ISSN 2039-9340 (print) Mediterranean Journal of | Badar Iqbal ...

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ISSN 2039-9340 (print) ISSN 2039-2117 (online)

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Mediterranean Journal of Social Sciences

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Vol. 8, No. 4, July 2017

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Supplement 1

July 2017

Mediterranean Journal of Social Sciences

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Editor in Chief Prof. Dr. Alessandro Figus, Link Campus University, Rome, Italy Deputy/ Managing Editor

Claudio Foliti, Sapienza University, Italy

Editorial Advisory Board

Marco Cilento, Sapienza University, Italy Gianluca Senatore, Sapienza University, Italy Vincent Hoffmann-Martinot, University of Bordeaux, France

Editors Dimitri A. Sotiropoulos, University of Athens, Greece Marcel Pikhart, University Hradec Kralove, Czech Republic Werner J. Patzelt, University of Dresden Germany Arda Arikan, Akdeniz University, Antalya, Turkey Sibylle Heilbrunn, Ruppin Academic Center, Israel Language Editor

Marsel Cara, Sapienza University of Rome, Italy

Technical Editor

Igor Baglioni, Sapienza University, Italy

ISSN 2039-9340 (print) ISSN 2039-2117 (online) Vol. 8, No. 4, Supplement 1, July 2017 Doi:10.5901/mjss.2017.v8n4s1

Publisher De Gruyter Genthiner Straße 13 D-10785 Berlin / Germany Tel: +49 30 260 05-0 Fax: +49 30 260 05-251 https://www.degruyter.com/view/j/mjss Owner MCSER – Mediterranean Center of Social and Educational Research Piazzale Aldo Moro 5, Cap. 00183, Rome, Italy Tel/Fax: 039/0692913868 E-mail: [email protected] Web: http://www.mcser.org/journal

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Mediterranean Journal of Social Sciences

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Vol. 8, No. 4, Supplement 1, July 2017

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ISSN: 2039-9340 (print) ISSN: 2039-2117 (online)

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About the Journal

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Mediterranean Journal of Social Sciences (MJSS) is a double blind peer-reviewed journal,

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published six times a year in January, March, May, July, September and November. The

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journal is established in 2010 and from January 2017 it is published from De Gruyter Open.

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Special editons and supplements will published from the owner and founder MCSER

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Publishing. The journal publishes research papers in the fields of Mediterranean and World

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Culture, Sociology, Philosophy, Linguistics, Education, History, History of Religions,

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Anthropology, Statistics, Politics, Laws, Psychology and Economics. MJSS is open for the

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research. In addition to scientific studies, we will also consider letters to the editor, guest

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from diverse sources; to write and publish with absolute integrity; and to serve as effectively

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as possible the needs of those involved in all social areas. If your research will help us

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achieve these goals, we would like to hear from you. MJSS provides immediate open access

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to its content on the principle that making research freely available to the public supporting a

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greater global exchange of knowledge. All manuscripts are subject to a double blind peer

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review by the members of the editorial board who are noted experts in the appropriate subject

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area.

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Editor in Chief, Alessandro Figus

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Link Campus University, Rome, Italy

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International Editorial Board

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Vincent Hoffmann-Martinot 47 University of Bordeaux, France 48 Dimitri A. Sotiropoulos 49 University of Athens, Greece 50 Sibylle Heilbrunn 51 Ruppin Academic Center, Emek-Hefer, 52 Israel 53 Anne Cross 54 Metropolitan State University, USA 55 Werner J. Patzelt 56 University of Dresden Germany 57 Mohamed Ben Aissa 58 59 University of Tunis, Tunisia Emanuele Santi 60 African Development Bank, Tunis, 61 62 Tunisia Arda Arikan 63 Akdeniz University, Antalya, Turkey 64 Godfrey Baldacchino 65 University of Malta, Malta 66 Kamaruzaman Jusoff 67 68 Universiti Putra Malaysia Hossein Vahid Dastjerdi 69 University of Isfahan, Isfahan, Iran 70 Gabriele Natalizia 71 Sapienza University of Rome, Italy 72 Francisco J. Ramos 73 Universidad de Castilla-La Mancha, 74 75 Spain Igor Baglioni 76 77 Sapienza University of Rome, Italy Tarau Virgiliu Leon 78 79 Babes-Bolyai University, Cluj-Napoca, Romania 80 José Sánchez-Santamaría 81 University of Castilla-La Mancha, Spain 82 Dorina Orzac 83 84 Babes-Bolyai University, Cluj-Napoca, Romania Slavko Burzanovic 85 University of Montenegro, Montenegro 86 Aranit Shkurti 87 CIRPS Sapienza University / CIT 88 University, Albania 89 Gulap Shahzada 90 University of Science and Tecnology, 91 92 Pakistan

Nanjunda D C Universiy of Mysore, Karnataka, India Nkasiobi S.Oguzor Federal College of Education (Technical), Omoku- Nigeria Shobana Nelasco Fatima College, Madurai-India Jacinta A. Opara Kampala International University, Uganda Fernando A. Ferreira Polytechnic Institute of Santarem, Portugal Hassan Danial Aslam Human Resource Management Research Society, Pakistan Muneerah Bader Almahasheer, College of Arts, University of Dammam (UoD), Saudi Arabia Alice Kagoda Makerere University, Kampala-Uganda B.V. Toshev University of Sofia, Bulgaria Benedicta Egbo University of Windsor, Ontario-Canada Adriana Vizental University Aurel Vlaicu, Romania Florica Bodistean University Aurel Vlaicu, Romania Wei Zhang, University of California, USA Tutku Akter Girne American University, Northern Cyprus Murthy CSHN Tezpur University Napaam Assam India Femi Quadri Federal College of Education (Technical), Omoku-Nigeria Fouzia Naeem Khan Shaheed Zulfikar Ali Bhutto Institute of Science and Technology, Pakistan Marcel Pikhart University Hradec Kralove, Czech Republic Luiela-Magdalena Csorba University Aurel Vlaicu, Romania

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Hamdan bin Said, University Technology Malaysia, Malaysia Joan Garcia Garriga Institut de Paleoecologia Humana i Evolució Social (IPHES) / Universitat Oberta de Catalunya (UOC), Spain Georgios A. Antonopoulos Teesside University Middlesbrough, UK Vennila Gopal Bharathiar University, Coimbatore, India Eddie Blass Swinburne University of Technology, Australia Hanna David Tel Aviv University, Jerusalem-Israel Raphael C. Njoku University of Louisville, USA Ali Simek Anadolu University, Turkey Abel Gwaka Anyien, Kenyatta University, Kenya MW Lumadi, University of South Africa, UNISA, South Africa Gerhard Berchtold Universidad Azteca, Mexico Samir Mohamed Alredaisy University of Khartoum, Sudan Austin N. Nosike The Granada Management Institute, Spain Lawrence Ogbo Ugwuanyi University of Abuja, Abuja-Nigeria

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Talat Islam University of the Punjab, Lahore, Pakistan Sokol Paçukaj Aleksander Moisiu University, Albania Federico Niglia Libera Università Internazionale degli Studi Sociali (LUISS) “Guido Carli”, Italy Isara Tongsamsi Songkhla Rajabhat University, Thailand S.E. Onuebunwa Federal College of Education (Technical), Omoku-Nigeria Muhammad Abdul Wahid Usmani, King Saud University, Riyadh, Saudi Arabia Shahram Fattahi, Razi University, Iran Santosh Kumar Behera, Sidho-Kanho-Birsha University, Purulia, West Bengal Newman Wadesango, University of Fort Hare, South Africa Nuria Rodríguez Priego, European Commision, Institute for Prospective Technological Studies / University of Granada, Spain Prof. Ravinder Rena University of the Western Cape, South Africa Elena Popkova Volgograd State Technical University George Aspridis Technological Educational Institute of Larissa, Greece

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TABLE OF CONTENTS

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Articles The Benefits of Business Ethics - Ethical Behavior of Decision Makers: the Empirical Findings from Croatia Ivana Bulog, Ivan Grančić Confrontative Study between Past Perfect Indicative in German and Past Perfect and Aorist II Indicative in Albanian Edesa Paheshti, Emine Teichmann Explaining the European Union’s Changing Position towards the Gibraltar Question after the Brexit Referendum Uğur Burç Yıldız, Anıl Çamyamaç Transparency of Taxpayers’ Rights and Obligations Ramadan Kryeziu, Bahtijar Berisha, Sakip Imeri, Mustafe Hasani Interpreting Games: Meaning Creation in the Context of Temporality and Interactivity Chaker Mhamdi Reconstruction of Law of Joint Property Distribution due to Divorce to the Working Husband and Wife Based on the Value of Justice Eti Mul Erowati An Obligation to Represent and Disclose Material Facts as a Good Faith in Life Insurance Contract Mokhamad Khoirul Huda Identity and Sense of Place of Ghajar Residents Living in Border Junction of Syria, Israel and Lebanon Shamai Shmuel, Shemali Ali, Gorbatkin Dennis, Chativ Nadim, Elachmad Halil, Ilatov Zinaida Power Recovery Support Tabunio Watershed Based on Analysis of Erosion Based on Geographic Information System in the Province of South Kalimantan Syarifuddin Kadir, Badaruddin, Nurlina, Eka Farma Political Promises in the Perspectives of Islam and Its Implementation in Development Policy M. Sidi Ritaudin Blasphemy, the Fate of Ahmadiyya in Lombok and a Critique of Religious Discourse Masnun Reconstructing Multiculturalism in Malaysia through Visual Culture Noraini Md. Yusof, Esmaeil Z. J.

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The Nigeria Led ECOMOG Military Intervention and Interest in the Sierra Leone Crisis: An Overview Chukwuma C.C. Osakwe, Bulus Nom Audu Recognition and Reinforcement of Customary Law Community Association and their Rights over Land and Forest in West Nusa Tenggara Province Arba Vitality of Public Open Space (Case Study: Taman Nostalgia Kupang) Hikmah, Rosvitayati Umbu Nday, Ariency K. Manu Dispute Resolution in the Implementation of Mining Exploration in Sumbawa Salim HS, I Nyoman Nurjaya, Muhammad Bakri, Anang Husni Students’ Perception Towards National Examination 2017: Computer-Based Test or Paper-Based Test Jamiludin, Darnawati, Waode Ade Sarasmita Uke The Relationships of Reading Comprehension Ability with the Ability to Understand The Questions of Mathematical Word Problems Auzar Creating Legal Certainty in Sharia Banking Law Systems through the Embodiment of Sharia Compliance Principle Muh. Nasikhin, Muhaimin, L. M. Hayyanul Haq, Zainal Asikin The Importance of Human Resources in Corporate Governance Bouziane Athmen, Belhadef Samia The Relation between Business and Authority: Maros Political Atmospheric Study in Indonesia Adi Sumandiyar Corruption and FDI Inflows: Evidence from India and China Munir Hasan, Mohd Nayyer Rahman, Badar Alam Iqbal Virtual Leadership: A Review Paper Khurram Mehtab, Amjad ur Rehman, Saira Ishfaq, Raja Ahmed Jamil

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The Benefits of Business Ethics - Ethical Behavior of Decision Makers: the Empirical Findings from Croatia Ivana Bulog PhD, Assistant professor, University of Split, Faculty of Economics

Ivan Grančić University of Split, Faculty of Economics Abstract More than ever before, the ability of managers to recognize and deal with complex business ethical issues has become a significant priority. Ethical behavior has always been a concern for managers because they are the ones that have major responsibility in company when it is about business ethics. Managers’ work is manly the work of making decisions. On a daily basis they are making decisions – big and small ones - on which company future depends. Interest in business ethics and ethical behavior is on the rise, especially in recent years when widespread moral corporate scandals have brought this topic to the fore. Therefore, the organizational environment demands effective managers – decision makers -with the ability to behave ethically and the ability to make right choices. There is no doubt that the ethical behavior of decision makers is of strategic importance for successful business. It could be acknowledged that among the numerous different factors that can determine a company’s progress, the key elements that contribute to a more successful achievement of company competitive advantage is the ethical behavior of managers. This paper aims at analyzing the benefits of business ethics and at identifying the ethical behavior of managers in a big company in Croatia. Qualitative research was conducted and interesting and somewhat puzzling results were found. Based on the overall findings, this research offers the foundation for future research in this area. The implications of the findings are discussed in terms of value for managers and their companies due to the improvement and development of business ethics and their ethical behavior. Keywords: Business Ethics, Ethical Behavior, Decision Making

1. Introduction Managers, employees and individuals as non-professionals are facing, on a daily basis, with some doubts, ambiguities and choices among many different options that require ethics in action. In a business environment, decisions must be taken quickly, under time pressure which does not leave much room for rational judgment. Competition, public, superiors, employees, state organs, private life… all these are concepts that should be taken into account when a certain business decision is made. In such complex circumstances, it is very difficult to think about ethics of every decision. Thus, ethical behavior even more complicates decision making situations. It is quite clear that decision making is not an easy process for managers. There is no doubt that managers are facing a number of ethical challenges in their everyday activities, trying to respond better to all the demands of all stakeholders with whom they are directly and indirectly linked. Today, ethical behavior of decision makers is of strategic importance for a successful business. It could be acknowledged that the key element that determines the company’s progress is the ethical behavior of managers. In order to achieve overall satisfaction in the company, before deciding, the decision should be afforded the ethical principles of all interest groups. It is almost sure that certain problems will occur during the decision making process, but nevertheless, these problems should not influence company management in a way that they abandon ethical behavior. On the contrary, these kinds of situations should encourage and inspire managers to find a quality and ethical solution in a creative and reliable way. Today, more than ever before, the ethical behavior of manager has become a significant priority. Interest in business ethics and ethical behavior is on the rise, especially in recent years 9

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when widespread moral corporate scandals have brought this topic to the fore. Therefore, the organizational environment demands effective managers – decision makers -with the ability to behave ethically and the ability of making right choices. This paper aims at analyzing the benefits of business ethics and at identifying and analyzing the ethical behavior of managers in a company in Croatia. The importance of this research is its potential to contribute to the existing knowledge of a manager’s ability to behave ethically. Moreover, results could be important to the managers of the analyzed company because they will become familiar with employees’ perspective about their ethical behavior in the workplace. A review of the literature has revealed that research into business ethics in the Republic of Croatia is insufficiently represented on the macro and micro level (Ivaniš and Šturlić, 2016). Bearing in mind that the general attitude prevails that companies in Croatia pay insufficient attention to business ethics and given the fact that this topic is relevant, but not researched enough from an empirical viewpoint, this research is welcome and justified both from a scientific as well as from a practical perspective. 2. Ethical Behavior of Decision Maker Drucker (1954) described ethical behavior as a reflection process and a communal exercise that concerns the moral behavior of individuals based on an established and expressed standard of individual values. Further, Suhonen et al., (2011) described ethical behavior as acting in ways consistent with what society and individuals typically think are good values. Ethics should apply to every individual in an organization, but ethical behavior is an absolute requirement of all organizational leaders – managers (Emery, 2016). Nevertheless, ethics should apply to all situations, regardless of status (Drucker, 1954). Managers are the ones who make crucially important decisions for the company's future. In fact, management realizes its role by deciding (Sikavica et al., 2004). It is not hard to imagine that making right decisions can be extremely complicated for managers when facing moral dilemmas in business. Managers have a responsibility to uphold the highest standards of ethical conduct which involves relating ethical behavior to a leader’s ability to make sound decisions (Li & Madsen, 2011), while sound decision making defines the scope of the leader’s responsibility, which makes leaders accountable for determining what they must appraise and judge to protect the organization from unethical behavior (Toubiana & Yair, 2012) (In: Emery, 2016). Primarily, managers’ familiarity with ethical principles and ethical frameworks is the foundation for ethical behavior. Ethical decision making is conditioned by numerous facts and factors (Buble, 2006) that decision makers should take into account when making decisions. For that reason, it is necessary to create an ethical framework in the organization to facilitate most situations. Ethical frameworks are products of the ethical codex of the organization (Jelšenjak and Krkač, 2016). Within ethical frameworks, managers would know, in a large number of cases, whether some of potentially problem-solving variants are ethical or not. Decision makers can learn how to avoid ethically dangerous zones (Bazerman, Messick and Stewart, 2007) and thus become significantly more efficient. They can learn how to make an ethical decision by using certain learning tools and following some ethical principles. In that way, managers are able to make decisions that are consistent with socially responsible behavior what can reflect positively on employee satisfaction and consequently results in overall business success. Social responsibility is a belief in the notion of shared responsibility for the common good (Stanaland, Lwin and Murphy, 2011). It is a business’s obligation to maximize its positive impact and minimize its negative impact on society (Ferrel, Fraedrich and Ferrell, 2005). A successful manager is considered the one who, by his/her own example, constantly shows what it means to act ethically, creating such an atmosphere in relationship with employees that enable him/her to develop objectivity and responsibility in decision making (Sikavica et al., 2004). An effective manager is the one who, from day to day, deliberately teaches employees and colleagues what ethics are and how important it is in the overall business activities of the company. Formally defined, ethical behavior is morally accepted as “good” and “right” as opposed to “bad” and “wrong” in a particular surrounding (Ivaniš and Šturlić, 2016). 10

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3. The Benefits of Business Ethics The acceptability of behavior in business is determined by customers, competitors, government regulators, interest groups, and the public, as well as each individual’s personal moral principles and values (Ferrel, Fraedrich and Ferrell, 2005). Today, in the contemporary business environment full of changes and competitors, each company meets numerous obstacles if their business plan is not based on business ethics. Business ethics relates to an individual’s or a work group’s decisions that society evaluates as right or wrong (Ferrel, Fraedrich and Ferrell, 2005). Aleksić (2007) defines business ethics as a system of basic values and rules of individual, organizational and social behavior associated with business and business goals (Aleksić, 2007). Business ethics is also defined as ethical judgment in business situations and activities. The importance of business ethics in the first place is the fact that customers and consumers consciously and subconsciously perceive businesses as ethical or not ethical. This fact is more than enough for companies’ to start with ethical business. Business ethics has become one of the key factors differentiating successful from unsuccessful companies. Doing business ethically means to work according to the letter of the law, perform duties on time and put consumers and customers as priorities. To apply business ethics means thinking about others, thinking about the future. Companies with business ethics had previously developed long-term plans and goals. Business ethics gives a sense of security and opportunity for future development. It must be emphasized that business ethics is essential in every business situation, with no exceptions (Bazerman, Messick and Stewart, 2006). Ethical companies will abnegate short-term profit to have a long-term positive image in the eyes of the public. By operating in this way, the company creates a positive climate, growing confidence and the possibility of constant progress. These kinds of companies have a great advantage over the non-ethical ones. Business ethics is one of the types of means of differentiation because there are only a small number of companies which fully applies and uses its many benefits. Among numerous reasons Ferrel, Fraedrich and Ferrell (2005 p. 31) point out these for a strong commitment to ethical values: 1. Ethical companies have been shown to be more profitable. 2. Making ethical choices results in lower stress for corporate managers and other employees. 3. Our reputation, good or bad, endures. 4. Ethical behavior enhances leadership. 5. The alternative to voluntary ethical behavior is a demanding and costly regulation. An ethical codex in organizations, which is interpreted as the foundation of business ethics, is also extremely important (Jelšenjak and Krkač, 2016). Business ethics is becoming increasingly important in companies because it allows them to efficiently respond to needs of all stakeholders – customers, employees, shareholders and society as a whole. Today, a growing number of companies focus on the adoption of ethical values and ethical standards as a fundamental component of business ethics. The business world is so complex that companies need to constantly show potential clients, investors and partners that the organization is a moral subject who cares and takes into consideration the whole society and has a kind of social mission. 4. Methodology The purpose of this paper is to examine and identify the ethical behavior of managers (decision – makers) in a company in Croatia. In order to carry out analysis, a questionnaire was used. The questionnaire included 27 statements about the ethical behavior of managers. These statements were divided into three segments. The first part of the questionnaire considered the relationship between managers and subordinates (employees); the second part considered manager traits as professional in his/her position, while the third part was dedicated to the relationship between manager and company – how they perceive their company. This survey was oriented on employee views on the ethical behavior of decision makers in the company. The company consists of 5 different departments: IT department, human resource department, accounting department, purchasing department and marketing department. Departments are led by managers, thus 5 different managers were evaluated. 15 employees evaluated each department manager. They were 11

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asked to follow a Likert’s scale with five levels of intensity, ranging from “I strongly disagree” to “I strongly agree” when evaluating each statement. The questionnaires were distributed before the work shift when employees were rested and had a high level of concentration. The time for thinking was unlimited so every respondent could take enough time to evaluate each of the five managers. The process of evaluation was very positive; the respondents were polite and pleased to provide their own opinion on their superiors. 5. Findings The empirical results of this research were as follows. Managers with a total score between 30 and 35 points were appraised as being highly ethical and reliable managers, whom every employee can trust and rely on. Managers with a score between 36 and 61 points were valued as managers who in certain situations show unethical behavior, while managers with a score between 62 - 108 points were appraised as managers who behave unethically and who will in the long run bring poor results to the company. As represented in Figure 1, employees rated the IT department manager as the most ethical in their company. Although rated as the most ethical (with an average score of 45 points), he leans more towards the category of average ethical behavior while making decisions. This means that in certain situations he is behaving unethically when making decisions. All respondents are convinced that this manager will be reluctant to behave unethically even if it brings him certain profit or benefit. Following him is the marketing department manager. He was rated somewhat weaker (51 points), but he is in the same category as the previous manager - average ethical behavior while making decisions. The third manager in regard to total score is the accounting department manager with an average score of 60 points. He is actually somewhat in between average ethical and unethical behavior. The last two managers were evaluated as extremely unethical in their behavior. Namely, the manager of the purchasing department was rated with an average score of 69 points representing the one to whom ethical behavior does not mean much. Employees described him as an unreliable and selfish person, although possessing the knowledge and quality of working tasks. The worst rated manager is the human resource department manager. This manager was awarded an average of 74 points which represents an extremely unethical result. All respondents are convinced that he has employed people who are not qualified for the position that they hold. Whether this is true and how much this harm the company will remain unknown, but one thing is for sure, this manager must realize the importance of ethics in business. A -15

