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Browsing by discipline "Folkrätt"

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  • Pensar, Alexandra Sofie Annette (2019)
    This thesis deals with the questions on whether it would be possible to consider the European Convention on Human Rights (ECHR), more precisely Article 2 (the right to life) and Article 8 (the right to private and family life), to impose positive obligations on its Member States to prevent climate change and whether a Member State failing to prevent climate change sufficiently could be considered violating the ECHR. Climate change is a human rights issue. The effects of climate change are projected to interfere with the enjoyment of most, if not all, human rights, if further dangerous climate change is not prevented. Despite this fact, neither the international community, nor national states, have been able to address and prevent climate change sufficiently. As a counteraction to these failures, civil society has attempted to take the matter into its own hands, and turned to so-called climate change litigation as a possible solution to prevent further climate change. What first seemed impossible, holding a State liable for not preventing climate change sufficiently, was recently achieved on a domestic level. In October 2018, the Dutch Appeal Court interpreted Article 2 and 8 of the ECHR to create a positive obligation to prevent climate change and found the Dutch state, due to its insufficient climate policies, to be in breach with such obligation. This groundbreaking case created ripples on the water, and several climate change litigation cases have since then emerged around the world. The aim of this thesis has been to consider the potential and limitations of bringing a climate change case in the context of the ECHR and European Court of Human Rights (ECtHR). This thesis has considered if there is foundation to argue that Article 2 and 8 of the ECHR impose a positive obligation on its Member States to prevent climate change (research question 1). This was done by turning to the existing positive ‘environmental’ obligations that have been developed by the ECtHR, without the right to a ‘healthy environment’ or similar being enshrined in the ECHR. An analogy between the existing green jurisprudence and its positive obligations and climate change was attempted. Although encountering some difficulties, it was concluded that there is foundation to argue that climate change and its effects both are within a State’s awareness and to be considered a real and immediate threat, thus creating a positive obligation on States to prevent further climate change. In other words, the first research question of this thesis was answered with cautious optimism. This thesis has also considered if a State failing to prevent climate change sufficiently could be considered in violation with Article 2 and 8 of the ECHR (research question 2). In order to answer this question, some of the challenges a climate change case would face were presented. It was noted that a climate change case, in particular framed from a preventative angle, would have a difficult time even passing the admissibility stage, as it is likely that such an application would be considered actio popularis and not fulfil the victim status required. In addition, the doctrine of margin of appreciation, which generally is considered wide in the context of the environment, was perceived as a major obstacle, which a climate change case most likely would not be able to overcome. In addition, causality and uncertainty, generally being known to create difficulties for climate change cases, would also be challenging in the context of the ECHR and ECtHR. However, it was also noted that the ECHR is to be interpreted as a living instrument in the light of present-day conditions. It was considered that the doctrine of living interpretation could provide somewhat of an avenue for the ECtHR to take a more activist approach, and adapt a more evolutive interpretation. This could provide a solution to at least some of the challenges a climate change would face. It was, however, also noted that utilising the doctrine to its max, might come with consequences that may have negative impacts on the legitimacy of the ECtHR. Thus, the conclusion was that based on a traditional interpretation on the ECHR and existing case law, it would be unlikely fhat the ECtHR would consider the failure to prevent climate change sufficiently to constitute a violation of Article 2 and 8. In other words, the second research question was answered negatively. In conclusion, this thesis argues that there is foundation to consider that Article 2 and 8 of the ECHR could impose a positive obligation to prevent climate change, whilst it would be unlikely that the ECtHR would consider a State, failing to prevent climate change sufficiently, to be in violation with such obligation.
  • Eilittä, Eleonoora (2015)
    The international community has, rather recently, raised concern over biodiversity loss. Human impact is widely accepted as the main cause for mass extinction of species and the decrease of biodiversity results in drastic consequences for human societies. This thesis assesses how international law responds to this concern in the context of commercial seabed mining, under State jurisdiction. This particular activity was chosen, since the world’s first commercial seabed-mining project is commencing in the near future and, opposed to seabed mining on the high seas, the international law regulating the activity has not received attention in literature. The purpose of this thesis is to discover how international environmental law regulates activities that are potentially hazardous for unique ecosystems that thrive near hydrothermal vents. The study focuses on the responsibility of States allowing private companies to mine massive sulphide deposits under their jurisdiction. No specific rules govern this particular activity under international law. What follows is that the thesis analyses different sources of international environmental law in order to investigate what the responsibility of the State is. Three different approaches are used in the thesis. First, the activity is analysed according to international environmental customary law. The rules governing the activity are the no harm principle and the obligation to undertake an environmental impact assessment. In this context, the doctrine of State responsibility is of particular interest, since the activity itself is not prohibited under international law and a private company is performing the activity. The main finding here is that States have a due diligence obligation to prevent significant transboundary harm on their jurisdiction. This obligation requires the State to undertake an environmental impact assessment. Research conducted here regarding case law suggests that obscurity remains on when the obligation to assess is triggered and what the content of the assessment should be. The second approach considers if the rules of customary law are specified by environmental law treaties. The studied treaties were the United Nations Convention on the Law of the Sea and the United Nations Convention on Biological Diversity. The treaties do specify terms relevant to the research question and pose additional substantial requirements for the environmental impact assessment. However, the unclear aspects of the no harm principle and the obligation to undertake an environmental impact assessment influence both Conventions. The third approach addresses the status, content and application of the precautionary principle. The precautionary principle is a highly debated principle and in this thesis one of the main questions is whether the principle has reached the status of customary law. The case law and literature provides for an uncertainty over the status of the principle and in this thesis it is approached as an emerging principle of international law. The contents and actuation of the precautionary principle suggest that the principle poses a stricter obligation to investigate possible harmful effects, which would be beneficial considering the high-risk nature of seabed mining, and the uncertainties of the effects on the environment. The main conclusion of this thesis is that the rules of international environmental law that have been analysed here are not defined in a manner that would effectively impose an obligation to preserve the ecosystems and species endangered by the activity.
