SYNERGY
No. 64· II - 2018
M A G A Z I N E
Magazine of the European Law Students' Association
65 YEARS ON; THE IMPACT OF THE EUROPEAN CONVENTION ON HUMAN RIGHTS
65 Years of the European Convention on Human Rights
The 20th Anniversary of the International Criminal Court
Are Individuals at the Heart of Human Rights Enforcement?
George Stafford about the effects of the ECHR throughout the years
An analysis of the work of the ICC over the past 20 years by Eduardo Meligrana
Kalpana Bouderlique comments on the enforcement of Human Rights
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ABOUT ELSA
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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.
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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.
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EDITORIAL
Matteo Alessandro Vice President for Marketing ELSA International 2018/2019
When I look back at the rollercoaster ride of an ELSA Career that has brought me to write this; the Editorial for my first Synergy Magazine, I can not help but be lost for words (usually a rare occasion at best). So on a cold October night in the ELSA House, I sit and reflect about what has brought me so far.
other partners, who choose to believe in ELSA, just as we, the members, do.
It is fitting to start with those without whom my work would not even be close to manageable; my team. The seven other board members who pushed me through moments of doubt and inevitable exhaustion. Filipe and Akvile, for being a source of constant support (and sustenance). Loup, for being an eternal optimist. Eva, for being my infallible second set of eyes. George, for never failing to make me laugh in the most dire of times. Finally, Ezgi and Barlascan, my Mediterranean companions, for the late night talks and philosophical discussions which serve as a break from work.
It is a matter of marvel as to how over 50,000 law students from around Europe join together for a common cause. This cause being the infamous line in our vision, promoting 'a just world in which there is respect for human dignity and cultural diversity.' It is, at the end of the day, this vast number of members who should be thanked for making ELSA what it is today.
My Assistant for Publishing, Stela, for the proofreading and overall overview of the project. Andrea, from the Advertising Team, who worked tirelessly on this issue. Last, but most certainly not least, the indefatigable designers, Marek and Florian; two of the most quintessential cogs in the powerhouse which is needed to publish this magazine. Thanks further goes to the contributors, who filled this magazine with its riveting content, as without them, we would have nothing but blank pages. I would also like to thank the Council of Europe for their endless support of ELSA, and particularly the Synergy Magazine. Our work would never come to fruition without the help of Barbara and Sophie, who have aided ELSA throughout several years. Our work is also supported by many 4 | SYNERGY Magazine
It is therefore with this relentless belief and love we have towards ELSA that this work is done. This is what motivates us through sleepless caffeine and energy drink fuelled marathons, and what makes us ensure that every detail is as close to perfect as possible.
ELSA has evolved and grown throughout the years, and this would not have been close to possible without the tireless work of those who came before us. So, thank you to all ELSA members, past and present, for making this Association which we love what it is today. This Synergy Magazine marks the beginning of what I hope will be a fruitful year for the Marketing Area, and ELSA in general. I therefore present to you the result of months of hard work and sleepless nights, a valiant effort by all those who were part of it. This, is the first part of Our Story. Yours,
MA
TABLE OF CONTENTS 06
HIGHLIGHTS
International Board 2018/2019
PARTNERS' AND EXTERNALS' PERSPECTIVE
08
Some Recent Practive of the European Court of Human Rights to
Consider when Implementing Criminal Procedure Codes
Wake Up Digital Souls!
15
11 15 18
65 Years of the European Convention on Human Rights Wake Up Digital Souls! From the Code of Hammurabi to the binary code: Why lawyers
should learn to code.
20 23 24 25
Artificial Intelligence (AI) and the Future of Law Law in a Digital Economy My Path to Brooklyn Law School Do Not Take Brands for Granted!
ELSA EVENTS CALENDAR
28
65 Years On: The UK, the European Convention on Human Rights and the
European Court of Human Rights
31 The 20th Anniversary of the ICC - ELSA's Important Role in its Establishment
39
Are individuals at the heart of human rights enforcement ?
INTERNATIONAL FOCUS
33 34 35 36 39 41
ELSA, An ever developing story Prof. John H. Jackson and his impact on WTO Law and global trade Final push for the ELSA IFP: Environmental Law 65 years on, the impact of the European Convention on Human rights The 20th Anniversary of the ICC - ELSA's important role in its establishment ELS AND ELSA, a Stronger Connection Through Academic Support
with an Active Approach
43
Torture Crime in Italy
THINK GLOBAL, ACT LOCAL
ELSA, Working for Refugees
48
45 48 51
ELSA Delegations ELSA, Working for Refugees Is Access to Drugs a Human Right?
SYNERGY Magazine | 5
“A goal is a dream with a deadline.”
INTERNATIONAL BOARD 2018/2019 The International Board of ELSA, as elected in ICM Lviv, has been working hard ever since the month of July, during which all eight of us received transition from our predecessors. We have been in office since 1st of August 2018, and with each day, our motivation to strive for the best within ELSA grows. Our strength comes both from our unity, as friends, colleagues and housemates, and our diversity, as different cultures and perspectives unite within the Board, to reach, what one would indeed call, synergy. As ELSA International of 2018/2019, we therefore proudly present ourselves to our Network and our Synergy readers. Filipe Machado, the President of ELSA International, did not have to travel far to the ELSA House. He grew up and studied in Belgium, though he is originally from Portugal. He was a student at the Université Libre de Bruxelles, where he stayed to work after finishing his degree, His favourite motto is “Be the change you want to see in the world” – a vision he maintains through all the facets of his position, being responsible for board management, external relations and expansion. As scarf enthusiast, expert singer and proficient whistler, he motivates and brightens up the office, where he can usually be found from early morning to late evening. Akvile Jurkaityte, the Secretary General of ELSA International, previously studied in Vilnius, Lithuania. She takes care of the Internal Management of the Association, ranging from the Regulations, to the International Council Meetings, to the ELSA Trainings, and much more. From her bright spot in the office, behind the infamous ‘Big Brother’ Secretary General computer, she cheers up the Board with her laugh and optimism, no matter the stressful situation. As part of the trio of girls within the board, she is elected genuine selfie-queen and master of hairstyling.
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Loup Cressey, the Treasurer of ELSA International, studied in Montpellier, France, before his election to the International Board. Though he grew up in Paris, his roots are from all over the world, including places as far away as Canada. He takes care of the finances of both ELSA and the ELSA Development Foundation, with a variety of tasks ranging from budgeting, to accounting, and grant-developing. The quintessential morning person, afternoon and evening person too – Loup can usually be found in a good mood, unless faced with an expense without a corresponding receipt. Matteo Alessandro, the Vice President for Marketing of ELSA International, is a Bachelor's student at the University of Malta. Aside from this Synergy, he takes care of ELSA’s Corporate Identity, Public Relations and Branding. Matteo is a supporting area in all senses of the word – always ready to provide cooking tips, amazing leftovers and a shoulder to cry/stress on. How he survives the cold nights in the bottom-most room of the ELSA House is a mystery to his fellow Meds on the board, however, we suspect his late nights at the office might have something to do with it. Eva te Dorsthorst, the Vice President for Academic Activities of ELSA International, did not have to travel far to the ELSA House either, moving from her apartment in Nijmegen, the Netherlands, where she was a Master's student. She takes care of the European Human Rights Moot Court Competition, the Legal Research Groups, the ELSA Law Review, the ELSA Negotiation Competition and all other interactive opportunities ELSA has to offer. Eva is known to be a lover of all things salty, especially toast! She is also known to be able to bake several gluten free goodies, and constantly supplies the House with stroopwaffels! George Manikas, the Deputy Vice President in charge of ELSA Moot Court Competitions of ELSA International, was working in Cyprus as a lawyer, though he was born and
Akvile Jurkaityte, Loup Cressey, Filipe Machado, Barlascan Alphan, Ezgi Yildiz, Eva te Dorsthorst, Matteo Alessandro, George Manikas
raised in Greece. After supporting the previous VP EMCC in the preceding year, he was appointed by the other 7 for the position of Deputy VP EMCC within the Board. Characterised by his consistently Skype-proof office wear, his 5L bottle of water and his impeccable availability for calls from all over the world, George manages the John H. Jackson Moot Court Competition, formerly known as the ELSA Moot Court Competition on WTO Law. Ezgi Yildiz, the Vice President for Seminars and Conferences of ELSA International of ELSA International, graduated in August from the Yaşar University in Izmir, Turkey. Her most important tasks consist of taking care of the ELSA Delegations, ELSA Law Schools and ELSA Webinars, as well as the care for the S&C Hamster she inherited from her predecessor. Ezgi is known for her great storytelling (a side effect of
having been in the Network for as long as she has), her mastery of the Wordpress toolkit, and amongst the girls, for her incredible and thoughtful skincare routine. Barlascan Alphan, the Vice President for the Student Trainee Exchange Programme of ELSA International, is from Turkey as well. After his studies in Izmir, he finished his internships for the Turkish bar in the Autumn of 2018. Barlascan is responsible for the traineeship programme of ELSA, from improving the reception of the interns in ELSA’s Local Groups, to discussing traineeship agreements with firms and NGO’s from all over the world. He will never say no to a good karaoke moment, nor an opportunity to clean the ELSA house – both of which have indebted his board members to him for life.
SYNERGY Magazine | 7
SOME RECENT PRACTICE OF THE EUROPEAN COURT OF HUMAN RIGHTS TO CONSIDER WHEN IMPLEMENTING CRIMINAL PROCEDURE CODES
PARTNERS' & EXTERNALS' PERSPECTIVE
Jeremy McBride
Barrister, Monckton Chambers, London, Visiting Professor, Central European University, Budapest
It is already well-established that a good familiarity with the case law of the European Court of Human Rights (“the Court”) is essential for the proper understanding and application of the obligations arising under the European Convention on Human Rights (“the Convention”). Much of this case law is of particular relevance for the implementation of provisions of Criminal Procedure Codes and other similar legislation.
demonstrations. This situation, which was successfully challenged by an applicant who had been protesting about the restrictions on public gatherings, stemmed in part from the intricacies of different requirements for such gatherings arising under federal and local legislation and constitutional court rulings. Such a finding underlines the importance of ensuring coherence between all levels of regulation of activities.
This is certainly true for many cases concerned with Articles 5 and 6 that have already been determined by the Court in the first seven months of 2018. Amongst those worthy of attention are ones dealing with the exercising of powers of arrest, calculating compensation for wrongful detention, respecting the presumption of innocence, the right to defend oneself and the requirement of an impartial tribunal. Not all the judgments in the cases entailed findings of a violation but all of them have helped clarify the scope of rights that need to be respected in the operation of any criminal justice system.
Useful guidance as to the approach required in assessing compensation for wrongful detention was given in both the Tsvetkova case and in Vasilevskiy and Bogdanov v. Russia, no. 52241/14 (10 July 2018).
