SYNERGY
No. 60¡ II - 2016
M A G A Z I N E Magaz ine of the Eur opean Law Students' Association
MIGRATION LAW: TOWARDS THE LEGAL FRAMEWORK.
Making Law as if Nature Matters
Towards Humanitarian and Political Responses to Migration and Refugee Crisis?
The Emerging Principle of Solidarity
Environmental Law in the context of the protection of nature by Lisa Mead
Penelope Denu about the Paris migration conference and more
The role of the states in the implementation of the principle by Andrea Konjevic
The International Bar Association (IBA) invites law students from around the world to join the Association as
Become a student member of the International Bar Association
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For more information about IBA Student Membership and to become a member, visit: www.ibanet.org or email: member@int-bar.org
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a vast online library of substantive legal information, including: newsletters, practice-area specific journals and magazines, webinars and the IBA’s bi-monthly flagship magazine, IBA Global Insight;
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information and guidance from leading qualifi ed practitioners in various areas of law;
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A conference presented by the IBA Law Students’ Committee and the European Law Students’ Association (ELSA)
IBA – ELSA Law Students’ Conference 2016
International Courts and Tribunals 12–13 November 2016, London, England The IBA-ELSA Law Students’ Conference brings together students from all levels of their legal training to engage in sessions covering substantive legal theory as well as informative vocational panels. This year’s conference will focus on international courts and tribunals. Topics will include: • A comparative look at the jurisdictions and admissibility criteria in international courts and tribunals • A career in public international law • 14 years of the ICC: success and failures • The lack of women judges on international courts and tribunals: a democratic problem? • The legitimacy and effectiveness of international courts and tribunals
2 | SYNERGY Magazine
FOR MORE INFORMATION AND TO REGISTER YOUR INTEREST VISIT WWW.IBANET.ORG/CONFERENCES/CONF754.ASPX
ABOUT ELSA
ELSA International Phone: +32 2 646 26 26 Web: www.elsa.org E-mail: elsa@elsa.org
The Association The European Law Students’ Association, ELSA, is an international, independent, non-political and not-for-profit organisation comprised of and run by and for law students and young lawyers. Founded in 1981 by law students from Austria, Hungary, Poland and West Germany, ELSA is today the world’s largest independent law students’ association.
ELSA Members x 50,000
ELSA Local Groups x 300
ELSA National Groups x 43
Synergy Magazine Synergy Magazine is ELSA's members' magazine, which is printed in 10,000 copies and distributed all over the ELSA Network. The articles are contributions from students, young and experienced lawyers as well as academics.
ELSA International
Human Rights Partner
VISION
"A JUST WORLD IN WHICH THERE IS RESPECT FOR HUMAN DIGNITY AND CULTURAL DIVERSITY"
ELSA’s Members
General Partners
LL.M. Partners
ELSA’s members are internationally minded individuals who have an interest in foreign legal systems and practices. Through our activities, such as seminars, conferences, law schools, moot court competitions, legal writing, legal research and the Student Trainee Exchange Programme, our members acquire a broader cultural understanding and legal expertise. Our Special Status ELSA has gained a special status with several international institutions. In 2000, ELSA was granted Participatory Status with the Council of Europe. ELSA has Consultative Status with several United Nations bodies: UN ECOSOC, UNCITRAL, UNESCO & WIPO. ELSA is present in 43 countries
English Language Partners
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Albania, Armenia, Austria, Azerbaijan, Belarus, Belgium, Bosnia and Herzegovina, Bulgaria, Croatia, Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Georgia, Germany, Greece, Hungary, Ireland, Italy, Latvia, Lithuania, Luxembourg, Malta, Montenegro, the Netherlands, Norway, Poland, Portugal, Republic of Macedonia, Republic of Moldova, Romania, Russia, Serbia, Slovak Republic, Slovenia, Spain, Sweden, Switzerland, Turkey, Ukraine and the United Kingdom.
SYNERGY Magazine
Contributions
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Editor-in-chief: Ivan Chopyk
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ses, services, company or products,
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please do not hesitate to contact ELSA
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SYNERGY Magazine | 3
EDITORIAL The values we share, the ideals we pursue, the reason we work for - this is what has been driving us for the past 35 years. This term is indeed special - not only are we celebrating the coral anniversary of ELSA, but also the anniversaries of some of our most successful projects - the 5 th edition of the EHRMCC & ELSA Day, the 15 th edition of the EMCC and the 60 th issue of the Synergy Magazine. Moreover, the ELSA Lawyers' Society, our Alumni Network, celebrates its 25 th birthday!
Ivan Chopyk Vice President for Marketing ELSA International 2016/2017
IBLLM 190x130_v2.pdf
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This can only but inspire. Through generations we have contributed to the legal education and both professional & student relations of an international nature in the field of law. We are assisting law students and young lawyers to be interna15/7/16 15:22 tionally minded and professionally skilled.
All this defines us as a persistent and continuous association backed up by many law students around the world. The trace that ELSA leaves on a person's heart is unimaginably robust. The mind changing experience that one adventures with ELSA establishes a special attitude that can hardly be compared to anything else. Having said that, I invite you to get to know the ELSA's Vision even better through the pages of the Synergy Magazine. Let it acquaint you with a modest but distinct piece of ELSA!
CAN YOU IMAGINE A CAR THAT DRIVES ITSELF? C
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LLM in INTERNATIONAL BUSINESS LAW
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4 | SYNERGY Magazine
The program is structured in three trimesters, plus a preparatory pre-program and an optional exchange semester at one of the 13 different universities around the world IE Law School has an agreement with. Students will graduate with both an LL.M. title from IE Law School and a Certificate in Business Administration from IE Business School.
Madrid ADMISSIONS.LAW@IE.EDU
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TABLE OF CONTENTS HIGHLIGHTS
MEET the NEW ELSA INTERNATIONAL BOARD PARTNERS' AND EXTERNALS' PERSPECTIVE
Making Law as if Nature Matters Lisa Mead, Earth Law Alliance
15
08 10 15 18
A European Migration Agency The Fundametal Principle of Judicial Independence in a Modern Society Making Law as if Nature Matters Towards Humanitarian and Political Responses to Migration and Refugee Crisis?
INTERNATIONAL FOCUS
22 23 24 25
5th Edition of the ELSA Day Student Trainee Exchange Programme (STEP) Celebrate the European and the Global Challenge with Us From Debates to Moots ... From Lithuania to Chile
ELSA EVENTS CALENDAR Towards Humanitarian and Political Responses to Migration and Refugee Crisis? Penelope Denu, Council of Europe Parliamentary Assembly
The Emerging Principle of Solidarity Andrea Konjevic
18
33
THINK GLOBAL, ACT LOCAL
30 33 36 38 41 43 45
Is the System Not Working? The Emerging Principle of Solidarity A Blunder in the Activation Mechanism? A Brief Outline of the Dublin III Regulation and its Implications Witnessing Changes for a Better Tomorrow ELSA Delegation to INTA Conference XXIII ELSA Germany Moot Court Final
HAPPY BIRTHDAY ELSA and ELS
50
National Essay Competition of ELSA Finland
SYNERGY Magazine | 5
In cause we trust
MEET THE NEW ELSA INTERNATIONAL BOARD 2016/2017
Each year a new International Board of ELSA comes into the office in the ELSA House with great ambitions and a strong vision. Each year brings new blood with a unique mindset and the neverchanging ideals. We believe in a just world, in which there is respect for human dignity and cultural diversity. Through decades we have been challenging the status quo of the legal education in Europe and beyond. We endeavour to foster mutual understanding and promote social responsibility of law students and young lawyers. The eight of us work together to accomplish our goals and bring about courageous changes. These are not just simple words for us. This is an attitude. Robert Vierling, the President of ELSA International, comes from EisenhĂźttenstadt, a small town in the very east of Germany. In order to pursue his law studies he moved to the beautiful baroque city of Dresden, where he obtained his Bachelor Degree and is currently enrolled in a two year LL.M. Programme. Robert has always been driven by the dream to work in an international environment as well as by using his ability to motivate others to strive for a common goal. Therefore, he is cheering the opportunity as the President of the association to coordinate the work of the International Board by working closely with 7 other people of 7 different nationalities. When it comes to external relations, he will be responsible to represent the association towards its partners, other NGOs and the whole ELSA network. In his free time he likes to go out on the tennis court for a hit or run in the beautiful park close by to the ELSA House. Mads Lorentzen, the Deputy Secretary General, is from the Northern Denmark. In June 2016, he graduated as a Master of Law from the University of Aarhus in Denmark. Mads has been a member of ELSA since the winter of 2010. His motivation for taking out one full year to work for ELSA is his passion for extracurricular legal education. He will be in 6 | SYNERGY Magazine
charge of the Internal Management, making sure that the structural fundament is in order for the rest of the board to function individually and as a team. His primary focus for the coming year will be to clean out the increasing bureaucracy and non-functioning projects within ELSA International. In his private life, Mads enjoys to follow international football. This is a passion he has had since he was a little boy playing football in the street in front of his childhood home. Rob van Bergen, the Treasurer of ELSA International, comes from the Netherlands. In the past five years, he studied at the Tilburg University, where he obtained his LL.B. in Business Law and started his LL.M. in International Business Law. During his studies, he was the Treasurer of ELSA Tilburg and, a year later, the President of ELSA the Netherlands. His responsibilities include, but are not limited to, accounting, budgeting and fundraising through grants. Rob will make sure that necessary investments in the association will be made in a responsible manner. When Rob came to the ELSA House, he brought his PlayStation, which led to the creation of a FIFA League within the International Board. Unfortunately, he will most likely not have enough time to practice‌ Corporate identity, promotion, Photoshop. All these words can be easily associated with Ivan Chopyk, Vice President for Marketing. Originally coming from the city of Lviv, where he is undertaking his master studies at the Ivan Franko National University, he is a passionate and dedicated board member, to whom the promotion and branding management of ELSA's biggest projects and creation of the public relations strategy are the cynosures of this year. Ivan will put his efforts in finalising the concept of Flagship Projects and taking marketing to an even better level. Being a candid person, he is adored for his incorrigible life attitude that is both enjoyable and serious simultaneously. And even though he is only the 3rd best in the FIFA League of the International Board, he still enjoys listening to music to the marrow of his bones.
ELSA International 2016/2017
ELSA INTERNATIONAL 2016/2017 (left to right) Jakub Čája, Rob van Bergen, Alyona Litvinova, Nigel Micallef, Robert Vierling, Christine Beck, Mads Lorentzen, Ivan Chopyk
Jakub Čája, Vice President for Academic Activities, comes from Bratislava, the capital of Slovakia, where he is currently enrolled in the third year of his studies at the Comenius University. This term he will be mainly responsible for the projects that are aimed at the academic development of the law students by strengthening their practical skills, such as legal writing, research and negotiation skills. At the same time, he will be responsible for the coordination of the 5th edition of ELSA Day. He enjoys sports, especially football (including the American one), and loves funny movies.
ta. He has just finished his third year as a law student at the University of Malta. He gained a lot of knowledge in his area through his experience in several student organisations, especially in ELSA, organising several events such as the first Summer ELSA Law School in Malta and the 69th International Council Meeting amongst others. As Vice President for Seminars and Conferences, Nigel will be responsible particularly for the projects of ELSA Delegations, ELSA Law Schools and the International Focus Programme. In addition to that, he will also work on the creation of ELSA Webinars.
Christine Beck, Vice President for Moot Court Competitions, comes from Switzerland, where she finished her fourth year as a law student at the University of Zürich. She will be responsible for the 5th edition of the European Human Rights Moot Court Competition and the 15th edition of the ELSA Moot Court Competition on WTO Law. She will put all her efforts to make the two anniversaries unforgettable and to achieve great things. Personally, she enjoys traveling, good food and great company.
Our Student Trainee Exchange Programme (STEP) is in good hands with Alyona Litvinova. She was born and raised in the port city of Murmansk in Russia, but she fell in love with STEP & ELSA in Tromsø, Norway, where she is studying law and enjoying the Nordic Spirit. As Vice President for STEP she will be responsible for the overall coordination of ELSA’s traineeship programme. Her main focuses this year are the implementation of the Coaching Strategy, quality expansion, evaluation of the Data Protection and Privacy Policy in STEP and other areas. Her favourite STEP characteristic is its internationality. She is very appreciated by her board members for her incredible laughter.
Nigel Micallef, Vice President for Seminars and Conferences, comes from the heart of the Mediterranean Sea, Mal-
SYNERGY Magazine | 7
The European Commission proposed the creation of a European Agency for Refugees
a EUROPEAN
MIGRATION AGENCY
Gonçalo Saraiva Matias Vice Dean Catolica Global School of Law
On May 4 the Commission presented several proposals in a package called “Towards a sustainable and fair Common European Asylum System”. Apart from the long time needed reform of the Dublin system and the reinforcement of the Eurodac system, the Commission recommended the establishment of a European Union Agency for Asylum.
ropean Council issued a decision to grant the refugee status to 160.000 people. It means that the remaining 840.000 are either not to be considered refugees thus qualifying as economic migrants or will just not be granted the status in Europe and refused entry. In either case, Europe must find a solution for this problem.
According to the Commission statement “The proposal will transform the existing European Asylum Support Office into a fully-fledged European Union Agency for Asylum with an enhanced mandate and considerably expanded tasks to address any structural weaknesses that arise in the application of the EU's asylum system”.
In May 2015, the European Commission announced the new European Agenda on Migration. This agenda is built upon four pillars: i) Reducing incentives for irregular migration; ii) Saving lives and securing the external borders; iii) Strengthening the common asylum policy; iv) Developing a new policy on legal migration.
This is a very important reform that is part of the broader revision of the Dublin system. But, it might be the opportunity for a more ambitious and effective reform: the creation of a European Migration Agency.
While it seems obvious that the four pillars should be addressed commonly, the creation of the said European Agency for Refugees only addresses pillar iii.