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Figure 1: Ethical behavior of decision makers in the company Source: Empirical results 12

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If each part of ethical behavior is observed separately, it is noticeable that the most ethical behavior is the one regarding the relationship with the company, meaning that managers value the company and respect organizational rules. The least ethical is the relationship with employees (subordinates), meaning that managers are very poorly and improperly relating to subordinates. It is unknown what the real reason is for this is, but according to the questionnaire statements, it can be concluded that this manager views all associates as competitors and that most important to him is the personal reputation of the company. The manager of the purchasing department in the first category had a high rating of 36 points indicating that he has an absolutely wrong, improper and unprofessional relationship with subordinates. Employee comments indicated experiences of manger humiliation and demotivation. Among employees this is the most unpopular manager. As far as the overall employee impression is concerned, the problem of collective thinking prevails in this company. Individuals, who can in some way influence the outcome of a particular decision, simply do not want to express their opinions if it is against the majority or their superiors. This company often experiences the worst that can happen in the overall decision-making process deliberately making the wrong decisions. The only positive about this company is that it does not actually have a direct competitor on the market. It seems that every manager in this company is constantly criticizing employees, which is not good at all for the atmosphere in the company. Thus, this reflects negatively on employees’ attitude towards work. Also, employees have in common the attitude that mangers would fire workers they do not like personally for various reasons, regardless of their professionalism. Research results show that this company does not have developed business ethics. This research indicates that managers in everyday decision making tend to neglect ethics. There are no ethic principles or codes in the company, there are no departments for business ethics, and employees are not educated about the importance of ethics for business. Consequently, this company has yet to understand the importance of ethics and ethical behavior. 6. Conclusion In a contemporary business environment, where making profit appears to take precedence over ethical behavior, the importance of understanding ethical behavior becomes crucial. The ability of managers to recognize and deal with complex business ethical issues has become a significant priority for every company regardless of its type and size. The aim of this paper was to analyze the ethical behavior of managers in a big company in Croatia. Research results show that this company does not have developed business ethics. Managers in everyday decision making tend to neglect ethics; it seems that they do not understand the importance of ethical behavior in business. Promoting ethical conduct and establishing and implementing ethical values, creating ethical business policies and strategies in a company needs to be implemented. Benefits of business ethics are extremely high, while lack of ethics leads to a wealth of problems for a business. Ethical behavior of managers is directly related to company productivity and profitability through employee loyalty and morale, reputation of business from surrounding environments, positive public image etc. Therefore, managers in companies must understand and cherish business ethics, honesty and integrity; and make decisions with consistent ethical behavior. There is no doubt that the ethical behavior of decision makers is of strategic importance for successful business. Today, it is very challenging to have a successful business without effective and well-respected leader/s. As noted in the introductory part of this paper, this research is justified because there is a lack of research into business ethics in Republic of Croatia, although this topic is a burning issue and is presented daily to the public and in the media. Therefore, regardless of its limitations, this research has provided some groundwork and opened up new issues in this area. References Aleksić, A., (2007). Business Ethics - an Element of Successful Business. The Proceedings of Zagreb Faculty of Economics and Business, V, pp.419–428.

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Bazerman, M., Messick, D. and Stewart, L. (2007). Avoiding Ethical Danger Zones. Rotman Magazine Buble, M. (2006.), Menadžment. Sveučilište u Splitu, Ekonomski fakultet, Split. Drucker, P. F. (1954). The practice of management. New York, NY: Harper. Emery, E. (2016). Ethical behaviour, Leadership, and Decision Making. Walden University, Doctoral Dissertation Ferrell, O. C., Fraedrich, J. and Ferrell, L. (2005). Business Ethics, Ethical decision making and cases. Houghton Mifflin Company, Boston, New York. Ivaniš, M. and Šturlić, M. R. (2016). Influence of Managers Personal Values and Ethical Behaviour on Business Success of Hotel Enterprises . Tourism & Hospitality Industry 2016, Congress Proceedings, pp. 80-94 Jalšenjak, B. and Krkač, K. (2016). Poslovna etika, korporacijska društvena odgovornost i održivost. Mate d.o.o., Zagreb. Li, J., and Madsen, J. (2011). Business ethics and workplace guanxi in Chinese SOEs: A qualitative study. Journal of Chinese Human Resource Management, 2,pp. 83-99. Sikavica, P.et al. (2014). Poslovno odlučivanje. Školska knjiga, Zagreb. Stanaland, A. J., Lwin, M. O., and Murphy, P. E. (2011). Consumer perceptions of the antecedents and consequences of corporate social responsibility. Journal of Business Ethics, 102, pp. 47-55. Suhonen et al., (2011). Organizational ethics: A literature review. Nursing Ethics, 18, pp. 285-303.

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Confrontative Study between Past Perfect Indicative in German and Past Perfect and Aorist II Indicative in Albanian Edesa Paheshti PhD-Student, Faculty of Human Sciences, Aleksander Xhuvani University, Elbasan

Prof. Dr. Emine Teichmann Tutor Abstract The present study represents a significant step forward to understand past perfect indicative in Albanian and German by comparing them in morphological, semantic and stilistic aspects. The semantic meaning of past perfect indicative in Albanian is very similar to that in German. But the Albanian language also alters another additional past tense called Aorist II, that it is not present in the standard German language. This work aims at giving practical and theoretical overview on approaches and differs of the past perfect between the two languages – we intend to show that by giving great argumentative examples, which help concretising and understanding better, and also offer a clear and detailed picture of uses and meanings of this tense in both languages. In particular, in this paper it is paid attention to the text grammar, as we think that is a very important and interested point of view by studying and comparing two grammars. Furthermore we consider the issue of translation from German in Albanian and controversialy. At this point we intend to find the grammar tools the German language uses for the translation of the albanian Aorist II. This publication will be a comprehensive and authorative reference work on complex past tenses bringing together the study on different linguistic aspects. Keywords: Finished event, bitemporal, moment of speaking, temporal indicators

1. Introduction According to the Albanian Academy Grammar 1 and Duden 2 indicates past perfect indicative in Albanian and German that an action was completed (finished) at some point in the past before something else happened. This tense has got two obligatory features: Bitemporal and past.3 But the Albanian language, morphologically alters a second past tense in indicative called Aorist II – this tense is not present in the standard German language – which meaning is the same to that of past perfect indicative. The past perfect and the Aorist II as well are considered from linguists as synonym tenses – they can easily replace each other. But from both these tenses it is actually the past perfect which is used more frequently in spoken and written language. 2. Methodology The focus of this paper is based on a theoretical and practical study about the past perfect indicative in Albanian and German, and also the Aorist II indicative in Albanian. The used methodology is a comparing one by studying deeply approaches and differences between these two languages. It has been consulted a large Albanian and German linguistics literature in our interest field. Furthermore the theory has been examined in literature by comparing examples in 1

Albanian Academy of Science, Albanian Institute of Linguistics and Literature – Grammar of the Albanian language 1, Tirana, 2002, page 314. 2 DUDEN – The Grammar, necessary for correct German 7., new language norm authorities edition, Duden Band 4, Duden Publishing house, Mannheim, 2005, page 518. 3 O. Buchholz • W. Fiedler – Albanian grammar, Enzyklopädie Leipzig Publishing house, 1987, page 131.

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both languages. Based on our comparisons, we have listed our points of view and ideas on approaches and differences about the past perfect indicative in Albanian and German, and of course the role of Aorist II indicative. 3. Background and Purposes This paper aims at giving a practical and theoretical overview on approaches and differences about the past perfect indicative between Albanian and German, and also handles Aorist II indicative in Albanian offering a clear and detailed picture of uses and meanings of these tenses in both languages. We have paid attention to the text grammar and also wish to consider the issue of translation from German in Albanian and controversialy. This publication will be a comprehensive and authorative reference work on past tenses indicative bringing together the study on different linguistic aspects. 4. Analysis Before starting handling the functions of these tenses, we firstly intend to have a look in the morphological level. The past perfect in active voice in Albanian is composed of two parts: „The past tense of the verb ‚kam‘ (to have) in past tense + the past participle of the main verb“ [example: unë kisha pyetur (I had asked)]. In the German language the past perfect in active voice is also composed of two parts: „The past tense of the verbs ‚haben/sein‘ (to have/to be) in past tense (preterite) + the past participle of the main verb“ [examples: ich hatte gefragt/ich war gewesen (I had asked; I had been)]. Based on the morphological formation rules, we have noticed approaches between the two languages in the active voice. In Albanian Aorist II in active voice is also composed of two parts: „The Aorist I of the verb ‚kam‘ (to have) + the past participle of the main verb“ (example: unë pata pyetur4). Above we have mentioned that the German morphologically doesn’t alter the Aorist II - so, it is impossible to confront the two grammars in the morphological level about this tense. But we are going to show some very interesting and good argumentative examples by observing them in the translation area. According to Helbig and Buscha5, and the Albanian Academy Grammar 6 the past perfect indicative has got, in both languages, two main variants of use: 1. Past perfect indicating a resultative action in the past (1). This type of past perfect doesn’t have any modal factor present, but it can contain facultative temporal indicators or can be followed by a temporal subortinated clause. In this variant the past perfect can be replaced in both languages by perfect. (1) Ato kishin qenë plaka në kohën e mbretërisë dhe kishin qenë plaka edhe përpara mbretërisë, në kohën e republikës. (Kronikë në gur, Ismail Kadare, f. 31) Greisinnen waren sie schon während der Königszeit gewesen und auch vorher, in der Republik. (Chronic in Stone, Ismail Kadare, page 38)

In the sentence (1) the moment of speaking is identical to the moment of observing – both took place after the event. The example doesn’t contain certain temporal indicators, but we can understand the temporal character of the sentence from the context, and this sentence offers us a very good possibility to observe the summary character of the past perfect: „kohën e mbretërisë, 4

It is impossible to translate this example in English as this tense isn’t present in the standard English language. G. Helbig. • J. Buscha – Handbook for the German grammar as a foreign language, Berlin and Mynih: Langescheidt Publishing house, 2005, page 136-137. 6 Albanian Academy of Science, Albanian Institute of Linguistics and Literature – Grammar of the Albanian language 1, Tirana, 2002, page 314. 5

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kohën e republikës/ Königszeit, Republik (time of the king, time of the republic) - because they both are cosidering a very long time. And the great thing to observe here is also the connection to the present times – the wise ladies are still the old ones. We can feel here the resultative character of the event in the moment of speaking. 2. Past perfect indicates a completed event in the past, which hasn’t got any connection to a certain moment in the past (2). In this variant of use the modal factor is not present - just like in the first one - it can have facultative temporal indicators or can be followed by a temporal subortinated clause. (2) Kur dolëm nga shtëpia e Dino Çiços, shiu kishte pushuar. (Kronikë në gur, Ismail Kadare, f. 97) Als wir Dino Çiços Haus verließen, hatte der Regen aufgehört. (Chronic in Stone, Ismail Kadare, Page 112)

The moment the event happened (2) „ka rënë shi/es hat geregnet“ (it has been raining) lays before the observing moment „Kur dolëm nga shtëpia e Dino Çiços /Als wir Dino Çiços Haus verließen“(As we left Dino’s house), and both take place before the moment of speaking – the speaker refers later about it. In this variant the past perfect can’t be replaced by the perfect. The meaning of the past perfect is precised by the context, just like in the first variant – this tense has got the grammatical value of the Aorist I in the past: The event was completed (finished) before. In Albanian as in German (2) the past perfect is followed by a temporal subordinative clause „Kur dolëm nga shtëpia e Dino Çiços/Als wir Dino Çiços Haus verließen“. We have mentioned above that the modal factor isn’t present in either of the variants of past perfect indicative. And this is very correct as this tense doesn’t tend to have modal nuances. According to Buchholz and Fiedler the presence of modal factor in past perfect structures is extremely rare, but not impossible. We could find examples in a main clause of an hypothetical sentence which signals the past perfect unreal conditionality of the past (6). Frequently, it is a preterite comparinson.7 (4). Since both applications of the past perfect indicative (3) & (4) occur in unreal sentences („pa ia kisha treguar qejfin/sonst hätte er etwas erlebt; sikur kishte parë ndonjë fantazmë/als hätte er einen Geist gesehen“) in the translation in German will be applied subjunctive II „kisha treguar:hätte erlebt, kishte parë:hätte gesehen“. (3) Ishte yt atë atje, pa ia kisha treguar qejfin! Es war dein Vater dort, sonst hätte er etwas erlebt.

(4) Ishte me të vërtetë i hutuar, sikur kishte parë ndonjë fantazmë. Er sah wirklich verwirrt aus, als hätte er einen Geist gesehen.

Furthermore we have noticed, that in both languages, the imperfect, the Aorist I or the preterite indicative turn into past perfect indicative in indirect speech structures (5). In the sentence (5) the cited speaker „Aldo Barabamua“ is mentioned – and to report about his words the author has choosen the past perfect in the orginal text in Albanian, and also in the translation in German. In both cases in the first part of the sentence – the quoted speech – the verbs are used to report what originally was said: They are in preterite „gab“ in German and in Aorist I „kishte“ in Albanian. (5) - Eh, artileri kishte në kohën time, - kishte thënë duke ngritur gotën e fundit në kafene Avdo 7

O. Buchholz • W. Fiedler – Albanian grammar, Enzyklopädie Leipzig Publishing house, 1987, page 132.

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Barabamua. (Kronikë në gur, Ismail Kadare, f. 98) „Ja, zu meiner Zeit, da gab es noch Artillerie!“ hatte Avdo Babaramo, das letzte Glas erhebend, im Café erklärt. (Chronic in Stone, Ismail Kadare, Page 113)

In both from us choosen novels lead preterite in German and imperfect in Albanian as narrative tenses. When the writers want to refer about an event that had happened before a certain moment in the past, so before imperfect, they do use the past perfect. This is generally the case, and there may also be examples in which the author decides more on the preterite in German, and in the translation in Albanian, even in the original text is applied the past perfect – this can be explained very well by considering the inclination of the Albanian language to use the past perfect indicative, when it comes to describe events or characters in the past. In German, preterite is preferred as narrative tense, and when we compare the spectrum of using this tense in German to that in Albanian, we come to the conclusion: The application spectrum of the preterite as a narrative tense in German is wider as in Albanian. Below we can observe the confrontation „past perfect in Albanian : preterite in German“ through the example (6) taken from the author I. Kadare in Albanian and translated in German by J. Röhm. (6) Pastaj gruaja e kish spërkatur vendin dhe kish ikur shpejt duke ua humbur gjurmët atyre që e ndoqën. (Kronikë në gur, Ismail Kadare, f. 27) Dann hatte die Frau den Ort besprengt und war so rasch verschwunden, dass die Verfolger ihrer Spur verloren. (Chronic in Stone, Ismail Kadare, Page 33)

Another important focus of our work is the issue of translation. If we look closer at above mentioned examples (1 - 6), we can say that in the translation area, both languages almost act the same: We identified approaches in the semantic, syntax, emotional, stylistic and modal levels. At the beginning of this work, we have mentioned, that the morphological forms of the Aorist II indicative are not present in German - by translating Aorist II from the Albanian into German, translators use the past perfect indicative (7) & (8). Let us have a look at the examples below, taken from the novel „Chronic in Stone“ by Ismail Kadare, and the novel „Nothing new from the Western front“ by Erich Maria Remark (7) & (8), and understand better which tense the translaters have choosen to translate the Aorist II in German: (7) Er war nur bewusstlos gewesen. (Im Westen nichts Neues, Erich Maria Remarque, Page 16) Pati qenë pa ndjenja për një kohë të gjatë. (Asgjë e re nga fronti i perëndimit, Erik Maria Remark, f. 18)

(8) Gruaja e Mane Vocos qe zbardhur në fytyrë nga tmerri. E panjohura qe zhdukur sa të hapësh e mbyllësh sytë. (Kronikë në gur, Ismail Kadare, f. 27, 28) Mane Vocos Frau war schreckenbleich geworden. Keinen Wimpernschlag später war die Fremde verschwunden gewesen. (Chronic in Stone, Ismail Kadare, Page 33)

As Aorist II indicative in Albanian has the same meaning to the past perfect indicative also in Albanian, may this lead the translators to use the same tense structure as past perfect, when it comes to translate structures of Aorist II from Albanian to German or controversily. In the examples (7) and (8) in German, the verbs „war gewesen“ and „war geworden“ are in past perfect indicative. Sentence (7) is taken from the original text in German and the translator has decided to use Aorit II in Albanian „pati qenë“. The same happens when we observe the translation from Albanian into German in the example (8): The translator used the past perfect in German for the sentences in Aorist II in Albanian „qe zbardhur“ and „“qe zhdukur“. Therefore, both these tenses „Aorist II:Past perfect“ can be treated morphogically and semantically as synonyms, so they can easily replace 18

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each other and this doesn’t affect the meaning of the sentence at all. 5. Conclusions and Recommandations Both languages alter the past perfect indicative - it indicates that an action was completed (finished) at some point in the past before something else happened. The past perfect has got two obligatory features: Bitemporal and past. Based on the grammatical structure, there are also morphological approaches between German and Albanian. Temporal factor occupies a large place and there is almost no space for the modal one. Temporal indicators appear facultative in past perfective uses or the sentense is accompanied from a temporal subordinate clause. Examples of past perfect wich have modal factor present may appear in the main clause of a hypothetical sentence, where the past pefect indicates unreal past conditionality – these structures in German are given by conjunctive II. Semantic uses oft past perfect tense in both languages are similar – in Albanian as in German we distinguish two important variants of use. The Albanian morphologically alters also a tense, the Aorist II – but the grammatical category of Aorist II indicative isn‘t found in the German language. So, it’s impossible to make a morphological comparision between Albanian and German about that. Meaning and uses of Aorist II indicative in Albanian are similar to the past perfect indicative. In the translations of the Albanian Aorist II indicative into German is this tense given by the past pefect indicative. In the translation area, both languages almost act the same: When we do translate past perfect indicative sentences from Albanian into German or controversaly, we identify approaches in the semantic, syntax, emotional, stylistic and modal levels. 6. Acknowledgements We thank Prof. Dr. Emine Teichmann for her supervision of the current study. In addition, we thank our family for the great support. References Buchholz, Oda • Fiedler, Wilfried (1987), Albanische Grammatik Verlag Enzyklopädie Leipzig. Teichmann, Emine (2015), Handbuch Grammatik der albanischen Sprache Teil I, GRIN Verlag, Deutschland. Teichmann, Emine et al. (2015), Grammatisches Wörterbuch für Albanisch. Eine grammatisch-lexikographische Zusammenstellung, GRIN Verlag, Deutschland. Harald, Weinrich (1993), Textgrammatik der deutschen Sprache, Dudenverlag, Deutschland. Helbig, Gerhardt • Buscha, Joachim (2001), Deutsche Grammatik, ein Handbuch für Ausländerunterricht, Langenscheidt, Berlin und München, Deutschland. DUDEN - Die Grammatik, Unentbehrlich für richtiges Deutsch 7., völlig neu erarbeitete und erweiterte Auflage, (2005), Duden Band 4, Dudenverlag, Mannheim, Deutschland. DUDEN Grammatik der deutschen Gegenwartssprache, (2003), Duden Band 4, Mannheim, Leipzig, Wien, Zürich. Akademia e Shkencave e Shqipërisë, Instituti i Gjuhësisë dhe i Letërsisë (2002), Gramatika e gjuhës shqipe, Tiranë, Demiraj, Shaban (1970), Morfologji e gjuhës së sotme shqipe, II, Tiranë. Agalliu, Fatmir (1988), Çështje të morfologjisë së gjuhës së sotme shqipe, Tiranë. Demiraj, Shaban (1976), Morfologjia historike e gjuhës shqipe, II, Tiranë. Morina, Vjosa (2009), Masterarbeit Modus und Tempus im Deutschen und Albanischen, Wien.