In Tsvetkova and Others v. Russia, no. 54381/08 (10 April 2018), one of the reasons that the use of administrative arrest powers was found to be unlawful for the purpose of Article 5(1) was the insufficient foreseeability and precision of the normative framework applicable to the holding of
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In the former, an award of EUR 100 for two days’ detention was not considered low enough as to undermine the right to compensation, even if the award took account of the conditions endured. However, in the Vasilevskiy case, awards at rates of EUR 7 and EUR 2.70 per day for wrongful detention that had respectively lasted 472 and 119 days were considered inadequate. Not only were such awards substantially lower than those made by the Court in similar cases, but it also considered that they were disproportionate to the duration of their detention and negligible in absolute terms. The Court also emphasised, with regards to one applicant whose
Partners' and Externals' Perspective detention had become unlawful following the part of the sentence served on account of the use of inadmissible evidence being void, that the domestic courts (as the custodians of individual rights and freedoms) should have considered it their duty to mark their disapproval of such wrongful conduct to the extent of awarding an adequate and sufficient quantum of damages. Such an approach was, given the fundamental importance of the right to liberty and to a fair trial, essential even if the courts had considered that breach to have been an inadvertent rather than an intended consequence of the State agents’ conduct. The Tsvetkova case was also one of the three cases concerned with establishing the limits to the presumption of innocence. In that case, the fact that an appeal against a sentence of administrative detention did not have suspensive effect was not considered problematic despite the presumption being reversed in a provisional manner. As the Court emphasised, this had been done on the strength of the adverse evidence and the applicant’s own guilty plea, as well as the absence of any manifest shortcomings or gross and obvious irregularities during the trial proceedings. Furthermore, the Court underlined that the presumption had remained applicable to any possible adverse statements made in the appeal proceedings. No violation of the presumption of innocence was established in the two other cases, which concerned the sentencing process, and disciplinary and administrative proceedings relating to conduct that was also the subject of a prosecution, respectively. The first, Bikas v. Germany, no. 76607/13 (25 January 2018), involved the treatment of at least 50 incidents of sexual abuse, in respect of which proceedings had been discontinued, as an aggravating element in the sentence imposed on the applicant for the four incidents of which he had been convicted. In determining the applicant’s culpability regarding these incidents, the Court concluded that a different standard of proof had been applied since, owing to the victim’s speech disorder and unlike the four incidents, it had not been possible to indicate the exact time and place at which they had taken place. However, in the Court’s view, that standard of proof was sufficient for taking them into account in the sentencing process in absence of an actual conviction given their similarity and close link to the four incidents
and the fact that they related to the same victim and type of offence within a certain period, with precisely the same intention. In reaching this conclusion, the Court had particular regard to the particularities of serial offences in the field of sexual abuse. This finding was subject to the important qualification, namely that an issue would arise under the Convention if, following the conclusion of the criminal proceedings in which such incidents were taken into account as an aggravating element, the proceedings in respect of them were continued and the applicant was then formally convicted thereof. Although clearly important for sentencing in cases where a victim has suffered repeated abuse, the ruling could also be of potential relevance for some other forms of serial offending. The case of Güç v. Turkey, no. 15374/11 (23 January 2018) concerned the dismissal of a school caretaker from the civil service for the disciplinary offence of shameful or unbecoming conduct. This is incompatible with the reputation of official functions following the commencement of criminal proceedings against him for the charges of sexual abuse, sexual assault and unlawful detention of a minor, of which he had ultimately been acquitted. The disciplinary investigation that led to the dismissal was found not to have violated the presumption as its use of “harassment’” to describe the act in question was not, unlike “sexual abuse” or “sexual assault, solely connected with criminal law actions. Moreover, there had been no comment on whether the harassment could also be classified as sexual within the meaning of criminal law. Although a reference by the administrative court when reviewing the dismissal to a statement made in the criminal proceedings about rumours concerning the applicant might have been unwarranted, the Court recalled its past findings that the use of some unfortunate language could be tolerated as long as such reliance did not result in any comment on a defendant’s criminal responsibility or the drawing of inappropriate conclusions therefrom. While the reference to the statement could, if read on its own, be interpreted as the applicant guilty being considered of child molestation because of his alleged past behaviour, the Court considered that the administrative court’s previous reference to the evidence available in the disciplinary case file, and its following conclusion that it did not regard the applicant’s explanations credible, meant that the reference did not amount to an imputation of criminal guilt. SYNERGY Magazine | 9
Partners' and Externals' Perspective The scope of the right to defend oneself in person was addressed in Correia de Matos v. Portugal [GC], no. 56402/12 (4 April 2018), with the Court being split 9-8 as to whether the applicant, a lawyer no longer authorised to practice, could be required to be legally represented in criminal proceedings against him for insulting a lawyer. The majority considered the reasons for requiring compulsory assistance by a lawyer (namely, to secure an effective defence in cases where a custodial sentence is possible) to be relevant and sufficient both in general and in the present case. In doing so, it emphasised that the applicant was not authorised to act as a lawyer and there were several means by which the accused could still participate and intervene in person in the proceedings. Moreover, although the costs of mandatory legal representation had to be met, legal aid was available and in this case the amount was small and not actually enforced. However, the minority of the considerations emphasised included the need for a harmonised approach to the application of human rights standards. A different conclusion had been reached by the Human Rights Committee when applying the right to a fair trial under the International Covenant on Civil and Political Rights in a similar communication submitted by the applicant, as well as the importance of individualisation, there being no assessment of factors such as the complexity of the case, the level of jurisdiction concerned, the training of the applicant, and the severity of the offence and of the penalty. There was also concern about the application of the margin of appreciation given that the approach taken by Portugal was not widely followed by other states. In view of the narrowness of the majority for no violation and the different approach of the Human Rights Committee, it seems unlikely that this Grand Chamber ruling will be the last word on mandatory legal representation. The problems of observing the requirement of impartiality can be seen in two cases. Thus, in Boyan Gospodinov v. Bulgaria, no. 28417/07 (5 April 2018) the applicant’s trial by a court against which he had a pending civil action, in connection with an earlier set of criminal proceedings, was found not to be unsatisfactory. This conclusion was seen as being reinforced by the fact that any compensation awarded would come from the budget of the court trying him and by the failure to deal with his request that all the judges in the court be removed and that case be referred to another court.
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However, in Chim and Przywieczerski v. Poland, no. 36661/07 (12 April 2018), fears of lack of impartiality on account of the judge’s irregular assignment to the case, which led to a finding that they had not been tried by a “tribunal established by law”, were not considered to be objectively justified in the absence of restrictions being imposed on procedural rights, improper gathering of evidence or an unjust sentence being imposed. Moreover, the Court did not accept that, with reference to the subjective test, it could be inferred from the judge’s comments in favour of a harsh criminal policy (given in an interview after hearing the evidence in the case) that he considered the applicants guilty. In the Chim case there was also an unsubstantiated allegation that the judge had advised on the drafting of a bill that led, during the trial, to an extension of the limitation period applicable to the offence with which one applicant had been charged. In the Court’s view such an extension could not be considered as a legislative interference with the case since the law concerned had not influenced the judicial determination of the case in the substantive sense, but merely extended the temporal limits of criminal liability. This conclusion reflected the Court’s view that the rules on limitation periods should be classified as procedural rules. Although the extension of the limitation period could thus not be considered to have violated the right to a fair hearing, it was important that this had not been tainted by arbitrariness and was not applicable to any offences that had become timebarred before its adoption. Case law developments such as those just considered are undoubtedly relevant for all Member States and not just the respondents in them. Keeping up with such developments and then taking action pursuant to them, whether by legislative amendment or changing court practice, remains crucial for ensuring that the operation of all criminal justice systems in Europe is compatible with rights under the Convention.
Partners' and Externals' Perspective
A look at what the ECHR has achieved and how we can help protect it for future generations
65 YEARS OF THE EUROPEAN CONVENTION ON HUMAN RIGHTS
George Stafford
Lawyer , working on Council of Europe’s ‘Impact of the European Convention on Human Rights’ Project
When asked about slavery, most people might think of Ancient Rome, the transatlantic slave trade, or the south of the United States before the Civil War. Most people, however, don’t think of Paris at the turn of the 21st Century. The story of Henriette Siliadin suggests that we should. At the age of 14, she arrived in France. Those accompanying her took away her passport, and made her work as an unpaid servant, all day long, 7 days a week for over four years. When the authorities intervened, she had to stay in a hospital for six months to recover. The surprising part of Henriette’s story is not that someone would do such a thing to another human being. Domestic servitude is a huge problem in Europe and there are tens of thousands of victims of human trafficking every year. The extraordinary thing is that it was not a crime. French law at the time had not outlawed domestic servitude or slavery. People who had subjected Henriette to four years of humiliation, when she should have been in school, were not convicted of any offence. According to Henriette, “I knew that what was happening to me was unfair because I had a family before and knew how human beings should be treated.” She took her case to the European Court of Human Rights. In 2005 she won the case in the landmark judgment. It established
that domestic servitude and slavery had to be outlawed and it led to reforms in France and all over Europe. Other cases from the Court established that human trafficking must be outlawed too. Together with other international treaties, notably the Council of Europe’s anti-trafficking convention, these cases have helped to bring huge reforms aimed to prevent one of the most appalling violations of human rights in the world today. The story of the European Convention on Human Rights Henriette’s story is a powerful one, but it is not widely known. If you asked a random person in Europe, they wouldn’t know Henriette’s case. They wouldn’t know that the European Convention on Human Rights has been instrumental in fighting contemporary forms of slavery. They would probably not know that it is the most effective international human rights agreement that has ever existed: that for 65 years it has served as a model for constitutions, a bastion of fundamental values, and the engine to power the spread of human rights across the continent. The Convention includes a list of basic rights, like the right to life, the prohibition of torture, the right to liberty, and the right to a fair trial. It was first created SYNERGY Magazine | 11
Partners' and Externals' Perspective after the Second World War, when it was initially signed by just 12 countries. Since then it has been acquiring more and more signatories: mainly from Southern Europe in the 1960s, 70s and 80s; and then from Eastern Europe after the end of the Cold War. Today there are 47 states that signed up to the ECHR. Not all of those states are completely compliant with the treaty, yet in all of them, there has been a positive impact – and in many cases it has been transformative. The Convention has the power to do this in many different ways. First, the ECHR text and the Court’s case law are used as inspiration when constitutions and laws are drafted. Rights are woven into the fabric of a society, because they are recognised as fundamental to European values by being upheld in the continent’s main human rights treaty. Second, there is litigation in front of the European Court of Human Rights. After countries sign up to the ECHR, individual citizens can bring cases to the Court. If the Court finds a violation, the government of the country involved has to provide justice not only for the individual applicant (such as compensation), but also for the society as a whole, by taking steps to make sure the same problem does not happen again (such as through changes in legislation or other practical measures). Third, countries can take note of rulings by the Court against other states, and reform their own human rights protections according to the standards they see being upheld in other cases. The impact of all of this is so vast and so complex that it has never been recorded in a single piece of work. The ECHR has such a wide-ranging effect, in so many different jurisdictions, that it is probably impossible for all of its achievements to be known. Yet we can see clear examples. None of the 47 states that are party to the ECHR have the death penalty. None have laws that criminalise homosexuality. There are hundreds or thousands of times when, thanks to the ECHR, people have been protected from police violence (Article 3), innocent people have kept their liberty (Article 5), defendants have had a fair trial (Article 6), parents have been able to be with their children (Article 8), worshippers have been able to gather in peace (Article 9), and protestors have been able to make their voices heard in public demonstrations (Article 11). It would be naive to say that the ECHR is universally upheld all over Europe. However, it would also be naive of us to forget its impact and importance. Unfortunately
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The European Convention on Human Rights
In brief
47
European countries
have signed up to the convention
830
million people
can bring a case to the European Court of Human Rights
17,000
judgments have been implemented
Around 10 cents per person per year * the annual cost of the ECHR system * Based on the Council of Europe’s 2018 budget and 830 million as the total population of the 47 member states
Partners' and Externals' Perspective there is a risk that we do just that, thanks to a combination of “fake news” and “no news”. Fake news is old news for human rights In October 2013 a newspaper in the UK published a series of allegations about compensation awards from the European Court of Human Rights going to criminals. In truth, only a small number of the UK cases at the Court have involved serious criminals and the protection of their rights, such as the right to a fair trial. In the majority of such cases, even when a violation of a right has been found, the applicant has received no money as compensation. The newspaper told a different story. It stated that over 4 million British pounds had been paid to “some of Britain’s worst criminals”. This was entirely wrong. In truth, the 4 million figure accounted for all of the money that had been paid out as a result of ECtHR rulings involving the UK since 1998. The vast majority of the applicants in these cases had not been convicted criminals: they included disabled people claiming equal rights, or news organisations trying to protect their free speech. Furthermore, the vast majority of the money referred to had been for the applicants’ legal costs, not compensation. The real story was that the majority of UK human rights cases concerned the rights of everyday people and the vast majority of money paid out goes to the UK’s particularly expensive lawyers. Yet the fake version was the one that spread. The story was copied by other newspapers, without any fact-checking or correction. In the end it may have been seen by millions of people. Human rights cases have long been susceptible to the exaggerations, misconceptions and lies that today we call “fake news”. The UK is not alone in this – it can happen all over the continent. Human rights cases are extremely attractive targets for misleading news stories, because they often involve protecting the rights of ethnic, sexual or religious minorities that the rest of society can sometimes ignore or victimise. Prisoners are also an easy target. If human rights are to mean anything, they have to apply to everyone. Sometimes this means upholding the rights of people who have done bad things – like the right to a fair trial
during the prosecution of a crime. This is uncontroversial for most people, but can be made into a sensation with some added “fake news”. Some exaggeration, some misleading information, and one or two full-blown lies can turn a story about protecting a controversial person’s rights into a full-blown public outrage. No news is bad news In addition to the misreporting of the ECHR, there is the sheer lack of reporting about the ECHR. The judgments from the Court sometimes generate a lot of headlines. Yet it is the substantive reforms that follow as a result of the cases which are arguably the ECHR’s greatest achievements. These may protect the rights of thousands or millions of people, but they are also complex, slow, procedural, and largely happening in a foreign country. All of that is anathema to news reporting, which now more than ever can rely on nearby events that might induce anxiety or anger. The old newsroom adage of “If it bleeds, it leads” shows how unattractive legal or political reforms are for news. Legislation to protect human rights does not bleed, so it is not at the top of the agenda and naturally we do not hear about it. The danger of a low profile If the value of an institution is not widely known, and false criticisms of it are spread widely and believed, then that institution is at risk. This is particularly true in an era of populism, when international institutions are under attack and politicians present seductively destructive ideas to disillusioned electorates. It would be a sad tragedy if, after 65 years of fantastic success for the European Convention on Human Rights, countries were to leave the Convention because its value had been hidden from the world. The ‘Impact of the ECHR’ Project In this context, the Council of Europe has started a new project. The aim is to vastly improve public understanding of the European Convention on Human Rights system. It is hoped that, by making some examples of the system’s achievements freely available, presented in a simple and attractive way, and in a variety of different languages, defenders of the system across Europe will be given the SYNERGY Magazine | 13
Partners' and Externals' Perspective tools they need to make the public case for the ECHR. The main part of the project is a website which puts the human stories of individual justice at a front and centre. We identified 100 cases, where an individual faced a violation of human rights, fought for justice, and where their case led to changes to protect the human rights of many others. The summaries were arranged by country and by 12 different themes. The website can be found here: www.coe.int/echr. Over to you We created the website so that it would be useful for a wide range of people, including readers like you: law students learning about international justice. Our intention is not to ignore the ongoing challenges to human rights in Europe today, but to help people understand why the ECHR is central to facing those challenges. We hope you will visit the site, at www.coe.int/echr, but we also hope that you will share it with family and friends – offline or online. Now more than ever before, human rights defenders have to combine both law and communications to protect the rights that our parents and grandparents fought so hard to obtain. If we want to preserve these rights for future generations, we have to help everyone in our society understand them. That means talking about them, posting about them, and tweeting about them. The site makes it easy to do this. We hope you will help us spread the word.