The migration crisis that Europe has been facing in the past years is more than just a refugee crisis. It entails significant movements of people across borders with different origins and reasons: fleeing conflicts and wars, seeking for a better quality of life, escaping the rigors of climate change in some depressed areas of the planet. These different reasons do not receive the same legal qualification, as not all the migrants are eligible for the refugee status. According to the United Nations High Commission for Refugees, during the year of 2015 more than 1 million people reached Europe via the Mediterranean route alone. The Eu8 | SYNERGY Magazine
Combating the irregular migration networks and its interconnections with human trafficking and human smuggling networks is a key aspect already identified in the early stages of the European strategy to deal with the migration crisis. This combat demands appropriate resources both at the financial and institutional level. This objective has clear connections with pillar ii). Frontex has been significantly reinforced to save lives in the Mediterranean. But it can hardly deal with securing external borders and be able to rescue sinking vessels in the sea. Securing borders while combating irregular migration networks and saving lives should have a common and active role of the EU institutions.
Partners' and Externals' Perspective Last but not the least, the objective of developing a new policy on legal migration seems crucial. In fact, part of the migration pressure, aside from the asylum seekers, is created by these networks that thrive in the inability of migrants to find a clear and legal path to apply for immigration permits in Europe.
In sum, it would be very important to create a European Migration Agency for the following reasons:
And it would allow considering another essential aspect that has been absent from the European concerns about this crisis but shall soon be addressed. It is understandable that the first reactions to a crisis are directed to the stabilization of the situation.
1. It would address the several aspects of the migration crisis – as identified in the European Agenda on Migration – in an integrated fashion; 2. It would allow the merge of several agencies with considerable advantages both at the resources level as well as at the information sharing level, eliminating silos; 3. The Agency would have a large spectrum of powers, ranging from the control of external borders, life saving, admissions criteria and integration; 4. It would facilitate a comprehensive reform of the Dublin system and enhance equitable distribution of refugees among member states; 5. It would foster integration capabilities within member states, which will be crucial in the future.
Nonetheless, millions of people will arrive and will remain in Europe in the following years. That reality demands a massive integration effort. Europe wide integration policies are not in place and shall be designed very soon. That would be another pillar to be added to the Agency profile.
Big crisis are often time the opportunity for needed reforms. It is time for a major reform of the European Union migration policy that will avoid the past errors and mistakes. We should take that opportunity to engage in an ambitious and meaningful transformation.
Thus, from an institutional standpoint it seems that an integrated response to the migration crisis, in line with the European Agenda on Migration, demands the creation of a European Agency on Migration that aggregates not only EASO, but also Frontex and other agencies.
Š European Union , 2015 / Source: EC - Audiovisual Service / Photo: Lieven Creemers
Joint press conference by Frans Timmermans and Federica Mogherini, Vice-Presidents of the EC, and Dimitris Avramopoulos, Member of the EC, on the European Agenda on Migration
SYNERGY Magazine | 9
Partners' and Externals' Perspective
The contribution made by the Council of Europe
FUNDAMENTAL PRINCIPLE of JUDICIAL INDEPENCE in a MODERN SOCIETY the
Stéphane Leyenberger Head of the Division for the Independence and Efficiency of Justice, Council of Europe
The Council of Europe is the common European home of human rights, the rule of law and democracy. These founding values, underpinning European togetherness, extend across 47 states. Our organisation, based in Strasbourg, therefore has a duty to take the lead when it comes to defending and promoting an independent and impartial judicial system. However, in 2016, it might be asked whether this role of “keeper of the flame” in respect of judicial independence is compatible with the development of the type of modern judicial system, which citizens expect. Can we talk about justice as a public service without undermining the independence and authority of the judicial system? If independence is understood not as a privilege afforded to the judiciary, but as a right of the citizens, the notion opens up a line of thought which is completely topical in Europe. The independence and impartiality of the judiciary are actually only meaningful if they are regarded as an element of public policy: justice serving the community. This makes it necessary for European states to administer and evaluate the public service of delivering justice. Articles 5 and 6 of the European Convention on Human Rights (ECHR) form the legal basis on which Europe has established and consolidated the fundamental principle of the judicial system’s independence. This principle comes under the stringent scrutiny of the European Court of Human Rights (ECtHR), which has been developing sound case law in this area for several decades. The Committee of Ministers, the Parliamentary Assembly and the Commissioner for Human 10 | SYNERGY Magazine
Rights of the Council of Europe regard the independence of the judiciary as one of the cornerstones of their policies aimed at developing European standard-setting instruments, supporting institutional and legislative reforms and monitoring member states' compliance with their commitments. Furthermore, for over 20 years cooperation programmes have been pursued with the objective of enshrining the independence of the judicial system at the heart of public policies. The Council of Europe’s Consultative Council of European Judges (CCJE) also oversees the compliance with the principles of the judiciary’s independence and impartiality. It has described how they should be applied in a number of opinions1. Along with the Consultative Council of European Prosecutors (CCPE) it analyses the state of the judicial system in Europe, so as to highlight current issues of relevance to the status of judges and prosecutors and the performance of their duties2. This is because the public’s confidence in judges and prosecutors is likely to be undermined not only by instances of blatant interference in the administration of justice, but also by situations which may legitimately give rise to doubts about the independence and impartiality of judges and prosecutors. A constant effort is made to ensure full and effective compliance with these principles both in the relevant texts and in daily relations between the branches of See in particular the CCJE's Opinion No. 1 (2001) on standards concerning the independence of the judiciary and the irremovability of judges. 2 2016 report by the Bureaus of the CCJE and the CCPE: “Challenges for judicial independence and impartiality in the member states of the Council of Europe” (SG/Inf(2016)3). 1
Partners' and Externals' Perspective government and between the judicial system and the public3. Once the fundamental principles have been established and effectively guaranteed and applied, it still remains to be seen how they stand up to the realities of the judicial system's functioning. In its Opinion No. 1 (2001) the CCJE states with regard to judges: “Their independence is not a prerogative or privilege in their own interests, but in the interests of the rule of law and of those seeking and expecting justice”. Asking questions about the administration of justice therefore raises the issues of the link between justice and society and also of judges' key role in forging social connections.
“
[judges']
independence is not a prerogative or privilege in their own interests, but in the interests of the rule of law and of those seeking and expecting justice.
Justice is a public service. It is admittedly a highly specific public service, whose administration may be shared among various players belonging to the three branches of power: the executive, the legislature and the judiciary. But its output - judgments - can solely be a matter for judges. This particularity does not exempt it from certain requirements arising from its relationship with the political system and the public. The issue of the efficiency of justice is bound up with a public policy approach, involving policy-makers (ministries of justice and parliaments), judicial institutions (councils of the judiciary, courts), and court users, who are also taxpayers, which concerns resources (funding, staff, equipment), processes and the relations between the various players. Consideration must accordingly be given to the interaction between judges, justice professionals and court users, which is governed by systems, rules and procedures and financed by the public coffers. The European standards on justice developed within the Council of Europe lead to the same obvious conclusion: to give a good judgment it is not enough to hear and decide cases in an independent way. This is why Article 6 of the ECHR does not stop at requiring contracting States to guarantee the independence and impartiality of the courts. It also asks them to organise the system so that everyone's case can be heard “within a reasonable time”. This provision is clarified by the case law of the ECtHR and supplemented by several recommendations of the Committee of Ministers concerning proSee in particular the CCJE’s Opinion No. 18 (2016) on the position of the judiciary and its relation with the other powers of state in a modern democracy. 3
SYNERGY Magazine | 11
Partners' and Externals' Perspective cedure, access to the courts, the operation of the courts and the role of the various actors in the judicial system. For its part, the CCJE has established a set of principles governing the funding of courts, the accountability of judges, the speed of proceedings and relations between the judicial system and society4. The number of cases brought before the European Court of Human Rights on grounds of the judicial system's malfunctioning shows how necessary it is to continue reforming national justice systems. The Council of Europe has resolutely followed a rationale aimed at promoting the efficiency and quality of judicial systems for the benefit of citizens, without ever compromising on the fundamental principle of the independence of the judiciary.
In particular, CCJE Opinions No. 2 (2001) on the funding and management of courts, No. 3 (2002) on ethics and liability of judges, No. 6 (2004) on fair trial within a reasonable time, and No. 7 (2005) on “justice and society”. 4
This area, which some may have considered taboo, is thus changing, sometimes under pressure from judges themselves. Judges are called upon to come down from their pedestal and deal with ordinary citizens and also to acknowledge that they have obligations to the community. However, this is, above all, a responsibility for legislators and governments, who are being asked to pursue more ambitious public policies, in terms of both the resources allocated to the judicial systems and the innovations made in terms of the measures and procedures governing the administration of the courts. It is in this spirit that the Committee of Ministers of the Council of Europe set up the European Commission for the Efficiency of Justice (CEPEJ), an innovative body focused on practical concerns regarding the day-to-day functioning of the public service of justice.
“
the number of cases brought before the european court of human rights on grounds of the judicial system's malfunctioning shows how necessary it is to continue reforming national justice systems.
Its particular role is to evaluate the functioning of judicial systems in Europe. If the aim is to reform the administration of justice and devise effective policies, it is necessary to begin by gaining an in-depth knowledge of how the system functions, so that we are then able to carry out an analysis and, ultimately, propose legal, administrative and organisational solutions. While the “crisis of the judicial system” is discussed on a regular basis, it can but be noted that the previously existing analyses were rarely corroborated by hard figures, due to the lack of statistics which were sufficiently accurate and permitted comparisons between countries. The CEPEJ has opted to develop a process making it possible to evaluate, on a comparative basis (but without ranking the states), the financial and human resources available to the judicial systems, the organisation of the courts, judicial procedures, the organisation of the judicial professions and relations with users. No initiative of this type and on this scale had ever been launched in the judicial sector. The 2016 edition of the report “European judicial systems” enables readers to obtain an accurate picture of how European judicial systems operate, supplemented by an interactive database, publicly
12 | SYNERGY Magazine
Partners' and Externals' Perspective
accessible via the Internet5. This methodology for evaluating judicial systems is also used as a basis for the “EU Justice Scoreboard” published annually by the European Commission. The CEPEJ is also working to improve judicial time management via the SATURN Centre, its European observatory for monitoring the length of judicial proceedings. The aim is to define realistic indicators in terms of length of court proceedings based on the type of case, as well as to gain an improved knowledge about the duration of court proceedings and increase its predictability. Lastly, the CEPEJ focuses some of its activities on promoting initiatives aimed at improving the quality of justice. Indeed, if justice is a public service, court users (who are not only the ultimate decision-makers but also taxpayers) can legitimately expect quality. It is true that introducing the idea of quality as a requirement for public policies in the field of justice may result in an approach “which is an immediate reminder of
“
influencing quality accordingly entails a need to understand a global concept and to define indicators without infringing upon the fundamental principle of the independence of the judiciary.
the world of business, production and management...” and makes one wonder whether “the obsession with quality, having shifted from the business world to public administration via the new public management [is not] gaining ground in justice circles” 6. There is an ever-growing debate within various European fora about the concept of quality in the judicial system. There is ready agreement, and rightly so, about the need to call on the public authorities to focus their policies on the quality of the services provided to citizens. But the notion of quality in the judicial system is a complex accumulation of Benoît Frydman, Colloquy on “The quality of judicial decisions” (Poitiers, 8 and 9 March 2007), CEPEJ Studies no. 4. 6
5
www.coe.int/cepej
SYNERGY Magazine | 13
Partners' and Externals' Perspective
“
can we, for example, measure the quality of a system without measuring the quality of what it produces, i.e. the judicial decisions adopted by an independent judge?
numerous factors, which belong to different fields and which cannot all be measured using the same tools. Influencing quality accordingly entails a need to understand a global concept and to define indicators without infringing upon the fundamental principle of the independence of the judiciary. The CCJE underlines this in its Opinion No. 6, stating “the evaluation of ‘quality’ of the justice system, i.e. of the performance of the court system as a whole or of each individual court or local group of courts, should not be confused with the evaluation of the professional ability of every single judge” 7 . Can we, for example, measure the quality of a system without measuring the quality of what it produces, i.e. the judicial decisions adopted by an independent judge? The CCJE’s
Opinion No. 11 (2008) attempts to reply to this question. For its part, the CEPEJ is adopting a pragmatic approach in its attempt to promote quality within judicial systems and to offer public decision-makers and judicial practitioners specific tools and methods for improving the quality of their own system. These tools and methods are used in practice by the CEPEJ in its work with individual volunteer courts or as part of the cooperation programmes concerning the entire judicial system. The reason for this is that public justice policies are not shaped solely in ministerial offices. They also receive input from justice system operators, who have in their hands the proper administration of justice because they are responsible for applying the rules since they are in daily contact with justice system users.
CCJE Opinion No. 6 (2004) on fair trial within a reasonable time and judges’ role in trials, taking into account alternative means of dispute settlement. 7
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14 | SYNERGY Magazine
Partners' and Externals' Perspective
If we are serious about reversing ecological decline, our legal systems need to respect and reflect the interconnectedness of all life
MAKING LAW
as if
NATURE MATTERS
Lisa Mead Director of the Earth Law Alliance and Lead Faculty in Alternative Economic Design at Findhorn College in Scotland
In August of this year, ELSA’s International Focus Program begins a new three-year cycle, this time focusing on Environmental Law. In this article, former ELSA IB Member Lisa Router-Mead, Director of the Earth Law Alliance and Lead Faculty in Alternative Economic Design at Findhorn College in Scotland, questions the foundations of our current legal system and takes a look at the task ahead for all lawyers in helping to ensure a healthy planet for the current and future generations. At ELSA’s 35th Anniversary ICM in Malta this year, I pondered with former ELSA President, Fredrik Lofthagen, whether ELSA’s Philosophy Statement is still “fit for purpose”, 24 years after our IB drafted it and proposed it at the Autumn 1992 ICM in Namur. I was concerned that although we had included “social responsibility”, we had not said anything about our responsibility to the Earth and to nature, which, after all, supports all forms of life. As Fredrik pointed out rather drily, in order to have a “just world”, we do in fact need a habitable planet on which to be just! It is probably not news to you that we are well on the way to making our planet uninhabitable and that good planets are hard to find. You only need to delve into the UN’s Millenium Ecosystem Assessments (MEA) of 2005 or WWF’s Living Planet Report 2014 to understand that we are in trouble. WWF reports that over half of all the animals, birds and amphibians on the planet have disappeared in the last 40 years. Together with deforestation, climate change and the resulting ocean acidification, it is by now clear that much environmental degradation and pollution has been caused by the impact of humans on Earth, to the extent that some scientists have christened this era “the Anthropocene”.
