remains true today. Human rights and the rule of law are our common European heritage and fostering and nurturing the rights and freedoms in the Convention help to keep us together. The Court is such a familiar figure on the judicial landscape today that it takes a conscious effort to appreciate how revolutionary it was at the time. Of course, under the system established by the Convention, which prevailed for almost forty years until 31 October 1998, three institutions exercised
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Partners' and Externals' Perspective responsibility for enforcing the obligations undertaken by the contracting states: the European Commission of Human Rights, the European Court of Human Rights and the Committee of Ministers of the Council of Europe. Under this original system, all applications brought by individual applicants or Contracting States were the subject of a preliminary examination by the European Commission of Human Rights which determined their admissibility and, in respect of complaints declared admissible and where no friendly settlement had been reached, drew up a report establishing the facts and expressing a non-binding opinion on the merits of the case. The Commission and/or a government of a state concerned could then decide to refer the case to the European Court of Human Rights for a final, binding adjudication. If the case was not brought before the Court, it was decided by the Committee of Ministers.
little more than one case per year, yet it still laid down some important founding principles for it case-law (see, for example, Lawless v Ireland (1960)) and the Belgian Linguistics case (1968)).
Another striking difference between then and now is that for a long time it was not possible for applicants to bring their case before the Court themselves. It was only following the entry into force of Protocol No. 9 to the Convention, in October 1994, and in respect of States which had ratified it, that applicants obtained that right. Of course, as the Explanatory Report to Protocol No. 9 makes clear, the idea of empowering individuals to seize the European Court of Human Rights was not a new one. It was mentioned as early as May 1948, at the Congress of Europe, and appeared in the draft European Convention on Human Rights drawn up by the European Movement in July 1949. This idea was, however, rejected in the course of the Member States’ discussions on the draft convention, it being argued in particular that “the interests of the individual would always be defended either by the Commission or the Committee of Ministers…”.
Business picked up through the 1990s with the enlargement of the Council of Europe and the accession of States from Central and Eastern Europe. From 1959 to 1998, in other words for the first forty years of its existence, 143,325 applications were lodged, 32,552 decisions were declared inadmissible, 837 judgments were delivered by the former Court, and 37,552 decisions were adopted by the Commission.8 There were 7,771 applications pending on 31 December 1998. That figure rose to 160,000 applications in 2011, and is currently at approximately 58,000.
In the early days, the work was scarce. Between 1959 and 1976 just 18 cases were brought before the Court. Over that period there were seven years in which no cases were brought at all. The first Belgian Judge, Henri Rolin, in a lecture given in 1965 (“Has the Court got a future?”) hesitated as to whether he deserved the title of “Judge” at all.5 For the first fifteen years the Court was dealing with 5 Michael O’Boyle and John Darcy: The European Court of Human Rights: Accomplishments, Predicaments and Challenges, Germany Yearbook of International Law, Vol. 52, 2009, p. 142. 8 | SYNERGY Magazine
It was not until the 1970s that the Court started to become a real player in European integration6. Indeed, one academic has called this period an era of landmark Strasbourg jurisprudence.7 Examples may be given of the seminal cases of Golder v. the United Kingdom (1975), Tyrer v the United Kingdom (1978), Airey v Ireland (1979) and Marckx v Belgium (1979), where the Court begins to develop its teleological approach to interpretation (effective protection of rights), the living instrument doctrine, positive obligations, and restrictions on interferences.
The importance of the European Convention on Human Rights and the Court’s jurisprudence in the 1990s was underlined by the Court’s President from 1985 to 1998, Rolv Ryssdal, who noted that the Convention had become “the single most important legal and political common denominator of the States of the continent of Europe in the widest geographical sense.. a constitutional law for all Europe in the field of human rights protection”.9 6 Elisabeth Lambert Abdelgawad, “The European Court of Human Rights”, in The Council of Europe: Its Law and Policies, Oxford University Press (2017), p. 229. 7 Ed Bates, “The Evolution of the European Convention on Human Rights: From its Inception to the Creation of a Permanent Court of Human Rights”, Oxford University Press (2010), p. 320 8 Yearbook of the European Convention on Human Rights 2002 (2003), 202. 9 R. Ryssdal, ‘The coming of Age of the ECHR’, 1 (1996) EHRLR 18 at 18.
Partners' and Externals' Perspective However, the major revolution in the Convention system occurred in 1998 with the entry into force of Protocol No. 11 creating a single full-time European Court of Human Rights. This change put an end to the European Commission’s filtering function, enabling applicants to bring their cases directly before the Court. Indeed, on 26 November 2018, the Court celebrated 20 years of the “New Court” by way of a seminar, organised by the Finnish Presidency of the Committee of Ministers in collaboration with the Steering Committee on Human Rights (“the CDDH”). The structure and logic of Protocol No. 11 were conceived long before the full ramifications of Council of Europe enlargement were understood. With the benefit of hindsight there is a certain irony that the full judicialisation of the Convention system which Protocol No. 11 brought about coincided with the progressive appearance of case-load characteristics in respect of which it was and is legitimate to question whether they are susceptible to and/or warrant full judicial treatment. I am thinking here of the huge volumes of inadmissible cases that threatened to submerge the Court before the entry into force of Protocol No. 14, of the seemingly endless supply of so-called repetitive cases and, finally, and perhaps most seriously the conflict situations. That in essence is the problem that the Court has been grappling with since 1 November 1998: how to reconcile on the one hand the filtering of a huge volume of inadmissible cases and the processing of large numbers of more or less identical and it has to be said in Convention terms well-founded claims for compensation with, on the other hand, the careful scrutiny and adjudication of the complaints raising complex and sometimes novel issues of human rights law in sufficiently good time for the outcome to be meaningful for the applicant and the respondent Government. Yet, it became rapidly clear that the reforms enshrined in Protocol No. 11 were not fully adapted to the new environment in which the Court was operating. The increase in the volume of incoming cases by around 10% each year resulted in the steady accumulation of backlog and growing delays in dealing with cases. Very soon thought was given to further reform. This resulted in Protocol No. 14 being opened for signature in 2004, but only adopted in 2010.
But the challenge of adapting the Court and the Convention system to the enlarged community of States and the absence of a filtering mechanism remained. 2010 marked the beginning of what has been called the “Interlaken process”. A major conference was held in Interlaken, Switzerland, under the Swiss chairmanship of the Committee of Ministers, in order to lay down a roadmap for the evolution of the European Court of Human Rights. With milestones at further InterGovernmental conferences at Izmir, Brighton, Brussels and Copenhagen, Member States of the Council of Europe States have addressed the problems facing the Court and the Convention system. These conferences have, in particular, led to the adoption of Protocols No. 15 and 16 to the Convention. Contracting States agreed that by the end of 2019, the Committee of Ministers would take stock of the progress made over the last ten years and decide how to move ahead. The Court itself has made a remarkable contribution to the reform process by streamlining its working methods to increase efficiency, and through judicial policy decisions, such as those on the pilot judgment procedure and its priority policy. The question of how to respond to the considerable number of well-founded but repetitive cases is still a live one. More than ever, the Court needs to work hand in hand with national authorities to ensure that certain problems are resolved at the national level. Fortunately, the Convention is being increasingly well applied by national judges at all levels of domestic jurisdiction. 60 years ago, Lord McNair underlined the value and effectiveness of regional action which gave effect to a world-wide aspiration and purpose: that of preserving and promoting human rights, democracy and the rule of law. After six decades, the European Court of Human Rights has certainly made an extraordinary contribution to maintaining democratic security and improving good governance across the Continent. In today’s febrile political climate, where the principles of democracy and the rule of law are increasingly questioned or indeed threatened, we desperately need this precious safeguard. The Member States of the Council of Europe have a special and heavy responsibility to protect and preserve this inherently fragile mechanism. They owe it to history, but above all they owe it to themselves. SYNERGY Magazine | 9
Partners' and Externals' Perspective
DEMYSTIFY AI Stefano Dominioni
Executive Secretary, Enlarged Partial Agreement on Cultural Routes of the Council of Europe (EPA) Director, European Institute of Cultural Routes (EICR)
What is artificial intelligence? It is curious that we all speak so much about a term that is not clearly defined. In fact, it is safe to assume that we all speak about something different when referring to ‘AI’. There are multiple attempts at defining AI, most involving three machine properties: a) the ability to sense the environment, b) the ability to select a specific response to it, and c) the ability to act on that selection. This quite resembles a definition of animal intelligence from 1882 as “the capacity to adjust behaviour in accordance with changing conditions”.1 Yet in a machine, this behavioural adjustment can be very powerful. A thermostat can sense the temperature in a room, select the set response to it, and then act upon it automatically by either turning itself on/off or staying put. In line with the above criteria, a thermostat acts in an artificially intelligent manner. In combination with two important elements that are available in today’s environment, massive amounts of data and unprecedented processing powers, AI promises enormous efficiency and effectiveness gains in a wide range of fields, including industrial productivity, health care, transportation and logistics. Many of us reap the benefits of technological advancement. In fact, our use of modern tools for communication, news consumption, education, entertainment, commercial transactions and 1 George Romanes, Animal Intelligence, 1882 (Cited in Alan H. Fielding, Machine Learning Methods for Environmental Applications (2012) 227). 10 | SYNERGY Magazine
multiple other facets of everyday life have fundamentally transformed the way our societies are interacting, structured and governed. But there is also growing concern about the broader implications of the use, and possible abuse, of automated data processing and mathematical modelling for individuals, for communities, and for society at large. Can computational data analytics replace the reasoning of a trained judge when applying the law to a specific context? How does algorithmic decision-making affect the delivery of essential public services or our recruitment and employment conditions? Can individuals remain visible as independent agents in societies that are shaped by automated optimisation processes? And finally: how does the increasing reliance on mainly privately developed and run technology square with the rule of law and the fundamental principle of democratic societies that all power must be accountable before the law? It is good that we are asking these questions. Economic growth constitutes an important public policy objective and innovation remains one of its key pillars. Yet, innovation today develops at an ever faster pace and prompts societal changes, sometimes unintended or unwanted, at an extraordinary and fundamental level. So far this is not accompanied by the type of firm policy and regulatory response that has historically been triggered by innovative processes. The argument put forward is usually that regulation would stifle innovation and could prevent Europe’s ability to compete against the U.S. and
China.2 The same arguments were used to prevent the introduction of seat belts in cars. Yet, innovation continued and the introduction of seat belts has not only saved millions of human lives but has also paved the way for more profitable innovation related to safety standards since. We need to stop thinking of AI development with such awe and feebleness. Mathematical models and statistics have facilitated pattern recognition for centuries. The fact that we now have enormous amounts of data to feed into our calculation systems does not necessarily make their outputs more accurate. If you have more data, you will usually find more correlations. But often, you will also produce more errors in the form of both false positives and false negatives.3 “If a machine is expected to be infallible, it cannot also be intelligent.”4 We need to demystify AI, integrate the inevitability of machine errors in our planning, and develop contingencies. It appears from the current state of investigations into the two recent crashes of a Boing 737 Max in Ethiopia and Indonesia, as if the most effective means to avoid an accident would have been for the pilots to deactivate the automated Maneuvering Characteristic Augmentation System (MACS).5 But in an environment where the common assumption is fueled that machines are smarter than humans and that the likelihood of human error is much higher than that of a machine, what professional is going to trust himor herself in a situation of stress, when the decision to override a machine may trigger direct responsibility (and personal liability) for the live(s) of others? All too often, expectations and fears of AI are utopian and vastly exaggerated. We have to overcome the sense of being overwhelmed by technological advancement and reflect on what kind of society we want to live in. 2 See Daniel Castro, Vice President of the Information Technology and Innovation Foundation (ITIF), in Politico Europe’s silver bullet in global AI battle: Ethics. 3 See also Beware Spurious Correlations, Harvard Business Review, June 2015. 4 Alan Turing in his lecture to the London Mathematical Society on 20 February 1947. 5 See In Ethiopia Crash, Faulty Sensor on Boeing 737 Max Is Suspected, NY Times, 29 March 2019. SYNERGY Magazine | 11
Partners' and Externals' Perspective To that end, we need to develop clear legal frameworks to allocate duties and responsibilities to the various actors involved in the design, development and use of AI tools and we need humans to not just be “in the loop” but in control always. Human control does not only mean that software programmers ensure that new applications are diligently tested for technical errors, but it must mean democratically legitimated control and oversight. There are certain decisions that we should take. Do we think that the further development of lethal autonomous weapons should be legal? Do we think that we should own the data that we enter into the various devices we use? Who do we want ultimately to be in control of decisions that carry significant weight or legal consequences for individuals – or indeed large parts of the population: our governments or automated software that is usually designed and managed by private actors? All of these are important questions and in order to be able to respond to them properly, we first of all need more information. ‘We’ means all of us, irrespective of age, gender, race, language ability or socio-economic background. Too many of us define ourselves as “illiterate” when it comes to the potential impacts of AI development (be they positive or negative) on our lives, on our communities, our environment and the way resources are distributed. But how can we go about it? In February 2019, the Committee of Ministers of the Council of Europe called on states to initiate open, informed and inclusive public debates regarding the question where to draw the line between forms of datadriven persuasion that is permissible and unacceptable manipulation and to make this a high priority concern for government. It equally called o them to consider the need for additional protective frameworks that go beyond current notions of personal data protection and address the significant impacts of the targeted use of data on societies and on the exercise of human rights more broadly.6 Following the example of its previous initiatives towards the adoption of legally binding treaties in fields where new ethical and legal issues emerge from technological 6 See the Declaration on the manipulative capabilities of algorithmic processes, Decl(13/02/2019)1. 12 | SYNERGY Magazine
advances,7 the Council of Europe is maintaining inclusive and inter-disciplinary discussions with policy-makers, civil society, independent researchers, the technological community and the private sector to identify AI-related risks that could directly compromise member States’ obligations under the European Convention and other binding instruments, including the European Social Charter. At the same time, the organisation is actively exploring direct and indirect effects of emerging technologies, including AI, on the exercise of human rights, on democratic societies and on the viability of existing institutional frameworks, and is helping member states in formulating adequate policy responses. It is not obvious how the continuously evolving challenges in the many fields where data-driven technologies and services are deployed, whether in the health sector, the criminal justice system, or in relation to communication networks, can most effectively be addressed. Building on its existing standards,8 including, the Council of Europe is also supporting the adoption of adequate legislative and nonlegislative measures at national level with sector-specific recommendations, guidelines and codes of conduct that provide advice through a common and human-centric approach. For impacts that are pervasive and conceivably irreversible, clear, binding and enforceable rules must be formulated and legitimated through democratic processes. This will help us govern AI throughout all stages of its design, development and deployment in a manner that ensures the “primacy of the human being” at all times. Human-centricity must remain at the heart of all our efforts. More AI by itself is not going to solve our problems, nor can it sustain everlasting economic growth. Without duly respecting the values of democratically governed societies, the economic benefits deriving from AI cannot be realised. We must demystify AI and start governing it as we have governed previous innovative processes – with clarity, purpose and speed. Only then can we reap the benefits properly, sustainably and collectively. 7 See the Council of Europe Convention on Human Rights and Biomedicine (Oviedo Convention, ETS 164) and the Additional Protocol on the Prohibition of Cloning Human Beings (ETS 168). 8 See notably the Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data (CETS No. 108), as modernised in the Amending Protocol (CETS 223).