Fair trial reforms after innocent man was sentenced to 40 years in jail Ajdarić v, Croatia, 2011 Neđo Ajdarić was 52 when he was given an unfair trial, wrongly convicted of three murders, and sentenced to 40 years in prison. He was released after winning his case in Strasbourg, and changes were introduced to help ensure fair trials in the future. Man’s struggle leads to the legalisation of homosexuality in Ireland Norris v. Ireland, 1988 David Norris suffered from anxiety attacks and depression after realising that any open expression of his homosexuality could lead to a criminal prosecution. The Strasbourg court ruled that the criminalisation of his sexuality breached his basic rights. In 1993, this led to the full legalisation of homosexual acts between consenting adults under Irish law. Death of a young girl leads to reforms to combat human trafficking Rantsev v. Cyprus and Russia, 2010 At age 20, Oxana Rantseva was allegedly trafficked from Russia to Cyprus for sexual exploitation. Two weeks later, she was found dead beneath a balcony after trying to escape. The Strasbourg court found that the authorities had failed to protect her and also failed to properly investigate after her death. Following the events, a series of measures were carried out to fight human trafficking. Reforms to prevent police brutality after violent assault on innocent man Mrozowski v. Poland, 2001 Artur Mrozowski was on the train home from work when the police arrived in response to disruption caused by other passengers. Mr. Mrozowski was sober, peaceful and calm. Nevertheless, an officer beat him in the face with a truncheon, knocking out three of his teeth. An investigation found that the police had done nothing wrong, but the European court ruled in his favour. Following this and other cases, comprehensive reforms were carried out to help prevent police brutality. Nurse compensated after being fired for whistleblowing Heinisch v. Germany, 2011 Brigitte Heinisch was a geriatric nurse. She claimed that practices in the old people’s home where she worked were putting patients at risk. After she made her allegations public, she was fired. Yet, the German courts found that her dismissal was lawful - so Mrs Heinisch took her case to Strasbourg. Her case was then re-opened and she was awarded compensation. Reinstatement of judge who was the victim of political corruption Oleksandr Volkov v. Ukraine, 2013 Oleksandr Volkov was dismissed from his role as a Supreme Court judge, after he became the victim of political corruption seeking to undermine the independence of the Ukrainian judiciary. The Strasbourg court ruled that his dismissal had been filled with bias and manipulation, in breach of his basic rights. Mr. Volkov was reinstated as a Supreme Court judge in 2015.
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Partners' and Externals' Perspective
WAKE UP DIGITAL SOULS!
Your fundamental right to data protection is at risk, and so is the freedom of human souls
Sophie Kwasny
Head of the Data Protection Unit Council of Europe
The digital “Far West” Revelations earlier this year concerning the use of the personal data of over a 100 million users of Facebook by Cambridge Analytica for profiling1, micro-targeting, psychological modeling and personalised political advertising to influence elections have led to an unprecedented public outcry. Later on, more recently, it’s a massive data security breach that threatens the privacy of yet again millions of individuals. The “Far West” nature of the digital era is coming under the spotlight, shaking the business model of monopolistic internet platforms, and leaving all of us with a burning question on our lips: is this an isolated case? How can breaches of this magnitude happen and what needs to be done to shield us from the darkness and obscurity of this digital environment? Big data2 and artificial intelligence represent a new paradigm in the way in which personal information is collected, combined and analysed, and is a source of significant value and innovation for human kind. 1 See the Committee of Minister’s Recommendation (2010)13 on
profiling 2 See the Guidelines on big data adopted by the Committee of Convention 108.
However, in ways that were difficult to predict just over a decade ago, data-driven machines are also an obvious possible threat to our democratic societies. The right to data protection, traditionally linked to the fundamental right to private life (Article 8 of the European Convention on Human Rights) has evolved through the past decades into an autonomous fundamental right, enabling the exercise of other human rights and fundamental freedoms. The example of the Facebook/Cambridge Analytica case begs us to ask ourselves how we can secure our right to free elections, a fundamental pillar of our democratic societies, if we cannot ensure that our personal data is not misused? Article 3 of the first Protocol to the European Convention on Human Rights guarantees “the free expression of the opinion of the people in the choice of the legislature”. Has this free expression been safeguarded in the British referendum on the membership of the United Kingdom in the European Union? Artificial intelligence is spreading to all areas of our lives, with direct life-threatening consequences, as demonstrated by the deaths involving (human)
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Partners' and Externals' Perspective driverless systems, and without even mentioning the lethal autonomous weapons that are being developed for military purposes, which make our worse science-fictions nightmares getting closer and closer to reality than ever. But greater dangers, less visible than fatal accidents, await our societies if the furtive and generalised exploitation of our personal data is not dealt with rapidly. The sheriff and/or tarring and feathering In Europe, the right to data protection has been laid down for over four decades in some countries (beginning with Sweden in 1973), and at international level since 1981 with the Council of Europe Convention on the protection of individuals with regard to automatic processing of personal data3 (also known as “Convention 108”). When this Convention was drafted, there certainly was no internet, no smart phones, no social networks, no connected objects, no (technological) clouds and no artificial intelligence. If its core principles had been applied in the Facebook/Cambridge Analytica case, what is now a global concern would not have occurred. The provisions of Convention 108 are highly relevant to this case: lawfulness, fairness and legitimacy of the processing, purpose limitation, proportionality, security, stronger protection of ‘sensitive data’ (such as any information revealing political opinions), right of information as an essential pre-requisite to a meaningful and valid consent, role of supervisory authorities, etc... Solely focusing on consent, in 2015 I wrote the following for Synergy Magazine4: “That’s the ‘creepy’ part of this new digital environment we are living in: our lives are hyper connected, we produce personal data any time we breathe, any time we use devices, any time we browse, and are totally in the dark and ignorant of what is happening with our data. This is something that we allow in this digital world, which we would refuse if we were to see it happening in our offline world. If when buying a torch light the seller would come and ask you to hand over for instance the full list of 3 http://conventions.coe.int/Treaty/en/Treaties/Html/108.htm - The Convention has been complemented in 2001 by an additional protocol dealing more specifically with the supervisory authorities and transborder data flows. 4 See “The right to privacy and its future in a Council of Europe context”, Synergy Magazine No.57 I-2015. 16 | SYNERGY Magazine
Partners' and Externals' Perspective contact details of your friends and family, and to disclose all locations you will be going to in real time from nowon, would you accept it ? Well I would certainly not, but at least for this to happen in the off-line world, he or she would have to ask me, which is precisely often not what happens in the on-line world where unquantified amounts of personal data are generated and shared (possibly sold..) with third-parties without us even knowing.� It rapidly became obvious to all privacy defenders that the data protection scheme originally established in the 70ies needed reinforcement in order to match the technological challenges arising in the third millennium. As a complement to the core data protection principles laid down in 1981 by Convention 108, for the past seven years, the Council of Europe has been working to significantly upgrade the level of protection afforded, to provide people around the world with a modernised version of Convention 108, fit for new privacy hiccups.
we need strong sheriffs. The role and powers of the independent data protection supervisory authorities, their capacity to cooperate between peers at international level, and to expand cooperation to other concerned regulators (competition, elections, media, etc.) is an absolute must for both our effective protection and for the sake of our fundamental freedoms. As individuals, we also have means to take action and defend our rights. Modern tarring and feathering, with all the damages to reputation that this implies, will be instrumental in sustaining a trusted environment and towards reviewing the balance between giant economic actors of the digital era and billions of souls.
Convention 108+5 is enhanced with new principles and obligations aimed at responding to some of the challenges posed by the new digital environment and is granting us a better protection. The modernised Convention notably imposes data breach notification, greater transparency, privacy impact assessments, privacy by design, new rights for the individuals in algorithmic decision-making, etc. As data flows know no frontiers, legal solutions need to be as globally widespread as possible. Would consumer groups urge internet giants to commit to global privacy rules if they felt that the law applicable to them provided strong privacy safeguards? This is where Convention 108 (and tomorrow Convention 108+) is a crucial asset for our protection: it is the only tool at a global level providing a uniform basis of common principles and legal means to address these challenges. It is open for accession to any country which has a compatible law, and currently gathers 53, including African and Latin American states. We need more countries to join, thereby demonstrating internationally that they have a sound data protection system and wish to benefit from the forum of cooperation offered by the Convention. Finally, if the adaptation of the law to new challenges is key, so is its enforcement. In the digital “Far West�, 5 Convention 108 as modernised by Protocol CETS 223, open for signature on 10 October 2018.
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Partners' and Externals' Perspective
FROM THE CODE OF HAMMURABI TO THE BINARY CODE: WHY LAWYERS SHOULD LEARN TO CODE. Alejandro TouriĂąo
Professor at IE Law School Director of the Master in Legaltech Managing Partner, ECIJA and IE Law Professor
There is a growing debate as to whether lawyers and legal practitioners need to learn to code or not. Is this a trend or a deep change in the legal industry? Historically, law has been a code, but today the codes of law are different in nature. From the Babylonian code of law and the Code of Hammurabi, to the computer protocol code behind smart contracts, law and code are, and have always been linked. The technological disruption has rapidly become a driver for innovation in civil society. We are currently facing a digital transformation, a profound revolution of all businesses and organizations, processes, competencies and economic models, which leverages the changes and opportunities of the new economy. The digital transformation affects all sectors and all aspects of companies. In this new reality, all industries are affected 18 | SYNERGY Magazine
and there is no reason why lawyers should not be part of this profound transformation. Digital transformation provides the legal industry with unknown opportunities for creating value. Several years ago, it took Fortune 500 companies an average of 20 years to reach a billion-dollar valuation. Today’s digital startups are getting there in less than 4 years. These rapid advances in digital technology are redefining not only society but also the legal industry, pressured to catch up with the tech scenario. The big leap The moment for companies to disrupt the traditionally conservative legal market at every level and from every angle has arrived. In the last years, we have seen interesting
legaltech developments that are accelerating the digital transformation of the legal industry. However, the big change in the legal industry is not accomplished by lawyers and firms but by legal tech vendors. They are the ones that are racing to develop tools for lawyers that shorten the profound gap between legal professionals and the clients’ needs. In fact, tech businesses conducted by non-lawyers are the engines that are leading the digital transformation in the legal industry. This reality is a result of the lack of involvement of lawyers in business and in technology, which is not acceptable - not anymore. Lawyers must rise to the challenges; if they do not do so, non-lawyers who have the right skills to fulfill the clients’ requests will be the ones performing the legal work. Technology will have an increasing effect on lawyers’ practice: soon contracts will be ‘smart contracts’, litigation will be 100% online, judges will be robots, etc. If law is becoming computable, then lawyers need to code. Learning to code will give lawyers an advantage against competitors who are not at that level. Coding is an essential skill for lawyers in the 21st Century. Those lawyers who cannot code in the upcoming years will not be able to deal with their clients’ demands and will probably be overridden, and therefore, relegated from the nearly coming legal tech ecosystem. That being said, coding is not only a question of skills - it is a question of attitude. Tech and coding will help lawyers understand very complex matters and discuss them with clients, thus adding value for clients and lawyers alike. It is imperative that lawyers learn to code, otherwise they will be replaced by experts who are trained to do so.