As a species, we have created a human world that sees itself as separate from nature. We treat the Earth that supports us largely as a resource to be exploited, or as a repository for our shocking amounts of waste. At the root of our problems lies a faulty way of thinking about our place on Earth. Our current economic system, and the legal systems that support it, are based on an outdated, 17th Century, mechanistic worldview, characterised by the notion of isolated objects or ‘matter’ interacting in a linear cause and effect way. This ‘clockwork universe’ paradigm is now understood to be an inadequate analysis, as 20th Century systems theory has demonstrated, by close observation of nature. Our worldview has shifted to take account of the many inter-related systems that make up Earth and our universe, and how they function in a non-linear way, with mutually interacting parts and consequent feedback loops.
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in the last 50 years, we have enacted many hundreds of environmental laws, made up of international treaties, national laws and regulations, but ecological deterioration has simply got worse.
So what does this have to do with law? Well, everything! We need to challenge our collective assumptions about the way in which we have constructed our many human systems, including our legal systems. How can we say that they really serve us SYNERGY Magazine | 15
Partners' and Externals' Perspective
© Empire331 | Dreamstime.com - Deforestation Photo
One of many recently deforested areas in Romania
if they are contributing to destroying Earth - our one and only life-support system? In terms of reversing this destructive trend, how does environmental law fit into this picture? Well, in the last 50 years, we have enacted many hundreds of environmental laws, made up of international treaties, national laws and regulations, but ecological deterioration has simply got worse. A good analogy for the impact of current environmental laws would be ‘putting a bandage on a severed artery’. In other words, the bandage (environmental law) slows down and absorbs the blood a little, but the bleeding continues apace. What then is the nature of current environmental laws and why are they incapable of protecting us from eventual self-destruction due to multiple eco-system collapse? First and foremost, it is important to recognise that since the 1980s, environmental laws have been greatly impacted by neo-liberal economic doctrine, which favours a ‘free market’ and minimal state intervention in corporate affairs. In simple terms, the ‘job’ of the state is largely to protect private property rights and to enforce contracts, but otherwise stay out of the market. How is damage to ecosystems prevented in this model? Well, environmental law may take a number of different forms, but in essence, the current approaches range from ‘hands-off ’ non-interventionism, to tolerating some regulation in order to prevent excessive ecosystem damage. Note that in both of these approaches to environmental law, the underlying economic growth paradigm - of endless growth on a finite planet - is not questioned. By and large,
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any development that leads to growth of the economy is regarded as inherently good, and nature’s needs are treated as a secondary concern, and often as entirely expendable. We will just create a few national parks and leave the rest to humans to develop, right? Nature has no voice in any of these decisions of course, as our decisions are largely made from a human-centred, profit-driven perspective. The good news is that what has been created is purely a human construct, arising from thought, and since humans are good thinkers, we have the capacity to create something different, something better. We still have the opportunity to preserve and regenerate what is left and to focus on the growth of the intangible things that are the glue of healthy cultures – empathy, connectedness, a sense of belonging and peaceful interbeing - all of which are the foundation for a healthy Earth and a healthy global society. Eco-literacy (that is, learning and experiencing the many bonds and connections in nature, of which humans form a part, and also learning and experiencing how healthy bonds between humans are created and maintained) is possibly the most important thing that we need to learn.
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we still have the opportunity to preserve and regenerate what is left and to focus on the growth of the intangible things that are the glue of healthy cultures.
Partners' and Externals' Perspective Of course, many of us do care what happens to our families, our grandchildren, other species, and about having a healthy planet to live on. From this sensibility, a number of movements are gathering pace. Earth Jurisprudence, Earth law, Wild Law, Ecological Law and Governance and the Rights of Nature movement all point to the same thing – the need to reframe our legal systems as if nature really matters. In many ways, these movements are based on very ancient principles of human-Earth relations, however they are very much in their infancy in the modern era. They have emerged over the last 16 years, primarily as a legal response to the planetary ecological crisis. If you are interested in exploring legal systems from an Earth-centred perspective, Cormac Culinan’s book Wild Law1 is a good place to start. Also, since 2009, the United Nations’ Dialogues on Harmony with Nature have brought to the forefront the need to move away from a human-centred worldview, and to move towards an Earth-centred relationship between humans and Earth. The recent submissions on Earth-Centered Law based on Earth Jurisprudence, from leading proponents of Earth Law around the world, can be found here: http://www.harmonywithnatureun.org/knowledgenetwork/dialogue-inputs/.
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since 2009, the united nations’ dialogues on harmony with nature have brought to the forefront the need to move away from a human-centred worldview, and to move towards an earth-centred relationship between humans and earth.
In future articles in Synergy I hope to be able to explore these topics further, so that as the IFP progresses, the alternatives beyond the current system of law can be factored in, critiqued and developed. After all, this and the next generation of policymakers, lawmakers and lawyers are the people who will have the chance to craft this new approach to law and hopefully see it come to fruition.
Contact Lisa Mead at lisa@earthlawyers.org
Culinan, Cormac, Wild Law: A Manifesto for Earth Justice (2003) Green Books 1
© Alangignoux | Dreamstime.com - Oil Sands, Alberta, Canada Photo
Once Boreal forest, tar sands extraction now affects a vast area of Alberta, Canada
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Partners' and Externals' Perspective
Council of Europe PACE Migration Committee
TOWARDS HUMANITARIAN and POLITICAL RESPONSES to the MIGRATION and REFUGEE CRISIS? Penelope Denu Deputy Head of Secretariat Council of Europe Parliamentary Assembly Committee on Migration, Refugees and Displaced Persons
“According to the United Nations Refugee Agency (UNHCR), more than 900,000 refugees and migrants arrived on Europe’s shores this year. 75% of them were fleeing the conflicts in Syria, Afghanistan and Iraq. Too many people have lost their lives seeking refuge in Europe for themselves and their families. Some of these tragedies have resonated more than others. We all of us remember, for example, the harrowing images of the lifeless body of the three-year-old Aylan Kurdi. How many nameless others have washed up dead on our shores? More than 3,500 according to estimates, although the real figure is probably much higher. As it draws to a close, 2015 will be remembered as the year of the refugee crisis. After knocking on Europe’s door for years, it has finally found a way in. For a long time, however, we tried to ignore the migration effects of this crisis, predictable though they were. […] Efforts have been made, some countries have taken in large numbers of refugees and the European Union has tried, somehow or other, to provide a co-ordinated response. Despite these efforts, Europe’s response to the refugee tragedy can be summed up in just four words: “too little, too late”. We failed to anticipate the massive arrival of refugees and migrants, and now that we are overwhelmed by its consequences and implications, we are bargaining like carpet-sellers about quotas and figures, with some member states even refusing to take in refugees of non-Christian faiths. […] Think global, act local. As elected parliamentarians, we have to be active in the field, within our constituencies: talk to our citizens and reassure them, explain policy decisions, support grass-roots initiatives, especially in the field of integration and education. I strongly believe that combined action in these different areas will help us to find solutions to one of the biggest challenges of the 21st century.”
The Paris migration conference – topics and contributions On the 16th of December 2015, the French Assemblée nationale hosted a conference on the theme of “A comprehensive humanitarian and political response to the migration and refugee crisis in Europe”, organised by the Committee on Migration, Refugees and Displaced Persons of the Council of Europe Parliamentary Assembly (PACE). The conference, introduced by Thierry Mariani, member of the French National Assembly for French residents overseas and Chair of the Migration Committee, brought together representatives of the parliaments of the 47 member states1 and current and prospective “partners for democracy”, as well as the ICRC, UNCHR, UNDP, the Chair and Governor of the Council of Europe Development Bank and the President of the NorthSouth Centre. The aim of the conference was to provide a platform for political dialogue between parliamentarians from the Council of Europe member States and from the neighbouring countries directly affected by the ongoing migration crisis, as well as other stakeholders, in order to discuss specific challenges faced by the countries of first asylum, transit and destination, possible short- and medium-term solutions and how the root causes of increased migratory flows could be tackled while establishing sustainable solutions and co-operation with countries of origin.
An exception being the Russian Federation which has not participated in PACE activities since April 2014. 1
Anne Brasseur, PACE President 2014-2016, Paris, 16 December 2015 18 | SYNERGY Magazine
Partners' and Externals' Perspective The first half-day session was devoted to “Concerns and possible short/medium term solutions” and chaired by Jacques Attali, economist, author and political adviser, head of the European Bank for Reconstruction and Development 19911993. The second session was moderated by Guy Goodwin-Gill, barrister, author and professor of international public law at Oxford University, United Kingdom, and he addressed the “Possible sustainable solutions and co-operation with the countries of origin and first asylum.” The Paris Conference identified the need for common strategies aimed to ensure, in particular, respect for human rights of migrants, education and awareness-raising for all and integration. The main conditions for success were identified as: - more financial and humanitarian solidarity between the countries in the front line of massive arrivals, those of transit and final destination countries. Many countries declared that the scale of arrivals had become too large for the transit countries to handle; - the need to combat corruption and criminal activities, and to improve international cooperation of police forces and intelligence; - greater efforts to ensure decent humanitarian and secu-
rity conditions in transit countries and countries of origin, creating thereby more attractive living conditions and addressing the general security situations which often lie behind the departure of migrants. - enhanced cooperation between international organisations, including police files and databases of asylum applications, etc.; - efficient and coordinated funding channels for humanitarian aid and infrastructure; - promotion of migration as an opportunity for economic, social, cultural and demographic European development, and countering reactions of rejection through “powerful ideological communication”; - renewed efforts to tackle the root causes of the crisis through, inter alia, the negotiation of political solutions by destination countries.
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according to the united nations refugee agency (unhcr), more than 900,000 refugees and migrants arrived on europe’s shores this year. 75% of them were fleeing the conflicts in syria, afghanistan and iraq.
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Partners' and Externals' Perspective Participants stressed that insecurity needed to be reduced if the humanitarian aspects of the crisis were to be addressed with any measure of success - world powers needed to be “on the same side.” As well as providing a space for presenting the different standpoints of countries of origin, transit and reception of migrants, the conference also demonstrated the added value of PACE’s recently-introduced “partnership for democracy” status, which now allows neighbouring countries such as Morocco, Palestine, Tunisia and now Jordan to share their experiences and benefit from dialogue and exchange, developing in a very practical way the universality of the values upheld. Parliamentarians were able to return to their respective national instances with these testimonies as elements for promoting concerted action Context in PACE at the time of the conference PACE has long been an “echo chamber” for parliamentarians, who are able to bring to debate the concerns and problems emerging in their member states, finding resonance with other
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countries and bringing international scrutiny to regional crises. The Committee on Migration, Refugees and Displaced Persons addressed the early signs of the current situation in the Mediterranean as early as 2011, adopting texts on “The interception and rescue at sea of asylum seekers, refugees and irregular migrants (Resolution 1821 (2011) and Recommendation 1974 (2011) and on “The large-scale arrival of irregular migrants, asylum seekers and refugees on Europe’s southern shores (Resolution 1805 (2011) and Recommendation 1967 (2011).
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pace has long been an “echo chamber” for parliamentarians, who are able to bring to debate the concerns and problems emerging in their member states, finding resonance with other countries and bringing international scrutiny to regional crises.
Partners' and Externals' Perspective
The decision to hold a conference around the date of International Migrant’s Day (18 December) was taken at the Parliamentary Assembly’s autumn 2015 session, during a current affairs debate2 in plenary on “The need for a common European response to migration challenges” followed by a joint debate on “Countries of transit: meeting new migration and asylum challenges” (Rapporteur: Ms Strik, Netherlands, SOC) and on “Assessing the need for a comprehensive review of the Dublin regulation and its implementation” (Rapporteur: Mr Nicoletti, Italy, SOC)3.
was designated rapporteur the following month in Strasbourg. The new motion points to systemic weaknesses in existing regulations and mechanisms revealed by the sheer scale of mass arrivals in Europe refugees, and to the divisions among Council of Europe member States according to their political stances and geographical situations. It suggests that the Parliamentary Assembly of the Council of Europe should serve as a platform for the exchange of ideas, opinions and experiences between countries of origin and transit and host countries, in order to build up operational models for asylum and integration.
The idea was to provide a broader standpoint for the Assembly’s work, in contrast to most recent resolutions and recommendations also calling for a better cooperation and coordination but focusing on various specific aspects of the management of the migration and refugee crisis, for instance Resolution 2089 (2016) on “Organised crime and migrants” and Resolution 2088 (2016) on “The Mediterranean Sea: a front door to irregular migration”. At the same time, speakers were requested to base their statements on national and international experiences with management of the crisis from their different positions, in order to preserve a practical and viable approach to possible solutions.
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The conclusions of the conference listed above as the conditions for comprehensive political and humanitarian solutions to the migration crisis may be taken as required common denominators in the European response, but at the same time the debate showed clearly that there is no “one fits all” recipe which can be imposed on European countries, with their diverse history, geo-political composition and contemporary challenges. Moreover, although international conventions and treaties provide a range of guarantees of human rights, democracy and the rule of law which must be respected, how these are to be effectively implemented at European level requires adequate efforts of coordination, cooperation and solidarity, all essential dimensions of the process of European unity which is a common goal to both the Council of Europe and the European Union.
Building on the recognition that migration is inevitable, part of today’s reality and a continuous process, the report will work on the assumption that there is a need to better anticipate crises and to work towards minimising them in the future. One of the aims of this report will be to pull together a number of the specific recommendations, taking into account new developments and challenges in the ongoing migration and refugee crisis in Europe, into a single, “comprehensive” corpus of recommendations related to humanitarian action and common political strategies. These recommendations should address all the different interlocutors who can contribute to positive change and progress.
