62nd edition of the Synergy Magazine

SYNERGY

No. 62· II - 2017

M A G A Z I N E

Magazine of the European Law Students' Association

POPULISM. HOW STRONG ARE EUROPE'S CHECKS AND BALANCES?

The Council of Europe’s 4th Annual Report on the State of Democracy, Human Rights and the Rule of Law

What if a state chooses to ignore the checks and balances?

Fairy Tale Moot Court elected the best IFP event in Germany

Günter De Schepper about the rise of populism in Europe

Analysis of Hungarian situation by Olesya Dovgalyuk

Lorenz Färber, Hänsel and Gretel in one story

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a vast online library of substantive legal information, including: newsletters, practice-area specific journals and magazines, webinars and the IBA’s bi-monthly flagship magazine, IBA Global Insight;

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a number of CV-enhancing projects including serving on the Student Steering Committee, online writing and advocacy competitions, and numerous chances to have work published by the IBA.

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A conference presented by IBA Law Students and the European Law Students’ Association (ELSA)

IBA – ELSA Law Students’ Conference 2017

International Human Rights Law 4–5 November 2017, Centre for Commercial Law Studies, Queen Mary University of London, London, England The IBA-ELSA Law Students’ Conference brings together students from all levels of their legal training to engage in sessions covering substantive legal theory as well as informative vocational panels. Attending the conference provides invaluable opportunities to build connections with your fellow peers.

Topics include: • The history and overview of International Human Rights bodies • The Council of Europe and European Court of Human Rights • Death penalty and international human rights law

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ABOUT ELSA

ELSA International Phone: +32 2 646 26 26 Web: www.elsa.org E-mail: elsa@elsa.org

The Association The European Law Students’ Association, ELSA, is an international, independent, non-political and not-for-profit organisation comprised of and run by and for law students and young lawyers. Founded in 1981 by law students from Austria, Hungary, Poland and West Germany, ELSA is today the world’s largest independent law students’ association.

ELSA Members x 50,000

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Synergy Magazine Synergy Magazine is ELSA's members' magazine, which is printed in 10,000 copies and distributed all over the ELSA Network. The articles are contributions from students, young and experienced lawyers as well as academics.

ELSA International

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VISION

"A JUST WORLD IN WHICH THERE IS RESPECT FOR HUMAN DIGNITY AND CULTURAL DIVERSITY"

General Partners

ELSA’s Members ELSA’s members are internationally minded individuals who have an interest in foreign legal systems and practices. Through our activities, such as seminars, conferences, law schools, moot court competitions, legal writing, legal research and the Student Trainee Exchange Programme, our members acquire a broader cultural understanding and legal expertise.

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Our Special Status ELSA has gained a special status with several international institutions. In 2000, ELSA was granted Participatory Status with the Council of Europe. ELSA has Consultative Status with several United Nations bodies: UN ECOSOC, UNCITRAL, UNESCO & WIPO. ELSA is present in 44 countries Albania, Armenia, Austria, Azerbaijan, Belarus, Belgium, Bosnia and Herzegovina, Bulgaria, Croatia, Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Georgia, Germany, Greece, Hungary, Iceland, Ireland, Italy, Latvia, Lithuania, Luxembourg, Malta, Montenegro, the Netherlands, Norway, Poland, Portugal, Republic of Macedonia, Republic of Moldova, Romania, Russia, Serbia, Slovak Republic, Slovenia, Spain, Sweden, Switzerland, Turkey, Ukraine and the United Kingdom.

SYNERGY Magazine

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SYNERGY Magazine | 3

EDITORIAL

Krzysztof Rumpel Vice President for Marketing ELSA International 2016/2017

Sylvester Stallone ones said: "I'm always looking for a new challenge. There are a lot of mountains to climb out there.

When I run out of mountains, I'll build a new one." I believe that this is a philosophy of life ELSA members all share.

Not only eight of us moving to Brussels every July, but also all the officers and active members across the whole continent, organising projects and realising ELSA Vision.

On the pages of 62nd Synergy Magazine our Partner and our members analyse the topic of modern Populism in Europe, the threat all countries are facing or will be facing in the upcoming years. The challenge that we can only overcome together.

I am very proud to climb this mountain alongside the authors of all the great articles in this issue and to present you the Network's views, ideas, projects and plans.

Thanks to the mutual understanding of the challenges Europe and the whole worlds are facing ELSA is proud to work with our Human Rights Partner – Council of Europe. This issue of the Synergy Magazine is one of the results of this partnership.

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4 | SYNERGY Magazine

TABLE OF CONTENTS 06

HIGHLIGHTS

International Board 2017/2018

PARTNERS' AND EXTERNALS' PERSPECTIVE

08 14

Populism – how strong are Europe’s checks and balances?

8

Populism – how strong are Europe’s checks and balances?

Connecting European heritage

INTERNATIONAL FOCUS

19 21

International Legal Research Group on Labour Law ELSA Delegation to the UN ECOSOC HAS 2017

THINK GLOBAL, ACT LOCAL

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Populism, what now?

ELSA EVENTS CALENDAR

Constitutional Courts as the Fortress Against Populism?

34

28 30

Cyber war in perspective How strong are Europe’s checks and balances… If a state chooses to

ignore them?

34 40

Constitutional courts as the fortress against populism?

Can direct and democratic participation of all citizens be a solution

to Bosnian populism?

The environmental-penal Fairy Tale Moot Court by ELSA Frankfurt am Main

48

43 Internationalized Local Groups 46 The European face of the Global Challenge 48 Focusmont 48 The environmental-penal Fairy Tale Moot Court by ELSA Frankfurt am Main

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“All we have to decide is what to do with the time that is given us.”

INTERNATIONAL BOARD 2017/2018 Year after year, the elected International Boards of ELSA proudly represent the Network, not only through their undivided commitment to its work, but also by way of reflection, through the multitude of backgrounds and mindsets working together in unison towards “a just world in which there is respect for human dignity and cultural diversity.”

This is ELSA International 2017/2018, with its own unique set of differences which come together to drive the Network forward.

Anastasia Kalinina, the President of ELSA International, comes from the United Kingdom, where she graduated in law at Queen Mary University of London. Her origins go back to Russia though she lived most of her life in Cyprus. Her past is a cultural experience full of travel and adventure that has carried on to this day through ELSA. This has brought her to Brussels where for this year she will lead the International Board, coordinate their overall work and represent the Association at large.

Outside of that, a few laps in the pool, yoga or a bike ride keep her active, complemented by her love of literature and music that she takes with her to every destination.

Narmin “Nana” Aliyeva, the Secretary General of ELSA International, was born and raised in Baku, Azerbaijan.

She graduated from Baku State University in June 2015, as a Bachelor of Laws. Nana joined ELSA back in 2012 when ELSA Azerbaijan was just establishing itself as a National Group. Having contributed to the new Group’s establishment and growth, she continued her path in ELSA through the ELSA International Team for two consecutive years. finally becoming the first Azerbaijani to be elected to the International Board of ELSA. Being in charge of Internal Management of ELSA, she treats her area with passion and care, believes in its uniqueness and great mission of binding the Association by putting its pieces together. She is mostly focused on establishing a firm internal structure, cohesion of the Network and

6 | SYNERGY Magazine

further development of different dimensions under the Internal Management. Nana sees art in everything that surrounds her and had developed an increasing interest in design and music. In her free time, she takes contemporary ballet classes, creates sketches, meditates and reads classical literature.

"Money is a terrible master but an excellent servant."

Elena Maglio, the Treasurer of ELSA, is from Italy and she didn’t bring just good pizza to the board. Elena knows that budgeting and finances are not merely about money: It's about achieving our deep goals and protecting the fruits of our work and our values. She keeps this in mind all the time while hiding the key of the cashbox from everyone else. When she is not checking numbers on her laptop, she loves spending time on very original stuff such as travels, books, music. And yellow things… like money.

Krzysztof Rumpel comes from the mysterious city of Łódź in the centre of Poland. He joined ELSA in 2011 and traveled to the furthest corners of Europe to finally work for a year in the ELSA House as a Vice President for Marketing. He likes to call himself "the problem solver" even when he is the problem creator in the first place.

When he closes Photoshop and InDesign, he likes to watch a Real Madrid's game or play some video games with friends. This year he wants to finalise some ongoing discussions in his area and introduce new marketing strategies to the Network.

Kerli Kalk, Vice President for Academic Activities, is from the small north-eastern country of Estonia, where she learned to take good wi-fi and effective e-governance for granted. Since then, she has learned to direct her frustrations with ineffective systems into making the one thing she can control, the AA area, more efficient.

Most of her time in this quest is spent on organising the 6th edition of the European Human Rights Moot Court Competition and the 6th edition of the ELSA Day, in

Deniz Hatemi, Aneta Korcová, Narmin Aliyeva, Elena Maglio, Anastasia Kalinina, Michelle Goossens, Kerli Kalk, Krzysztof Rumpel addition to developing the ELSA Negotiation Competitions and Legal Research Groups. Her goal is to improve and expand the academic opportunities ELSA offers to its members. If this leaves her any spare time, she mostly spends it on thinking about food or finishing her studies at the University of Tartu.

Michelle Goossens, the Vice President for ELSA Moot Court Competitions, was born in the Netherlands but grew up in Lausanne, Switzerland. Moving back to the Netherlands for her legal studies, she first joined ELSA as a member of ELSA Tilburg. Having represented her university team in the EMC2, she became passionate about mooting, three years later leading to her being responsible for this year’s 16th edition of the ELSA Moot Court Competition on WTO Law. Her main focus this year is to create stability and a sustainable structure for the competition and those involved in it, in order to allow its growth to continue and to ensure the delivery of its academic quality.

Deniz Hatemi, the Vice President for Seminars and Conferences is from Izmir, the 3rd biggest city of Turkey, where she studied Law and met ELSA. Deniz graduated from Law Faculty in 2015 and is a lawyer in Turkey. She will be mainly responsible for ELSA Delegations, ELSA Law Schools and ELSA Webinars this year and work towards implementation of the International Focus Programme. Deniz, enjoys cooking and being around animals when she wants to relax.

Aneta Korcová, Vice President for Student Trainee Exchange Programme (STEP) was born and raised in Prague, the capital of the Czech Republic. That is where she fell in love with ELSA in the first year of her studies.

From this point onwards she dedicated her ELSA career to the STEP area. As Vice President for STEP she will be responsible for the overall coordination of ELSA´s traineeship programme. She will focus on STEP expansion and globalisation, knowledge management and communication and stabilisation of STEP in general. She loves travelling and exploring new cultures.

SYNERGY Magazine | 7

The Council of Europe’s 4th Annual Report on the State of Democracy, Human Rights and the Rule of Law

PARTNERS' & EXTERNALS' PERSPECTIVE

POPULISM – HOW STRONG ARE EUROPE’S CHECKS AND BALANCES? Günter De Schepper

Policy Advisor in the Directorate of Policy Planning Council of Europe

‘Populism’ as an expression which covers several phenomena?

“Populism” has become a fashionable term. It is increasingly used as a catch-all label for political forces and events which challenge the status quo and as an insult to discredit a wide range of political actors. This over-use is problematic: using “populism” too widely dilutes its meaning, making it difficult to identify the real populist threat facing our democracies.

While it has many different forms, populist acts, individuals and movements display some common characteristics. They tend to be anti-establishment, respond to widespread public grievances and appeal to emotions. So, however, do most politicians. Real populism goes one step further: invoking the will of “the people” in order to put itself above democratic institutions and overcome obstacles which stand in its way.

Populism damages democracy by: -

limiting debate, delegitimising dissent and reducing political pluralism;

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dismantling democratic checks and balances, including the rule of law, parliamentary authority, free media and civil society;

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undermining individual human rights and minority protections;

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challenging international checks on unrestrained state power.

The resurgence of populist politics is a particularly worrying development in Europe, given the historical context. Since the middle of the 20th century it has become broadly accepted that constitutional and parliamentary democratic systems are necessary to restrain the notion of absolute sovereignty of “the people”. The consensus has been that pluralism, inclusive debate and the protection of minority interests against aggressive majoritarianism are essential for maintaining stable societies and democratic security.

Is populism on the rise in Europe?

In Europe, populism has emerged in the mid-19th century; in Russia; the ‘Narodniki’ (народники – ‘narod’ means ‘people’) were considered as the ‘real people’ being part of the Russian middle class in the 1860s and 1870s, some of whom became involved in revolutionary agitation against tsarism. In France, the ‘poujadisme’ appeared in the late 1950’s out of nowhere but disappeared rapidly short after. Some decades later, the Front National was founded in France and became quite elitist; however, this elitism was rapidly reversed by its leader who supported strongly the power of the people by mean of slogans like “la voix du peuple”, and “we say what you think”.

The recent financial-economic recession has plaid a significant

Partners' and Externals' Perspective role in boosting populism in Europe; to date, 19 populist parties throughout Europe are – on average – on the 3rd place of the parties’ ranking in countries, with an average of 19% of the voters, and with a diversity that span the left-right political hemisphere. The reasons for the success of populist parties are multifold: -

firstly, the perception from the citizens that important issues are not (adequately) addressed by the elites.

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Secondly, the ‘elites’ are seen as being “all the same”, and the main parties are seen as having the same agendas.

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Thirdly, the people is better educated and has a higher level of “cognitive mobilisation. The media structure is much more favourable towards outsiders; some decades ago, state media had a ‘gate-keeper’ function, and didn’t need to sell as much as they do today (“chasing eyeballs”).