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ARTIFICIAL INTELLIGENCE (AI) AND THE FUTURE OF LAW
Dr. Heather Anson Digital Law UK
It is a very exciting time for those just starting their legal careers. With the rapid advancement of AI comes the revolutionising of the practice of law itself. Legal professionals who have been around a while tend to look at this trend with fear and resist the inevitability of it, often to their detriment. As students and newly qualified legal professionals, members of ELSA are ready to embrace the changes that come with the advancement of AI. There are two main aspects of AI and the future of law that I will look at below. I believe they are the two most important areas for consideration by anyone wanting to prepare for the new world of AI and law.
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Partners' and Externals' Perspective AI in Lawyering This is all about how the legal profession can use AI to improve the practice of law going forward. Many people worry about AI taking over legal profession to the point we are no longer necessary. But if we think about it logically, AI and technology have been evolving for a long time and they have not yet come close to replacing any profession. And even where they have, to some extent, taken over certain jobs, such as in manufacturing, jobs still remain, and new jobs are created on the back of them. In many cases the advancement of AI has helped the profession it was integrated into, as well as increased people’s ability to access the benefits of that profession. Take a look at the example of AI and accountants. Accountants were probably one of the first “white collar� professions to see the introduction of AI. What AI? The digital spreadsheet or the forerunner of the very common software, Excel. Accountants used to spend enormous amounts of time handwriting columns of numbers only to have to erase and rewrite them when just one figure was changed. This was expensive and time consuming to the point that not many smaller companies, let alone individuals, could ever afford to hire an accountant. The introduction of a piece of software that can immediately do all of the calculations that it used to take hours to do, as well as with the flexibility to recalculate those figures when just one or two of them were changed, was monumental. And not surprisingly, many accountants described this as the beginning of the end of the accounting profession. But this could not be further from the truth. It made the tedious tasks of an accountant disappear and allow them to focus on the actual job of accounting. This created benefits on both sides of the equation. It took a fraction of the time to do the same job so accountants could justifiably increase their billable rate and take on more clients. On the client side, even with a higher average hourly rate, accountants became much more affordable as a service. They did not need to pay the accountant for hours of their time to calculate numbers. They only had to pay for an hour, maybe two. There has also been an increase in the number of accounting/analyst jobs since the advancement of the digital spreadsheet. So not only did AI not bring the downfall of the profession, but it made it more profitable, more accessible and more affordable. In short, AI made it better.
There are many ways that AI can do the same for the legal profession if we learn to embrace it. We need to look at where AI can replace the more time-consuming and tedious, yet necessary tasks. This will allow us to better provide services to clients as well as increase access to justice. My last thought on this is a response to a Tunisian Minister who gave his perspective on the presentations that a colleague and I had given earlier that day at a conference on AI and the future of law. He held up a robot, that was being demonstrated by one of the sponsors, and said that if you asked anyone whether they would rather have this robot for a lawyer or a real person, they would always pick the real person. However, he missed the point entirely. Most people do not have the choice of a lawyer at all. The real question is whether a person would choose no legal representation at all, or AI specifically designed to help them with their legal issue. They would take the AI over nothing. That is what the true benefit will be of AI and law in the future. More people, especially those that are more vulnerable and in need, will have access to law and justice - and that can only make us better.
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Partners' and Externals' Perspective AI in Legislating With the rise of new technology and AI comes the need to have laws in order to deal with the implications. This is an exciting time to enter legal profession if you are at all interested in how new law is written. You may even be a part of that process, creating the laws of the future. This may seem like a daunting task but if we break down the task, like with any large task, it seems much more manageable. I have written frameworks on how to approach various issues of AI over the past few years and I have concluded that there are three types of approaches that make it easier. The first approach is not to write new law at all but rather to think of how existing law can address an AI issue. We do not need to reinvent the wheel in many circumstances. An example of this is self-driving vehicles. Existing laws around product liability are ideal. For example, concepts like manufacturing defect in case an AI car crashes because the manufacturer did not programme it to recognise an obviously dangerous and common roadway scenario. Part of product liability is also the ability to waive liability of manufacturers in some scenarios, or accept risk as the user of a product in order to be able to use the product accepting some inherent risk, but having a much higher likelihood of the benefit. The second approach is the adaptation of existing laws. I see this helping a great deal in the area of autonomous, self-learning AI. If we evaluate this type of AI in the same way we evaluate other beings capable of thinking, animals and human beings, we can adapt laws to address how we handle each stage of AI. If the AI has, or is at, the equivalent level of autonomy and self-learning as a dog, we would look at how we handle issues with dogs. Dogs are able to act independently (autonomously) and can learn, but are limited and are also highly influenced by their environment. If a dog does something to harm another person, such as bite someone, the law may require the dog to be put down. The same would then apply to the corresponding AI. The third and final approach is creating new laws that address technology and AI that cannot be covered by the previous two approaches. However, even here we 22 | SYNERGY Magazine
do not need to reinvent the wheel. We can look at how complex issues have been successfully legislated in the past and draw from those examples. The best example I can give for this is the legislation concerning the Internet. It seems impossible to create cohesive laws about something that has the influence around the globe and seemingly has no borders. But this is not a new issue and indeed there is a very robust and long-standing body of law that addresses a very similar type of problem. It is called Maritime Law. Even experts in this area of law have been surprised at just how suitable the framework of Maritime law would be for creating a lasting Internet Law. Thus, the archaic becomes the future. You can see now why I believe that the future of law is bright and why I envy new professionals entering the profession today. I cannot wait to see how all of you will use these opportunities.
Partners' and Externals' Perspective
Technology is revolutionizing law
LAW IN A DIGITAL ECONOMY
Gonçalo Saraiva Matias
Dean of the Católica Global School of Law
Technology is revolutionizing law. First sign of that revolution is the globalization in legal studies and practice, with the consolidation of global law. Secondly, legal scholars and experts started dedicating their attention and activity to new areas of law such as the law of internet, the law of artificial intelligence, or the relations between law and technology. Finally, the legal practice is rapidly changing due to technology. Services that law firms traditionally provided are being substituted by technology at a fraction of the cost, incomparably faster, and with higher efficiency and certainty. That is the case of contract review, or large due diligence, for instance. When in the past an army of lawyers was needed to review thousands of contracts, but now technology can, within minutes and with greater certainty, flag the problematic cases that need lawyer’s attention. In this sense, technology is helping lawyers save time, and clients save money. It also represents a huge change on how the law firms are structured and how they determine their fees. All these changes need to be acknowledged and incorporated by law schools and blended into the learning process of the lawyers of the future. It makes absolute no sense to continue to teach law based on contents or
information, when it is already available to everyone in a much faster and accurate way - through technology. Católica Global School of Law offers a state of the art legal education having been able, in the past decade, to anticipate trends and promote innovation. For these reasons, and having in mind the legal digital revolution, Católica Global School of Law is introducing a course, common to its LL.M.s, focusing on Law in a Digital Economy. It will not be a programme on law and technology, neither on law of technology. The purpose of this programme is to cover the several aspects and ways technology impacts law in a digital economy. The programme will offer students the opportunity to revisit traditional and not so traditional branches of law trough the lenses of technology. The digital economy challenges virtually all legal disciplines, posing different problems to each one of them. The purpose of this is to prepare students to be the lawyers of the future, not only travelling between legal orders in a globalized world, but also mastering how law should be perceived in a digital economy.
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Partners' and Externals' Perspective
MY PATH TO BROOKLYN LAW SCHOOL Nallely K. Shapiro
Current LL.M. Student Brooklyn Law School
I wanted to become a lawyer since I was seven years old, which made every academic decision I ever made consistent with that goal. Getting a Law degree from my home country was a dream come true, but the moment I decided to move to the US and pursue a legal career here, I knew that I had to choose my next Law School very wisely. There’s a variety of Law Schools in the country, but not many offer the LL.M. program that I needed. I did careful research on the options that I had based on my location, the clinics and internship options, the specialization possibilities and the faculty. Brooklyn Law school was not only the most cost-effective program out there, but it also had a very prestigious faculty. They offered a wide variety of over 40 clinics, internships and externships that LL.M. students could apply to, which meant that as a student I would be able to get hands on experience with the type of law I want to practice.I was amazed with the opportunities that the school showed but I still had a million questions. I decided to call Julie Sculli, the Senior Director of International Programs, to get more information about the LL.M. program. She did not hesitate to answer my questions, had great knowledge of the requirements I needed to be aware of and even gave me a good idea of what it would be like to be a student at Brooklyn Law. She explained that I would be able to select most of my classes, so I could choose my own adventure. After that first call, I immediately knew it - Brooklyn Law School was the perfect school for me. Financially, it worked for me, and after a couple of hours I finished my application to the school. Shortly thereafter, I received a notification from the Law School Admission Council (“LSAC”), an organization that facilitates applications to U.S. law schools, that my file was complete and that Brooklyn Law School had received
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my application. For the next couple of days, I waited for my transcripts and letters of recommendation to be reviewed by Brooklyn Law School. I remember checking my email every ten minutes to make sure I didn’t miss any communication from Brooklyn Law School. I thought I was having a heart attack when I got the email, exactly one week after submitting my application, confirming that I had been accepted to Brooklyn Law School. Every single one of my sacrifices - the late worknights, hours of study and group meetings - had paid off. I made it into the law school of my choice. I had never been more excited to be accepted into a school. I attended the Admitted Student Day program held on the campus and had the opportunity to hear the experiences of alumni, current students, professors and the Dean. It was on that day that I felt, for the first time, what it was like to become part of a school community, one that not only cares that students finish the program successfully but also gives them the tools to succeed after graduation. After beginning my study, I realized that my intuition was correct. With the small size of the LL.M. class and the unique environment that comes from a multicultural student body, I have been able to connect with my LL.M. and J.D classmates, build relationships, hear from alumni, become part of organizations and volunteer in my community. After reading some of the history of the school, walking the halls, and speaking to professors and alumni, I am aware of how special my school is. Every day, as I step in the courtyard, I feel proud to call Brooklyn Law School my home.
Partners' and Externals' Perspective
DO NOT TAKE BRANDS FOR GRANTED Hadrien Valembois
Policy Officer - Europe International Trademark Association (INTA)
A plain white pack of cigarettes with only the brand’s name in black…a package of cereal without the picture of Tony the Tiger…a bottle of a famous Dutch beer without the red star on its logo….The common denominator? These products are all facing “brand restriction” (BR). BR has no legal, commonly accepted definition. Most of the debate on BR revolves around tobacco and the protection of public health. The introduction of plain packaging (a subset of brand restriction) on tobacco products in Australia in 2011 is a case in point. However, we are currently witnessing a global spill-over effect: To other forms of BR: For instance, South Africa has forbidden the depiction of babies or children on baby formula labels; Chile has restricted the use of cartoons on sugary food product packaging; in Latin America, regulatory changes require that the generic name for a pharmaceutical drug be three times the size of the trademark on the labelTo other categories of lawful products: From food and drinks to pharmaceuticals and medicals devices as well as cannabis. To other objectives: Countries have introduced BR to protect public health (on the labels of tobacco and sugary products) as well as to protect public order (e.g., a Hungarian draft law that would have resulted in prohibiting the red star for Heineken beer because it was deemed a sign of totalitarianism). To all regions: What started in Asia-Pacific (Australia, New Zealand, and Thailand) has spread to Europe, Africa, Latin America and North America. BR raises three main challenges. First, a legal challenge: BRs violate several international
treaties (articles 2, 8.1, 15.4, 17, 20 and 26 of the WTO Agreement on Trade-related Aspects of Intellectual Property Rights-TRIPS; article 2.2 of the Technical Barriers to Trade Agreement; articles 6quiquies; 7; and 10bis of the Paris Convention on Industrial Property); regional legislation (freedom of expression and right of property enshrined in the EU Charter of Fundamental Rights, European design and trademark laws) and some national trademark legislations. Second, a ‘brand value’ challenge: BRs prevent a company from marketing its products effectively through their logos, resulting in a loss of sales and, potentially, jobs. Brands as intangible assets are also affected, as they reflect quality, distinctiveness and value(s), not to mention consumer trust. Third, a philosophical challenge: Are we witnessing the death knell for brands? Will governments force brands to stop being a tool to distinguish products and as a source of origin? Just imagine shelves displaying nothing but white boxes of the same shape and size and no distinctive signs. Brand restrictions undermine consumer trust! Worryingly, governments are hastening to take restrictive measures under the guise of protecting health or morality, without assessing the impact on businesses, innovation, jobs, and growth. Intellectual Property Rights-intensive industries contribute 39 percent of the GDP and 26 percent of employment in the EU, according to the EU Intellectual Property Office (EUIPO)’s latest studies on the contribution of IP to the economy and employment. For sure, this fascinating societal and legal issue will keep brand owners and professionals busy and force them to reconsider their brand strategies.