Follow-up – a new report on the theme A motion for a report to follow up the Paris conference was adopted by the Migration Committee at its meeting in Tbilissi on 22 March 20164, and Duarte Marques (Portugal, EPP/CD) Debate in plenary not based on a specific report prepared in advance, designed to enable discussion on matters of concern arising just prior to the session which parliamentarians consider should be addressed. 3 See the agenda, verbatim reports, adopted texts and votes here: goo.gl/ KYs9xs 4 See: goo.gl/sxGNlp 2
building on the recognition that migration is inevitable, part of today’s reality and a continuous process, the report will work on the assumption that there is a need to better anticipate crises and to work towards minimising them in the future.
From this perspective, it must also be said that despite the protracted nature of the crisis and its global repercussions affecting the whole of Europe, and despite the numerous calls for cooperation from all sides, this is not a given attitude. At the Paris conference, one of the moderators pointed out that the solidarity demonstrated among Europeans during times of extreme hardship in the 20th century was much less evident today. The characteristics of this relative breakdown will be examined in the future report, in an effort to define the reasons why States do not succeed in implementing comprehensive responses and what are the obstacles to better coordination.
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Migration Law - the next topic of the
5th EDITION of the ELSA DAY
Jakub Čája Vice President for Academic Activities ELSA International 2016/2017
The idea of the ELSA Day as the ELSA birthday celebration has been introduced many years ago, however, there has been no particular event connected to this day. As time passed, the International Board of the term 2012/2013 introduced a wholly new concept of ELSA Day. ELSA Day became a day, when the ELSA network commemorates our commitment towards Human Rights. This was the first time in the ELSA history, when the entire ELSA Network worked together to create a unique Human Rights forum, where we discussed national and international standards of protection and implementation of Human Rights. The forum consisted of coordinated ELSA events falling back on ELSA's Vision with a unique the slogan "all different, all together". ELSA Day consequently became an annual project whereby its aim is to join the ELSA network in order to demonstrate our Human Rights commitment by providing legal education opportunities. The idea behind the project is to make one combined effort together that results in visibility and recognition all over Europe. I can proudly say that this year we have a special reason to celebrate, as it will be the 5th time we are going to dedicate the whole day to the commitment of Human Rights. Another positive fact is the number of events organised within the Network as well as the impact they have. There have been more than 130 events organised each year. Moreover, this initiative is appreciated and supported by our Human Rights partner, the Council of Europe. Later on, ELSA decided to create the ELSA Day Competition aiming at awarding the best event organised for the first time in the 2nd edition of the ELSA Day with the focus being on Human Rights on the Internet, and it became a nice tradition
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for the following editions. The award for the best event in the forementioned edition was presented to ELSA Istanbul with their project called Human Library – where they invited people with different backgrounds and discussed their social status and its effect on Human Rights. In 2014, ELSA Day took place for the second time on the 26th of November with the topic of Social Responsibility, and the reward for best event was given to ELSA Timisoara for a unique fundraising charity event held for children. Following the previous success, ELSA launched its 4th edition of the ELSA Day, which took place on the 25th of November 2015. This edition’s main focus was on the various aspects that relate to the issue of Gender Equality. Out of more than 145 events organised by 43 National Groups and 230 Local Groups, the short movie competition on Gender Equality topic which was a project organised by ELSA Azerbaijan, with the title "The Orange Movie Festival" was chosen as the best project with the biggest impact and received a joint prize from ELSA and the Council of Europe. The topic for the 5th Anniversary Edition of the ELSA Day is going to be Migration Law, which is one of the hottest legal issues nowadays. This year, the ELSA Day will take place on Wednesday, the 30th of November. We are already looking forward to seeing many interesting events. Become part of this huge initiative, join the following edition of the ELSA Day 2016 with your own event and make an impact on the society!
International focus
Go international with
STUDENT TRAINEE EXCHANGE PROGRAMME
Alyona Litvinova Vice President for STEP ELSA International 2016/2017
Student Trainee Exchange Programme is ELSA’s traineeship programme, which focuses on sending our members abroad to gain practical legal skills and new cultural experiences. All the traineeships are displayed on the STEP Portal, which makes the application procedure easier for our members. However, this is not the only thing that makes our programme unique. The Local ELSA Group that welcomes the trainee in their city involves him or her in their academic and social activities – so there is no need to be scared of going abroad to an unknown city. What we have been trying to focus on the most for the past years is offering our members the possibility to apply for STEP traineeships outside Europe. Internationality is the key to success and the appeal of STEP. In addition to our longterm partners, we have recently established a STEP cooperation with the Dominican Law Students’ Association (Asociación Dominicana de Profesionales y Estudiantes de Derecho – ADED).
Antonio F. Pontier Founding President Dominican Law Students' Association
lous knowledge of the legal area, using critical analysis, coaching and research. In addition to this, it is important to approach the trainee with cultural and academic activities; displaying places such as the First Street, the First Court House, the First University of America and also Dominican customs, cuisine and specialties. Furthermore, Dominican Law Students’ Association is developing the “Intercontinental Networking” – a tool that gives the trainee access in social events to leading law firms and prominent lawyers; consequently, I truly believe that members of ELSA should exploit this exceptional opportunity, which will leave them with a remarkable memory, with an unforgettable experience.” I hope that you, dear reader, would grab the opportunity of attending a STEP traineeship, which you can check out at the STEP Portal following the link: step.elsa.org, on the 14th of November, 2016, when the new traineeships get published!
I am glad that this term we are able to offer the opportunity to have a traineeship in the Dominican Republic for our members. Here is how Antonio F. Pontier describes the specialities of the STEP traineeships they offer: “Here, in the Dominican Republic the Student Traineeship Exchange Programme (STEP) has been relatively different; we’ve made a combination or fusion of STEP and the Study Visit; this blend seeks to influence and motivate our visitors to be part of a singular platform, which allows them to fulfil their goals and to discover invisible potentials. Our guests have working experience, gaining meticu-
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International focus
A special year for the Moot Court Competitions
CELEBRATE the EUROPEAN and the GLOBAL CHALLENGE WITH US!
Christine Beck Vice President for Moot Court Competitions ELSA International 2016/2017
This year is a very special year for the Moot Court Competitions. We are celebrating the 5th edition of the European Human Rights Moot Court Competition (EHRMCC) and the 15th edition of the ELSA Moot Court Competition on WTO law (EMC2).
gapore, Bogota (Colombia), Cluj-Napoca (Romania), Kyiv (Ukraine) and Grahamstown (South Africa). The big Final Oral Round will take place again at the Headquarters of the World Trade Organization in Geneva during the 6th – 11th of June 2017.
Through our Moot Court Competitions we have spread our vision in order to educate law students, because there is no better way to link the theory, which students acquire at university, with practice. In both competitions the teams have to hand in two written submission and afterwards plead their case in front of real judges.
If you want to participate, to coach a team or to sit as a judge at a pleading, get into contact with us through mootcourts@elsa.org and become a part of the shaping of tomorrow!
The EHRMCC focuses on teams from member states of the Council of Europe and ELSA member states. The teams consist of 2-4 law students and they have to hand in two written submissions in order to be able to qualify for the Final Round in Strasbourg, France between the 12th and the 16th of February 2017. For this year’s celebration we have changed a couple of things in the competition. Not only for the first time more than one team per university is allowed to compete in the written submissions, but also this year we increased the number of teams, which can proceed to the Final Round from 16 to 20. We hope that with these changes we can properly celebrate the 5th anniversary of the EHRMCC.
REGISTER YOUR TEAM TODAY!
5TH EUROPEAN HUMAN RIGHTS MOOT COURT COMPETITION registration deadline: November, 6th website: ehrmcc.elsa.org
When it comes to the EMC2, we are facing a global challenge. This competition reaches further than the boarders of our continent. The 15th edition’s the Regional Rounds will take place during the end of February, the whole month of March and the beginning of April 2017. The locations will be in Sin24 | SYNERGY Magazine
15TH ELSA MOOT COURT COMPETITION registration deadline: December, 4th website: emc2.elsa.org
International focus
Ieva Žebrytė and the EMC2
from DEBATES to MOOTS…
from LITHUANIA to CHILE
Ieva Žebrytė Full time academic at the Department of Management and Economics Internationalization Coordinator of the Faculty of Law and Business Universidad de La Frontera, Temuco – Chile
Preparing for the future is impossible withought knowing the past. As this year ELSA holds two anniversary moot courts, one of which is the 15th edition of the ELSA Moot Court Competition, we tried to remember the flashpoints of this moot court's past from back in 2001. Ieva Žebrytė, who was the Academic Supervisor during 2002-2012, shared with Christine Beck her memories of that time and personal experience. CB: How did the dream of an International Moot Court Competition organised by ELSA come true? IŽ: Hans and Mark have been there at the very birth of the project. I first got involved in the project during Spring ICM Vienna in 2001, when the drafted rules and a case provided by Professor Emmert of ELSA Latvia were already ready. Personally, I was interested in moot courts because they are similar to debates, something that I have been participating in since 1995. In 2001 I helped to organise the National Moot Court Competition of ELSA Lithuania called STart, and it took off from there. I first became Vice President for Academic Activities of ELSA Vilnius, then for ELSA Lithuania, then Director for ELSA Moot Court Competition of ELSA International, and then Vice President for Academic Activities of ELSA International. After that, I served another term as a ELSA Moot Court Competition of ELSA International. During my first EMC2 directorship, I worked with the Vice President for Academic Activities, Mark Refalo, who was in charge of launching the Competition, but in fact it was the entire IB who took it up as their priority project and functioned as an organising committee, each IB member in charge of one “bubble” on the organisational chart. I mainly worked from
Lithuania, however, I had also spent some weeks at the ELSA House. Work, work, work … this is how the dreams are made to come true.
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worked with the vice president for academic activities, mark refalo, who was in charge of launching the competition, but in fact it was the entire ib who took it up as their priority project and functioned as an organising committee, each ib member in charge of one “bubble” on the organisational chart.
CB: What has been considered as the biggest threat while discussing the establishment of the EMC2? IŽ: If I remember correctly, the viability of the project was under doubt cause of the competition with other international moot courts. We needed to differentiate ourselves. Market rules, you know. Also, the Network had decided on the WTO Law as the topic and WTO Dispute Settlement as procedure at the time when anti-globalisation protests were taking place in Europe and around the world. The fact that both ELSA and WTO are non-political organisations helped a lot, but there still were tensions on the international arena at the time. They also affected the competition’s development. During the first few years we had to rely on the European or SYNERGY Magazine | 25
International focus Europe-based International Trade Lawyers in order to build up EMC2’s reputation. Only later, when WTO became more comfortable with us and proposed the “Technical Supporter” label for their cooperation that we could proudly say that we were “collaborating with the WTO”. CB: This year the EMC2 celebrates its 15th anniversary. What did the Competition look like back in 2002? IŽ: I don’t know what the competition looks like now, although in 2002 it was a bunch of letters on a couple Word sheets and a painstaking Excel sheet with numbers of the money we needed. At the time there were very nice people helping us. Some of them were much older than us, imaging four International Board members’ ages put together. ELSA members already knew how to deal with academics, professors and university staff. However, most of them had no idea how to communicate and liaison with the diplomatic personnel. Visiting country’s Missions to the WTO and the Embassies in Geneva were an interesting and learning experience. Later, between 2006 and 2012 my experience as an Academic Supervisor was absolutely thrilling. I got to travel to the Americas (North and South) and work with universities and student NGOs as well as their sponsors. It was a blast and served as a big push to my academic career.
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at the time there were very nice people helping us, imaging four international board members' ages put together. elsa members already knew how to deal with academics, professors and university staff. however, most of them had no idea how to communicate and liaison with the diplomatic personnel. visiting country’s missions to the wto and the embassies in geneva were an interesting and learning experience.
International focus CB: How would you describe your experience of organising the ELSA Moot Court Competition for so many years? IŽ: It has been a very intense experience. I was in charge of the event, one way or another during the first five years of its existence, and then in charge of the nonELSA regional rounds on the vast continent of the Americas for another five years. So, it was a very intensive decade for me. I was learning something new on a weekly basis. And, it was a volunteer commitment! During that decade I have done an ERASMUS-Socrates exchange, graduated from the university, got a job, then changed jobs, gave birth to my son, changed my base to Latin America and changed my career from lawyering to academics. The EMC2 participated in almost every step of my life. So, organising the EMC2 for me meant living it! CB: What do you consider to be the biggest achievement of the Competition? IŽ: Its global fame and quality. Australian-Italian Mrs. Letizia Raschella-Sergi inspired and installed the highest standard of academic procedures for this competition whilst leaving the spirit of an ELSA project intact.
(it was May!) later that night. We had our personal ELSA DJ and the whole place to ourselves since we could not afford the plush clubs, but Wall Street Bar was great also in the years that followed! CB: How did the involvement in the organisation of the EMC2 affect your future profession? IŽ: There is an article in Synergy No. 42/II 2007 which sums it up perfectly, which I highly recommend to read! What I can add is that from 2007 onwards I had changed my career from lawyering to academics. I am an author and co-author of various scientific publications. I have participated in three huge research projects on Tourism and Mobilities. I am about to apply for a PhD in Management program whereby I intend to study Tourism Entrepreneurs in Patagonian Tourist Destinations (keep your fingers crossed that I am accepted to this program). I am currently a full time academic at the Business and Law Faculty of the Universidad de La Frontera in Temuco, Chile. I am also the Coordinator for Internationalization of the said faculty and I would like to invite all ELSA members to consider spending semester abroad in the South of Chile, entry point to the world famous Patagonia.
CB: What was the biggest challenge that you faced when being the first ever Director for ELSA Moot Court Competition of ELSA International? The greatest challenge so far was the lack of experience in participating in a moot court before, but only in the World Schools Debating Championship in London in 1999. Also, I came out of a legal culture where neither moot courts nor other type of simulations was used in teaching law. Again, it was Letizia who taught me the details and sensitivities of the process and that the participation fee payed by students from around the world will be expected from the competition. What is the most amusing moment you can recall connected with EMC2? IŽ: Geneva, Wall Street Bar, Mark Refalo with a drink in his hand singing what sounded like an Italian drinking song full of what resembled cuss words to … Professor Montagutti of the EU Legal Services who looked like she was thoroughly enjoying the song and the drink in her hand. We were having an EMC2 Final Oral Round closing party. It was the most lighthearted fun Geneva has seen in many years. Also, some students from a German team opened the swimming season
ELSA_AD.indd 1
Dubai Law School
CBL International
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28/07/2016 14:47
Protection of Unaccompanied Children and the Dublin Regulation:
IS the SYSTEM NOT WORKING?