Partners' and Externals' Perspective
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Partners' and Externals' Perspective
LEXISNEXIS LAUNCHES GLOBAL FOUNDATION TO ADVANCE THE RULE OF LAW Nigel Roberts
Vice President & Secretary LexisNexis Rule of Law Foundation
I am delighted to share the exciting news of the launch of the LexisNexis Rule of Law Foundation, a not-for-profit entity established to further achieve the LexisNexis Legal & Professional mission to advance the rule of law around the world. This new public charity, dedicated to engaging in Rule of Law projects across the globe, will enable leading entities from the legal, judicial, academic, NGO and other sectors to support and implement projects that address one or more of the four rule of law components: equal treatment under the law, transparency of the law, access to legal remedy, and independent judiciaries. LexisNexis has been strongly committed to advancing the Rule of Law though projects such as the United Nations Global Compact’s Business for the Rule of Law Framework (B4ROL), the International Bar Association eyeWitness to Atrocities app, and the LexisNexis Rule of Law Impact Tracker. In 2017, the company received the Corporate Leadership Award from Freedom House and its Global Legal Department won the Financial Times Innovative Lawyers Award for advancements in the rule of law. The establishment of the LexisNexis Rule of Law Foundation is an extension of its commitment to build legal infrastructures and solve deep-rooted problems in holistic ways that will achieve more robust outcomes and advance the rule of law.
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“Rule of law is foundational to the development of peaceful, equitable and prosperous societies,” says Mike Walsh, CEO, LexisNexis Legal & Professional. “Data from the LexisNexis Rule of Law Impact Tracker shows that when the rule of law is strong in a country, other positive social and economic factors within the country are also strong. It is our hope the LexisNexis Rule of Law Foundation will provide the necessary resources and support to shed light on emerging issues critical to advancing the rule of law around the world.”
Partners' and Externals' Perspective
Pictured left to right: LexisNexis Rule of Law Foundation VP and Secretary, Nigel Roberts; President, Ian McDougall; and VP and Treasurer, Terry Jennings
To help accomplish this, the LexisNexis Rule of Law Foundation will include collaborations with organizations to help increase awareness and understanding of the rule of law. LexisNexis announced the Foundation’s first partnership with The Global Investigative Journalism Network (GIJN), an international association of journalism organizations that support the training and sharing of information among investigative and data journalists – even in repressive regimes and marginalized communities. LexisNexis will offer GIJN members access to one of the world’s largest electronic databases and analytic tools for legal, public-records, news and business information.
“We’re thrilled to partner with The Global Investigative Journalism Network and provide their journalists with access to the most comprehensive set of information tools at a discounted rate. More than half of the world’s population lives outside the shelter of the law, struggling for basic human rights. Each of us shares responsibility to bring this percentage down to zero, ensuring vulnerable and disadvantaged populations receive equal treatment within criminal and civil justice systems. Working together with GIJN will allow us to build greater awareness of the rule of law and strengthen watchdog reporting around the world,” says Ian McDougall, President of the LexisNexis Rule of Law Foundation.
To learn more about the Rule of Law Foundation, visit www.lexisnexisrolfoundation.org.
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Partners' and Externals' Perspective
DOES THE LAWYER OF THE 21ST CENTURY NEED TO BE THAT DIFFERENT? Javier de Cendra
Dean of IE Law School
It is by now a cliché to suggest that the legal industry is undergoing a paradigm shift, that everyone involved in it needs to adapt to this change, and that anyone who fails to do so will suffer greatly. For instance, the 2018 Report on the State of the Legal Market— produced jointly by the Georgetown University Center for the Study of the Legal Profession and Thomson Reuters—draws a comparison between the faulty and/or insufficient responses of many law firms to this paradigm shift and the failure of the Maginot Line, a series of fortifications built by the France during World War II to protect the country from the expected German invasion. France was prepared for a protracted war of attrition, but Germany launched the blitzkrieg and conquered the country within six weeks. 1
• Pluralistic ignorance: The few who truly understand the situation are deterred from championing change for fear of alienating others. • Personal identification with existing strategies: People feel that a change of course would harm reputations. How might this apply specifically to law firms? Existing structures may be resistant to change and difficult to amend. Internal rules and procedures may generate perverse incentives to maintain the status quo in relation to hiring and promoting talented professionals, investing in research and development, and implementing strategies for business attraction and client retention.
• Preference for completion: People have an aversion to leaving existing strategies unfinished.
Of course, a well-functioning market for legal services is essential for the correct functioning of the economy, so new players will step in to satisfy needs that are not adequately or sufficiently covered by law firms. These socalled “law companies” are growing very quickly indeed, thanks to new business models that combine better costumer value propositions with new profit formulas, more value-adding resources, and superior processes. 2 With this approach, these companies cooperate with law firms—providing various services involving predictive analysis, automation of documents, cloud services, business-management software, etc.—while also competing against them in the market for legal services. Moreover, while law firms have been adjusting their business models, many corporations have been beefing
1 https://store.legal.thomsonreuters.com/law-products/ns/solutions/ peer-monitor/report-on-the-state-of-the-legal-market-repository
2 See Mark Cohen, “New Business Models—Not Technology—Will Transform the Legal Industry,” https://legalmosaic.com/blog/
Like France, many major law firms have failed to detect the paradigm shift and are therefore unprepared for it. But why? The reasons may have to do with various psychological biases: • Sunk-cost fallacy: Organizations tend to stick to investments even if they cannot be recouped. • Loss-aversion bias: People attach greater importance to a certain loss than to an uncertain win.
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Partners' and Externals' Perspective up their legal departments so as to internalize more and more legal work, with a view to generating more value for the company. The growing competitiveness of the legal services market has also increased competition for professionals who understand the paradigm shift and are capable of finding new business opportunities within it. What is a lawyer? The 7 key traits a lawyer must have today The ideal lawyer has always been a trusted professional who uses a profound knowledge of people, the law, and organizations to provide advice and to represent clients in legal affairs, which can be delicate, complex, and sometimes deeply disturbing, both personally and professionally. In so doing, lawyers must always seek to reconcile their clients’ interests with the interests of society as a whole. These truths are eternal, but satisfying them in a specific place and time may require particular skills. In today’s highly competitive, fast-changing global and technological environment, I believe that lawyers must have seven key traits: • A character molded in classic virtues such as prudence, fortitude, temperance, and justice. • Profound knowledge of the law as it applies to complex, global, yet highly contextual tech-shaped situations. • Deep appreciation for the nature and role of law in the (business) world and for its relation to other fields of human endeavor (usually encompassed under the term “humanities”). • Good knowledge of technological solutions that improve lawyers’ key tasks. • Familiarity with aspects of new and emerging business models that can better serve clients’ needs. • An entrepreneurial spirit coupled with knowledge of techniques for innovating at scale. • A constant desire to learn about the law in the wider context and a commitment to doing so in structured ways.
An entrepreneurial spirit is one of the most valuable gifts we can give to our students to thrive in a VUCA world. Being a successful lawyer has never been easy. Professionals who are smart, virtuous, hard-working, and committed to the law, their clients, and society will always be in high demand. To be a good lawyer, it has never been enough just to know the law, although the specific knowledge required may vary over time. Law schools can and must help lawyers adapt to the changing environment in order to help them succeed. About the author Javier de Cendra is Dean of IE Law School and President of the Law Schools Global League. He is Honorary Senior Research fellow at University College London Faculty of Law and member of the international advisory board of CEID Colombia. As academic manager, his focus lies in helping develop the blend of knowledge and skills that professionals and students working within the field of law require to ensure that law and legal systems remain relevant for society.
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Partners' and Externals' Perspective
STEPS TOWARDS THE PROTECTION OF THE RULE OF LAW IN THE EUROPEAN UNION Alexandros Politis
Academic Assistant, College of Europe, Law Department
Rule of law is one of the main values on which the European Union is founded, laid down in Article 2 TEU. The rule of law ensures that authorities act with respect to the law and under the control of independent and impartial courts. Even though there is no hierarchy between these values, no other value can be guaranteed in a Member State if the rule of law has been compromised. Article 7 TEU grants to the EU institutions the possibility to monitor whether Member States act in compliance with the values of Article 2 TEU. According to Article 7(1) TEU, the Council can determine that there is a “a clear risk of a serious breach” of the EU values. Article 7(2,3) TEU provides for a mechanism which can lead to the imposition of sanctions against Member States when “a serious and persistent breach” is established. Due to the recent rule of law “backsliding” in Hungary and Poland, the EU institutions made attempts to trigger the procedure of Article 7(1) TEU. For this procedure to be initiated, the European Commission, the European Parliament or one third of the Member States have first to submit a reasoned proposal to the Council. Since 2011, Hungary has repeatedly put at risk the rule of law by, inter alia, limiting the powers of its Constitutional Court and suddenly lowering the judges’ retirement age. In addition, recent legislation such as on media ownership, NGOs, foreign universities (e.g. Central European University), minorities and refugees
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run contrary to other EU values. Against that backdrop, the Parliament adopted from 2012 to 2017 Resolutions calling Hungary for legislative reforms. In the absence of a positive response, the Parliament issued a reasoned proposal on 12 September 2018.1 On the other hand, the Commission focused on the rule of law crisis in Poland. Since 2015, the Polish justice system has been significantly affected because, among others, of the lowering of the judges’ retirement age and the politically influenced appointment of new judges in the Supreme Court, the government’s refusal to publish the Constitutional Court’s judgements and the political interference in the composition of the Constitutional Court. Given the lack of improvements, the Commission, after applying from 2016 to 2017 its “Rule of Law Framework”2, which provides for specific steps for a dialogue with the Member State concerned and concrete recommendations, submitted a reasoned proposal on 20 December 20173. 1 European Parliament Resolution of 12 September 2018 on a proposal calling on the Council to determine, pursuant to Article 7(1) of the Treaty on European Union, the existence of a clear risk of a serious breach by Hungary of the values on which the Union is founded, (2017/2131(INL)). 2 Commission, Communication of 11.3.2014 to the European Parliament and the Council, a new EU Framework to strengthen the Rule of Law, COM(2014) 158 final. 3 European Commission, Proposal for a Council Decision on the determination of a clear risk of a serious breach by the Republic of Poland of the rule of law of 20 December 2017, COM(2017) 835 final.