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Lastly, populist leaders are much more media savvy now than they used to be. Beppe Grillo had the most popular blog in Italy. HC Strache was on Facebook, and Geert Wilders was on Twitter. That alone won’t help; the established media made Trump, not Twitter

The issues taken in account by populists, are rather ‘old’, but ‘re-politicised’ accordingly; the issue on ‘death penalty’ is currently polarised by – especially – populists leaders and parties.

(Opportunistic) use of plebescitarian instruments like referendums is used to circumvent institutions; the loss of a referendum will tend to ignore the result of it. Non-majoritarian institutions - e.g. courts and the media - risk to be weakened.

Ultimately, liberal democracy can change into illiberal democracy (or even autocracy).

The Council of Europe’s response to populism On 19 May 2017, the Council of Europe Secretary General Thorbjørn Jagland presented his 4th Annual Report on “the State of Democracy, Human Rights and the Rule of Law” at the 127th Session of the Committee of Ministers of the Coun-

cil of Europe. As it was the case for the previous reports, 5 main chapters look at the key “building blocks” of democratic security: 1) efficient, impartial and independent judiciaries; 2) freedom of expression; 3) freedom of assembly and freedom of association; 4) democratic institutions and 5) inclusive societies. For 2017, this report looks into the problematic upraise of populism and its devastating effect on liberal democracy; it analyses the Council of Europe member states’ strengths and weaknesses in these areas that can be used to assess the states’ resilience to the challenges posed by populism.

With this specific focus on populism, the annual report sets out how the Council of Europe can support its member states to establish more efficient and independent judiciaries which are less vulnerable to political intrusion; strengthen national parliaments and constitutions as vital checks on the executive; enable media that is raucous and diverse and civil society that is vibrant and uninhibited; and manage migration and diversity in ways which foster respect, while guaranteeing social rights for all citizens.

Based on the results of the assessments by specific parameters for each chapter, the annual report can be considered as a momentum in its analysis of the member states’ strengths and weaknesses, and to their resilience to the challenges posed by populism.

What are the main key findings in the annual report?

1. Efficiency, impartiality and independence of the judiciaries in Europe •

Despite the fact that most Council of Europe member states have adopted legislation to ensure judicial independence and impartiality, in compliance with Council of Europe standards, problems remain in the way these standards are applied, leaving national judiciaries open to political influence and fuelling public perceptions of interference in the judicial process and bias among individual judges. In most cases the challenge is one of implementation and mindset, with rules on independence not being

SYNERGY Magazine | 9

Partners' and Externals' Perspective sufficiently respected by the wider legal community and political actors.

•

•

Excessive length of proceedings continues to generate a large number of applications to the European Court of Human Rights, accounting for over 10% of found violations in 2016. It is important to note that there have been some positive developments.

The efficiency of court proceedings has progressively improved in recent years in the member states, notably due to investments in staffing and infrastructure available to courts. There has also been improvement in the ability of national courts to process cases, with 38 member states now achieving clearance rate of over 95% for criminal cases.

Legal certainty continues to be an issue in several member states. This is due either to retroactive application of legislation, in particular in the criminal field, or to the inconsistent or imprecise practice of domestic courts, posing a risk of arbitrariness or of individuals being unable to foresee the consequences of their actions.

idence of increased self-censorship, exacerbated in some states by job insecurity, with parts of the media industry under significant financial pressure.

•

3) Protection of the rights to freedom of assembly and association •

Opportunities for peaceful protest are limited where public assemblies are subject to undue restrictions, including in countries with long-standing democratic traditions. This problem has been exacerbated by measures taken in connection with the fight against terrorism. There are examples of NGOs, protesters and other civil society groups being required to seek de facto authorisation for public gatherings. This is incompatible with Council of Europe standards.

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In most member states, the rights to freedom of assembly and association necessary for a vibrant civil society as an essential check on power, are guaranteed by law, in compliance with Council of Europe standards. However, significant challenges persist in terms of the implementation of these laws.

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In some countries, NGOs are effectively prevented from carrying out their work by legal and regulatory obstacles to their creation, activities and funding, including cumbersome and lengthy registration procedures, excessive administrative requirements and obstacles to accessing financial resources, particularly foreign funding.

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In the last few years a few countries have seen a continuous deterioration in the environment in which NGOs operate, through stigmatisation, smear campaigns and judicial, administrative or fiscal harassment. The NGOs targeted are mostly those active in the field of human rights protection, promoting accountable governance or fighting corruption. Some national laws provide for the blanket de-registration of NGOs, their dissolution or their qualification as “undesirable”.

2) The robustness of the freedom of expression across member states •

•

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Recent years have seen a decline in protections for journalists. This trend continues. Twenty-eight member states do not sufficiently protect journalists against violence and threats. In 17 member states conditions which were previously considered satisfactory are now threatened by rising reports of physical attacks and threats. In 2016, the Council of Europe’s Platform to promote the protection of journalism and safety of journalists recorded 133 cases of alleged threats in 29 member states.

Some 36 out of 47 member states still consider some form of defamation a criminal offence and in 29 member states it can be sanctioned by imprisonment. The arbitrary application of criminal law to limit freedom of expression remains problematic in over a half of our member states. Most member states are experiencing a decline in editorial independence, hindering the watchdog role of the media and limiting plurality. The majority do not have sufficiently strong regulatory safeguards in place to ensure independence and media are often used by politicians, the government, commercial and private powers to reinforce particular political and economic agendas.

These trends are having a chilling effect on media freedom and undermining pluralism. There is ev-

10 | SYNERGY Magazine

The rise of “fake news” is of major concern for Council of Europe member states, including the mass dissemination of deliberately misleading information online and its impact on the political process and community relations.

4) Functioning of the member states’ democratic institutions •

The 2016 political climate was characterised by an increased populist rhetoric in political discourse accompanied, sometimes, by growing electoral support for political parties or movements expressing populist views.

Partners' and Externals' Perspective •

In several member states, the primacy of international law over national law has been challenged, leading to de facto questioning of the application of judgments of the European Court of Human Rights in the domestic legal systems.

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Surveillance of citizens by state security services poses growing problems for the protection of human rights. While some degree of surveillance is necessary to ensure security, notably in the fight against terrorism, it must be proportionate and subject to appropriate democratic oversight. The European Court of Human Rights is dealing with a growing number of cases in which national legislation is challenged for insufficient human rights safeguards.

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Elections held in Europe in 2016 were broadly considered to have been conducted in line with formal democratic standards. In a few countries, there were reports on issues such as unequal access to media for electoral candidates, disrespect for campaign financial regulations, lack of effective sanctions for electoral violations and inaccuracy of voters’ lists.

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Across Council of Europe member states the integrity of the electoral processes is facing new challenges, notably through the use of new information technologies. A growing number of member states have experienced or fear an increase in targeted misinformation on the internet during electoral periods and referendum campaigns, as well as cyber-attacks and the hacking of their electoral systems.

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Decentralisation reforms continued in 2016, notably in south-eastern, eastern and southern Europe, however the inadequacy of resources available to local authorities to exercise their powers remains a recurring problem in most member states.

5) The inclusiveness of Europe’s societies • Comprehensive anti-discrimination laws are required to combat racism, discrimination and intolerance, yet significant legislative and institutional gaps remain in the majority of Council of Europe member states.

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Several countries lack an independent complaints body capable of dealing with allegations of discrimination in both the private and public sectors. Where there is a specialised body to combat discrimination, it is often dysfunctional or lacks independence, authority, or a clear mandate.

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In 2016 the European Committee of Social Rights found 166 cases of non-conformity with the Re-

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Partners' and Externals' Perspective vised Social Charter – out of 516 cases examined in 34 member states. Its conclusions pointed to serious weaknesses in protection against discrimination on employment, insufficient integration of persons of disabilities in mainstream education and the labour market and weak guarantees of equal rights between men and women in particular with regard to equal pay. The number of collective complaints to the committee more than tripled to 21 compared to six complaints in 2015. Issues raised concerned the right to work, the gender pay gap, the right to equal opportunities and treatment in employment and occupation without gender discrimination.

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Managing mass migration while respecting human rights obligations is proving to be a major challenge.

In many instances, migrants, particularly irregularly present migrants, have had their basic rights denied or curtailed. Some member states have closed their borders with refugee-generating countries. The principle of non-refoulement is not always respected. Some member states have responded to the mass arrivals of refugees and migrants by resorting to the wide use of administrative detention.

Praiseworthy efforts have been made in Turkey, Italy, Greece, “the former Yugoslav Republic of Macedonia” and other member states to provide migrants amassed in border areas or cities with proper accommodation. However, living conditions in many official camps remain below standard, while refugees and migrants outside the formal accommodation system often receive very little care, if any at all.

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There are grave concerns about the treatment of the high number of unaccompanied minors. Many refugee and migrant children receive no or inadequate education; many are at risk of trafficking, abuse and exploitation.

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Hate speech has been identified as prevalent across many member states. Most member states now have legislation against incitement to hate speech in criminal law. However, such provisions are rarely invoked in practice, often because they are difficult to apply or because prosecutors and judges lack expertise.

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Anti-Muslim hate speech on social networks has reached unprecedented levels. Individual Muslims are attacked and verbally abused. The vilification of Muslims and their religion has become a part of the mainstream public discourse in some countries.

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The Council of Europe proposals for action to combat populism The Council of Europe, with the active support of its 47 member states, can play a constructive role in reversing negative trends in Europe’s democracies in order to enhance their resilience to populism. To achieve this, collective action is needed on three fronts.

First, in these highly challenging times for Europe and the Convention system, member states should take an active stand in upholding the standards and values of the European Convention on Human Rights (hereafter “the Convention”), and in particular supporting the European Court of Human Rights (hereafter the “Court”). The Court’s timely and efficient handling of priority cases is essential, as is the expeditious execution of judgments by member states.

Second, all previous reports from the Secretary General have included recommendations aimed at strengthening member states’ democratic institutions and practices: independent judiciaries, free media, vibrant civil society, functioning democratic institutions and inclusive societies. Particular attention has been paid to areas where worrying decline has been identified.

Important progress has been made. However, implementing these recommendations, many of which address the functioning of states’ institutions, requires a continuous effort. As new and additional steps are taken it is therefore equally important that the application of the key recommendations included in the 2014, 2015 and 2016 reports is accelerated and consolidated, notably through: -

vigorous implementation of the Council of Europe Action Plan on the Independence and Impartiality of the Judiciary;

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a zero-tolerance approach to all forms of xenophobia and discrimination;

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sustained support for the Council of Europe Platform

Partners' and Externals' Perspective to promote the protection of journalism and safety of journalists, including with regard to following up alerts; -

protecting minority rights, including through the successful implementation of the Thematic Action Plan on the Inclusion of Roma and Travellers (20162019);

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safeguarding social rights as guaranteed by the European Social Charter, as well as in the conclusions and decisions of the European Committee on Social Rights (ECSR);

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strengthening the exercise of freedom of assembly and freedom of association in national legislation and practice.

Third, this report reveals a number of specific problems which should be expressly addressed through the following actions.

1) Support integration and inclusive societies • The Europe-wide project on democratic citizenship education should be implemented as a priority. Other initiatives outlined in the Council of Europe Action Plan on Building Inclusive Societies will also be actively implemented.

2) Challenge the populist narrative • The Parliamentary Assembly should initiate a broad political consultation at European level, including with the European Parliament, on how to respond to the populist challenge to democracy. National delegations should be encouraged to set the issue high on the agenda in their respective parliaments.

• The Congress of Local and Regional Authorities will focus on the issue of populism during the European Local Democracy Week (9 to 15 October 2017) which involves events in over 120 municipalities in 30 member states.

• The International Ombudsman Institute, in co-operation with local partners, will organise an event entitled “Populism, regression of rights and the role of the ombudsperson” in Barcelona in April 2017.

Similar events should be organised throughout Europe in 2017 and 2018 at the initiative of national human rights institutions and in co-operation with the Council of Europe.

3) Protect freedom of expression and tackle misinformation • In 2017, at the initiative of the Secretary General, the Council of Europe will bring together the 10 partner organisations of the Platform to promote the protec-

tion of journalism and safety of journalists in an effort to identify possible solutions to the difficulties faced by journalism today and the “fake news” phenomenon. Major internet companies will also be included in the dialogue as far as “fake news” is concerned. The recommendations put forward in these discussions will be reflected in the Council of Europe’s activities.

4) Support the successful integration of migrants and refugees • Activities of the Secretary General’s Special Representative on Migration should be vigorously supported, in particular the new Action Plan on Migrant Children to be adopted at the Council of Europe ministerial meeting in Nicosia in May. 5) Combat hate speech, xenophobia and discrimination • Based on the judgments of the Court and the findings of the ECSR and the European Commission against Racism and Intolerance (ECRI), as well as the work of the Intercultural Cities Network, the Council of Europe will initiate new Europe-wide projects to help combat xenophobia and discrimination with a particular focus on Islamophobia, in co-operation with relevant non-governmental organisations, equality bodies and national human rights institutions.

• Country-specific activities, based notably on the findings of ECRI and the No Hate Speech Movement, will be developed to tackle the most extreme forms of hate speech through criminal law and promote additional measures that are needed to eradicate hate speech, such as greater self-regulation by the media and the internet industry.

Will these actions eradicate populism?

It is clear that the above mentioned actions will contribute in combatting populist discourse, at least in Europe. However, populism is a phenomenon which is spread out worldwide, and it will be difficult to eradicate it in a short, medium and even long term.