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Explaining the European Union’s Changing Position towards the Gibraltar Question after the Brexit Referendum Assist. Prof. Dr. Uğur Burç Yıldız İzmir Katip Çelebi University

Assist. Prof. Dr. Anıl Çamyamaç Cyprus Science University Abstract Having previously remained impartial on the Gibraltar question between Spain and Britain since both were member states, the European Union suddenly changed its position after the Brexit referendum in favor of the Spanish government at the expense of breaching international law. In doing so, the European Union, for the first time, created a foreign policy on the long-standing Gibraltar question. This article explores the reasons behind the creation of this foreign policy in support of Spain. The European Union feared that the idea of Euroscepticism may escalate among remaining member states after the Brexit referendum because of wide-spread claims that it would dissolve in the near future, fuelled by farright political parties. The European Union therefore created a foreign policy regarding Gibraltar in Spain’s favor in order to promote a “sense of community” for thwarting a further rise in Euroscepticism. While making its analysis, the article applies the assumption of social constructivism that ideas shape interests, which then determine the foreign policy choices of actors. Keywords: Gibraltar, European Union, Britain, Spain, Euroscepticism, Social Constructivism

1. Introduction It is recognized under international law that Britain has undisputed sovereignty over Gibraltar. In conformity with this, the EU recognizes in its treaties that Britain is responsible for regulating Gibraltar’s foreign relations. In addition, regarding its political position on solving the long-standing Gibraltar question, the EU has previously adopted an impartial position since both Spain and Britain are member states. However, the EU changed its position in Spain’s favor following the Brexit referendum by giving a veto right to Spain on the future Gibraltar- EU relations, which is a clear breach of international law by the EU. In recent years, due to immigration, terrorism and unemployment, Euroscepticism has reached unprecedentedly high levels. In particular, far-right populist parties have played an important role in the rise of Euroscepticism by claiming that the EU is unable to solve these problems. By manipulating people’s concerns regarding these problems, they have also managed to increase their power in several leading EU countries, such as the Netherlands, France, Germany and Austria. After the Brexit referendum, the far-right parties gained a new opportunity to promote their negative propaganda. They claim that the British people’s decision to leave the EU is only the first and that other countries’ citizens will follow their lead, meaning that the EU may collapse in the near future. Fearing that this propaganda could further increase Euroscepticism, the EU has wanted to promote a sense of community by changing its position on the Gibraltar question in Spain’s favor at the expense of breaching international law. The EU’s message is actually very obvious: we are still here and we protect our members. The EU’s aim of preventing a further rise in Euroscepticism by siding with Spain on the Gibraltar question also supports the assumptions of social constructivism, which posits that ideas play a major role in determining actors’ foreign policy choices. The first section of this article draws on the theoretical framework under social constructivism. The second section outlines the impact of the Brexit referendum on the EU’s position on the Gibraltar question. The third section first analyzes the status of Gibraltar under international law 21

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before explaining why the EU has changed its position on the Gibraltar question in favor of Spain despite breaching international law. The conclusion provides an overview of the article. 2. Theoretical Framework While varying in importance over time, federalism, functionalism, neo-functionalism and intergovernmentalism remained the dominant theories of EU integration until the end of 1980s (see, Rosamond, 2000). However, by explaining the EU integration through these theoretical frameworks, scholars paid insufficient attention to the foreign policy dimension of the European integration project. This was firstly because EU members focused on economic cooperation and technical harmonization rather than political integration. Secondly, the failure of the European Defense Community and thus the European Political Cooperation in 1954 caused significant damage to scholars’ expectations that cooperation in foreign and security policy is possible. However, the Single European Act (1986), which codified European Political Cooperation, and later the Maastricht Treaty (1992), which introduced the Common Foreign and Security Policy as the second pillar of the EU, triggered theoretical applications for EU foreign policy. In particular, liberal intergovernmentalism, new institutionalism, the governance approach and social constructivism, which all developed in the 1990s, started contributing to a new theoretical analysis of EU foreign policy (Bergmann & Niemann, 2013, p. 2). Social constructivism is an excellent theory for studying international relations, despite a continued debate as to whether it is a theory. Simply put, it claims that international relations are ‘socially constructed.’ It was first applied to international relations by Nicholas Greenwood Onuf in 1989 in his book, World of Our Making: Rules and Rule in Social Theory and International Relations, published by University of South Carolina Press. Later, Alexander Wendt’s influential works, such as “Anarchy is What States Make of it: The Social Construction of International Relations”, published in the International Organization journal in 1992, and Social Theory of International Relations, published by Cambridge University Press in 1999, significantly contributed to applying social constructivism theory to international relations issues. In addition to these prominent publications, important contributions to the development of the theory were made by many scholars belonging to the Copenhagen School in the Copenhagen Peace Research Institute and the English School of International Relations (Karacasulu & Uzgören, 2007, p. 29). Social constructivists reject the realists’ argument that states only have material interests, such as military force and economic power. Instead, they claim that the world of international relations does not lie outside human consciousness. Thus, while not ignoring the role of material interests, they assert that the study of international relations must focus on ideas, identities, culture, social norms and perceptions because these shape the interests and international actions of actors within this context (Jackson & Sorensen, 2007, p. 162). This approach is very instructive when analyzing the EU’s foreign policy choices. A valuable identity-based example is the EU’s acceptance of Greece as a member state in 1981. Former French President Valéry Giscard d’Estaing frankly confessed many years later that although Greece was clearly insufficiently developed economically compared to EU member states, it was nevertheless made a member because the vast majority of Europeans believe that ancient Greek civilization made a very significant contribution to shaping European identity (Angelos, 2015). Another good example supporting the idea-based approach of social constructivists concerns the recently re-emerging Gibraltar question. When the dispute between the Spanish and British governments over the status of Gibraltar restarted after the Brexit referendum, the EU, which had previously remained impartial, unexpectedly supported the Spanish government. In its guidelines for the Brexit negotiations, the EU included the requirement that, after Britain exits the EU, agreements between the EU and Britain on Gibraltar can only be enforced with the consent of both Spain and Britain. In doing so, the EU has obviously given Spain the right of veto over the future of Gibraltar-EU relations. However, the EU’s changed position breaches international law, which recognizes Britain’s sovereignty over Gibraltar. The EU appears to have sided with Spain on the Gibraltar question in order to counter any further rise in the idea of Euroscepticism. To respond the growing feeling since the Brexit referendum that the Union could dissolve, which has been 22

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significantly promoted by far-right parties, who have already been able to spread Euroscepticism significantly due to the EU’s inability to deal with immigration, terrorism and unemployment, the EU wanted to send a message to its citizens that it still exists and will protect its members’ interests. Thus, the EU wanted to promote a sense of community during these difficult times for EU integration. The next section explains Brexit referendum’s implications for the Gibraltar question. 3. The Brexit Referendum and the Gibraltar Question Britain has always been a problematic partner for the EU since gaining membership in 1973. While other EU members were struggling to ensure ‘an ever closer union’, Britain preferred not to participate in the EU’s most important policies to promote further integration, such as the Economic and Monetary Union, introduced by the Maastricht Treaty in 1992, and the Schengen Convention. Britain’s most important general concern for remaining outside these initiatives stemmed from its traditional desire for flexible EU integration based on intergovernmentalism rather than any supranationalist transfer of national powers to EU institutions in Brussels. In the face of the financial crisis in European markets and increasing concerns in Britain over immigration, Prime Minister (PM) David Cameron announced in 2013 that he would hold a referendum on the country’s EU membership if he became PM again after the 2015 elections (Euronews, 2013). It has been claimed that domestic political calculations were actually the main reasons for this decision in that Cameron offered a referendum because he wanted to gain the votes of Eurosceptics in the UK Independent Party and reconcile factions within the Conservative Party before the 2015 general election (Stanley, 2016; Glencross, 2016, p. 2). In the May 2015 election, Cameron’s party received 36.9 percent of the votes to earn parliamentary 331 seats, which enabled Cameron to keep his post in 10 Downing Street. The victory was attributed to the Tories’ good economy performance and Cameron’s promise of an EU referendum (CBC News, 2015). The latter was extremely important for Eurosceptics, who were obsessed with protecting Britain’s national sovereignty against Brussels-based policy-making. On February 20, 2016, Cameron managed to win very important concessions from the EU with the signing of the Britain-EU Agreement, which provided that Britain would not be bound to participate in any future federal Europe. The agreement stipulated that “It is recognized that the United Kingdom, in the light of the specific situation it has under Treaties, is not committed to further political integration into the European Union. The substance of this will be incorporated into Treaties at the time of their next revision.” This clearly meant a ‘never closer union’ for Britain. Cameron claimed that the agreement gave Britain a “special status” in the EU and called on the British people to decide whether to remain in the EU after this move or leave (BBC, 2016). During the referendum campaign, Cameron sided with the ‘no’ campaigners, repeatedly reminding voters that the February 2016 Agreement meant that Britain no longer had to participate in EU-led policies. However, the referendum, which took place on June 23, 2016, resulted in majority supporting Britain’s exit from the EU with 51.8 percent of the vote. Soon after the referendum, Cameron resigned, having undoubtedly sealed his place in history as a politician who gambled the future of Britain for his own domestic political calculations. Brexit will have wide-ranging and varied consequences for Britain and the EU. The most important questions for Britain are as follows: What kind of economic cooperation model will be preferred by Britain to replace the common market? How will British people use the right of free movement of people? Will Scotland and Northern Ireland want independence from the UK? (Glencross, pp. 49-58) While discussions have focused on these uncertainties, Spanish Foreign Minister José Manuel Garcia-Margallo’s proposal to Britain to hold negotiations on joint control of Gibraltar reignited the long-standing dispute (Reuters, 2016). Meanwhile, in late March 2017, the EU surprisingly sided with Spain, having previously remained impartial on the Gibraltar question, by incorporating the following article in its draft guidelines for the Brexit negotiations: “After the United Kingdom leaves the Union, no agreement between the EU and the United Kingdom may apply to the territory of Gibraltar without the agreement between the Kingdom of Spain and the United Kingdom” (Article 24) (The Guardian, 2017a). In doing so, the EU has given Spain a veto right over Gibraltar’s future relations with the Union. 23

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Spain’s claims and the EU’s attitude annoyed Britain. For example, Michael Howard, a former Tory leader, reminisced about PM Margaret Thatcher’s war against Argentina to defend the freedom of English-speaking people in the Falkland Islands, and continued by stating that he was absolutely sure that current PM Theresa May “would show the same resolve in standing by the people of Gibraltar” (Financial Times, 2017). Michael Fallon, British Defense Secretary implied the same threat: “We are going to look after Gibraltar – it is going to be protected all the way because the sovereignty of Gibraltar cannot be changed without the people of Gibraltar” (Daily Mail, 2017). While the seriousness of such statements is debatable, as a result of the escalating row, Spanish Foreign Minister Alfonso Dastis, who took office in November 2016, had to ask Britain to calm down (Euronews, 2017a). The EU’s Brexit negotiation guidelines, which it approved on April 29, 2017, (European Council, 2017) fully satisfied the Spanish government, which has long sought shared sovereignty over Gibraltar. As Inigo Mendez de Vigo, a spokesman for the Spanish government, put it, “It is what we wanted and what we have said from the beginning … The recognition by the European Union of the legal and political situation that Spain has defended fully satisfied us” (Reuters, 2017a). The next section demonstrates why the EU’s policy as set out in Article 24 breaches international law and explains why the EU has made this policy change on Gibraltar despite acting against international law. 4. Why does the EU Breach International Law on Gibraltar? For Britain, Gibraltar, a promontory overlooking Algeciras Bay that controls the Gibraltar Strait at the entrance of the Mediterranean, is an indispensable piece of territory. Indeed, Gibraltar has long been a strategic focal point historically. With the Moors, led by Tarik al-Ziyad, captured it from the Visigoth king, Roderic, in 711, (Levie, 1983, p. 3) Gibraltar remained under Muslim rule for 600 years. After the Spaniards occupied Gibraltar in 1462, Queen Isabella of Spain declared that Gibraltar was “the key to Spain,” (Jordine, 2007, p. 125) as it was believed that Spain’s acquisition of Gibraltar ensured the territorial integrity of the Castilian kingdom. It is still believed that, without Gibraltar, Spain’s territorial integrity remains incomplete. Following over 200 years of Spanish rule, Britain gained sovereignty over Gibraltar itself, not the whole isthmus, under Article X of the 1713 Utrecht Peace Treaty.1 While Spain and Britain disagree over the exact interpretation of this article, it is widely acknowledged that Britain has undoubtedly gained legal sovereignty over Gibraltar, although Spain will regain sovereignty if Britain would renounces its claim. Regarding disagreements between the two powers over the treaty, Spain claims, according to its interpretation under Spanish civil law, that the phrase “propriety” in Article X, gives Britain less than full sovereignty over Gibraltar, (Levie, pp. 30-35; Waibel, 2010, paragraph 9) although this is contradicted by the other phrases, such as “full and entire propriety”, “be held and enjoyed absolutely with all manner of right forever” and “without any exception or impediment whatsoever”, as well as the intent of the parties at that time. Spain also questions the phrase “without any territorial jurisdiction”, in the second paragraph of the article. However, this phrase actually refers to the surrounding areas rather than directly to Gibraltar itself. In reality, the two sides never defined the frontier of Gibraltar because they wanted to prevent smuggling (Jordine, pp. 125-126). Although a fence has been erected between Gibraltar and Spain that currently constitutes the frontier, it is not an officially determined one (Ibid.). 1

Article 10 of the Utrecht Treaty reads as follows: “The Catholic King does hereby, for himself, his heirs and successors yield to the crown of Great Britain the full and entire propriety of the town and castle of Gibraltar, together with the port, fortifications, and forts thereunto belonging; and he gives up the said propriety to be held and enjoyed absolutely with all manner of right for ever, without any exception or impediment whatsoever. But that abuses and frauds may be avoided by importing any kind of goods, the Catholic King wills ,and takes it to be understood, that the above named propriety be yielded to Great Britain without any territorial jurisdiction, and without any open communication by land with the country round about. And in case it shall hereafter seem meet to the crown of Great Britain to grant, sell, or by any means to alienate there from the propriety of the said town of Gibraltar, it is hereby agreed and concluded, that the preference of having the same shall always be given to the crown of Spain before any others.”

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It should be noted that Article X of the Utrecht Treaty restricted British sovereignty to Gibraltar and its fortifications so the isthmus was not covered by this article. However, Britain gradually expanded its jurisdiction or sovereignty by occupying surrounding areas belonging to the isthmus. Today, therefore Britain depends on the prescription doctrine to justify its sovereignty over these areas on the isthmus (Lowe, 2007, pp. 144-145). Interestingly, despite signing the Utrecht Treaty, Spain repeatedly tried to regain sovereignty over Gibraltar, whether by force or diplomacy (Verzijl, 1970, pp. 482-483). However, the 1815 Vienna Conference seemed to reduce the sovereignty impasse. This de-escalation continued after the 1950s, with Spain revoking its claims, notably before the United Nations General Assembly (Zaidi, pp. 153-155). The establishment of the United Nations after World War II introduced a new era. One of the most spectacular transformations in the world order, guided by the United Nations, was decolonization under the principle of self-determination. When Britain tried to initiate this process regarding Gibraltar, Spain objected on the basis of its territorial integrity. The United Nations sided with Spain, implying that Gibraltar was not a colony that needed to be freed from a colonial power (Franck & Hoffman, 1976, pp. 371-379). The United Nations General Assembly decided that the Gibraltarians did not constitute a people so Spain’s claim over Gibraltar prevailed (see, Bossano, 1994; Lincoln, 1994; Duursma, 1996). That is, the principle of territorial integrity outweighed selfdetermination. To defend the rights of Gibraltarians, Britain held a referendum on whether they wanted to become part of Spain. Out of 12,182 votes cast, 12,138 supported continued links with Britain while only 44 supported Spanish sovereignty (Franck & Hoffman, p. 373). Meanwhile, Spain increased restrictions over Gibraltar and Gibraltarians, from sanctions on travel and trade through prohibiting Spanish labor from working in Gibraltar and severing telephone links to completely closing the border in 1969. However, most of these restrictions were lifted after Spain joined the EU. Under Article 355/3 of the Consolidated Version of the Treaty on the Functioning of the European Union and the provisions in Britain’s act of accession to the European Communities, Gibraltar is included within the European Community (Waibel, paragraph 27). In the EU context, Gibraltar is a territory with one member state, Britain, responsible for regulating its foreign relations. That is, Gibraltar is a European Territory, but with a few exceptions. It is excluded from four areas of Community policy: the Community Customs Territory and Commercial Policy, the Common Agricultural Policy, the Common Fisheries Policy and the requirement to levy value added tax (Waibel, paragraph 27). Since June 2000, relations between the Gibraltarian authorities and EU authorities have been regulated by the United Kingdom Government/ Gibraltar Liaison Unit for EU Affairs in the Foreign and Commonwealth Office (Waibel, paragraph 31). During the 1980s, various treaties that concerned Gibraltar were signed, particularly the Lisbon Treaty of 1980 and the Brussels Agreement of 1984. These were followed by another interesting treaty relating to usage of airport, which the British constructed on the isthmus in 1938. This treaty aimed to give Spain the right to use the airport alongside Britain. However, Gibraltarians blocked its implementation, which led to the exclusion of Gibraltar from the European Commission’s Air Services Directive of July 18, 1989 (Lincoln, pp. 302-306). In 2002, the foreign ministers of the two countries negotiated a deal based on shared sovereignty over Gibraltar, but it was opposed by both the House of Commons and Gibraltarians themselves. Most MPs in the House of Commons believed that it would have paved the way for the transfer of complete sovereignty to Spain (Waibel, paragraphs: 14-15). Meanwhile, Gibraltar held a referendum on the proposal, which predictably overwhelmingly rejected shared sovereignty with 98.5 percent of the votes. Since 2004, there has been technical cooperation between Britain, Spain and Gibraltar in the form of a trilateral forum and a Joint Commission, which aims to improve cross-border relations. Several agreements have been concluded with positive results on technical matters, such as “lifting Gibraltar’s exclusion from EU aviation legislation, ending Spanish airspace restrictions, joint use of the airport, eased border traffic flows and controls, interoperability of fixed and mobile networks and recognition of Gibraltar’s direct dialling code, a lump-sum settlement of British pension obligations to former Spanish workers in Gibraltar, and opening a Cervantes Institute in Gibraltar” (Waibel, 25

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paragraphs: 32-33). Over the years, or more appropriately centuries, the Gibraltar issue has intensified, which has introduced various new dimensions that have widened the sovereignty impasse. The Brexit referendum and resulting process appear to be the latest in this respect due to the EU’s unnecessary interference. After the Brexit referendum, the EU effectively gave Spain a veto right on the future GibraltarEU relations. This was an outrageous political move given the EU’s supposedly impartial political stance. By acting like this, the EU is not only breaching international law but also ignoring the rights of Gibraltarians. In this respect, as a follower and guardian of the rule of law, the EU should have acted impartially. Thus, apart from EU affairs, the EU should remain impartial in the Gibraltar controversy. Giving Spain a veto right, even in EU affairs, damages the EU’s credibility and constitutes a clear breach of international law. In light of this discussion, one might ask why the EU changed its position on the Gibraltar question after the Brexit referendum. One reasonable explanation is that it fears Euroscepticism, which is already high due to recent immigration, terrorism and unemployment problems, may spread further in member states, particularly fueled by far-right parties. The EU’s concern is that after the Brexit referendum the discourses of far-right parties have become so wide-spread that the Union will dissolve in the near future. In response, the EU has sided with Spain on the Gibraltar question to promote a sense of community to prevent a further rise in Euroscepticism. The EU’s attitude on this issue clearly supports the arguments of social constructivists that ideas shape interests so that foreign policy actors then act according to these interests. Here, the aim of preventing the further rise of Euroscepticism determined the EU’s Spanish-sided foreign policy on the Gibraltar question. According to Antonio Tajani, President of the European Parliament, immigration, terrorism and unemployment are currently the EU’s three biggest problems, and the main causes of rising Euroscepticism (Euronews, March 20, 2017). Since the beginning of the Syrian crisis in 2011, the number of people seeking asylum in EU states has increased considerably. According to Eurostat, the EU’s statistical agency, the number of asylum applicants in EU member states reached a record 1.26 million in 2015, which is almost double the number after the collapse of the Soviet Union (Eurostat, 2017a). The majority of recent asylum seekers come from Muslim populated countries, particularly Syria, Iraq and Afghanistan in rank order (Pew Research Center, 2016a). In 2016, 2015’s record level only decreased by 53,000 (Eurostat, 2017). The Pew Research Center’s Spring 2016 survey revealed that EU citizens are highly dissatisfied with the EU’s handling of immigration crisis. The highest rate was recorded in Greece (94 percent), followed by Sweden (88 percent), Italy (77 percent), Spain (75 percent), Hungary (72 percent), Poland (71 percent), Britain (70 percent), France (70 percent), Germany (67 percent) and the Netherlands (63 percent) (Pew Research Center, 2016b). Terrorist attacks and fatalities have also risen significantly in EU states in recent years, with the most deadly being the January 2015 Charlie Hebdo shooting in Paris, which killed 17, the November 2015 Paris attacks, which killed 130 and wounded many more, the March 2016 Brussels bombings, which killed 34 and wounded 190, the July 2016 Nice truck attack, which killed 84 and wounded more, 10 terrorist stabbing attacks recorded across Europe in 2016, (Time, 2016) and the March 2017 London car attack, which killed 6. All these attacks were perpetrated by ISIS militants. According to a Pew Research Center survey, 59 percent of EU citizens in 10 member states believe that immigration increases terrorism, with more country-specific figures as follows: Hungary (76 percent), Poland (71 percent), Germany (61 percent), the Netherlands (61 percent), Italy (60 percent), Sweden (57 percent), Greece (55 percent), Britain (52 percent), France (46 percent) and Spain (40 percent) (Pew Research Center, 2016c). Turning to unemployment rates, Eurostat estimated in March 2017 that unemployment was 8 percent in the EU, with 19.7 million people unemployed. This is high compared to the United States, where unemployment was 4.5 percent in March 2017. What is striking, however, is the uneven distribution across member states. While the lowest rates were recorded in Czechia (3.2 percent), Germany (3.9 percent) and Malta (4.1 percent), the highest levels were in Greece (23.5 percent), Spain (18.2 percent), Southern Cyprus (12.5 percent), Italy (11.7 percent), Croatia (11.3 percent) 26