Partners' and Externals' Perspective
In this respect, the Commission was proved more effective than the Parliament in concluding its investigation. The Commission’s reasoned proposal on Poland was drafted after a 2 years “monitoring” and contains a well substantiated Commission’s own reasoning. On the other side, it took 6 years for the Parliament to draft its proposal on Hungary, most of which is based on the conclusions of other international bodies. Despite the above, the Commission was criticised for procrastinating the enactment of the procedure of Article 7(1) TEU.4 Nonetheless, the Commission, due to its supranational nature, can conduct thorough dialogues and take decisions even in the detriment of the Member States’ interests. On the contrary, the national ministers are reluctant to disrupt the political balance in the Council. Therefore, the Commission, by putting forward an analytical proposal, exercises much more pressure to the Council to react than if there were only some observations on its table. In addition, though, the possibility of putting into force the “sanctioning mechanism” of Article 7(2,3) TEU was in any way already “dead”. Article 7(2) TEU provides for a unanimous vote of all members of the European Council except for the one which is under scrutiny. Since the vote against Poland and Hungary would take place separately, both countries declared that they would not vote against each other. In parallel, the Commission made use of the infringement procedure of Article 258 TFEU in order to lodge actions against Hungary and Poland concerning some of their legislative reforms. In that regard, the Court of Justice condemned Hungary5 for violating the principle of non-discrimination on the ground of age, 4 G. HALMAI, The possibility and desirability of economic sanction: Rule of law conditionality requirements against illiberal EU Member States, EUI Working Papers, pp.11-14. 5 Judgment of 6 November 2012, C-286/12, Commission v Hungary, EU:C:2012:687.
as enshrined in the Directive 2000/78/EC6, and found, by way of interim measures, that Poland7 possibly acts at variance with Articles 19(1) TEU and 47 of the EU Charter. Even though the Hungary’s compliance was not the most desirable, Poland introduced amendments in the Law on the Supreme Court eliminating provisions on the forced retirement of the judges, which entered into force on 1 January 2019. There is though one important limitation on the use of Article 258 TFEU: it can address only non-compliance within the scope of EU law while Article 7 TEU aims at remedying situations which fall both within and outside the scope of EU law given that some aspects of the EU values fall in areas where the Member States act autonomously. The Commission also proposed in May 2018 a Regulation8 which provides for the cutting, limitation or suspension of EU funding to Member States in case of a generalised deficiency as regards rule of law. The “raison d’être” of this proposal is that the Member States which cannot secure the rule of law are unable to guarantee a sound financial management of EU funds. The Parliament supported this proposal on 17 January 2019. In sum, even though the EU seems to not promptly and efficiently tackle the “rule of law violations”, its efforts are to be welcomed. The Commission has attempted to defend its role as a “guardian of the treaties” through several means. What is still missing is the political willingness of the Member States to confirm that the EU is a union of values, without being constrained by the possible political risks. 6 Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation, OJ L 303, 2.12.2000. 7 Order of the Court of 17 December 2018, C-619/18 PPU, Commission v Poland, EU:C:2018:1021. 8 Commission, Proposal of 2.5.2018 for a Regulation of the European Parliament and the Council on the protection of the Union’s budget in case of generalised deficiencies as regards the rule in the Member States, COM(2018) 324 final. SYNERGY Magazine | 19
THE POTENTIAL OF INTERNATIONAL CONFERENCES OF ELSA (ICE) Ezgi Yildiz
Vice President for Seminars and Conferences ELSA International 2018/2019
ELSA is an ever-growing Network with an enormous amount of human resources and 38 years of continuous experience sharing. We already have our successful flagship projects that were established years ago and continue growing each year. Conferences are one of the key stones of our association and they were being organised in the ELSA Network way before I was even born. Then, technology improved, travelling became easier, the iron curtain was lifted, and the internationality in our Association grew tremendously. These factors affected the projects of ELSA as well as daily life in general. It was only a matter of time before young internationally minded law students in the ELSA Network to started organising International Conferences. For the past few years, we have seen some National and Local Groups organising Conferences and Summits for ELSA members from different countries and backgrounds. In these events, while the students and young lawyers were having a high-quality academic programme, they were also networking with others interested in the topic and getting to know a different culture! After seeing the project being organised for years by different countries and sometimes even with collaboration between different National Groups it was certain for me that the project had so much to offer in the right circumstances.
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While I was running for the International Board of 2018/2019 back in the International Council Meeting (ICM) in Lviv, I had the idea of unifying International Conferences. Back then, I could not even imagine it would reach the point we are at today. During transition, my predecessor Deniz Hatemi shared my vision and helped me to plan the rest of my term. A plan that has now successfully taken International Conferences of ELSA to the next level. First in ICM Opatija, we unified the International Conferences of ELSA. All the International Conferences of ELSA (ICE) will have the same minimum quality standards and will be monitored by the International Board to assure the standards are met. Right after the ICM, I started working on the promotional side of the project and we established the website conferences.elsa. org with the help of the International Team. Organisers can publish their event and, with the help of and promotion by the International Board, their event will be reaching more possible applicants. Then there was one thing left: the fees. During the ICM in Baku, after many intense discussions, we all agreed on the fees for this next big flagship project. Besides the concrete steps taken this year, there is already a plan for the future expansion and professionalisation of International Conferences of ELSA. The academic quality of ELSA events are already established through close relations with universities as well as law firms. With the new regulations and promotion for the project, the goal is to establish one of the most prestigious academic and networking events in Europe. Students from all over Europe will come together for the International Conferences to build a better future as well as learning about different cultures.
THE ELSA RULE OF LAW ADVOCACY CAMPAIGN
President ELSA International 2018/2019
At the 75th International Council Meeting of ELSA hosted by ELSA Azerbaijan, the association decided to move forward and increase our impact in the civil society. According the World Justice Project final report on the measuring the Justice Gap; “an estimated 5 billion people have unmet justice needs globally including people who cannot obtain justice for everyday problems, people who are excluded from the opportunity the law provides, and people who live in extreme conditions of injustice”. There is no doubt for ELSA that, the Rule of Law is one of the crucial topics of this century. Everyone agrees that it is the basis of any democracy. However, we can see thanks to journalism, NGO/Associations and the European institutions that this principle is challenged. In its simplest form, The Rule of Law means that “no one is above the law.” Which is nevertheless neglected is the four universal principles for the Rule of Law to be effective: We are obviously referring to; Equality under the law from the public and the private sector; Transparency and Clarity of Law; Independent Judiciary and Accessible Legal Remedy justice.
out in support of the Rule of Law. Following month of work, a campaign focusing on the Rule of Law and its components will been initiated by ELSA really soon. Our objective ,it’s clear, we want to raise awareness among law students and legal professionals about what is a key element of a civilised society.
This is the first ELSA campaign and we are really proud to announce that the ELSA Rule of Law Advocacy Campaign 2019 is under the patronage of the International Bar Association (IBA) and supported by LexisNexis, The International Association of Lawyers (UIA), The Council of Bars and Law Societies of Europe (CCBE), and Avocats.be. We want to try to convince as many students and legal professionals to be advocates for change and this is what the ELSA Advocacy Campaign is about. You might think that a students association might not be able to solve or bring anything but following Edmund Berke (English philosopher) “ All that is needed for the forces of evil to triumph is for good men and women to do nothing” ELSA as take the decision to act and we hope to find millions of advocates. Find more information by following all official ELSA social media platforms.
In order to fight against this injustice, the European Law Students’ Association “ELSA” as decided to speak
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THE 7TH EDITION OF THE EHRMCC Eva te Dorsthorst
Vice President for Academic Activities ELSA International 2018/2019
On the 14th to the 19th of April 2019, the 7th Edition of the European Human Rights Moot Court Competition took place. Through a simulation of the procedures before the European Court of Human Rights, ELSA aims to give students an insight into the functioning of the European Convention of Human Rights and what it is like to a Human Rights lawyer that applies the Convention in their daily work. In the Final Oral Round, such application of the Law is tested against fellow students from all over Europe. This not only inspires students to improve their argumentation, but to also appreciate the diversity in the legal field. The Competition brings together 20 teams from various backgrounds, allowing for both professional and personal growth of all participants. This practical and international approach to Law remains with participants throughout the entirety of their career, and shapes the way that both young Law students and lawyers in Council of Europe Member States approach the Convention, as well as inspiring their peers to look beyond their borders as well. The 7th Edition boasted a total number of 106 applications, from 29 different countries. The teams had the chance to practice their pleading skills during the newly introduced Pre-Rounds. These rounds were of a non-eliminatory nature, and therefore just provided a platform for students to prepare for their potential selection to plead in Strasbourg. The 7th Edition had 3 Pre-Rounds; Graz (Austria), London (United Kingdom) and Odessa (Ukraine). We thank the organisers, supporters and participants for making the Pre-Rounds such a great success. We had the pleasure of visiting all rounds, and given the overwhelmingly positive feedback, ELSA happily announces that the 8th EHRMCC will officially include Regional Rounds in order to select the best teams for the Final Oral Round in 2020.
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The 20 teams present in Strasbourg in April were selected as the best of all applications, based on their Written Submissions. Given that each team submitted 2 Written Submissions (one on behalf of each party, the Applicant and the Respondent), and that double scoring was re-implemented during this term, this meant that our team had to arrange for over 420 scorings, of which the averages resulted in 20 teams being selected for the Final Oral Round. We were joined by teams from Austria, Belgium, Bulgaria, Czech Republic, Georgia, Germany, Greece, Poland, Romania, Russia, the Netherlands and the United Kingdom. The first three days took place in the Palais de l’Europe, the premises of the Council of Europe. The teams started off with the Preliminary Rounds, in which teams pleaded on behalf of both the Applicant and the Respondent over the course of 2 days. The 8 teams with the highest scores passed on to the Quarter Finals, of which each winner qualified themselves for the 2 Semi Finals. The last day, the day of the Semi Finals and Grand Final, took place in the European Court of Human Rights. The winners from the Semi Finals in the morning, the team from Sofia University, “St. Kliment Ohridski” (Bulgaria) and from the University of Oxford (United Kingdom), pleaded before the Judges in the Salle d’Audience in the Grand Final. We are happy to congratulate Oxford team on their victory, and Pavla Tsvetkova (Sofia University) on her distinction as Best Orator of the Grand Final. The winning team will be awarded a traineeship at the European Court of Human Rights, and the Best Orator will be awarded a traineeship at the Council of Europe Liaison Office in Brussels. The entire competition would not have been possible without the help from our Partners, the International Organising Committee, and our EHRMCC team. We would like to warmly thank the Council of Europe, the European Court of Human Rights and the European Human Rights Association for their continued support over the years. We would also like to thank the City of Strasbourg, the Irish Permanent Representation, the Polish Permanent Representation, the Spanish Permanent Representation, the Swiss Permanent Representation, and the Turkish Permanent Representation for their support of the 7th Edition.
A tool to be the most successful?
TRAINING IN THE AGE OF TECHNOLOGY LAW Akvile Jurkaityte
Secretary General ELSA International 2018/2019
The legal profession has always been a complicated and challenging sphere. In this century, being a lawyer requires more than having a good legal know-how, which every student can gain by sitting in a classroom. Every lawyer has to know how to negotiate, plead, handle a team, resolve crisis as well as other conflicts. It is essential to be a good time manager, not only in daily tasks but also in on-going projects as well. In recent years, artificial intelligence has become a threat to legal practitioners. Many articles about artificial intelligence taking over the legal profession have been published. Therefore, the essential human sense and skills which machines cannot learn are becoming more and more important. ELSA is offering numerous projects which help to improve legal knowledge while providing opportunities to use theory in practice. One of ELSA’s goals is to contribute to non-formal education, therefore, ELSA also encourages its members to use Training as a tool to enrich a person‘s skills and help to develop the individual and professional path. The structure of Training in ELSA is separated into two levels. Depending on the involvement and experience in ELSA, Trainers can be identified as external or internal. Internally, the main Training body of ELSA is the International Trainers‘ Pool which was established in 2000. In 19 years of the project, it grew, developed and changed - from having external partners providing services
for some years to being a part of ELSA’s Strategic Goals for 2018. Training in ELSA has become an indispensable tool, not only in helping to control human resources, but also in making sure that ELSA’s members have an easy and free opportunity to further increase their capabilities as professionals. Currently, there are 35 members in the ITP, delivering Training sessions on team building and teamwork, team management, leadership skills, public speaking, time management, project management, presentation skills, also, various officers’ skills related to ELSA’s projects, such as ELSA Law Schools, Moot Court Competitions, International Internal Meetings, STEP Job Hunting, and more. Recently, ELSA has joined the Youth NGO Training Network (YNGO), which is a pool of International Associations having training bodies and sharing their experiences and exchanging practices. As a result of a valuable membership, ELSA has refocused on the internal training by trying to adopt all the useful tips from other associations of the YNGO. In the term 2017/2018, there was a great growth of training requests, almost reaching the number of 50. The International Board 2018/2019 have also focused on the Training by having it as one of the Operational Goals of the term 2018/2019. More importantly, ELSA aims to make the ELSA Training even bigger - from finding an external partner who would certify training sessions, to making sure that National SYNERGY Magazine | 23
International Focus Groups have their own National Trainers’ Pools (NTP). In order to unify the project at give some stability to it, at the Autumn International Council Meeting of ELSA held in Opatija, the Council has approved the name change and ‘ELSA Training’ is the official name now. At the Spring International Council Meeting in Baku, the Council has adopted the minimum quality standards of ELSA Training - at least 3 hours for a Training session and not more than 20 participants per one Trainer. Additionally, the evaluation form of Trainings was introduced in order to ensure both the satisfaction of participants but also the growth of Trainers. Slowly, ELSA Training is becoming a more professional and better-developed project. Knowing the importance of non-formal education, ELSA Training is also a part of the Strategic Goals 2019-2023 of ELSA. Assuring the future of the project, the International Board is aiming to further develop the project and recruit new Trainers. In order to achieve this goal, Train the Trainers Week will take place again, this time organised by ELSA Ukraine. The event will be held in Kyiv, Ukraine from the 21st to the 28th of June 2019. The goal of the event is to have one more class of educated and experienced officers, who want to further contribute to ELSA members’ development. This time there will be an external Trainer, who will also share expertise from other associations and companies. Many academics and professionals have acknowledged the importance of self-development and training, institutions are granting associations which contribute to non-formal education of its members, companies include training to their strategies, universities and high schools reward those who are looking for opportunities beyond the scope of classic teaching programmes. ELSA provides an opportunity of combining academic background with personal and professional skills. During the training sessions, people have a chance to apply their theoretical knowledge to practise while sharing their thoughts, experiences, and creativity. In the century of Artificial Intelligence, human intelligence backed up with strong skills diversity will remain as the tool of the most successful future lawyers, legal practitioners and graduates beyond the field of law.