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ELSA LAW SCHOOLS TRAINING
/JANUARY 15-22
Location: ELSA House, Brussels, Belgium Contact: elsa@elsa.org
CHRISTMAS COCKTAIL
Location: ELSA House, Brussels, Belgium Contact: elsa@elsa.org/
/DECEMBER
ELSA INTERNATIONAL TEAM TRAINING WEEKEND
Website: elsa.org/elsa-day
ELSA DAY
Location: Strasbourg, France Working Language: English
WORLD FORUM FOR DEMOCRACY
Location: Opatija, Croatia Website: icmopatija.hr
LXXIV INTERNATIONAL COUNCIL MEETING
Website: step.elsa.org
LAUNCH OF THE 1ST CYCLE OF STEP TRAINEESHIPS
/NOVEMBER Website: lawschools.elsa.org
/APRIL
Location: Nairobi, Kenya
AFRICAN REGIONAL ROUND JOHN H. JACKSON MOOT COURT COMPETITION
Location: Strasbourg, France
FINAL ROUND EUROPEAN HUMAN RIGHTS MOOT COURT COMPETITION
ALL AMERICAN REGIONAL ROUND JOHN H. JACKSON MOOT COURT COMPETITION Location: Washington D.C., U.S.A.
Location: Baku, Azerbaijan Website: icmlviv.com
LXXV INTERNATIONAL COUNCIL MEETING
Location: Prague, Czech Republic
2ND EUROPEAN REGIONAL ROUND JOHN H. JACKSON MOOT COURT COMPETITION
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ASIAN-PACIFIC REGIONAL ROUND JOHN H. JACKSON MOOT COURT COMPETITION
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1ST EUROPEAN REGIONAL ROUND JOHN H. JACKSON MOOT COURT COMPETITION
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Partners' and Externals' Perspective
65 YEARS ON: THE UK, THE EUROPEAN CONVENTION ON HUMAN RIGHTS AND THE EUROPEAN COURT OF HUMAN RIGHTS
Merris Amos
Professor of Human Rights Law Queen Mary University of London
The UK was one of the founding states of the Council of Europe in 1949, ratified the European Convention on Human Rights (ECHR) in 1951 and accepted the right of individual petition to the European Court of Human Rights (ECtHR) in 1966. Since then the Court has delivered more than 450 judgments concerning the UK and the ECHR has had a profound impact on national law, policy and practice. Although the Human Rights Act 1998 (HRA) now means that the relationship between the UK and the Court is no longer as volatile as it once was, the ECHR and the jurisprudence of the Court continue to operate as a vital disincentive where breaches of Convention rights are contemplated. It was during the 1970s that the ECHR, and the ECtHR, started to have an important impact in the UK. There was no codified constitution, or bill of rights, and in almost every judgment the Court found a violation of Convention rights leading to important change back in the UK. Early judgments concerned the access of prisoners to court and contact with a solicitor; judicial corporal punishment on the Isle of Man; and draconian contempt of court laws which were eventually found to be incompatible with Article 10. In its interstate judgment in Ireland v UK, delivered in 1978, the Court found that methods of interrogation adopted by UK security forces were inhuman and degrading and in violation of Article 3 of the ECHR. 28 | SYNERGY Magazine
The Court’s 1981 judgment in Dudgeon led to amendment of the law of Northern Ireland so that homosexual acts between two consenting male adults in private was no longer an offence. The 1982 judgment in Campbell and Cosans finding that corporal punishment at school was in violation of Article 2 Protocol 1 was influential in the passage of the Education Act 1986 which abolished corporal punishment in state schools. And the 1984 judgment in Malone led to the Interception of Communications Act 1985 to regulate the interception of communications for the first time. But whilst there was lots of impact at the national level flowing from the Court, the process of change following a judgment was not straightforward. This early period was also characterised by lots of discussion between different stakeholders about how to best implement different judgments. There was enormous respect for the Court and a shared view that its judgments were important and should be implemented. By the early 1990s, there was still no effective national human rights protection through law in the UK and the government of the day had settled into a comfortable acceptance that the Court would most likely find a violation of the ECHR, should an application be made to it, and that it would pay compensation, and everything would carry on as normal. By the late 1990s the number of applications to the Court began to increase. The Court was becoming well known and in 1993 it was made
Partners' and Externals' Perspective possible for lawyers to take cases to the Court on a ‘no win no fee’ basis. In 1997 the Labour government was elected on the promise of incorporating the ECHR into national law through the HRA. One of the major motivations was to allow UK courts to determine the issues for themselves without the involvement of the ECtHR. The HRA finally came into force in 2000 and whilst it had no impact on the applications before the Court for some time, its passage clearly emboldened the Court in some of the judgments in made over this period such as those concerning the ban on homosexuals serving in the armed forces, the retention of sentencing powers by politicians and ongoing problems with court martials. Whilst interest in the Court continued to grow, over this time the government’s tone changed from supportive to critical. Following the judgment in McCann in 1995, Michael Heseltine, the Conservative Party Deputy Prime Minister, denounced a ‘ludicrous verdict that would give ‘succour to terrorism’. He ‘did not rule out the possibility of Britain withdrawing recognition from the convention on human rights’. Opposition politicians did not join in the criticism of the Court and compensation was eventually paid to the families. But the criticisms started to grow. In 1996 Conservative Party ministers called for the Court to reform itself with changes in the way the judges were chosen and how they reach decisions. The early 2000s was the peak of activity for the UK before the Court with 124 judgments delivered although many applications concerned the same issues, such as surveillance or court martials. Also, in many instances, the problem had already been resolved at the national level leaving the Court only to award compensation. In the late 2000s the number of judgments started to decline. The HRA was beginning to have an impact and many of the applications determined by the Court over this period had already been considered by the national courts. It was becoming clear that in such instances, it was unlikely, although not impossible, for the Court to reach the opposite conclusion. In 2005 the most high-profile and politicised judgment ever concerning the UK was delivered in Hirst No.2. Here the Grand Chamber confirmed that the UK’s blanket ban on prisoner voting was incompatible with Article 3 Protocol 1 prompting a national debate which lasted for 12 years. Only in 2017 was the issue resolved to the satisfaction of the Committee of Ministers with the UK promising SYNERGY Magazine | 29
Partners' and Externals' Perspective to grant the vote to prisoners released on temporary licence and prisoners released on home detention curfew although it was estimated that this would only affect 100 prisoners at any one time. Over this period the tenor of the debate about the ECHR became much more critical. In May 2006 then Prime Minister Tony Blair launched an attack on human rights law and courts stating that it was time for a profound rebalancing of the debate on civil liberties ‘to ensure that wrongdoers pay the penalty for breaking the rules’. Meanwhile the Conservative Party announced its plans for a British Bill of Rights to replace the HRA although little detail was provided. In more recent years a real dialogue has opened up between national courts and the ECtHR and, although this takes place over a very long period of time, more often than not it results in the Court reaching the same conclusion as the national courts. In 2016, with the change in government leadership following the decision to implement the Brexit referendum result and leave the European Union, the Conservative government’s hardline stance on the ECtHR has softened. The promise is not to repeal or replace the HRA whilst the process of Brexit is underway and to ‘remain signatories to the European Convention on Human Rights for the duration of the next parliament.’ Whilst most human rights work is now being done by national courts interpreting and applying the HRA, the UK’s commitment to the ECHR and the ECtHR is extraordinarily valuable to the people of the UK. The Court continues to act as a strong disincentive where there is a temptation to breach the ECHR. It provides justice and a remedy to those who might not have a remedy at the national level. And, as the past years reflect, the ECHR and the Court can facilitate a process of change and progress, achieving outcomes that the national processes have been simply unable to deliver.
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Partners' and Externals' Perspective
ARE INDIVIDUALS AT THE HEART OF HUMAN RIGHTS ENFORCEMENT ?
Kalpana Bourderlique
Vice President Seminars & Conferences ELSA Strasbourg 2015/2016
Inherent to all human beings, regardless of race, sex, nationality, ethnicity, language, religion, or any other status1 , human rights constitute the very essence and core of human life. They include “the right to life and liberty, freedom from slavery and torture, freedom of opinion and expression, the right to work and education, and many more”2 . Yet, time has shown that what ought to be, rarely goes hand-in-hand with reality. In this endless conflict between what ought to be versus what is, societies are constantly facing difficulties in implementing and protecting such fundamental rights. Over the years, multilateral treaties between States have played a leading role in reducing disparities between the different conceptions of human rights which were tailored to the specific circumstances of each individual country. Treaties often arose following the horrors and atrocities witnessed during wars - they were designed to promote sustainable peace between States Parties as well as protect individuals’ fundamental rights at national, regional and international levels. For instance, the creation of the Universal Declaration of Human Rights in 1948, one of the key elements of the framework of the United Nations, was largely driven by the apparent atrocities 1 Definition of human rights by the United Nations website: http:// www.un.org/en/sections/issues-depth/human-rights/. 2 Ibid.
perpetrated during the Second World War. International human rights law has thus been progressively developed and defined through an emerging reality that compels us to establish universal human rights norms and standards. This top-down approach has essentially triggered political and philosophical debates on what fundamental rights ought to be. However, the real question is, to what extent have these debates had an effect on what is? The ever-increasing disparities between life styles from one country to another characterise the world we live in today. These disparities have contributed to the multiplicity of the nature of human rights violations. The latter are as varied as the circumstances inherent in each situation. What remains constant across the globe, however, is individuals’ quest of asserting their basic human rights in their day-to-day lives. The drive is universal and the need to cooperate with one another is essential. As Professor Richard Wilkinson said, “[human beings] have the possibility to be the best source of support, love, assistance and cooperation”3 . But, before taking any step towards cooperating with one another, each individual needs to develop awareness. Are we, as citizens of the world, truly conscious of our own individual power to establish change? 3 Richard Wilkinson in the documentary “Four Horsemen”, directed by Ross Ashcroft, Motherlode, April, 2012. SYNERGY Magazine | 31
Partners' and Externals' Perspective Science has established that the functioning of an entire organism in its complexity is determined by the health condition of the cell4 . In parallel, the working of a society as a whole depends on the condition of each individual constituting it. Ipso facto, the evolution of a society lies in the hands of each individual’s capacity to act and the vital core of an action resides in the willingness to act. Often criticised for its idealist attributes, this bottom-up approach nonetheless complies perfectly with intrinsic human nature, which evinces the necessity of constant interaction with one another. In this regard, philosopher Jean-Louis Vullierme developed the theory of specular interaction which establishes that prior to any action, individuals seek to visualize their behaviour through other people’s eyes. This theory mainly underlines that each individual is influenced by the behaviour of others and simultaneously, holds significant power to influence the behaviour of others. This point can be illustrated by an experience I had while conducting a workshop in a rural school in Gujarat, India in 2015. During the workshop, students between the ages of 7 to 12 years old were asked to conceptualise changes they wished to see in their school. A group of students came up with the idea to devote their free time to gardening in order to grow what they consumed on a daily basis. Since access to food5 in their school was restricted due to lack of governmental funding, the aim of that project was to become entirely self-sufficient. Through this project, students essentially demonstrated their potential to respond to the violation of their fundamental right to food as provided in the International Covenant on Economic, Social and Cultural Rights6 to which India is a State Party. So, if we know that our action will have a real impact not only on our lives but on other lives as well, what is stopping us? The biggest obstacle to any change is denial. 4 Jean-Louis Vidalo and René Olivier, « La santé cellulaire », Dauphin (Editions du), June, 2018, p. 92. 5 Special Rapporteur on the Right to Food (2008), Promotion and Protection of All Human Rights, Civil, Political, Economic, Social and Cultural Rights, Including the Right to Development, Report of the Special Rapporteur on the right to food, Jean Ziegler (A/ HRC/7/5), Human Rights Council, Seventh Session, Agenda Item 3, definition of the right to food : “the right to have regular, permanent and unrestricted access, either directly or by means of financial purchases, to quantitatively and qualitatively adequate and sufficient food corresponding to the cultural traditions of the people to which the consumer belongs, and which ensure a physical and mental, individual and collective, fulfilling and dignified life free of fear”. 6 International Covenant on Economic, Social and Cultural Rights, adopted by the United Nations General Assembly on 16 December 1966, and came in force from 3 January 1976, article 11 : “an adequate standard of living, including adequate food, clothing and housing, and the "continuous improvement of living conditions”. 32 | SYNERGY Magazine
For instance, climate change sceptics create a barrier to undertake a decisive form of action aiming to prevent the disastrous consequences of climate change on human rights. The necessity to develop collective awareness on current human rights issues is thus crucial in order to trigger action. As Martin Luther King Jr. once said, “nothing in the world is more dangerous than sincere ignorance and conscientious stupidity”. In times when human rights violations are increasingly occurring, there is no time to lose waiting for external changes. Individuals are at the very core of human rights enforcement; perhaps if a population of 7.6 billion individuals decide on driving change instead of a few leading organisations, we will surely see a thriving planet for more than just a select few. “You must be the change you want to see in the world”, as Mahatma Gandhi accurately said.