Chiara Mele LL.M. Student of International Law and Human Rights Tilburg University
Introduction
Call for a new amendment
Unaccompanied minors are defined as: “third-country nationals or stateless persons below the age of 18, who arrive on the territory of the Member States unaccompanied by an adult responsible for them whether by law or custom, and for as long as they are not effectively taken into the care of such a person […]" 1 . Europe is facing a huge flow of this particular migrant category; in 2015 the number of asylum applicants considered to be unaccompanied minors and registered in the European Union (EU) amounts to almost 90 000, from whom slightly more than half are Afghans2. Nevertheless, these figures provided by Eurostat do not show the complete picture of the reality of the phenomenon, given that many of them do not register with the authorities either because they are unable – they might get controlled by human traffickers and destined for sexual, labour exploitation – or unwilling – pushed by fear, because they have been advised by their family, peers or smugglers – to do so.
Even though unaccompanied minors make up for a small proportion of the total number of asylum seekers, they substantially represent the most vulnerable group among them, facing extremely difficult situations and disheartening challenges in the early stages of the asylum procedure. These minors are placed in a very vulnerable situation, which they have to endure, exposing them to many risks – human trafficking, sexual exploitation, forced labour, servitude. This should force us to pay more attention and to put even more effort in ensuring we have a better legal protection framework.
These children might also not be represented in the statistics, simply because they do not ask for international protection or because they were referred to specialised procedures for child victims of trafficking3.
Article 2(i), Qualification Directive, 2004/83/EC, 29.4.2004. Eurostat-Press release 87/2016-2 May 2016, available at: http:// ec.europa.eu/eurostat/documents/2995521/7244677/3-02052016-APEN.pdf/. 3 UNHCR, Safe & Sound: What States Can Do to Ensure Respect for the Best Interests of Unaccompanied and Separated Children in Europe, 7, October 2014, available at: http://www.refworld.org/docid/5423da264.html 1 2
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The practical implications caused by the complexity of this issue require a tighter connection between government agencies and other partners: the former actors, that are involved in the process of deciding which Member State bears the responsibility for an asylum application lodged by a third country national, needs clear norms regulating transfers of minors between States: as has been reported by the UNHCR, stating that: “[…] children who were not accommodated following transfer, resulting in these children becoming homeless and destitute. A lack of mutual recognition of age assessment outcomes has resulted in age disputed children being accommodated in facilities for adults or in detention. Moreover, delays in the appointment of a guardian in the receiving Member State have resulted in delays in accessing the asylum procedure” 4. The reason why such transfers are so important is that they are connected to the determination made by the State respon sible for the examination process for international protection. UNHCR, Protecting the Best Interest of the Child in Dublin Procedures, 4, February 2015, available at: http://www.refworld.org/pdfid/54e1c2924.pdf 4
Think Global, Act Local Legislation Background Currently, the Dublin III Regulations establishes as a general principle that the State Member responsible for an unaccompanied minor asylum-seeker is the Member State where a family member or sibling of the minor is legally present, if that is in the best interests of the child. A ‘family member’ is defined as a spouse, parent or guardian (if the minor is unmarried), or child of the asylum-seeker, if the family already existed in the country of origin. If the minor is married but his or her spouse is not in the EU, then the Member State where his or parents are legally present is responsible. If there are no such persons in the territory of a Member State, then the Member State where a ‘relative’ of the unaccompanied minor is legally present is responsible, if that relative can take care of him or her. A ‘relative’ is defined as an aunt, uncle or grandparent. If there are family members, siblings or relatives in multiple Member States, then the responsible Member State is decided on the basis of the best interests of the child5.
“
even though unaccompanied minors make up for a small proportion of the total number of asylum seekers, they substantially represent the most vulnerable group among them, facing extremely difficult situations and disheartening challenges in the early stages of the asylum procedure.
In case no one of this category of individuals can be found, the default rule of Article 8(4) provides that “[i]n the absence of a family member, a sibling or a relative as referred to in paragraphs 1 and 2, the Member State responsible shall be that where the unaccompanied minor has lodged his or her application for international protection, provided that it is in the best interest of the minor”. What emerges from this disposition is that there is no legal certainty with respect of responsibility for examining an unaccompanied minor´s application. Particularly, in the latter particular case, it has been stressed how the discussed legislation fails to address the situation in which the minor lodges an application in more than one Member State. These ambiguities and gaps are currently the object of an amending proposal of the European Commission. Article 8(1)(2), Regulation of the European Parliament and European Council, 604/2013, 26.06.2013. 5
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Think Global, Act Local The European Commission proposal The Dublin III Regulation has already been the target of criticism by many commenters6, although both the European Parliament and the European Council agreed on leaving the default rule untouched, since there was a pending case regarding the interpretation of the controversial disposition before the CJEU7. The Court pronounced its final decision in 2013. However, the two institutions jointly adopted a declaration calling on the European Commission to draft an amendment to the legislation on the issue, once the Court had delivered its ruling. The proposed amendment aims to replace the rule as follows: first of all, reflecting the mentioned judgement, in case of multiple applications: “the Member State responsible shall be the one where the unaccompanied minor has lodged an application for international protection and is present, provided that this is in the best interests of the minor”. Secondly, in the case of a minor who has lodged an application in a Member State and is present in the territory of another Member State – without requesting international Steve Peers, The Dublin Regulation: Is the End Night? Where Should Unaccompanied Minors Apply for Asylum?, 21 January 2016, http://eulawanalysis.blogspot.nl/2016/01/the-dublin-regulation-is-end-nigh-where.html 7 Case C-648/11, MA and Others vs. Secretary of State for the Home department. 6
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protection – this latter shall inform the unaccompanied minor of the right to make an application and give him or her an effective opportunity to lodge an application in that Member State. Thirdly, it is underlined that there needs to be cooperation between States in the case of transfers, in order to avoid conflicts of interests. Lastly, it states several obligations of information in the course of the procedure8. Comments The Commission presented the proposal on the 26th of June 2014, but the possibility of a reform appears to be stuck for the time being. However, while we lie in waiting for new developments, it can be safely said that, in principle, the proposal has been welcomed. Even though the amendment presents some limits and flaws, as Steve Peers remarks in article9, giving full application to the general principle of family unit, the drafting achieves the respect of human rights for vulnerable children in this context, which was endangered by the strict rigour of Dublin rules. Federica Vignale, Dublin III Regulation on asylum and unaccompanied minors, 9 April 2015, https://free-group.eu/2015/04/09/dublin-iii-regulation-on-asylum-and-unaccompanied-minors/#_ednref12 9 Steve Peers, Unaccompanied Minor Asylum-seekers: A Step in the Right Direction?, 27 June 2014, http://eulawanalysis.blogspot.nl/2014/06/unaccompanied-minor-asylum-seekers-step.html. 8
Think Global, Act Local
The role of
the EMERGING PRINCIPLE of SOLIDARITY in the time of mass influx of refugees to Europe
Andrea Konjevic President ELSA Croatia 2010-2012
States have obligations, founded in customary international law and undertaken in multilateral treaties, to accord protection and a basic standard of treatment to refugees; these obligations are binding and must be performed in good faith1. For the purpose of this article, I will name them primary and subsidiary obligations. The primary obligations of states are those covering the direct treatment of refugees. The Refugee Convention2 sets the minimum standards of treatment of refugees, including the basic rights to which they are entitled. The subsidiary obligations of states simply arise when primary obligations cannot be successfully fulfilled by a particular state and on its own. These obligations are called subsidiary because they come into force when primary obligations are not single-handedly achievable. Although I use the term subsidiary, they are not less important. Even more so, in today's world they are in fact gradually getting on an equal footing with the primary obligations. Finally, what would the subsidiary obligations of state be?
eration among States in accordance with the Charter of the United Nations (hereinafter: Declaration on Principles): ''States have the duty to co-operate with one another, irrespective of the differences in their political, economic and social systems, in the various spheres of international relations, in order to maintain international peace and security and to promote international economic stability and progress, the general welfare of nations and international co-operation free from discrimination based on such differences'. 3 In short, it would be the principle of solidarity in international law representing a duty of states to co-operate in international law and, more specifically, in refugee law, as a branch of the international law. Furthermore, the principle of solidarity can be additionally summarized in the words of Filippo Grandi, the United Nations High Commissioner for Refugees, who emphasized that the responsibility for caring for refugees should not be left to neighbouring countries alone: "The magnitude of this particular crisis shows us unmistakably that it cannot be business as usual, leaving the greatest burden to be carried by the countries closest to the conflict." 4
As stated in the United Nations Declaration on Principles of International Law concerning Friendly Relations and Co-op-
United Nations General Assembly, Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations, 24 October 1970, A/ RES/2625(XXV) 4 UNHCR, ''UN Secretary General says more help needed for Syrian refugees'', News Stories, 30 March 2016, available at: http://www.unhcr. org/56fb98dc3.html, accessed 30 March 2016 3
UNHCR, Note on International Solidarity and Refugee Protection, EC/ SCP/50, 13 July 1988, available at: http://www.unhcr.org/3ae68cd4c. html, accessed 15 December 2015 2 United Nations, Convention relating to the Status of Refugees, 28 July 1951, UNTS, vol. 189, p. 137 1
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Think Global, Act Local
© Terence Faircloth | http://www.eyeartcollective.com/revolutionary-solidarity/
“Hands in Solidarity, Hands of Freedom” – Photographed and shared by Terence Faircloth
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not only europe is facing a mass influx of refugees. for decades jordan welcomed people escaping wars on its borders - palestinians, iraqis, and now so many syrians make up nearly 20% of the population. jordan has almost 1.5 million syrian refugees. that's far more that europe took in 2015.
Not only Europe is facing a mass influx of refugees. For decades Jordan welcomed people escaping wars on its borders - Palestinians, Iraqis, and now so many Syrians make up nearly 20% of the population5. Jordan has almost 1.5 million Syrian refugees. That's far more that Europe took in 2015. On an absolute basis, according to the UNHCR's data from December 2015, Turkey is the world's biggest hosting country with 1.84 million refugees in its territory as of 30 June, while Lebanon ''Syria conflict: Jordanians 'at boiling point' over refugees'', BBC News, 2 February 2016, available at: http://www.bbc.com/news/world-middleeast-35462698, accessed 5 February 2016. 5
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hosts more refugees compared to its population size than any other country, with 209 refugees per 1000 inhabitants6. Ethiopia pays most in relation to the size of its economy with 469 refugees for every dollar of GDP (per capita, at PPP)7. Overally, the lion's share of the global responsibility for hosting refugees continues to be carried by countries immediately bordering zones of conflict, many of them in the developing world8. According to the UNHCR, the number of Syrians arriving in Europe seeking international protection continues to increase. However, it remains low compared to Syria`s neighbouring countries, with slightly more than 10% of those who have fled the conflict seeking safety in Europe9. It is important to note the varying impact of refugee arrivals on individual European states. Since the Syrian conflict began, only five countries10 in Europe received more than 5,000 asylum applications from 'Syria conflict: Jordanians 'at boiling point' over refugees'', BBC News, 2 February 2016, available at: http://www.bbc.com/news/world-middleeast-35462698, accessed 5 February 2016. 7 Ibid. 8 Ibid. 9 Available at: http://data.unhcr.org 10 Bulgaria, Germany, The Netherlands, Sweden and Switzerland. 6
Think Global, Act Local Syrians; in contrast, 17 countries11 received fewer than 200 applications in the same period12. Finally, Europe should not forget the last mass migration, during which Europeans themselves were refugees and migrants. It was one of the greatest migrations in human history13. From 1846 to 1940, some 55 million Europeans packed their bags and sought a new life abroad, mostly in the United States and South America14. States are, however, not the only actors of the principle of solidarity. Poetically speaking ''No man is an island'' 15 and we have all been living in communities since the beginning of the mankind. The Declaration of Human Rights shares that burden with each and every human being. In realising the right to development, civil society can be a vital actor in the common interests of all. Solidarity manifests itself through the daily actions of a range of stakeholders, including states, civil societies, global social movements, corporate social initiatives and people of goodwill, especially in the aftermath of major disasters16. The outcome of Pope Francis’ recent visit to the Greek island of Lesbos confirms that the UNHCR’s directions are not merely an unattainable ideal. Namely, on 16 March 2016 the Pope rescued 12 Syrian refugees from the island and brought them to Vatican. The fact that the Pope is not a representative of any state as an international subject, but of the Holy See which is a separate international legal entity that should not be confused with the State of Vatican City, is an indicator that the principle of solidarity does not only apply to states, but instead erga omnes - to all entities of the international community. Their arrival brings the number of refugees living in the Vatican to about 20 – in a city, which has fewer than 1,000 inhabitants. A similar intake across Europe would see 6 million people given asylum on the continent of 300 million17. Last Albania, Azerbaijan, Belarus, Bosnia and Herzegovina, Czech Republic, Estonia, Georgia, Iceland, Ireland, Latvia, Lichtenstein, Lithuania, Luxembourg, Portugal, Slovenia, Slovakia and the Republic of Moldova. 12 UNHCR, Syrian Refugees in Europe: What Europe Can Do to Ensure Protection and Solidarity, 11 July 2014, available at: www.unhcr.org, accessed 29 September 2015. 13 Worrall, S., ''During Last Mass Migration, Europeans Were the Immigrants'', National Geographic, 24 April 2016, available at: http://news. nationalgeographic.com/2016/04/160424-refugee-migration-immigrationhistory-eastern-europe-jews-ngbooktalk/, accessed 24 April 2016. 14 Ibid. 15 A line from Devotions upon Emergent Occasions, a 1624 work by the English poet John Donne 16 Puvimanasinghe, S., International solidarity in an interdependent world, Office of the United Nations High Commissioner for Human Rights, 2011, p. 11. 17 ''Pope Francis hailed as saviour by Syrian refugees taken in by Vatican'', The Guardian, 17 April 2016, available at: http://www.theguardian.com/ world/2016/apr/17/pope-francis-hailed-saviour-syrian-refugees-lesbos-vatican, accessed 17 April 2016 11
year, the pope appealed to every Catholic diocese in Europe to take in a refugee family, an appeal that fell on deaf ears across most parts of the continent18. But, since people are represented by their states which make the legislation, it is obvious that the real burden falls upon the states. States are the duty bearers under international human rights law. After all, human rights are designed to limit the exercise of state power and impose legal obligations on states.