For Europe, the Council of Europe is determined to help its members grip this challenge. With the above mentioned proposals for action, the annual report sets out how member states can be supported in order to establish more efficient and independent judiciaries which are less vulnerable to political intrusion; strengthen national parliaments and constitutions as vital checks on the executive; enable media that is raucous and diverse and civil society that is vibrant and uninhibited; and manage migration and diversity in ways which foster respect, while guaranteeing social rights for all citizens. ▪

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Partners' and Externals' Perspective

30 Years of cultural routes of the Council of Europe

CONNECTING EUROPEAN HERITAGE Stefano Dominioni

Executive Secretary, Enlarged Partial Agreement on Cultural Routes of the Council of Europe (EPA) Director, European Institute of Cultural Routes (EICR)

Laura Ligazzolo

European Institute of Cultural Routes (EICR)

PAST AND PRESENT OF THE CULTURAL ROUTES OF THE COUNCIL OF EUROPE

“May the faith which has inspired pilgrims throughout history, uniting them in a common aspiration and transcending national differences and interests, inspire us today, and young people in particular, to travel along these routes in order to build a society founded on tolerance, respect for others, freedom and solidarity”1. This wording of the Santiago 1 Santiago De Compostela Declaration, 23 October 1987. Available at

http://culture-routes.net/sites/default/files/files/1987_COMPOSTELA_DECLARATION.pdf .

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de Compostela Declaration marks the launching of the Cultural Routes of the Council of Europe programme in 1987, recognising the St. James’ Ways as the first Cultural Route of the Council of Europe. Since then, the Cultural Routes of the Council of Europe have been promoting Europe’s cultural heritage and diversity, making it accessible to all Europeans, providing spaces for intercultural dialogue, fostering local sustainable development.

This year the Programme celebrates its thirtieth anniversary. Established in a Europe divided by political and ideological cleavages, the Cultural Routes of the Council of Europe provided a strong message for deeper European integration, and cultural-co-operation. Today, the programme of the Cultural Routes maintains all its relevance as a powerful tool for promoting democratic citizenship and intercultural dialogue –in line with the core values of the Council of Europe: human right, democracy and the rule of law.

A HOLISTIC UNDERSTANDING OF CULTURE AND HERITAGE

The Cultural Routes of the Council of Europe are

Partners' and Externals' Perspective grounded in a holistic understanding of the concepts of culture and heritage. As first described in the “European Cultural Convention”2, heritage encompasses the various aspects making up the culture and the territory, as well as the meaning and use that people attach to them. Heritage stands in both its tangible and intangible manifestations3, material and immaterial cultural products which should not only be preserved, but also revitalised and promoted, for present and future generations. This holistic understanding of cultural heritage is at the heart of the Cultural Routes programme and has been reaffirmed over the years by several Council of Europe Conventions, including the “European Landscape Convention”4, the “Convention for the Protection of the Architectural Heritage of Europe”5, by the “European Convention on the Protection of the Archaeological Heritage”6 and most recently by the “Council of Europe Framework Convention on the Value of Cultural Heritage for Society” (The “Faro Convention”)7.

with a transnational importance and significance whose historical, artistic or social interest is patently European”8. Hence, Cultural Routes are not to be understood as physical pathways, but also as journeys across space and time, demonstrating that the heritage and cultures of different regions and peoples in Europe make up a shared heritage. This aim goes hand in hand with the commitment formulated in the FARO Convention, i.e. to “develop knowledge of cultural heritage as a resource to facilitate peaceful co-existence by promoting trust and mutual understanding with a view to resolution and prevention of conflicts”9.

BUILDING A CULTURAL ROUTE OF THE COUNCIL OF EUROPE: A CLOSER LOOK

The Cultural Routes of the Council of Europe aim at putting into practice this understanding of culture and heritage in a European, transnational perspective. A Cultural Route is in fact defined by the Council of Europe as “a cultural, educational heritage and tourism co-operation project aiming at the development and promotion of an itinerary or a series of itineraries based on a historic route, a cultural concept, figure or phenomenon 2 European Cultural Convention, ETS No.018, opened for signature on 19 December 1954, entered into force on 5 May 1955. Available at http://www. coe.int/en/web/conventions/full-list/-/conventions/treaty/018 .

3 As the FARO Convention states “cultural heritage is a group of resources inherited from the past which people identify, independently of ownership, as a reflection and expression of their constantly evolving values, beliefs, knowledge and traditions. It includes all aspects of the environment resulting from the interaction between people and places through time” (Council of Europe Framework Convention on the Value of Cultural Heritage for Society, CETS No.199, opened for signature on 27 October 2005 in Faro, entered into force on 1 June 2011. Available at http://www.coe.int/en/web/conventions/full-list/-/ conventions/rms/0900001680083746).

4 European Landscape Convention, ETS No.176, opened for signature on 20 October 2000, entered into force on 1 March 2004. Available at http:// www.coe.int/en/web/conventions/full-list/-/conventions/treaty/176 .

5 Convention for the Protection of the Architectural Heritage of Europe, ETS No.121, opened for signature on 3 October 1985, entered into force on 1 December 1987. Available at https://www.coe.int/en/web/conventions/fulllist/-/conventions/treaty/121 .

6 European Convention on the Protection of the Archaeological Heritage (Revised), ETS No.143, opened for signature on 16 January 1992,entered into force on 25 May 1995. Available at https://www.coe.int/en/web/conventions/ full-list/-/conventions/treaty/143 .

7 Council of Europe Framework Convention on the Value of Cultural Heritage for Society .

As of 2017, there are 31 certified Council of Europe Cultural Routes, which cover varied themes of European memory, history and heritage and contribute to interpretation of the diversity of present-day Europe. Multiple and various are the topics of culture and heritage the Cultural Routes of the Council of Europe represent, stretching from the art of early Europeans to Art Nouveau, from the Vikings to the Hanseatic leagues of cities, from the craft of ceramics to the iron-making tradition, from the Cluniac sites to historic thermal towns, from the life of Napoleon and W.A. Mozart to the literary work of R. L. Stevenson, to mention but a few. Beyond the varied themes developed, a unifying factor among all Cultural Routes of the Council of Europe, is represented by the aim of all routes to encourage European citizens to discover their heritage across Europe and beyond. As a matter of fact, over 50 countries are represented in the implementation of the programme, including all mem8 Appendix to Resolution CM/Res(2013)66 Revised Statute of the Enlarged Partial Agreement on Cultural Routes, adopted by the Committee of Ministers on 18 December 2013. Available at http://culture-routes.net/sites/default/files/ files/CMRes(2013)66E.pdf .

9 Council of Europe Framework Convention on the Value of Cultural Heritage for Society .

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Partners' and Externals' Perspective responsible for conducting a thorough evaluation, as well as the European Institute of Cultural Routes, and the Governing Board of the Enlarged Partial Agreement on Cultural Routes (EPA) responsible for awarding the certification “Cultural Route of the Council of Europe”.

ber States of the Council of Europe, but also some third countries10.

Cultural routes are not ordinary touristic itineraries. In order to obtain the certification “Cultural Routes of the Council of Europe”, itineraries have to commit to the Programme’s mission and satisfy specific requirements.

Following their certification by the Council of Europe, these Cultural Routes undergo a rigorous 3-year regular evaluation11. The eligibility criteria, for the themes, for the fields of action and for the networks managing each cultural route, have been established by a Resolution Res/ (2013)67 of the Committee of Ministers of the Council of Europe. According to this Resolution, cultural routes projects have to fulfil the following criteria: 1. address a theme representative of European values and common to at least three countries in Europe; 2. Be the subject of transnational, multidisciplinary scientific research; 3.

Enhance European memory, history and heritage, contributing in this way to the interpretation of Europe’s present-day diversity; 4. Support cultural and educational exchanges for young people; 5. Develop innovative and exemplary projects in the field of cultural tourism and sustainable cultural development; 6. Develop tourism products targeting different groups. Moreover, to obtain certification, the responsible network initiating a cultural routes project needs to establish a legal association and carry out activities involving its various members along the cultural route. The certification process involves different actors, in particular, external independent experts 10 This aspect is particularly relevant, as it enables the implementation of

Council of Europe values beyond its geographical borders.

11 At the occasion of the certification process, as well as during the regular evaluation cycle, to which certified cultural routes undergo every three years.

The regular evaluation cycle is meant to verify the continuous fulfilment of the criteria, thus to confirm or remove the certification.

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In order to oversee the implementation of the Cultural Routes programme, the Council of Europe established in 2010 the Enlarged Partial Agreement on Cultural Routes (EPA) (www.coe.int/routes). The EPA set out the strategic priorities of the programme and awards the Cultural Routes certification. The EPA is composed of a group of States12, represented by their Ministries of Culture and/or Tourism, all committed to foster the interdisciplinary collaboration among stakeholders and institutions, and involved with the Cultural Routes, to provide financial and political support for local, regional and national initiatives to promote culture and tourism.

Among the various partnerships, a long-term cooperation has been established with the European Parliament, with the European Commission, as well as with the UN World Tourism Organisation, the European travel Commission and UNESCO. The European Institute of Cultural Routes (EICR) was established in 1998, through an agreement between the Council of Europe and the Grand Duchy of Luxem-

12 As of July 2017, 29 Council of Europe member States are members of

the EPA: Andorra, Armenia, Austria, Azerbaijan, Bosnia and Herzegovina, Bulgaria, Croatia, Cyprus, France, Finland, Georgia, Germany, Greece, Hungary, Italy, Lithuania, Luxembourg, Monaco, Montenegro, Norway, Poland, Portugal, Romania, Russian Federation, Serbia, Slovak Republic, Slovenia, Spain, Switzerland. The EPA is open also to non-member States of the Council of Europe and Observers, including the European Commission, the European Parliament, UNWTO and UNESCO. Its headquarters are located at the EICR in Luxembourg.

Partners' and Externals' Perspective bourg13, to serve as a Council of Europe technical and specialized agency for the promotion of the programme (www.culture-routes.net). The EICR, whose premises are located at the Abbey of Neumünster in Luxembourg (also hosting the Headquarters of the EPA), is not only involved in monitoring and evaluation of Cultural Routes, but also advises the projects and the certified itineraries, coordinates a network of university and research centres, hosts a dedicated library, documenting the thirty-years history of the programme, and administers regular training for Cultural Routes operators and managers.

THE UNIQUENESS OF THE CULTURAL ROUTES

Cultural routes are not ordinary touristic itineraries.

Various features, characterising the programme and the routes themselves, demonstrate their uniqueness and highlight their outstanding value as tools for European cultural co-operation, for the protection and promotion of European cultural heritage and local sustainable development. Among these features, it is worth reminding of the programme governance and its transnational network structure. As a matter of fact, the programme of the cultural routes benefits from the cooperation of different stakeholders, ranging from local and regional authorities, to national ministries of Culture and of Tourism, to universities and research centres, to international organisations.

A unique feature of Cultural Routes is represented by their focus on the educational significance of cultural tourism. Travelling along the certified itineraries offers in fact the chance to learn about European history, heritage and landscape, thus strengthening European shared 13 Ministry for Culture, Higher Education and Research of the Grand Duchy of Luxembourg.

citizenship. Emblematic in this view is for instance the Cultural Route ATRIUM, the itinerary dedicated to 20th century totalitarian regimes architecture, with their built heritage as a tangible evidence of an uncomfortable heritage across so many European cities and regions. Exploring this architecture is indeed a way to raise citizens’ awareness and understanding of Europe’s recent past, to further strength European citizenship and identity.

A further crucial aspect characterizing the Cultural Routes is their commitment to fostering cultural tourism as engine of sustainable, local development, especially for local SMEs. It is in fact of paramount importance that cultural routes cross not only well-known tourism destinations, but also, many sites off-the-beaten track. This recalls the Recommendation of the Committee of Ministers of the Council of Europe on the promotion of tourism to foster cultural heritage as factor for sustainable development14, as well as the Resolution of the Congress of Local and Regional Authorities of the Council of Europe on the promotion of cultural tourism as a factor for development of the regions, which stresses the need to offer “tourists as diversified touristic experiences as possible; (…) in addition to the more traditional sites, such as archaeological sites, churches, castles and museums, 14 As pointed out by the Recommendation, “cultural heritage, is in itself, a

unique and irreplaceable asset and (…) its conservation is part of the process of sustainable development”, moreover, “sustainable cultural tourism is a factor for economic, social and cultural development for the benefit of local communities through the development of quality products and services”. Recommendation Rec(2003)1 of the Committee of Ministers to member states on the promotion of tourism to foster the cultural heritage as a factor for sustainable development, adopted by the Committee of Ministers on 15 January 2003.

Available at https://rm.coe.int/16805e115f .

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Partners' and Externals' Perspective visits based on regional gastronomic traditions, regional rural or industrial produce”15.

A good practice in this area is represented by the Routes of the Olive Tree. Valuing the landscape and civilisation of the olive tree proves in fact to serve as gateway to new forms of cooperation among remote areas, effectively revitalising the cultural and heritage activities of various actors involved in the local exploitation of olive tree economy. Another relevant example in this view is provided

by Iter Vitis Route, a Cultural Route which also proves its role as promoter of experiential tourism, an authentic and comprehensive touristic exposure to the complex system revolving around the vinery, its local cultures and traditions.