37 years on, ELSA is still growing and developing
ELSA, AN EVER DEVELOPING
PARTNERS' & INTERNATIONAL EXTERNALS' FOCUS PERSPECTIVE
STORY Filipe Machado
President ELSA International
“The unity in diversity”, a slogan that the European Law Students’ Association (ELSA) applies very well in its history but especially in the Synergy Magazine. For 37 years the European Law Students’ Association (ELSA) has been supporting international cooperation and mutual understanding among law students in Europe with the purpose of contributing to legal education, to foster mutual understanding and to promote social responsibility of law students and young lawyers. 37 years after, our network has changed and developed. We had to adapt to the globalization, digitalization and modernisation of the world, without losing our vision “A just world in which there is respect for human dignity and cultural diversity” during the process. Despite the rise of nationalism and the lack of support for non-governmental organizations, ELSA today brings
33 | SYNERGY Magazine
together 54,000 law students or legal professionals, covering 44 countries in more than 350 European cities and thus becoming the largest independent Law Students’ Association. The Synergy Magazine became one of the main tools to keep a connected network despite the borders. In 1993, the first print of Synergy was sent all over Europe, and what used to be a modest student magazine, became quickly a magazine dealing with global and European legal topics. It has been allowing ELSA to facilitate cooperation of students and professionals, to bring down cultural barriers, and achieve great goals with students and professionals from other countries - something we would not be able to achieve by staying focused only on the national level.
International Focus
The reason behind the name change
PROF. JOHN H. JACKSON AND HIS IMPACT ON WTO LAW AND GLOBAL TRADE George Manikas
Vice President in charge of ELSA Moot Court Competitions ELSA International
At the 73rd International Council Meeting of the European Law Students’ Association, that took place in Lviv, Ukraine from the 15th to the 22nd of April 2018, the International Council decided to move forward and implement a new approach for the flagship project of the Association. That new approach was the name change of the Competition from “ELSA Moot Court Competition on WTO Law” to “John H. Jackson Moot Court Competition”. The decision entered into force on the 20th of June 2018, published at the 48th edition of the ICM Decision Book. We are proud to have named our Competition after Prof. John H. Jackson. Personally, I feel honoured that I was part of the team that proposed the name change and reassured the International Council that this change is crucial and for the benefit of our flagship project. Renaming the Competition in his honour, the future generations of participants will know about his work and his shared vision to establish the rules-based international trade system. But who is Prof. John H. Jackson? John Howard Jackson (April 6,1932 – Nov. 7, 2015) was a teacher, scholar, and a pioneer of international trade and economic law and one of the greatest intellectual architects of the global trading system. He put the subject of International Trade Law into the curriculum of law schools worldwide. He earned his J.D. from the University of Michigan Law School in 1959. After a few years of law practice he
34 | SYNERGY Magazine
returned to Michigan Law School to teach until 1997. He later became director of the Institute for International Economic Law at Georgetown University Law Center. John H. Jackson served as a general counsel for the U.S. Office of the Special Trade Representative but also as a consultant to many governments. In addition, he contributed to academia as an author of various important legal publications, also as author and editor of a wide range of articles in well-renowned Law Reviews. His strong influence as a legal scholar and International Trade Law practitioner can be witnessed by his work on the Trade Act of 1974 and by the fact that the establishment of the World Trade Organisation in 1995 is the idea that himself recommended in 1990, outlining the WTO charter on the most fundamental topics. The creation of this institution will play an even more significant role in the years to come. I would like to close by referring to the comment of Jack Ma, Executive Chairman of Alibaba Group in the opening plenary debate of the Public Forum 2030 – “Trade 2030”, which I had the opportunity to hear first-hand, “Trade is the way to stop wars, trade is the way to build trust, trade is not a weapon to use to fight each other”. Jack Ma’s words on the impact of trade, confirms, once more, Prof. John H. Jackson’s vision of global trade and its deep purpose to change the world, making it a better and more peaceful place. John H. Jackson, throughout his career, emphasised the imperative necessity of fairtrade policies and the importance of developing a comprehensive regulatory framework.
International Focus
FINAL PUSH FOR THE ELSA IFP: ENVIRONMENTAL LAW Joris Fontaine
Director for International Focus Programme on Environmental Law ELSA International
Global warming, animal welfare, water and air pollution, regulations of industrial activities, environmental crimes, resources sustainability… All these aspects of Environmental Law reflect on the fact that the protection of the environment is one of the most important challenges of our time. This is also one of the reasons why the Council of ELSA decided to make Environmental Law the subject of the current cycle of the International Focus Programme. This means that during a three-year period, the Network is focused on this particular « hot legal topic » with the aim to have an impact in forming the general opinion and mindset of young lawyers and law students and to raise awareness of Environmental Law.
during the last two years that we left behind. Indeed, we observed great initiatives that provided ELSA Groups and their members with specific legal skills. Now that the seed is planted, the International Focus Programme on Environmental Law is a big tree that still requires attention in order to conclude this cycle in the best possible way and so that the leaves of this tree do not fall off. So let’s aim for great projects and meet at the IFP Week with our fertilizer to develop Environmental Law further within the Network and beyond.
Thus, ELSA creates a forum with endless possibilities. Environmental Law is a very broad field of law that covers almost all branches of law, including not only public and private law, but also domestic, European and international law. It means that at your International Focus Programme event you can adopt the point of view you prefer. For example, there is a possibility to organize a climate negotiation competition during a Conference of the Parties, as well as a seminar or a webinar on the legal status of animals or illegal mining. Also, you could prepare a special edition of a Law Review on waste management or even draft Moot Court cases on environmental issues. To sum up, there is no limits to your imagination regarding the originality of your events. This year is the third and last year of the International Focus Programme on Environmental Law. We could say that Environmental Law progressed in the Network SYNERGY Magazine | 35
International Focus
65 YEARS ON, THE IMPACT OF THE EUROPEAN CONVENTION ON HUMAN RIGHTS Angela Jankoska
President ELSA Republic of Macedonia
“The European Convention on Human Rights was the product of ‘conflicts, compromise and happenstance’ and there are no simple explanations either for what it is or for why it came into being”.1 How it all began? Fifties in Europe… More than right time and more than fruitful soil to plant democracy, human rights and the rule of law. The “Old Continent” few years earlier had witnessed the most brutal carnage in modern history. And it weren’t just the leaders to blame. It was a result of millions of ordinary people breathing with discrimination and hate. So the clock struck, it was time to learn the lesson. When the intellectual and political elite started thinking how to prevent the same catastrophe from happening again, it was clear that the existing political and legal systems were not enough. The answer to this was found in democracy, human rights and their basic protection 1 Simpson Human Rights, p. ix. Other literature on the background to the Convention includes, G. Marston, ‘The United Kingdom’s Part in the Preparation of the European Convention on Human Rights 1950’, International and Comparative Law Quarterly 36 | SYNERGY Magazine
Fani Dimoska
Vice President for Academic Activities ELSA Republic of Macedonia
from much more effective international institution. The ECHR was created in 1950, by the ten Council of Europe states, and as part of the process of reconstructing Europe. The Convention, drawing inspiration of the Universal Declaration of Human Rights, was part of a wider response to the most serious human rights violations which have occurred during the Second World War in desperate attempt to avoid history repeating itself. But the fear of crimes against the humanity was not the only reason. It was also the time of Communism in Eastern Europe, so the Convention was the “safeguard” from communist subversion. That is why; the ECHR constantly refers to core values and principles "necessary in a democratic society". The tale of the ECHR Today, the ECHR represents an international treaty for protection of fundamental civil and political liberties in European democracies committed to rule of law. Since its beginning in 1950, the Convention has grown to embrace almost every state in Europe from western old democracies to the new republics which emerged from the former Soviet Union and Balkan states. Since its entry into force, it had matured from uncertain infancy at the
International Focus height of the Cold War into an institution now deeply entrenched in Western Europe, which plays irreplaceable role in the development and awareness of Human Rights in Europe. Even though it’s not the only international human rights treaty in the contemporary world, nor the oldest one, the ECHR is actually a ground-breaking work of theory which challenges human rights on daily basis. Nevertheless, the Convention is a unique legal document in terms of being the first international instrument by which sovereign states agree to be legally bound to guarantee to each individual within their jurisdiction a scope of rights and obligations. This solution becomes even more extravagant with the fact that these states have agreed to create a supranational control system – the European Court of Human Rights, in order to guarantee their compliance with the agreed commitments. Furthermore, the idea behind the establishment of the Court is that the Convention is a living instrument that must be interpreted according to present-day conditions. In that manner, the Convention gives the Court some additional breathing space, and adapts on every state system, no matter the circumstances. The Strasbourg court is positioned at the apex of the national judicial systems in Europe, and it characterized with its ability to function effectively, to rule authoritatively on the convention and to administer
justice. Its case law is not just important for the court, but for the judiciary of every State Party, as the national courts are obliged to act in accordance not only with the Convention, but also with the Courts’ jurisdiction. ECtHR played a key role in promoting stability and security in Europe for over 65 years and its case law has touched on every aspect of human life. Its effect is profound, even though many people think it’s invisible. The Human Rights (R)evolution The authors of the Convention had a greater vision of this document rather than being just an exhaustive codification of rights relevant to only one era of humanity. The extension of the scope of the Convention began with the addition of Protocols to the substantive text of the Convention, and the purpose of these Protocols is to provide protection of rights that were not sufficiently developed at the time of the adoption of the Convention, but with the development of modern concept of human rights, they’ve become fundamental to democratic societies . For instance, Protocol 6 caused immense influence on the development of modern democratic societies by prohibiting the death penalty. Recognizing the death penalty as a direct violation of Article 2, which guarantees the right to life, States Parties have adopted this Protocol
SYNERGY Magazine | 37
International Focus and have therefore caused rapid changes in the legislation across Europe2. Beside this Protocol, there are many others which were adopted during the years and each one of them have raised the protection of the fundamental human rights on a higher level, at the same time raising the awareness of their importance for every human being. The second dimension of increasing the protection that the Convention offers is the identification of positive obligations imposed on the States Parties. In the past it was considered that civil and political rights are generally comprised only of negative obligations, which prohibit states from interfering with citizens' rights. 3 However, the Court gives a revolutionary interpretation in the Marckx case, thus opening a new chapter in the protection of human rights . This case establishes the doctrine of positive obligations meaning that they are accepted as an integral part of human rights, which establishes the view that states are not only obliged to refrain from violations, but they are obliged to take certain actions in the direction of protection and enjoyment of human rights. As a result, the Convention truly became a living instrument which can easily adapt to the changes in societies and scientific developments. Therefore, questions related to nuclear energy, pollution, migration, medically assisted procreation, internet, video surveillance, dispute resolution, are often in the focus of Court’s decisions even though they are not explicitly stated in the Convention. Furthermore, in the recent years there were many legal debates regarding the human rights breaches of corporations and their protection in front of ECtHR, resulting in another evolution in the sphere of human rights in Europe. Whether applied by national courts or the European Court of Human Rights in Strasbourg, the Convention has changed people’s lives in many different ways across the whole continent. As the impact of the Convention is incontestable fact, its significance certainly goes beyond the meaning of just an ordinary international treaty. During its existence it grew from safeguard after the war to Europe’s bill of rights. Without doubt we can assume that today the ECHR represents the public policy of Europe. 2 Schabas A. William, The European Convention on Human Rights: A commentary, p. 14 3 Lavrysen Laurens, The Scope of Rights and the Scope of Obligations, Shaping rights in the ECHR : the role of the European Court of Human Rights in determining the scope of Human Rights, p.162 38 | SYNERGY Magazine
Council of Europe Secretary General Thorbjørn Jagland once said: “The European Convention on Human Rights is a unique safety net protecting more than 830 million people. On the ECHR’s 65th anniversary, it is worth taking a moment to appreciate how important this convention was and still is. Here’s to the Convention! Let’s celebrate it, let’s celebrate everything that has been achieved till now and let’s protect it for future generations.
