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DECEMBER 20, 2013

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LAWYR.IT TEAM

Senior Editors:Bianca Alexandra Prunea - 4th year, Babeş-Bolyai UniversityCălin Mureşanu - 4th year, Babeş-Bolyai UniversityIoana Georgescu - 4th year, Babeş-Bolyai UniversityIoana Stupariu - 4th year, Babeş-Bolyai University

PR Coordinators:Adrian Condraşov - 3rd year, N. Titulescu University, BucharestAnny Stoikova - S.J.D. candidate, Central European UniversityDelia Cristina Stamate - 3rd year, Ovidius University, ConstanţaDora Maria Demble - 2nd year, University of Vienna - JuridicumIoana Atomulese - MBA, Alexandru Ioan Cuza University, IaşiStella Turnšek - 4th year, University of Zagreb

Junior Editors:Alan Koh - 4th year, National University of Singapore; LL.M. candidate, Boston University School of LawAndrada Rusan - 4th year, Babeş-Bolyai University Andrada Florea - 4th year, Babeş-Bolyai UniversityAndreia-Gemma Moraru - 3rd year, Babeş-Bolyai UniversityAlexandru Coraş - 3rd year, Babeş-Bolyai UniversityDan Moroşan - 4th year, Babeş-Bolyai UniversityIrina Negruţiu - 4th year, Babeş-Bolyai UniversityIoana Bărăian - 4th year, Babeş-Bolyai UniversityMădălina Perţe - 3rd year, Babeş-Bolyai UniversityNeada Mullalli - 2nd year PhD, Central European UniversityOana-Cristina Gligan- 4th year, Babeş-Bolyai UniversityOana Iulia Irimia - 2nd year, Nicolae Titulescu UniversityRaluca Alexandra Maxim - 2nd year, Babeş-Bolyai University

Want to join the team? Write to us at editors@lawyr.it

EDITOR’S NOTEBy Ioana Georgescu

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It has been a full year since the Lawyr.it project was launched, and what a year it has been. It started out with just four people, me and the other senior editors, not entirely sure of what was lying ahead of us, but highly motivated to make a change in the lives of law students.

Over the past twelve months our number grew considerably, as new people joined the team. Looking back, I truly hope that it was a fruitful experience for every-one. I, for one, owe a lot to Lawyr.it. We all grew together with it, became better and better at our tasks. As the team grew, the roles were distributed among the old and new members, each now specialised in their ‘field of expertise’.

Lawyr.it today is a lot different than what it started out as. However, the differ-ences lie in new ideas and projects that were shaped with a great collective effort.

We have launched the Lawyr.it Dictionary in order to ease the writing process for those wanting to submit articles, but also for anyone who needs to use English legal terms. We are committed to publishing one new word every week and have more than fifteen words and phrases so far.

Another novelty is the Opportunities section, an old dream of ours that finally materialised. By following it you will be up to date with all the events related to the field of law and beyond – student competitions, conferences, essay competitions, internships, and much more.

The new website allows members to engage more, share their ideas, and truly form a vibrant community of law students and young legal professionals. Lawyr.it is constantly expanding internationally, being present so far in Romania, Hungary, Austria, Croatia, and Bulgaria.

In this anniversary issue the focus is mostly on international matters, perhaps a reflection of the increasing international exposure of the magazine. In the Domestic section you can find out more about the influence of common law in the Romanian legal system, in particular the acceptance of the judicial precedent. You can also read about the risks that comparative advertising poses to fair competition. Our Reflections sec-tion brings you an insight into lawyer’s work ethics and the inspiration that Aristotle and Lincoln can and should be to modern professionals. There is something of interest for anyone in the International section, whether you are into private or public law. The articles range from the constitutional systems in Europe and the United States, to the civil war in Syria, to the Common European Sales Law. Two of the articles are on the hot topic of internet surveillance, being awarded by ELSA Bucharest in an essay competition. This edition’s interview introduces you to Linda Hamid, Law Clerk at the International Criminal Court, and her views on international law. Finally, this issue’s debate sees a confrontation between two first-year law students, both long-time debaters, addressing the issue of patents for green technology.

I hope that you will find our fourth issue an enjoyable one and that you are just as excited as we are of the endless possibilities that Lawyr.it can offer. I cannot wait to look back on this moment a year from now and realise how far we have come.

Happy holidays!

The fate of the judicial precedent (p. 8)

The threats comparative advertising can pose to fair competition (p. 10)

IN THIS EDITION

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Domestic Focus

Professional Spotlight

International FocusConstitutional Justice in Europe and United States of America. A comparative view (p. 24)

Do EU citizens truly benefit from their EU citizenship when it comes to the visa regime? (p. 26)

The law on Euthanasia in Britain and the Netherlands: Which is preferable? (p. 30)

Syria: Taking sides in International Law (p. 32)

The Common European Sales Law: A necessary tool? (p. 34)

Surveillance of Internet communications in Romania and the EU (p. 36)

Surveillance of Internet communication (p. 38)

International criminal courts and internationalised criminal courts. Brief comparison (p. 42)

ReflectionsAristotle’s and Lincoln’s juridical teachings for the modern-day lawyer (p. 14)

Interview: Linda Hamid - Law Clerk - International Criminal Court (p. 18)

Devil’s AdvocateCompanies should not be allowed to have patents on green technology (p. 46)

DOMESTICFOCUS

DOMESTICFOCUS

Common law relies on the judicial precedent, but what about the other legal systems? Can they be adapted to this kind of practice? The Roma-nian legal system seems reluc-tant to recognise the judicial precedent as a direct source of law, although it has made nota-ble progress in this matter. The decisions of the supra-national

courts have constantly influenced national law. Their importance is growing, making the national courts slowly accept higher points of view and apply them accordingly.

Parents attentively guide their children when tak-ing their first steps. Similarly, mentors teach law stu-dents from the very beginning that the origin of any rule is the law. Students then find out that there are more legal sources and that each has a specific role in creating the law. As far as the judicial precedent is concerned, Romanian experts in the field place it among ‘other categories of sources of law’. The cur-rent system does not recognise it as a direct source.

Legal precedence follows a simple rule, that of standing by the previous decisions. A decision made in a particular case must be applied in future cases having identical or similar facts. In other words, every game implies a basic rule that serves as a pat-tern for the following ones. The players just apply what was initially established, thus forming a prec-edent for the future games.

Obviously, not every case is similar to another, as each new legal problem has its own particularities.

Very often, the initial solution is only partially suit-able or even unsuitable for the new issue. This may cause certain difficulties in finding the right answer. Common law succeeds to tactfully resolve such contradictions by adapting the decision to the new situation. An essential change in the facts leads to a new solution. Therefore, common law is more about freedom of interpreting the law, using analogies, presumptions, and legal deductions. Stereotypes are avoided, the very stereotypes that seem to harm the Romanian legal system.

The game is more complicated than it seems. The players do not apply the rule over and over again. That would turn them into robots. Judges must re-spect the precedents when solving the cases, but they are not forced to always use the exact previous rule.

Specialists severely criticise the rule of precedents. It has benefits, such as the constancy of the decisions and the homogenous legal behaviour. However, too many precedents lead to the inability to systemati-cally cope with them. Despite its reputation, this system was able to influence other legal systems and make them more open towards the judicial prec-edent.

In Romania, before the new Civil Code came into force, any attempt to introduce judicial practice would have been a failure. This is due to the rigor-ous respect towards the separation of powers, which promotes a clear difference between making and ap-plying the law. The former is strictly a legislative at-tribution, while the latter is in the competence of the

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judiciary. This clear distinction still exists in practice. It is still not possible to consider the judicial precedent an independent source of law. The idea of the judi-cial precedent acting as a source of law in Romania is quite vague and unclear. This attitude should defi-nitely change.

The decisions of the High Court of Cassation and Jus-tice are relevant in this sense. They guarantee the ho-mogenous interpretation and application of the law. However, although similar to the judicial precedent, they do not generate new rules, but act as a guide for the national courts. They ensure the uniform applica-tion of the law, explain the real meaning of the law, and avoid contradictory points of view on the same subject.

The exceptions of unconstitutionality lodged in front of the Constitutional Court are also worth mention-ing, as they are legally binding in the future. This effect does not necessarily make them sources of law. Their main role is to ensure the authority of the Romanian Constitution. To be more precise, they are considered to behave as a civil source of law, but once again, not as a direct one. Thus, these situations are strictly ex-ceptional and do not create, by analogy, a common rule for the other national courts.

Romania’s new modern codes cast a light on the mat-ter of judicial precedents. The new Code of Civil Pro-cedure promotes the ‘prejudicial matter’ mechanism. According to it, national courts may ask the High Court of Cassation and Justice for a preliminary deci-sion, allowing it to solve contradictory legal issues.

This is similar to the preliminary ruling mechanism of the Court of Justice of the European Union. Accord-ing to Article 267 of the Treaty on the Functioning of the European Union, the national courts of the mem-

ber states may ask the Court of Justice how to apply the European law in a certain case. The interpretation given by the European Court becomes legally binding for all the national courts. A famous precedent was established in the pollution tax matter (CJEU, Tatu v. Romania, 2009). The case concerned vehicles owners which were constrained to pay an outrageous pollu-tion tax for their first registration. This tax was de-clared illegal as it was contrary to the European regu-lations and Romanian authorities were compelled to pay major compensations.

The concept of the judicial precedent is not being ignored and its influence is growing. The Romanian legal system is changing, but for now it does not rec-ognise the judicial practice as an independent source of law. This matter is sensitive and has to be tackled with responsibility. While experts in this field are still reluctant, it is important to extract and keep only what is feasible and valid for our legal environment.

It seems that the judicial precedent has an actual chance in a rigorous, conservatory system. The once first year student, now a graduate, can be more op-timistic and analytical when it comes to interpreting the law.

By Anca Lupas

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Modern economies have long now been striving to foster sane competition and to grant actors freedom of movement within their relevant markets. In com-petition law, the relevant market is the market in which one or more goods compete. Compe-tition is desirable, as it leads to legitimate fight between people in the business. The winner of

this fight is always the consumer, pampered with the best offers at stake. A variety of emerging technolo-gies have diminished considerably the costs of imi-tation and forfeiture. This creates a breeding ground for dishonest commercial practices and makes com-petition harder to fit within the narrow confines of the Law.

Unlawful competition practices may come in dif-ferent forms, most of which are difficult to spot by the unaware. Comparative advertising represents a borderline set of practices of this sort. This article will offer brief overview of these practices, accom-panied by concrete examples, in an attempt to deter-mine where the border between lawful and unlawful should be drawn.

Comparative advertising is regulated by the Eu-ropean Directive 2006/114/EC concerning com-parative and misleading advertising (further called Comparative Advertising Directive). Its provisions were transposed into Romanian Law 158/2008. Ac-cording to Article 2 point (c) of the Directive, com-parative advertising means any advertising which explicitly or by implication identifies a competitor or goods or services offered by a competitor.

The German doctrine made a suggestive distinction between critical comparative advertising and free-riding comparative advertising (Eminescu, 1993). Critical comparative advertising consists in an op-

position between one’s trade practices or products and those of a competitor. It casts a favourable light over the former by discrediting the latter. Free-rid-ing comparative advertising, on the other hand, in-tends to have a ‘free-ride’ (getting unmerited benefit from the actions of another) on the reputation and good name of a competitor. The aim is associating their products with those of the rival and creating a connection between the two in the mind of the consumer.

First, to discern between the cases of legitimate use of comparative advertising and unfair competition, it is necessary to clarify the meaning of the terms used by the Directive.

Who is ‘a competitor’? In brief, a competitor is any-one who develops their business within the same relevant product market (Cotuţiu, 2001). As em-phasised by ECJ case-law, it is the type of goods in the concrete case and the needs they cater for that ultimately decide their ‘competitiveness’ (ECJ, De Landtsheer Emmanuel SA v. CPVC and Vevue Cli-quot Pontsardin SA, 2006).

How is a competitor ‘identified’ in an advertise-ment? An advertisement may well fall within the provisions of the Comparative Advertising Direc-tive even if it does not offer the name of a specific competitor, product or service. An implicit refer-ence is enough, even if more competitors will claim to have been identified in that way (ECJ, De Landt-sheer Emmanuel SA v. CPVC and Vevue Cliquot Pontsardin SA, 2006). It is enough for the advertise-ment to clearly target one or more determined com-petitors. This is the case when consumers can iden-tify who those are. The comparative advertisement is unfair each time the average consumer can realise that the scope of the advertisement is to put in better light the advantages of one’s products or services to the detriment of those of a competitor. This evalu-ation on behalf of the public depends on the nature

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of the product. Advertisements of daily used, average priced, products and consumables will be perceived superficially, at first glance. Advertisements of rare or specialised products will come under more scrutiny from the intending consumer (Eminescu, 1993).

Second, Article 4 of the Comparative Advertising Di-rective lists a few situations when comparison is al-lowed.

1. Comparison is allowed if it is not misleading. A misleading comparison is incomplete, biased, and it conveniently leaves out information that would make it detrimental to the product advertised. For instance, an advertisement is misleading if it claims that one’s prices are lower than those of a competitor, but it fails to mention that the price of the competitor includes some accessories of the product.

2. Comparison is allowed when it compares goods or services meeting the same needs or intended for the same purpose. This ensures transparency over mar-kets of similar goods and offers more protection to consumers. However, it must be determined to what extent the compared products are interchangeable. A plaintiff in such a case will always argue that their products are not comparable to the defendant’s. Their superior quality automatically means they do not meet the same needs and are not intended for the same purpose. Admitting such an argument rules out any possibility of comparison between many categories of consumer goods, especially foodstuffs. It would make this provision eternally inapplicable. Therefore, the ECJ offered the broadest interpretation of this aspect, and the one most favourable to allowing comparisons. It said that the Comparative Advertisement Directive did not ‘prejudge the angle from which a comparison might be lawfully made or the characteristics of the products to which comparative advertising might re-fer’ (Practical Law. ECJ, Lidl SNC v. Vierzon Distribu-tion SA, 2010).