Cultural Routes are also excellent models for creating bridges between the protection of heritage and cultural creativity and innovation. In this regard, the Cluniac Sites provide a noticeable example, with reference to the advanced techniques of 3D modelling of lost heritage employed and of the modern digital tools (e.g. Apps) used for dissemination. TRANSROMANICA also features many good examples in this area. Cultural Routes are remarkable because of their effective way of valuing heritage and culture as unifying topics, merging distances and connecting people with different backgrounds.

15 Resolution 185 (2004) of the Congress on the promotion of cultural

tourism as a factor of development of the regions, Debated and approved by the Chamber of Regions on 25 May 2004 and adopted by the Standing Committee of the Congress on 27 May 2004. Available at https://rm.coe. int/1680718e67 .

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In this regard, some relevant examples are the VIA REGIA, i.e. the oldest and longest road linking Eastern and Western Europe, as well as the Routes of El Legado of Andalusi, i.e. the itinerary dedicated to Spanish-Muslim civilisation. This reflection paves the way for a further remark relating to the cultural routes role as channels of intercultural and interreligious dialogue, which the Saint Martin of Tours Route, the Route of Saint Olav Ways, the Huguenot and Waldesian trail and the European Route of Jewish Heritage so well illustrate. Last, but not least, is the potential of Cultural Routes for promoting European uniqueness as cultural tourism destination, as exemplified by the European Mozart Ways, as well as by the Réseau Art Nouveau Network, and several other Cultural Routes.

CONCLUSION

Since 1987, the Cultural Routes of the Council of Europe promote the transnational dimension of European heritage, cultural co-operation and tourism. Cultural Routes support authentic, sustainable and participative cultural networks of shared values, in a spirit of dialogue and respect of European identity and diversity. In today’s Europe, the significance of the Cultural Routes programme of the Council of Europe is more relevant than ever. Stressing the need to overcome new stereotypes and new forms of discrimination and exclusion, the Cultural Routes remind us of the fundamental role of shared European values, cultural diversity and intercultural dialogue. ▪

ELSA contributing to the international community of policy and law makers in the field of occupational safety and health (OSH)

INTERNATIONAL FOCUS

INTERNATIONAL LEGAL RESEARCH GROUP ON LABOUR LAW Tzvetomira Radoslavova

Jakub Čája

Technical Officer on OSH Legislation LABADMIN/OSH Branch, ILO

Vice-President for Academic Activities ELSA International 2016/2017

Occupational safety and health (OSH) legislation is often described as a complex mosaic of legal requirements pertaining to various branches of law: primary labour law but also public health law, sector/industry specific laws, and even criminal law. Not surprisingly, there has been

great demand at the international level, for an information system that assembles OSH related provisions across countries in an organised way.

In response to this growing demand, and in support of constituents' efforts to ensure safe and healthy workplaces - particularly through OSH legislation - the ILO launched in June 2014 the first Global Database on Occupational Safety and Health Legislation (LEGOSH)1.

The database compiles a wealth of information on OSH legislation and provides an overview of current national legislative requirements around the world. One of its purposes is to support the international community of law and policy makers in the field of OSH by providing them with the opportunity to learn from more advanced legal OSH frameworks. LEGOSH is a source of information and inspiration for those involved in the legislative process such as governmental officials, social partners, technical experts and civil society.

The database is also a useful tool for students and researchers seeking to deepen their knowledge, workers wanting to become acquainted with their rights, companies wishing to learn about the applicable legal requirements in new markets as well as anyone looking for information on OSH laws and regulations in a given country.

Furthermore LEGOSH can also be used as an instrument 1 www.ilo.org/legosh

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Partners' and Externals' Perspective contribute to the expansion of the coverage of LEGOSH. The common mission of both the ILO and ELSA to advance human and labour rights set up the basis for them to cooperate by launching the International Legal Research Group on Labour Law with the specialisation on Occupational Safety and Health legislation in March 2016.

After organising many Legal Research Groups and researching various topics related to Human Rights, the unique cooperation with ILO, in regards to its both legal content and the outcomes produced was highly appreciated by ELSA members.

for monitoring the development of legal instruments worldwide, mapping trends and keeping track of how the legislation evolves, allowing for longitudinal studies.

In the endeavour to ensure a sustainable update and further expansion of the country coverage of LEGOSH, the responsible ILO technical unit– The Labour Administration, Labour Inspection and Occupational Safety and Health Branch (LABADMIN/OSH) initiated an innovative strategy to collect and analyse relevant data based on international collaboration. Through this collaborative effort, governmental officials, OSH practitioners and academics contribute on a voluntary basis to enrich the content of the tool. As a consequence, the platform has experienced significant growth both in country coverage and in updates of existing data. As of May 2017, LEGOSH covers 130+ countries.

In its search for collaborators willing to provide pro bono expertise, LABADMIN/OSH identified ELSA as a potential contributor due to its well established structure, many years of experience in successfully organising Legal Research Groups, strong interest in Human Rights, and large network of law students and young legal professionals.

On the other hand, ELSA’s commitment to Human Rights and a desire to support the international legal community have been the main reasons for ELSA to dedicate its members to research OSH legislation and to

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Indeed, the ELSA-LABADMIN/OSH collaboration on LEGOSH has proved to be a win-win. After a year of hard work done by the Research Teams from 7 ELSA National Group, a Final Report of a length of 522 pages2 was officially published by ELSA and LEGOSH coverage was expanded to include data for seven additional European countries. Moreover, participating ELSA members benefitted from this opportunity to deepen their knowledge on labour law, and on OSH legislation specifically, to gain valuable experience in legal research and analysis, and to learn about the mission and work of the ILO. They have been publicly acknowledged on the ILO’s website3 for their precious contribution.

We believe that t he success of this experience establishes a fertile basis for further worthwhile cooperation between ELSA and the ILO. “I would like to thank ELSA for the effective organization of the Legal Research Group on OSH Legislation. This team of remarkably dedicated, skilled and dynamic young scholars, passionate about law and development, has demonstrated a high level of commitment, professionalism and integrity. It is my hope that we will have more opportunities for fruitful cooperation.” ▪ Disclaimer: The views expressed herein are those of the author and do not necessarily reflect the views of the International Labour Organization. Reference to national legislation, guides and practices does not imply their endorsement by the International Labour Organization.

2 https://files.elsa.org/AA/LRG_Labour_Law_FR.pdf 3 http://www.ilo.org/safework/info/publications/WCMS_244375/ lang--en/index.htm

Partners' and Externals' Perspective

“Restoring Humanity and Leaving No-one Behind: Working together to reduce people’s humanitarian need, risk and vulnerability”

ELSA DELEGATION TO THE UN ECOSOC HAS 2017 Tanya Gärtner

Secretary General 2016/2017 ELSA-Dresden e.V.

The United Nations Economic and Social Council (ECOSOC) is one of the six principal United Nations organs and is dedicated to coordinating and overseeing the economic, social, environmental and also humanitarian endeavours of its functional and regional commissions, specialized agencies and related entities. Specifically, it serves as a platform for discourse on relevant and current issues, formulating policy recommendations addressed to Member States and the UNO as well as implementation of internationally agreed goals.

The Humanitarian Affairs Segment (HAS) takes place annually, alternating between New York and Geneva and has the purpose of improving and strengthening the United Nation’s humanitarian work. From the 21st until the 23rd of June 2017, four law students representing ELSA The United Kingdom, ELSA Norway, ELSA Ukraine and, myself, ELSA Germany, were able to observe and take part in the HAS’ high-level discussions concerning today's most dire humanitarian situations.

Our ELSA International Delegation fist walked through Pregny Gate at the infamous Palais de Nations in Geneva to participate in the official reception hosted by Germany with new accreditation badges hanging around our

necks and dangling with the spring in our step. The event revolved around a photographic exhibition by German photographer Herlinde Koelbl. Her work eloquently showed the everyday lives of refugees. Pictures of shoes, hairbrushes, family photographs and children’s toys reminded us all of the importance of what was to be discussed, evaluated and decided during the following days.

This very sentiment was also vocalised by Vice President of the Humanitarian Affairs Segment, Ambassador Jürgen Schulz, Deputy Permanent Representative of Germany to the United Nations, during the opening session of the segment. Under-Secretary-General for Humanitarian Affairs and Emergency Relief Coordinator Stephen O’Brien delineated the context of before standing challenges: currently, more than 141 million people across 37 countries are in need of humanitarian assistance and protection. Together, they would make up the world’s tenth largest country. An estimated US$23.5 billion are needed to support the most vulnerable 101.2 million of these people.

Further procedure and working methods proved the segment to be a lively, communicative and dynamic entity. Especially statements by NGOs and Member States, SYNERGY Magazine | 21

Partners' and Externals' Perspective

delivered in engaging debate, shattered conceivable stereotypes of bureaucracy and red tape hindering the effectiveness of the United Nations. This was confirmed by talkative delegates, engaging enough to share their experiences while waiting in line to satisfy the ever-present need for caffeine. I was lucky enough to speak with the representative of the Republic of South Africa, who let me in on the inside perspective of how she conducts her work and how she came to be a delegate. Not surprisingly, it all began with studying law…

Furthermore, United Nations interns were also interesting conversationalists. Hailing from all corners of the globe, they particularized their professional introduction to the United Nations – a feat not to be underestimated.

It was evident that we all shared an equal passion and, perhaps most instigating, curiosity for international relations. Assembled in the observer’s area, we made rigour use of the interpreters’ earphones and were collectively grateful for not having only a limited amount of time to witness the proceedings, such as the tourists, frequently passing by the spectators’ windows above our heads.

High-level panel A discussed reaching people in need and promoting respect for international Humanitarian Law and the humanitarian principles. It was established that compliance with these entities is vital to ensure that civilians receive the humanitarian assistance they need. Based on this, the session debated measures that could be taken to guarantee that humanitarian personnel and objects are respected and protected, and relief operations are carried out without unnecessary or unlawful hindrances.

Local military soldiers and other officials should be engaged in humanitarian operations and Humanitarian Law, and its principles made accessible to all. Its implementation encouraged by, for example, video games that deduct points if the player does not allow ambulances through military check-points.

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One of the approximately 20 side events focussed on localising humanitarian assistance and empowering local actors. By method of better financing partnerships and capacity building, local actors in crisis situations should have adequate decision-making power, as they have the best understanding of the determining environmental, social and economic factors. Unfortunately, this is often not the case, as was stated by Dr. Jemilah Mahmood of the IFRC. Resultantly, the main objective should be to configure humanitarian assistance as local as possible and as international as necessary.

The closing segment culminated in action on the draft resolution on strengthening of the coordination of emergency humanitarian assistance of the United Nations – E/2017/L.24.

With its adoption came the end to an extremely enriching and eye-opening experience. Perceiving all facets of a conference such as the UN ECOSO HAS simply cannot be substituted by print, audio-visual or any other type of media, and I encourage all law students and ELSA members to wander inside the walls of international and intergovernmental institutions.

“If everything is populism, populism is nothing”

T H I N K G LO BA L , ACT LOCAL

POPULISM, WHAT NOW?

Thomas Baetens

Vice President for Marketing ELSA Belgium 2016/2017

Populism, it’s everywhere. Politicians are concerned and people confused. What is populism? Is it a problem? If yes, why? What can we do about it and what is being done? Or all in one question: what are Europe’s checks and balances when it comes to populism? Simple questions, but very complex answers. Nevertheless, I will try to provide an insight.

Before analyzing the effects of populism, populism has to be defined. There are many interpretations, but some elements come back in every definition. We can say that populists don’t feel connected to politicians anymore.

They are against the system of a representative democracy and even against the whole establishment. They also feel like they speak on behalf of the people. Populists use emotions to persuade instead of reason. And it works.

who feel left behind and don’t want to watch helplessly as nothing changes. Despite what a lot of people think, you can’t just identify populists by their political party.

Populists are spread within political parties. Usually they are part of extreme right or left parties, but then again, they can also be member of other parties as well. Therefore, you can’t exclude any political party from political negotiations.

Typical of populists is the love they bear for their own country. Nationalism. Europe is part of the establishment and every European regulation or action is wrong. That’s

Populism is strongly growing and the worst thing about it is, we have no idea how big it is. They are only a few who would call themselves real populists, while a lot of people actually are. One of the main reasons is the difficulty of the term. People can have similar ideas, but not many identify themselves with the term of populism.

That’s why the problem isn’t populism. The problem are the people behind the term, the millions of people SYNERGY Magazine | 23

Think Global, Act Local why it is generally known that Europe is a threat for populism and populism a threat for Europe. Yet, we should stop using the term ‘threat’ for this end, as terrorism is a threat, populism is on the other hand is problematic.

We ought not to forget that people who protest, make petitions and have extreme thoughts are only against the democracy in its current form. Populists are still part of democracy and expressing their opinion is part of the freedom of speech as long as no violence accompanies it.

Yet, this depends on the definition of democracy. Populism can be interpreted as anti-democratic since they believe they are speaking on behalf of the people, when in reality this is not the case. Personally, I consider populism as part of democracy since I believe they would like to have a direct democracy and not a dictatorship for example so they would have an immediate impact on the policy making.

Since populism is problematic for Europe, action is necessary if we would like to continue with the European project. We should strive to support and enrich populists in the hope to change their minds. If we act too negatively, we would only push them further away. That’s why we should reconcile and be open minded in order to understand their concerns. They should be included more in the way of thinking, just like every other civilian. Send out a positive message about democratic values, their importance and their consequences in society.

Information and communication are the key. Beside the

24 | SYNERGY Magazine

measures against populism, the discussion about populism and usage of the term should decrease. The more people see it in the media, the more people may identify themselves with populists.