Partners' and Externals' Perspective
THE 20TH ANNIVERSARY OF THE ICC ELSA'S IMPORTANT ROLE IN ITS ESTABLISHMENT Eduardo Meligrana President of ELSA Rome 1998
There is many things needed in order to create a peaceful world. We need clearer, more effective laws. We need tribunals and courts so that these laws may be interpreted, and differences reconciled. Then we need a system for applying these laws, something the international community does not have. The words of Benjamin Ferencz, former Prosecutor at the Nuremberg Trials, clearly represent the spirit the ELSA delegation had when in 1998 it gathered in Rome to participate in the Conference to establish the International Criminal Court. Many ELSA members came to Rome from different countries to witness a historical event concerning international peace and justice: the adoption of the Rome Statute for the International Criminal Court, a milestone in humankind's efforts towards a more just world. On 17 July, we found ourselves at the crucial moment of the final vote and we had absolutely no idea which way it would go. Late at night, well after midnight, the favourable result was very enthusiastically proclaimed. Until then the outcome had been totally unpredictable: 121 in favour, 7 against and 21 abstentions was the result of that final vote with which the UN Diplomatic Conference approved the Statute of the International Criminal Court. An overwhelming majority in favour of the creation of the first legal instrument designed to guarantee that individuals guilty of war crimes, crimes against humanity and genocide are brought to international justice. An instrument whose jurisdiction can also be extended to the crime of aggression and to ensure that impunity becomes and remains a memory of past times. Five weeks of intense negotations and difficult compromises, often reached at the first light of dawn, were necessary to reconcile the radical differences between laws, traditions,
cultures, and conflicting interests. At the ceremony organised after the approval of the Statute, on Rome's Capitol Hill, the Capitolium, the same exact place where Roman senators were already voting laws over 2500 years ago, the Secretary General of the United Nations at the time, Kofi Annan, described its adoption as a gift of hope for future generations, as well as an important step forward along the path of human rights and respect for legality. It may seem difficult to believe today, but ELSA had a very significant role in the Conference and in the establishment of the ICC. Tens of ELSA members from many different countries came to Rome for the entire 5 weeks of the Conference and were a very active, attentive, competent and indeed relied upon, component of the Conference. All of us participating had prepared thoroughly before coming to Rome. ELSA participated in all Caucus (the ICC Conference term for Workshops) and proved its competence, passion and dedication to the cause of contributing to the creation of a just world. So much so, that several smaller countries who had been able to send to Rome only a small delegation, often with diplomatic competence but lacking proper legal skills on the specific international legal topic, asked ELSA members to act as their consultants. Our task often was to raise awareness on specific topics, to provide further detailed information and study materials, to clarify meanings and consequences of several proposals. We checked and verified the interpretation of many legal terms and principles in different legislations. Activily working for the establishment of the ICC did not take place only during the day in the headquarters of the UN's Food and Agricultural Organisation (FAO) office building. There were also long hours of discussions, exchange of ideas SYNERGY Magazine | 39
Partners' and Externals' Perspective and points of view which had the warm nights of Rome's gentle July weather as their setting. Rome's ancient history and the charm of its summer nights has the magical gift of bringing people from very diverse backgrounds closer to each other. Compromises which would have been non-negotiable during business hours became possible with the cooperation of Rome's sweet evening climate. The establishment of the International Criminal Court finally marks the transition from a vision of the world based on the sovereignty power to a world founded on the sovereignty of law and the preminence of human rights. The world has made a significant step towards being more just. ELSA's contribution was significant as was that of each one of us participating. This event certainly marked our lives. It made us feel we were contributing to something much larger than ourselves and made us proud of being part of the process of effectively making the world more just. It created deep bonds of friendship amongst us that have been lasting and left a mark on our ELSA generation. Over time, many friends have come to Rome and we always manage to relive some of the moments of those incredible 5 weeks from 20 years ago. Following 60 ratifications, the Rome Statute entered into force on 1 July 2002 and the International Criminal Court was formally established. In the February 2017, 124 States are parties to the Rome Statute.
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International Focus
ELS AND ELSA, A STRONGER CONNECTION THROUGH ACADEMIC SUPPORT WITH AN ACTIVE APPROACH
Robert Vierling
ELS Executive Member Responsible for Academic Support
Since its establishment the ELSA Lawyers Society (ELS) has provided academic support to ELSA. The support has, for instance, been individual members of ELS speaking at ELSA seminars and conferences, writing cases for Moot Court Competitions, as well as offering STEP traineeships. Supporting ELSA academically has always been one of the main pillars of ELS. Consequently, it has enabled individual ELS members to give something back by
switching sides and contributing to the purpose of ELSA as experts in their field of law. The aforementioned support of ELS to ELSA has mainly worked on a case by case, request to request basis. Hence, the academic collaboration was of sporadic nature rather than a consistent and steady collaboration. At the same time ELSA’s activities have grown steadily and so has the demand for academic expertise.
SYNERGY Magazine | 41
International Focus The potential of a clear bridge between the demand for speakers and other support of ELSA to the expertise of the ELS members is obvious. For that reason, the ELS team of 2018 decided to dedicate one person to be the main contact for academic support of ELSA. The main task of that person has been to minimize the gap between the potential ELS speakers and the academic requests from the ELSA Network. From then and onwards ELS aimed to have a more active approach towards the collaboration with ELSA and the support ELS aimed to provide. ELS no longer just responded to respective requests but actually went out and approached ELSA organisers with information about the opportunity to gain academic support from ELS. This active approach originated from the belief that a closer and academic cooperation between ELSA and ELS serves both organisations core interests and uses the full potential of the cooperation. It is a fact that for an ELSA organising team it is a different experience to communicate with an ELS member than any other external. ELS members know ELSA well and often have organised similar projects during their own active time in the association. It is that fact that allows a different connection with the ELS member e.g. attending a conference as a speaker or as a member of a panel and the ELSA organisers. At the same time, it gives ELS members the chance to return to the association they once so passionately worked for and that they associate with some of the best memories of their student time with. It gives them the opportunity to inspire a new generation of young legal professionals to follow their path and start working in their legal field of interest. Looking back at the beginning of the new approach and the last 12 months it is clear that the cornerstone has been laid. Already at the autumn ICM 2017 in Sarajevo, Bosnia & Herzegovina, the ELS board was approached with a request for support of a conference held in Warsaw, Poland, in February. The support turned out to be a great success. Three ELS members went to support the conference with their professional experience. The feedback of the participants, organisers and especially of the ELS members was great and therefore very motivating for the ELS board to follow that path. Prior to that success a Skype meeting between the organisers of the conference and an ELS board member took place. The details and the needs of the ELSA organiser were discussed in order to be able to grant the best support possible. Throughout the months until the 42 | SYNERGY Magazine
start of the conference the communication was kept on a high level which resulted in the success. The approach of active communication was kept. All organisers of this year’s Summer ELSA Law Schools were approached with the opportunity to request academic support from ELS in case of need. This turned out well. Several ELSA organisers expressed a need for speakers. Skype meetings with an ELS board member tfinally five speakers went to Lisbon, Porto, Brno, Gdansk and Coimbra. Once again, the feedback of the Summer ELSA Law School organisers, as well as of the ELS members was great. This has proven that the new active approach is working. A stronger bridge between ELSA and ELS has been built.
“We contacted ELS while organising two international conferences. Quality speakers passionate about their job and full of ELSA Spirit – that brought our events to another level.” Hubert Smoliński VP Seminars and Conferences of ELSA Warsaw 2017/2018
“Speaking as an ELS member at an ELSA conference in Warsaw was a great experience. The opportunity to discuss topics of my daily work as a lawyer with ambitious students and young lawyers from all over Europe, is both rewarding and enriching.” Melvin Tjon Akon Bonn Steichen & Partners, Luxembourg
International Focus
Could changing not be enough to protect freedom?
TORTURE CRIME IN ITALY Vincenzo Lo Bue
Vice President Seminars & Conferences ELSA Bolognia
What is the sound of Torture? Nobody hears that sound as it is naturally avoided by our conscious mind as any other bad treatments that could affect our body. We generally don’t think about the flu until we get sick, don’t we? It is not my intention now, if you were wondering, to discuss the justi-fication of torture rejection from a naturalism legal aspect or a positivistic one. It is not necessary living in the womb of Mother of Democratic Values. We, or at least most of our democracies, just turned off that aberrant music, threw out the rec-ord player and decided to play a kind of Mozart Symphony made of rights and counterpowers. It might seem as if I just finished reading a book about music in order to use it here but as before, it is not my intention. It is for me a good simile to explain how today, somebody just stopped at the first step, preferring the silence to Mozart and that it’s strange to imagine somebody who dislikes him. Today, in fact, something obviously rejects torture but keeps staying silent despite formal abolishment of it, and that’s what the Italian Penal Code has been doing until recently. 10th December 1984 was an important date worldwide; it was the date of the adoption and opening for signature, ratification and accession to the Convention against Torture and Other Cruel, Inhuman or De-grading Treatment or Punishment1 whose main objective is to prevent torture among countries re-quiring them to adopt
effective and enforceable measures to avoid these abuses in their own juris-diction. Such a document should be firstly appre-ciated by the fact that despite Nations opportunism and their economic interests, especially after the wars, something needed to be formalized in order to be remembered, the key task of written documents and at least the basic function we gave to the human innovation of writing after all, here-inafter the values of freedom, justice and peace among all the members of the human family. These values, great achievement of the French Revolution, pillars of the continental legal orders and constitutions which are guaranteed and pro-tected by the jurisdiction of Constitutional Courts sometimes are just in our morality. That’s a little bit strange for systems made of written rules and codes.
1 https://www.ohchr.org/en/professionalinterest/pages/CAT.aspx SYNERGY Magazine | 43
International Focus Italy, which ratified the Convention with the law n. 498/19982 took a bit of time to really enforce it, formally at least. In fact, Italian legal system pro-duced its sanctions instruments against torture crime very recently, more precisely on 14th July 2017 with the law n. 1103. It is very easy to un-derstand that Italy had to wait approximately thirty years before conforming its system to other developed countries especially due to different judgments of the European Court of Human Rights in which it was condemned to pay for dif-ferent abuses perpetrated by public officials. The court in one of the first judgments said that legal instruments that allow to prosecute in the4 proper way those who commit torture crimes and other mistreatments against Art. 3 of the European Convention on Human Rights, should be given. The impossibility to punish the public officials, given the lack of a specific article, and the reitera-tion of the crimes ascertained in the sentences pushed also Italy to accelerate the process to regu-late this important peculiarity of the criminal law. It finally arrived, many people who believe in fundamental rights celebrated that day but some other believers welcomed it with criticism, for ex-ample Nils Muižnieks, the Commissary for Hu-man Rights in the Council of Europe, in a letter addressed to the Presidents of the Ch amber and the Senate, exposed some concerns about the literally meaning of the article, specifi-cally the part where it says «multiple acts of seri-ous violence or threats or cruelty may be required […] »5. Intellectuals highlighted the three most important criticisms about the “new” article 613-bis of the criminal code that were the following:
• the common nature of the crime,
• the plurality of the episodes
• the verifiability of the psychic trauma.