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but, since people are represented by their states which make the legislation, it is obvious that the real burden falls upon the states. states are the duty bearers under international human rights law. after all, human rights are designed to limit the exercise of state power and impose legal obligations on states.
The principle of solidarity, which is only yet emerging, has been prescribed in a number of positive international legal documents and, at the same time, it presents the right and the duty to act in the face of a mass influx. The principle has been laid down; it is now up to the international subjects to implement it when the situation requires. In spite of all the downfalls of the current EU regulation, some EU Member States have acted in line with the international obligations, including the Refugee Convention. The deficient EU regulation should by all means be further harmonised with the international instruments of refugee protection and human rights protection in general, as well as with that international documents entailing the principle of solidarity. The EU is, after all, a community driven by the idea that European Member States give a stronger response to challenges when united, the principle of solidarity being at its very core. Good practices of some states indicates that this is indeed possible, but more importantly, that there is willingness among the refugee law actors – the states, the UNHCR and others - to follow the principle of solidarity.
18
Ibid. SYNERGY Magazine | 35
Think Global, Act Local
15 years of desuetude of the EU Temporary Protection Directive -
a BLUNDER in the ACTIVATION
MECHANISM?
Bernice Saliba President ELSA Malta 2016/2017
Over the recent months, questions amongst citizens of several Member States have arisen as regards to why the Temporary Protection Directive was omitted from the discussion on the European Refugee Crisis Debate. Under International law and European Union regulations, all European states are obliged to protect and assist refugees, however the time has come to recognize that a technically unusable Directive is not enough to fulfil such an obligation. Unlike most directives, the Temporary Protection Directive requires an activation mechanism 1 which is only made use of when there is a ‘mass influx’ of displaced persons, of which such is decided through a Council Decision establishing the existence of a mass influx, and adopted by qualified majority, in accordance with the provisions of Directive 2001/55/ EC, namely Art 5(1) 2. The requirement of the qualified majority is what places the issue under criticism, and the fact that the directive hasn’t been made use of in its 15 years of existence makes one question whether this directive is merely decorative. Several Member States have attempted to activate the Directive, particularly Member States geographically vulnerable to the migrant situation. The Commission can propose activating the Directive after the State’s request, nevertheless, such a proposal has to be discussed and adopted by the Council with a qualified majority vote. The difficulty lies in securing a qualified majority http://ec.europa.eu/dgs/home-affairs/what-we-do/policies/asylum/temporary-protection/index_en.htm (accessed 10th July 2016) 2 goo.gl/11Mzzx (accessed 10th July 2016) 1
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Nicole Scibberas Debono Director for Social Policy and Legal Publications ELSA Malta 2016/2017
vote in the Council in the face of an influx situation which only seriously affects a limited number of Member States. This brings to rise the concern as to whether Member States, in determining such ‘mass influx’, are in reality looking out for their own personal interests, rather than following their duties and obligations to the rest of the Member States, which is part and parcel of being part of the European Union. Particular reference must be made to those Member States which are perhaps not touched by any migration crises. A qualified majority decision, as evident as can be, is impossible to achieve when such a situation only affects a limited number of Member States. Furthermore, it is difficult to obtain the required qualified majority because Member States fear that this would result in even more migrants being ‘encouraged’ to seek refuge in Europe. Time has shown that the non-activation of the Directive has been nothing short of being political, and the humane aspect of aiding those in dire need, which is perhaps the fundamental purpose of this Directive, has been eliminated and somewhat forgotten. It is perhaps a pity that the requirement of a qualified majority is of hindrance to the activation of the Directive, when the Directive has so much potential to protect a broad range of individuals coming to Europe 3. The Directive provides a temporary protection status that confers temporary residence permits, emergency http://eulawanalysis.blogspot.com.mt/2015/07/the-missing-piece-ineuropean-agenda-on.html (accessed 10th July 2016)
3
Think Global, Act Local health care, shelter, social benefits, education for minors as well as limited access to the labour market and a limited right to family reunification. Yet, when Member States refuse to abide with any form of burden sharing mechanism, this directive deems itself to be nothing more than a sham, with only the actions and motives of the Member States to blame. As the directive is not being made use of, perhaps a sort of remedy which ought to be referred to is the current disproportionate relocation scheme, in which Member States agree to help in relocating migrants from Greece and Italy. However the problem with such is that not all Member States have been participating (such as the UK and Denmark), and moreover, not all have been participating fairly, as some Member States are taking on a smaller burden than others. The current relocation scheme deems itself to be inefficient, burdensome and lacking any form of structure, and this is only due to the fact that any mechanisms available are put aside when some Member States do not cooperate.
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if human rights are not protected, and if mechanisms which were previously elected to protect such human rights are not enacted, then states, whether part of the eu or not will have to face a reality worse than taking in migrants, but one where distrust between states will lead to lack of cooperation and where our beliefs in human rights will cease to have any effect to the detriment of each individual.
Without such acquiescence, there can be no way forward. There can be no going about the issue, when national ‘amour propre’ supersedes the obligations of the Union, and perhaps more importantly, our duties as humans towards each other. If the directive is not practical, then action must be taken to make it so, with proper amendments, for instance, in better defining “mass or large-scale influx” and perhaps aspiring to a self-executing directive rather than requiring an activation mechanism. The triggering mechanism found under Article 5 is one of the most hindering factors when it comes to seeking provision for temporary protection, and it is by condemning the problem at its roots can there be the necessary change. In this day and age, when Europe is facing such a challenging time, one may understand how States may put their own interests first, but it is through challenging periods like this, that values and principle and beliefs are tested. If human rights are not protected, and if mechanisms which were previously elected to protect such human rights are not enacted, then States, whether part of the EU or not will have to face a reality worse than taking in migrants, but one where distrust between States will lead to lack of cooperation and where our beliefs in human rights will cease to have any effect to the detriment of each individual.
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Think Global, Act Local
How effective is the Dublin III Regulation in terms of inter-state solidarity and protection for asylum seekers?
A BRIEF OUTLINE OF THE DUBLIN III REGULATION AND ITS IMPLICATIONS Therese Lia Winner of ELSA Malta Essay Competition 2016
Evolution of the Dublin System In 1990 the Member States first agreed upon the Dublin Convention as a part of the agreement of the Schengen Convention. The Dublin Regulation, referred to as Dublin II, replaced the Dublin Convention in 2003, and it was accompanied by the EURODAC Regulation, which aimed at assisting the Dublin Regulation’s implementation and which established a record database of applicants’ fingerprint data. In 2013, the European Council and Parliament negotiated a revision of the Dublin Regulation (Dublin III) to address some criticisms of the 2003 legislation such as those of efficacy and fairness as well as those related to human rights breaches of the applicants at destination1. The Dublin III has introduced the right to information, personal interview and access to remedies, as well as a mechanism for early warning, preparedness and crisis management2. The Dublin system has been criticised for having as its ultimate purpose swift assignment of responsibility for individual asylum applications rather than fair asylum burden sharing and concern has been raised with regards to delays the Dublin procedures create in the evaluation of protection claims3. Susan Fratzke, 'Not Adding Up: The Fading Promise Of Europe's Dublin System' (Migration Policy Institute 2015) 2 It also grants more protection to the asylum seekers who may be considered as irregular migrants to be treated under the Dublin Procedure. Source: 'Dublin Statistics On Countries Responsible For Asylum Application - Statistics Explained' (Ec.europa.eu, 2016) http://ec.europa.eu/ eurostat/statistics- explained/index.php/Dublin_statistics_on_countries_responsible_for_asylum_application accessed 10 July 2016 3 Ibid 1. 1
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The Dublin III Regulation – truly “governed by the principle of solidarity and fair sharing of responsibility” Article 80 of the TFEU promised? Since its main premise stipulates that the state that played the major part in the asylum seekers’ entry into, or stay into the EU is ultimately responsible for the asylum application and its hierarchy of criteria is based on family unity, legal residence or visas, illegal entry and place of application4, the Dublin III Regulation still lacks a mechanism guaranteeing a fair distribution of responsibilities. As the Draft Report on the situation in the Mediterranean and the need for a holistic EU approach on migration5 stated, the Dublin III Regulation has “raised many questions linked to fairness and solidarity” 6. In fact solidarity, one of the core fundamental values of the Union to which the Member States subscribe7, is of utmost legal importance to the policy of the European Union, especially to asylum policy, as underlined in Article 80 of the Treaty on the Functioning of the European Union (TFEU)8. In this respect, after ten Council of the European Union, ‘Council Regulation (EC) No, 343/2003’, European Union, ‘Regulation (EU) No. 604/2013’. 5 DRAFT REPORT on the situation in the Mediterranean and the need for a holistic EU approach to migration (2015/2095(INI)) Committee on Civil Liberties, Justice and Home Affairs. 6 This is because “the current system does not take into sufficient consideration the particular migratory pressure faced by Member States situated at the Union’s external borders”. 7 'Solidarity Principle | Eurofound' (Eurofound.europa.eu, 2016) http:// www.eurofound.europa.eu/observatories/eurwork/industrial-relations-dictionary/solidarity-principle accessed 10 July 2016. 8 Article 80 of the TFEU: “The policies of the Union set out in this Chapter and their implementation shall be governed by the principle of solidarity and fair sharing of responsibility, including its financial implications, between the Member States. Whenever necessary, the Union acts adopted pursuant to this Chapter shall contain appropriate measures to give effect to this principle.” 4
Think Global, Act Local years into force, the European Commission’s evaluation; “the objectives of the Dublin system … have, to a large extent, been achieved” (2007) is questionable since responsibility, though assigned, is not being carried out and multiple claims and irregular movement are still commonplace. According to the EU Observer, the EU’s mantras of values and inter-state cooperation have been rendered meaningless in the refugee crisis9, as the Dublin system has been responsible for shifting responsibility of refugees towards Europe’s southern and Eastern states such as Greece, Jordan, Turkey, and Italy, which have consequently been experiencing an overwhelming economic strain10. A brief look at the data on the actual asylum applications reveals a highly inequitable distribution of responsibilities between Member States and substantial differences between the European Commission’s proposed quotas for relocating migrants from Greece and Italy and the additional quotas later in September 2015.
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according to the eu observer, the eu’s mantras of values and inter-state cooperation have been rendered meaningless in the refugee crisis, as the dublin system has been responsible for shifting responsibility of refugees towards europe’s southern and eastern states [...]
As the European Refugee Policy Paper11 states: “In view of these deficits, the EU member states need to find a new and fairer mechanism for receiving refugees and processing their applications”. In light of this, one should consider the establishment of a permanent responsibility-sharing mechanism, founded upon the principle of inter-state cooperation. The Council of Ministers would here be given the power to implement a distribution key for a fair quota plan, which can be similar to the Commission’s 2015 relocation scheme12, and which will annually determine the percentage of the total number of asylum applications each Member State should be responsible for. This can be done after the Commission has quarterly reports by EURODAC on the total number of asylum seekers registered in the EU and in each member State in order to determine which states have received a disproportionate number of applications, and how many asylum seekers may be transferred by these Member States to those with disproportionately fewer applications13. Such a system would also serve as an incentive for Member States to register asylum seekers into EURODAC14. The European legal framework must first be adjusted. Article 80 of the TFEU, needs to clearly delineate the content and meaning of “solidarity”, which must be defined in terms its binding power over the states that must commit to the system of collective decision-making. Such a distribution mechanism should not be the exception, as was the case in the EU ComSteffen Angenendt, Marcus Engler and Jan Schneider, 'European Refugee Policy Pathways To Fairer Burden-Sharing' (German Institute for International and Security Affairs 2013). 12 The Commission recommendation on a European resettlement scheme (C(2015)3560 final). 13 Certain factors such as the countries’ resources, GDP, economic activity, unemployment levels, population density and future economic growth should be here taken into consideration. (Refer to the UNHCR multi-factor model). Source: ECRE (European Council on Refugees and Exiles), ''Sharing Responsibility For Refugee Protection In Europe: Dublin Reconsidered' (2008). 14 Since the more they register, the sooner they will reach their allocated number of asylum seekers, allowing the transfer for new asylum seekers to other Member States. A Member State may also indicate to the Commission if it is facing with a sudden rise of asylum applications so that the Commission may thus initiate the distribution mechanisms ad hoc. 11
Figure 1: Number of migrants EU countries are being asked to take (Source: BBC)
Nikolaj Nielsen, 'EU Mantra Of 'Solidarity' Lost On Asylum' (Euobserver.com, 2016) https://euobserver.com/migration/131966 accessed 10 July 2016. 10 Similarly the study ‘How (un)restrictive are we? Adjusted’ and ‘expected’ asylum recognition rates in Europe’ (January 2016) found that the recognition rates in the EU vary substantively, even after these had been fixed to suit the asylum populations in the European states. Source: Ministerie van Veiligheid en Justitie, 'How (Un)Restrictive Are We? ‘Adjusted’ And ‘Expected’ Asylum Recognition Rates In Europe' (Research and Documentation Centre (WODC) 2015). 9
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Think Global, Act Local mission’s two-year plan of relocation, but the standard procedure. Articles 3 and 13 of the Dublin Regulation require further revision in order to provide for the disproportionately large number of asylum seekers some Member States are confronted with, in which case it should authorise the compulsory transfer of a set quota of asylum seekers to a Member State which has a disproportionately low number of asylum seekers. Furthermore, since the efficiency of states to fulfil their obligations in the Commission’s proposal has been “disappointing” 15, a more strategic enforcement approach for the Member States failing to meet their obligations is required by the Commission. This can be done by rewarding states that take active measures to increase asylum capacity with extra funding, whilst excluding the states which fail to meet their obligations from benefitting from the distribution mechanism16. Aligning the Dublin System with European fundamental rights With the insufficiencies of migration centres becoming more problematic, many rights groups have called upon Article III of the European Convention on Human Rights, which cites the unlawfulness of “inhuman or degrading treatment”. The situations are especially dire in Greece where lack of ventilation, access to clean water, and sanitation are punishing the overcrowded facilities17. In Italy serious doubts have also been raised as to whether Italy is fulfilling its obligations under the ECHR, with the UNHCR underlining ongoing processing delays and inadequate accommodation for applicants in Italy18. As the European Council on Refugees and Exiles (ECRE) puts it in ‘Sharing Responsibility for Refugee Protection in Europe: Dublin Reconsidered’ “The inefficiencies and contradictions of the Dublin system do not merely impact governments and public finances, but often harshly disrupt human lives as 'Roberta Metsola Maps Out EU Plan On Migration' (Eppgroup.eu, 2016) http://www.eppgroup.eu/news/Roberta-Metsola-maps-out-EU-planon-migration <accessed 10 July 2016>. 16 This can take the form of a “Dublin compensation fund” which would be comprised of funds from Member States that repeatedly take in few asylum-seekers than their fair quota suggests, in order to serve as a supplementary financial compensation arrangement. This Fund can be similar to the new Asylum and Migration Fund (AMF) for 2014-2020, which provides a similar compensation mechanism for EU resettlement measures. Source: Steffen Angenendt, Marcus Engler and Jan Schneider, 'European Refugee Policy Pathways To Fairer Burden-Sharing' (German Institute for International and Security Affairs 2013). 17 In the case of M.S.S v. Belgium and Greece the applicant, an Afghan national entering Greece before arriving in Belgium, complained in particular about the conditions of his detention and his living conditions in Greece. Source: Judgment on the merits delivered by ECtHR - M.S.S. v. Belgium and Greece (2011) Application No. 30696/09 Source: European Court of Human Rights, Press Unit, Factsheet – “Dublin” cases. 18 Susan Fratzke, 'Not Adding Up: The Fading Promise Of Europe's Dublin System' (Migration Policy Institute 2015). 15
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well.”19 Such conditions in Italy and Greece continue to be significant to the Dublin procedure, since, as was highlighted in the Tarakhel case20, there are serious concerns as to how asylum seekers’ legal rights can be assured in such a system.