The current position of the Council of Europe is to fight populism. It is remarkable that in the report of the CoE and summarised in the speech of its Secretary General early 2017 they address the problems of the EU. Populists respond to the real and genuine concerns of the “ordinary” people and that’s why Europe should to the same. Thorbjorn Jagland put it in a beautiful way: “We need to show that our way – our democratic and internationalist way – helps these people and materially improves our citizens’ lives.” The concept is right; the execution is deficient and that’s why it’s not working out. Theory does not meet practice, like usual. A good example is the already mentioned speech. The problems and solutions given concern fake news, migration and terrorism. The problems that Europe has always had in the past years, with or without populism.

To satisfy populists, we must think like populists. Europe is focusing on problems of a bigger scale, yet this creates a big distance between the European decision making and the people. There is no direct impact on people’s lives and so populists consider political promises often as empty.

We should find the solution on a local level, instead of on the European level. Of course, Europe still should face present challenges and try to find solutions for terrorism

Think Global, Act Local and migration among others. But this won’t solve populism. Instead of arranging migration by decreasing the number of refugees into Europe by 100.000 for example, populists would be more satisfied with a more efficient battle against criminality from refugees. These numbers are relatively meaningless for the “ordinary” people and the impact on the streets is much less then refugees who steal or are violent. The media plays a big part in this.

They should present facts in an objective way. This becomes harder with new problems on social media, like fake news. Therefore, informing the people objectively should become a priority. When shown that these people can be an enrichment instead of a danger, the numbers will be less problematic. We can still solve the same problems, but by using different points to focus on, populism can be defeated.

Of course, there is no perfect solution for these matters.

Another proposition though is to invest in education, especially in the education of the politics and juridical system. One of the problems of populism is the simple solutions they offer for complex matters. By educating them as to why we need hundreds of politicians, why lawsuits take that long, why we have human rights and need to do everything to protect them etc. we may change the mindset of populists and prevent people from becoming populists.

For the last decade securing democracy wasn’t a priority, since in general there were no big problems. Only from past year onwards, mainly because of the rising of populism, democracy and more specific the current form of democracy has become a priority. We can see that Europe takes new necessities of society into account. I can only hope they consider this for the future to come as a problem on a long term, where permanent investment is needed. If not, the consequences can be huge.

To conclude, the future is looking bright, despite all the negative news. The Council of Europe is taking the problem of populism very seriously, based on their recent rapport. This can only be encouraged. Every obstruction can be overtaken if we keep on protecting and safeguarding democracy and human rights. In times of fake news the easiest solution can be to restrict, but the freedom of expression ought to prevail. Human rights are the basis of our society and humanity in general. And with that thought, Europe will hopefully outlive populism.

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09

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Location: St Julian's, Malta Working Language: English

ITP REFRESHMENT WEEKEND

LVI INTERNATIONAL PRESIDENTS’ MEETING

Location: St Julian's, Malta Website: elsa.org.mt/ipm/

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Location: Strassbourg, France Website: legalresearch.elsa.org/migration

PRESENTATION OF THE LRG ON MIGRATION LAW AT THE COUNCIL OF EUROPE

Location: ELSA House, Brussels, Belgium Contact: elsa@elsa.org

ELSA LAW SCHOOLS TRAINING WEEKEND

Location: Łódź, Poland Website: som.elsa.org.pl Working Language: English

III SLAVIC OFFICERS MEETING

Location: ELSA House, Brussels, Belgium Contact: elsa@elsa.org

ELSA INTERNATIONAL CHRISTMAS COCKTAIL 2017

/DECEMBER Location: Washington D.C., USA Website: emc2.elsa.org

Location: Bangkok, Thailand Website: emc2.elsa.org

ELSA PARTNER’S RECEPTION

Location: Brussels, Belgium Working Language: English

MID-IFP CONFERENCE ON ENVIRONMENTAL LAW

Location: Nairobi, Kenya Website: emc2.elsa.org

/MAY

AFRICAN REGIONAL ROUND ELSA MOOT COURT COMPETITION

Location: Lviv, Ukraine Website: icmlviv.com

LXXIII INTERNATIONAL COUNCIL MEETING

Website: step.elsa.org

LAUNCH OF THE 2ND CYCLE OF STEP TRAINEESHIPS

ASIA-PACIFIC REGIONAL ROUND ELSA MOOT COURT COMPETITION

/APRIL

ALL-AMERICAN REGIONAL ROUND ELSA MOOT COURT COMPETITION

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Location: Wrocław, Poland Website: emc2.elsa.org

elsa.org

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Think Global, Act Local

Freedom of expression, the right to information and the right to Internet access

CYBER WAR IN PERSPECTIVE

Alesia Zhuk

National Coordinator of LRG on Migration Law ELSA Belarus

Article 19 of the Universal Declaration on Human Rights states that “everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers”. The freedom of expression is also protected

by Article 11 of the Charter of Fundamental Rights of the European Union, Article 10 of the European Convention on Human Rights, Preamble Convention on Cybercrime. There is a certain relation between the right to privacy and the freedom of expression and it may seem that they contradict. However, Article 9 of the Data Protection Directive provides derogations or limitations to the protection of data and consequently to the principle of privacy. Nevertheless, these derogations are provided solely for journalistic purposes or the purpose of artistic or literary expression.1 In Magyar Helsinki Bizottsag v. Hungary case of the European Court of Human Rights2 the applicant (NGO) claimed for the right to freedom of expression, specifi1 European Union Agency for Fundamental Rights. Handbook on European Data Protection Law. Luxembourg: Publications Office of the European Union, 2014, p. 23.

2 European Court of Human Rights, “Personal data protection,” Press Unit, accessed 16, February 2017, http://www.echr.coe.int/Documents/FS_Data_ENG.pdf.

28 | SYNERGY Magazine

cally the right to receive information. The required information was related to an ex-official of the Hungarian authorities. Authorities had the argued that the information was classified as private under the right to privacy and could not be a subject to dissemination. However, the Court confirmed that such refusal to provide information is a violation of Article 10 of the Council of Europe Convention and the freedom of expression.3 The relationship between cyber war and the right to freedom of expression is not clear. From the one side we have situation of armed conflict with the application of humanitarian law and from the other side the freedom to express personal opinion. However, although it is not obvious there is a connection between them. We will try to imagine two hypothetical situations.

State A launches a cyber-attack against state B by using a malicious program i.e. Trojan horse hidden in the other program. The malware spreads across thousands of civilians’ computers, however, without causing any physical damage. The only purpose of the attacker is to gather information. State B knowing about Trojan prefers to keep silent and forbids discussing the situation in order to avoid panic in mass median explaining that it is pro3

Ibid.

Think Global, Act Local tection of the national security. The Trojan horse virus violates the right of data-protection by collecting sensitive information of users, and additionally, state B. violates indirectly the freedom of expression since, it prohibits to disseminate information which is necessary for computer users.

The second hypothetical situation is associated with the cyber-attack on civilians by means of denial of service attack. State X has a civil war between different political parties, therefore, in order to stop disturbances among the population and at the same time to prevent the spreading of information by means of infecting the main web site of one of the two political parties, state X. launches denial of service attack and disables tens of thousands of user’s computers. From the one side, it is clear that the attack is not discriminatory since it affects everyone who visits the web page. From the other side, the attack discriminates people in accordance with their political views. The attack on the web page of the one of political parties constitutes a violation against the freedom of expression and rights to seek, receive and impart information.

The right to freedom of expression should be also considered together with the right to information. According to Principle 1 of the Tshwane Principles on National Security and the Right to Information, “everyone has a right to seek, use, and impart information held by or on behalf of public authorities, or to which public authorities are entitled by law to have access”. The same document provides criteria for the exceptions and the restrictions of the right to information on national security grounds: it should be prescribed by law, it should be necessary for

democratic society or it has to be for the protection of a legitimate national security interest.

In the case Ltd v. United Kingdom, the European Court of Human Rights said, “The Internet plays an important role in enhancing the public’s access to news and facilitating the dissemination of information generally”. Moreover, the realization of the right to freedom of expression and also the right to information seems impossible without the internet and the right to internet access. In May 2011, the United Nations Special reporter stated that all states have to “ensure that Internet access is maintained at all times, including times of political unrest”.4 Further, the Special Reporter emphasizes, “The internet has become an indispensable tool for realizing a range of human rights… the Internet should be priority for all States”.5 In 2016, the United Nations Human Rights Council in its resolution condemned International disruption of internet access by states.6 The Resolution affirms, “The same rights that people have offline must also be protected online, in particular the freedom of expression”.7

4 “VI. Conclusions and recommendations”, Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, Frank La Rue, Human Rights Council, Seventeenth session Agenda item 3, United Nations General Assembly, accessed 20 February 2017, para 79. http://www2.ohchr.org/english/bodies/hrcouncil/docs/17session/A. HRC.17.27_en.pdf.

5 Ibid., para 85 6 United Nations, “Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, Frank La Rue (A/HRC/17/27),” (Human Rights Council, 2011).

7 Ibid.

SYNERGY Magazine | 29

Think Global, Act Local

A brief analysis of the case of Hungary

HOW STRONG ARE EUROPE’S CHECKS AND BALANCES… IF A STATE CHOOSES TO IGNORE THEM? Olesya Dovgalyuk ELSA United Kingdom

Populism, – as well as nationalism, nativism and protectionism – is nothing new: it is not a by-product of globalisation, characterised by the uneven distribution of its benefits (although these are important factors). In its early beginnings, it was analysed by Greek philosophers, such as Polybius, who considered populism as a feature of the democratic stage of the political anacyclosis. The nature of the phenomenon is nowadays, seen as threatening the stability of a number of governments not necessarily confined geographically to Europe, that has made it a catch-phrase for our newspapers and conversations.

At a time it was compared to Europe’s XIV century Protestantism, as a movement against the Church’s corruption, only that the pervasive anger now is targeted at political authorities and not religious ones.1 Notwithstanding the elegant parallel, a difference prevails: whilst the former had the novel concept to build the future upon European Christian society, populism however, does not offer an alternative for the fiercely-criticised status-quo2: ‘the voters[, instead of ] being offered a decisive policy choice […] are […] invited to provide passive political support for a leader, to confirm the popular legitimacy of his authority’.3 In Hutchinson’s words, now ‘postures of leadership are mistaken for leadership’ itself.4 As a regional project with supranational powers, EU, “the West’s last defense against populism”5, is better equipped than many to resist today’s socio-po1 http://www.huffingtonpost.com/john-feffer/rethinking-populism-

in-eu_b_5544983.html 2 http://carnegieendowment.org/2017/04/21/how-to-be-populist-pub-68751 3 Hayward, Jack (1996) Elitism, Populism, and European Politics, Oxford: Oxford university Press [pp. 15-16] 4 http://digitalcommons.law.yale.edu/cgi/viewcontent. cgi?article=1003&context=yjll [p. 12] 5 http://foreignpolicy.com/2017/02/15/europe-is-the-wests-lastdefense-against-populism/

30 | SYNERGY Magazine

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litical reality of destructive reactionary movements, if compared to the Anglo-Saxon couple of ex-hegemons struggling to come to terms with Brexit and the actions of a populist president and his cabinet, and by far better than quasi-democratic states where politically-motivated detention of opposition figures is still seen, akin to those of Leopoldo López in Venezuela and Mikhail Khodorkovsky in Russia.

The Council of Europe’s report on the state of democracy, human rights and the rule of law in Europe highlighted five crucial elements for populism-resistant states: independent judiciaries, freedom of expression, freedom of assembly and association, the functioning of democratic institutions, and inclusive societies.6 All five are intimately interdependent, and in the event that one of them is flawed, the successful coping with the democratic crisis will depend on the proper functioning of the rest, underpinned by the human support on the national and regional level.

It would be interesting to examine the ruling of Fidesz who showed a strongly nationalist and anti-liberal stance, in the context of Hungary. Three recent cases are worth looking at: the notorious Higher Education Law which puts a question mark over the ex6 available online from: http://www.coe.int/en/web/portal/-/populism-how-strong-are-europe-s-checks-and-balances-

istence of the Central European University (CEU), and two lesser known laws: one prohibiting supermarkets to operate after two consecutive years of suffering deficit, and another concerning operation of foreign NGOs, which have to declare themselves as “organizations supported from abroad”. This latter obligation worryingly resembles a similar piece of legislation adopted in Russia three years ago7, which forced all organizations funded from abroad to label themselves as “foreign agents” – a move to delegitimize institutions through the negative connotation of the term derived from the Cold-War confrontation with the West.

In the Hungarian case, response from the European Commission was prompt: a letter of formal notice on the NGO Law was issued on June 13, condemning infringement on the right to freedom of association, unjustified and disproportionate restrictions to the free movement of capital, and disrespect for the right to protection of private life and personal data.8 In the letter of formal notice and then in a reasoned opinion on July 13 regarding the Higher 7 Russian Federal Law No 121-FZ from 20 July 2012, full text (in

Russian) available from: http://publication.pravo.gov.ru/Document/ View/0001201207230003.