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and France (10.1 percent). Much more worrying is the very high level of youth unemployment (under 25 years old), which was almost double the EU’s overall average in March 2017 at 17.7 percent. The highest levels were in those countries most severely affected by Europe’s financial crisis: Greece (48 percent), Spain (40.5 percent) and Italy (34.1 percent). Thus, the crisis has disproportionately affected Europe’s younger citizens (Eurostat, 2017b). Far-right parties have strongly benefited from immigration, terrorism and unemployment by focusing their discourses heavily on these issues. Among them, however, Muslim immigration has been their leitmotif for many years (Wilson & Hainsworth, 2012). They first aim to convince Europeans that the recent increase in terrorist attacks and unemployment is due to Muslim immigration. They also suggest that Muslim immigrants pose a severe danger to western culture, identity and values, and to Europe’s distinct way of life, because such immigrants are impossible to assimilate (Guibernau, 2010). Moreover, they claim that Europeans will benefit far less from social services in the coming years due to immigration. Regarding these three major problems, far-right parties accuse both their national governments and the EU of remaining unable to solve them. They claim that the EU’s corrupt elites and technocrats spend European citizens’ money for their own ambitions without caring about their problems (Grabow and Hartleb, 2013) due to immigration, terrorism and unemployment. Given the EU’s passivity in the face of the citizens’ problems, they claim, it is completely absurd to transfer national powers to the EU, which is simply a dysfunctional organization. Through such criticisms of the EU, far-right parties have significantly contributed to the rise of Euroscepticism, which has become an existential threat for the EU, as Jyrki Katainen, Vice President of the European Commission, warned (The Guardian, 2017b). Indeed, the Pew Research Center’s Spring 2016 survey on Euroscepticism in 10 EU countries clearly justifies Katainen’s concern in that the most unfavorable views of the EU were measured in Greece (71 percent), followed by France (61 percent), Spain (49 percent), Britain (48 percent), Germany (48 percent), the Netherlands (46 percent), Sweden (44 percent), Italy (39 percent), Hungary (37 percent) and Poland (22 percent). On average, 47 percent viewed the EU unfavorably as against 51 percent who viewed it favorably (Pew Research Center, 2016d). Since the Brexit referendum, there have been wide-spread claims that the EU will break up, with many other member countries, especially France, Greece, Italy, Czechia, Austria, the Netherlands, Denmark, Finland, Slovakia and Portugal, seeking to leave the Union. Even Donald Trump, the US president-elect, did not hide his belief in this claim by saying: “People, countries, want their own identity, and the UK wanted its own identity … Other countries will leave the EU,” because the bloc was put under serious pressure following mass immigration (The Telegraph, 2017). In Europe, this argument has been particularly fuelled by far-right populist parties, who have found this a good opportunity to massively boost their Eurosceptic discourses (Polyakova, 2016). Beyond their promises to leave the EU if they win elections, they have presented the British people’s decision to EU citizens as a logical choice and a sign of the EU’s dissolution. For example, Marine Le Pen, leader of the National Front Party in France, claimed that “The European Union will die because the people do not want it anymore … arrogant and hegemonic empires are destined to perish” (Reuters, 2017b). Geert Wilders, leader of the Party for Freedom in the Netherlands, said “Both the Eurozone and European Union is like the end of the Roman Empire. It’s already started. In a few years’ time it will not be there anymore. Don’t ask me if it will be two years or ten years but the end is near. Like the Roman Empire, it’s gone” (Daily Express, 2017). The EU fears that the Brexit referendum has further increased the already very high level of Euroscepticism because other EU citizens have been influenced by such pessimistic arguments about the EU’s future, particularly triggered by far-right parties. 5. Conclusion Under the clear terms of the 1713 Utrecht Peace Treaty, sovereignty over Gibraltar undoubtedly belongs to Britain. In this respect, the EU could act impartially regarding the long-running Gibraltar question. However, in the guidelines issued by the European Commission for the Brexit negotiations, the EU has given Spain a veto right regarding future EU-Gibraltar relations, which is a clear breach of international law. The EU could also take into account the wishes of Gibraltarians, 27

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who overwhelmingly chose to preserve their link to Britain in the 1967 referendum and rejected shared sovereignty in the 2002 referendum. Since its establishment, the EU has claimed that it is a protector and promoter of the rule of law, yet its shifting position over Gibraltar in favor of Spain raises questions about its sincerity. Social constructivism is an appropriate theory to explain the EU’s changing attitude. According to social constructivists, material interests, such as military force and economic power, are not sufficient to explain the behaviors of foreign policy makers. Ideas are also very important in shaping interests so foreign policy makers consider them. Today, one of the biggest threats to EU integration is rising Euroscepticism. Its unprecedented rise has occurred due to the ability of farright parties in major EU member states to manipulate citizens’ fears over immigration, terrorism and unemployment. By claiming that the EU has failed to solve these problems, which affect the daily lives of Europeans, they can easily turn European public opinion against EU integration. Since the Brexit referendum, these political parties have also promoted the idea that the British people’s decision indicates the beginning of the EU’s break-up. In response, the EU, alarmed that this will further increase Euroscepticism, has sided with Spain on the Gibraltar question to promote a sense of community. References Aljazeera. (2017). EU nations alarmed by Donald Trump’s comment. January 16, [Online] Available: http://www.aljazeera.com/news/2017/01/eu-nations-alarmed-donald-trump-comments170116210644453.html (May 15, 2017). Angelos, J. (2015). Why on earth is Greece in the EU. Politico, June 22, [Online] Available: http://www.politico.eu/article/why-is-greece-in-the-eu-grexit/ (May 6, 2017). BBC. (2016). EU deal gives UK special status, says David Cameron. February 20, [Online] Available: http://www.bbc.com/news/uk-politics-35616768 (May 2, 2017). Bergmann, J.,& Niemann, A. (2013). Theories of European integration and their contribution to the study of European foreign policy. Paper Presented at the 8th Pan-European Conference on International Relations, September 18-21, Warsaw, [Online] Available: http://www.eisanet.org/bebruga/eisa/files/events/warsaw2013/BergmannNiemann_Theories%20of%20European%20Inte gration%20and%20their%20Contribution%20to%20the%20Study%20of%20EFP.pdf (May 5, 2017). Bossano, J. J. (1994). The Decolonization of Gibraltar. Fordham International Law Journal, Vol. 18 (5), 16411646. CBC News. (2015). UK election 2015: PM David Cameron, conservatives win surprise majority. May 7, [Online] Available: http://www.cbc.ca/news/world/u-k-election-2015-pm-david-cameron-conservatives-win-surprisemajority-1.3065385 (May 1, 2017). Daily Express. (2017). Now for NEXIT: Geert Wilders says first job as PM will be to call EU referendum. January 9, [Online] Available: http://www.express.co.uk/news/world/765172/Geert-Wilders-European-Unionreferendum-Nexit-Dutch-election (May 15, 2017). Daily Mail. (2017). Warning Theresa May ‘would go to war’ to defend Gibraltar as Defense Secretary Michael Fallon vows to ‘protect’ its sovereignty ‘all the way’. April 2, [Online] Available: http://www.dailymail.co.uk/news/article-4372666/Fallon-vows-defend-Gibraltar-way.html (May 7, 2017). Duursma, J. (1996). Fragmentation and the International Relations of Micro-States: Self-Determination and Statehood. Cambridge: Cambridge University Press. Euronews. (2013). İngiltere AB’den ayrılıyor mu? January 23, [Online] Available: http://tr.euronews.com/2013/01/23/ingiltere-abde-cikmaya-mi-hazirlaniyor/ (April 2, 2013). Euronews. (2017a). Spain tells Britain to calm down over Gibraltar. April 3, [Online] Available: http://www.euronews.com/2017/04/03/spain-tells-britain-to-calm-down-over-gibraltar (May 7, 2017). Euronews. (2017b). There is only one strategy: responding to people. March 20, [Online] Available: http://www.euronews.com/2017/03/20/antonio-tajani-there-is-only-one-strategy-responding-to-the-people (May 10, 2017). European Council. (2017). European Council (Art. 50) guidelines for Brexit negotiations. April 29, [Online] Available: http://www.consilium.europa.eu/en/press/press-releases/2017/04/29-euco-brexit-guidelines/ (May 6, 2017). Eurostat. (2017a). Asylum statistics. March 13, [Online] Available: http://ec.europa.eu/eurostat/statisticsexplained/index.php/Asylum_statistics (May 10, 2017). Eurostat. (2017b). Euro area unemployment at 9.6%. March 2, [Online] Available: http://ec.europa.eu/eurostat/documents/2995521/8002525/3-02052017-AP-EN.pdf/94b69232-83a9-4011-

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8c85-1d4311215619 (May 12, 2017). Financial Times. (2017). Gibraltar tensions bubble over into British war talk. April 2, [Online] Available: https://www.ft.com/content/391f0114-17a1-11e7-a53d-df09f373be87 (May 7, 2017). Franck, T. M., & Hoffman, P. (1976). The right of self-determination in very small places. New York University Journal of International Law & Politics, Vol. 8(2), 331-386. Glencross, A. (2016). Why the UK voted for Brexit: David Cameron’s great miscalculation. London: Palgrave Macmillan. Grabow, K., & Hartleb, F. (2013). Mapping present-day right-wing populists. In K. Grabow, & F. Hartleb (eds.), Exposing the demagogues: right-wing and national populist parties in Europe (pp. 13-45), Berlin: Konrad Adenauer Stiftung. Guibernau, M. (2010). Migration and the rise of the radical right. Policy Network, London, [Online] Available: http://www.policy-network.net/publications/3690/Migration-and-the-rise-of-the-radical-right (May 11, 2017). Jackson, R., & Sorensen, G. (2007). Introduction to international relations: Theories and approaches. New York: Oxford University Press. Jordine, M. R. (2007). The dispute over Gibraltar. New York: Chelsea House. Karacasulu, N., & Uzgören, E. (2007). Explaining social constructivist contributions to security studies. Perceptions: Journal of International Affairs, 12 (2-3), 27-48. Levie, H. S. (1983). The status of Gibraltar. Boulder, Colorado: Westview Press. Lincoln, S. J. (1994). The legal status of Gibraltar: Whose rock is it anyway? Fordham International Law Journal, Vol. 18(1), 285-331. Lowe, A. V. (2007). International law. New York: Oxford University Press. Pew Research Center. (2016a). Number of refugees to Europe surges to record 1.3 million in 2015. August 2, [Online] Available: http://www.pewglobal.org/2016/08/02/number-of-refugees-to-europe-surges-to-record1-3-million-in-2015/ (May 9, 2017). Pew Research Center. (2016b). Euroscepticism beyond Brexit. Spring 2016 Global Attitudes Survey, June 7, [Online] Available: http://www.pewglobal.org/2016/06/07/euroskepticism-beyond-brexit/ (May 11, 2017). Pew Research Center. (2016c). Many Europeans concerned refugees will increase domestic terrorism. Spring 2016 Global Attitudes Survey, [Online] Available: http://www.pewresearch.org/facttank/2016/09/16/european-opinions-of-the-refugee-crisis-in-5-charts/ (May 11, 2017). Pew Research Center. (2016d). Euroscepticism beyond Brexit: Significant opposition in key European countries to an ever closer union. Spring 2016 Global Attitudes Survey, June 6, [Online] Available: http://www.pewglobal.org/files/2016/06/Pew-Research-Center-Brexit-Report-FINAL-June-7-2016.pdf (May 16, 2017). Polyakova, A. (2016). Brexit a boon for Europe’s far-right parties. Atlantic Council, June 24, [Online] Available: http://www.atlanticcouncil.org/blogs/new-atlanticist/brexit-a-boon-for-europe-s-far-right-populists (May 12, 2017). Reuters. (2016). Spain seeks to jointly govern Gibraltar after Brexit. June 24, [Online] Available: http://www.reuters.com/article/us-britain-eu-gibraltar-idUSKCN0ZA184?il=0 (May 2, 2017). Reuters. (2017a). EU offers Spain veto right over Gibraltar in Brexit talks. March 31, [Online] Available: http://www.reuters.com/article/us-britain-eu-gibraltar-idUSKBN1722AS (May 6, 2017). Reuters. (2017b). France’s Le Pen says the EU will die, globalists to be defeated. March 27, [Online] Available: http://www.reuters.com/article/us-france-election-le-pen-euro-idUSKBN16X0FO (May 12, 2017). Rosamond, B. (2000). Theories of European integration. Besingstoke: Palgrave Macmillan. Stanley, T. (2016). David Cameron has made this a referendum on his future: We will find out soon if he will have to pay the price. The Telegraph, June 23, [Online] Available: http://www.telegraph.co.uk/news/2016/06/23/david-cameron-has-made-this-a-referendum-on-his-futurewell-find/ (May 1, 2017). The Guardian. (2017a). EU draft guidelines for Brexit annotated- what they say and what they mean. March 31, [Online] Available: https://www.theguardian.com/politics/ng-interactive/2017/mar/31/eu-brexit-draftguidelines-annotated (May 7, 2017). The Guardian. (2017b). Rising Euroscepticism poses existential threat to EU. March 3, [Online] Available: https://www.theguardian.com/politics/2017/mar/03/brexit-has-put-other-leaders-off-wanting-to-leave-saysec-vice-president (May 12, 2017). The Telegraph. (2017). Donald Trump says Britain was right to vote Brexit and he will offer a ‘quick’ and ‘fair’ trade deal. January 15, [Online] Available: http://www.telegraph.co.uk/news/2017/01/15/donald-trumpdoes-not-understand-threat-russia-poses-cia-chief/ (May 15, 2017). Time. (2016). A timeline of recent terrorist attacks in Europe. December 20, [Online] Available: http://time.com/4607481/europe-terrorism-timeline-berlin-paris-nice-brussels/ (May 11, 2017). Verzijl, J.H.W. (1970). International law in historical perspectives, vol. III: State territory, Leyden. Waibel, M. (2010). Gibraltar. Max Planck Encyclopedia of Public International Law, on-line edition, edited by Wolfrum, (October 4, 2010).

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Wilson, R., & Hainsworth, P. (2012). Far-Right parties and discourse in Europe: A challenge for our times. Report of the European Network Against Racism, [Online] Available: http://enarireland.org/wpcontent/uploads/2013/07/Far-right-Parties-and-discourse-in-Europe-A-challenge-for-our-times.pdf (May 11, 2017). Zaidi, S. S. A. (1966). Gibraltar. Pakistan Horizon, Vol.19(2), 148-155.

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Transparency of Taxpayers’ Rights and Obligations Ramadan Kryeziu Ph.D. Candidate, “J.J. Strossmayer” University of Osijek, Faculty of Economics, Osijek

Bahtijar Berisha Ph.D. Candidate, “J.J. Strossmayer” University of Osijek, Faculty of Economics, Osijek

Sakip Imeri Ph.D. Candidate, “J.J. Strossmayer” University of Osijek, Faculty of Economics, Osijek

Mustafe Hasani Ph.D. Candidate, “J.J. Strossmayer” University of Osijek, Faculty of Economics, Osijek Abstract Since the goal of tax system is based on self-declaration and voluntary compliance, with this study we intend to know on “Taxpayers’ Perceptions with regard of Tax Administration of Kosovo. We believe that most effective way to keep and enhance the voluntary compliance is through mutual trust and respect between TAK and Kosovo taxpayers.” This is the reason for the study and making recommendations on findings with a special emphasis on improvements of TAK services for the public, in order to fulfill expectations and to provide taxpayers with services they deserve. This work aims to identify the weaknesses and short-falls. Based on findings of this work through the survey with Kosovo taxpayers, we will recommend our ideas in order for the taxpayers to enjoy their legal rights and we will not allow for these rights to be violated in any form. Keywords: Tax Administration of Kosovo, voluntary Compliance, self-declaring.

1. Introduction Kosovo economy suffers a large tax gap, which is mainly a consequence of informal economy and the tax avoidance by some businesses and individuals, which act in disproportion with rules1. Failure to comply with tax obligations by taxpayers causes huge problems with tax revenues. TAK offices in Kosovo are more and more focused on development of sustainable and effective strategy to resolve these outstanding issues of Kosovo tax policy2. However, one of the factors that hamper this process is the lack of reliable and reflective data on this issue. Kosovo lacks the study on taxpayers that would accurately measures the perceptions and opinions of individuals and business in Kosovo on related tax issues. Results coming out from this study aim to help on drafting the effective and constructive strategy with priorities on areas of high importance based on taxpayers of Kosovo. The support on project for TAK is mainly directed towards the improvement of tax inspectors’ capacities, increase of effectiveness and legal impartiality of audits, and strengthening of communication channels between Kosovo taxpayers and TAK offices and officials. This report analyzes and synthesizes findings of a number of activities on data collection, respectively quantity survey, half-structured interviews and focus groups. First, this report intends to inform contractor by finding the pattern of quantity findings of study

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in five main areas: Transparency of Taxpayers’ Rights and Obligations; Compliance Cost; Correct Professionalism and Treatment by TAK; Orientation towards Service; and in the end, Motivation for Compliance. This report provides the context of policy and tax system of TAK in Kosovo, through the follow-up of data, strategies, direction and new goals and initiations. Tax context of Kosovo is filled out with a brief summary of some main studies of this field. The third part describes the methodology used. The fourth part reviews study limitations. The results are analyzed on the fifth and sixth part, concluded with main findings. 2. Tax System of Kosovo Kosovo has relatively simple tax system and is oriented towards simple regulation that aims a broaden basis and prevention of tax evasion. Fiscal policy, especially, tax policy is an extraordinary important part of governance of Kosovo and its economic growth, since the monetary policy tools cannot be used because euro is accepted as currency of the country. To undertake large investments and to offer vital public services, Kosovo needs a considerable quantity of resources, which could be achieved through a suitable fiscal policy. Therefore, Kosovo tax system is inseparable part of economy, because it can increase the revenues for government expenses. 3. Transparency of Taxpayers’ Rights and Obligations This study is focused on taxpayers, individuals and business perceptions in Kosovo with regard of TAK staff, procedures and services, and related tax policies, such as TAK access on businesses, which act against rules, audit case selection based on risk, etc. Main objective is to provide a reliable overview that presents the situation in Kosovo, related to taxpayers’ opinions that can be used as basis for evaluation of new potential strategies for TAK in the future and to bring out the areas requiring priorities according to taxpayers’ perception. The design of study combines focus groups and interviews (1252) to understand the current taxpayers’ opinions in Kosovo. The questions are organized on five main areas, which are: o Transparency of Taxpayers’ Rights and Obligations Quantity results are discussed in detail through the half-structured interviews held with representatives of key institutions, and focus groups of businesses. The aim of discussions was to collect further explanations for interesting findings, and support for astounding findings. Most of taxpayers are satisfied with approach, simplicity and clearness on provision of information by TAK. However, there is still considerable room for improvement on awareness and information about the TAK mandate on taxpayers’ rights and obligations. For example, “set tax rates” and “collection of Customs duties” are seen as an important part of TAK mandate by majority of respondents. The most frequented sources for taxpayers were webpage, TAK offices or its staff and accountants. There is heterogeneity on the results with regards of age group, gender and ethnicity. New generations prefer online sources against other information means. Female taxpayers are visiting more frequently the TAK offices than male taxpayers. The members of Serbian community are using the offices or accountants as information sources and they never refer to internet webpage, based on results of the study. There were improvements in relation to speed and effective transmission of information by TAK, based on conclusions extracted from the discussion. However, there is room to move further on this direction, especially with regard of explanation on last legal changes. On of the main boosters for this study was the idea to get a clear overview on taxpayer perception, awareness and knowledge for TAK and its services. Being informed and educated on these matters improves the chances of action in compliance with tax laws. When the tax liabilities are in question, this way of thinking raises furthermore the education on sanctions. With other words, it is essential that taxpayers are informed and educated before they are penalized for noncompliance. During questioning of respondents on their knowledge about TAK, a certain wrong options were set intentionally on survey to test their knowledge with regard of TAK mandate. 32

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Taxpayers’ knowledge on TAK mandate sometimes is confused on certain areas, which have nothing to do with this institution. For example, on Figure 3 below, shows that “imposing of tax rates” is mentioned by 63% of respondents as important part of TAK mandate. It seems that there is confusion among the population on duties and responsibilities of each institution with regard of taxes. The clearness on relevant institution where they address and keep responsible for, are the key of a functional tax system.

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Figure 1: Perceptions on important parts of TAK mandate Identification of main channels of information that are used by individual taxpayers and businesses would enable TAK to reach larger and diverse audience. The results from quantitative study show that the most used are TAK offices and staff, or its internet webpage. The alternative ways to reach the contact, as leaflet, social networks and call centers are rarely used as information points on related tax matters. The Figure 4 bellow summarizes the different points of information.

Figure 2: Information Resources The results of the study are further based on discussions of focus group. Most of respondents are using the internet webpage to obtain information or they directly go to TAK offices. TAK Strategy 2010-2015 emphasizes that call centers and other online sources are new means to secure reliable, fast and credible information. However, call centers remains less used platforms for such purposes. Luck of trust on call centers is brought up as a reason where the respondents often have identified other issues on call center, such as, the staff is not responding to phone calls or is not sufficient capable to give accurate answers. Regardless that we are living in the time of digitalization, it remains a gap between the old-age generation and new generation when the daily use of new technologies is in question. Figure 5 below shows exactly this digital gap with regard of sources of information. It can be seen that on old age group, the existing online sources, such as TAK webpage enjoy little popularity, and TAK offices are ranked as higher level as sources of information.

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Figure 5: Sources of information - Digital division The selection of information platforms variates among the different regions. For example, on figure 6 below it can be seen that taxpayers and businesses in Prishtina and Ferizaj follow common trends: the first choice of taxpayers is TAK webpage, followed by their personal accountant or lowyers. The region such as Prizren, Gjakova and Gjilan, the individual taxpayers and businesses are relying more on TAK offices than on webpage. Peja looks isolated, since the webpage is relatively liked, and presentations and publication, manuals and booklets are the most common sources of information.

Figure 6: Sources of information by regions The selection of platform is also dependent on taxpayers’ features on seeking information. For example, on focus group held with females in business, the participants have identified themselves more as persons to avoid the risk than males. Therefore, they state that they prefer to hire capable accountants or visit TAK offices to obtain accurate and detailed information, and to avoid mistakes related to their tax liabilities. The results from our quantitative study shows that newspapers, TVs and accountants or lawyers are relatively popular source of information for female than male (see the Figure 7 below). However, webpage and TAK official remain more frequented for both genders.