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THE ENERGY SECTOR IN INTERNATIONAL TRADE: AN ONGOING DEBATE IN THE CASE OFTHE 17TH EDITION OFTHE JOHN H. JACKSON MCC Olga Koumpouri
Assistant for Panellists in the John H. Jackson MCC, ELSA International 2018/2019
Since 2002, ELSA launched the John H. Jackson Moot Court Competition (formerly known as the ELSA Moot Court Competition), which turned into a global challenge marking this year its 17th edition. The competition was named after and affiliated with a notable personality of International Trade Law, Prof. John Howard Jackson, one of the chief architects of the WTO Dispute Settlement System as we know it today. JHJ MCC simulates the panel proceedings before the WTO Dispute Settlement Body (DSB), engaging devoted students who come from all five continents, representing around 100 law faculties. The Competition was established not only to enhance the participants’ knowledge on International Trade Law, but also to serve as a solid starting point for law students during their engagement concerning multilateral trade in the long-run. One of the main goals of the Moot Court –besides bridging the gap between theory and legal practice – is to assist WTO member-countries to develop their technical legal capacity. This is achieved by training the next generation of trade lawyers and negotiators, and by offering this promising generation a stepping stone to get in touch with WTO professionals. What makes the JHJ MCC so attractive globally is the level of high academic quality throughout the competitions, resulting in hundreds of students as well as WTO law experts taking part every year. This results in the JHJ MCC being one of top-five most acclaimed Moot Courts in the world, and also acts as a benchmark for international trade talks.
This high academic quality is ensured every year through the drafting of a fictitious case which addresses contemporary challenging topics in International Trade Law. The 17th editions’ case – drafted by Dr. Maria Anna Corvaglia and Dr. Rodrigo Polanco Lazo – deals with a dispute brought before the WTO DSB by a fictitious state, Avilion, against another fictitious state, Zycron. The subject matter concerned “Certain Measures Related to Electric Vehicles Charging Points and Infrastructure” which addressed the relationship between international trade and natural resources, thus addressing the ongoing debate over the applicability of WTO disciplines to energy trade. WTO – THE ONGOING DEBATE ON TRADE AND ENVIRONMENT Since the early 1990s, when the increasing rate of demand for energy stocks was beyond any expectation due to the rapid evolution of technology, the first debates towards the need of regulating energy-related services emerged. Following the Hong Kong Ministerial Declaration of 2005, a group of member states sent a collective request identifying types of activities relevant to the energy industry which focused on business services (including activities such as engineering, mining, technical and testing analysis), constructions (of pipelines for instance), and transportation and distribution (wholesale and retail of certain energy products). Seeking to define energy in terms of products, this may include: oil, gas, electricity, hydrocarbons, biofuels, firewood and charcoal. With this in mind, shall we define energy in terms of products or in terms of these products’ use? The latter implies defining energy as the action (both product and process) through which energy-containing natural resources are transformed and consumed? In other words, which WTO Regulations are applicable in energy trade disputes? SYNERGY Magazine | 25
A JUST WORLD IN WHICH THERE IS RESPECT FOR HUMAN DIGNITY AND
Human Rights Partner of ELSA
Publishing Partner of ELSA
General Legal Partners of ELSA
Printing Partner of ELSA
General LL.M. Partners of ELSA
Legal Tech & Rule of Law Partner of ELSA
Think Global, Act Local THE CASE OF THE 17TH EDITION OF JHJ MCC – “ZYCRON – CERTAIN MEASURES RELATED TO ELECTRIC VEHICLES (EV) CHARGING POINTS AND INFRASTRACTURE” THE FACTS OF THE CASE The dispute arises from a challenge brought before the DSB by Avilion, a developed country (founding member of the WTO and a signatory to the revised Government Procurement Agreement- GPA) against certain measures adopted by Zycron, another developed country and also a WTO founding member and signatory of the GPA. The dispute between the 2 countries started shortly after the discovery of big supplies of “Solaris”, a metal used in the EVs charging points and relevant infrastructure, within the region of Matte Peninsula, consisted of the nations of Zycron, the WTO observer Tlön and a least-developed country (‘LDC’), Uqbar. By that moment, the global EV battery and charging point market was dominated by a restricted number of manufactures, led by the ‘Charging Queen’, an Avilion-based company operating Solaris in Avilion, which is not located in the Matte Peninsula. Following the discovery of Solaris in the Matte Peninsula (of which the largest reserves were located in the territory of Tlön), the Zycronian government entered into negotiations with Tlön. These negotiations let up to signing the ‘Orbis Tertius Agreement’ (OTA) with Tlön, bringing about the end of regional conflicts concerning the trade of Solaris as well as the integration of Solaris industries within both countries. The OTA includes an ‘accumulation of origin’ rule (AOR, which creates a reciprocal zero tariff system on Solaris production between OTA parties. That being said, Zycron and Tlön still charge a 4% export tariff on raw Solaris and Solaris products to non-OTA countries. The Zycron Customs Regulation (ZCR) No. 50 implements the AOR domestically and requires importers to submit an electronic self-declaration. The OTA also requires exporters to obtain official certification from end-users to the ensure peaceful use of Solaris. Moreover, in 2017 the Zycronian government launched the ‘Made in Zycron’ Initiative ('MIZI’), which mandates the maximization of Zycronian goods and services in government procurement. In 2018, Zycron’s Ministry of Infrastructure and Electric Transport (“MIET”) issued Procurement Directive n.12, which
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requires that any product using Solaris be produced or manufactured in Zycron. Additionally, to be eligible to bid for procurement contracts, a company must commit to using Solaris or other metals sourced in Zycron, thus excluding the Avilion-based ‘Charging Queen’ from the bidding process. LEGAL ARGUMENTATION In the light of the above, the teams (Complainant and Respondent) shall plead before a fictitious DSB Panel. In brief, the teams have to address the demanding issue whether the MIZI Directive affects competitive opportunities for foreign Solaris in Zycron by mandating the use of domestic Solaris, a “like product” consists of a violation of Zycron’s national treatment obligation under GATT Art. III: 4 and whether it violates GATT Art I:1 by granting preference to Solaris from countries linked to Zycron via an international economic integration agreement. The second issue to be addressed is if the tariff duty exemption granted by the AOR and ZCR No. 50 amounts to an advantage that is not granted immediately and unconditionally to like products from all other Members and is thus inconsistent with the GATT Art. I: 1 MFN (most favoured nation) obligation. Last but not least, both the Complainant and the Respondent have to prove whether or not the AOR and ZCR fall under the GATT Art. XX Chapeau; the GATT Art. XX(a) or (b) in order to protect public morals or human, animal, or plant life or health and whether they are necessary to achieve the purported objective of peaceful use of Solaris. In brief, the participants must deal with unresolved issues in WTO law, including the balance between the regulatory space for domestic industrial policies and nondiscrimination commitments. The includes competing issues in new preferential trade agreements, such as the accumulation rules of origin, and the emerging priorities of fighting climate change. Such a demanding case sets the basis for law students to deepen their WTO Law knowledge in a challenging environment and prepare themselves for a bright future in international trade. Having taken part in the 14th edition of the JHJ MCC, I can guarantee that it is a unique experience which has given me a plethora of knowledge. Hence, I welcome all law students to register in the following edition and face this global challenge!
WTO REFORM AND THE G20 SUMMIT IN OSAKA: REJUVENATING GLOBAL TRADE LAW George Manikas
Vice President in charge of ELSA Moot Court Competitions, ELSA International 2018/2019
The World Trade Organisation ensures free and fair trade but also sustainable and progressing economic growth. Nevertheless, several WTO’s member states have raised their concerns regarding the core functioning of the WTO itself. Considering that an agreement on the major functions of the WTO is based on consensus of all its 164 member states, finding a “perfect” solution seems arduous. What are the issues on the table? Critics have identified three key functions of the WTO that could be reformed: First and foremost, more than half of WTO members are under the status of “developing country”, allowing them to have special treatment compared to advanced economies that do not have the same benefits and exemptions. Secondly, the fact that member states do not comply with their transparency obligations, whilst the WTO is accused of being ineffective in monitoring, protecting and enforcing the existing rules. Lastly, governments have expressed their deep concerns in regard to the dispute settlement mechanism. The Appellate Body has been criticised that often exceeds its mandate by bypassing and “reinterpreting” the rules established by the member states. Any solutions? Various countries have proposed several WTO reform proposals. They conclude on a WTO “modernisation” in order to adapt to a changing world. The main focuses are effectiveness and efficiency by updating the regulations. The EU proposed to strengthen the mandate of the
Appellate Body, providing more resources. However, other countries rejected the proposal, concerned of its additional power. What if there is no mutual agreement? During the 13th G20 Summit in Buenos Aires, in December 2018, where world leaders called for a WTO reform, the WTO Director -General, Mr. Roberto Azevêdo, said that this is the worst crisis for the whole multilateral trading system since the GATT (General Agreement on Tariffs and Trade). At the 14th G20 Summit that took place in Osaka, in June 2019, Mr. Azevêdo, expressed his belief that “the leaders acknowledge the vital role of the WTO and would like to ease the tensions but also preserve and strengthen the trading system”. However, he mentioned that “the role of the Appellate Body is critical and without an immediate solution it might be compromised”. The continuation of the current situation is progressively destabilising the system. The blockade of judicial appointments is paralysing the dispute settlement mechanism. Only three Appellate Body members remain (out of seven in total) and on December 10, 2019, only one will carry on. That means that the Appellate Body cannot function to resolve trade disputes. That will lead to more bilateral trade disputes been resolved via retaliation. What was the G20 Summit’s outcome? Leaders adopted a joint declaration at the end of the G20 Summit in Osaka with a specific focus on universal trade. The President of the European Council, Donald SYNERGY Magazine | 29
International Focus Tusk, said that "The global stage cannot become an arena where the stronger will dictate their conditions to the weaker, where egoism will dominate over solidarity, and where nationalistic emotions will dominate over common sense. We should understand that we have a responsibility not only for our own interests, but above all, for peace and a safe, fair world order." Quoting the G20 Osaka leadersâ€™ declaration, world leaders agreed that international trade and investment are important engines of growth, productivity, innovation, job creation and development. [â€Ś]Reaffirmed their support for the necessary reform of the World Trade Organization (WTO) to improve its functions [â€Ś] but also agreed that action is necessary regarding the functioning of the dispute settlement system consistent with the rules as negotiated by WTO members.
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THE PRINCIPLE OF LEGALITY IN THE JUDICIAL SYSTEM: THE MAIN PROBLEMS OF IMPLEMENTATION
T H I N K G LO BA L , ACT LOCAL
Zhemerov Vladislav Vladimirovich
2nd year student of the North-West branch of the Russian state University of justice (St. Petersburg). Scientific adviser: Shundikov Konstantin Valentinovich, candidate of law, Dean of the faculty of continuing education of the North-West branch of the Russian state University of justice (St. Petersburg).