“
what is needed now is a rapid and comprehensive reform of the common european asylum system [...]
Conclusion What is needed now is a rapid and comprehensive reform of the Common European Asylum System, a fair distribution system and a reliable mechanism for overburdened national asylum systems which can be implemented through a more proactive approach of the Dublin Regulation. Quoting Migration, Home Affairs and Citizenship Commissioner Dimitris Avramopoulos "we need to step-up the implementation of the agreed European response that strikes the balance between responsibility and solidarity". In addition to this, the Commission must explore ways to reduce unnecessary transfers and requests since these might put vulnerable individuals at risk and disrupt family unity, and consider arrangements for greater capacity sharing so that the CEAS is a joint operation and Member States are supported in accommodating asylum seekers21 and not simply processing applications22. Finally the CJEU must once again allow asylum seekers to challenge a transfer under the Dublin rules due to any significant and relevant human rights breaches in another Member State (not merely systemic breaches violating Article 4 of the Charter) so to ensure maximum protection to these asylum seekers23. “States increasingly detain asylum seekers to try to complete transfers, families are kept apart, and refugees with serious health problems receive insufficient care. The application of the Dublin rules causes additional, unnecessary suffering to already traumatised refugees.” (Source: ECRE (European Council on Refugees and Exiles), 'Sharing Responsibility For Refugee Protection In Europe: Dublin Reconsidered' (2008)). 20 Judgment on the merits delivered by the ECtHR - Tarakhel v. Switzerland, Application no. 29217/12. 21 The hotspots set up in Italy and Greece in which first reception facilities accommodating large numbers of migrants in place for the purposes of identification, registration and fingerprinting have failed to do this since they also present an unfair sharing of responsibilities, costs and efforts; as Greece and Italy are responsible for the establishment of the hotspots despite financial aid from the EU. Source: ECRE (European Council on Refugees and Exiles), ''Sharing Responsibility For Refugee Protection In Europe: Dublin Reconsidered' (2008). 22 Susan Fratzke, 'Not Adding Up: The Fading Promise Of Europe's Dublin System' (Migration Policy Institute 2015). 23 Steve Peers, 'Reconciling The Dublin System With European Fundamental Rights And The Charter', Applying the Reformed Dublin Regulation (ERA 2014). 19
Think Global, Act Local
ELSA Delegation to the Special Session of the United Nations General Assembly on the World Drug Problem (UNGASS 2016)
WITNESSING CHANGES TOMORROW
for a
BETTER
Yuriy Pochtovyk Vice President for Academic Activities ELSA Ukraine 2015/2016
Standing as a shining beacon for the market of informal legal education, the European Law Students' Association is a bold addition to our everyday life, academic and professional careers, and even leisure. Since 1981, the world's first of its nature, ELSA has been contributing to the European students' community, proving that it is innovative, sustainable, artistically dynamic in its development, and, most of all, absolutely unique with regard to its projects. One of the most illustrative examples of these are ELSA Delegations, which enable law students and young lawyers to get insight into inner-workings of intergovernmental organisations, acquire sufficient knowledge about specific subjects, and meet leading lawyers and diplomats at the various sessions all over the world. Standing in front of the UN Visitor Centre in New York City and watching busy people with UN badges rushing to work, I could not even imagine that very soon I would come back there not as a tourist, but as a delegate for the biggest summit on global drug policy of the last two decades. Yet last April I was lucky enough to represent ELSA International at the Special Session of the UN General Assembly on the World Drug Problem (UNGASS 2016), ELSA's first delegation to General Assembly session, together with three enthusiastic and motivated students from Czech Republic, Finland and Italy. The overall aim of the UNGASS 2016 was to review the progress made in the implementation of the Political Declaration and Plan of Action on International Cooperation towards an Integrated and Balanced Strategy to Counter the World Drug Problem of 11-12 November 2009, which defined actions to be taken and goals to be achieved in drug control by 2019.
For the first time in 18 years, the Special Session brought together high-ranking UN officials, hundreds of policymakers, academia and civil society representatives from around the globe to discuss and review international narcotics policy.
â&#x20AC;&#x153;
standing in front of the un visitor centre in new york city and watching busy people with un badges rushing to work, i could not even imagine that very soon i would come back there not as a tourist, but as a delegate for the biggest summit on global drug policy of the last two decades.
On the very first day of the summit, the General Assembly adopted the outcome document, prepared by the Commission on Narcotic Drugs. This document provides for some recommendations for Member States within the sphere of drug control, including measures to combat demand and supply of illicit drugs, and new emerging challenges in drug control with a special focus on health care and human rights. The adoption of the document was then followed by an intense debate on how best to address the world drug problem and the related crosscutting issues. Prevention and treatment of substance abuse, state control of drug consumption for medical and recreational purposes, transnational drug-related criminal activities, new psychoactive substances, proportionalSYNERGY Magazine | 41
Think Global, Act Local ity of punishment for drug-related offences, groups at risk to the effects and consequences of drug abuse, indigenous peoples and traditional cultivation of plants containing narcotic or psychotropic substances, international cooperation and alternative development programmes for drug-producing regions were among the topics that had been put on the agenda. Many Member States as well as civil society representatives emphasised the necessity of switching to a new more comprehensive approach to drug policy. This new approach must be evidence-based and focused on health care measures in tackling substance abuse, and alternative to incarceration criminal justice responses to low-level drug-related offences. Some of the speakers expressed their strong belief that a global drug policy known as a “war on drugs”, which used to be a primary approach to combat narcotic drugs since 1960-s, was a complete failure. “If we decide to wage a war against cancer, would we do that by bombing the people who have cancer?”, said Mr. Tuari Potiki, the Chairperson of New Zealand Drug Foundation, in his address to the General Assembly. Since many officials delivered their countries' positions in the spirit of criticism of the “war on drugs”, which prioritised supply reduction over other means of drug control, there was more attention paid to demand reduction. Community development projects, youth and women empowerment, “war on poverty”, education are some of the means to achieve de-
mand reduction proposed during the session. According to Guatemalan President Jimmy Morales, “people, not substances” should be prioritised in global drug policy. Harm reduction was also a major point of concern for some of the states and civil society representatives. Many speakers called upon broader use of harm reduction programmes, as those are evidence-based and efficient measures, which are still illegal or not affordable in some countries. “And because treatment works, I stand here today as Chair of the New Zealand Drug Foundation, as the Director of Maori Development at the University of Otago and as having not used drugs for 27 years”, Mr. Potiki, native Maori himself, told the delegates. There is still a deep division between states calling upon liberalisation of drug control policies and harm minimisation, and those in favour of strict and punitive narcotics policies, as they believe that drugs are considerably harmful for society. However, UNGASS 2016 showed that the number of the latter is decreasing. Despite a wave of criticism over the content of the outcome document, there was something important about the 30th Special Session of the General Assembly. UNGASS 2016 declared a shift from prohibitionist to a more humane approach, a shift my fellow delegates and I had an honour to witness owing to ELSA.
(left to right) Kadri Vatman, Federico Siscaro, Matěj Benda and Yuriy Pochtovyk at the UN General Assembly Hall in New York, USA (April, 19-21 2016)
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Think Global, Act Local
Experience international decision making
ELSA DELEGATION to INTA CONFERENCE
Jan Dohnal Assistant for Delegations ELSA International 2015/16
Gaia Iappelli Vice President for Academic Activities ELSA Italy 2016/2017
Thanks to ELSA's project â&#x20AC;&#x201C; ELSA Delegations, we obtained a possibility to attend the Geographical Names Conference organised by INTA. It took place in Rome at the Westin Excelsior Hotel from the 10th to the 11th of December 2015. ELSA has a consultative status with several intergovernmental organisations, is a member of various international associations and cooperates with many different legal entities. Among a broad list of involved organisations, we can now proudly present The International Trademark Association (INTA). INTA is the global association of trademark owners and professionals dedicated to supporting trademarks and related intellectual property in order to protect consumers and to promote fair and effective commerce. INTAâ&#x20AC;&#x2122;s members are more than 6,700 organisations from 190 countries. The Association's member organisations represent some 30,000 trademark professionals and include brand owners from major corporations as well as small- and medium-sized enterprises, law firms and non-profits. There are also government agency members as well as individual professor and student members. If you are interested in intellectual property law, we can honestly recommend a cooperation with INTA. The Conference focused on the enforcement and the protection of Geographic Names, GIs, Trademarks and Domain Names, which currently represents a central topic of debate in international trade talks: while European countries have generally been in favour of a strong protection of geographical indication of origin, because considered as a means of identification of goods that have unique qualities and also of information and orientation for the consumers, the US favours an SYNERGY Magazine | 43
Think Global, Act Local
Jan Dohnal & Gaia Iappelli at the INTA Conference
approach whereby GIs should primarily get protection via the means of trademark rights including collective or certification marks. In addition, the debate gave voice to different speakers and to their point of views: representatives of international organisations gave us an insight into their respective policies and opinions on geographical indicators, while GIs owners conveyed their perspective on how the current regulations and especially their enforcement made by the courts is capable of giving an effective protection to the quality and the characteristics of their products. But not all the event was made of lectures and discussions! In fact, it certainly represented an incomparable chance to talk with the most active professionals in the field of IP law: we had the opportunity to exchange experiences and ideas and learn from lawyers and experts of the highest calibre during coffee and lunch breaks. And, cherry on the top, we were invited to join for a dinner hosted by several local firms in the magnificent surroundings of the Costaguti Palace, one of the most beautiful places in Rome, to have a superb meal while still networking. What a wonderful experience!
44 | SYNERGY Magazine
â&#x20AC;&#x153;
but not all the event was made of lectures and discussions! in fact, it cer tainly represented an incomparable chance to talk with the most active professionals in the field of ip law: we had the opportunity to exchange experiences and ideas and learn from lawyers and experts of the highest calibre during coffee and lunch breaks.