3. Comparison is allowed when:

3.1. It does not discredit or denigrate the trademarks, trade names, other distinguishing marks, goods, ser-vices, activities, or circumstances of a competitor;

3.2. It does not take unfair advantage of the reputa-tion of a trade mark, trade name, or other distinguish-

ing marks of a competitor, or of the designation of ori-gin of competing products;

3.3. It does not represent goods or services as imita-tions or replicas of goods and services bearing a pro-tected trademark or trade name.

These are three distinct situations which are often linked in ECJ case law. Imitating a product means tak-ing an unfair advantage of it, which can discredit the reputation of the competitor. ‘Taking an unfair advan-tage’ is a broad concept which includes any gain made by illegally using a value created by another (Nims, 1936). An iconic case is L’Oreal v. Bellure, where cheap Bellure perfumes were produced to smell like L’Oreal fragrances, and dressed in packaging similar to the shape marks registered by L’Oreal. In addition, comparison lists were provided to distributors. A cor-respondence was drawn between each famous L’Oreal perfume and its cheaper Bellure imitation. The Court ruled that even though there was no actual risk of con-fusion between the two, Bellure’s actions gave them an unfair advantage at the expense of L’Oreal. That is in-consistent with the standards of fair competition and thus considered unlawful (ECJ, L’Oreal SA & others v. Bellure, 2009).

To conclude, there is a fine line between lawful and unlawful comparative advertising. Trespassing may result in a blink of an eye. When it does, the offenders can receive administrative sanctions, but this is not enough. The appropriate course of action for anyone harmed by the dishonest practices is to bring a claim before a Court according to Law 11/1991 on unfair competition. This ensures that any form of unjust en-richment at the expense of a competitor is reprehensi-ble in the collective consciousness.

By Andrada Rusan

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REFLECTIONS

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REFLECTIONS

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I believe that a lawyer’s success depends both on his internal structure, virtue, and the moral principles he or she abides by, as well as the external environ-ment and circumstances en-countered in his or her activity. However, nowadays the legal profession is going through an ethical crisis. In this context I wonder to what extent do

lawyers maintain their set of ethical codes and conduct to reach the wanted victory in Court and, implicitly, in professional life? Given the com-mercialisation of the legal practice, do old ju-ridical principles still apply in the profession?

Throughout this paper I will present the legal profes-sion as it is today and then analyse the way in which Aristotle’s and Lincoln’s ethical principles still apply to the modern-day lawyer.

In Plato’s days, lawyers were feared because of their ability to debate. Now, this ability stands at their very nature, since they must keep a critical attitude and constantly search for solutions. Faced with the cur-rent economic conditions, the legal practice is be-coming more and more a commercial, profit-based, corporate profession. Beyond the legal ethics jour-nals and the ethics courses taught in law schools, it is ultimately each lawyer’s responsibility to adopt an ethical conduct.

One of the first treaties on ethics was created by Aristotle. According to him, someone whose life is guided by practical reason will develop and exercise it while attaining his or her goals. This automatically implies that a wise person is unlikely to choose as

primary goals those depending heavily on fortune and external circumstances (Sherman, 1999). In Ar-istotle’s view, law is reason, free from passion. Al-though the rational element dominates, a person is also expected to be just and brave to face the penal-ties this attitude might imply, while cultivating ri-gidity and stability in character (Sherman, 1999).

Although Aristotle was not a lawyer, his set of princi-ples influenced the later legal systems. To him, prac-tical wisdom, the equivalent of today’s sound judg-ment, is the foundation of the practice of law. The context is crucial in each case, so the lawyer must be able to exercise this judgment depending on circum-stances, beyond the strict letter of the law. Another trait a successful lawyer should have, according to Aristotle, is the ability to judge human character, its complexity, and its irrational side. However, one can only get this by connecting with all types of clients, outside the abstract of legal books.

Aristotle believed that in the legal field it is very important to find people who stand as role mod-els, because of their inspirational decisions. One of them was Abraham Lincoln, more famous for his political life than for his competences as an advo-cate of his people. What most of us probably do not know is that Lincoln represented the most powerful economic machine of the nineteenth century – the railroads. He handled over 5,600 cases along a ca-reer which lasted 24 years and was the attorney for four cases brought before the United States Supreme Court.

One might ask, for example, how was he able to defend the railroads and endorse the workers who

Aristotle’s and Lincoln’s juridical teachings for the modern-day lawyer

sued the railroad, at the same time. Although he had a practical character, he was not prepared to make a moral compromise regarding the sensible issue of slavery in the United States. How can the modern-day lawyer apply Lincoln’s pragmatism and idealism into the profession?

Just like Lincoln, the lawyer should be self-disciplined and passionate about his/her work, ethical without being perfect. The lawyer must contribute to the pub-lic good, but become a fierce advocate when needed. Lincoln’s realities were very similar to the legal envi-ronment today. If he were still alive, he would proba-bly be a partner at a prestigious law firm. Even though the legal profession underwent considerable changes since Lincoln’s time, choosing him as a role model for today’s lawyers can be justified by the fact that he rep-resents a tangible character. His ethical law standards should be maintained. Those include reasonable fees, public service, litigation fairness, competence, confi-dentiality, and loyalty.

In 1854, Lincoln handled a famous case. Cyrus H. McCormick invented in 1834 a reaping machine that revolutionised the farming industry. McCormick sued John H. Manny in 1854 for infringement of his patents. Manny enlisted the services of George Hard-ing and the case was set to be heard in Chicago. The elite team of patent and trial lawyers chose Lincoln as the main attorney. However, as the trial date grew closer, the case was moved to Cincinnati. Lincoln was informed by the attorney Edwin McMasters Stan-ton, who had been added to the defence team, that he would no longer be part of the litigation at all. Al-though the McCormick affair does not seem to show Lincoln’s abilities as a lawyer, it speaks a lot about his ethical qualities. He never argued or participated in the case, but he chose to remain in Cincinnati for a week, to observe the trial. Lincoln’s actions in this case show his humility, his recognition of what he lacks, beyond the arrogance instituted by the bar. Lincoln exhibited a raw will to progress, which ultimately de-

termined an impressive diligence.

Lincoln never considered himself one of the premier legal scholars of his time, but he compensated for that by hard work. He argued that one’s resolution to suc-ceed is more important than any other thing. Lincoln believed and showed that through determination and will one can become a successful lawyer. The example above is a perfect illustration of the fact that justice al-ways needed its representatives to be concerned with the common good of the community, thus ensuring the progress of society. However, the external goods also contribute to a person’s welfare, since many ac-tions are performed by means of friends, money, and political power (Sherman, 1999, p. 42). From this point of view, many lawyers now believe they can get the best results by being less concerned with the just-ness of the necessary actions that must be carried out to triumph. But, when bearing in mind Aristotle’s and Lincoln’s ethical models, lawyers will act promptly, with due diligence, adequate preparation, and compe-tence in representing their client.

It is clear that the legal system is an imperfect insti-tution. While fostering justice, it must interact with every breed of criminality and injustice (Ellis, 2009). Aristotle believed that law is a compromise between moral principles and practical possibilities. Daily, lawyers are faced with barriers like involution, lack of morality, the ordinary citizen’s scepticism regarding the judicial system, and the general loss of faith in the concept of justice. Despite all these, they must remain confident in their calling and in the greater purpose existing beyond the profession. A great lawyer is not the one who only applies the law, but the one who constantly enriches his or her expertise.

By Oana Gligan

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PROFESSIONALSPOTLIGHT

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Linda Hamid is a law clerk in the Chambers of H.E. Judge Christine Van Den Wyngaert at the International Criminal Court, as well as a PhD candidate at the University of Leuven (Belgium), where she is currently writing her thesis on the status, rights, and obligations of unrecognised states in international law. She holds a

bachelor’s degree in law (First class honours) from Babes-Bolyai University and a master’s degree in public international law (cum laude) from Utrecht University (The Netherlands).

After completing her LL.M studies, Linda worked as a legal intern in the Defence Office of the Special Tribunal for Lebanon, a teaching assistant in pub-lic international law at Babes-Bolyai University, and a trainee at the European Court of Human Rights. She has recently been admitted to practice law in the Cluj Bar.

Lawyr.it: Who is Linda Hamid? Can you tell us a little about yourself and what made you choose a legal career?

L.H.: Oh my, that is a difficult question. I am some-one who constantly reinvents herself, so who I was yesterday might not be who I am today. However, there are certain things that have always remained unchanged. Among these is my passion for justice, which I acquired at a very young age, after having experienced, to a certain extent, something that I perceive as one of the greatest injustices on earth:

the war of aggression. Although I am a firm believer in the idea that the concept of law is not always the same as that of justice, it also remains true that the line between them is a thin one. When I grew older and it was time to choose a path in life, my leap from a passion for justice to a law career came naturally. There is much injustice in this world, so I have since kept very busy.

Lawyr.it: Your passion for international law is clear, judging from your current and previous ac-tivities. When did this passion occur and in what circumstances?

L.H.: Looking back, I can roughly identify three mo-ments in my life that, in one way or another, have shaped my passion for international law. The first was in 1990, when my mother and I were forced to abandon Iraq after it had invaded its neighboring country, Kuwait, and leave my father behind to an uncertain future as a soldier in the Iraqi army.

The second was in March 2003, when, together with my father, I watched in horror, on a TV screen, how my country was crumbling in flames as a result of operation Shock and Awe. However, it was only when I first studied public international law during my university years that I finally made the connec-tion between the events that had shaped my life un-til then and international law.

As a person whose life has been directly impacted by the lack of respect for international law during and in the aftermath of the Gulf War, I acquired the belief that the only practical foundation for rational and sustainable relationships among states is respect

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Interview: Linda HamidLaw Clerk - International Criminal Court

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for international law. For these reasons I decided to dedicate myself to the study and practice of interna-tional law.

Lawyr.it: You are currently a law clerk at the Interna-tional Criminal Court. Tell us a little about the insti-tution and your work there.

L.H.: As you probably well know, the International Criminal Court, based in The Hague, is the first per-manent international criminal court established to help end impunity for the perpetrators of the most serious crimes of concern to the international com-munity, namely genocide, crimes against humanity, war crimes, and the crime of aggression. The Court is composed of four organs: the Presidency, the Cham-bers, the Office of the Prosecutor and the Registry. I currently work in Trial Chamber II for Judge Chris-tine Van den Wyngaert, but I sometimes am also in-volved with the work of Pre-Trial Chamber I.

Lawyr.it: What was the most notorious/interesting case that you had the chance to experience at the ICC?

L.H.: Given that the International Criminal Court only deals with those bearing the greatest responsibil-ity for crimes within the jurisdiction of the Court, one can say that all the cases that the Court is currently dealing with are notorious or interesting inasmuch as the accused are either current or former heads of state, statesmen, or military commanders, and they have re-ally all made the news at one point or another. Judge Van den Wyngaert currently serves as a judge in three situations: the Democratic Republic of the Congo, Libya, and Côte d’Ivoire. I am assigned to work on the situation in the Democratic Republic of the Congo and even though the case is fast approaching its end (a final judgment is forthcoming in February 2014), I

perceive my work as extremely interesting and chal-lenging. As we like to say in our office – ‘Never a dull day!’

Lawyr.it: Before working at the ICC, you were a legal intern in the Defence Office of the Special Tribunal for Lebanon and a trainee at the European Court of Human Rights. Can you tell us about your experi-ence there?

L.H.: My experience at the Special Tribunal for Leba-non was the first truly practical encounter I had with international criminal law and one that I will never forget because it forged my passion for this area of in-ternational law. What I really like about the tribunal is that it is quite different from other hybrid/internation-alised criminal tribunals because it has a very narrow jurisdiction (it only deals with the crime of terrorism), it applies in part Lebanese substantive law and in part international criminal law, and it is the first interna-tional tribunal to have a Defence Office as an organ of the tribunal with equal standing to the Office of the Prosecutor. All of the aforementioned have made my experience there seem quite unique to that of my fel-low colleagues who at that time were also interning at international institutions and tribunals.

My traineeship at the European Court of Human Rights was quite different from the one I had at the Special Tribunal for Lebanon because I solely dealt with applications against the Romanian Government. However, the experience was extremely fruitful, as it helped me acquire an understanding of aspects of Ro-manian domestic law that I had never really consid-ered. Looking at cases that seldom go through three levels of jurisdiction back home before reaching the Court and analysing them through the spectrum of the European Convention on Human Rights can be a truly eye-opening experience.

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awMoreover, I am also extremely happy that since I have joined the International Criminal Court, I have ap-plied, on several occasions, the knowledge acquired in Strasbourg to my daily tasks at the Court, particularly with respect to issues dealing with fair trial rights.

Lawyr.it: What is your opinion on the people’s aware-ness regarding international situations, specifically conflicts and their impact?

L.H.: It really depends. I currently work in an envi-ronment where people are extremely aware of what happens across the world, not only because they are genuinely interested in international affairs, but also because being informed, particularly with respect to conflicts around the globe, is part of their job descrip-tion. At the International Criminal Court we also have a Public Affairs Unit that makes sure to brief everyone within the Court on the daily developments in the in-ternational arena.

Lawyr.it: What motivates you in your work?