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Figure 7: Sources of information by gender

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After the review of information resources for taxpayers, it is important to take their opinions on information provided by TAK. Figure 8 bellow shows the overview of surveyed taxpayers about the quality and the access on TAK information. Taxpayers are less happy with regard of information availability on rights and obligations, where 26% of taxpayers do not agree with availability on satisfaction of such information. Most of them are happy with clarity and reliability of general information. From those who sought information directly from TAK, most of them received satisfactory answers, so about 70% are inclined on positive side.

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Figure 8: Opinions on information provided by TAK

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The high level of satisfaction is confirmed in some discussions on focus group. As long as there is still a room for improvement, many people believe that quality, access and availability is better than before. In the focus group of stakeholders, one of the participants said that now TAK officials can provide timely interpretation of laws and regulations. However, there are elements that require more attention. For example, officials and representatives of different institutions and business associations have shown concern, during the interview, with regard of lack of frequent updates of information materials provided on internet. Moreover, other key stakeholders were occupied with friendly approach towards the opposite gender by the TAK official. Another group of stakeholders expressed the concern about the content and details of the already provided information. The issues that were mentioned often were connected to lack of clear and comprehensive information on recent tax law changes. However, this issue is beyond the scope of this report. In addition, the high level of satisfaction does not coincide with opinions of businesses working in Serbian community. First, main information resources for them are the accountants and lawyers, and the findings from quantitative interviews were confirmed on the focus group held with them.

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Last, the access and level of information can be explained by two points of views. In one side, the availability of information, this can be seen as duty and responsibility of TAK. From the findings of this study synthesized above, we can conclude that there are improvements on this aspect. However, more effort should be made to different focused groups, as for example a more friendly gender approach and more efforts on establishment of contact with Serbian community members. Also, special attention should be dedicated to new legal changes for micro and small enterprises, since it happens that they do not employ accountants and it is difficult for them to accept new changes.

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On the other side, it’s the level of interest expressed by taxpayers to obtain information. With the focus group of man in business, the participants stated that interest of taxpayers is low and most of them take the initiative only when they are in trouble. The discussion in focus group with main stakeholders of the area has discovered regional, sector and size differences on the level of taxpayers’ education and knowledge. According to participants the businesses operating in Prishtina are more proactive in contact with TAK or to stay updated with tax changes. The results of quantitative interviews shown on the table 5 below present the percentage of taxpayers or individual businesses that were trying to contacts TAK and it sorts them by region and size (for businesses). About 57% of respondents have actively sought information on TAK publications and sources, and 49% of respondents have sought information directly from TAK on related to tax matters.

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4. Conclusions This study has collected and analyzed the findings from a number of data collection activities, respectively quantitative studies, half-structured interviews and focus groups. Its main goal is to inform the public and TAK with regard of opinions and perceptions of taxpayers about TAK and its services. In addition, this study aims to discover the pattern of quantitative and qualitative data on TAK’s transparency and professionalism. Findings will serve for improvement of future strategies, and in general on determination of current standing of Kosovo taxpayers. Results from this study show that the level of awareness and information of TAK mandate and taxpayers’ rights and obligations is in average low, since for example “set tax rates” and “collection of Customs duties” were seen as TAK mandate by most of respondents. However, the range of access, simplicity and clearness on provision of information by TAK are acceptable by interviewed taxpayers. Most frequented sources by taxpayers were the webpage, TAK offices or personnel and its accountants. However, there were differences on the popularity on sources of information among age-groups, genders and ethnicity. The discussions have found that even the speed and effective transmission of information from TAK is improved substantially recent years, more effort should be made in addressing the confusions among the taxpayers. In particular, it is emphasized the lack of clear and comprehensive information on recent changes of tax laws. The burden of compliance is reduced considerably recent years, especially when in use are put new electronic mechanisms and simplicity of procedures. According to taxpayers it remains a problem with refunds and submission procedures of appeals. With regard of these last two, they are not the only problem including the time spent, but also the approach that TAK inspectors are using sometime. In general the level of satisfaction is quite high on quantitative interviews with regard of respondents’ satisfaction in relation to professionalism and fair treatment by TAK officials and staff. In addition to, the discussions have discovered some further concerns with regard of lack of technical qualification of TAK staff, especially those who are in direct contact with businesses. A considerable part of taxpayers agreed that bribe and misuse are not rare for TAK inspectors, even so a considerable part of them chose “I do not now” on the questions with regard of misuse of authority by TAK officials or their willingness to take bribe. Last, the study discovered which are the main motivations for tax compliance or noncompliance by taxpayers in Kosovo. The main driver for tax compliance is seen as the fulfillment of civic duty for Kosovo. However, their main concern is the perception of misuse of public funds by the Government, which they think that very often it may drive taxpayers to non-compliance of tax obligations. Other important factors of non-compliance are the perception of tax evasion by rich people and failure of payment of taxes by competitors. References Alm J. dhe të tjerët (1992). “Pasiguria institucionale dhe pajtueshmëria e tatimpaguesve.” Shqyrtimi Ekonomik Amerikan. Vëllimi 82, Edicioni 4, faqe 1018-1026 Devos, K. (2014), Faktorët që ndikojnë në sjelljen individuale të pajtueshmërisë tatimore, Botuesi Springer, ISBN: 978-94-007-7475-9 Hichem K., Imen Achek, (2015). "Përcaktuesit e evazionit tatimor: shqyrtimi i literaturës", Zhurnali Ndërkombëtar i Ligjit dhe Menaxhimit, Vëllimi 57, Edicioni 5, faqe 486 – 497 Ministria e Financave, Kosovë (2015). Programi Kombëtar i Reformës Ekonomike (NERP). marrë nga: https://mf.rks-gov.net/Portals/0/Programi%20Komb%C3%ABtar%20p%C3%ABr%20Reforma%20n%C3% AB%20Ekonomi/2015%20National%20Economic%20Reform%20Programme.pdf Riahi-Belkaoui, A. (2004), “Raporti ndërmjet pajtueshmërisë tatimore në aspektin ndërkombëtar dhe përcaktuesit e përzgjedhur të moralit tatimor”, Zhurnali i Kontabilitetit, Auditimit dhe Tatimimit Ndërkombëtar, Vëllimi 13, nr. 3, faqe 135-143. Richardson, G. (2006). “Përcaktuesit e evazionit tatimor: Hetimi në mbarë vendin”. Zhurnali i Kontabilitetit, Auditimit dhe Tatimimit Ndërkombëtar, Vëllimi 15, Edicioni 2, faqe 150-169. Saad N. (2014), Njohuritë tatimore, kompleksiteti tatimor dhe pajtueshmëria tatimore: Pikëpamjet e tatimpaguesve”. Procedia: Shkencat sociale dhe bihevioriste (të sjelljes). Vëllimi109, faqe 1069–1075 Administrata Tatimore e Kosovës (2011). Strategjia e Pajtueshmërisë 2012-2015. Marrë nga: http://www.atk-

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ks.org/wp-content/uploads/2011/11/COMPLIANCE_STRATEGY_2012-2015.pdf Administrata Tatimore e Kosovës (2010). Plani Strategjik 2010 – 2015. Marrë nga: http://www.atk-ks.org/wpcontent/uploads/2010/10/Plani_Strategjik_materiali_Fundit_ENG.pdf Banka Botërore (2014), Të hyrat e sektorit publik të Republikës së Kosovës: Politikat tatimore, evazioni tatimor dhe mangësitë tatimore. Raporti nr.: 89195 XK Zeka E. dhe të tjerët (2013). Të paguaj apo të mos paguaj: Këndvështrimi i biznesit të informalitetit në Kosovë. Instituti për Hulumtime Zhvillimore (RIINVEST). Marrë nga: http://www.fesprishtina.org/wb/media/Publications/2013/BUSINESS_INFORMALITY ENG_FINAL.p

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Interpreting Games: Meaning Creation in the Context of Temporality and Interactivity Chaker Mhamdi University of Manouba (Tunisia) Al-Buraimi University College (Oman) Buraimi, Oman Abstract The concept of interpretation applied to texts, videos, pictures, posts and all other types of media is varied. Objects are open to different forms of interpretation and games, as objects of meaning, are no exception. Explicating meaning creation in games will create a better understanding of game functions and their effects. This study explores how games alter the process of meaning creation through investigating their detailed properties and differentiation from other forms of media as objects of interpretation. This study argues that understanding meaning creation in games entails more than an examination of the presentation layer by a deeper analysis that considers interactivity and temporality. It contends that due to the interactive nature of games, the role of player participation is vital because gamers influence the operative mechanics of games and hence their meanings. Keywords: interpretation, games, temporality, interactivity, meaning

1. Introduction Due to the increasing development of telecommunication technology information has become the currency of meaning, fulfilling McLuhan’s prophetic dictum “the medium is the message” (1964, p. 7). The digital revolution has placed information at the center of communication discourse, international relations and politics, economics and socio-cultural studies. It is consistently argued that we are living in the “information age” which has resulted in notable changes to societal communication, culture and human interaction (Mhamdi, 2017). Consequently, information and knowledge have become aggregated in the sphere of information technology. In this context, it is hardly accepted nowadays that children, for instance, are educated and formed solely by educational institutions. This is because the digital revolution has transformed the processing of information as knowledge acquisition (Mhamdi, 2016). To process information, the concept of interpretation is important because understanding and experiencing texts, videos, pictures, posts and other types of media requires interpretation by the audience or user. Every medium attempts to represent its object and offers various possibilities concerning the way interpretation is constructed. A media object means something, but how that is interpreted depends on the context, how the object is constructed and, most importantly, how the interpreter, at least in part, contributes to the construction of that representation. Schema theory which is strongly associated with the cognitive approach further focuses on the interaction between the readers’ background knowledge and interpretation. Schema theory advocates that comprehending texts and objects requires the interaction between readers’ past experiences and texts/objects which creates mental frameworks that help readers comprehend and create new experiences (Al-Mohammadi, 2014, p 265-268). In other words, readers’ past experiences are related to new experiences which may include the knowledge of “objects, situations, and events as well as knowledge of procedures for retrieving, organizing and interpreting information” (Kucer, 1987). Various historical and cultural contexts affect how things are perceived, and consequently, what they are construed to represent. Interpretation theories and paradigms are an integral part of the context of interpretation. As these contexts vary, the meaning of an object also changes. Objects of interpretation are approached by people for different purposes and motivations that

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determine their purported representations. Probable meanings of these objects unavoidably change according to those purposes. Interpretation usually involves how the understanding reached through the interpretative process will be utilized and for what purpose (Gadamer, 2004). This is how an application (the medium) may channel the interpretative process toward an end while excluding other possibilities. Objects are open to various degrees of interpretation, some more than others. For instance, a piece of art work may motivate more interpretations than other types of objects. Regarding meaning, prose is less ambivalent than poetry, while it is more ambivalent than a scientific discourse. Games, especially video games, include numerous objects that lend themselves to a wide variety of interpretations. Investigating meaning construction in this milieu allows for a better understanding and improved game construction. The development of games involves graphics and coding, but more importantly, creating narratives and meaning construction, to which the player can contribute to varying degrees (Al-Mohammadi & Derbel, 2013). This study investigates how video games, being objects of interpretation, alter the process of meaning construction. To successfully conduct this investigation, it is necessary to understand the detailed properties of games and the way they differ from other forms of media as objects of interpretation. To achieve its objectives, this paper seeks to answer the following questions: (1) How does the concept of interactivity influence the ways in which games are understood? (2) How does temporality affect and clarify the nature of meaning creation in games? 2. Games as Systems Games are systems with specific logic. They are a form of media. A system is defined as “a set of things that affect one another within an environment to form a larger pattern that is different from any of the individual parts” (Salen & Zimmerman 2004, p. 50). As systems, games are open to several different ways of framing where each frame determines some aspects of a game. A game can be perceived as a logical system due to its internal inference systems. However, these systems also have experiential and cultural aspects (Salen & Zimmerman 2004). The experiential aspects are created in concurrence with the players’ interactions with the game while the cultural aspects are related to the context of the game creation and the situation where the game is played. Games are also procedural systems. Bogost (2007) states that: Procedural systems generate behaviors based on rule-based models; they are machines capable of producing many outcomes, each conforming to the same overall guidelines. Procedurality is the principal value of the computer, which creates meaning through the interaction of algorithms (p. 4).

Games are thus procedural systems founded on algorithms which change their structures. Accordingly, meanings created by games are also changed hence the concept of procedure is important. Wardrip-Fruin (2009) also argues that “in the world of digital media, and perhaps especially for digital fictions, we have as much to learn by examining the model that drives the figurative planetarium as by looking at a particular image of stars or even the animation of their movement” (p. 157). Thus, if only the audio-visual constituents of games are interpreted, their procedural nature, which actually distinguishes them from different types of media, will be overlooked. As Wardrip-Fruim (2009) points out, “trying to interpret a work of digital media by looking only at the output is like interpreting a model solar system by looking only at the planets” (p. 158). There is more to explicating the creation of meaning in games than the presentation level. However, this does not suggest that the suitable level for explicating games lies at the coding level. Code comes under the rubric of “software studies” which is useful in understanding digital objects (Manovich, 2002). However, instead, it generally suffices to consider the procedural level and the underlying mechanics of game creation and their usage (Wardrip-Fruin, 2009). It is evident so far that the argument pertains to digital games, but this does not preclude applying the analysis to non-digital games. The absence of “codes” running the game does not entail the absence of rules that regulate how to play the game which is the matter being

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investigated. Being “digital” does not make all games a distinctive analytical category (Aarseth, 1997). 3. The Interactive Nature of Games Several studies, such as Crookall et al. (1987), Aarseth (1997) and Salen and Zimmerman (2004), argue that games can be considered as interactive systems. This approach would perceive games as “cybernetic systems” (Wiener, 1965) which are self-regulating and interact with themselves as well as their surroundings (Salen & Zimmerman, 2004). Explicating the various meanings created by these systems entail taking into consideration the intervention of the player during the interaction with the game, known as “the interpreter’s input.” In this regard, Avedon and Sutton-Smith (1971) state that “there is overwhelming evidence in all this that the meaning of games is, in part, a function of the ideas of those who think about them” (p. 438). Creating meaning based on the opinions of the interpreter is by no means a controversial hermeneutic statement (Grondin, 1994). This phenomenon is common in all objects of interpretation. Hence, what is novel in this statement is not its claim per se, but rather its applicability to games as objects of interpretation. Thus, to understand games as interactive systems that create meaning one must consider their relation to the player/s or interpreter/s input. This necessitates an explication of interaction in relation to games, but this is not an easy task. As Aarseth (1997, p. 48) explains: The word interactive operates textually rather than analytically, as it connotes various vague ideas of computer screens, user freedom, and personalized media, while denoting nothing. Its ideological implication, however, is clear enough: that humans and machines are equal partners of communication, caused by nothing more than the machine’s ability to accept and respond to human input. Once a machine is interactive, the need for human-to-human interaction, sometimes even human action, is viewed radically diminished, or gone altogether, as in interactive pedagogy. To declare a system interactive is to endorse it with magic power.

Accordingly, the meaning of interactivity is not palpable, but rather an intricate question without an evident answer (Kiousis, 2002). There are various interconnected meanings related to interactivity, most of which are ideological. Understanding the essence of interactivity in relation to games requires a clear separation of analytical meanings from the ideological ones. 3.1 Types of interaction According to Jensen (1998), there are three varieties of interaction as defined in sociology, communications and informatics. Each of these highlights certain aspects of the concept. In sociology, Jenson (1998) argues that the concept of interaction is defined as taking place between two or more people in “symbolic interaction”. It is associated with certain situations that always necessitate physical proximity and communication. In communications, the concept of interaction is controversial. The cultural studies tradition suggests that interaction relates to the notion of interpretation. The relation between the text and its reader is considered an interaction (Iser, 1989; Jenson, 1998). Although the meaning of text is largely the outcome of a certain exchange between the text and the reader, to use the term “interaction” may not be the most appropriate choice. It is commonly referred to as interpretation. Numerous studies and theories of reader-response reveal that meanings do not solely reside on texts and objects and reading activities are not just a decoding process of extracting meanings from texts and reproducing them. Reading is perceived as an interaction and a dialogue between texts/objects and readers where the readers’ background knowledge plays an important role in the creation of meaning (Tierney & Pearson, 1994; Al-Mohammadi, 2014; Al-Mohammadi & Derbel, 2015). In this same line, when reading texts and images, readers are allowed some freedom of interpretation (Kress, 2004; McCloud, 1993). This interaction is labeled a “two-way process involving a reader and a text” (Rosenblatt, 1982, p. 268). In interpersonal communication, the meaning of interaction is close to that found in sociology, 41

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that is, it occurs in a symbolic context. This is most probably because the object of study resembles that being studied in sociology. Another understanding of interaction from a communication studies lens relates to the way media disseminate their messages and how media create an illusion of interaction. For instance, It has been noticed how the newly-elected U.S. president Donald Trump avoids mainstream media interrogation and uses twitter, where, as a medium, the interaction is somewhat asymmetrical. Jenson (1998) argues that the concept of interaction “in media and communication studies is often used to refer to the actions of an audience or recipients in relation to media content” (pp. 189-190). Obviously, it seems that interaction in media and communication studies is frequently seen within the context of its relation to media. In informatics, interaction is between people and machines, and known as “human-computer interaction” (HCI). This concept of interaction was introduced to informatics to depict how a user adapts to batch processing computers. In this way, interaction happens when people operate machines. In this sense, people communicating through computers cannot be interaction, but rather a “computer-mediated communication.” However, it seems that, in informatics, interaction in some way corresponds to the concept in sociology as related to communication. It still entails a means of control that departs from the sociological understanding of interaction, but is symbolic in a mechanical sense in terms of the actual transaction. Jensen (1998) makes a useful distinction between interaction and interactivity stating that “it would be expedient to retain the concept of ‘interaction’ in its original, strong sociological sense to refer to ‘actions of two or more individuals observed to be mutually independent’, and to use the concept of ‘interactivity’ to refer to media use and mediated communication” (p. 200). Thus, interaction is a social communication between two or more people in sociology, a relation between audience and media in media studies, and HCI in informatics. 3.2 Defining interactivity The present study of interactivity is situated within the cultural studies tradition of communications. However, perceiving interaction as interpretation seems to be insufficient when interpretation itself is the object of study. Hence, a different understanding of interactivity is necessary. In this context, Jensen (1998) states that “interactivity may be defined as: a measure of a media’s potential ability to let the user exert an influence on the content and/or form of the mediated communication” (p. 201). Jenson (1998) additionally subdivides interactivity to four sub-notions: “transmissional interactivity”, “consultational interactivity”, conversational interactivity” and “registrational interactivity”. The first two sub-concepts of interactivity are associated with making choices. Transmissional interactivity “lets the user choose from a continuous stream of information in a one way media system without a return channel” (p. 201). Consultational interactivity allows the user to choose “by request, from an existing selection of preproduced information in a two-way media system” (p. 201). Conversational interactivity “lets the user produce and input his/her own information in a two way media system” (p. 201). Registrational interactivity is “a measure of a media’s potential ability to register information from and thereby also adapt and/or respond to a given user’s needs and actions” (p. 201). An essential factor of Jensen’s definitions of interactivity is their connection to the medium. This definition seems to be close to the interaction studies in informatics. Consistent with this approach, Kiousis (2002) suggests two additional elements: Interactivity can be defined as the degree to which a communication technology can create a mediated environment in which participants can communicate (one-to-one, one-to-many, and many-to-many), both synchronously and asynchronously, and participate in reciprocal message exchanges (third-order dependency). With … human users, it additionally refers to their ability to perceive the experience as a simulation of interpersonal communication and increase their awareness of telepresence (p. 372).

This argument adds the necessity for an exchange of information found in communication. Third-order dependency translates as a rapport between exchanged messages, which is reference 42

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to earlier transmissions. This seems to fit well with interactivity as the definition overtly discusses the technology of communication. Moreover, the definition refers to the users’ ability to categorize the exchange as communication. For Kiousis (2002), “communication, in this context, can range from simple information transfer to sophisticated movements in video games or through the worldwide web, thereby encompassing linear and non-linear communication paths” (pp. 372-373). 4. Instant Interpretation The interpretation of games is affected by the fact that they are in regular procedural change and in continuous interaction with players. The time taken to interpret a game is of immense importance because interaction takes place while in play. The factor of temporality must be taken into consideration when interpreting games. The “real-time hermeneutics” being discussed here derives from Aarseth’s (2003) argument that “while the interpretation of a literary or filmatic work will require certain analytical skills, the game requires analysis practiced as performance, with direct feedback from the system. This is a dynamic, real-time hermeneutic that lacks a corresponding structure in film or literature” (p. 5). Except for experimental cinema and literature, which may be interactive, the audience does not participate in the performance (Aarseth, 1997). It is certain that the audience is part of the performance, but obviously not like a gamer who has active agency when playing a game. A work of literature or cinema may not reach its full potential if the audience succeeds in grasping “the essence” of the work (Weberman, 2000). Checking one’s understanding of a piece of literature or cinema by comparing it to prior works and other interpretations contextualizes its meaning. Contrary to this, a player makes interpretations while playing the game which influences his/her actions, and hence, his/her success or failure in the game, as set by its objectives. This does not suggest that a certain game has a single interpretation, but rather that a game supports some interpretations while opposing others. It is necessary to explicate the concept of temporality to unpack the concept of real-time interpretation. Aarseth (1997) suggests a simple way to analyze time in games. Transiency is one of Aarseth’s “traversal functions” for cyber texts (p. 63). He states that “if the mere passing the user’s time causes scriptons to appear, the text is transient; if not, it is intransient” (p. 63), where scriptons are “strings as they appear to readers”, as opposed to textons, “strings that exist in the text” (p. 62). This distinction is not the focus of the current study, but Aarseth’s perception of temporality is that games can be either “transient” or “intransient” is relevant. Applying Aarseth’s conception of transiency to games, it can be considered that in some games, time lapses with the player doing nothing and this latency affects the transient outcome of the game; while in intransient games there is no latency affect. For instance, players can take as much time as they need to ponder their next move during turn-based games without any risk. However, this is not the case with other types of games where a failure to respond instantly may result in the player being shot. Pointing to interactivity in relation to time, Kiousis (2002) states that “scholars have pointed out that interactive experiences do not always have to be ‘fast’ or in ‘real time’, as seen in the example of email” (p. 369). In this case, “real-time” is still perceived as similar to fast interaction. But, this does occur in all cases. Clarifying this concept, Kiousis contends that: The notion of real time is also problematic because it suggests that instantaneous feedback is required for an interactive experience. The shift in the literature to discuss ‘flexibility’ has helped to address such issues. Indeed, many forms of communication with new media, which most researchers would concur are interactive, have delays in response times (e.g. email may be returned after one week, yet is still considered interactive by most) (2002, p. 369).