8 http://europa.eu/rapid/press-release_IP-17-1982_en.htm

SYNERGY Magazine | 31

Think Global, Act Local

Education Law, the Commission stressed on the right to education and freedom to carry out business under the Charter of Fundamental Rights of the European Union and international trade law.9 Another reasoned opinion, requesting Hungary to remove restrictions on loss-making retailers which ‘run[ ] counter to the freedom of establishment and the principle of non-discrimination (Article 49 TFEU) and the free movement of capital (Article 63 TFEU)’,10 was issued on the same day. Ultimately, the Hungarian government failed to respond after the second stage of the infringement procedure (the “reasoned opinion”) in both cases, and so faced referral to the CJEU.11 From a comparative perspective, this presents a strong argument for the efficacy of the judicial oversight in the European Union: while Russia’s “Foreign Agent” law only raised sharp criticism from the political activists and human rights’ defenders, stakes for the EU member-states’ governments are definitely higher and the consequences much more costly – for instance, triggering Article 7(1) of the TEU and suspending the country’s voting rights – if they decide to interfere with the basic freedoms, as stated in first paragraph of the Treaty on the EU. What if, however, as is the case with Hungary and Orbán’s Fidesz, a government remains defiant to legislative measures of the European institutions, as it reportedly does based on the official announcements?12 National judiciary gives little hope: its ineffective judicial review system allows refugee detention to go under-scrutinised.13 Penalties would have a limited effect in the light of Orbán’s readiness to pay with Hungarian taxpayers’ money to maintain his stance on immigration and other bold nationalist initiatives. To expel Hungary from the EU would require a unanimous vote from all the Member States; the procedure is destined to fail should Hungary through a ‘classic intergovernmental system of dip9 http://hungarianspectrum.org/2017/07/14/infringement-pro-

ceedings-galore-but-what-good-will-they-do/ 10 http://europa.eu/rapid/press-release_MEMO-17-1935_en.htm 11 ibid.

12 http://www.politico.eu/article/brussels-launches-infringement-proceedings-against-hungary/ ; http://www.foxnews.com/ world/2017/04/29/hungary-still-defiant-on-us-university-afterbrussels-summit.html 13 http://www.asylumlawdatabase.eu/en/journal/what-more-canbe-done-%E2%80%93-lost-hope-improving-judicial-review-asylumdetention-hungary

32 | SYNERGY Magazine

lomatic relations’14 succeed in securing an agreement with a single member state, e.g. Poland or another Visegrad state.

Taking all of this into account, the approach the EU has to adopt in order to bridge the quickly deepening gap and re-engage Hungary and other distancing states has to be nuanced and sensitive. It has to target the core underlying problems, such as the coordinated response to the refugee crisis by all member-states, both within the Europe and abroad. Job insecurity is another factor fuelling the anti-migrant mood, and has to be dealt with in relation to the increasing automatisation of manufacturing and services, starting from the most easily-machinated unskilled labour.

Well-paid jobs nowadays, in addition to a university degree require considerable experience, excluding those who cannot afford months of unpaid – and rarely game-changing in terms of the skills gained – internships in the relevant or desired field of work15, which is adding to the alienation between the least and the most privileged groups of the population, fuelling the dissatisfaction with the national system that fails to redistribute to provide means of satisfying basic needs and ensure a modest yet dignified way of living for its citizens. This is the perfect breeding grounds for populism.

The institutional mechanisms to oversee compliance with the EU Law on their own are not enough.

Constituting only the “structure”-side of the agency-structure dichotomy, formal procedures and institutions, while important and indispensable in the process of regional integration, have to be underpinned and constantly defended by the agency.

Protests in Budapest, across Hungary and in other European countries in support of the CEU have shown that the crackdown on the institution will not be an easy victory for the government, while the latest anti-Soros campaign has been called antisemitic in its exclusionist ideology and actively opposed in Hungary and beyond.16 Moreover, the short-term of executive offices means that democratic election 14 https://www.euractiv.com/section/justice-home-affairs/inter-

view/eu-law-expert-throwing-hungary-out-would-fan-the-flames-ofpopulism/ 15 https://www.theguardian.com/australia-news/2017/jul/09/ smart-educated-and-exploited-how-internships-help-lock-the-youngout-of-jobs 16 http://hungarianspectrum.org/2017/07/12/the-totally-successful-anti-soros-campaign-comes-to-a-sudden-end/

Think Global, Act Local

of populist leaders can in the long term prove advantageous, incorporating nationalist interests in the domestic politics and thereby proving the existence of equality of participation and representation, cherished by Western democracies, while (hopefully) preventing long-lasting damage on both domestic level and in foreign relations. As put by Hutchinson, ‘[t] he first critical thing to note is that […] government is implicated in all activity that occurs within its territorial jurisdiction. As sovereign, the government is as responsible for its active decisions not to intervene and regulate as it is for its decisions to act affirmatively’.17 This lack of innovation and long-term solution to enduring problems of inequality and exclusion is already exemplified in the electorates of the European states that extreme protectionism is not an effective response to the challenges of globalization,18 and constructive solutions have to be created 17 http://digitalcommons.law.yale.edu/cgi/viewcontent.

to address the latter in a context-sensitive manner.

Instead, we need to question the problematically simplistic equation between the concept of “democracy” and the “rule-of-the-people” recipe: the idea that the latter will rid societies of the need to bargain and balance sacrifices and gains has to be debunked, while empowering experts able to respond to the pitfalls of the existent welfare state among other prominent issues facing our societies19 is crucial in order to enjoy the benefits of living in an economically and politically integrated European Union. As put

by Kupchan, ‘[a] new social compact entails better managing globalization, not unplugging from it’.20

19 see, for instance, UiO EPISTO Project focusing on European Union

cgi?article=1003&context=yjll [p. 5] 18 https://www.theguardian.com/commentisfree/2017/jun/15/ britain-brexit-europe-populism-eu

and the European Commission’s expert groups: http://www.sv.uio.no/arena/ english/research/projects/episto/index.html 20 http://foreignpolicy.com/2017/02/15/europe-is-the-westslast-defense-against-populism/

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SYNERGY Magazine | 33

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Active and indirect approaches against populist created threats

CONSTITUTIONAL COURTS AS FORTRESS AGAINST POPULISM?

Madara Meļņika ELSA Latvia

Both when populists manage to gain power and have to fulfil their promises or when they fight to stay in power, basic constitutional principles can be put at risk. In such situations, active work of a constitutional court is extremely important. In addition, preventive measures must be taken in consideration.

What is populism?

At first, some of the characteristics of this umbrella term must be explained. Nowadays there is still no clear, overall accepted definition of populism. It has been described

THE

Julian Senders ELSA Berlin e.V.

as a “thin ideology” that sets up a framework of a pure people versus a corrupt elite. This thin ideology can be attached to all sorts of “thick” ideologies, such as socialism, nationalism or racism1 – populism can be both left and right wing.

According to another considerable approach, populism identifies popular sovereignty by referring to a part of the population that supposedly represents the people as a whole, constructs promises from heterogeneous demands of the chosen group of people, establishes friendly and hostile relations through distinguishing this group as “the people” from the supposed enemies, and identifies the will of the chosen “people” with the will of a nation.2 It has to be noted, that not everybody who criticises the elites automatically counts as a populist.3 A key element of the aforementioned definitions is rather a promise to 1 Cas Mudde, ‘The populist Zeitgeist’ [2004] 39 (3) Government & Opposition 541.

2 Andrew Arato, ’Populism and the Courts’(VerfBlog, 25 April 2017) <http://verfassungsblog.de/populism-and-thecourts> accessed 10 July 2017 3 Jan-Werner Müller, ‘Populist Constitutions – A Contradiction in Terms?’ (VerfBlog, 23 April 2017) <http://verfassungsblog.de/populist-constitutions-a-contradiction-in-terms> accessed 15 July 2017

34 | SYNERGY Magazine

Think Global, Act Local speak for a supposedly marginalised group distinguished from its enemies, which can be the political elite or institutions as well as immigrants or minorities, declaring the opinion of this group as the opinion of the whole nation.

Those developments can be currently observed in both Eastern and Western European countries.

Populist created threats

Where do the problems arise? The constitutional system has to be responsive to the views of democratic majorities4, so one could argue that the principle of popular sovereignty gets realised by populist representation of so far unrepresented people.

However, while in democratic states constitutions also protect the “weakest parties” – minorities, via the principles of pluralism and non-discrimination, people in the opposition and others, populists, being sceptical towards the established system, tend to stress the primacy of politics over law. Stating that law (and thus also the constitution) is only the outcome of a political action,5 they question the core principles of democracy.

A current example of the aforementioned is Poland, where in 2016 a novel interpretation of the Polish Constitution was proposed, emphasizing the need to weaken the Polish Constitutional Tribunal in order to stop “juristocracy” and stressing the supremacy of democracy over the rule of law.6 This tendency has led to, inter alia, the Polish Senate in July 2017 approving a bill on the removal of all Supreme Court judges except for those selected by the justice minister and approved by the president.7 An example of another manifestation of populism can be seen in Hungary as the Fundamental Law of 2011 defines Hungary as a Christian state, which is clearly distinguished from other nationalities with whom the Hun4 Mark Tushnet ‘The Relation Between Political Constitutionalism and Weak-Form Judicial Review’ (2013) 14 German Law Journal, 2249 5 Luigi Corrias ‘Populism in a Constitutional Key: Constituent Power, Popular Sovereignty and Constitutional Identity’ (2016) European Constitutional Law Review, 12(01), 6-26 6 Anna Mrozek, Anna Śledzińska-Simon ‘Constitutional Review as an Indispensable Element of the Rule of Law? Poland as the Divided State between Political and Legal Constitutionalism’ (VerfBlog, 12 January 2017) <http://verfassungsblog. de/constitutional-review-as-an-indispensable-element-of-therule-of-law-poland-as-the-divided-state-between-politicaland-legal-constitutionalism> accessed 13 July 2017 7 ‘Polish senate backs judicial overhaul, defying protests and the EU’ (The Telegraph, 21 July 2017) <http://www.telegraph. co.uk/news/2017/07/21/poland-set-back-judicial-overhauldefying-protests-eu> accessed 24 July 2017 SYNERGY Magazine | 35

Think Global, Act Local garians are living with in one state,8 thus cementing the views of the current conservative ruling party as unbreakable constitutional values. That prevents, in consequence, future non-conservative governments from making laws contradicting those particular political views.

What can Constitutional Courts do?

In such situations, especially when considering the downfall of international law9 and the weakness of its enforcement mechanisms, the work of constitutional courts is more important than ever.

stitution.11 As a neutral institution, a functioning constitutional court can be expected to use this basic power to fight against the inappropriate limitations of fundamental human rights as well as infringements of basic state principles. Interesting but rare is the possibility to challenge even the conformity of the constitutional amendments with the fundamental principles of the state12 as the effectiveness of such provisions can be questioned in a political situation which is hostile towards those principles.

The first and foremost competence of a constitutional court amongst European jurisdictions is the examination of laws with the possibility of nullification.10 In some countries, this competence is even laid down in the Con-

Additionally, populism can be challenged via the competence of a constitutional court to limit state-endangering political parties as provided, e.g., in Germany.

The possibility to ban a party13 can be used only in the most extreme cases – the last prohibiting decision of the German Constitutional Court was in 1956 against the Kommunistische Partei Deutschlands. Less intruding is the withdrawal of state financing to parties once the Constitutional Court has declared the party anti-constitutional.

8 Fundamental Law of Hungary 2011, Preamble 9 Erik A Posner, ‘Liberal Internationalism and the Populist Backlash’ (January 2017) The Law School of the University of Chicago 10 German Federal Constitutional Court Act, 1951, s.31(2)

11 See Constitution of Latvia, 1922, Article 85.

12 Basic Law 1949 (Germany), Article 79(3) 13 Basic Law 1949 (Germany), Article 21(2)

To uphold fundamental constitutional principles, the constitutional courts can fight against populism on two levels – active and indirect.

Active approaches

36 | SYNERGY Magazine

Think Global, Act Local This provision14 was introduced in 2017 after a suggestion from the GFCC itself which illustrates how a court can contribute to the limitation of populism. Such measures could give parties the possibility to “come back” to constitutional conformity.15 The card of party prohibition has been played also by the Turkish Constitutional Court. In 1998, it banned the populist Refah Partisi, which was anti-secularist and spread hatred and aggression.16 However, Turkey can be seen also as an example for the failure of this mechanism: The 2008 decision of the Court to deprive the AK Parti of state aid, which, although being an indirect successor of Refah Partisi, had refused its legacy, was broadly viewed as ungrounded. It created problems for the court itself as it was labelled as favouring secularism and bureaucracy17 instead of being an independent balancer of rights and interests.

Indirect approaches

of law.19 Therefore, the power of constitutional courts is a political matter depending on a court-supporting political majority and the support of the public; Thus, in case of an anti-court government, exactly the support of the public, both via civil society and politically non-involved citizens, becomes the main backbone for the courts’ existence. This support has to be earned by also using the indirect methods.

Generally, it is vital that the public views constitutional courts as important. Within the scope of their competences constitutional courts should orient their work towards protecting the rights and interests of individuals.

Consequently, positive experiences and trust can create “constitutional patriotism”, an idea well known in Germany. It can be doubted that populists “on behalf of the people” will attack an institution which is known for protecting the peoples’ rights.

Not everywhere constitutional courts can openly challenge populists. Their power is based on the other institutions’ willingness to follow their decisions. That makes the position of constitutional courts comparably fragile.

Additionally, populists can undermine and delegitimise them via constitutional changes, new statutes and budget limitations. Attacks can even be carried out through small, inconspicuous procedural changes such as changing the regulations concerning the appointment of judges18 or working age limits.