This article reveals the concept and content of the principle of legality in civil proceedings. The problems of practical realization of this principle are singled out solutions to these are offered. Key words: legality, principle of legality, civil proceedings, problems of realization of the principle of legality, guarantees of realization of the principle of legality. In the science of the theory of state and law, there is still no single definition of legality, which is due to different approaches to the understanding of the term. Despite this uncertainty, most lawyers understand the rule of law as the principle of building state-legal relations, requiring strict compliance with the laws and other regulations in force in the state without exception. This compliance extends to all citizens, their associations, organizations, enterprises, institutions, state bodies and officials1. The implementation of the principle of legality 1 Malko A.V. Theory of law and state. Elementary course : textbook / A. V. Malko, V. V. Nyrkov, K. V. Shundikov. - 5th ed., erased. – M.: KNORUS, 2015. P. 71. 31 | SYNERGY Magazine
in practice is one of the conditions for the functioning of the rule of law. The consolidation of the principle of legality in legal acts does not allow for the full implementation of this principle. In this case, an integrated approach to its implementation is needed. In addition to the rule of law, it is necessary to implement the presumption of the expediency of the law, the inevitability of punishment for violation of the law, the rule of law and the priority of protecting the rights and freedoms of citizens. Compliance with the principles of legality, fairness and validity is one of the key requirements for the decisions of the judicial authorities in the Russian legal proceedings. Such a requirement must be implemented by a system of guarantees for the free exercise of judicial functions. Such guarantees are related to the fact that the activities of the judiciary, as well as their acts and actions, must comply with material and procedural norms2. Compliance with the rules of substantive law is expressed in the correct motivation of the court decision, it should 2 Dolgopyat A. O. The Concept and content of the principle of legality // Business in law. 2008. No. 4, p 243.
Think Global, Act Local contain references to the relevant legal rules applied by the court to resolve a dispute. Procedural guarantees of implementation of the principle of legality in the judicial process relate to the need for strict observance of the established procedure for the consideration of the case, which ensures the execution of the rights and obligations of the parties, the adversarial nature of the jurisdictional process3. The principle of legality is guaranteed by the fact that the court decision has a written form established by procedural law, from which the judge cannot depart. Procedural guarantees of the principle of legality are important factors in the implementation of other principles of the judiciary; the independence of judges, equality of the parties in the trial, transparency and openness of trials, the continuity of the trial, etc. The implementation of the principle of legality implies the possibility of checking the legality and validity of the first instance decision in the appeal and cassation procedure by higher judicial bodies, as well as the implementation of prosecutorial supervision in certain categories of cases. An important factor in ensuring the unity of the rule of law is the activities of the Supreme Court of the Russian Federation, which through the official interpretation of legal norms is designed to ensure the unity of the rule of law and law enforcement practice throughout the country. However, despite the increased work of the judicial system, the courts of General jurisdiction in Russia face certain problems in the implementation of the principle of legality. One of them is the problem of implementation of the requirement of unity of legality. It manifests itself in 3 Tarasov V. N. Continuity and traditions of the principles of Russian civil procedure / / Jurisprudence and practice: Bulletin of the Nizhny Novgorod Academy of the Ministry of internal Affairs of Russia. 2015. №2 (30) P.199.
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the heterogeneity of the practice of applying the same rules of substantive law by different courts. For example, the courts of the North-Western region (St. Petersburg, Pskov and Novgorod regions) interpreted and applied the rules of art. 245 of the Civil code and the Law of the Russian Federation” on measures of additional state support for families with children “ (the law on maternity capital) until the spring of 2016, the Supreme Court of the Russian Federation in the review of judicial practice in cases involving the use of maternity capital, has not developed a unified approach to resolving cases in this category. To solve this problem, it is necessary to legislate the mandatory nature of the courts to consider the legal positions formulated in the decisions of the Plenum of the Supreme Court of the Russian Federation. The introduction of this principle would make it possible to establish an existing legal mechanism to ensure the unity of judicial practice and the rule of law throughout the country. Another problem that does not allow effective implementation of the principle of legality is the imperfection of the legal framework, the rules of substantive law. They are the basis for judicial decisions. The system of Russian legislation today, unfortunately, is still far from perfect; it is filled with internal uncertainty, contradictions, gaps, evaluative concepts, etc. The Legal technique of both Federal and regional lawmaking is at a low level. This problem is aggravated by the number of changes that are made to the current legislation. The frequency and number of changes made in recent years clearly goes beyond expediency and reasonableness. The constant “rewriting” of the material law undermines its fundamental necessary property, such as stability, and often reduces the level of its technical and legal quality. This fact does not have the best effect on the legality of court decisions.
Think Global, Act Local Russian Prime Minister Dmitry Medvedev recently drew attention to the problem of excessive instability of Russian legislation. He urged the deputies of the Russian Parliament to be more careful and cautious about changes in the legal framework. This proposal is very useful. In addition, the quality of legislation can be improved by conducting mandatory scientific examinations of each legal act with the involvement of authoritative legal scholars, research centers and institutions. Corruption is another factor that undermines the credibility of the judicial system and the legitimacy of judicial decisions. In ‘The Report on results of consideration of criminal cases on separate articles of the Criminal code of the Russian Federation on the sentences which entered into force and other judicial resolutions, including on crimes of corruption orientation on the main qualification in the judicial act’ of Judicial Department at the Supreme court of the Russian Federation for 2015 the statistics according to which for Commission of corruption actions 11499 employees of judicial system were condemned4. Public authorities are now working to reduce the level of corruption of the judiciary. They have toughened the punishment for receiving and giving bribes, increased payments and provided social benefits to court employees; Court officials also have a special status that avoids influencing their decisions.
for modern judicial practice. One of the formal confirmations of this is the statistics given in the «Review of statistical data on the consideration of administrative, civil, economic disputes, cases of administrative offenses and criminal cases in the Supreme Court of the Russian Federation in the first half of 2016”. In this document it is noted that of the 460 cases considered in court session of cassation, 452 were granted (of which 201 the decision of the lower courts was reversed)5. The unprofessional approach of the judge to his work as well as official negligence can lead to sad consequences and are unacceptable. The solution to this problem is to further improve the system of professional training of future employees of the judicial system, as well as to improve the skills of existing lawyers. Thus, it can be concluded that the principle of legality – the basic principle, located in the centre of the Russian legal proceedings, forms the rest of the principles of justice. The judiciary -through its activities and decisions- must strengthen the principle of the rule of law, enhance respect for the law and the authority of the judiciary in the eyes of the public. Despite the existence of serious problems related to the practical implementation of the principle of legality, the Russian judicial system is looking for and finding ways to solve them.
These measures appear to be correct and deserve support. In addition, it is essential to focus on moral qualities and business ethics in the training of future members of the judiciary. In addition, the system of professional selection of candidates for judicial positions also needs to be improved. In most countries of the world, the position of a judge is the pinnacle of a lawyer’s career-a practice to which only the best of the best representatives of the legal community can rise, distinguished not only by the highest level of professionalism, but also by an impeccable moral reputation in society. The very fact of corruption cannot be eliminated due to the unavailability of the human factor in the proceedings, but, of course, it is possible and necessary to conduct a constant struggle to reduce the level of corruption of the judiciary. The insufficient level of professionalism of some members of the judiciary is a significant problem 4 Website of the Judicial Department at the Supreme court of the Russian Federation / / - URL: http://www.cdep.ru/index. php?id=216&item=3420 (date of application: 13.01.2019).
5 Website of the Supreme Court of the Russian Federation // URL: http://www.vsrf.ru/Show_pdf.php?Id=11023 (date of application: 13.01.2019). SYNERGY Magazine | 33
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To what extent is an expulsion of alien a sovereign right of a state?
NON-REFOULEMENT AND HUMAN RIGHTS LAW Romana Fridriková
Lawyer, Office of the Public Defender of Rights of the Slovak Republic President, ELSA Slovak Republic 2017/2018
It is uncontested in both theory and practice that the principle of state sovereignty1 implies a general right of expulsion which means that a state is not obliged to admit an alien to its territory. In other words, no one may claim a right to enter a state of which he is not a national.2 However, this principle is softened by other rules of international law, bringing into play the rights of an individual.3 One of such rules is the non-refoulement principle which is traditionally linked to the refugee law. As required by the Convention Relating to the Status of Refugees (1951) as amended by the Protocol Relating to the Status of Refugees (1967), a state is obliged to refrain from expelling or returning (“refouler”) a refugee to a country “where his life or freedom would be threatened on account of race, religion, nationality, membership of a particular social group or political opinion.” From a viewpoint of the United Nations High Commissioner for.
1 Charter of the United Nations (1945) 1 UNTS 16, Art. 2 (1). 2 Ch. Joppke, Challenge to the Nation-State. Immigration in Western Europe and the United States (Oxford University Press, 1998) 109. 3 ILC, Draft Articles on Expulsion of Aliens with Commentaries (2014), ILC Yearbook 2011, Vol.2, Part 2, General Commentary, para. 1. 34 | SYNERGY Magazine
Refugees as well as many qualified scholars,4 it constitutes a rule of customary international law, despite some state practice to the contrary. In addition to the refugee law, the non-refoulement principle can be also found in international human rights law, where it prohibits an expulsion of an alien if the return poses him to a threat of serious human rights violations. Perhaps the most common example of the non-refoulement obligation in the context of human right relates to the prohibition of torture and other forms of inhuman or degrading treatment or punishment. An explicit formulation of this rule is found in the Art. 3 (1) of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1984): “No State Party shall expel, return (“refouler”) or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.” The standard of proof in assessing whether there is real risk of torture or other cruel, inhuman or degrading treatment or punishment is higher than mere suspicion but lower 4 See e.g.: W. Kälin et al., ‘Article 33, Para. 1’ in: A. Zimmermann (ed), The 1951 Convention relating to the Status of Refugees and Its 1967 Protocol: A Commentary (Oxford University Press, 2011) at 1347-1349; J. C. Hathaway, The Rights of Refugees under International Law (Cambridge University Press, 2005) at 365; J. Allian, ‘The Jus Cogens Nature of Non-Refoulement’ (2001) 13 IJRL 4 at 533, 558.
Think Global, Act Local than highly probable.5 Furthermore, the United Nations Human Rights Committee (‘HRC’) found that the non-refoulement obligation, although not explicitly stipulated, is implied in several human rights obligations stemming from the International Covenant on Civil and Political Rights (1966).6 Such an interpretation is based mainly on the wording of Art. 2 of the Covenant, which requires the State parties to respect and ensure the rights enumerated in the Covenant “or all persons in their territory and all persons under their control.” Remarkably, in its General Comment No. 31 (2004), the HRC went beyond the scope of prohibition of torture when articulating the scope of non-refoulement obligation based on the Art. 2 ICCPR. It concluded, that an “obligation not to extradite, deport, expel or otherwise remove a person from their territory’ applies whenever there are ‘substantial grounds for believing that there is a real risk of irreparable harm” for an individual.7 The HRC exemplifies that such a risk is contemplated for instance by Art. 6 (right to life) and Art. 7 (prohibition of torture and cruel, inhuman or degrading treatment or punishment).
the principle of effective enforcement of human rights10 in the light of the ECHR’s interpretation based on its object and purpose.11 According to this analysis, it is clear and uncontested that international human rights law absolutely prohibits the refoulement to a place where an individual would be at real risk of torture, cruel, inhuman or degrading treatment or punishment as well as arbitrary deprivation of life. However, the concept of ‘irreparable harm’ introduced by the HRS seems to cover broader range of rights than those just mentioned. In fact, the HRC has found admissible several claims concerning the principle of non-refoulement based on other rights than those protected under Arts. 6 and 7.12 In the light of the theory of permeability of human rights based on the interdependence of socio-economic rights with civil and political rights13 along with a necessity to achieve progressively the full realization of economic, social and cultural rights,14 the protection against refoulement might be applicable even to the expulsion or return to the country where a person could face a deprivation of socio-economic rights. This remains, however, controversial.15
In regard to the standard of proof, the HRC confirmed in its jurisprudence that “there is a high threshold for providing substantial grounds to establish that a real risk of irreparable harm exists,” while “all relevant facts and circumstances must be considered, including the general human rights situation in the country of origin.”8 The same conclusion in terms of implied nonrefoulement obligation is also well-established in the ECtHR case-law.9 A key legal basis for this doctrine is
5 UN Committee Against Torture ‘General Comment No.1’ (1998) UN Doc A/53/44, Annex IX, para. 6. 6 Similarly, the Committee on the Rights of the Child has found the non-refoulement obligation implied in the Convention on the Rights of the Child (1987). 7 See e.g.: UNHRC ‘General Comment No. 31’ (2004) CCPR/C/21/Rev.1/Add. 13, para. 12. 8 R.G. et al. v Denmark (2015) CCPR/C/115/D/2351/2014, para. 7.4. 9 See e.g.: Soering v UK (Judgment) 14038/88 (7 July 1989); Chahal v UK, (Judgment) 70/1995/576/662 (11 November 1996); Saadi v. Italy (Grand Chamber) 37201/06 (28 February 2008); Sufi and Elmi v UK (Judgment) 8319/07 and 11449/07 (28 June 2011).