There are various speeds of interactions that can still be considered occurring in “real-time.” “Real-time” is not usually quick, nor is it always instantaneous. Hence, the different speeds of “realtime” must be explored to achieve a thorough explication of the impact of temporality on game interpretation. Zagal and Mateas (2010) argue that temporality can be analyzed by utilizing “frames of temporality” for diverse aspects of a game. This analysis can be conducted by the notion of state 43

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change. Four temporal frames that can be employed to analyze time in video games. These are “real-world time, game world time, coordination time, and fictive time” (Zagal & Mateas, 2010). The things that take place around players while playing are referred to “real-world time.” “Game world time” is defined by the abstract play of actions of the game and the virtual game world. The coordination of players’ turn-taking and rounds during a game is the focus of “coordination time.” Finally, “fictive time” is shaped by narrative means, which can include narrative time and discourse time, or by employing socio-cultural labels. These four frames often happen simultaneously or successively. Zagal and Mateas (2010) offer an example of the co-existence of the four frames as follows: As a player interacts with the game world, she physically manipulates a controller (real-world control events) … to cause events in the game world. When, the player …. cause[s] game world events, we say that the game world is available. When there is no perceived delay between the control manipulation event (e.g. Button press) and the corresponding game world event (e.g. Character jump), her actions are immediate. In PAC-MAN, the game world is available because the player is always allowed to move Pac-Man, and he moves immediately because there is no delay between input and action (p. 853).

Clearly the frames interact with each other as well as with the player. Different frames permit multiple fusions of various time categories, which help in exploring the issue of temporality. Zagal and Mateas (2010) developed this framework to better understand the intricate concept of “realtime.” Juul (2004; 2005) perceive games as “state machines” where players initiate changes in the game and move it forward. The players’ actions and the changes of a game occur during “play time”, that is, the “time span taken to play a game” (Juul, 2005, p. 142) as opposed to “fictional time” which happens as the game progresses. The “projection of the play time on the event time” is how Juul perceives “real-time” (p. 143). Juul’s concepts of “play time” and “event time” can be compared with the concepts of “narrative time” and “story time.” The former refers to the time of narrating a story while the latter is the time within the story (Genette, 1987, p. 95). 5. Games as Objects of Interpretation Games differ from other hermeneutic objects in terms of the mode of interpretation. This difference lies in the special aspects of games as procedural systems which are interactive and temporally complex. These aspects can be further clarified by hermeneutics. Weberman (2000) differentiates between “relational” and “intrinsic properties” of games as procedural systems. He states that: Intrinsic properties are those properties that an object or event has ‘in virtue of the way that thing itself, and nothing else, is’, such as shape, size, chemical composition or having red hair. Extrinsic or relational properties are those properties of an object or event that depend wholly or partly on something other than that thing, such as being an uncle, living next door to a judge, being loved by Joe or having a red-haired brother (p. 54).

Games are not temporally stable, as most objects of interpretation are, because of their procedural aspect. The temporal transformation of games can be minor or major especially at the level of interaction. This variability distinguishes games from other hermeneutic objects. Accordingly, interpreting games is a complex task due to temporality. “Real-time” hermeneutics is more an amalgamation of interconnected concepts than a simple straightforward concept. Consistent with this position, Weberman (2000) states that “the object of understanding is indeterminate (or underdetermined); it is constituted in part by the horizon of the specific historically situated knower and changes according to what that horizon is” (p. 52). In this sense, explicating meaning creation in objects are partly determined by their historical contexts, that is, the “horizon.” As those contexts change, so do their meanings. Discussing examples of artworks, texts and historical events, and comparing them to games, Weberman (2000) argues:

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Consider, an artwork such as a Cubist painting by Picasso or Braque, a text such as the American Constitution, or a historical event such as the Russian Revolution. Our understanding of these ‘objects’ is quite different in virtue of the temporal distance that separates us from them. The importance of temporal distance here consists not in any alleged growth in impartiality, but in the way in which more recent events have brought out new aspects of or ‘retrodetermined’ the earlier phenomena (p. 53).

From this perspective, the meaning objects is “incomplete.” As the contexts of objects are not static, their meanings also change. Accordingly, the meanings of objects are incomplete and never entirely exhausted by interpreters. However, the interpretation can be enriched through temporal distance. As time passes and the context changes, interactions widen and new relations may enter the picture. This enrichment offers opportunities for new interpretations which take into consideration of the prior readings. As Gadamar (2004) points out, temporal distance creates a productive condition for new sources of understanding to continually emerge and reveal unsuspected elements of meaning (p. 298). Time can enrich interpretation through the emergence of reflexivity. This is a positive aspect as far as history is concerned; however, this is not the case when it comes to “real-time” game hermeneutics. This is due to the rarity of temporal distance during a game play. Interpreting games entails two different inquiries. First, what is the meaning of the game itself as an object of interpretation? This question is useful for a better understanding of games and it is relevant to a hermeneutic inquiry because the player develops a history of familiarity of the play until he/she gets to the next level. Second, what are the player’s interpretations throughout the activity of gaming? This inquiry cannot be investigated through temporal distance, but better explored through temporal frames as has previously been explained. 6. Conclusion As discussed, explicating meaning creation in games requires more than an examination of the presentation layer by a deeper analysis that considers procedural aspects, interactivity and temporality. This level of consideration necessitates a thorough understanding of the processes that create games and how they change as procedural systems. Additionally, due to the interactive nature of games, the role of player participation is significant. Gamers influence the operative mechanics of games and hence their meanings. Moreover, games, as objects of meaning, have a dynamic function that gives rise to issues of temporality. Though meaning creation in of games is never entirely complete, due to its temporal dynamic, temporal distance enables new interpretations as time progresses. What seems significant today may prove to be negligible in the future and vice versa. References Aarseth, E. (2003, May). Playing research: Methodological approaches to game analysis. Proceedings of the Digital Arts and Culture Conference (pp. 28-29). Aarseth, E. J. (1997). Cybertext: Perspectives on ergodic literature. Baltimore: John Hopkins University Press. Al-Mohammadi, S. & Derbel, E. (2013). The effects of embedding information technologies within ELT on EFL learners’ motivation and interest. International Journal of Applied Linguistics and English Literature, 3(1), 181-186. Al-Mohammadi, S. & Derbel, E. (2015). “To whom de we write? Audience in EFL composition classes”. In R. AlMahrooqi, V. S. Thakur, & A. Roscoe (Eds). Methodologies for effective writing instruction in EFL and ESL classrooms. (pp. 197-208). Hershey PA, USA: IGI Global. Al-Mohammadi, S. (2014). “Integrating reading and writing in ELT”. In R. Al-Mahrooqi & A. Roscoe (Eds), Focusing on EFL reading: theory and practice (pp. 260 – 274). Newcastle: Cambridge Scholars Publishing. Avedon, E. M., & Sutton-Smith, B. (1971). The study of games. New York: John Wiley & Sons. Bogost, I. (2007). Persuasive games: The expressive power of videogames. Cambridge: MIT Press. Crookall, D., Oxford, R. & Saunders, D. (1987). Towards a reconceptualization of simulation: From representation to reality. Simulation Games for Learning. 17(4), 141-171.

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Gadamer, H. G. (2004). Truth and method. USA: Bloomsbury Publishing. Genette, G. (1987). Narrative discourse: An essay in method. Ithaca: Cornell University Press. Grondin, J. (1994). Introduction to philosophical hermeneutics. New Haven: Yale University Press. Iser, W. (1980). Interaction between text and reader. In J. Corner & J. Hawthorn (Eds.), Communication studies. An introductory reader (pp. 1673-1682). London: Edward Arnold. Jensen, J. F. (1998). ‘Interactivity’ tracking a new concept in media and communication studies. Nordicom Review, 19, 185-204. Juul, J. (2004. Introduction to game time. In N. Wardrip-Fruin & P. Harrigan (Eds.), First Person: New media as story, performance, and game (pp. 137-149). Cambridge: MIT Press. Juul, J. (2005). Half-real: video games between real rules and fictional worlds. Cambridge: MIT Press. Kiousis, S. (2002). Interactivity: a concept explication. New Media & Society, 4(3), 355-383. Kress, G. (2003). Literacy in the new media age. London: Routledge. Kucer, S. B. (1987). The Cognitive Base of Reading and Writing. In J. Squire, The Dynamics of Language Learning (pp. 27-51). Urbana: National Conference. Manovich, L. (2002). The language of new media. Cambridge: MIT Press. McCloud, S. (1993). Understanding comics: The invisible art. New York, NY: HarperPerennial. McLuhan, M. (1964). Understanding media: The extensions of man. New York: MIT Press. Mhamdi, C. (2016). Transgressing media boundaries: News creation and dissemination in a globalized world. Mediterranean Journal of Social Sciences. 7(5), 272-277. Mhamdi, C. (2017). Framing “the Other” in Times of Conflicts: CNN’s Coverage of the 2003 Iraq War. Mediterranean Journal of Social Sciences. 8(2), 147-153. Rosenblatt, L. M. (1982). The literary transaction: Evocation and response. Theory into Practice, 21, 268-277. Salen, K., & Zimmerman, E. (2004). Rules of play: Game design fundamentals. Cambridge: MIT press. Tierney, R. J., & Pearson, P. D. (1994). Learning to Learn From Text: A Framework for Improving Classroom Practice . Language Arts , 569-580. Wardrip-Fruin, N. (2009). Expressive Processing: Digital fictions, computer games, and software studies. Cambridge: MIT press. Weberman, D. (2000). A new defense of Gadamer’s hermeneutics. Philosophy and Phenomenological Research, 16(1), 45-65. Wiener, N. (1965). Cybernetics: or, control and communication in the animal and the machine. Cambridge: MIT Press. Zagal, J.P., & Mateas, M. (2010). Time in videogames: A survey and analysis. Simulation & Gaming. 14(6), 844868.

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Reconstruction of Law of Joint Property Distribution due to Divorce to the Working Husband and Wife Based on the Value of Justice Eti Mul Erowati Student of Doctoral Law Study Program, Postgraduate Program, Sultan Agung Islamic University Semarang, Indonesia Abstract Article 97 of Compilation of Islamic Law stated that a divorced widow or widower gets half part of the joint property. The application of the article also cannot be separated from 31 and 34 of Law No. 1 of 1974 on Marriage. However, Article 97 of Compilation of Islamic Law will not be considered fair and could not explain or resolve a problem if there is a wife who not only becomes a housewife, but also a housekeeper that provides the needs for the family (work). The results showed that in certain cases the judge has made a breakthrough related to the distribution of joint property due to divorce n which the wife is working to help husband to meet domestic life. The Verdict of Religious High Court of Padang No.38/Pdt.G/2013/PTA.Pdg. Establishes 1/3 of joint property for the Plaintiff (husband) and 2/3 of the property for the Defendant (wife) with a basic consideration in acquiring joint property of the Plaintiff and Defendant during the marriage, the Defendant is more dominant in the contribution of joint property and actively works as civil servants. Factor that influences the verdict which does not achieve justice is “legal substance factor”, “legal structure factor”, and “culture of law factors". Reconstruction of value of joint property distribution due to divorce is done based on the contribution by taking into account the benefit and detriment. Keywords: reconstruction, joint property, divorce, justice

1. Introduction The discussion on joint property is still considered taboo by the public. Married couples would usually question the division of joint property after a verdict of divorce from a court or when the absence of harmony in a family occurs. In any litigation regarding divorce which influences the division of joint property, frequently occurs upheaval that complicates divorce proceedings between them because each one claims that certain property should belong to them. Joint property is property in a marriage generated by married couples together during the marriage. Joint property is the right of husband and wife, so that either they have children or no, it does not become a problem since children do not have the rights to joint property, but the right to inherit from their parents. Law No. 1 of 1974 on Marriage regulates joint property in Article 35 that if a marriage ends up, the joint property is governed by the law of each. Therefore, if a marriage couple is Muslims, they should use Islamic law. In the Compilation of Islamic Law, Article 88 states that, “In the event of a dispute between husband and wife about joint property, dispute settlement is filed to the Religious Court”. Article 97 further explains that, “Each of divorced widow or widower is entitled to half of the joint property as long as no other agreement is specified in the marriage agreement”. What if the joint property is obtained from the husband and wife who both work? The author demonstrated a Verdict of Religious Court of Bengkulu No. 0480/Pdt.G/2010/PA.Bn, in which the Plaintiff (46 years old) is a Muslim, graduate of a bachelor degree, teacher in Bengkulu City, and resident of Bengkulu against the Defendant (53 years old) who is a Muslim, graduate of D3, employee in Bengkulu, and resident of Bengkulu. It is known that the Plaintiff and Defendant are former spouse who had divorced in Religious Court of Bengkulu on July 19, 2010 with a Divorce Certificate Number: 0/93/AC/2010/PA.Bn. After the divorce, there is a joint property, which is land and 68 grams of pure gold, belongs to both Plaintiff and Defendant which had not been assigned. Based on the results of the trial chamber, the judges made decision under Article 37 of Law No. 1 of 1974 stating that “When a marriage ends up because of divorce, the joint property should 47

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be governed by the law of each”. Since the Plaintiff and Defendant are Muslims, on the basis of Islamic Personality the Panel of Judges resolved the division of joint property based on the Compilation of Islamic Law. By considering Article 97 of Compilation of Islamic law, there is a provision that each divorced widow and widower is entitled to one-half part of the joint property as long as no other thing is specified in the marriage agreement. From the results of the examination at the trial, none of the evidence can prove their marriage agreement concerning joint property. In accordance with the identity of the Plaintiffs and Defendants in the lawsuit of the Plaintiff, both of them are working as a civil servant who must equally have a job, from which the income was obtained and became their joint property. Therefore, since both are working, the panel of Judges established the division of joint property in accordance with the provisions of Article 97 of Compilation of Islamic Law, i.e. each gets half part of the joint property. 2. Method This study is a normative legal research, conducted by reference to legal norms contained in the legislation and refers to court decisions. In addition, this study is descriptive analytics reveals the legislation relating with legal theories as research objects (Ali, 2009). The approaches in the study are implemented a statute approach, conceptual approach, and case approach. 3. Discussion 3.1 Weaknesses of Joint Property Distribution due to Divorce to the Working Husband Wife Unjust verdict issued by the Court can be caused by several factors, such as: a. Legal Substance Factor, that is the judge in deciding a case he was dealing with did not pay attention to the substance of the case and did not examine and understand the meaning behind the words in the article of legislation to decide what law should be applied to the case. The judge decided the verdict merely based on articles in the law. In fact, there are still numerous verdict of the judges based on Article 97 of Compilation of Islamic Law, whereas Article 97 is considered unfair if the husband and wife both work or the wife even has greater contribution than the husband, as if the judge merely becomes the funnel of legislation, b. Legal Structure/Institution Factor, that is the judge in deciding a case which was being handled was affected by one of the litigants that verdict of the Court did not reflect a justice. The judge decided the verdict on the division of joint property due to divorce under Article 97 of Compilation of Islamic Law that each husband and wife got half of the joint property as requested by the plaintiff based on his complaint letter. c. Culture of Law Factor, that is the judge in deciding a case that was being handled did not follow and did not understand the legal values and sense of justice upheld by society to be applied to the case that was being handled. On the contrary, the judge solely applied the article of laws. 3.2 Reconstruction of Law of Joint Property Distribution due to Divorce between the Working Husband and Based on Justice Value Principally, the Law No. 1 of 1974 on Marriage and Compilation of Islamic Law recognizes and applies the concept of joint property, that is all property acquired during the marriage automatically becomes joint property. The statement also strictly limits joint property by not including property brought by each husband and wife and obtained specifically, for example in the form of inheritance or gift. Due to divorce, togetherness or joint property of a marriage will not occur when the time for separation and division comes. Legislation governing joint property due to divorce is contained in Article 37 of Act No. 1 of 1974 which determines: “When a marriage ends up because of divorce, the joint property should be governed by the law of each”. What is meant by “the law of each” is 48

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religious law, customary law, and other laws. By reason of advantages and disadvantages in Article 37 of Law No. 1 of 1974 About Marriage as the foundation or basis in the division of joint property due to divorce, to find the legal basis which is based on values of justice, Article 37 of Law No. 1 of 1974 on Marriage needs to be reconstructed or refurbished. Updates in Article 37 of Law No. 1 of 1974 should become legislation which has the following conditions: a. The principle of fairness in the division of joint property due to divorce is determined by the amount of contribution and benefit. b. The Law becomes a legal umbrella to the division of joint property due to divorce. Besides Article 37 of Law No. 1 of 1974, Article 97 of KHI also becomes he law governing the division of joint property due to divorce. The advantage of Article 97 is it regulates the distribution of joint property due to divorce, that each of them gets half of the property. However, the disadvantage of Article 97 is it does not regulate the legislation in which the wife is more dominant in acquiring joint property or the wife provides the needs for the family, in addition to her obligations as housewife. Therefore, Article 97 of Compilation of Islamic Law still needs to be reformed. Updates in Article 97 of Compilation of Islamic Law at least include these three conditions: a. The division of joint property in case the husband makes a living while the wife becomes a housewife; b. The division of joint property in case the wife makes a living while the husband is unemployed; and c. The division of joint property in case the wife is more dominant in meeting the needs of families. Often the wife undergoes disadvantages and injustice in the division of joint property. This injustice issue is related to the standardization of the role of husband and wife in the Law No. 1 of 1974 which states that the husband is the head of the household and the wife is a housewife. Marriage Law has also established wife as the manager of households dealing with domestic affairs. As the results, many wives do not have a chance to improve their skill and work to earn income. In this case, the wife is suffered from economic dependence on husband. What if the divorce occurs someday? The wife will face difficulty to become economically independent. Expenses of wife are also more severe if she already has children that become her responsibility. Another injustice that often happens is double burden aggravating the wife, that is she works as a breadwinner (even as the main breadwinner) and is burdened with household chores on her return home. Most husbands who think that household chores are the affairs solely belong to wife are generally reluctant to do them even though the wife is the breadwinner. Therefore, it is unfair to women if the rules of the division of joint property are limited to half of joint property because there are wives whose contribution is greater than the husband. Conditions of the division of joint property should be set proportionally based on contributions and roles of each party. Otherwise, for example, in the division of joint property there is a dispute between husband and wife, the division of joint property can be solved through the creation of joint agreement between husband and wife. However it is important to remember that in making their agreement, they have to be in a state of being free from any pressure, intimidation, and threats. The division of joint property due to divorce based on the amount of the contribution and the respective roles of husband and wife is the embodiment of the fifth precept of Pancasila, social justice for all Indonesian people, explained in MPR Decree No. 1 of 2003 on 45 points of Pancasila on precepts 5, that is developing fair attitude towards others and maintaining a balance between rights and obligations as well as the attitude of respect for the rights of others. The decision of the judge in the distribution of joint property is not based on Article 97 of Compilation of Islamic Law. The division of joint property, in accordance with Article 97 of Compilation of Islamic Law, is not separated from Article 31 and 34 of Law No. 1 of 1974, jo. Article 80, Paragraph 2 of Compilation of Islamic Law, in which it is explained that husband has an obligation to protect the wife and provide every necessity of home life based on his ability. Hence, the division of joint property based on Article 97 of Compilation of Islamic law would not be considered fair if the husband and wife both work even wife's income is greater than the husband's income and the wife is a housewife. Therefore, Article 97 of Compilation of Islamic Law cannot 49

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explain and even cannot solve the problem. As the result, the judges are required to perform discovery of the Law to reconstruct the division of joint property due to divorce of a married couple who both work based on values of justice using casuistry approach. A perfect rule or regulation is almost impossible to exist, hence the judge/court may not refuse to examine, hear, and decide a case filed with no or less clear legal pretext. In such condition, the judge shall explore and understand the legal values and sense of justice in the society. As specified in Article 229 of Compilation of Islamic Law that: “The judges in settling cases submitted to them shall take into account seriously the legal values that live in the community, so that the decision is appropriate with a sense of justice”. Therefore it is necessary to conduct a discovery of Law. The researcher argued that Article 97 in the Compilation of Islamic Law is not a mandatory provision in Islam because no texts in the Quran and Hadith explaining that the division should be half/50 percent of the joint property for each husband and wife. Hence, we can understand why in code of Muslim personnel laws of the Philippines, there is no rule regarding joint property in marriage. Similarly in Malaysia Court Decisions, the issue of joint property is still a problem which has not been solved. It can be concluded that Article 97 of the Compilation of Islamic Law is not mandatory based on Islamic rules, but permissible/allowed. Then the Article is adopted and set into a binding clause that becomes the sole choice of many options available regarding the division of joint property. However, it is not the sole choice which does not allow another way of distributing the joint property. By doing reconcilement, the division of joint property can be done on the basis of agreement and willingness of the divorced couple. Table 1. Reconstruction of Joint Property Distribution Based on the Value of Justice No Item 1. Basis of Reconstruction

Commentary Blending local wisdom in the form of precept 5 of Pancasila with international wisdom about the division of joint property in different countries 2. Paradigm Constructivism by strengthening the division of joint property based on values of justice 3. A. Finding Dissertation on 1. Factors influencing the division of joint property due to divorce which are not based Reconstruction of the division on justice: value of joint property as a a. Legal Substance Factor, that is the judge in deciding a case he was dealing with result of divorce. did not pay attention to the substance of the case and did not examine and understand the meaning behind the words in the article of legislation to decide what law should be applied to the case. The judge decided the verdict merely based on articles in the law. In fact, there are still numerous verdict of the judges based on Article 97 of Compilation of Islamic Law, whereas Article 97 is considered unfair if the husband and wife both work or the wife even has greater contribution than the husband, as if the judge merely becomes the funnel of legislation, b. Legal Structure/Institution Factor, that is the judge in deciding a case which was being handled was affected by one of the litigants that verdict of the Court did not reflect a justice. The judge decided the verdict on the division of joint property due to divorce under Article 97 of Compilation of Islamic Law that each husband and wife got half of the joint property as requested by the plaintiff based on his complaint letter. c. Culture of Law Factor, that is the judge in deciding a case that was being handled did not follow and did not understand the legal values and sense of justice upheld by society to be applied to the case that was being handled. On the contrary, the judge solely applied the article of laws. 3. Reconstruction of the division value of joint property as a result of divorce based on the values of justice is as follows; 3.1. Reconstruction of the division value of joint property as a result of divorce is done in a casuistic way by considering the contribution and taking into account the advantages and disadvantages. 4. B.Reconstruction of Law of Reconstruction of law is made specifically to Article 37 of Law No. 1 of 1974. Marriage of the Republic of Article 37 Indonesia and the Compilation When a marriage ends up because of divorce, the joint property should be governed of Islamic Law in Indonesia. by the law of each. reconstructed to be Article 37 (1) When a marriage ends up because of divorce, the joint property should be governed by the law of each

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(2) a. Each of divorced widow or widower is entitled to half of the joint property as long as no other agreement specified in the marriage agreement b. The provisions of Paragraph (2) a can not be carried out if wife’s obligation is more dominant in meeting family needs. c. If the wife gives greater contribution to meet family needs, the divorced widow is entitled to greater part of the joint property than the divorced widower. d. The division of joint property due to divorce should be based on the objectives for the benefit In addition to reconstructing the Article 37 of Law No. 1 of 1974, it also needs to reconstruct Article 97 of Compilation of Islamic Law, Article 97 Each of divorced widow or widower is entitled to half of the joint property as long as no other agreement specified in the marriage agreement. Reconstructed to be: Article 97 1. When a marriage ends up because of divorce, the joint property should be governed by the law of each 2. a. Each of divorced widow or widower is entitled to half of the joint property as long as no other agreement specified in the marriage agreement. b. The provisions of Paragraph (2) a can not be carried out if wife’s obligation is more dominant in meeting family needs. c. If the wife gives greater contribution to meet family needs, the divorced widow is entitled to greater part of the joint property than the divorced widower. d. The division of joint property due to divorce should be based on the objectives for the benefit The realization of the division of joint property due to divorce is based on the value of justice.