L.H.: The fact that my work, although fairly insignifi-cant if one takes into consideration the wider picture, has an impact on a greater level: on victims of war crimes and crimes against humanity, on the concept of international justice and, at the end of the day, when a judgment is rendered and a precedent is set, on the very development of public international law.

Lawyr.it: You have also been, for a short period of time, a teaching assistant in Public International Law at Babes-Bolyai University. What can you say with respect to the students’ interest in the subject?

L.H.: Actually, I found that my students were quite interested in the subject, as opposed to my genera-tion when I remember that merely a handful of peo-ple showed genuine interest in public international law. This is probably because your generation is al-

ways connected to social media and news outlets. In a world where any type of information we need or want is literally at the tip of our fingers, staying connected to world affairs is not only easy, but also, as far as I am concerned, a pleasant endeavour.

Lawyr.it: What do you see yourself doing in the fu-ture?

L.H.: I am very happy with what I am currently do-ing, so to be honest I see myself continuing a career in international criminal law. I also see myself complet-ing my PhD in the next three to four years and who knows, maybe even going back to academia, at least on a part-time basis.

Lawyr.it: And, as usual, our last question would be: what advice would you give to law students?

L.H.: To understand that nowadays career opportu-nities for ambitious law students are endless. We no longer live in a world where the only options for law graduates are to become a judge, a prosecutor, or a lawyer. So many areas of law have expanded in the last few decades. Just think about European Law, Public International Law, International Criminal Law, or In-ternational Commercial Arbitration.

My advice to you is to find a niche, an area of law where there are few specialists, and strive to become one. The world will then open up to you in ways you have never imagined.

By Alexandru Coras

Professional Spotlight

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The judicial systems world-wide were created to be based on the rule of law. This is a principle which supports the authority of law as the unique way of regulating the behaviour of individuals, without infring-ing on their fundamental rights and freedoms (Carothers, 2006). Whilst the monopoly of law in society targeted the

standardisation of social behaviour, it was therefore important to compound set up a hierarchy of juridi-cal norms. People started to lay the foundation of written Fundamental Acts in the United States of America, Poland, and France in the eighteenth cen-tury. Two centuries later, Hans Kelsen, the author of the theory of pure law, set up a hierarchy of norms with the constitutional norms on the very top of it. Designing them in the form of a pyramid, he de-vised the constitutional rights as supreme norms from which any other legal norms (Kelsen, 1992).

Before having knowledge of which legal norm is more important to society, the need of a governing body developed. Its goal is to guarantee the suprem-acy of the Fundamental Law. As a progressive per-spective has its own significance in expressing how constitutional review appeared, the case of USSCt, Madison v. Marbury, 1803, became a landmark and symbolises the beginning of constitutional justice not only in the USA, but worldwide, with Switzer-land, Norway, and Greece later following the Amer-ican model (Wolfe, 1994).

Briefly, the case is about the intention of the presi-dent John Adams to name, among others, William Marbury as Justice of the Peace. Because the next day Adam’s term was set to expire, the newly-named Secretary of State, James Madison, whose task was

to approve the nomination, refused to do it. In these circumstances, Marbury requested a writ of man-damus (a writ or order that is issued from a court of superior jurisdiction that commands an inferior tribunal, corporation, or individual to perform, or refrain from performing, a particular act, the per-formance or omission of which is required by law as an obligation) from the Supreme Court to compel Madison to endorse the commission, an application which was finally denied, and which established the Supreme Court’s position of arbiter of constitution-ality.

Despite of the significant influence the USA had on constitutional review methods in Europe, the two constitutional justice models, American and Euro-pean, are now very dissimilar (Bakker, 1995).

In the United States of America, the constitutional review can be made by any ordinary judge, as they have the authority to assess whether a norm is con-stitutional or not. This system is a decentralised one, as any courthouse may verify the conformity of an ordinary law with the Constitution, while the Su-preme Court has the authority to control the deci-sions of the lower courts and to solve the most com-plex and most important litigations in a definitive manner. The latter’s area of responsibility extends not only to constitutional issues, but to legal mat-ters as well. Its decisions have the power of a judicial precedent that any lower court must respect. How-ever, the American Constitution does not mention the Supreme Courts’ power to affirm the unconsti-tutionality of a law or regulation. This responsibil-ity has been assumed by the Supreme Court since USSCt, Marbury v. Madison, 1803.

Meanwhile, the European constitutional review model proposes a specific body with the special

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responsibility of checking the compatibility of a law with the Fundamental Law. This system, as opposed to the American one, is a centralised one. For exam-ple, whether we are talking about the Constitutional Court in Romania, the Constitutional Courthouse in Germany, or the Constitutional Council in France, they all describe the judicial institution in the position of guaranteeing the supremacy of the Constitution. Also, the Fundamental Acts stipulate how, when and to what juridical acts the constitutional review can be made. In Europe, the ordinary courts handle civil and criminal matters and can also refer the matters of un-constitutionality to the delegated body (see the cases of Romania, France).

Furthermore, in the European model there are three ways in which constitutional justice may be reached (Sadurski, 2005):

1. The abstract method is the type of review initiated by elected officials which refer a law for review in the absence of an actual judicial case. In this situation, a law goes under constitutional review before being en-forced, but after being adopted. The primary conse-quence of using the abstract review is prevention of harmful effects on rights owners and this is why it is also called ‘preventive review’.

2. The concrete method is the type of review which involves a concrete case wherein the judge refers a constitutional question to the qualified law court. The constitutional court is bound to answer it in a reason-able time. The ordinary judge is bound by the con-stitutional court’s decision towards the constitutional issue in question and must apply it in the respective litigation.

3. The constitutional complaint is based on the right of individuals to raise a certain constitutional issue before an ordinary court in the course of a lawsuit, as long as that respective issue affects the litigator. When conditions verify, it is the duty of the trial judge to for-ward the constitutional matter to the qualified judicial body.

Although the three types of procedure are fairly heter-ogeneous, they coexist and, most of the time, they go together. For instance, after a litigator states a question before a law court, the judge refers the question to the constitutional court, so the concrete method and the constitutional complaint method intertwine. The only difference between the two is the actor who raises the constitutional question – if it is the judge himself, the system is that of a concrete method, whereas if the liti-gator raises the question, the system is the constitu-tional complaint one.

The American review model is similar to the Euro-pean ‘concrete method’, but with several, consider-able particularities. Following the principle ‘the judge makes the law’, established in the Anglo-Saxon law system, any court has the power to void a law as un-constitutional if it contravenes with the provisions of the Fundamental Law. On the contrary, in Europe, a judge holds only the authority to interpret the law, but not to create it, hence he is not allowed to decide upon the accordance of a law with the Constitution.

To conclude, while considering the distinct aspects of the two dissimilar types of judicial review, one can-not make a hierarchy of constitutional review systems by importance or effectiveness. Both European and American judicial systems represent effects of insti-tutional, political and cultural development through-out the centuries within the framework of permanent volubility of not only extern, but also domestic forces. May it be abstract or concrete method, they both have proved the capacity of moulding adequate legal struc-tures to guarantee the supremacy of Fundamental Law.

By Andra Carabas

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Visa issues involve both domestic and foreign policy matters within a state, affect-ing two categories of parties: people who want to travel, mi-grate, or transit, and the coun-tries which would accept them. However, despite its primarily beneficial purposes, the visa re-gime can also create problems for both sides involved. This

article will analyse the situation of EU citizens when trying to apply for visa in different categories of countries.

Regarding the positive aspects, on one hand, posi-tive attitudes arise from facilitating transit or resi-dence conditions imposed by another state. The most important reasons are related to commercial, economic, cultural, or social issues. In general, countries with a low level of economic development perceive some satisfaction as a result of easing visa regimes, as their citizens can benefit from new op-portunities in other states.

On the other hand, however, the negative percep-tion on the visa regime is created by some states like those that host new immigrant categories. The acceptance of new immigrants carries a range of mainly social and cultural pressure, but it can also impose an economic burden on those countries. France (The Telegraph, 2011) and Belgium are ex-amples in this way, as some voices consider they are becoming Islamic states.

The situation in Belgium is a landmark on the legal system within the EU that is too lenient with im-

migrants and ethnic minorities (Gatestone Institute, 2012). An example on this topic would be the share of Muslim students in primary school in 2012 in the Antwerp region, which is 45 %.

The current situation of movement within the EU

Free movement of people from EU Member States has been a goal since the establishment of the Eu-ropean Communities. To highlight this rule, article 45 of the Treaty on the Functioning of the European Community promotes the free movement of citi-zens.

According to this article, the most important ben-efits to EU citizens refer to:

1. Eradication of discrimination based on national-ity between Member States regarding employment, remuneration, and other conditions of employment;

2. Residing in a Member State for the purpose of employment in accordance with the laws, regula-tions, and administrative provisions governing the state rules among employment of workers;

3. Remaining in the territory of a Member State after having been employed in that state.

The Schengen Area and how it is different from the EU

The explanation of this concept clarifies some mis-conceptions about the freedom of movement for cit-izens of non-EU countries within the EU. Its foun-

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dation was the Schengen Agreement in 1985, which abolished all internal borders of the Member States. Thus, a unique external border has been created, al-lowing free movement of the signatory states.

The main measures that followed immediately after signing the agreement focused on the activity of the Police and internal protection structures, in order to harmonise procedures at a state-level.

For this purpose, the Schengen Information System (SIS) was developed. It can be defined as a computer-operated platform updated on a ‘near-real time up-date’ scheme. The system aims at providing informa-tional support to supervise any border points of this area.

A clear distinction must be made between the geo-graphical area of the EU and Schengen’s geographical area. Currently, the Schengen Area covers twenty-six members, of which only twenty-two are EU countries.

The visa regime for EU citizens in the Schengen Area is favourable; there is no need for transit or residence visas. However, two EU countries have refused to sign the Schengen Agreement, positioning themselves out-side this area: Great Britain and Ireland. Their justifi-cation was based on a desire to have a stronger border protection.

The point of interest lies upon non-EU countries which are members of the Schengen Area. It is the case of Norway, Iceland, Lichtenstein, and Switzer-land. The first two states are members of the Nordic Passport Union, which is affiliated with the Schen-gen Area principles, being a signatory to the Schen-gen Agreement. Switzerland signed the agreement in 2008, followed by Lichtenstein in 2011.

All citizens of these countries have the right to travel and work in any EU country without having to carry specific documents.

The situation of non-EU/Schengen countries

The main problem of the visa regime for EU citizens only rises when they intend to transit the territory of countries other than the EU Member States or mem-bers of the Schengen Area.

Currently, Europe is composed of fifty declared sover-eign states, with other five regions which are organised on the basis of the national autonomy principle. Using basic math, it can be deduced that there are nineteen states that do not have any rules within the EU and the Schengen Agreement.

These non-EU/Schengen countries display a rather re-laxed regime for EU citizens, which can be explained from several perspectives:

1. The living standards of the EU and Schengen states are higher than in other states.

2. Investment is encouraged by offering domestic transit facilities.

3. States’ intention to improve long-term bilateral re-lations with the EU and the Schengen Member States.

The visa regime for EU citizens outside Europe

The last redoubt from the perspective of visas is the area outside Europe. While within the European con-tinent historical and traditional relations may be pre-sumed, the situation is different as we talk about areas such as the United States of America, South America, Africa, the Middle East, or Pacific Asia.

Cultural differences generally lead to two basic sce-narios: aversion or harmonisation. Harmonisation, the strategy chosen by European states’ officials in most of the countries, is characterised by conver-gence, multiculturalism, the uniformity of ideas and practices.

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A very interesting statistic was developed by Hen-ley & Partners, called Visa Restrictions, where EU is highlighted among the most welcoming states of the world. Actually, EU countries occupy the top six positions: Finland, Sweden, the United Kingdom, Denmark, Germany, and Luxembourg.

As a country of destination, European citizens are more prone to choosing friendlier countries, re-gardless of the motives which prompt them to tran-sit those areas. EU citizens have a privileged status in relation with the states which try to develop a democratic system, promoting values such as free-dom of speech, and making clear efforts to raise the living standards of their citizens.

These states have relaxed the visa regime for EU citizens, as well as for the U.S., another model of de-mocracy. Countries such as those of South America, Oceanic Asia, and Australia display a positive atti-tude towards the EU, eliminating altogether the need for a visa to travel for periods of several months.

The particular situation of the former Soviet bloc states

Taking the risk to hue in a discriminatory note some categories of transnational communities, it is clear that countries with a strong social-economic devel-opment level only open their borders to countries with a similar status. On the other hand, countries with a lower level of development open their bor-ders to a larger number of countries.

Special circumstances are identified especially in the case of the former Soviet bloc, whose countries show strong resistance to other countries which are not sharing the same economic and social ideology.

Examples such as Russia and Belarus are eloquent.

One of the main reasons for the limitations of free-dom of movement is the repressive practice mostly aimed at their own citizens, as well as the existence of different practices intended to remain hidden to other states. Furthermore, states realise that contact with other developed societies can lead to frustra-tions and generate resentment in the minds of citi-zens.

Additionally, wherever there is a certain reluctance to EU citizens, and thus to EU Member States, EU citizens need transit or travel visa for most of these states. The former Soviet bloc, as well as those coun-tries which have not yet adopted democratic values, remain consistent with their stricter values when it comes to visas for EU citizens.

Conclusion

If we were to weigh the advantages and disadvantag-es of being an EU citizen generated by the EU visa regime, it would certainly tilt in the benefits area. Having European citizenship gives people a superi-or quality status compared to citizens coming from non-EU countries, attracting numerous advantages for Member States.