10 M. Foster, ‘Non-Refoulement on the basis of Socio-Economic Deprivation: The Scope of Complementary Protection in International Human Rights Law’ (2009) 2 NZLR 257, 269: ‘The obligations imposed on states by human rights conventions could be entirely undermined if a state could disregard these obligations in sending a person to a place in which it was foreseeable they would suffer a violation of rights.’ 11 Vienna Convention on the Law of Treaties (1969), Art. 31. 12 See e.g.: ARJ v Australia (1996) CCPR/C/60/D/692/1996; Judge v Canada (2003) CCPR/C/78/D/829/1998. 13 C. Scott, ‘Interdependence and Permeability of Human Rights Norms: Towards a Partial Fusion of the International Covenants on Human Rights’ 27 Osgoode Hall LJ (1989) 769, 771. 14 International Covenant on Economic, Social and Cultural Rights (1966), Art. 2 (1). 15 Foster, supra n. 12 at 266. SYNERGY Magazine | 35
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A closer look at the relationship between the Court of Justice of the European Union and the European Court of Human Rights and its development following the EU accession to the ECHR
HUMAN RIGHTS PROTECTION IN THE EUROPEAN SPACE: HISTORY AND FUTURE PERSPECTIVES Eugenio Ciliberti
Secretary General of ELSA Salerno
Since the 1950s, the idea of protection of human rights and political freedom at the supranational level has acquired a growing concern all over the world: an example would be the American Convention on Human Rights (the so-called ‘Pact of San José’), adopted in 1969 and ratified today by 24 states. In Europe, alongside the activity of the Council of Europe in defending all those fundamental rights for contemporary democracies, the European Union, originally set up as an institution with political and economic interests, is now seeking to secure human rights within the "Area of Freedom, Security and Justice’’ (AFSJ) by adopting innovative policies in this field, especially from the beginning of the new millennium. Amongst those measures, it is worth mentioning the Charter of Fundamental Rights of the European Union, which has been solemnly proclaimed by the European Parliament, the Council of Ministers and the European Commission on December 7th 2000. The Charter, which recalls the provisions of the most important documents on human rights, starting from the 1948 Universal Declaration of Human Rights, states in its Article 52, par. 3 that "In so far as this charter contains rights which correspond to rights guaranteed by the Convention 36 | SYNERGY Magazine
for the Protection of Human Rights and Fundamental Freedoms, the meaning and scope of those rights shall be the same as those laid down by the said Convention. This provision shall not prevent Union law providing more extensive protection’’. Furthermore, Article 53 sets the level of protection of the Charter, holding that: "Nothing in this Charter shall be interpreted as restricting or adversely affecting human rights and fundamental freedoms as recognised, in their respective fields of application, by Union Law and international law and by international agreements to which the Union, the Community or all the Member States are party, including the European Convention for the Protection of Human Rights and Fundamental Freedoms, and by the Member States’ constitutions’’. On the other hand, Article 53 of the European Convention of Human Rights opens to a stronger safeguard for existing human rights, establishing that ‘’Nothing in this Convention shall be construed as
Think Global, Act Local limiting or derogating from any of the human rights and fundamental freedoms which may be ensured under the laws of any High Contracting Party or under any other agreement to which it is a party’’. This link sets the first, crucial example of ‘Integrated Human Rights Protection’, whose importance has to be found especially on the jurisdictional level, in the dialogue between the two judiciary bodies of the European Union and the Council of Europe: the Luxembourg European Court of Justice and the Strasbourg European Court of Human Rights. Although there are some relevant differences between the ECJ and the ECtHR (which we will be looking at afterwards), a process of ’mutual cross-fertilization’ has been taking place since the early 70s: for example, in the 1970 Internationale Handelsgesellschaft case, the ECJ proclaimed that fundamental rights, as general principles of Community law, are "inspired by the constitutional traditions common to the Member States’’, simultaneously underlining that their protection "must be ensured within the framework of the structure and the objectives of the Community’’.Through this bridge, the ECJ has increasingly given the European Convention on Human Rights ‘special significance’ as a ‘guiding principle’ in its decisions: this lead to the rule being crystallized in the 1992 Treaty of Maastricht in Article F, par. 2, where the Member States have adopted the following provision:
in the context of measures taken in order to abide by legal obligations towards international organizations whom they have transferred sovereign powers. This decision had a double effect on the relationship between the two Courts: firstly, the Strasbourg Court laid down the method for a mediated dialogue with the Luxembourg Court; in addition, the judges have ruled that the Convention is a ‘constitutional instrument of European public order’, as preliminarly ruled in the 1995 Loizidou v. Turkey case. Though some (like De Rivery and Chassaing) would be talking of the Luxembourg and the Strasbourg Courts as conflicting entities, the first opposing a form of ‘Charter-centrism’ to the latter’s Convention-centrism, the distance between them has significantly diminished in the last 30 years, and the EU accession to the ECHR will help in overcoming the remaining obstacles.
"The Union shall respect fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms signed in Rome on 4 November 1950 and as they result from the constitutional traditions common to the Member States, as general principles of Community law’’.
The journey that brought to Article 6, par. 2 TEU has been a difficult one, and difficult will be its concrete application. The Luxembourg Court seems, in fact, to reject any form of influence from the Strasbourg Court’s jurisprudence and, in its Opinion 2/13 on the compatibility of the DAA package with the EU treaties, it held that the mechanisms allowing the EU’s autonomy to be guaranteed according to Protocol No. 8 TEU were insufficient to protect it, and thus forced the negotiators from the European Union and the Council of Europe to add another layer of revisions/additions to the DAA, in order to finally make it compliant with the Luxembourg Court’s requisites. Beyond any consideration regarding the argumentative aspects of the Opinion, which is not appropriate to formulate here, it still is a matter of fact that the Court is posing certain costs to the EU’s human rights position, and therefore marks a step backside compared to the achievements reached on both the legislative and the jurisdictional level.
Since then, the European Union strived to privilege a solidaristic perspective, based on the intuition according to which the economic well-being of the Member States’ citizens is well guaranteed when the human rights of each individual are thoroughly respected. On the other side, the ECtHR has made numerous references to the ECJ’s case law, starting from the famous Marckx v. Belgium case in 1979; but, most importantly, it is to be mentioned the Bosphorus judgement, where the Grand Chamber addressed the issue of the responsibility of Member States
So, what future for human rights in the AFSJ? JeanPaul Jacqué tried to answer this and other fundamental questions in a study, where he pointed out the possible solutions to this situation, suggesting, among the others, the idea of either entering a statement from the EU and its Member States in the Final Act of the accession agreement which highlights the importance of safeguarding mutual trust and indicates that the agreement is reached by taking into account the fact that the ECtHR will seriously take this element into consideration, or enter this element SYNERGY Magazine | 37
Think Global, Act Local into the agreement itself as a new provision. This option does not relate to structural or institutional aspects of the two Courts, but to a divergence in case law, as the ECtHR is meant to essentially assess a complaint lodged by a victim, whereas the ECJ is not called upon to rule on the facts of a case, but to interpret EU law as regards the fundamental rights for a national jurisdiction. In other words, the ECtHR gives a concrete response to a precise case, whilst the ECJ gives an abstract response to an issue of interpretation during a case being dealt with by a national judge. Even though promoting hopes that the dialogue between the two Courts leads to a reconciliation of their positions is utterly necessary, a second query should also be considered: does the DAA package really ‘affect the Union’s competences as defined in the Treaties’ and, in general, the EU’s autonomy? Or it is just a pretext for the Luxembourg Court to get the best possible deal out of the agreement, ensuring itself and other EU institutions to adjudicate first on compliance with the Convention? Whatever the real concerns are, one thing is to be underlined: with the current absence of the accession, the situation of the EU with regard to the Convention is unfortunately objectively less sound than it would have been following accession on the basis of a draft agreement imperfect in the eyes of the Court. Hence, Jacqué suggests that the talks started in the Council should be brought to an end quickly. But yet, the EU accession to ECHR should not be taken for symbolic reasons (as Jacobs would argue): it should be, instead, the natural destination of a path started long time ago which, according to Fisnik Korenica, may largely improve not only the current structural deficiencies which exist in the human rights protection in the European space, but also the substantive situations regarding protection of EU-related claimants appearing before the Strasbourg Court. As EU regulations are taking over major aspects of everyday life, the accession is therefore the natural consequence of the major changes occurred since the 1957 Treaty of Rome and, along with the upcoming integrative dialogue between the two Courts, will likely prove right Barber’s theoretical conclusion that ‘law has played a powerfully integrating role in Europe’.
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NEW TRADE MARK DIRECTIVE (EU) 2015/2436: THE MOST REMARKABLE CHANGES BROUGHT TO IP LAW Dimitra Maradou
Undergraduate law student in Aristotle University of Thessaloniki (Greece)
Introduction in Trade mark law With the advent of industrialization ,the development of communications and the creation of global markets the trade mark law, one of the most significant fields of Intellectual Property Law was born in the 19th century. Directive approximating the laws of the Member States relating to trade marks But what is actually the definition of a trade mark? “A trade mark may consist of any sign, in particular words, including personal names or designs, letters, numerals , colours, the shape of goods or of the packaging of goods or sounds provided that such signs are capable of a) distinguishing the goods or services of one undertaking from those of other undertakings and b) being represented on the Register of European Union Trade marks in a manner that enables the public authorities and the public to determine the clear and precise subject matter of the protection afforded to its proprietor”.1A trade mark can be a word mark, a figurative mark or one containing word elements, a shape 1 . Article 4 of 2017/1001 Regulation , available at https:// eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:32017R1001&from=EN
mark, a position mark, a pattern mark, a colour mark, a motion mark, a sound mark , a multimedia mark and finally an hologram mark.2 All these signs should be registered in order to distinguish the goods and services of a company from its competitors and provide the company with all the benefits of a trade mark. Trade mark reform Regulation 2017/1001 and Directive (EU) 2015/2436 Trade mark law is based on two essential tools, the EU Trade Mark Regulation, directly applicable to all EU Member States and the EU Trade Mark Directive, approximating Member States’ national trade mark law.3 Main changes in Directive (EU) 2015/2436 The Directive (EU) 2015/2436 reformed key affairs in trade mark system. Primarily, the trade mark definition does not require any more the graphic representability 2 .Trade marks definition available at https://euipo.europa.eu/ ohimportal/en/trade-mark-definition 3 . Miquel Peguera Trade Mark Secondary Liability: A limited harmonization under EU law availablat law journal: https://papers. ssrn.com/sol3/papers.cfm?abstract_id=3291495 SYNERGY Magazine | 39
Think Global, Act Local and as of now signs that “distinguish the goods and services of one undertaking from those of another undertaking and that is represented on the register in a manner which enables the competent authorities and the public to determine the clear and precise subject matter of the protection afforded to its proprietor” can be a trade mark.4 Thus, non traditional trade marks can be registered such as motion marks, sound marks, holograms, multimedia marks.5 Another important amendment is related to the absolute grounds for refusal or invalidity. Initially, with the addition “or another characteristic” in article 4(1)(e) there is a prohibition for the registration of signs that constitute not only shape but also another characteristic “that results from the nature of the goods themselves, or characteristic of goods that is necessary to obtain a technical result, or gives substantial value to the goods”. 6The Directive also introduces a new absolute and relative ground for refusal on geographical indications. From this point on, trade marks rejected from registration according to Union legislation or national law or international agreements to which the Union or the Member State concerned is party, providing for protection of designations of origin and geographical indications, shall not be registered.7 Furthermore, the new Directive introduces the protection of traditional terms for wine and traditional specialities guaranteed. Notably, another absolute ground for refusal concerns the protection of plant variety rights; thus a trade mark which consists of, or reproduces in its essential elements, an earlier plant variety denomination registered in accordance with Union legislation or national law, or international agreements to which the Union or the Member State concerned is a party, can not be registered if it designates goods same or closely related to plant varieties species.8 An innovatory article is the article 13 introduced by the new Directive and is related with the use of a trade mark registered in the name of an agent or representative. Specifically, the proprietor of a trade mark is entitled to prohibit the use of one’s trade mark by agent or representative or to demand its assignment if the trade mark has been registered without written consent.9 This specific article aimed to prevent the agent or representative from 4 . Article 3 of Directive 2015/2436 5 . D. Marinos, Distinctive character, edition Sakoulas 2016, p. 510 6 . Article 4 paragraph 1e of Directive 2015/2436 7 . Article 4 paragraph 1i of Directive 2015/2336 8 . D. Marinos, Distinctive character, edition Sakoulas 2016, p. 511 9 . Article 13 of Directive 2015/2536 40 | SYNERGY Magazine
devious acts.10 The Directive (EU) 2015/2436 introduces optionally a new type of trade marks at national level, the certification or guarantee trade mark. A certification trade mark is “capable of distinguishing goods or services which are certified by the proprietor of the mark in respect of material, mode of manufacture of goods or performance of services, quality, accuracy or other characteristics, from goods and services which are not so certified.” Certification trade marks distinguish mainly products of high quality and any legal or natural person can register a certification trade mark with the sole requirement: that such person does not have a business which supplies goods or services of the kind certified.11 One other significant amendment is the designation and classification of goods and services (article 39) that was modified with the significant case-law of the Court of Justice “IP translator”.12 The goods and services are classified according to Nice Classification and their identification by the applicant should be sufficiently clear and precise in order to define the limits of protection. If the general indications and terms used for the identification are undefined, the application of the trade mark will be in effect rejected.13 Finally, concerning the procedure and consequences of revocation or declaration of invalidity, it is essential to mention that the new Directive establishes the distinction between the meaning of revocation and declaration of invalidity. The revocation of a trade mark comes as a result of the absence of genuine use and the convention of a trade mark into a generic or misleading indication; on the other hand the declaration of invalidity is related with the absolute and relative grounds for refusal.14 Once a trade mark has been revoked, its effects cease to exist by the date of the request for revocation and according to article 45 paragraph 4a “any natural or legal person and any group or body set up for the purpose of representing the interests of manufacturers, producers, suppliers of services, traders or consumers, and which, under the terms of the law governing it, has the capacity to sue in its own name and to be sued,” can request the revocation or declaration of invalidity of a trade mark.15 In conclusion, one functional amendment should be mentioned. Under the new Di10 . Kotsiris, European Commercial Law, edition Sakoulas 2018, p. 483 11 . What can be a EU trade mark available at: https://euipo. europa.eu/ohimportal/en/what-can-be-an-eu-trade-mark 12 . C-307/10, Court of Justice, available at : https://curia.europa.eu/jcms/jcms/index.html 13 . D.Marinos, Distinctive character, edition Sakoulas 2016, p. 519 14 . Article 45 of Directive 2015/2436 15 . Marinos, Distinctive character, edition Sakoulas 2016, p. 520
Think Global, Act Local rective, each member state ought to have administrative procedure (Board of Appeal) for opposition, revocation and invalidity of trade marks; the decision of the Board of Appeal can be appealed to the courts.16 Conclusion: review of Directive (EU) 2015/2436 Trade mark law is facing one of the biggest reforms that will bring significant changes not only in EU trade mark but also in national trade marks of member states. Under the Directive (EU) 2015/2536, an important number of amendments have been made in order to synchronize with the new demands and marketing conditions. For example, in comparison with the previous Directive, the new Directive further advanced by removing the requirement for graphical representation of signs and signs can be further presented in any appropriate form by means of commonly available technology. One typical example is the evolution of sound marks: under the previous system, sound marks were registered only when a music notation was provided .This is no longer required with the effect that sounds not representable by music notes may be registered. Concluding with the advantages of Directive (EU) 2015/2436 , under the new Directive the rights dictated by a trade mark have been reinforced with the addition of paragraph 4 in article 10 and the absolute grounds for refusal has also expanded on the protection of plant variety rights and geographical indications rights, one pioneering modification not regulated in the Directive (EU) 2008/95.All these reforms include some major changes that will modernize European Union trademark law and ensure greater harmonization in trade mark practice and procedures across the European Union.