4. Conclusion and Recommendations 4.1 Conclusion The discussion on the distribution of joint property due to divorce to working husband and wife can be concluded that: a. Factors that influence the division of joint property due to divorce which is not based on justice are legal substance factor, legal structure/institution factor, and culture of law factor. b. Reconstructions of the division of joint property due to divorce based on the value of justice are as follows: 1) Reconstruction of the division value of joint property as a result of divorce is done in a casuistic way by considering the contribution and taking into account the advantages and disadvantages. 2) Reconstruction of law is done, particularly in Article 37 of Law No. 1 of 1974. 3) It is highly recommended to revise article 37 of Law No. 1 of 1974 and Article 97 of Compilation of Islamic Law. 4.2 Recommendations Suggestions for further improvement of the Law, especially the laws on joint property distribution, in Indonesia are: a. When married couples divorce and disputes occurs in the division of joint property, it should be solved earlier with the family to reach an agreement. b. Article 37 of Law No. 1 of 1974 on Marriage and Article 97 Compilation of Islamic Law should be revised. References Basyir, A.A. (2000). Hukum Perkawinan Islam. Yogyakarta: UII Press. Damanhuri, H.R. (2012). Segi-Segi Hukum Perjanjian Perkawinan Harta Bersama. Bandung: Mandar Maju. Darmodiharjo, D. and Shidarta. (1995). Pokok-Pokok Filsafat Hukum; Apa dan Bagaimana Filsafat Hukum Indonesia, Jakarta: PT Gramedia Pustaka Utama.

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Friedman, L.M. (2013). The Legal System A Social Science Perspective. Bandung: Nusa Media. Hadikusuma, H. (2007). Hukum Perkawinan Indonesia, Menurut Perundangan, Hukum Adat, Hukum Agama. Bandung: Mandar Maju. Hazairin. (1976). Tinjauan Mengeni Undang Perkawinan No. 1 Tahun 1974. Jakarta: Tintamas. Manan, A. (2006). Reformasi Hukum Islam Indonesia. Jakarta: Raja Grafindo Persada. Ministry of Education and Culture Indonesia. (1994). Kamus Besar Bahasa Indonesia. The second edition, third Prints. Jakarta: Balai Pustaka. Muhammad, A.K. (2004). Hukum dan Penelitian Hukum. Bandung: Citra Aditya Bakti. Prawirohamidjojo, S. (1998). Pluralisme dalam Perundang-undangan Perkawinan di Indonesia. Surabaya: Arilangga University Press. Rahardjo, S. (2006). Teori Hukum Strategi Tertib Manusia Lintas Ruang dan Generasi. Yogyakarta: Genta. Rasyidi, L. (1991). Hukum Perkawinan Indonesia. Bandung: Sinar Baru. Saleh, W. (1987). Hukum Perkawinan di Indonesia. Jakarta: Ghalia Indonesia Satrio, J. (1989). Azas-azas Hukum Perdata. Purwokerto: Hersa. Soemitro, R.H. (1982). Metodologi Penelitian Hukum Dan Jurimrtri. Molds to I. Jakarta: Ghalia Indonesia., Soemiyati. (1982). Hukum Perkawinan Islam dan Undang-undang Perkawinan (Undang-Undang No. 1Tahun 1974 tentang Perkawinan). Yogyakarta: Liberty. Soekanto, S. (1986). Pengantar Penelitian Hukum. Jakarta: UI Press. Soekanto, S. and Mamudji, S. (2003). Penelitian Hukum Normatif, Suatu Tinjauan Singkat. Jakarta: PT. Raja Grafindo Persada. Suharso and Retnoningsih, A. (2011). Kamus Besar Bahasa Indonesia. Semarang: Widya Karya. Susanto, D. (2011). Kupas Tuntas Harta Gono Gini. Yogyakarta: Pustaka Yustisia. Susanto, H. (2008). Pembagian Harta Gono-Gino Saat Terjadi Perceraian, Pentingnya Perjanjian Perkawinan Untuk Mengantisipasi Masalah Harta Gono-Gini. Jakarta Selatan: Visimedia.

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An Obligation to Represent and Disclose Material Facts as a Good Faith in Life Insurance Contract Mokhamad Khoirul Huda Faculty of Law, Hang Tuah University, Surabaya, Indonesia Abstract This study aims to analyze an obligation of explaining and revealing material facts and identify any kinds of violation of good faith in life insurance contract. It uses several approaches including statute approach, comparative approach, and conceptual approach. The result defines material facts as any kinds of facts the insurer needs in order to make decision whether accepting or objecting the possible risks assigned. The insurer needs to accurately and completely know the insured’s personal data and medical records, including disease suffered, smoking habits, and even an extreme exercise habit such as paragliding. Kinds of violation probably done by the insured can be in the form of (1) misrepresentation, which includes giving incorrect statement but not intentionally conducted (i.e., innocent) and providing incorrect explanation intentionally (i.e., fraudulent) due to personal benefit; (2) non-disclosure, which includes neither revealing the facts nor telling any fundamental information other parties need to know, not due to deliberateness but rather probably due to ignorance or innocence, and intentionally hiding particular facts in order to get personal benefits (concealment). Keywords: The insured, The insurer, life insurance, explaining material facts, revealing material facts

1. Introduction Insurance or assurance is also known as verzekering or assurantie in Dutch term and as at-ta’min in Arabic (Dahlan,1996,p.138). E. R. Hardy Ivamy (1979, p.1) defined insurance contract as “a contract of insurance in the widest sense of term may be defined as a contract whereby one person, called the “Insurer”, undertatakes, in return for the agreed consideration, called the “premium,” to pay to another person, called the ”Assured,” a sum money, or its equivalent, on the happening of a specified event.” Furthermore, Robert Merkin (2007, p.37) termed insurance as “a rare species of contract where both parties, the insured and the insurer, are under a mutual duty of utmost good faith” Article 1 subsection 1 Law No. 40/ 2014 on Insurance defines insurance as a contract of two parties, including insurance company and policy holder, as a base in accepting premium for the insurance company as reward to: provide compensation for the insured or the policy holder due to detriment, damages, emerging cost, loss, or any responsibility that the insured/the policy holder may possibly be assigned for toward the third party due to uncertainty; or providing claim due to the insured’s death or based on the insured’s life with benefit which amount has been predetermined and/or based on the fund management. Particularly for the definition of life insurance contract mentioned in article 1 Ordonnantie Op Het Levensverzekeringbedrijf S.1941-101. Pasal 1 tersebut mendefinisikan perjanjian asuransi jiwa sebagai berikutb: “overeenkomstem van levensverzekering de overeenkomsten tot het doon van geldelijke uitkeringen, tegen genot van premie en in verband met het leven of den dood van den menschs. Overeenkomsten van herverzekering daaronder begrepen, met dien verstande, dat overeenkomsten van ongevallenverzoring niet als overeenkomsten van levensverzekering worden berschouwd.” A good faith in life insurance contracts requires the insured to clearly and entirely represent and disclose any material facts dealing with the object insured (Merkin, 2007, p.37). The insured must provide any information the insurer needs on insured object, and thus, the insurer may see the weight of risk they possibly take over. The insurer uses a reason that the insured does not hold a good faith in explaining and 53

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revealing the material facts dealing with the condition of the insured object by revoking the insurance (Huda,2016). For instance, when the insured fills the form of life insurance contract (SPAJ) and health certificate (SKK) in order to deal with a life insurance contract, a common question about whether or not the insured has smoked in last two years may usually be inserted on SKK. If, in fact, the insured is a smoker or has ever smoked in last two years, he/she should say “YES”. In contrast, if the insured thinks that it does not really matter and feels good with his/her health or he/she just feels afraid that the premium may possibly increase, and thus he/she say “NO” on SKK, and when he/she has to make a claim of his/he insurance due to hospitalization, it may raise a problem for the insured. When claiming is conducted, the insurer may open the insured’ documents; which one of those is SPAJ containing SKK. Unfortunately, the medical records show that the insured has ever been hospitalized due to heart disease caused by his/her smoking habit. In this case, the insurer may firmly assert that the claim is objected. Therefore, SPAJ must be filled well, honestly, and correctly. Hence, an obligation to represent and disclose any material facts dealing with the insured personal data and medical records as a kind of good faith in life insurance contract is discussed here. 2. Research Methodology Legal research (rechtsonderzoek) is a study to seek for resolutions of legal issues by providing prescription on studied issues (Marzuki 2005, p.35). Several approaches including statute approach, comparative approach, and conceptual approach (Ibrahim, 2008, p.310) are used here. The legal data derives from primary and secondary legal data. The data is analyzed in qualitative manner according to the problem. It is a descriptive analysis consisting of displaying, analyzing, estimating, interpreting, and evaluating data. A theoretical analysis is then conducted on those legal data in order to find, see, and describe the obligation of explaining and revealing any material facts needed as a kind of good faith in a life insurance contract. 3. Results and Discussion 3.1 The Provision of Good Faith in Life Insurance Contract Article 251 Weboek van Kophandel sets an obligation to have a good faith known as “uberrima fides” or “uberrima fidae”(Khairandy, 2004,p.13). Uberrima fides or uberrima fidei, derived from Latin, are defined as:“a phrase used to express the perfect good faith, concealing nothing, with which a contract must be made; for example in the case of insurance, the insured must observe the most perfect good faith towards the insurer” (Robinson et.al, 1998,p. 11). Following Uli Foerstl, the word fides is derived from “the name of the Roman goddess fides, the deification of good faith and honesty, the oath, and that one must keep one's word.” the essence of bona fides is fides. Fides is developed as procedural standards of contract, known as exceptio doli (Foerstl, 2005, p. ii). Similarly, article 17 Marine Insurance Act 1906 mentions: “a contract of marine insurance is a contract based upon the utmost good faith, and, if the utmost good faith be not observed by either party, the contract may be avoided by the other party. Lord Mansfield asserted how important the principle of utmost good faith is in an insurance contract in Britain as follows. “Insurance is a contract upon speculation. The special facts, upon which the contingent chance is to be computed, lie most commonly in the knowledge of the insured only; the under-writer trusts to his representation, and proceeds upon confidence that he does not keep back any circumstances in his knowledge, to mislead the under-writer into a belief that the circumstances does not exist, and to induce him to estimate the risque as if it did not exist. The keeping back such circumstance is a fraud, and therefore the policy is void… The governing principle is applicable to all contracts and dealings. Good faith forbids either party by concealing what he privately knows, to draw the other into a bargain, from his ignorance of that fact and his believing the contrary …”(Feng, 2008).

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Susan Hodges argued, “the principle applies to all policies whatever the risk or the subjectmatter insured” (Hodge, 2004, p.83). Lord Jauncey, House of Lord dalam kasus Banque Financiere v. Skandia (UK) Insurance Co. Ltd also suggested that an obligation to do “utmost good faith” and reveal any material facts were equally applied for the both parties, the insured and the insurer. He argued that an obligation of having a good faith is assigned to both the insured and the insurer as follows. “The duty of disclosure arises because the facts relevant to the estimation of the risk are most likely to be within the knowledge of the insured and the insurer therefore has to rely upon him to disclose matters material to that risk. The duty extends to the insurer as well as to the insured : Carter v.Boehm. The duty is, however, limited to facts which are material to the risk insured, that is to say facts which would influence a prudent insurer in deciding whether to accept the risk and, if so, upon what terms and a prudent insured in entering into the contract the terms proposed by the insurer. Thus any facts which would increase the risk should be disclosed by the insured and any facts known to the insurer but not the insured, which would reduce the risk, should be disclosed by the insurer, There is, in general, no obligation to disclose supervening facts which come to the knowledge of either party after conclusion of the contract… Although there have been no reported cases involving the failure or an insurer to disclose material facts to an insured the example given by Lord Mansfield in Carter v.Boehm is of an insure who insured a ship for a voyage knowing that she had already arriver.” (Robinson et.al, 1998, p. 11).

This was used as a base for Lord Mansfield (1766) to make a judgment for Carter v. Boehm case, that an insurance contract is based on utmost good faith. The legal position of Carter v Boehm case (1766.) was as follows. “Background to Carter v Boehm: Carter was the Governor of Fort Marlborough, which was built by the British East India Company in Sumatra, Indonesia. Carter took out an insurance policy with Mr Boehm against the fort being taken by a foreign enemy. A witness, Captain Tryon, testified that Carter knew that the fort had been built to resist attacks from natives, but not European enemies, and the French were likely to attack. The French did attack, and Boehm refused to fulfill the insurance claim. Carter sued, but failed to have the claim paid.” (Manning,2010,p.5; Lowry; 2009).

The most obvious manifestation on an obligation of having a good faith is an obligation to represent and disclose any material facts. (representation and disclosure of material facts).The plausible reason of such disclosure can be found in Lord Mansfield CJ’s statement in Carter v Boehm case. Basically, the insured commonly know any relevant information dealing with insured risks, and thus, it is used as a consideration for the insurer to take over the risk. In the context of life insurance contract, the insured is considered knowing more about the object possibly insured, including the medical record. Thus, he/she must entirely present and disclose any material facts related to the insured object accurately, whether it is asked or not, such as particular illness he/she has ever suffered from, smoking habits, and even particular extreme exercise habit like rock climbing, paragliding, and diving. All the material facts is appraised by the insurer, so that it may impact on the insurer’s decision whether accepting or objecting any possible risk he may take over. Thus, it is a must for the insured to meet underwriting standart (Chumaida, 2013, p.144) and a request for closure will be accepted with a standard premium, however, if the prospective insured may not comply with the underwriting standart, the underwriting may object the contract, or accept it but with higher premium. 3.2 The Meaning of Material Facts in Life Insurance Contract Basically, before making a deal in a life insurance contract, the insured is required to represent (duty of representation) and disclose (duty of disclosure) any material facts related to the insured object. The requirement to represent and disclose any material facts is set under the article 251 Wetboek van Kophandel that “Alle verkeerde of onwaarachtige opgave, of alle verwijging van aan

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den verzekerde bekende omstandigheden, hoezeer te goeder trouw aan diens ziijde hebbende plaats gehad, welke van dien aard zijn, dat de overeekomst niet, of niet onder dezelfde voorwaarden, zoude zijn gesloten, indien de verzekeraar van den waren staat der zaak had kennis gredragen, maakt de verzekering nietig.” Material facts is any facts which may influence the insurer’s consideration whether or not the insurer closes the insurance, or closes the insurance over the insured object but with particular conditions or extraordinary premium (Purba, 1995, p.48.). Material facts, in The Lectric Law Lirary’s Lexication, is defined as: “a fact that would be important to a reasonable person deciding whether to engage or not to engage in a particular transaction; an important fact as distinguished from un important or trivial detail. The Word material means that the subject matter of which the statement (or concealment) related to a factor circumstance which would be important to the decision to be made a distinguished from insignificant, trivial or unimportant detail. A material fact is one which might affect the outcome of the case under government law.” Fakta material dalam Cila sebagai: “Every circumstance or information, which would influence the judgement of a prudent insurer in assessing the risk or those circumstances which influence the insurer decision to accept or refuse the risk or which effect the fixing of the premium or the terms and conditions of the contract must be disclosed.” Similarly, it is set under the article 7.17.928.1 Niewe Burgelijke wet Boek Netherland that requires the insured to represent all facts of which he/she is or ought to be aware and on which, as he knows or ought to understand, the insurer makes decision. Article 7.17.1.928 subsection (4) Niewe Burglerlijke Wet Boek mentioned: “The disclosure obligation does not extend to facts of which the insurer is already or ought to be aware, or to facts which would not have resulted in a less favourable decision for the policyholder. However, a policyholder or a third person referred to in paragraph 2 or paragraph 3, who has given an incorrect or incomplete answer to a specific question on the matter may not claim that the insurer was already or ought to have been aware of specific facts. The disclosure obligation shall also not extend to facts for which no medical examination may be performed and on which no questions may be raised pursuant to Articles 4 to 6, inclusive, of the Wet op de medische keuringen (Medical Examinations Act) in the instances mentioned therein.”

Article 7.17.1.928 subsection (6) NBW also mentions about questionnaires (the certificate of Life Insurance Contract [SPAJ] and Medical Records [SKK]) the insured makes as follows. “When the insurance is concluded on the basis of a questionnaire drafted by the insurer, the insurer may not rely on the fact that questions were not answered or that facts in respect of which no question was raised were not disclosed or that the answer to a question couched in general terms was incomplete, unless there was intent to mislead the insurer.”