By Beniamin Viorel Branzas

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The respective Parliaments in the Netherlands and in Britain embarked upon parallel tracks with regards to voluntary eutha-nasia. It remains a criminal of-fence in Britain, and will result in a murder decision; under S2 of the Suicide Act 1961, it is an offence to ‘aid, abet, counsel, or procure the suicide of another’. Conversely, it is legalised in the

Netherlands, as a result of the Termination of Life on Request and Assisted Suicide (Review Proce-dures) Act 2001. Central to the concept of eutha-nasia are the principles of autonomy and the pro-tection of life. Indeed, Baroness Hale stated that the ‘prime object must be to protect people who are vulnerable’ but also to ‘protect the right to exercise a genuinely autonomous choice’, thereby invoking a complex weighting exercise (R (on the application of Purdy) (Appellant) v. Director of Public Prosecu-tions (Respondent) [2009] UKHL 45). This essay will examine this divergence, by looking into its leg-islative history and its resulting case law in order to determine where states should weigh the scales. The debate on euthanasia is of growing importance due to its increasing use - the number of assisted suicides in the Netherlands rose by 13% in 2012 (Guardian, 2013) as well as the ever-changing medical climate. As long as medical improvements continue, there will be a moment when life will become brutish and long (Ost and Mullock, 2011), making possibilities for reform even more crucial.

Euthanasia is defined as ‘the painless killing of a pa-tient suffering from an incurable and painful disease,

or in an irreversible coma’ (Oxford English Diction-ary). In both Britain and the Netherlands, lay as-sisted death is unlawful. On October 23, 2013, Her-inga was found guilty because he took the law into his own hands in assisting the suicide of his step-mother (Heringa v. Netherlands, 2013). However, the court decided not to impose a punishment in view of his age and his compassionate motivations (The Amsterdam Herald, 2013). Similarly, in the United Kingdom, Keir Starmer’s new emphasis on the suspects’ motivation draws a crucial distinction between ‘compassionate support’ and ‘malicious en-couragement’ (Guardian, 2013). For instance, Franc-es Inglis was found guilty of murder for killing her son as she believed he was trapped in a ‘living hell’ following his accident (R v. Inglis [2010] EWCA Crim 2637). Arguably she presented herself as too absorbed in her own emotional concerns to act fully in terms of what was right for her son. Conversely, Kay Gilderdale was acquitted of attempted murder; the judge described her as a ‘caring and loving moth-er’, who was attempting to follow her daughter’s wishes (Gilderdale v. UK, 2010).

While Dutch law allows physician assisted suicide, its expanse is limited; it refuses to accept ‘tired of life’ cases as a justification. In Brongersma [2002] HR , it was held that assistance would invite an un-qualified right to patient self-determination and doubt was expressed as to the ‘unbearable’ nature of the suffering, which is one of the key criteria which permits euthanasia (Ost and Mullock, 2011). One may question whether the absence of a medical ba-sis is enough to deny an individual the right to end their life. Their suffering may still be unbearable and

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hopeless –arguably the source is not the deciding fac-tor (Ost and Mullock, 2011).

In the Netherlands, General Practitioners are ac-countable for 87% of cases of Assisted Suicide; GPs are favoured for their anti-paternalistic attitudes, ul-timately allowing the autonomy of the individual to prevail. In the Netherlands, Article 293 of the Crimi-nal Code is preserved, but a special defence is granted to physicians – if the criteria of due care is fulfilled, it grants, not an excuse, but a justification of transgres-sion of the law. Arguably this is central to the concept of Dutch tolerance – a pragmatic tool which allows discussion through the postponement of moral judg-ment (Buruma, 2011).

On the other hand, in Britain, doctors are sometimes treated differently from parents as they face conflict-ing duties. This is revealed by a Court of Appeal de-cision on separation of conjoined twins, where the doctors satisfied the test for the criminal intent of murder, yet the defence of necessity was granted (Re A (Children)(Conjoined Twins: Surgical Separation) [2001] 2 WLR 480). Nevertheless, physician assisted death remains unlawful in the UK. Thus the only op-tion is to find someone willing to break the law (Ost and Mullock, 2011). Perhaps this is an illustration of the difference between law and morality in Britain. In-deed, a fundamental operation of criminal law is the preservation of society’s moral fabric through punish-ment. This was revealed by a case where the defendant was convicted of the offence of conspiracy to corrupt public morals (Shaw v. DPP [1962] AC 220). Howev-er, Giles Fraser, in a recent debate, argues that compli-cated moral dilemmas ‘can’t be dealt with by the blunt instrument of the law’.

In Britain the right to self-determination pervades the whole of the criminal law. It was held that respect for the liberty of the individual is ‘perhaps the most fun-damental precept of the common law’ (R v. Kennedy [2007] 3 WLR 612). Regarding euthanasia, English

law continues to punish individuals who do not de-serve any form of punishment – they deserve noth-ing but sympathy for being driven, purely by love and compassion, to end the lives of their loved ones. Ironi-cally, even if it seeks to preserve the moral fabric of so-ciety, it is an illustration of the law’s moral ineptitude in its dealings with euthanasia.

Furthermore, the case of Tony Nicklinson illustrates that the individual happiness of the patient is sacri-ficed. The courts regarded his desire to end his life as the ultimate ‘harm’ even if it would relieve him of suf-fering, enabling him an escape from ‘his own personal purgatory’. Instead, the court overrode his ability to consent, and thus, as his daughter claims, ‘a stroke broke Dad’s body, but it was the British legal system that broke his heart’. Conversely, the Dutch have pro-gressed much further in recognising this in the legali-sation of physician assisted death, suggesting a victory for autonomy and capacity to decide one’s own fate. The Dutch model is clearly preferable, although one may question the effectiveness of a law which crimi-nalises and then effectively tolerates or forgives, with regards to lay assisted death (Ost and Mullock, 2011). The refusal of the Dutch to recognise existential suf-fering remains a barrier which must be overcome. A change in the law is crucial.

To conclude, the perpetual conflict between autono-my and protection of the individual is in clear need of resolution. While there must be safeguards to en-sure that individuals are not being pressured to end their lives, ultimately the individual is at the heart of the matter and their autonomous wishes should pre-vail. Why prolong inevitable suffering for a life that no longer wants to be lived?

By Francesca Esposito

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Taking sides or providing aid in any type of war is, without a doubt, a catalyst for future con-troversy. The issue is being able to choose the right side or, at least, the side which proves to be the most favourable in the long-run. War-gripped Syria has experienced low-scale re-bellions. Slowly and steadily, they morphed into civil war and

generated the question: whose side is the right side? The purpose of this article is to analyse and clarify the Syrian crisis from a legal point of view. It will determine the applicable international law on the matter and corroborate it with relevant facts.

Foreign support and legitimacy According to Article 20 of the Draft Articles on the Responsibility of States for Internationally Wrong-ful Acts (International Law Commission, 2001), aid given following a government’s request is lawful as long as the state’s sovereignty remains intact. There would be no violation of the principle of non-in-tervention, upheld by customary international law.

However, in Syria the principle of non-intervention clashes with the denial, by the government, of the right of self-determination of its people. The use of force as a means to disband a self-determination movement is forbidden, as is any aid given to that end by a third party (Gray, 2008). Recently the Syrian government was accused of using chemical weapons. In this light, Article 16 on State Responsibility states that ‘a state may incur responsibility [for internation-ally wrongful acts] if it provides material aid to a State that uses the aid to commit human rights violations’.

A well rounded analysis of the rebel side must de-termine their legal status according to international law. In international law, internal matters are pure facts which do not generate legal consequences. The sole exception is self-determination conflicts (Shaw, 2008). Can the rebellion in Syria be classi-fied as a self-determination conflict, or is it mere-ly an internal issue, meant to be dealt with by the authorities? Shaw proposes three types of statuses known in conflicts and recognised by traditional international law. These are rebellion, insurgency, and belligerency. Rebellion implies sporadic and isolated challenges to the legitimate authority. The rebels do not have any rights or duties and are not protected under international law (Higgins, 2004). Higgins highlights that any aid or intervention from a third State is prohibited as an unlawful in-tervention and interference with State sovereignty.

Higgins points out two conditions for an insurgency. The rebels must occupy a large portion of the state’s territory and they must have enough military force to be of interest to neighbouring states. Both of these contribute to the partial internalisation of the conflict.

Belligerency, on the other hand, involves a for-mally recognised status. In Higgins’ words, it requires ‘the acknowledgement of a juridi-cal fact that there exists a state of hostilities be-tween two groups contending for power or author-ity’ or ‘the recognition of the existence of war’.

This status has its own conditions: (1) the occupa-tion of a large portion of territory, (2) hostilities in accordance with the rules of war, (3) a respon-sible authority, and (4) the existence of a situa-

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tion which makes it mandatory for states to define their attitude. If these conditions are fulfilled, bel-ligerency may be associated with a self-determina-tion movement, protected under international law.

Does Syria’s case allow lawful foreign aid or inter-vention? The United Nations General Assembly af-firmed the right of states to offer support to those struggling against colonial or racist regimes. This right included the possibility to provide weapons.

According to Dapo Akande, by extending this right, it is reasonable to believe that international law allows State support for groups fighting for self-determina-tion. The General Assembly Resolution 2649 (XXV) from 1970 states that other states must respect self-determination struggles. It implies that self-determi-nation movements are capable as international actors.

Syria’s legitimacy issuesIn Syria’s case, the main issue is to establish which of the movements can be acknowledged as the le-gitimate representative of the Syrian people. Gen-eral Martin E. Dempsey of the U.S. Army stated that ‘Syria today is not about choosing between two sides, but rather about choosing one among many sides’.

The legitimacy of the movement is the basis for a possible recognition by third parties, either as le-gitimate representatives or as a new government. In the first situation, Bashar Assad’s government will still be recognised as the government of Syria. The struggle of the liberation movement will gain legiti-macy, creating the image of a ‘government in waiting and a group that is capable of taking over, at least on a transitional basis’ (Dapo Akande, 2012). This may lead to problems in defining the governmental au-thority entitled to request assistance (Shaw, 2008).

The difficulty to identify the opposition led to the reluc-

tance to choose one or another. This reluctance is also intricately linked to the radicalisation of militias (Hol-liday, 2012). The rebels’ increasing need for weapons and the Western reluctance to offer it led them to turn to Al Qaeda for help. This cautious approach is proved by the fact that the only country which has formally recognised the Syrian National Council, the main op-position body, as the legitimate authority, is Libya. Other states, as France, Spain, the United States or the United Kingdom have only acknowledged the SNC as the legitimate representative of the Syrian people.

To conclude, should the Syrian opposition mate-rialise as a viable replacement for the current gov-ernment, States may take the risk of officially rec-ognising it as a legitimate authority. This will allow its people to determine their own political status.

The International Covenants on Human Rights stipulates that ‘[a]ll peoples have the right to self-determination and by virtue of that right they freely determine their political status’. It is, nonetheless, safe to assume that an offi-cial recognition of the government will ward off any potential hurdles related to the princi-ple of non-intervention or the violation of State sovereignty.

By Raluca Alexandra Maxim

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Contracts are essential for running businesses nowadays. The rise of cross-border trans-actions leads to the necessity of translating different national contract laws when operat-ing in the internal market.

The aim of this paper is to em-phasize the possibility to ease cross-border transactions by

making contract law more coherent and by re-ducing transaction costs. Do we need a Euro-pean contract law for businesses and consumers?

Context

The European Union (EU) has been working on Eu-ropean Sales Law for a decade. The proposed Regu-lation for a Common European Sales Law (CESL), unveiled on October 11, 2011, is considered to be necessary for the harmonisation of contract laws.

The CESL is an optional instrument which leaves Member State’s laws intact. It will coex-ist with the national law. The objective is to cre-ate a new secondary regime recognised in the EU. If the CESL is attractive to private parties, they will choose this European instrument over the Member State’s contract regimes (Schulze, 2012).

Furthermore, the European Commission start-ed a process of public consultation on the prob-lems arising from differences between contract laws. The European Parliament’s Legal Affairs Committee voted in support of this instrument to facilitate cross-border transactions (Ex-pert Group on European Contract Law, 2011).

According to another view, parties will hardly devi-ate from the national system that provides safety and stability. Consumers should be able to see the ad-vantages of a choice by comparing information from

different legal systems. There should be differences between various laws for the competition among national legal systems. Parties will choose the juris-diction that best satisfies their needs. The more in-formation is available about CESL, the more likely it is that the parties will choose this instrument. Tech-nologies can have an important role in making com-parisons. It could be useful if websites offered rank-ings of jurisdictions based on their attractiveness for parties. In this case parties would be able to choose the most suitable regime for them (Smits, 2012).

Do we need an optional regulation for contract law?

One of the CESL’s objectives is to help Small and Medium-sized Enterprises (SMEs) to trade easier across the single market and avoid excessive costs due to the consumer protection rules. Traders have to pay more because of constantly adapting trans-actions to different national rules. Less complex-ity is preferred by businesses and legal differences resulting from national laws are an impediment to the proper functioning of the internal market. Busi-nesses sometimes refuse to sell products abroad.

The CESL aims to provide a higher level of consum-er protection. Consumers can apply the CESL rules in all their cross-border transactions (Kornet, 2012). CESL contains mandatory rules from which parties cannot derogate. The level of protection is equal or higher than the current acquis. Consumers have better protection and certainty about their rights.

On the other hand, according to some opinions, CESL will not offer a higher level of consumer protec-tion and consumers will be deprived of better stand-ards. Even if they will be able to opt for the applica-ble regime, CESL will not be optional because it is an adhesion contract. The weak party (the consumers) will not be able to compare the benefits of different laws and decide what is better for them (Pachl, 2012).

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I highly believe that CESL offers a high lev-el of consumer protection and it will also re-duce the current uncertainty of consumers.