Think Global, Act Local
A life-changing event
XXIII ELSA GERMANY MOOT COURT FINAL
Jülide Sözen Director for Public Relations ELSA Germany 2015/2016
The ELSA Germany Moot Court (EDMC) is a very special competition: For almost 23 years – since the early 90’s – it has been a part of the ELSA Germany’s portfolio and has grown to be one of the biggest Moot Courts in Germany since then. It is a civil law Moot Court, which is held in the German language. You participate as a team of two, and consequently you need to pass two rounds, being the local round and the regional round, to reach the final. Every round has a different case, which leads to new written pleadings and a new jury. But if it is a “normal” Moot Court, what makes it so special? Firstly, it is interesting to point out that all the other Moot Courts in Germany are held in English. This would indeed help to improve students’ Legal English skills, however it lacks those very much needed soft skills, for instance; making a pleading in your own language. These soft skills, unfortunately, are not part and parcel of the legal education in German universities, so that other opportunities – like the EDMC – are needed to usurp them. Furthermore, the participants are given the chance to put the application of the law into practice in a very realistic way. Simultaneously, the participants deepen their knowledge of the theoretical sphere of law and prepare them further for their final exams. Secondly, and most importantly, the final takes place in front of the Federal Court of Justice (Bundesgerichtshof – BGH) in Karlsruhe. It is Germany’s highest court of civil and criminal jurisdiction, which is called the “ordinary jurisdiction”. ELSA Germany does not only enjoy the location of the BGH; the jury consists of real BGH judges and lawyers. Usually, only
lawyers with a special authorization are allowed to plead in front of the judges of the BGH. Thus, the possibility to do so, while being a student, is a very unique opportunity. A long way to pass After a duration of almost one year – the XXIII. EDMC commenced in early winter, in the semester of 2015/2016 – this years’ competition came to an end at the grand final on the 8th July 2016 in Karlsruhe. The finalists were a team from ELSA Göttingen (Lorenz Dilling, Felix Höhenhövel) and a team from ELSA Munich (Luca Kochendörfer, Jannik Hinze) But before becoming the finalists they had to master a long way and win against several competing teams in the local and the regional rounds (north and south). The local rounds – 14 in total - are hosted by different Local Groups of ELSA Germany; this way the competition is spread all over the whole country from the very north in Kiel to the beautiful south in Passau also including Giessen, Bayreuth, Leipzig, Regensburg, Cologne and others. The local round in Cologne was a very special one. For the very first time there was cooperation with their university. The University of Cologne itself hosts every year its very own and popular civil moot court. The cooperation said, that the winner team of the university’s own moot court automatically qualifies for the regional round of the EDMC in the north, which was held in Bonn. The regional round in the south was hosted in Freiburg. SYNERGY Magazine | 45
Think Global, Act Local The Final After going through and succeeding in all rounds, one’s self-esteem and reliance in one’s own performance skills surely rises, but the fact that as a finalist you will get to plead in front of the BGH jury surely does not shake off the nerves and excitement. Both teams, which made it to the final round, were confident in their written pleadings that they prepared with a little support from their mentors. The case the finalists were given in their final round concerned the law of damages. The main contentious issue was the existence of obligations regarding public safety and the question whether the presumed party has provided the evidence and even which party actually bears the burden of proof. The final round commenced by every team making its introduction plea and submitting its applications before the jury could start posing questions to the teams. After a negotiation of about one hour in time, both teams had a chance to persuade the jury by making their final and impassionate plea. Each team performed really well and therefore the jury was left with a difficult decision to make. The jury retired for consultation over half an hour before reaching its decision. As the jury delivered its verdict, they announced the winning team and emphasised on how tough the decision to reach a verdict was and how both of the teams possessed outstanding elocution skills, ability to respond and self-presenting skills. A vital and crucial factor for the winning team was their command of legal skills, which made them stand out from the rest of the teams. Hence, this is why Luca Kochendörfer and Jannik Hinze made it as the winning team. As a reward the winning team received both a financial reward and a one-year subscription to a lawyer’s magazine with its emphasis on educational and researching work – the “Juristische Schulung” (JuS). Want more? In Cooperation with the SWR (South-West German public broadcasting, part of the national first public television station, ARD) we brought the EDMC into the radio news for the very first time. As the Director for Public Relations I firstly arranged an e-mail contact between the teams and the editorial department. After a phone interview, we quickly decided that a media support during the day of the final would be the most interesting.
Highlights of the Moot Court Competition
46 | SYNERGY Magazine
On the day of the final, the reporter and I picked up the team from Munich at the central railway station in Karlsruhe and
Think Global, Act Local had the time to record some of their thoughts as they arrived generally to get an impression on how they were feeling about the upcoming finale. However, at the BGH, it was rather more difficult to film, photograph or record. Usually, this is only allowed before or after a court trial. During the time the EDMC final took place, the § 169 Courts Constitution Act (GVG), which prohibits recordings in any way, was again present in the newest political discussions. Thus the Judges were really strict on adhering to the law, since even though the EDMC in fact is not a real court trial, it still mimics an authentic one. For those, who are interested in the radio report, one can listen to the podcast that can be found on the SWR Website or on the Facebook site of either ELSA Germany or of the national television station “ARD Rechtsredaktion” 1. A great success! To conclude, the event was a great success! The radio report stated that there was a really keen and interested and especially 1 http://www.swr.de/swr1/bw/programm/reden-muessen-sie-koennen-jungejuristen-trainieren-den-auftritt-vor-gericht/-/id=446250/did=17816554/ nid=446250/zzu5nv/index.html
a rather large audience following the final in comparison to the most of real BGH hearings. There are already many interested ELSA Germany Local Groups, which would like to host a local or regional round of the upcoming EDMC. Gladly enough, there are even more law students, who are interested in participating in the moot court the next year round. This success of the EDMC is owed to our partners at “JuS” (Juristische Schulung), the “Soldan Stiftung” (Soldan Foundation) and the “Deutscher Anwaltsverein e.V.” (German Lawyers Society). Without their financial help and support, the organisation of the EDMC would have been much more difficult. Also, a heartfelt thanks is owed to the work of all the ELSA Germany Local Groups, which hosted this year’s EDMC rounds. Furthermore, a big ‘Thank you” goes to Gertrud Bohler, VP AA of ELSA Germany 2015/2016, who coordinated every step of this huge competition. Last but not the least, we would not have been able to pull this competition through without our participants. So, a big “Thank you” goes also to all the interested students, who have been and are committed to such extracurricular activities like the EDMC!
SYNERGY Magazine | 47
ELSA – European Law Students’ Association – was born in 1981, to a world different than the world o ELSA’s vision of “a just world in which there is respect for human dignity and cultural diversity” may involved in ELSA have brought us closer to that vision.
In 1991, on the 10th Anniversary of the European Law Students’ Association, the international alumni ELSA members and to support ELSA in manifold ways.
On the 35th Anniversary of ELSA and the
Happy Birthday Mr Thorbjørn Jagland, Secretary General, Council of Europe, Patron of ELSA Mr Roberto Azevêdo, Director General of WTO, Patron of ELSA Moot Court Competition Professor Gabrielle Marceau, Counsellor, Legal Affairs Division, WTO Ms Barbara Orkwiszewska, Directorate of Communications, Council of Europe Ms Brigitte Vanatova, Attorney at law Ada Gawrysiak, Poland Agathe Kuipers, Dubai / The Netherlands Agnieszka Stobiecka-Kuik, Poland András Perlaki, Hungary Andreas Richter, Germany Andrew Brooke, United Kingdom Anja Mengel, Germany Anna Haipola, Finland Antonia Markoviti, Greece Antonio Fraticelli, Italy Bartłomiej Raczkowski, Poland Bernd Kleiter, Germany / United Kingdom Bojan Fras, Croatia Boyana Yordanova, United Kingdom Claudius Krucker, ELSA Hollywood / Switzerland Claus Salo, Finland Colin Scicluna, Malta / Belgium Dagne Sabockyte, Sweden Ed Bouman, The Netherlands Edgar Mueller, Austria Edoardo Köppel, Switzerland Eero Rautalahti, United Kingdom / Finland Emmanuel Reynaerts, Belgium
Erik Vrij, The Netherlands Francesco Trimboli, Italy Fredrik Lofthagen, Belgium Fredrik Messel, Norway Gregor Wenda, Austria Hector Tsamis, Greece Hubert Gambs, Austria / Belgium Ingeborg Åkermarck, Finland Irmgard Marboe, Austria Isabelle Ginet-Kauders, France James Newmark, Switzerland Joëlle Joosten, The Netherlands Johan Åkermarck, Finland Johanna Kauppinen, Finland Jonas Enkegaard, Denmark José Salgado, Portugal Kim Rubæk, Luxembourg Laurent Besso, Switzerland Lenita Lindström, Finland Leo T. Vojčík, Slovakia Lisa Router Mead, United Kingdom Luca Barbero, Italy Ludwig von Moltke, Germany
ELS – The ELSA Lawyers Society
EAD – ELSA Alumni Deutschland e.V.
Proudly presented by
of today. Only the shores of the continent remain the same. be impossible to reach. However, the passion and dedication of law students and young lawyers
i association ELS – The ELSA Lawyers Society – was founded, aiming to connect current and former
25th Anniversary of ELS, we proudly say:
y ELSA and ELS! Łukasz Rędziniak, Poland Manuela Tomassini, Italy Marcus van der Kloet, The Netherlands Marek Skultety, Czech Republic Marie-France Memeteau-Broaly, France Mario Albano, Italy Martin Flink, Sweden Matej Sadlon, Slovakia Michael Ellul Sullivan, Malta Michael Goldinger, Austria Mira Arnold (Gühring), Germany Mojca Gosar, Slovenia Moritz Am Ende, Austria Nicolas Médan, France Nicoletta, Colombo, Italy Olivier Broaly, France Pascal Mousset, The Netherlands Patricia Gannon, Ireland / Serbia Patrick Oliver, United Kingdom / Belgium Paul Hermant, Belgium Philipp von Trotha, Germany Pierangelo T. Graziani, Italy Piia Vottonen, Finland
Pinar Karadeniz, Turkey Piotr Ciolkowski, Poland Rachel Winter Jones, United Kingdom / USA Riccardo Zanon, Italy Ritva Saario, Finland Robert D‘Alessandro, Malta Robert Tremel, Austria Ruxandra Balboa-Pöysti, Finland / Belgium Sari Suono, Finland Sesselja Árnadóttir, Iceland Taco Hovius, The Netherlands Teresa Almeida Rubæk, Luxembourg Tiago Mayan Gonçalves, Portugal Titia Coppes, The Netherlands Tommaso Graziani, Italy Tuomas Pöysti, Finland Tuula Svinhufvud, Finland Valentina Antill, USA Vedran Stankovic, Croatia Viveca Still, Finland William Byrnes, USA Wojciech Kostrzewa, Poland Wojciech R. Wiewiórowski, Poland
ELSA Alumni Finland ry
ELSA Lawyers Foundation, Belgium
Think Global, Act Local
The inspirational part of the essay competition
NATIONAL ESSAY COMPETITION of ELSA FINLAND
Elina Ryymin Vice President for Academic Activities ELSA Finland 2015/2016
One of the greatest flagship projects of ELSA Finland is the National Essay Competition of ELSA Finland and Borenius Attorneys Ltd. The 3rd edition of the competition, the topic of which is insolvency law, will be launched in autumn 2016. Previously, the topics were labour law in 2015 and media law in 2014. In this article, I have the honour to present this fine competition, and hopefully, to raise a wider interest (and enthusiasm) in organising it. The preparations for the competition began in spring, when Vice President for Academic Activities contacts ELSA Finland’s legal development partner Borenius Attorneys Ltd to decide the topic for the autumn’s competition, after which Vice President for Academic Activities proceeds to find a suitable judge, usually a professor. Afterwards, ELSA Finland together with Borenius Attorneys Ltd and the judge negotiates the exact titles. Vice President’s for Academic Activities most important duty is to coordinate and market the competition. Not only is the competition held in cooperation with Borenius Attorneys Ltd, but also they provide ELSA Finland with marketing materials. In order to ensure an outreach to the students, we share the news and marketing materials via social media, and we also presented the competition at the University. Finding the right target group is vital to successfully market the competition; as though anyone is free to participate, the competition is aimed mainly for students doing their master studies. But why would anyone want to participate? Indeed, legal writing seems to be a less popular activity amongst students, 50 | SYNERGY Magazine
when compared to e.g. moot court competitions. However, legal writing is a very important skill and should be practised during studies, as every lawyer is to be capable of producing high-quality legal documents. The winner of the National Essay Competition receives a traineeship at Borenius Attorneys Ltd. Top three participants will also receive legal literature from Edita Publishing Ltd. Additionally, Finnish law faculties award 2 ECTS credits to all participants whose essays fulfil the criteria set by the judge of the competition. By far the quality of the essays has been high enough to award ECTS credits to every participant of the competition, which makes participation useful! The participants choose the topic of their essay from three optional titles. The essay is to be written in Finnish or in Swedish, as these are the two official languages of Finland. However, the conclusions are to be written in English to ensure the participants’ adequate skills in legal English, which is a necessary qualification for the traineeship. The judge will choose three of the best essays, after which Borenius’ attorneys select the winner of the National Essay Competition. Traditionally, the participants, as well as the judge and the representatives of ELSA Finland and Edita Publishing Ltd are invited to Borenius’ Helsinki office for the announcement of the winner. Most participants are students undergoing their master studies, and they are all competing to receive the prized traineeship. It is also wonderful that the law faculties admit ECTS credits for the participants, as both the previous judges of the
Think Global, Act Local competition and Borenius Attorneys Ltd have admired the quality of the essays. In fact, the judge of the previous edition of the competition – the professor of labour law at the University of Turku – deemed some of the essays better than many documents written by graduated lawyers! ELSA Finland is fortunate to have its legal development partner Borenius Attorneys Ltd helping to organise the competition each year. Thus, the first step in organising the competition is to find a suitable partner with whom to create the desired structure for the competition. A possible partner could be, e.g. a law firm or a university. It is important to emphasise how the partner will profit from its help in organising the competition: in addition to receiving visibility amongst students, the partner will, for example, also receive a huge amount of new information on the topic of the competition as the competition is, in fact, a legal research. The competition could also be organised as an international one. Secondly, the organiser should choose the topic – it can be re-
lated to ELSA’s International Focus Programme topic (for the upcoming 3 years it is environmental law) – and find a judge. It is necessary to find a topic that interests students. Titles should be carefully defined, and rules and the schedule of the competition considered. Cooperation with Vice President for Marketing is important when forming the marketing strategy. Prizes must also be decided: the winner can be awarded with financial prize, ECTS credits, traineeship, legal literature etc. However, the competition needs something to attract the students. Finally, the essay competition is ready to be launched! I hope to have inspired the idea of organising such kind of a competition! The project has been such an amazing journey! And, most importantly, I am sure that organising the competition has helped students to develop their legal writing skills – one of the glorious purposes of the work in the sphere of Academic Activities. For any further questions, the Vice President for Academic Activities will be at your service.
ELSA Finland together with the winner of the Essay Competition 2015, Elisa Suokko (in the middle)
SYNERGY Magazine | 51
FACE THE GLOBAL CHALLENGE! 5 Continents, 1 Competition! 15th edition of the ELSA Moot Court Competition (EMC2) is launched! EMC2 is a simulated hearing of the Dispute Settlement System of the World Trade Organization (WTO).
The Competition is divided into three parts; Written Submissions, Regional Rounds and the Final Oral Round in the WTO Headquarters in Geneva, Switzerland.
Are you competitive? Interested in WTO Law? Register your team now and represent your university in the only Moot Court Competition on WTO Law! Registration is open till the 4th of December! emc2.elsa.org
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