Avoiding for the moment the reconstruction of the analysis regarding the weaknesses of such law, it is 2 https://www.asgi.it/wp-content/uploads/public/ l.3.novembre.1988.n.498.pdf 3 http://www.gazzettaufficiale.it/eli/id/2017/07/18/17G00126/sg 4 https://www.giustizia.it/giustizia/it/mg_1_20_1.page?facetNode _1=0_8_1_85&facetNode_2=1_2(2015)&facetNode_3=1_2(201504) &contentId=SDU1158721&previsiousPage=mg_1_20 5 https://rm.coe.int/letter-from-nils-muiznieks-council-of-europecommissioner-for-human-ri/1680727baf 44 | SYNERGY Magazine
important now to make it clear that such criticisms come from the distance of some pieces of the article from the general interna-tional meaning of torture prevention. With great trust towards Italian legal system, the adoption of this law was without any doubt a huge confirma-tion of the innovation spirit of the legal system which cannot accept that old and brutal crimes are kept alive without punishment. An article which states the total negation for body and psychologi-cal mistreatments is not something to give for granted, as the fight to protect human rights is a mission that will never have an end as the breath of the people that fight for it. Obviously, we need to hope that the law can be adjusted and imple-mented to be more effective and applicable in or-der to change, become better and to defend human life.
A point of view worth taking in consideration
ELSA DELEGATIONS
PARTNERS' & THINK GLOBAL, EXTERNALS' ACT LOCAL PERSPECTIVE
Cotescu Georgiana-Teodora
STEP and Human Resources Member ELSA Romania
In June 2018, I had an exciting experience. Thanks to the intense activity of ELSA Bucharest, where I gained my ELSA knowledge, my professional focus and personal interests, I successfully passed the selection process of ELSA’s flagship project: ELSA Delegations. What is ELSA Delegation? It is a key event for an international career, diplomatic or legal, as it allows you to step into an international institution. Generally, it is a unique opportunity to represent ELSA in the most important sessions of various international organisations. It was a great experience to see the work of World Intellectual Property Organisation and many different cultures that compare visions and ideologies. You get the first-hand experience on how international bodies operate and make international decisions. Why and how did I apply for the ELSA Delegations? After three years of activity as an ELSA member, I decided that it is the time to discover the international networking side of this association as well, so I decided it is the time to take advantage of other benefits that ELSA offers. 45 | SYNERGY Magazine
I was already caught by the idea of ELSA Delegations, and my desire to work internationally was constantly increasing, thus I have come to the conclusion that this event is the perfect opportunity to step in that direction. I opened the registration form so I can see the selection criteria and the instructions to complete each field; I took my ELSA CV to cover the section of events I attended, organized and coordinated. Any event you participated is an indication to ELSA International that you have the ELSA knowledge to represent the association. For the motivational part of the delegation application, I worked for few days: I reformulated and restructured each sentence. I tried to be clear and present the arguments of my motivation, but also reasons why I would be suitable for it, trying to show that I was familiar with the field, and that I want to further develop my knowledge, as I am willing to learn and I am very keen to participate. Where? After the selection, I was offered a chance to attend the 36th Session of WIPO’s Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore. WIPO is
Think Global, Act Local the global forum for intellectual property services, policy, information and cooperation, they are a self-funded agency of the United Nations with a mission to lead the development of a balanced and effective international intellectual property (IP) system that enables innovation and creativity for the benefit of all. The Committee took place from 25th to 29th of June, 2018, in Geneva, Switzerland, the headquarters of many agencies of The United Nations. The Committee experience? After receiving the e-mail that stated that I had been appointed to represent ELSA’s network at WIPO, I received my Letter of Confirmation, the Guidebook for this delegation and the link where I can find the materials and documents for this Committee. So I began to dedicate my spare time to read the necessary materials and I continued to check the WIPO site to avoid missing any new material. When it came to active participation in this delegation, I was ready and had the knowledge to understand the themes of the plenary debates. The Intergovernmental Committee deals with a number of substantive issues regarding the intellectual property, copy rights and patent rights for specific objects, such as genetic resources, traditional knowledge and folklore. Over the years it has developed into a very effective tool that helps to unite people and professional experts in the field, that are interested in patents and intellectual
46 | SYNERGY Magazine
property. In the plenaries, the Chairman presented to the whole audience the Report on the ad hoc expert group, the general remarks, the subject matter, the disclosure requirements, the content and the consequence of noncompliance. In the next days, the delegates were spread in working groups, debating on specific issues and at the end of the day they made the corroboration of all discussions. The Secretariat noted the interventions made, and the proceedings of the session were communicated and recorded on webcast. In this way, after the Committee finished, they sent to all the participants the report that summarizes the discussions and provides the essence of interventions, without reflecting all the observations made in detail or necessarily following the chronological order of interventions. The group of participants was probably one of the most diverse of its kind. Among them were politicians, academics, specialists from different fields, representatives of governmental and non-governmental organizations and us - law students that represented ELSA at this Session. Personal experience? Although we were provided with a delegation guidebook and we were told how to visualize the documents and materials, that we had to study for the debates and discussions, it would have been nice to have some pointers and spoilers from someone who participated in these kinds of events. Mentioning that ELSA International has an observer status in these events, along with other international
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NGOs, my activity was not very demanding, but I had to be prepared for anything. I have studied the debates and all the documents, and I took notes to avoid distractions, in order to deal with the flow of intense discussion and the big amount of information and specific terms that you cannot master unless you work with them daily. Taking in consideration that WIPO is a world organization, it was unbelievable to visit the WIPO’s headquarters and several events, projects or conferences that were held, but also to attend side-events whenever the program allowed us or we were invited. Given that it was an ELSA experience, my delegation colleagues were ELSA members too. I can say that the ELSA spirit is also felt abroad. My colleagues were really cool people, open to suggestions and each one of us came with ideas and alternatives about what we have to do during the plenaries or after that. All three of us tried to ignore the fatigue, and after a long day we went to the accommodation, took a shower and changed, and then met in the city centre and walked around the city. During the day we were researching about places worth seeing, and in the evening, we implemented the plan.
take you seriously, you are surprised when representatives of other NGOs or States ask for your point of view during plenary breaks. It is an extremely interesting and useful experience, because you come to understand how the public institutions and bodies work, how they make international decisions and how they affect in many ways, perhaps imperceptibly, the world itself. If you want to learn what ELSA is, beyond the network and the benefits it can offer, apply for a Delegation!
I would like to thank ELSA International for this once-in-a-lifetime experience. There is something unique about it, and if someone gets the opportunity to participate in one, I strongly recommend that they do so. When you are just a student, a member of an association and you have the impression that people do not really
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Think Global, Act Local
The ELSA Refugee Project
ELSA, WORKING FOR REFUGEES
Daniel Parkin
Director for Refugee Project ELSA United Kingdom
“What they have achieved in such a short period of time is unheard of within the sector, their approach has not only been friendly but also professional. They have proved themselves to be reliable as well as enthusiastic and their contribution is helping to change lives.” - Glyn Lawrence, the then Group Development manager of Belong
The Project I got involved with the Refugee Project in its first year, after it was established by the incredibly passionate, current ELSA Nottingham President Agata Daszko. The Project was my first experience of ELSA – an experience that developed into my love for ELSA and its breadth of opportunities, and for championing the values of multiculturalism and international cooperation, at a time where these ideals are so regularly attacked. For me the Refugee Project was the perfect introduction to ELSA and what ELSA stands for: enriching its members at the same time as working to help those around us. The Refugee Project sends students into the local community to help spread awareness and information about the area, that despite its importance is so rarely 48 | SYNERGY Magazine
touched on in many universities and law societies. It does so by offering regular contact and firsthand experience working with refugees and asylum seekers in the local community, as well as organisations and individuals working in the field. It also facilitates academic events and opportunities to educate students and others on the real issues that refugees face and how we can help as individuals. As for funding, the Project in Nottingham is largely funded on a service by service basis, incorporating the funding from the University into support from the Council and money from other charities we have partnered with. This money has enabled us to run projects which are more ambitious year after year, and even allow direct support to local refugees, and less financially able students, through funding the travel to and from our activities and events as well as food. The Project is also operated in a way which attempts to minimize any spending, take one initiative we trialed in the second year: rather than buying food, or just asking for donations, we began a food swap; taking food that had been donated but wasn’t suitable for food banks, such as fresh food and trading it with students at the university for specific items which are in high demand in our specific refugee community.
Think Global, Act Local
Our initiatives Access Access is our original project, that we run with the Rainbow Project. Over the last two years Access has grown into something we are very proud of. We offer workshops for refugees on many important topics, as well as students; students work with trained English language teachers to provide English classes for refugees every week and by the end many students were able to work one on one with the refugees, or even lead groups. The impact of this is obvious for the students who gain valuable skills in planning lessons, working with individuals who possess only minimal English, and developing public speaking skills. As for the refugees, an impact study found that of the refugees attending Access:
As a part of Access we also run regular events for students and Refugees to get to know each other, and learn about each other’s cultures. This photo is from a Christmas party held last year: Welfare support This was our first project with Belong and it has proven to be incredibly rewarding for all parties involved. Welfare support takes ELSA volunteers, who then receive on the job training to a point where they can offer effective welfare support for local refugees and asylum seekers. This has been incredibly beneficial for students who gained very valuable research and communication skills, whilst also freeing up the time of the more senior welfare officers to work on more complex and difficult cases.
85% feel that their English-speaking skills have improved
Befriending Scheme
87.5% feel that their English writing skills have improved
This is by far the most ambitious and innovative activity the Refugee Project has undertaken so far – with no other student group in the UK running any such project. Befriending takes small groups of students and pairs them with refugees and asylum seekers from the local community. Befriending works to help integrate refugees and asylum seekers into the community, offer real life targeted English practice, as well as provide people, who are willing to listen to them, a safe outlet for their thoughts and experiences.
85% feel that they have more opportunities to speak in English with others, and that they have more confidence to start conversations.
This is where most of our funding has been focused and this has been organised and carried out in collaboration with both the Rainbow Project and Belong. Small groups of ELSA befrienders are funded to take befriendees out into the community and carry out different activities, such as going to the cinema and getting dinner. We also work with Nottingham County Football Club and Football in the Community to get free tickets to games for our befrienders and befriendees. After our first year, the feedback is very positive, and there is significant potential for expanding this project across the UK in coming years. Community and Academic involvement ELSA Refugee Project has also been working to increase student engagement with the community and the academic aspects of refugees’ lives. For example, we work with the Hyson Green Partnership to run events SYNERGY Magazine | 49
- one such event saw over 360 locals from all different parts of the community engaging with over 35 different organisations from refugee support and legal assistance to the Police and Council. The evening event was targeted at the youth populous and saw over 100 in attendance, with students being pivotal in organising discussion groups to find out what kinds of services young refugees and those from refugee parents want to see implemented in their community, and help to facilitate more cooperation on the issue locally.
Opportunities for students Another area that is important to mention in relation to the Refugee Project, beyond its genuine ability to impact the lives of local refugees and asylum seekers, is the opportunities it offers to ELSA students. As a part of the ELSA network, students are offered an incredible range of opportunities and the Refugee Project adds to this. Students are not only given a chance to work to substantially improve the lives of the most vulnerable in their community, but they can also access talks by experts in the area, as well as meet the lawyers from local immigration law firms. The Project also keeps a large number of students active for ELSA week after week, making it much easier to involve them in many of the other opportunities that being a member of ELSA entails. The Refugee Project is an example of the kind of impact ELSA and its impassioned members can have. It attempts to take the best parts of ELSA and incorporate them into something which can have a presence both locally, but also as a part of the larger ELSA initiatives. In a world where the significance of Refugees cannot be overstated, and the issues they face are not going anywhere soon, ELSA is privileged as a student society, because through its extensive network and connections it can work to increase the awareness and understanding in this area, and begin working to help solve the problem.
Council of Europe
Palais de l’Europe F - 67075 Strasbourg Cedex Tel. : +33 (0)3 88 41 25 81 publishing@coe.int – http://book.coe.int
Hot off the press ! An introduction to the European Convention on Human Rights (2018) "Respect for human rights lies at the heart of what it means to be European" (Martyn Bond) The right to life, prohibition of torture, freedom of thought, conscience and religion, freedom of expression, the right to marriage... Did you know that these rights and many others are protected by the European Convention on Human Rights? The author of this book illutrates each of these rights in a simple and clear way, using specific examples. He also sets the action of the European Court of Human Rights in the wider context of Council of Europe activities pursuing the same ideals.
Martyn Bond is a journalist who has reported from London, Brussels, Strasbourg and Berlin. He is also a former European civil servant. Over the past half century, he has witnessed and reported on many of the events that have shocked or amused, delighted or disturbed European readers, listeners and viewers. He firmly believes that respect for human rights lies at the heart of what it means to be European.
ISBN 978-92-871-8610-2, € 14 / US$ 28 Also available in Pdf and Epub, and in French
http://book.coe.int
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