16â€ƒ . Article 45 paragraph 1 of Directive 2015/2436 (â€œMember States shall provide for an efficient and expeditious administrative procedure before their offices for the revocation or declaration of invalidity of a trade markâ€?) SYNERGY Magazine | 41
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PROTECTION GAP OF UNRECOGNIZED ENVIRONMENTAL REFUGEES
Eve Ahonen Director for IFP, ELSA Finland 2018/2019
The most serious consequence of climate change is not the change in the weather patterns itself, but the millions of people who will be displaced because of it. Climate change is estimated to give rise to the largest influx of refugees in the history of humankind. It is projected that climate change and other environmental changes altogether will result in nearly 200 million people fleeing their current habitats by 2050. The actual number of unrecognized environmental refugees, both cross-border and within a country, is likely to be of unprecedented scale. The current legal regime regarding asylum is poorly adapted to the needs of those seeking refuge for environmental reasons. With regard to the protection of the group called â€œenvironmental refugeesâ€?, two problems exist: firstly, environmental reasons cannot be unequivocally separated from political or economic factors pushing people to migrate. Even if the reason for migration is unequivocally established as being a direct consequence of environmental degradation, the second problem arises. In the international context, the term 'refugee' already has a precise meaning as a person who is staying outside his or her home country and has been subjected to ethnic, political or religious persecution or has other legitimate reason to fear being persecuted in the country of which he or she is a national and is therefore unwilling to avail himself or herself of the protection of that country.
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It is currently not possible to interpret legislation as incorporating environmental refugees within the regime of protection, which remains dependent on the goodwill of the States. The requirement of persecution leaves out a large number of people who escape a variety of serious environmental threats. International law reveals a significant gap in rights protection concerning vulnerable people who are forced to migrate because of environmental stressors due to not being able to benefit the effective adaptation measures as such. Firstly, a potential protection gap arises in particular in the case of cross-border movements. Internally displaced people often enjoy better protection than displacement across borders because whether the nature of their displacement is temporary or permanent they are covered by the 1998 UN Guiding Principles on Internal Displacement if they stay within the country borders. Those moving across international borders as a result of sudden climate events are protected by international human rights law, which however does not entitle them the right to stay in another country. They are not automatically protected by the 1951 Refugee Convention either. The issue is problematic because one single environmental cause for forced cross-border migration can seldom be separated from other reasons. There is no clear data of the number of people who are potentially at risk of displacement when certain climatic events take place and have been de facto forced to leave their country, and are therefore in need of international protection. Secondly, one of the biggest challenges in responding to the protection gaps is to determine whether the displacement is voluntary or involuntary. Scientific evidence of climate change and global warming is increasing yet it is unclear how much it contributes to forced migration. There are no well-established criteria
Think Global, Act Local to distinguish between voluntary and involuntary movements in both hazard related disaster settings and more incremental degradation of natural environment. Those who migrate because of environmental reasons are often forced to move because of sudden onset natural disaster. On the other hand, in many cases the environmental degradation is gradual and leaves people time to adjust, which however does not make the movement voluntary. Involuntariness of the decision to move is dependent on the vulnerability, exposure and resilience to natural hazards and deteriorating environment. Common understanding is that climate change causes environmental degradation, which triggers both voluntary and involuntary migration flows. The third potential protection gap arises when temporary displacement becomes permanent. Existing legal mechanisms form the basis for temporary protection claims, but they are inadequate in all other cases. Humanitarian aid has been criticized for focusing too much on emergency aid and not enough long-term investments on education, livelihood and future planning are made. Often, lack of future planning and functional policies only aggravate humanitarian needs, which leads to a real gap in normative protection regime. Therefore the protection gap should not be evaluated directly for the specific environmental conditions that push people to leave, but from the perspective of vulnerability. Most vulnerable people are not the ones most likely to migrate and leave out of protection in case of permanent involuntary displacement due to environmental factors. The refugee issue is associated with complex economic, political and cultural issues. Deteriorating environmental conditions have the potential to induce violent conflicts when people are forced to fight for their living and the access to limited natural resources. Environmentalist perspective promotes better and more sustainable environmental policies, giving less attention to the adequacy of migration policies to handle movements that are already occurring because of environmental degradation. Overarching goals of international climate action are not sufficient from the perspective of legal protection of environmental refugees. Only until recently individuals have been given the possibility to bring States to court in case of non-compliance with international climate conventions. Courts have in several occasions stated that the right to a healthy environment is a fundamental and indivisible human right which States are obliged to protect by mitigating negative effects of
climate change. The added value of linking human rights to climate change is in finding a way to not only put political pressure on environmental issues but to have direct access to climate justice. Climate change is having a wide and deep impact on the environment, human development and all areas of the law, and realization of human rights and environment cannot be separated from each other. Legal status of international climate refugees is still unsettled and simultaneously the issue is related to major international policy challenges. It is worth considering why it is difficult to implement concrete judicial determinations. Western countries are focusing on curbing the effects of climate change and environmental issues it brings along at great costs in their own region. In developing countries today it is no longer about how to prepare for the impacts but more about adapting to the changing situation and learning new ways to live with them. Despite the fact that Western countries do give a lot of weight on the protection of human rights and democracy in relations with third world countries, States should imperatively deal with the issue of climate refugees like any serious humanitarian crisis. Recognizing that developed countries are principally responsible for the contribution to the current high levels of GHG emissions, industrialized nations need to take bigger responsibility under the principle of â€œcommon but differentiated responsibilitiesâ€?, especially regarding the impact they have on human displacement. The way forward is to recognize the right to a healthy environment, global understanding of what this means, and through recent case law, the hope of binding judicial practices and customary international law stemming from the latter.
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Think Global, Act Local
Drugs policy in the light of ECHR case law
IS ACCESS TO DRUGS A HUMAN RIGHT?
Zuzanna Zapotoczna Vice -President for Marketing ELSA Kraków 2017/2018
When thinking about drugs policy we usually refer to counteracting addictions and restricting access to drugs except under licence for specific purposes, such as medical treatment and research. Despite treaties like the Single Convention on Narcotic Drugs of 1961, the Convention on Psychotropic Substances of 1971 and United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances of 1988, the creation of an appropriate international standard aimed at protecting human rights of people addicted to drugs was a huge difficulty. Fortunately, the protection standard can be interpreted from the European Court of Human Rights case law. Article 3 of the European Convention on Human Rights states that “no one shall be subjected to torture or to ihuman or degrading treatment or punishment.” No derogation from Article 3 shall be made even in time of emergency. Consequently, to make the Article more applicable, the ECHR has created definitions of above terms.