This approach can be observed in Turkey, where the Constitutional Court, despite its restricted competences, has managed to gain the reputation as a “defender of defenceless”20 after the introduction of the individual complaint mechanism in 2012.21 Its decisions on Twitter and YouTube bans and other matters of individual and public interest have allowed to increase public confidence.

Although the court, regarding its own fragile position, has taken a self-restrained approach, tending to dismiss claims and delay proceedings in politically significant cases, the current development can be viewed as positive.

Even the existence of a constitutional court as such is - compared to, e.g., free and equal elections - not a mandatory component of a democratic state led by the rule

An example of failure to connect with individuals is the Constitutional Tribunal of Poland. As the court had not established itself as a “human rights court with a direct

14 Basic Law 1949 (Germany), Article 21(3) 15 Tilman Steffen, ‘Bundestag verabschiedet “Lex NPD”‘ (ZEIT, 22 June 2017) <http://www.zeit.de/politik/ deutschland/2017-06/npd-ausschluss-parteienfinanzierungbundestag-bundesverfassungsgericht> accessed 22 July 2017 16 Decision of the TCC: E. 1997/1 (Welfare Party Dissolution), K. 1998/1, 16 January 1998. Official Gazette, 22 February 1998: 23266 17 Bertil Emrah Oder, ‘Populism and the Turkish Constitutional Court: the Game Broker, the Populist and the Popular (VerfBlog, 2 May 2017) < http://verfassungsblog.de/populismand-the-turkish-constitutional-court-the-game-broker-thepopulist-and-the-popular> accessed 17 July 18 Michal Broniatowski, ‘Polish government moves to take control of top court’ (Politico 13 July 2017) <http://www. politico.eu/article/polish-government-moves-to-take-controlof-top-court> accessed 24 July 2017

19 Anna Mrozek, Anna Śledzińska-Simon ‘Constitutional Review as an Indispensable Element of the Rule of Law? Poland as the Divided State between Political and Legal Constitutionalism (VerfBlog, 12 January 2017) <http://verfassungsblog. de/constitutional-review-as-an-indispensable-element-of-therule-of-law-poland-as-the-divided-state-between-politicaland-legal-constitutionalism> accessed 13 July 2017 20 Bertil Emrah Oder, ‘Populism and the Turkish Constitutional Court: the Game Broker, the Populist and the Popular (VerfBlog, 2 May 2017) < http://verfassungsblog.de/populismand-the-turkish-constitutional-court-the-game-broker-thepopulist-and-the-popular> accessed 17 July 21 Constitution of the Republic of Turkey, as amended on September 12, 2010; Act No. 5982, s.148 SYNERGY Magazine | 37

Think Global, Act Local arising from politically difficult situations. Since the populists’ fundamental rights must also be respected, they cannot be simply censored or met with illegitimate deprivation of rights, unless they are stepping in the scope of extremism. Additionally, a martyrs’ status can even help populists to gain popularity.25

impact on peoples’ lives”,22 for years its necessity and importance was doubted and attacking it was easier for the political majority.

Therefore, it is crucial for the constitutional courts to prove that they are taking all decisions in the best interest of the overall society, not only marginalised groups. So the court might also be partly sensitive to a new zeitgeist in order not to alienate ”the people” represented by populists. Hence, the overall work and independence of both every individual judge and the constitutional court as such also in stable periods is extremely important. The court should not “sit in its ivory tower”, but consider social inequality, poverty, institutional failure and bureaucracy in its analysis of the specific issue, in such a way challenging the roots of populism23.

The court has to permanently prove that it manages to a) be on nobody’s side apart from law and fairness, b) limit itself to the specified subject of proceedings while avoiding obiter dicta24 and c) have the highest level of professional ethos instead of result-oriented decision-making.

Instead of a conclusion

In the fight against populism, constitutional courts have to consider both legal boundaries and factual restrictions 22 Anna Mrozek, Anna Śledzińska-Simon ‘Constitutional Review as an Indispensable Element of the Rule of Law? Poland as the Divided State between Political and Legal Constitutionalism (VerfBlog, 12 January 2017) <http://verfassungsblog. de/constitutional-review-as-an-indispensable-element-of-therule-of-law-poland-as-the-divided-state-between-politicaland-legal-constitutionalism> accessed 13 July 2017 23 Michaela Hailbronner, David E. Landau, ‘Introduction: Constitutional Courts and Populism’ (VerfBlog, 22 April 2017) <http://verfassungsblog.de/introduction-constitutionalcourts-and-populism>, accessed 16 July 2017 24 Udo Steiner, ‘Der Richter als Ersatzgesetzgeber - Richterliche Normenkontrolle - Erfahrungen und Erkenntnisse’ (2001) Neue Juristische Wochenschrift 2919 38 | SYNERGY Magazine

Populism highlights the issues about which a big part of the population cares, but the established politicians tend to avoid26 – and even though that can lead to a polarised society, those questions must be discussed. So, the constitutional courts, while proving themselves as unpolitical, neutral institutions, should emphasise constant upholding of the main principles of democracy and address the reasons why populists gain popularity.

25 Daniele Giglioli, ‘Dem Opfer stellt man keine Fragen’ (NZZ, 15 March 2017) <https://www.nzz.ch/feuilleton/populismus-und-opferdiskurs-die-boesen-sind-immer-die-anderenld.150918> accessed 24 July 2017 26 Cas Mudde ‘The problem with populism’ (The Guardian, 17 February 2015) <https://www.theguardian.com/commentisfree/2015/feb/17/problem-populism-syriza-podemos-darkside-europe>, accessed 24 July 2017

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Poland, Gdańsk

AzerbAijAn, bAku bosniA And HerzeGoVinA, sArAjeVo croAtiA, rijekA

Poland, Łódź Poland, kraków Poland, wrocŁaw

croAtiA, split

portuGAl, brAGA

croAtiA, zAdAr

portuGAl, porto

cyprus, nicosiA

portuGAl, lisbon

czecH republic, brno denmArk, AArHus denmArk, copenHAGen

COUNTRIES 25

portuGAl, coimbrA romAniA, cluj-nApocA romAniA, snAGoV & bucHArest

49 CITIES

FrAnce, Aix-en-proVence

serbiA, belGrAde

GeorGiA, tbilisi

serbiA, noVi sAd

GermAny, FrAnkFurt & mAnnHeim & HeidelberG GermAny, dresden Germany & Poland, FrankFurt (oder) & sŁubice

sloVAkiA, brAtislAVA tHe netHerlAnds, nijmeGen tHe

netHerlAnds, mAAstricHt

Greece, AtHens

turkey, AnkArA & kApAdokyA

Greece, AtHens

turkey, izmir

Greece, tHessAloniki

turkey, istAnbul

itAliA, modenA

ukrAine, lViV

itAly, sAlerno

ukrAine, kyiV

itAly, cAmpobAsso

ukrAine, odesA

litHuAniA, Vilnius

united kinGdom, cAnterbury

Application deadline 22 April 2018 SYNERGY Magazine | 39

Think Global, Act Local

Populism in Bosnia and Herzegovina

CAN DIRECT AND DEMOCRATIC PARTICIPATION OF ALL CITIZENS BE A SOLUTION TO BOSNIAN POPULISM? Mustafa Džihić President ELSA Bosnia and Herzegovina 2017/2018

Populism in the small southern eastern country of Bosnia and Herzegovina1 is seen as a tool or strategy employed by politicians to win elections. As professor Jan Werner Muller said; populist politics in the Balkans feeds from a symbolic construction of the real people meant to instil a sense of common identity, whose singular voice is represented by one strong leader. Characteristics of Bosnian and Herzegovinian populism embodies the presence of charismatic leaders (Serb, Croat, Bosniak) whose personal style projects himself as the mystical hero, the vivid symbol of hope, the voice of the people, it also encompasses the mass support of one of the three ethnic groups; Serbs, Croats, Bosniaks, along with the defeat of a small “powerful group” that could be real or imaginary, a common identity and the fear of diversity which resulted in the Yugoslavian War. Populism in B&H is a natural and automatic product of the Dayton Peace agreement, Annex IV of the agreement is considered as the Constitution of B&H, and was signed in year 1995. According to the Preamble of the Dayton peace agreement the Bosniaks, Croats, and Serbs, are the constituent people (along with others), and citi1

Bosnia and Herzogovina, hereafter referred to as (B&H)

40 | SYNERGY Magazine

Nina Kuzek Director for Legal Research ELSA Bosnia and Herzegovina 2017/2018

zens of B&H.2 The decision-making process in B&H is strictly based on the representation of the ethnic groups Serbs, Croats, Bosniaks. The Parliamentary Assembly has two chambers: The House of Peoples and the House of Representatives. The House of Peoples comprises of 15 Delegates, two-thirds from the Federation (including five Croats and five Bosniaks) and one-third from the Republika Srpska (five Serbs). The House of Representatives comprises of 42 Members, two- thirds elected from the 2 Dayton Peace agreement , (1995) General Assembely of the United Nations, Available at http://peacemaker.un.org/sites/peacemaker.un.org/files/BA_951121_DaytonAgreement.pdf

Think Global, Act Local territory of the Federation, one-third from the territory of the Republika Srpska.

This regulation shows the practical need for political parties to specifically identify with one of the three ethnic groups in order to be elected in government. In order to get these votes it calls for the use of a populist tool or strategy where the focus is on satisfying the national vital interests of one of the three consecutive people, and put focus on representing the interests of that particular ethnic group.

The issue lies in the absence of Bosnian voters not turning up to vote, making elections an easy target for populist leaders. This conclusion is drawn from the fact that for the 2014 presidential elections only a total number of 1.788.193 citizens turned out to vote, out of the 4.5 million population of B&H.3 It was widely discussed on the media outlets how the leader had won with a small number of votes. This was a heavily criticized election because of the lack of Bosnian citizens voting. They had still not found their representative to voice their needs and interests. This in turn has always limited their constitutional right to vote. It gives populist leader leeway to make false promises; mostly concerning poverty in Bosnia and Hercegovina, or employ hate speech to form a ‘us against them’ atmosphere. This is characterised as populism with the element of fear.

To stop this abuse carried out by politicians who appeal only to a certain type of group and completely under3 Banovic D, Gavric ,(2012), Parlamentarism in Bosnia and Hercegovina,Sarajevski potvoreni centar/Fondacija Ebert/ Sarajevo

Think Global, Act Local mine the percentage of the population that did not vote, it is important to seek the direct and active participation of the citizens.

Demand for direct citizen participation in issues of basic welfare and quality of life expanded in the last two decades. A confluence of voices from students, union members, working and middle-class, government workers, environmentalists, feminists, and consumers amplified the movement. Becoming more suspicious of the growing size of the government, experts and activists of all persuasions wanted for more direct control and power in the decisions that affected them. 4 Direct citizen participation is educative, Rousseau and Mill believed that democracy has to be taught, and it can only be learned through practice (Pateman, 1970).5 The more one participates, the more one develops the attitudes and skills of citizenship, and the more others will be drawn into the process thus making the system more democratic. To sustain this virtuous cycle all institutions in a society should be supportive of the democratic ideals. Authoritarian conditions at work will have a detrimental effect, e specially because people spend a great deal of time in their jobs.

Direct citizen participation is therapeutic and integrative. Most citizens of B&H suffer from alienation and 4 Roberts N, (2004) Public Deliberation in an age of Direct citizen Participation, American review of public administration, Available at: https://hubert.hhh.umn.edu/Stuck/Asset5PublicDeliberationInAgeOfDirectCitizenParticipation.pdf 5 Pateman C, (1970)Participation and Democratic theory , Cambridge University Press

SYNERGY Magazine | 41

Think Global, Act Local

“only through participation will or can they be made well.” Direct citizen participation is “justified as therapy—a process as the healing of the sick”. Participants achieve psychic rewards, a sense of freedom and control over their lives, and strong feelings of political efficacy with higher levels of participation. 6

and far-fetched in the Bosnian government’s structure; however, it remains vital that Bosnian citizens be more involved in the decisions that directly concern them and their families. This type of direct participation will hopefully provide a balance between any type of abuse by our populist leaders.

Direct citizen participation gives legitimacy. As citizens participate in governmental affairs and give their consent to decisions, they give their consent to those decisions and to the regime that makes them. This legitimacy produces stability within the system and the regime that makes the rules.

Bosnia’s new beginning

The dilemma of the excluded or oppressed, marginalised groups i.e. the Jews, Roma groups, children, others – the minorities that do not identify themselves with the three main groups have systematically been excluded from a representative democracy as a product of the Constitution itself.

Will there be room in the participatory process for ethnic and religious minorities, indigenous peoples, women, the old, gays and lesbians, youth, the unemployed, the lower-class and recent immigrants? And who will speak for future generations?

Direct Participation of all citizens might be too ideal 6 Roberts N, (2004) Public Deliberation in an age of Direct citizen Participation, American review of public administration, Available at: https://hubert.hhh.umn.edu/Stuck/Asset5PublicDeliberationInAgeOfDirectCitizenParticipation.pdf 42 | SYNERGY Magazine

Clearly the Dayton Peace agreement is not a good basis for the future decision -making process, it being perfect for manipulation and abusive populism, which goes against any type of democratic society. Amending the Constitution or creating a completely new constitution based on the state of law and human rights will provide equal treatment for all citizens of Bosnia. This statement was confirmed in the ECHR case of Sejdić-Finci v. Bosnia and Herzegovina where it is shown that the Constitution has to be reformed based on citizenship.

Furthermore, active participation of the youth population in B&H in society may bring major changes. Unfortunately, the youth are a minority in the voting process.