If the consumer buys a defective product, CESL allows the consumer the right to choose be-tween replacing, repairing the product, demand-ing a discount or cancelling the contract. More-over, the future regulation will help traders to simplify negotiations because of the neutral law which is available to both parties in their own language.

Last but not least, European Commission en-sures that ‘this proposal is without prejudice to future Commissions initiatives concerning the liability for infringements of the Treaty on func-tioning of the EU, for example relating the com-petition rules’ (European Commission, 2011).

Reducing contract-law-related transaction costs

CESL’s objective is to help traders avoid excessive costs due to the consumer protection rules. Differ-ences in laws lead to a tax on cross-border transac-tions. A possible solution for reducing costs is har-monisation and standardisation of contract laws. This solution creates network benefits. With an optional regime, the language would not be an impediment to cross-border transactions (Eidenmüller, 2012).

Because of the differences in laws, there are additional transaction costs for adapting contracts, obtaining legal advice and negotiating the applicable law (Ko-rnet, 2012). Furthermore, in e-commerce transac-tions, traders must adapt the business’ website to the legal requirements of each state where they sell. The costs resulting from interaction with various national laws are an impediment, especially for SMEs. Usually SMEs have to agree to apply the business partner’s law and support the costs of finding out the content of the applicable law. Because of these impediments, the number of traders is reduced, and this in turn generates a negative impact upon European consum-ers. Competitiveness decreases and this can lead to a more limited choice of products at a higher price.

CESL is a good opportunity for consumers. They will benefit from more choices at lower prices. The

majority of European consumers shop only domes-tically because of their uncertainties about the con-sumer rights. E-commerce facilitates the search for offers and the comparison of prices. Businesses would trade with many Member States because of the lower costs. The legal environment for cross-border trade would be simpler (European Commission, 2011).

According to the proposed CESL Regulation, trad-ers spend excessive sums of money, for example €10.000 per business and country they want to sell to, on legal advices for adapting contracts to each national law. On the other hand, the Commission’s evidence for calculating these costs is unclear. Also a trader does not have to translate the contract term.

Other statistics show that 90% of traders never refused to sell to foreign consumers because of the different terms and language (Pachl, 2012).

Conclusions and proposals

The aim of CESL is to improve the functioning of the internal market by facilitating the expansion of cross-border trade. More cross-border trades will lead to more diverse products at lower prices. Consumers will not be discouraged to shop cross-border. They will have better offers: lower prices and higher quality.

I think a website should be established with comparative legal information about consum-er rights in each Member State and training for legal practitioners would also be adequate.

To conclude, I strongly believe that nowadays, due to the language barriers, a harmonisation of sales law is required. CESL will create a win-win situation for both traders and consumers. Traders will avoid exces-sive costs and they will expand to new Member States markets.

By Diana Gal

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This article will be aimed at analysing the current situation of the protection of personal data in the online environment, with examples from both EU and Romanian regulations and court decisions. Providing the right amount of protection of personal data for their citizen is a poignant issue of today’s mod-ern states. In 2013 the general

public has been confronted with news (especially in regards to the activity of the American National Surveillance Agency in the USA, but also across the globe) that shows the extent to which some coun-tries have adopted a dystopian, Orwellian mass-surveillance approach over their people (Carter and Capelouto, 2013). These violations clearly go be-yond the right enjoyed by states in regards to limit-ing their citizens’ personal freedom, as was analysed in J.J. Rousseau’s ‘social contract’ theory (Rousseau, 1998). What role do the law and legislators play in the issue?

The heated debates regarding the EU Anti-Counter-feiting Trade Agreement (2012) or about the adop-tion of the Romanian Law 82/2012 (mocked by the public opinion by being named ‘the Big Brother law’) point out the vivid concern of European citi-zens regarding a potential violation of their right to protection of personal data. The citizens’ concern has been echoed by the decision of different high courts, demonstrating that there are strong juridical arguments against an increase of the states’ power to carefully monitor different channels of communica-tion. For example, in 2009, the Constitutional Court of Romania found unconstitutional the first version of the national law, which was supposed to imple-ment the Directive 2006/24/CE on the retention of data generated or processed in connection with

the provision of publicly available electronic com-munications services or of public communications networks. Whilst admitting that limitations on the exercise of the right to protection of personal data are constitutionally possible, the Court subjected such constraints to the set of rules found in Art. 8 of the ECHR and Art. 53 of the Romanian Consti-tution. Therefore, the worries of the citizens were sanctioned as relevant, Law 82/2012 being ratified only after careful revision.

However, although considered of a paramount im-portance and a fundamental right (Art. 1 in Direc-tive 95/46/EC) at EU level, the right to protection of personal data (especially in regards to the online medium) is not properly safeguarded at the legisla-tive level (neither at EU nor at a national level). This could happen simply because the emphasis is put on the prevention from it being used as a commercial asset by companies and businesses, and not on its protection regarding the state-citizen relationship. Similarly, from a protectionist perspective, at a na-tional level, the laws that have been enacted (Law 677/2001, Law 506/2004) regard the same issue and therefore elude the scope of the matter at hand.

Considering this, one could infer that the Courts have indeed intervened in order to avoid gross vio-lations of the right to data protection. The negative decision of the European Union Court of Justice re-garding the ratification, at a Union level, of the Anti-Counterfeiting Trade Agreement can be considered such a relevant intervention (alongside of the exam-ple above of the Constitutional Court of Romania). Therefore the claims of the supporters of the Anti-Counterfeiting Agreement which were contending that the limitations it brought to the protection of personal data and privacy in the online world was justified by its bigger goal of preventing piracy, were rejected by the European Union Court of Justice. However, stopping extreme violations from taking

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place is very different from providing an accurate pro-tection of the right to data protection. It also has to be noted that these judicial decisions have been made under intense pressure from the citizens. As expected, individuals are not eager to have their personal con-versations recorded (as the ‘Big Brother law’ seemed to be aimed at) or their Internet browsing history to be made available to third parties.

By analysing all the possible means of communication of today’s modern man, the one that seems to raise the most important questions is the online environ-ment. In the present, many people seem to be relying on various social media tools that, although enter-taining, pose many risks regarding one’s right to his personal image or privacy. Until recently, if the gov-ernment wanted to infringe the privacy of ordinary people, they had to instrument a serious amount of labour to intercept and read paper mail. Today, email can be routinely and automatically scanned for inter-esting keywords, on a vast scale, without detection (Zimmermann and Philip, 1998).

Nowadays, the concept of ‘personal content’ (when writing an article on a blog or a status message on Facebook) has been completely diluted and so have the lines between what is private and what is public. This raises many issues, because the legislator cannot efficiently protect a right that is based on concepts that do not possess a precise meaning. Indeed, at this point in time, when both national and international Courts have asked themselves what is public and what is private referring generally to Facebook (but also MySpace or Twitter), the protection of personal data seems to be hindered by the lack of precise bounda-ries between these levels. How would a Court analyse a status message posted on a user’s Facebook wall in which he threatens to bomb a metro station? As a pri-vate or a public content?

This lack of semantic and judicial clarity is being used as an excuse by governments in order to justify their interference with citizens’ personal data in the online medium. Moreover, in states where public defence is very a delicate issue, some people could actually agree with their government’s perspective.

Having considered this, I still do not think that states can bring the aforementioned argument in their fa-vour in order to defend mass-surveillance programs. Although the limits between private and public are at present a little diffuse, they have not disappeared. Also, the freedom of an environment is an uncontested real-ity. As John Perry Barlow stated, in the early nineties, in ‘A declaration of the independence of cyberspace’, today’s states’ governments cannot rapidly and discre-tionarily impose their unlimited power over this envi-ronment (Barlow, 1996). While at some point, during communist regimes, some means of communication have proven to be easily submitted to surveillance and control, the Internet appears as an environment that still belongs to the people.

Of course, all these philosophical and sociological ar-guments have to receive a judicial ‘coat’ and be trans-formed into pieces of legislation that can ultimately defend the citizens’ right to the protection of their personal data. The recent violations that have taken place in the United States of America and Great Brit-ain, where the national surveillance agencies have trespassed all boundaries set forth by their citizens’ right to the protection of personal data, are only two examples of the actual infringements that are taking place nowadays. Today’s means of communication, as modern and efficient as they are, strike us as also ex-tremely vulnerable. The legislator should pick up on these elements that are present at the social level, and offer us a just and efficient set of rules.

By Elena Mihaela Gheorghe

This article received the 1st prize at an essay competi-tion organised recently by ELSA Bucharest on the theme of Surveillance of Internet communications.

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Has Internet Surveillance turned private communication into fiction? Interception and monitoring are becoming more widespread and invasive, just as our reliance on electronic com-munications increases. Strict and independent audit of the means of surveillance, surveil-lance requests, and data han-dling should be a key element of

any surveillance framework. The aim of this essay is to examine different aspects of the surveillance of Internet communication, in the light of the Roma-nian and European Union legislation. Highlighting positive aspects, as well as the arguable ones, the essay clarifies how Internet surveillance works and how to save the concept of internet privacy, without putting the brakes on new technology and servic-es that can be extremely useful. The essay also ap-proaches the issue of legal provisions protecting the privacy of communications.

Information technologies and the internet have brought fundamental changes to how society func-tions. Perhaps the most significant of these changes is the way in which we communicate. The technical capabilities of the internet not only allow surveil-lance, they also encourage us, through convenience, to place more and more of our lives into the spot-light. The question is whether the Internet Surveil-lance has turned private communication into fic-tion.

Although the Internet has become a mainstream communications mechanism, most of the users en-joy the benefits without knowing the implications of this means of communication. Computers com-municate over the Internet by breaking up mes-

sages (emails, images, videos, web pages, files, etc.) into small chunks called ‘packets’. These are routed through a network of computers, until they reach their destination, where they are assembled back into a complete ‘message’ again.

Packet Capture Appliance is responsible for the monitoring of data traffic on a computer network. It intercepts these packets as they are travelling through the network, in order to examine their con-tents using other programs. A packet capture gath-ers ‘messages’, but it does not analyse them and fig-ure out what they mean.

Other programs are needed to perform traffic analy-sis and sift through intercepted data looking for use-ful information. Automated Internet surveillance computers sift through the vast amount of inter-cepted Internet traffic and filter it. Then they report those bits of relevant information, such as the use of certain words or phrases, visiting certain types of web sites, or communicating via email or chat with a certain individual or group.

In the modern technological world, nearly all major international agreements on human rights protect the right of individuals to be free from unwarrant-ed surveillance. Internet privacy involves the right to personal privacy concerning (1) the storing, (2) repurposing, (3) provision to third-parties, and (4) displaying of personal information via the Internet. E-mail, instant messaging, and peer-to-peer file transfers, combined with the digitisation of content, changed how we experience the world, the means by which we access information, and the shape of our social networks.

Nevertheless, in ‘Visions of Social Control’, Stanley Cohen focuses on crime, punishment, and classifi-cation, stating that contemporary society developed a system of classifications into good v. bad and nor-

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mal v. abnormal, that makes control and surveillance necessary. The move to internet-based communica-tions have largely replaced many traditional services. Police and intelligence services are understandably concerned that criminal activities or the use of in-ternet should be subject to investigation and punish-ment.

In many countries, law enforcement agencies require internet providers and telecommunications compa-nies to monitor users’ traffic. The reasons seem to be in compliance with the law, as the powers help tackle serious organised crime. The question is whether sur-veillance is possible without facing the violation of the right to Internet privacy.

The solution in order to achieve conciliation between ethics and social needs lies in an effective legislation. As privacy is core to the European legal framework, one of the key aims is to give people more control over their private details on the web and to tackle other growing problems, including identity theft. There are crimes that are unique to the internet, such as hacking or distributed denial of service attacks against web-sites. In many cases, the internet simply provides a new medium for more traditional crimes. These in-clude blackmail, fraud, or dealing in stolen property such as credit cards.

There are significant dangers in monitoring online communications, unless the mechanisms and policies of surveillance are subject to strict and legally enforce-able standards of transparency, oversight, and control, both nationally and internationally. In most demo-cratic countries, intercepts of oral, telephone, and dig-ital communications are initiated by law enforcement or intelligence agencies only after approval by a judge, and only during the investigation of serious crimes.

There are both ethical and technological limits to data-driven surveillance. Simply because data is gen-erated and can be stored does not suggest that states should abandon fundamental principles and monitor entire populations, rather than targeted individuals.

Whenever someone opens a bank account, joins a so-cial networking website, or books a flight online, they

give vital personal information, such as name, address, and credit card number. Under European Union law, personal data can only be gathered legally under strict conditions and for a legitimate purpose. People or or-ganisations which collect and manage personal infor-mation must protect it from misuse and must respect certain rights of the data owners guaranteed by Euro-pean Union law.

Therefore, the European Union has established com-mon rules to ensure that personal data enjoys a high standard of protection. Citizens have the right to com-plain and obtain redress if their data is misused any-where within the European Union. Under the Data Protection Directive, every European Union country must provide one or more data protection supervisory authorities to ensure that data protection law is cor-rectly applied. Complaints regarding breaches of data protection law should be addressed to the relevant na-tional supervisory authority. The Commission has no competence to monitor compliance of data control-lers or to impose penalties. The supervisory authority must investigate complaints and may temporarily ban data processing which is the subject of a complaint. If the supervisory authority finds that data protection law has been violated, it can order the data erased or destroyed and/or ban further processing. Decisions by the supervisory authorities which give rise to com-plaints may be appealed through the courts.

The protection of personal data represents a new field for Romania’s legislative space. The Romanian Con-stitution recognises the right of privacy, inviolability of domicile, freedom of conscience and expression, under Title II (Fundamental Rights, Freedoms, and Duties).