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According to the Court: 1. Torture is a “deliberate inhuman treatment causing very serious and cruel suffering with the aim of obtaining information, inflicting punishment or intimidating1”. 2. Treatment can be “inhuman”, when it is “premeditated, is applied for hours at a stretch and cause either actual bodily injury or intense physical and mental suffering2”. 3. Treatment may be defined as degrading when it “humiliates or debases an individual, showing a lack of respect for, or diminishing, his or her human dignity, or arouses feelings of fear, anguish or inferiority capable of breaking an individual’s moral and physical resistance3” On this basis, the Court has established an absolute prohibition of ill-treatment in the context of drug policy. Besides, it has created a fair trial standards regarding investigation and court proceedings of drug related crimes. For instance, under the ECHR case law, a refusal to offer a drug substitution therapy in detention may constitute inhuman treatment in breach of Article 3 of the Convention4. What is also significant, a forcible administration of emetics in order to obtain evidence of a drug offence may constitute inhuman and degrading treatment5. Drawing on the example of Wenner v. Germany case, we can clearly see that in some situations access to drugs may be treated as a human right. Therefore, I understand that the European Court of Human Rights judicature constantly ensures that drugs policy is closer to being grounded in science, compassion, health and human rights. 1 El-Masri v the Former Yugoslav Republic of Macedonia ( 39630/09) ECHR, 2012 2 Gafen v. Germany (22978/05) ECHR, 2010 3 Bouyid v. Belgium ( 23380/09)ECHR, 2013 4 Wenner v. Germany, ( 62303/13) ECHR, 2016 5 Jalloh v Germany (54810/00)ECHR, 2006
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An analysis into one of the major pillars of the European Union Climate Policy: the EU Emissions Trading Scheme
AN OVERVIEW OF EMISSIONS TRADING IN TERMS OF THE EUROPEAN EMISSIONS TRADING SCHEME Nina Fauser
President of ELSA Malta 2018/2019
In very basic terms, emissions trading is a mechanism in which the Government provides incentives to control pollution. Emissions trading is often referred to as “capand-trade” and focuses on reducing pollution through a market-based approach, whereby a cap (or limit) on emissions is set, and permits are subsequently created up to the level of this particular cap. These permits are referred to as “tradable pollution permits”, and the main aim of such a mechanism is to add the profit motive as an incentive for good performance. This is effectively putting a price on pollution, whilst also creating flexibility when it comes to how, and where pollution is reduced. Furthermore, by setting such an allowance, it ensures that the environmental goal is met, and that the tradable allowances provide increased flexibility for individual emissions sources to set their own mechanisms. These allowances can be bought and sold in an allowance market, and therefore, emissions trading is seen as a market-based approach. By setting a limit on allowances, this creates scarcity, which in turn, generates economic value, providing an incentive to reduce emissions. A cap-andtrade system reduces compliance costs, whilst also incentivising emission reduction, and spurring technological innovation and energy efficiency. Emissions trading was developed in the 1970s and 1980s in the US, in order to combat acid rain, however it has recently also extended its application to greenhouse gas emissions in relation to
climate change. This approach to reducing pollution has proven to be effective in many ways, and has been used successfully in protecting human health and the environment 1. The first aspect of the method involved in emissions trading, is to set an emission goal; this is usually established by the Government, and allowances are subsequently distributed to affected sources. Following this, a compliance strategy is developed, where the affected sources determine the manner in which emissions will be reduced, generally by applying tradable compliance instruments. A measurement of emissions is then taken, and these are reported together with other relevant data. Based on this data, a compliance assessment is carried out, and the Government levies automatic penalties for non-compliance. 2 Following a progress report delivered by the US EPA (Environmental Protection Agency), the success of these programs is evident through substantial reductions in emissions of sulphur dioxide (SO₂) and nitrogen oxides (NOx), whilst also improving air quality 3. When discussing the concept of emissions trading, it is vital to mention a number of advantages related to this scheme; due to the overall pollution limit which is established, there is a certain level of environmental certainty which comes about, ensuring that progress will be effective in this regard. Additionally, due to the incentives for efficiency and innovation, implementation costs are low1 ‘What Is Emissions Trading? | US EPA’ (US EPA, 2018) <https://www.epa.gov/emissions-trading-resources/what-emissions-trading> accessed 10 March 2018. 2 ‘Emissions Trading 101’ <https://www.youtube.com/ watch?v=Haqk6xcEoyE&feature=youtu.be&rel=0> accessed 10 March 2018. 3 ‘Progress Report | Clean Air Markets | US Environmental Protection Agency’ (Www3.epa.gov, 2018) <https://www3.epa.gov/ airmarkets/progress/reports/index.html> accessed 10 March 2018. SYNERGY Magazine | 45
Think Global, Act Local ered. When it comes to developing a compliance strategy, there is flexibility for individual emissions sources when it comes to ensuring compliance. The Kyoto Protocol is an International Treaty which was established in 1997, and came into force 8 years later, in 2005. In terms of emissions trading, under this Treaty, a large number of developed nations agreed to legally binding targets for their emissions in relation to the 6 major greenhouse gases. The Protocol defined several flexible mechanisms which were designed to allow such countries to meet their emission reduction allowances, whilst reading the economic impact 4. The European Union’s Emissions Trading System (hereunder referred to as ‘ETS’), was launched in 2005 as a major pillar of the Union’s climate policy, and is renowned as being the world’s largest scheme for trading greenhouse gas emission allowances. Companies must provide measurements and reports with regards to their carbon emissions, and to provide one allowance for every tonne they release; companies can also trade these allowances, incentivising them to reduce their emissions. The EU ETS has proven to be a successful scheme. It has capped half of Europe’s carbon emissions and the companies following the scheme are no longer free to pollute. Following a study carried out, it was concluded that between 2005 and 2007, the ETS reduced emissions by approximately 210 million tonnes across Europe 5. Emissions trading systems are highly cost-effective, whereby trade encourages markets to find the cheapest ways to reduce emissions. The EU ETS put a price on carbon, whereby a financial value was allocated to each tonne of emissions saved, and this also worked towards the promotion of investment in clean, low-carbon technologies. The EU ETS also provides a solid platform for eventually developing an international carbon market. China, South Korea, Canada, Japan, New Zealand, Switzerland and the US already have a number of na4 Office of Air and Radiation, ‘Clearing The Air: The Facts About Capping And Trading Emissions’ (2002) <https://www.epa. gov/sites/production/files/2016-03/documents/clearingtheair.pdf> accessed 10 March 2018. 5 ‘What Is The Emissions Trading Scheme And Does It Work?’ (the Guardian, 2018) <https://www.theguardian.com/environment/2011/jun/07/ets-emissions-trading> accessed 11 March 2018. 46 | SYNERGY Magazine
Think Global, Act Local tional or regional systems, however the international carbon market is said to develop through a bottom-up approach, whereby the EU ETS will be linked with other international systems, with a common aim to reduce the amount of emissions. The EU ETS currently operates in 28 European countries, together with Iceland, Liechtenstein and Norway, and covers approximately 45% of the EU’s greenhouse gas emissions. The EU ETS is said to consist of four distinct trading periods, whereby development is carried out in stages. The first trading period was between 2005 and 2007, which constituted a learning process and established the system as one of the largest in the carbon market. Following this, the second period was between 2008 and 2012, where the system saw the addition of three new countries, Iceland, Norway and Liechtenstein. We are presently in the third trading period, that is between 2013 and 2020, whereby a progressive shift towards the auctioning of allowances in place of cost-free allocation was prominent. The final trading period is said to be between 2021 and 2030, where the EU ETS will be revised, as evident through a legislative proposal which was presented by the European Commission back in 2015 6. The EU ETS is definitely still considered as being a highly-relevant system, whereby the system is now in its third phase, bring about a number of changes. Some of the central changes include the introduction of a single, EU-wide cap on emissions which replaces the previous system of national caps, together with the auctioning method for allocating allowances, which replaces the previous system of free allocation. Apart from this, a set of unified allocation rules now apply to the allowances which are still given away for free. This phase also saw the inclusion of more sectors and gases, together with another addition to the system, where Croatia joined back in 2013 7.
Bibliography WEBSITE: ’What Is Emissions Trading? | US EPA’ (US EPA, 2018) <https://www.epa.gov/emissions-trading-resources/ what-emissions-trading> accessed 10 March 2018. WEBSITE: ‘Emissions Trading 101’ <https://www.youtube. com/watch?v=Haqk6xcEoyE&feature=youtu.be&rel=0> accessed 10 March 2018. REPORT: ’Progress Report | Clean Air Markets | US Environmental Protection Agency’ (Www3.epa.gov, 2018) <https://www3.epa.gov/airmarkets/progress/reports/index. html> accessed 10 March 2018. JOURNAL: Office of Air and Radiation, ‘Clearing The Air: The Facts About Capping And Trading Emissions’ (2002) <https://www.epa.gov/sites/production/files/2016-03/documents/clearingtheair.pdf> accessed 10 March 2018. WEBSITE: ‘Emissions Trading – Introduction | Malta Resources Authority’ (Mra.org.mt, 2018) <http://mra.org.mt/ climate-%20change/emissions-trading-intro/> accessed 10 March 2018. WEBSITE: ‘Mitigation Of Greenhouse Gas Emissions | Malta Resources Authority’ (Mra.org.mt, 2018) <http://mra.org. mt/climate-change/mitigation-of-greenhouse-gas-emissions/> accessed 10 March 2018. WEBSITE: ‘What Is The Emissions Trading Scheme And Does It Work?’ (the Guardian, 2018) <https://www.theguardian.com/environment/2011/jun/07/ets-emissions-trading> accessed 11 March 2018. JOURNAL: ‘The EU Emissions Trading System (EU ETS) <https://ec.europa.eu/clima/sites/clima/files/factsheet_ets_ en.pdf> accessed 11 March 2018. WEBSITE: ‘EU Emissions Trading System (EU ETS) - Climate Action - European Commission’ (Climate Action - European Commission, 2018) <https://ec.europa.eu/clima/policies/ ets_en> accessed 11 March 2018.
6 ‘The EU Emissions Trading System (EU ETS)’. 7 ‘EU Emissions Trading System (EU ETS) - Climate Action - European Commission’ (Climate Action - European Commission, 2018) <https://ec.europa.eu/clima/policies/ets_en> accessed 11 March 2018. SYNERGY Magazine | 47
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European Regional Rounds of the 15th edition of the ELSA Moot Court Competition
ANNUAL ELSA MALTA MOOT COURT CRIME 101 Katrina Sammut
Director for IFP and Human Rights, ELSA Malta 2018/2019
Back in March, ELSA Malta organised its 4th edition of its annual criminal law moot court ‘Crime 101’. This staple event of ELSA Malta’s calendar was regenerated in order to make the event more student friendly. Although such an event was highly marketed towards first year students, the event saw participants from all years line up for what ELSA Malta had in store. The objective behind this event is to expose the students to litigation aspect of the profession, something which is greatly overlooked within our law course. Therefore, such an event would ensure that any law student develops the necessary tools that they would apply later on in their career. This is done through the organisation of a Trial by Jury, which is held within the Law Courts of our capital city, Valletta. During this round, the participants were given the opportunity to appear and present their case in front of real judges and magistrates. Thus, the participants gained valuable insight into the day to day procedures of the Maltese court system. To further ensure the inclusivity of this event, another two rounds were held prior to the main one. Firstly, a visit to the Corradino Correctional Facility was organised, whereby the participants had the opportunity to observe the day to day running of the Maltese prison, whilst at the same time coming to terms with the different aspect of a legal profession specialised in criminal law. Secondly, a real life crime scene was also created by the organisers. Apart from a number of props strategically placed around the crime scene which could be examined, the participants also had the opportunity to question real-
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life characters. Through this exercise the participants were able to extract a certain amount of information from each character and from this, they could eventually piece together the storyline that the crime scene and the case were based on. This aspect of the event proved to be the most exciting and also most arduous as many participants agonised over a number of intricacies within the crime, the crime scene and the case. Such an activity happens to be the most memorable of all and gives the event its distinctive feature which ensures continuous and healthy participation throughout the years. Daniel Vella, President of ELSA Malta at the time of the event, was pleased with the overall organisation of the event and even more so with the record-breaking number of participants that the event catered-for. He believed that together with his National Board he was able to overcome the student apathy that plagues the halls of the university.
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EMPOWERING STUDENTS THROUGH ACTIVISM Liam Axisa
Treasurer ELSA Malta 2018/2019
As the recently departed former General Secretary of the United Nations, Kofi Annan once said, “Knowledge is power. Information is liberating. Education is the premise of progress, in every society, in every family.” The importance for education in society cannot be understated, with institutions in each country dedicated to the pursuance of and instruction in different branches of education. Academics dedicate their entire professional careers to the dissemination of information for the benefit of students and society at large, with several students in turn engaging in such a practice for the benefit of their peers. It is in this idea, envisioned in the position of Director for Social Policy and Legal Publications within the National Board in ELSA Malta; the publication of the student perspective on some of the most pressing issues facing society at the time. ELSA Malta firmly believes in empowering students to voice their opinions, and strives to give them the chance to gain practical experience through different projects, namely; our Social Policy Papers which covering various topics, ELSA Malta Law Review and Project Jurisprudence. The most recent topic covered in our publications is the legalisation of marijuana. One should note that the topic was analysed from a purely legal & social point of view, the merits and otherwise of medicinal marijuana was not touched upon. Here, our team of dedicated researchers and writers (Matteo Alessandro, Liam Axisa, Natalia Camilleri, Brendan Hewer and Tim Vella) took a comparative approach to the topic, analysing the legal procedures implemented by other countries to
ease in such a change. Amongst these were California, Colorado, The Netherlands and Portugal, each of which employs a drastically different approach and level of legalisation within its territory. Portugal for exam, see substance abuse as a health problem, rather than a criminal one and hence offer rehabilitation programmes, which resulted positively certain areas. Mainly, the laws relating to the Purchase,Sale,Consumption and Cultivation were taken into account for each country mentioned as well as the benefits certain legal models would bring about. Although in its final stages of publication and thus not yet released, ELSA Malta has also delved into the issue of mental health awareness, analysing different facets of mental health legislation. These include the Education sector, were our writers (Liam Axisa, Nicole Abela, Joanne Attard, Philip Ellul, Alexia Pollacco, Katrina Sammuta and Steve Vella) sought to find how different educational institutions attempt to educate their students on how to handle difficult scenarios when people suffering from mental health issues are involved, or how to be more appreciative towards those with such illnesses. Other areas such as employment, treatment and special rights given to those suffering from mental health issues were also researched and included with our findings. Another paper yet to be released is that on Blockchain technologies and the recent Data Protection Regulation (GDPR) which is to be adhered to by all Member States. The paper seeks to analyse the Regulation and see how it’s implementation will effect various sectors, including: Cloud Services, the Employment sector, Financial Services and the IGaming SYNERGY Magazine | 49
Think Global, Act Local Sector. The paper will also delve into how blockchain technology may improve these sectors if they have not already implemented such technology, as well as what other countries - who are already using blockchain systems - are doing to improve current institutions from a legal perspective. Whilst Social Policy is at the forefront of ELSA Maltaâ€™s work, we also believe in giving back to the students and strive to push them forward in their legal career. We also recognise that case-law is a vital part of both ones' studies as well as their actual legal practice. As such, ELSA Malta releases a yearly edition of Project Jurisprudence which is aimed at students, supplementing the knowledge obtained from lectures with further information on highlighted case-law. The main aim of this project is to divide a legal topic into subtopics (in accordance with the Faculty Programme of Studies) and explain each subtopic through case-law and how it has evolved throughout the years. This is done hand-in-hand with our reviewers, who are usually academics or experts in the field and offer the assistance in assuring the legal validity of such publications to ensure that no mistakes are made. Currently, the 3rd and 4th versions are being reviewed by such academics and will be published after the final amendments are made. Lastly, for those students who prefer to write about one specific topic rather than case-law, ELSA Malta offers is annual ELSA Malta Law Review (EMLR), where students are given the opportunity to show-off their legal-writing skills and have their article published within the publication. The main aim behind EMLR is to discuss a wide range of topics - ranging from liability in tort to Tutorship under Maltese law - and create a write-up which is peer-reviewed by academics and published for any researcher keen on the topic to have a reliable source of information. For this reason, students keen on getting their work published have come forward to offer their publications, and should they be approved by the board, have them published depending on the quality and relatability of the topic.
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GOOD LUCK TO THE INCOMING INTERNATIONAL BOARD.
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Synergy Magazine is ELSA's members' magazine, which is printed in 10,000 copies and distributed all over the ELSA Network. The articles are...
Published on Aug 4, 2019
Synergy Magazine is ELSA's members' magazine, which is printed in 10,000 copies and distributed all over the ELSA Network. The articles are...