At present, it is difficult to let the youth understand the importance of elections, what we need are young leaders that can create a new environment for politics which is not based on populism or nationalism.

Think Global, Act Local

About the Faculty Partnership between ELSA Barcelona UB and ELSA Kiel

INTERNATIONALIZED LOCAL GROUPS

Jordi Adrià

Maximilian Schlegel

President ELSA Barcelona UB 2016/2017

Foreword

As it was already presented in Synergy Magazine (No. 61, I – 2017, pp. 39 – 42) the ELSA network is about to implement more regional cooperation and achieve an increasing mutual understanding within the network.

The crucial aspect of this fast growing and already widely spread trend is accessibility: the essential part of ELSA – its internationality – is brought to all levels of the network. It does not matter, whether an ELSA Member is

President ELSA Kiel 2016/2017

part of a National Board or part of a Local Board. The Faculty Partnership between ELSA Barcelona UB and ELSA Kiel shall exemplify the untapped potential of ELSA and incentivize further bilateral or multilateral projects within the network.

Synergy

Even though the Faculty Partnership was formally established in autumn 2016 the initial starting point was one year earlier. “It was the time when I arrived in Barcelona to begin my two semester long ERASMUS stay. Being part of the Local Board of ELSA Barcelona UB enabled me to gain deep insights into foreign culture and jurisdiction.” (Maximilian). Once the language barrier was passed, we were glad to benefit from an intercultural exchange of ELSA experience on local level. “This time left its indelible mark on me and the way I saw ELSA.” (Maximilian). In the end we decided to maintain this synergetic effect and formalized a Faculty Partnership.

Consistency

Immediately we faced the well-known question of Consistency. How can we make sure that close cooperation provides upcoming generations of the respective Local

SYNERGY Magazine | 43

Think Global, Act Local

Boards the same Synergy on the one hand, and how do we avoid to bind continuously changing Local Boards on the other hand? If you want to set up a formalized Faculty Partnership you definitely have to take this point into consideration when elaborating the (multilingual) wording. â&#x20AC;&#x153;Think global, act localâ&#x20AC;? is both a mantra to this kind of project in general and symbolic for the measures in particular, that have to be carried out continuously over the years. Keeping in touch is not as simple as it may sound, especially when one is not linked to a specific project. Furthermore the implementation of a long term cooperation is challenged by the yearly transition. However, there are enormous benefits for the Local Boards involved that prove it is worth overcoming the obstacles mentioned above.

Creativity

In the case of ELSA Barcelona UB and ELSA Kiel, one might fear the geographic distance; but again, the intercultural value outshines the geographic distance. It all comes down to an practical implementation of our common vision. What is the reason to be Member of ELSA? Learning about each other and from each other is easiest here in Europe as opposed to elsewhere. Where else is the privilege of various countries, cultures, and languages available with such a high degree of density? Take for example the BeNeLux Conference or the Slavic/Nordic Officer Meetings. It is creativity that helps us to cross borders and enhance our association. When speaking of creativity, it does not mean that we have to reinvent the wheel. We can use already existing means of our Key Ar-

44 | SYNERGY Magazine

Think Global, Act Local eas like STEP, ELSA Delegation or Study Visits. When ELSA Kiel and ELSA Barcelona UB realized a Study Visit in April of this year the participants were part of an interactive ad-hoc workshop during the Study Visit to plan and organize the next measures and projects in order to proceed with our Faculty Partnership. Among others, the results of our brainstorming were bilingual publications in legal periodicals or guest lectures of the respective universities. A few months later we realized the second idea and organized a guest lecture in Spanish about German Law in Barcelona. Recently we were able to find another board member of ELSA Kiel that will proceed with these synergetic effects during his ERASMUS stay in Barcelona this year. Cross-border Cooperation â&#x20AC;&#x201C; particularly on the local level â&#x20AC;&#x201C; provides multicultural identification and intercultural empathy for everyone, let alone sharing and self-implementing ELSA experience.

Energy

Anyone Programas who hasLAWbeen to an ICM knows 1the21/7/17 spirit and Internacionales 190x130.pdf 9:23

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the energy that makes us think, speak, discuss and care about our association. Every local board will probably recognize the same feeling of being exhausted yet motivated at the same time. Being a member of ELSA is not an end in itself. Therefore, it is one of our main tasks as a board members to invoke enthusiasm by sharing our experience and our energy with ELSA, regardless of whether it is on local, national or international level.

Conclusion

We are excited that more and more Regional Cooperation is an increasing and enriching instrument of our Association. According to our experience, the advantages are countless and powerful enough to cause a spill-over effect of reputation in different countries. We hope the recently established faculty partnership between ELSA Barcelona UB and ELSA Kiel will consist of unwavering perseverance and will be seen as a blueprint for other local boards. Creativity and energy are the means to achieve consistency and release Synergy.

ABOVE AND BEYOND BORDERS OF A SINGLE LEGAL SYSTEM

CY

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MASTER IN GLOBAL TAXATION (LLM)

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EXECUTIVE LLM Format: Intensive On-Campus Periods / Online Sessions Campus: Madrid - Chicago Length: 8 Months Intake: September Language: English In collaboration with

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SYNERGY Magazine | 45

Think Global, Act Local

European Regional Rounds of the 15th edition of the ELSA Moot Court Competition

THE EUROPEAN FACE OF THE GLOBAL CHALLENGE Adrian Lazarec

Head of Organising Comitee ELSA Romania

Yuliana Onishchuk

Head of Organising Comitee ELSA Ukraine

Being a volunteer in ELSA means a lot of things. For some it is the chance to improve themselves with enriching experiences that last a lifetime, while for others it means getting to meet and engage with interesting and passionate people from all over the world. Whilst the fact that we volunteer in ELSA for slightly different reasons remains true, what we believe to be universal for every ELSA member is the desire to get closer, every day, to our vision: â&#x20AC;&#x153;A just world in which there is respect for human dignity and cultural diversityâ&#x20AC;?. This is what we strive to achieve by contributing to events like the ELSA Moot

46 | SYNERGY Magazine

Court Competition on WTO Law. ELSA Moot Court Competition on WTO Law is a globally renowned tournament where students from more than 100 universities participate in a simulated hearing of the WTO case. This year brought about the 15th edition of this competition, a number with a definite anniversary ring to it and, when the call for regional round organizers was made, ELSA Cluj-Napoca and ELSA Ukraine won the rights to be appointed as host countries of the European Regional Round. While ELSA Cluj-Napoca has several times organized Europe-

Think Global, Act Local

an Regional Round, the organizing committee of ELSA Ukraine was faced with such a challenge for the first time. Being responsible for organizing a competition like WTO Moot Court is far more than just a personal challenge, it is a challenge for the host country too, as being appointed as a host of the Regional Round gives a unique opportunity to impeccably raise the country'sâ&#x20AC;&#x2122; image abroad. Therefore, over 9 months, step-by-step, we tried to piece together the project working on things ranging from finances, logistics and accommodation to social program and marketing but the thing we also enjoyed the most was getting to meet and interact with the various persons involved in this competition. The success would not be possible without the support and involvement of the ELSA International (Christine Beck, VP MCC as ELSA International). Its involvement and experience in organizing this project proved to be invaluable. Next, came the first contact with the participants of this regional round, students from all over Europe brought together by a passion for the in-

ternational trade law. Itâ&#x20AC;&#x2122;s only proper that one is satisfied by the hard work put in, however when one believes in helping and creating a medium by which ideas are being exchanged and debated it gives a bigger meaning to it. Moreover, one of the most important experiences we obtained by way of searching, communicating and meeting with partners and contributors of the project.

To this end, we were able to discover ourselves as diplomats, lawyers and negotiators. Finally, getting to meet the panellists was a great experience in itself, these kinds of interactions could potentially shape the career course one chooses to follow.

Confidence, enthusiasm and motivation took us through all the highs and lows, the stress and fun, the happiness and conflicts. All this together was worth going through, even simply to get the greatest award which dawned on us - the emotions of excitement and happiness we saw on the faces of every person participating in this great event.

SYNERGY Magazine | 47

Think Global, Act Local

New approach to the IFP

FOCUSMONTH Janine Rüth

Vice President for Seminars & Conferences ELSA Germany 2016/2017

Larissa Balluff

Director for Human Rights and IFP ELSA Germany 2016/2017

Focusmonth is a concept introduced to ELSA Germany by the National Board of 2015/16. The concept behind it is similar to that of ELSA Day, but instead of just one day it lasts a whole month. The idea was it to instil more meaning to ELSA’s dedication to Human Rights.

However, given that the date of the IFP Week is not suitable for the majority of our Local Groups we decided to use this year’s Focusmonth and still contribute to the new IFP. The Focusmonth this year took place from 1st – 31st May. The topic was “The Rise of Environmental Crime – What Ground Will We Stand on Tomorrow”. To support the Local Groups we wrote a guideline in which we briefly explained what Environmental Law and Crime is, explained the Essay Competition which took place during the same time, made a list of potential subtopics, a list of potential partners, wrote down some examples of events that could be organized and lastly named the contact person.

At the NCM Berlin we announced both the winner of the Essay Competition as well as the winner of the best organized event. ELSA Frankfurt am Main won the prize for the best event by organising a fairy-tale Moot Court.

Hansel and Gretel polluted the forest and had to answer for it in front of a court.

48 | SYNERGY Magazine

Think Global, Act Local

The best IFP-event in ELSA Germany

THE ENVIRONMENTAL-PENAL FAIRY TALE MOOT COURT BY ELSA FRANKFURT AM MAIN

Lorenz Färber

President ELSA Frankfurt am Main 2016/2017

The suspense was within one’s reach on this sunny 5th of May 2017 when the three judges entered the court room in the district court of Frankfurt am Main to pass sentence. The two teenagers Hänsel and Gretel, known from the famous German fairy tale “Hänsel und Gretel” by the Grimm Brothers, stood in the dock and waited anxiously for their verdict. They were charged by the prosecution with pollution of forest in joint factum. Furthermore the indictment contains larceny, criminal property damage and attempted murder in concomitance with aggravated battery. The gladness of Hänsel and Gretel was a fortio-

ri bigger when the judges acquitted them of mostly all charges and enforced them only a small fine.

Both of the defendants had nothing to fear from the judges anyway because the court case was no real trail.

ELSA Frankfurt am Main organized a Fairy Tale Moot Court within the International Focus Programme (IFP)

by ELSA International, which encompasses currently the topic Environmental Law. To this effect the record of the fairy tale “Hänsel und Gretel” became modified with crimes of pollution law. The comprehension of this legal field, but also the general appreciation of environmen-

SYNERGY Magazine | 49

Think Global, Act Local talism should familiarize the attendant law students with this topic. The roles of prosecution, criminal defense, defendants and witnesses were completely distributed among ELSA members. The bench was stud with three professional District Court Judges. Moreover the seats of the spectators were filled to capacity.

Two weeks prior to trail the representatives of prosecution had to draw up an indictment. The defense lawyers got subsequently the opportunity to create a defense statement. On the day of the trial the examination of the accused began after the prosecution had read out their indictment. Hänsel and Gretel made a statement about the accusation and admitted it mostly. However they plead innocent and referred to self-defense. They state that they were confined by an old witch in her gingerbread house. The teenagers feared the witch intends to eat them, so they escaped of their cage. Gretel, a notorious boxer, used her skills and knocked the witch out with an accurate punch. To call attention to themselves they burned the witch’s poisoned biscuits whereby toxic gases fumed and the plants of the forest declined. Before their captivity Hänsel sprayed tags on the trees and ground for navigation as he is used to do so in Frankfurt.

In facts of the case the fallout to the environment was disastrous. The as witness appearing swan Emil bewailed his white plumage which fade because of Hänsel’s spray paint into pink. In addition he has suffered from dyspnea since the time of pollution. With sad expression he told the court about his present drab existence because the other swans disown diseased and pink conspecifics. The forester Friedrich also lamented over dying in the woods and water contamination. Nevertheless, he discovered the teenagers after he noticed the smoke and the environmental pollution. The strangest performance presented the old lady who acted dizzyingly and denied her identity as a witch. She talked continually about her baking skills and how much she loves the accused kids. The hearing brought no new evidences so the chief judge closed the case.

The environmental offences are indictable in line with §§ 324 till 330d of German criminal law. The adolescents were charged with water pollution (§ 324 StGB), soil pollution (§ 324a StGB), air pollution (§ 325 StGB) and disposal of toxins (§ 330a StGB). The maximum penalty ranges to ten years imprisonment. Nature protection is furthermore established as a national objective in Ger50 | SYNERGY Magazine

Think Global, Act Local delivered their pleadings. The counsel for the defense could convince the judges by arguing that Hänsel and Gretel acted in self-defense. The professional judges commended all attendees for their assignment and interest in environmental law. The law students learned a lot about this special branch of law embedded in an amusing story. The participants and the judges were agreed that this Fairy Tale Moot Court has to be pursued in the next year.

ELSA Frankfurt am Main won with this performance the competition for the best IFP-event in the German network in 2017. Special thanks are due to the administration of the Frankfurt District Court, the judges and all attendants of this special moot court. man constitution (Art. 20a GG). The law students took a fresh challenge to handle these legislations which are not part of legal lectures in university. As additives they got educational books, legal commentaries and a personal mentor in case of queries.

After a 20-minute-break prosecution and defense lawyers Su

bs E on LSA m crib s tu et d e e mb od nt e sub rs sa ay v scr ip t e 2 0 % io n r at es

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