In November 2001, the Parliament enacted Law 676/2001 on the Processing of Personal Data and the Protections of Privacy in the Telecommunications Sector. That law applied to the operators of public telecommunications networks and the providers of publicly available telecommunications services. In the context of their activities, these carried out personal data processing.

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In 2004, Law 676/2001 was replaced by Law 506/2004, closely following Directive 2002/58/CE of the European Parliament and the Council on personal data processing and privacy protection in the electronic communication sector. In order to harmonise the Romanian legislation to the acquis communitaire, Law 102/2005 set up the National Authority for the Supervision of Personal Data Pro-cessing.

The Authority carries out its activity in terms of complete independence and impartiality. It super-vises and controls the legality of the personal data processing which falls under the Law 677/2001. Law 677/2001 implemented Directive no. 95/46/EC, which sets up the general juridical frame of the per-sonal data protection at European Union level.

To conclude, pervasive and detailed information on individuals is a powerful tool. The use of surveillance to investigate and prevent crime almost unavoidably carries with it the risk of infringing on individual rights to privacy and freedom of expression, such as those set out in the European Convention on Hu-man Rights. It is crucial to take into consideration achieving its stated goals against the risks of failure, abuse, and misapplication.

By Elena Raluca Cirjan

This article received the 2nd prize at an essay compe-tition organised recently by ELSA Bucharest on the theme of Surveillance of Internet communications.

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Lawyr.it is here to help!

One year of Lawyr.it!In this special edition, a few Lawyr.it team members share from their experiences, motivations, and plans for the future, at the end of a first full Lawyr.it year.

‘For me, Lawyr.it is the equivalent for passion for legal writing and teamwork. I decided to get involved because it represents a scale for continuous growth, an opportunity to acquire and develop new competences. That is why I believe the Lawyr.it project will continue to challenge ourselves and exceed everyone’s expectations.’

Oana Gligan, Junior Editor/Communications & Learning Coordinator

‘Lawyr.it was and still is unique to me. I got involved because I believe there is something more to life, be it academic, than drawing inside the lines. I am sure the project is going to grow into something that will make us all very proud and satisfied.’

Bianca-Alexandra Prunea, Senior Editor/Internships & Projects Coordinator

‘I decided to get involved for many reasons. For me, working as a PR is more than just a job. In my opinion, it is all about managing reputation. I like to get involved in different projects, I like to be a volunteer, I love law and being part of Lawyr.it team is the best thing that happened to me in the last months of 2013! As for the future…you will definitely hear more and more of Lawyr.it. Get involved! You are Lawyr.it, you are the future!’

Delia Stamate, Regional PR Coordinator

‘I could not resist getting involved in this project as Lawyr.it is a platform that provides limitless opportunities of expansion for the Law students. It is a real pleasure to be a part of a team that not only believes that Law students should be creative, but also encourages them to think outside the box. I am sure that the magazine is only the beginning of an outstanding project.’

Andreia-Gemma Moraru, Junior Editor

‘Lawyr.it has been everything I had hoped it would be: passion-driven minds, all working for the same purpose. I joined the journal because I wanted to take a stand, to have my say and Lawyr.it has been the perfect framework for that. Lawyr.it is definitely going to make a significant difference in the legal world.’

Raluca Maxim, Junior Editor

‘My experience in the Lawyr.it team so far felt like a time well spent. I met here committed and passionate people, loving what they are doing, or, how we like to say it, ‘lawyr-ing’. I decided to get involved because I wanted to be a part of the unique - powered by law students - magazine, because it has a promising future among law students and practitioners. I believe you will hear more and more about our magazine in the future.’

Adrian Condraşov, Regional PR Coordinator

‘Promising as it was, the Lawyr.it project led to the germination of a concept per se. Best defined by opportunity, professionalism, and success, the Journal stands as a generator of potential for any Law School student willing to stand out amongst his peers. I can honestly say that joining the Lawyr.it team was one of the best decisions I have ever taken!’

Andrada Florea, Junior Editor/International Relations Coordinator

See you all next year!

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Whether international or in-ternationalised, the activity of the criminal courts set up in the last decades with the help of the UN demonstrated that the concept of universal justice is not obsolete. In time, the international juris-diction proved to be the most evolved mechanism for imposing international justice. Along with

ad-hoc courts, an international permanent court (the International Criminal Court, or ‘ICC’) was created. I intend to sketch a short comparison between the in-ternational criminal courts and the internationalised, or hybrid courts with an emphasis on the practical ad-vantages and disadvantages of forming and using one of these jurisdictions in order to try a certain violation of international humanitarian law or human rights.

The second half of the 20th Century witnessed bloody inter-ethnic armed conflicts. To successfully end the civil wars, states were encouraged to ask for the inter-vention of a neutral party in trials involving violations of human rights and international humanitarian law. This is how ad-hoc tribunals developed a new sub-species, the hybrid criminal tribunal, adapted to both national and international circumstances. The mixed composition of these courts allowed them to possess relevant information from the local context, but also expertise in international humanitarian law.

Brief HistoryInternational criminal courts have their origins in the Common Act (1943) signed by the Allied Forces. The act set up two military courts in order to try and pun-ish war criminals from National-Socialist Germany and Japan - the Nuremberg and Tokyo international criminal courts. The Nuremberg Charter incriminated several types of crimes: crimes against peace, crimes of war and, for the first time, crimes against humanity, as a separate juridical category. Later on, this innovation made the trials of the International Criminal Court

for former Yugoslavia and the International Criminal Court for Rwanda possible (Onica-Jarka, 2011, p. 157). The first permanent international court - the ICC - was established in 2002, as a consequence of the signing of a multilateral treaty, the Rome Statute, adopted dur-ing an UN conference. The competence of this Court is limited to the most serious crimes, such as crimes of aggression, crimes of war, crimes against humanity and genocide. The crimes against humanity and the war crimes are strictly determined in the Statute, in order to limit any interpretation. The Court has ju-risdiction for crimes committed during both interna-tional and internal armed conflicts. The jurisdiction of the International Criminal Court has the aim of completing the national jurisdictions and it functions only in the cases in which the state on which territory the violation has occurred cannot or will not start a trial.The first ad-hoc court was the Court of Sierra Leone (CSSL), set up in 2002 by an international agreement between the Republic of Sierra Leone and the UN (Onica-Jarka, 2008, p. 178).The problem with ad-hoc courts is that, as a conse-quence of having a bilateral agreement instead of a multilateral one, the courts will not be preeminent over the national jurisdiction of third parties (other states) and will not be in position to give an order of extradition. However, the courts’ decisions are com-pulsory for the state which signed the agreement (in CSSL’s case, art. 8 of the Statute), a clear advantage in comparison with the courts of Yugoslavia and Rwan-da.The obligation for Sierra Leone to cooperate with the CSSL at all levels of jurisdiction is stipulated in Article 17 of its Special Agreement, but the lack of power to oblige other states to comply has created many diffi-cult situations. Such an example is the case of the Libe-rian president Charles Taylor, accused of war crimes, crimes against humanity and other grave violations of international humanitarian law by the CSSL and Gha-na’s refusal to arrest him. In order to express its support for the ad-hoc Court and to encourage other states in

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acting according to their international obligations, the UN Security Council adopted Resolution 1470/2003 to affirm its commitment to the CSSL and to recommend all states to cooperate with it.Moreover, the UN Secretary General particularly em-phasised that there is no connection between the ad-hoc courts created by the UNSC and the Special Court for Sierra Leone, as they are all independent from each other. Even more, the CSSL has a separate Chamber of Appeal as an additional guarantee of its independence and credibility.

Comparison between international and internation-alised courtsHaving noted the main aspects of both types of courts, the international criminal courts and the ad-hoc ones, there are some significant differences to be emphasised.Firstly, a main difference between them is the manner they were established and, as a consequence, their juris-diction. The international criminal courts are generally created by a number of states, making their jurisdiction universal, which is clearly an advantage, as these courts are not restricted territorially. On the other hand, hybrid courts are based on an agreement between the interested state and a UN body (generally the UN Secretary Gen-eral), giving courts a specific regional jurisdiction. This might become an important obstacle when prosecuting a person that travels and hides in other countries, as those respective states can simply refuse to cooperate, as seen above. Secondly, another distinction is the composition of the courts. The composition of this court is mixed – it has both international and national judges, personnel and prosecutors. Some of them are named by the UN Secre-tary and others by the national authorities of the state. However, in the case of other ad-hoc courts (such as Ex-traordinary Chambers from Cambodia and the Special Panels of the Dili District Court, Eastern Timor), the presence of the international judges is rather symbolic (Onica-Jarka, 2008, p. 217). The hybrid form attributed to this ad-hoc court is also given by the fact that it is nei-ther a subsidiary body of the UN, nor an international organisation of cooperation or a supranational organi-sation; it is rather an association between a state and an international organisation. The international courts are not composed by judges who are nationals in the conflict countries. Meanwhile the mixed composition of the hybrid courts gives them

the capacity of better understanding the situation as well as neutrality. National judges and prosecutors are more accustomed with the local law and mentality and inter-national members are more likely to be objective being foreign to the conflict. Moreover, another advantage of the dual composition of the hybrid courts is that it facilitates the exchange of knowledge and experience between judges coming from different jurisdictions, securing a permanent, construc-tive communication between legal systems. Thirdly, these two courts may trial different types of crimes. The temporary character of ad-hoc tribunals makes them more specific, but in the same time it limits their mandate on a certain period of time. This limita-tion is given by the allocated budget and the political will of the members of the UN and their sensitivity to the crimes of international concern. The crimes investi-gated by the ICC are not only crimes of genocide, crimes against humanity, war crimes and crimes of aggression, but also terrorism, hostage taking, hijacking and inter-national drug trafficking. The crimes investigated by ad-hoc courts, however, particularly the hybrid criminal courts, are strictly stipulated in their initial agreement and may also include crimes incriminated only by the national legislation.

ConclusionsTo conclude, there are important differences between international and hybrid (or internationalised) criminal tribunals. However, one must have their specific view and mandate in mind before choosing which one is the most suitable option for a given armed conflict. The main advantage of international criminal courts is their universal vocation in searching and prosecuting perpe-trators of the values protected by the international com-munity. At the same time, even though hybrid courts have a limited mandate, I believe that their nature gives them the advantage of having a more accurate, closer view to the events, with smaller costs. All these aspects come to sustain the importance of the principle of complementarity, also stated in Rome Statute, placing the enormous responsibility on states to end the culture of impunity and impose interna-tional justice.

By Oana Iulia Irimia

DEVIL’S ADVOCATE

DEVIL’S ADVOCATE

DEVIL’S ADVOCATE

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Companies should not be allowed to have patents for green technology

Anda Prunea is a first year law student at Babes-Bolyai University. She has been an active member of a de-bate club for four years and she intends to be involved in debate-related activities at university as well. It is her firm belief that debat-ing benefits people in a way that school cannot. That is

why she became a trainer for high school stu-dents. She plans to take advantage of all the op-portunities she has this year to take part in vari-ous activities and focus more on internships.

Mihai is a first year student at the Law Faculty in Cluj-Napoca, and so far he likes it. He has received several awards at national and in-ternational debating com-petitions. Although every-body dreams of changing the world, he is confident he will succeed in doing so. He loves people and thinks we can learn from everyone around us, as we are de-fined by our friends and peers. He also wishes to get the chance to skydive before he dies.

This issue’s advocates

PROS: Anda Prunea CONS: Mihai Morar

Debate Foreword

In our anniversary edition, celebrating one year of activity, we wanted to make our debat-ing section special. This is why we invited two debaters to argue pro and against the mo-tion, in the way they do when they attend debating competitions with their peers. These two first year law students have been debating for more than four years and have recently won Vienna Freshers’ Debating Tournament 2013. Therefore, we believe you are up for a treat.

Climate change is subject to various debates in the media, in parliaments, or between academicians. It affects every single country, regardless of their pollution level. This makes it a collective action problem and environmentalists suggest that it should be fought on all levels in order to achieve success. This is why we proposed this motion for this issue.

Ia it justified to overstep the right of an individual actor in order to protect a bigger group, be it the entire planet? Is it the best way to achieve a sustainable environment? Our guests tackled the motion from various perspectives. Both agreed that eco-friendly technologies are something to strive for. Their opening statements provide arguments regarding the optimal method to do so. Enjoy the read!

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Anda Prunea: As the world faces the challenges of cli-mate change, it seems that optimising the investment in renewable energy is the only way to create a sus-tainable environment. Achieving efficiency out of the way we produce and distribute is going to ensure en-ergy security on the long term. Otherwise, sectors that we strongly rely on, like agriculture, will be seriously harmed in the near future. In order for green technol-ogy to reach its goal, production must be incentivised and consumers need to afford eco-friendly products.

As it is a matter of public interest, if someone owns precious information on how to fight climate change, accessing it should not be conditioned in any way. I am going to prove that by analysing how giving com-panies that amount of control over the use of their methods is not desirable as it brings prejudice to the main purpose of the invention. There are two main ar-guments for this.

First, patenting green technology alters competition. A patent is the exclusive right granted to an inventor to prevent others from making, using, or selling the invention for a certain period of time (twenty years in most of the cases), in exchange for public disclosure of that discovery. If someone else wants to exploit the patentee’s invention by commercialising it, they need to pay royalties to the owner. If a company has the first mover advantage by being the first one to produce something, this leaves other companies on the market with two options: either pay patent royalties and make profit by selling the patentee’s products, or invest in their own research and produce themselves.