However, Marine Insurance Act 1906 defined material facts as: (1)... every material circumstance which is known to the assured, and the assured is deemed to know every circumstance which, in the ordinary course of business, ought to be known by him. If the assured fails to make such disclosure, the insurer may avoid the contract. (2)Every circumstance is material which would influence the judgment of a prudent insurer in fixing the premium, or determining whether he will take the risk. In providing material facts, the insured must have insight into the insured object. Following Turner, it is classified into five category, including: a). Knowledge of facts of public notoriety; b). Facts the party should have knowledge about in the course of his business; c). Facts subject to actual knowledge by an agent; d). Facts being a natural extension of facts of actual knowledge); and e). Presumed knowledge by law (Gjelsten, 2007). Determining whether a fact in life insurance is material or immaterial is difficult to do. However, what material facts point to includes: a). Facts that show higher risks in life insurance contract such as risky job (e.g., nurse or midwife susceptible to illness derived from patients); b). External factors which make the risk higher than it is supposed to be, such as: extreme hobbies {e.g., paragliding, diving, etc.); c). Facts making the loss higher than it is expected to be (e.g., smoker, alcoholic); d). 56

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The track of life insurance (e.g., details of compensation and previous claims on which the previous insurance company has ever objected the insured object or any other specific condition the current insurance company takes over); and e) other life insurance contracts the insured may have (Chai, 1993, Bahrun, 1988: 16). In regard to the kinds of material facts within life insurance contracts, they are classified into two categories, including physical hazard and moral hazard. Physical hazard points to all physical factors of the insured such as ages, residence, daily habits, and hobbies he/she has. Moral hazard relates to the insured’s character and moral traits. It is like a claim experience or dishonesty which may create a claim for a policy or the insured has ever been legally charged. In addition, details of material facts in life insurance involve: a). Data from prospective insurers that consists of complete name, place of birth, age, gender, religion, education, occupation, occupation field, and position or grade, instance and tax ID number; b). Data of the insured’s medical records and hobbies, including: smoking, weight of birth (in particular to children), symptoms ever examined/checked up/suffered from/diagnosed/cured from/suggested or hospitalized/undergone surgery/suggested to have medical advices/had ever had medical advices or reconciled to the specialist for particular disorder related to certain illness like myopia, ears, hypertension, diabetes, tumor/neoplasm, allergy, indigestion and other particular illness; c). Data of the insured if he/she has ever been examined or suggested to do: a check-up for heart/blood/ urine/roentgen/USG/CT-Scan/Biopsy/supporting medical check-up or other diagnostic attempts (anything, when, why, and the result of the examination); d). Data of the insured’s family members (whether alive or died) that have ever suffered from coroner heart/stroke/diabetes mellitus/cancer/ and any other diseases; e). Data of the prospective insured in which he/she has ever used drugs or other addictive substances; f) Data of the insured’s hobbies or suddenly doing a high-risk activity or even still active in high-risk job such as diving, rock climbing, paragliding, race, mining, sailing, flight, and marshal. A requirement to represent and disclose material facts is applied: 1). since a negotiation of a life insurance contract is conducted up to dealing with the contract, on which the both parties deal with the contract; 2) when the contract is extended; and 3) when any related changes are determined on the life insurance contract (Danarti, 2016). Cris Parsons, David Green and Mike Mead argued that the period of time to provide fundamental material facts are varied, depending on particular conditions such as: a) Common Law, beginning from the negotiation of a contract until a deal is created by the both parties; b) Contractual duty, requiring to conceal nothing about any crucial facts as long as the contract is applied and providing rights for the insurer to object any changes possibly happen; c) Position at renewal, requiring to disclose all crucial facts depending on the kinds of contract. This includes: First, long-term business, in terms of life insurance and health insurance, the insurer is required to accept the premium of contract extension if the insured is willing to extend the insurance contract and he/she does not have to disclose any material facts on that extension. Second, other business, for other kinds of insurance, it needs the insurer’s acceptance for extending the contract by redisclosing all important facts. Third, alteration to the contract, when it comes to changes on life insurance contract that involves the increasing value of insurance or the change dealing with the description of the insured object, an obligation to disclose all important facts is required. This provision is applied to the long-term business and other business as well (Wardana,2009,p.35). 3.3 Violation of Obligation to Represent and Disclose Material Facts in Life Insurance Contract An Obligation to represent and disclose material facts is applied since negotiating up to dealing the contract. The Supreme Court of Canada, in a case of Canadian Indemnity Co. v. Canadian JohnsManville Co. showed how crucial the insurer’s insight is, as follows. “Where it was held that an insurer could not use his own lack of due diligence as a basis for avoiding a policy. The Court held that if an insurer does not have the requisite degree of knowledge prior to considering a particular risk, then it must acquire that knowledge by means of inquiry or investigation.”

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This is asserted by the Supreme Court in Co-operator General Insurance Co v. Porteous that mentioned, “The duty to exercise the utmost good faith not only exists at the time when the contract is made but throughout the dealings between the parties both before and after the loss.” Furthermore, the law of contract in Britain defines the term ‘representation’ as “a statement of fact made by one person to another which influences the other in making a contract with the representer, but which is not necessarily a term of that contract (Wincup, 2001, p.277; Wise, 2009). If such statement is wrong, it is considered as a misinterpretation. Using that definition, three conditions are identified, as follow:1) a statement of facts; 2) made by one person to another; and 3) influencing another party in making a contract. Moreover, kinds of violation on contract are classified into two category, as follows. a. Not providing any representation (misinterpretation) that involves: 1) Providing incorrect statement or representation but not due to a deliberateness (innocent) It may happen when the insured does not disclose material facts on the insured object prior to the acceptance of his/her insurance request (SPAJ). Material facts is important information that determine whether an insurance request is objected or accepted but with particular condition and different premium (Kronman, 1978). Not all information is considered material. However, it is not easy to see whether or not particular information is material. Thus, the insured is required to disclose all information dealing with the insured object he/she is or supposed to be aware of. Nevertheless, violation may happen due to several reasons, such as: disclosing incomplete or wrong information; concealing information, deliberately providing incorrect information (Yeasmeen, 2015; Kirby, 2011 ). Andrian Chandler dan Ian Brown (2013) classified misinterpretation into two categories: innocent misinterpretation and negligence misinterpretation. However, Ewan McEndrick (2013) classified misinterpretation into three categories: a)Fraudulent misrepresentation, b) Negligent misrepresentation; and c)Innocent misrepresentation. Representing information is commonly conducted by filling a form of insurance contract/ SPAJ, containing a form of medical record (SKK) within, provided by the insurer. In particular, the insured is frequently warned to disclose all necessary information he/she knows for the contract. From Juridical view, the court judges are considered as authorized parties that consider whether or not the insured’s information is material (Dobby, 1981, p.149; Greene, 1983). Information considered material is information the insured is or supposed to aware of about the insured object and it may influence the insurer’s attitude in whether or not accepting the insured object. In life insurance, SPAJ and SKK can be in the form of blanks of personal data, financial data, employment data, and other forms of data the insurer needs as a base of insurance (Sendra, 2004, p.94). An individual may represent facts with full of conviction and expectation that those are right, but however, those are in fact wrong. For instance, the prospective insured has ever been hospitalized due to fever; however, the cause of fever is unidentified yet, thus the insured should note on the policy that he/she ever got fever, in case the cause of fever may possibly be dangerous for the insured. 2) Intentionally Representing Incorrect Statement for Personal Benefit (Intentional/fraudulent) If the prospective insured, in filling the form of an insurance request, deliberately conceals material information about the insured object toward the insurer, the contract may become null. An intentional error may occur when the proposer deliberately distorts the information he knows in order to deceive the insurance company. One instance of ways to deal with insurance contract or have premium alleviation is that the prospective insured, in filling his medical records within SPAJ, notes that he smokes 5 cigarettes a day but, in fact, he takes 30 cigarettes a day. Misinforming may influence the insurer’s decision. In regard to information delivery, both innocent and concealment link to 58

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misinformation. However, the innocent unintentionally misrepresents the information, while the concealment deliberately misrepresents the information in order to deceive the insurer (Dobbyin, 1981, p.149.). b. Not disclosing any material facts, including: 1) Not disclosing or informing any facts another party needs, not due to deliberateness, but rather likely due to innocence. This is apparent when an individual does not realize the facts or when he realizes the facts but does not know their significance. For instance, the insured suffers from rheumatic fever since kids but he does not think that it matters so that he does not disclose the fact while filling the form of insurance request. He does not realize that someone who often gets fever since kids is considered susceptible to hearth disease when he is old. 2) Intentionally Concealing Facts for Personal Benefits (Intentional/concealment). Misrepresenting information may happen due to its delivery, content, or materials from misinformation. Furthermore, it is intentionally done in order to deceive the insurer so that the life insurance contract can be closed, things the insurer may not consider when he knows the true facts. For instance, the prospective insured has a high-risk extreme hobby such as rock climbing or paragliding, however, the prospective insured does not note his extreme hobby on SPAJ. 4. Conclusion Life insurance contract is based on the principle of good faith. The insured’s good faith points to an obligation of representing and disclosing all material facts related to his personal data and medical records. A fact is considered material (material facts) if the representation or concealment of a fact may influence the insurer to make decision whether accepting or objecting the possible risk he may take over. Thus, material facts are not solely seen based on the types, but also the substance which the insured considers important. Violation on material facts involves misrepresenting and concealing information the insured actually knows, which may fail the life insurance contract. References Baharum, Mohd Ali. (1988). Misrepresentation: a Study of English and Islamic Contract Law. Kualalumpur: AlRahmaniah. Chumaida, Zahry Vandawati. (2013). Prinsip Iktikad Baik dan Perlindungan Tertanggung Pada Perjanjian Asuransi Jiwa. Disertasi. Program Doktor Ilmu Hukum Universitas Airlangga: Surabaya. Dahlan, Ahmad Aziz et.al. (1996). Ensiklopedi Hukum Islam. Jakarta: Ichtiar baru van Hoeve. Danarti, Dessy. (2011). Jurus Pintar Asuransi: Agar Tenang, Aman dan Nyaman. Yogyakarta: Andi Offeset. Dauglas F. Robinson Q.C . and John Neocleous. (1998). “Issues of Insurance Fraud”. International Symposium on The Prevention & Control of Financial Fraud, Beijing, 19-22, October. Dobbyn, John F. (1981). Insurance Law. St. Paul Minn: West Publishing Co. Feng, Shi. (2008). Utmost Good Faith in Marine Insurance: a Comparative Study of English and Chinese Maritem Law. Plymouth Law Review. 1:154-160. Huda, Mokhamad Khoirul. (2017). Good Faith in Life Insurance Contract by Indonesian Court. Hasanudin Law Review. 3(1):49-58. DOI.10.20956/halrev.v311.1046. Huda, Mokhamad Khoirul et.al. (2016). “The Nature of the Contract of Life Insurance Agency after Enactment of the Act Number 40 of 2014 on Insurance”. Journal of Advanced Research in Law and Economics. 7(5):1037-1-41. Hodges, Susan. (2004). Law of Marine Insurance. London: Calvendish Publishing Limited. Ibrahim, Johnny Ibrahim.(2008). Teori & Metodologi Penelitian Hukum Normatif. Malang: Bayumedia Publishing. Ivamy, Hardy. E.R. (1979). General Principles of Insurance Law. Fourt Edition.London: Buttersworths. Khairandy, Ridwan. (2004). Iktikad Baik dalam Kebebasan Berkontrak. Jakarta: Universitas Indonesia. Kirby. Michael. ( 2011 ). Insurance Contract Law Reform – 30 Years On. Insurance Law Journal. 1: 2753 Kronman, Anthony T. (1978). Mistake, Disclosure, Information, and The Law of Contract. Journal of Legal Studies. 7 (1):1-19. Lowry, John. ( 2009 ). Whither the Duty of Good Faith in UK Insurance Contract. Connecticut Insurance Law Journal. 16 (1):97-156.

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Manning, Alan. (2010). Manning Six Principles of General Insurance: A Comprehensive Guide to Utmost Good Faith, Indemnity, Subrogation, Contribution, Insurable Interest & Proximate Cause, (Victoria: Mannings of Melbourne Pty Ltd, Camberwell. Marzuki, Peter Mahmud Marzuki. (2005). Penelitian Hukum. Jakarta: Kencana Prenada Media Group. Purba, Radiks. (1995).Memahami Asuransi di Indonesia.Jakarta: Pustaka Binaman Pressindo. Purwosutjipto, H.M.N. (1990). Pengertian Pokok Hukum Dagang: Hukum Pertanggungan. Jakarta: Djambatan. Poedjosoebroto, Santoso. (1969). Beberapa Aspek tentang Hukum Pertanggungan Jiwa di Indonesia. Jakarta: Bhratara. Merkin, Robert. (2007). Practical Insurance Guides: Insurance Law-An Introduction. London: Informa. Robinson Q.C.Dauglas F. and John Neocleous.(1998). Issues of Insurance Fraud, International Symposium on The Prevention & Control of Financial Fraud, Beijing, 19-22, Oktober. Sendra, Ketut. (2004). Konsep dan Penerapan Asuransi Jiwa Unitlink Proteksi Sekaligus Investasi; Buku Penuntun Agen dan Konsultan Keuangan Unit Link untuk Sukses Meraih Lisensi. Yogyakarta; Bayu Indra Grafika. Yeasmeen, Nargis. ( 2015). Consequences of Non-Disclosure in the Contract of Insurance. IOSR Journal of Business and Management. 17 (6):29-36. Wardana, Kun Wahyu. (2009). Hukum Asuransi: Proteksi Kecelakaan Transportasi. Bandung: Mandar Maju. Wise, Robert.K et.all. (2009). Of Lies and Disclimers-Contracting Araund Fraud Under Texas Law. ST. Mary’s Law Journal. 41(119):119-176. Wincup, Michael H. (2001). Contract Law and Practice. London: Hague.

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Identity and Sense of Place of Ghajar Residents Living in Border Junction of Syria, Israel and Lebanon Shamai Shmuel Tel-Hai College & Shamir Research Institute, University of Haifa

Shemali Ali Tel-Hai College

Gorbatkin Dennis Shamir Research Institute, University of Haifa

Chativ Nadim Tel-Hai College

Elachmad Halil Tel-Hai College

Ilatov Zinaida Shamir Reaserch Unstitute, University of Haifa Abstract The study focuses on the sense of place among Ghajar inhabitants.Ghajar is unique in its geographical and ethnic status. It is located in the junction of Israel, Syria and Lebanon.The residents are the only Alawites under Israeli control and are isolated from their ethno-religious center in Syria. Two consecutive quantitative surveys and a qualitative study have been implemented: The first quantitative survey was aimed at determining a variety of aspects and attitudes of Ghajar residents towards Israel and towards their village. The second quantitative survey describes the national identity of the residents towards Israel, Lebanon, Syria, and Ghajar. The results represent complicated and instrumental feelings towards Israel, and a very clear and positive attachment toward Syria and towards their village. Keywords: Borders, Sense of Place, Ghajar, Alawites. Israel, Syria

1. Introduction Throughout history, changes of political borders have been part of the evolution and coexistence of communities. As the residence status of border places changed, rulers had to adopt different strategies to cope with the changing allegiances. The modern epoch of boundary delimitation in the Middle East started in 1916 with Sykes and Picot drawing straight lines over the map of the Levant to mark off the region on a sectarian basis (Osman, 2013). Thus, the subsequent national status of the native inhabitants was subject to decisions made by the external administrations of Great Britain and France and the process of interstate differentiation took the lead over the construction of national identity.

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1.1 The Ghajar Story The first mention of Ghajar dates from the Ottoman Empire. The village was known as Taranjeh. Its name was changed to Ghajar by the Kurds, which means “gypsy” in Arabic (Kaufman, 2009). Throughout history Alawites have been the predominant group of village residents. Ghajar was one of the three Alawi villages in the region of the Golan Heights while most Alawites lived some hundreds of kilometers away in the northwest of Syria. In modern times a boundary-marking process between Lebanon and Syria has never been properly conducted in terms of allocation, delimitation, and demarcation. As a result, there are dozens of contested spots along the 375-kilometerlong boundary between Syria and Lebanon (Kaufman, 2001). During the British and French mandates over Palestine, Syria and Lebanon correspondingly, Ghajar was at a tri-border junction. In the judgment of some authors, Ghajar residents developed an identity of “tri-borderlanders” at that time (Khatib & Khatib, 1990). In 1967 Israel captured the Golan Heights from Syria. The Israeli army maps placed Ghajar in Lebanon, but according to Lebanese perceptions it belonged to Syria. Thus they refused to help the people who had stayed in the village (about half the village population had left Ghajar). The Syrian army was not a factor after the 1967 war in this area. So the Ghajar Alawites approached Israel and asked to be attached to the occupied territory with the rest of the Golan Heights population. Israel agreed to incorporate Ghajar, and its residents accordingly accepted living under Israeli laws (BenTzur, 1993). After Israel withdrew its troops from Lebanon in 2000, the “blue line” (the international border) was demarcated through the village territory, so the northern part of the village came under Lebanese control while the southern part remained Israeli (Bar’el, 2009). Today all Ghajar residents hold Israeli citizenship, and some living in the northern part have dual Lebanese and Israeli citizenship (Ash, 2002). A recent newspaper article covering the current situation in the village and attitudes of the villagers, quotes an interview with a Ghajar resident: “We are not Lebanese… we don’t have any links to Lebanon". They feel that they are Syrians (Lazareva, 2015). According to Israeli Central Bureau of Statistics (2016), 2,400 people live in Ghajar. 1.2 Nation States and National Identity There is a widespread view that today’s world is basically organized in nation states. This implies that one nationality or ethnic group acts as the cohesive force that both holds nation states together and shapes their relationships with other states (Smith & Kim, 2006). However, the use of the nation state concept is mostly based on ideal types. According to some studies, there are no more than a dozen states in the world that have a perfect state and nation overlap (Hobsbawm, 1996). The concept of national identity came into use to convey the idea of sense of belonging to one state or to one nation. The basic premise of Anderson’s (1983) theory which is the subject of his best known book Imagined Communities is that nationalism is a relatively modern phenomenon that appeared as a result of the fusion between the decline of religion, human diversity, the development of capitalism and the spread of vernacular languages and printing technology. The process initially started at the time of the Industrial Revolution in Europe and was easily transplanted to the rest of the world. Imagined political communities are both limited and sovereign. They are imagined because members cannot all know each other; limited because no nation encompasses all of mankind, nor even aspires to; and sovereign because nations came into being during Enlightenment and strove for freedom. We call them “communities” because nations are conceived of as a horizontal comradeship of equals. In order to operationalize the notion of national identity the most likely primal approach is that a person’s attachment to a nation is both defined from within – through imagined commonalities – and from outside the group (Triandafyllidou, 1998).

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1.3 Sense of place The term sense of place has been discussed in the literature in a variety of ways. There are different approaches to describe the attitudes of people towards the places they live and there are different terms to describe these attitudes. The term "place" itself is also a vague term and is ‘dimensionless’: it can apply to any scale, from an individual home to any part of the globe; for example, homes, villages and countries are places (Shamai, et al., 2011). Often places are imagined in spite of the fact that people reside in them because they are large in scale, like modern countries that are too large for personal acquaintance among its people. They can also be imagined for people who do not live in them. These are utopian places, that people glorify and where people wish to live or at least declare so. Place is a "neutral space", but sense of place is not neutral. Sense of place transforms "tabula rasa" into its character by the process of socialization. Sense of place is composed of symbols, cultural values and personal and group perceptions and experiences. When a person has lived in the same place for a long period of time, s/he "often develops a sense of place, feeling at home and secure there, with feelings of belonging for the place being one anchor for his or her identity” (Convery, et al., 2012, p. 3). Sense of place implies an individual’s emotional and symbolic identification with a place (Stefanovic, 1998). Cross (2001) argues that we can create a more meaningful understanding of people’s attachments to places by thinking about relationships to place and community attachments as two separate but related aspects of sense of place. Sense of place is also a dynamic term; one may change his/her feelings towards the same place according to changes during one’s lifetime due to changes in one’s personal situation and point of view. Shamai and Ilatov (2005) point out that our race, class and gender affect our interaction with the place. 2. Methods Primary research questions: 1. What are the attitudes of Ghajar residents towards Israel and Ghajar, in general and in terms of age, education and religiousness? 2. What is the intensity of Ghajar residents’ sense of place toward their village and toward Israel, Syria and Lebanon? 3. What are the relations among sense of place scores of the places probed? (Ghajar, Israel, Syria and Lebanon. 3. Research Settings and Samples The study was conducted in Ghajar. Due to political sensitivity the research is composed of three unrelated stages. n the first stage we used a random sample of 150 residents (approximately 12.7% of the adult population (CBS, 2015)). The sample was composed of 80 men and 70 women. The second stage was qualitative and involved 10 people. A random sample of 130 residents was used in the third stage (11% of the adult population (Ibid.)). The sample was composed of 67 men and 54 women. The first two stages were conducted in 2014, and the third in 2015. 4. Research Tool The (first) research stage, implemented in 2014, was mainly dedicated to the study of attitudes towards Israel. We used a self-administered questionnaire survey. The socio-demographic characteristics were represented by questions related to sex, age; education (ranging from 1-no education to 6=PhD) and religiousness of the respondents (yes/no). They were also asked about their marital status and as 136 (90.7%) were married, we did not use this variable. Twenty-seven statements (Table 1) were designed to investigate Israel-related attitudes. We used a five-point ordinal scale with the following categories: (1) full rejection, (2) dissatisfaction, (3) neutrality, (4) 63

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satisfaction, (5) full acceptance. The research theme of the third stage (2015) was dedicated to sense of place. We used the same method of a self-administered questionnaire survey. The study of socio-demographic characteristics was limited to age, sex, and education. To measure Ghajar residents’ sense of place we used the Shamai and Ilatov (2005) scale that considers sense of place as having different intensity levels, ranging from highly positive (+5) to very negative (-5) feelings. According to the first research question we analyzed the first survey questions as in Table 1. The statements means and S.D. Questions 1. I respect the laws of the state. 2. I am worried about risks to the State of Israel. 3. I am well established in Israel. 4. I feel satisfied with the place where I live. 5. I recognize the importance of being an Israeli citizen. 6. I feel comfortable living in Israel. 7. I feel discriminated against in the State of Israel.* 8. I would like to keep on living in the State of Israel. 9. I would rather live in another country.* 10. The state invests enough resources in my village in comparison with other areas. 11. I would rather not tell anybody that I am an Israeli.* 12. I feel safe in my area. 13. The degree of my integration in Israel is high. 14. I have Jewish friends. 15. The state of Israel has given me all the essential resources for my personal and professional fulfillment. 16. I feel obligated to the State of Israel. 17. I have full rights in this country. 18. I identify myself with Israel. 19. I feel a sense of belonging to the State of Israel. 20. I am proud to be a citizen of the State of Israel. 21. I feel an integral part of the State of Israel. 22. I feel proud while the Israeli flag is raised. 23. I am like other citizens in Israel. 24. The state treats all its citizens equally. 25. If I have the opportunity to serve the country I will use it. 26. I identify myself with the village of Ghajar and not with the state of Israel.* 27. If I were invited to live in some other place within Israel I would agree. *Scores were reversed for standardization.

Mean 4.48 3.93 3.63 3.63 3.42 3.32 3.28 3.27 3.25 3.01 2.97 2.93 2.89 2.83

Std. Dev. 0.642 1.021 1.065 1.156 1.154 1.058 1.136 1.284 1.332 0.980 1.356 1.309 1.063 1.528

2.81

1.079

2.77 2.75 2.61 2.58 2.58 2.51 2.46 2.21 2.17 1.73 1.65 1.27

1.265 1.055 1.456 1.302 1.025 1.289 1.309 0.971 1.052 1.121 0.921 0.741

From this table it is very clear that their perception of their village is highly positive, while their perception of Israel is quite mixed. When we focus on the two extremes of the scale (means > 3.5 compared to means