If they decide to spend resources on research and come up with innovative and more efficient technology, the final price of the product will have to cover both man-ufacturing and research costs, therefore probably not

Mihai Morar: In a world where ideas can change eve-rything and people are paid more to think than to do hard work, one needs to acknowledge the importance of patents. On this side of the motion, the main goal will be to prove that companies should be allowed to have patents on green technology. Contrary to the opinion of some representatives in the United States, I realise the importance of green energy and see global warming as a major problem. The line of reasoning that will be followed will prove the importance of re-warding people and companies for their great ideas, and incentivising them to create more green energy.

First, we live in a world fuelled by new ideas and in-novation. What keeps the earth spinning is that every time we encounter a problem, a brilliant person or a group of people comes with the idea that saves us. More than that, we face maybe one of the greatest problems humanity ever had to deal with. It is the first time in history when the progress and the massive industri-alisation are creating a bad environment for future generations. The consequences vary from melted gla-ciers to underwater cities, from hurricanes to lack of food and poverty. Companies that are trying to repair their previous mistakes in order for our children to be able to live in a fresh environment should be rewarded for their effort. New ideas take time, research, hours of work, and sleep deprivation. Companies should be allowed to win money if they create new technology. Without allowing them to patent their inventions, the effort is not being rewarded, as other companies have the possibility to use the same technology in which they never invested. New ideas and hard work should be rewarded and that is why we need patents.

Opening Statements

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being substantially lower than the price they are trying to compete with. Paying patent royalties leads to the monopolisation of the patentee company. This usually translates into the lack of innovation and competition. Hence, a more efficient way to encourage competi-tion and stimulate improvement in the environmental friendly technologies would be to let the ideas circu-late freely and avoid spending a lot of resources when it is not needed.

Second, patenting severely damages developing coun-tries. These countries are more vulnerable to the perils of climate change due to their inability to invest heavily in healthcare or infrastructure. This makes them more prone to be affected by global warming, as it would be difficult to cope with a natural disaster. Given the fact that the investment environment is usually insecure in these countries, they have no or very few means to properly invest in green technology. They rely on the discoveries of the developed countries and their imita-tive capacities, or on trade. Supplying the final prod-ucts is not enough. It will not tackle climate change if domestic production does not go green as well. They need to have the possibility to develop their own clean technology to meet the demand. At the moment, the problem is that companies in developed countries only allow foreign access to the information in exchange of certain fees. As companies in less wealthy countries cannot afford the expensive patent taxes, this inhibits development by discouraging technological catch-up.

All in all, patenting on green technology hinders both domestic competition and the development of a sustainable environment where it is most needed. It harms efficient productivity and innovation in a cru-cial domain that should be revolutionised. Environ-mental security should therefore be prioritised to the detriment of the right to intellectual property.

Second, currently there is little incentive to invest in green energy. Removing the ability of companies to patent their ideas and work will definitely make slow the progress of fighting global warming. Most of the times, companies, especially the powerful ones, are driven by profit. The reason Toyota was able to devel-op the first all-electric SUV is the profit it will bring on the long term. The fact that they are the only company that is able to create such cars and sell them is due to the patent laws in the US (Anon, 2013). The removal of such laws will definitely halt the progress. The rea-soning of the companies is simple. If you cannot profit from it, why should you do it? Furthermore, if any other company can benefit from the ideas and hard work for free, why would they invest so much money in the first place? By removing patents laws there will be a race to the bottom where companies are no longer incentivised to develop green energy. As a result, all efforts to fight climate change will be in vain. There will be no new technologies created to help reduce the amount of pollution caused by, for instance, green-house gas emissions. Companies invest in green tech-nology because, at this moment, innovation equals profit (Gattari, 2013).

In conclusion, there are two major reasons for allow-ing companies to have patents in green technology. Profit is the only thing that keeps them investing, pro-ducing, and saving us all. They should be allowed to benefit from their ideas and inventions, and be incen-tivised to go on with their great work. Only then will they be able to explore the renewable energy at its full-est potential and come up with new methods to save the environment.

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Anda Prunea: While one must agree that spending time and energy on an invention should be somehow rewarded, I am going to show how patenting is not the way to do it. People need to be encouraged to come up with bright ideas, but these ideas also need to compete with each other and be improved, if we indeed strive for progress. The system of patent-granting harms the entire mechanism of advancement by generating huge disproportions in market shares. As a result, it impedes the evolution of a certain field, as some companies are not given the chance to be competitive.

Regarding the opponent’s first argument, there is no need to argue whether an individual should be cheered up for his great work or not. The discussion should be whether extra profit is justified, even when it can be a disincentive to work more in order to enhance the ini-tial outcome. If the assumption is that there is a moral legitimacy attached to patents and it is not even about the profit, then recompense for the hard work can ma-terialise in something other than money, like awards. But if the background for patents is strictly linked to the need for a pecuniary advantage, then their use should not be validated, as I have shown previously how it affects progress by altering competition. There are some domains where exploration and improve-ment are crucial for future security, like that of green energy. In these domains, the guarantee of constant optimisation is more important than one’s profit.

Next, I am going to show why people would still be motivated to invest even without the patents. In light

Mihai Morar: Even if the importance of innovation and cheap technology in fighting climate change is to be accepted, the world will make a major mistake if patents for green technology will be eliminated.

There are certain assumptions made in the first speech and I will try to prove that the arguments written by my colleague are based mostly on false premises. As a community of people living together, we have agreed on some regulations and laws that shall guide our ac-tions and impose limitations. Rules are not rules if we try to avoid them every time another problem comes forward. On the other hand, the right of intellectual property is sacred as long as people are not afraid to think and act upon their thoughts.

Starting with the premise of the first argument, one has to acknowledge the meaning of the word competi-tion. A race to the top is happening right now in our capitalist markets, where companies are not allowed to copy ideas and take credit from someone else’s work. Competition between companies is what solved major problems, like the high cost of living and being able to afford three meals a day. The message sent if the mo-tion is approved is simple. One can lie on their back and wait for someone else to provide ideas. More than that, if they steal them and take credit for them, the market will reward them. This kind of approach will limit the innovation and competition between com-panies, because everyone will be afraid to invest in re-

Rebuttal Statements

Moderator’s Note: As you noticed, there are two main lines of argumentation in this debate. Anda argues that patenting alters competition, which has negative consequences on the overall positive change in green tech-nologies and the way we protect the environment. She is also concerned about the effect patenting has upon developing economies, where going green is not all that fashionable, or affordable, at the moment. On the other hand, Mihai believes that it is unjust to deprive somebody of the reward they deserve for their ideas. He also argues that this has real world consequences, as taking away an important incentive for companies will have devastating effects upon the developing of eco-friendly technologies. Keep reading to see how these two views conflict in the next part of our debates.

DEVIL’S ADVOCATE

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of the increase of the devastating effects of climate change, there is a growing demand for renewable en-ergy. Also, there is a lot of room for improvement as global warming is advancing rapidly. Green technol-ogy seems to provide an emerging industry. Compa-nies that want to invest in this sector would have to be really competitive and have efficient marketing strate-gies in a no-patent system. That should bring them the profit they are driven by.

In response to the opponent’s second argument, the reason why patenting actually sabotages innovation is the monopolisation that it creates. If an invention is patented, other people stop researching that particu-lar area, leaving it to just that company to exploit and improve that technology. As I have shown in my first argument, they would rather not spend their resources on the same research that is likely to produce the same product, as that would make them less competitive than desired on the market. Consequently, if one com-pany were willing to pay for the research and share it for free, it would allow itself and the other companies to invest in the improvement of the invention. That would create more chances to innovate based on that research. By patenting, the number of researchers working to develop the technology is limited. Thus, it is not maximising the potential of every single tech-nology.

Overall, for green technology to produce the change that we want, it needs to be affordable, so as many people as possible use it. Because there are just a few companies that produce and benefit from the sales of eco-friendly technology, there is a lack of competition. This leads to prices that are not necessarily compatible with what people afford. For instance, patented phar-maceuticals are extremely expensive. On the whole, it should be much more about covering the needs than taking credit.

search when anyone else can use their results. If I am not the only one than can benefit from my ideas, why should I produce them in the first place?

On the argument of developing countries, there are a few mistakes in the line of reasoning. First, the fact that we call them developing countries, and that most of the times they do not have money for health-care or infrastructure, does not mean that they do not do sci-entific research. Let us take the example of India and China, which both have a functioning space program. Second, the market in developing countries is avail-able for western companies. What does this mean? It is simple. If a developing country wants to pay patent royalties, they are able to do so. The cost might be even cheaper than investing into research. More than that, people in developing countries have access to modern technology and they are able to directly buy western products. On the other hand, incentivising companies to invest and discover new forms of green technology is only going to work if their ability to steal ideas from others is limited. A company based in a developing country can benefit the same way from a patent as a company in a developed country.

In conclusion, the world is facing yet another major problem that is directly affecting our future. During the fight with climate change we cannot forget our ba-sic human needs, and what drives and makes us come up with new ideas and innovate. Especially if we are talking about companies, they are driven by profit and this is a good thing. Research and innovation, new ideas, should be rewarded and this can only happen if the ability of companies to patent green technology is preserved.

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Anda Prunea: There were two main clashes in this de-bate. First, whether patenting disservices competition or not. Second, if developing countries stand a chance to develop their own green technology, or should the wealthier countries transfer it to them.

On the point of competition, the importance of incen-tivising people to compete with one another in order to innovate seems to be commonly accepted. But pat-enting only enables companies to have a monopoly on the market and prevents others from competing, reducing therefore the possibility of innovation. As I have shown, people would innovate in the field of re-newable energy even without the patents, as right now the increasing demand makes it a booming industry.

The problem with developing countries is that provid-ing them western eco-friendly products does not suf-fice. Their own manufacturing process has to be green. For instance, their factories must cut the carbon emis-sions as well. China might invest in research. However, in other developing countries the standard of living is so low that people are not prepared to face the im-mediate devastating effects of climate change, such as massive floods. Therefore, transferring green technol-ogy to them for free will help prevent that.

Clearly, the debate behind this debate is whether peo-ple should be rewarded for their inventions. If by re-warding them the utility of that invention is harmed, then not doing so is completely legitimate.

Mihai Morar: One can clearly see that there are two kinds of arguments in this debate. The main clash is between the power and free will of the individual, or the company in this case, and the needs of the world or the state.

Each and every time, governments try to uphold their intrusive policies by arguing that they are going to help the society and those in need. While I agree that climate change is a major problem, I think that only by allowing companies to patent their invention the problem is going to be solved.

On this side of the house, I believe that progress is made with effort and those who want to invest should be rewarded, not with awards, but with money.

Right now, companies have this possibility and one can clearly observe the huge progress that was made in this domain because companies have an incentive to spend time and money to provide consumers elec-tric cars, solar panels, and other kinds of green energy.

One needs to acknowledge how companies need an incentive to provide better and better ideas, not just copy or improve the old ones.

Closing Statements

Moderator’s Note: Rebuttals are usually the most intense part of each debate. There were two interesting ideas that came out of the opponents’ remarks. First, there was the clash between meritocracy and the right of others to a sustainable environment. While Anda believes that it is justified to reward companies for their investment in research, she thinks that patenting is not the way to do it due to the implications it has on the fight against climate change. Mihai argues that we can have the best of both worlds, as rewarding companies incentivises them to innovate. Second, there was the issue of developing countries. It is true that most of the times these countries must focus on investing in economy rather than worrying about the environment, as poverty is an immediate threat. However, these countries suffer the most from climate change. The question remains, how is it best to tackle the issue: have them go green structurally or transfer eco-friendly technology from developed economies? I guess it is up to you to determine the winner. I hope you enjoyed our debate! Happy Holidays!

References

The Fate of the Judicial Precedent

• Boroi, G., 2013. Noul Cod de procedură civilă. Co-mentariu pe articole. Vol. I. Art. 1-526. Bucharest: Hamangiu Press

• Boroi, G. and Anghelescu, C., 2011. Curs de drept civil. Partea generală. Bucharest: Hamangiu Press

• Santai, I., 2007. Teoria Generală a Dreptului. Cluj-Napoca: Risoprint Press

• Bob, M.D., 2009. Despre precedentul judiciar si valoarea sa de izvor de drept. [online] Available at: <http://www.juridice.ro/39497/despre-prece-dentul-judiciar-si-valoarea-sa-de-izvor-de-drept.html> [Accessed November 4, 2013]

• Ionescu, S., 2009. Semnificatia jurisprudentei si autoritatea precedentului în marile familii de drept. [online] Available at: <http://www.rsdr.ro/Art-1-1-2009.pdf> [Accessed November 2, 2013]

• Neacsu, A., 2013. Directia: precedentul judici-ar! [online] Available at: <http://www.juridice.ro/288702/directia-precedentul-judiciar.html> [Accessed November 3, 2013]

• Piperea, G., 2009. Precedentul judiciar si aplicabil-itatea directă în dreptul intern a reglementărilor co-munitare europene. [online] Available at: <http://www.juridice.ro/39452/precedentul-judiciar-si-aplicabilitatea-directa-in-dreptul-intern-a-regle-mentarilor-comunitare-europene.html> [Ac-cessed November 4, 2013]

• Summaries of European Union legislation, 2013. The reference of a preliminary ruling. [on-line] Available at: <http://europa.eu/legislation_summaries/institutional_affairs/decisionmaking_process/l14552_ro.htm> [Accessed November 4, 2013]

The threats comparative advertising can pose to fair competition

• Cotuţiu, A., 2001. Concurenţa comercială pe piaţa internă. Arad: Servo-Sat Publishing

• Eminescu, Y., 1993. Concurenţa neleală – Drept român şi comparat. Bucureşti: Lumina Lex Pub-lishing

• Nims, H.D., 1936. The law of Unfair Competition and Trade-marks. New York: Baker, Voorhis and Company

• ECJ, De Landtsheer Emmanuel SA v. CPVC and Vevue Cliquot Pontsardin SA, 2006. [online] Available at: <http://uk.practicallaw.com/6-383-9837?q=unfair+competition+confusion+> [Ac-cessed August 29, 2013]

• ECJ, Lidl SNC v. Vierzon Distribution SA, 2010. [online] Available at: <http://uk.practicallaw.com/6-383-9837?q=unfair+competition+confusion+> [Accessed August 29, 2013]

• ECJ, L’Oreal SA & others v. Bellure, 2009. [online] Available at: <http://uk.practicallaw.com/9-500-4673?q=unfair+competition+confusion+> [Ac-cessed August 29, 2013]

Aristotle’s and Lincoln’s juridical teachings for the modern-day lawyer

• Sherman, N., 1999. Aristotle’s Ethics. Critical es-say. Oxford: Roman & Littlefield Publishers Inc.

• Ellis, B.J. and Ellis, W.T., 2009. Beyond the Model Rules: Aristotle, Lincoln, and the Lawyer’s Aspira-tional Drive to an Ethical Practice. [online] Avail-able at: <http://www.cooley.edu/lawreview/_docs/archive_volumes/volume26_3/ellis.pdf> [Ac-cessed November 21, 2013]

• McClure, A.K., 2013. Abraham Lincoln’s Legal Ethics. [online] Available at: <http://pilantsbusi-nessethics.com/2012/09/30/abraham-lincolns-legal-ethics/> [Accessed November 22, 2013]

• McCobb, J.E., 2005. Law and Life. Abe’s Ethics. [online] Available at: <http://www.osbar.org/pub-lications/bulletin/05apr/lawlife.html> [Accessed November 22, 2013]

• Ross, D., 2009. Lincoln and the Ethics of Eman-cipation: Universalism, Nationalism, Exceptional-ism. [online] Available at: <http://www.journalo-famericanhistory.org/projects/lincoln/contents/ross.html> [Accessed November 21, 2013]

• Smith, J.A., 2004. The Ethics of Aristotle. [online] Available at: <http://www2.hn.psu.edu/faculty/jmanis/aristotl/Ethics-Aristotle.pdf> [Accessed November 22, 2013]

Constitutional Justice in Europe and the United States of America. A comparative view

• Carothers, T., 2006. Promoting the Rule of Law Abroad. Washington DC: Carnegie Endowment

for International Peace

• Kelsen, H., 1992. Introduction to the Problems of Legal Theory. Oxford: Claredon Press

• Wolfe, C., 1994. The Rise of Modern Judicial Re-view. Maryland: Rowman and Littlefield Publish-ers Inc.

• Bakker, R., 1995. Judicial Control. Antwerp: Mak-lu Publishers

• Sadurski, W., 2005. Rights before Courts. Springer

Do EU citizens truly benefit from their EU citizen-ship when it comes to the visa regime?

• Fuerea, A., 2011. Manualul Uniunii Europene. Bu-charest: Universul Juridic

• Henley & Partners, 2013. The Henley & Partners Visa Restrictions Index – 2013. [electronic index] Available at: <www.henleyglobal.com/citizenship/visa-restrictions> [Accessed December 10, 2013]

• Waterfield, B., 2011. France threatens to ‘suspend’ Schengen Treaty. The Telegraph, [online] Avail-able at: <http://www.telegraph.co.uk/news/world-news/europe/italy/8468981/France-threatens-to-suspend-Schengen-Treaty.html> [Accessed July 8, 2013]

• European Commission, 2013. Free movement of people: five actions to benefit citizens, growth and employment in the EU, [online] Available at: <http://ec.europa.eu/social/main.jsp?langId=ro&catId=851&newsId=2006&furtherNews=yes> [Accessed December 10, 2013]

• Kern, S., 2012. Belgium will become an islamic state. Gatestone Institute, [online] Available at: <www.gatestoneinstitute.org/3442/belgium-is-lamic-state> [Accessed July 11, 2013]

The law on euthanasia in Britain and the Nether-lands: which is preferable?

• Chadbourne and Parke LLP, 2010, What does a Claims Control Clause really say? available at: <http://www.chadbourne.com/files/Publication/a6049843-4f77-4caa-b287-99160a5812df/Presen-tation/PublicationAttachment/92d1270e-7461-4361-9f06-99266d9a9c80/InsurReinsurNews-Wire-0710.pdf> [Accessed August 17, 2013]

• Ost S. and Mullock A., 2011. Pushing the Bounda-ries of Lawful Assisted Dying in the Netherlands? Existential Suffering and Lay Assistance. European

Journal of Health Law 19 (2011), pp.163-189

• Amsterdam Herald, 2013. Conviction of man who helped his 99-year-old mother die prompts calls for review of Dutch euthanasia law, [online] Availa-ble at: <http://www.amsterdamherald.com/index.php/rss/1021-20131023-conviction-man-helped-99-year-old-mother-die-prompts-calls-review-dutch-euthanasia-law-netherlands-dutch-albert-heringa-courts-justice> [Accessed November 7, 2013]

• Williams, Z., 2013. Keir Starmer: ‘The potential for change in our criminal justice system is huge’. The Guardian, [online] Available at: <http://www.theguardian.com/theguardian/2013/oct/18/keir-starmer-potential-change-criminal-justice > [Ac-cessed November 18, 2013]

• Taekema, S. et al eds., 2011. Understanding Dutch Law. 2nd ed. The Hague: Eleven International Publishing

• Nicklinson, L., 2012. Tony Nicklinson: My dad, my hero. The Guardian, [online] Available at: <http://www.guardian.co.uk/uk/2012/sep/16/to-ny-nicklinson-lauren-daughter-> [Accessed No-vember 6, 2013]

• BBC Radio 4 Moral Maze, 2013. Provocative and engaging debate on reforming abortion law, chaired by Michael Buerk, [online] Available at: <http://www.bbc.co.uk/programmes/b03c49xh>, [Ac-cessed November 9, 2013]

Syria: Taking sides in International Law

• Shaw, M. N., 2008. International Law. 6th ed. Cambridge: Cambridge University Press

• Olalia, E.U., 2002. The Status in International Law of National Liberation Movements and their Use of Armed Force. International Association of People’s Lawyers, [online] Available at: <http://www.iadllaw.org/files/THE%20STATUS%20IN%20INTERNATIONAL%20LAW%20OF%20NATIONAL%20LIBERATION%20MOVE-MENTS%20AND%20THEIR%20USE%20OF%20ARMED%20FORCE%20by%20Edre%20Olalia.pdf > [Accessed November 20, 2013 ]

• Higgins, N., 2004. The Application of Interna-tional Humanitarian Law to Wars of National Liberation. Journal of Humanitarian Assistance, [online] Available at < http://sites.tufts.edu/jha/files/2011/04/a132.pdf> [Accessed November 20, 2013]

References

• Gray, C., 2008. International Law and the Use of Force. Oxford: Oxford University Press

• Holliday, J., 2012. Syria’s Armed Opposition, Insti-tute of War

• Akande, D., 2012. Self Determination and the Syr-ian Conflict – Recognition of Syrian Opposition as Sole Legitimate Representative of the Syrian Peo-ple: What Does this Mean and What Implications Does it Have? European Journal of International Law [online] Available at: < http://www.ejiltalk.org/self-determination-and-the-syrian-conflict-rec-ognition-of-syrian-opposition-as-sole-legitimate-representative-of-the-syrian-people-what-does-this-mean-and-what-implications-does-it-have/ > [Accessed November 20, 2013]

The Common European Sales Law: A necessary tool?

• Eidenmüller, H., 2012. What can be wrong with an option? An optional common european sales law as a regulatory tool, [online] Available at: <http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2102827> [Accessed November 23, 2013]

• European Commission, 2011. Proposal for a regulation of the European Parliament and of the Council on a common European sales law, [online] Available at: <http://eurlex.europa.eu/LexUriS-erv/LexUriServ.do?uri=COM:2011:0635:FIN:en:PDF> [Accessed November 1, 2013]

• Expert Group on European Contract Law, 2011. A european contract law for consumers and busi-nesses: publication of the results of the feasibility study carried out by the expert group on european contract law for stakeholders and legal practitioners feedback, [online] Available at: <http://ec.europa.eu/justice/contract/files/feasibility_study_final.pdf> [Accessed November 20, 2013]

• Kornet, N., 2012. The Common European Sales Law and the CISG - Complicating or Simplifying the Legal Environment?, [online] Available at: < http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2012310> [Accessed November 19, 2013]

• Pachl, U., 2012. The common european sales law

- Have the right choices been made?, [online] Avail-able at: < http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2027455 > [Accessed November 19, 2013]

• Schulze, R., 2012. Common European Sales Law. Oxford: Oxford University Press

• Smits, J. M., 2012. Party choice and the common european sales law, or: how to prevent the CESL from becoming a lemon on the law market, [online] Available at: <http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2060017> [Accessed November 20, 2013]

Surveillance of Internet communications in Roma-nia and the EU

• Carter, C.J., and Capelouto, S., 2013. Report: NSA, GCHQ among worst surveillance offenders, Snowden says, [online] Available at: <http://edi-tion.cnn.com/2013/11/03/world/europe/edward-snowden-manifesto/> [Accessed December 4, 2013]Zimmermann, P., 1998. Why I Wrote PGP, [online] Available at: <http://www.philzimmer-mann.com/EN/essays/WhyIWrotePGP.html> [Accessed December 4, 2013]

• Barlow, J.P., 1996. A declaration of the independ-ence of the Cyberspace, [online] Available at: <htt-ps://projects.eff.org/~barlow/Declaration-Final.html> [Accessed December 4, 2013]

• Rousseau, J.J., 1998. ‘The social contract’ and oth-er later political writings. Cambridge: Cambridge University Press

Surveillance of Internet Communication

• Vasiu, I. and Vasiu, L., 2005. Protecţia datelor per-sonale. Revista de Drept Penal, No. 2/2005

• Brezeanu, O., 2009. Dimensiunea istorică a armonizării legislaţiei româneşti cu reglementările Uniunii Europene. Revista de Drept Penal, no. 3/2009

• Cohen, S., 1985. Visions of Social Control: Crime, Punishment and Classification. London: Polity

International criminal courts and internationalised criminal courts. Brief comparison

• Onica-Jarka, B., 2011. Drept international umani-tar. Note de curs. 2nd ed.. Bucharest: Universul Ju-ridic

• Onica-Jarka, B., 2008. Jurisdictia internatională penală. 2nd ed. Bucharest: C.H.Beck

• Solera, O., 2002. Complementary jurisdiction and international criminal justice. International Re-view of the Red Cross, No. 845, pp.145-171

Devil’s Advocate: Should companies be allowed to have patents on green technology?

PRO - Opening Statements

• Bronwyn, H. H. and  Helmers, C., 2010. The role of patent protection in (clean/green) technology transfer. The National Bureau of Economic Re-search, [online] Available at:<http://www.nber.org/papers/w16323.pdf?new_window=1> [Ac-cessed December 14, 2013]

• Anon., 2009. A bad climate for development. Poor countries’ economic development will con-tribute to climate change. But they are already its greatest victims. The Economist, [online] Available at <http://www.economist.com/node/14447171> [Accessed December 14, 2013]

• Sethi, N., 2013. Developing countries call for eas-ing IPR costs of clean technologies. The Hindu, [online], Available at <http://www.thehindu.com/sci-tech/energy-and-environment/developing-countries-call-for-easing-ipr-costs-of-clean-tech-nologies/article5355065.ece> [Accessed Decem-ber 14, 2013]

PRO - Rebuttal

• Wooldridge, A., 2013. Drug patents. A fool’s game. The Economist, [online] Available at <http://www.economist.com/blogs/schumpeter/2013/04/drug-patents > [Accessed December 15, 2013]

CON - Opening Statements

• Anon., 2013. Toyota Leads Green Tech Pat-ent Growth For Third Consecutive Quarter.

Cleantechnica, [online] Available at <http://cleantechnica.com/2013/01/22/toyota-leads-green-tech-patent-growth-for-third-consecutive-quarter/#FY5ItIgPHIxy0gAf.99> [Accessed De-cember 14, 2013]

• Gattari, P., 2013. The Role of Patent Law in In-centivizing Green Technology. Northwestern Journal of Technology and Intellectual Proper-ty, [online] Available at:<http://scholarlycom-mons.law.northwestern.edu/cgi/viewcontent.cgi?article=1181&context=njtip> [Accessed De-cember 14, 2013]

CON - Rebuttal

• Anon., 2013. How innovative is China? Valu-ing patents. The Economist, [online] Avail-able at <http://www.economist.com/news/business/21569062-valuing-patents > [Accessed December 15, 2013]

• Subramanian, S., 2013. India’s Frugal Mis-sion to Mars. The New Yorker, [online] Available at <http://www.newyorker.com/online/blogs/elements/2013/11/a-mission-to-mars-on-the-cheap.html> [Accessed December 15, 2013]

Image sources:

Page 29: <http://www.frankhaney.biz/>

WE WOULD LIKE TO THANK ALL THOSE WHO CONTRIBUTED TO THIS FOURTH EDITION:

Anca LupasAnda PruneaAndra CarabasAndrada RusanBeniamin Viorel BranzasElena Mihaela GheorgheElena Raluca Cirjan

Francesca EspositoDiana GalMihai MorarOana Iulia IrimiaOana GliganRaluca Alexandra Maxim

We would like to extend special thanks to Ms. Linda Hamid, Law Clerk at the International Criminal Court, for offering us an interview.We would also like to thank Ana Condor for contributing with this edition’s pho-tos (visit her on Facebook at AC Photography&Art).

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