  • Sinnemäki, Siiri (2018)
    The United Nations Refugee Agency, UNHCR, is an international organization operating in refugee situations. The core of the UNHCR mandate is to protect people in refugee situations by providing assistance and seeking permanent solutions. The research question in this thesis is as follows: can the UNHCR be held responsible under international law for violating the rights of refugees? This question is illustrated through the long-term refugee camp management performed by the UNHCR and the rights set out in the 1951 Refugee Convention. The thesis looks into the law of international institutions and the origins of UNHCR. The law of responsibility is discussed with ARIO, the International Law Commission´s Draft Articles on the Responsibility of International Organizations. ARIO states that every internationally wrongful act of an international organization entails the international responsibility of that organization (art. 3). This provides an expression of a general principle on responsibility in international law, and confirms its application to international organizations. The mandate of the UNHCR, which has been extended over years and is interpreted ratione personae, has in its core the international protection of refugees. This thesis argues that the mandate creates obligations for the UNHCR, also human rights obligations. By discussing the applicability of human rights to the UN and the relevant human rights norms in refugee context, the thesis argues that the 1951 Refugee Convention can be seen as binding to the UNHCR as well as other fundamental rights that are at the core of Agency´s mandate to provide international protection. This is underpinned by the factual circumstances; named de facto control that the Agency has in its operations. Research done in this area illustrates that there are sensitive areas to the human rights protection performed by the UNHCR. This thesis argues that some of the violations that occur in the conduct of the UNHCR are inherent to the work and operations of the Agency. This thesis argues that the encampment policy that the UNHCR itself maintains is not at all supported by international human rights law – the conclusion is the opposite. There is no mandate or legal basis for to support long term refugee encampment. The thesis analyses how the ARIO could be applied to the UNHCR. When the UNHCR exercises control in refugee camps, its conduct is attributable to the organization, or the host State – or both. The argument of the thesis is that ARIO can be applied to the UNHCR. However, ARIO has deficiencies, some of which seem irreparable. It does not correspond to the particularities of exercise of power of public law nature and does not provide satisfactory means of accountability for refugee context. But ARIO makes the application of human rights obligations feasible in the context of responsibility of international organizations. Ultimate responsibility for refugee protection still lies with states, but by accepting the responsibility regime, international organizations would gain a role more dominant in the general corpus of international law.
  • Kaavi, Jenni Susanna (2019)
    Water is a basis of all life. However, currently in many areas of the world, water scarcity has become a considerable threat to food security, human health and natural ecosystems. Moreover, many people lack the access to safe water for their basic needs. This thesis examines how international human rights law has sought to deal with the issue of access to water. This is done by seeking answers to the following questions. Firstly, is there a human right to water? If there is such a right, what is normative content of that right? Secondly, what are the obstacles on the way of effective enforcement of the right to water regarding both states and private actors? Finally, how useful the right to water has been, and can be expected to be, in the future in relation to water management? The analysis is based on a critical examination of the sources of international law that form the basis for the argument in favour of the human right to water. These include primary sources of international law such as international treaty law and customary norms of international law as well as soft law sources. The global water scarcity situation is also discussed in order to shed light to the complexity of the situation in which the right to water is to be applied. The analysis is complemented with a case study regarding the implementation of the right to water in South Africa. I argue that it is possible to credibly make the argument that there exists a right to water, albeit in a “unique” form. However, I argue that there are number of reasons why the right to water is not capable of having the effect one could hope it to have. Firstly, there are certain inbuilt problems with the right to water itself and enforcing it has been weak and inefficient. Secondly, even when there is political will, states often lack the financial, technical and administrative capacity to implement the right to water. Finally, the water scarcity caused by both climatic conditions and overuse of the resource limit the amount of available water significantly. Right to water competes over the available resources with other important societal functions such as food production and safeguarding livelihoods as well as economic and ecological interests. This complicates the application of the human right to water.
  • Salo, Asta (2017)
    The need for data protection emerged during the development of information technology in the 1960's when the automatic gathering of personal data became a possibility. Since then, the possibilities to collect and store data has grown exponentially. The international community recognized the need for a unified data protection regime when cross border data transfers became more commonly used in the economic sphere. During the past decades, since the emergence of cross-border data protection, the world has changed drastically, creating numerous new fields of use for personal data. The globalisation of the world economy has increased due to drastic advancements in new technologies. The EU has, ever since the revolution of the internet, tried to unify the rules on data protection within its Member States. The responsibility the EU has of protecting its citizens' right to privacy does not however end at the borders of the union. The EU needs to ensure that the same adequate level of protection is upheld when data is transferred across the borders of the EU. The ruling in the Schrems case underlined the responsibility of the EU to ensure adequate protection even outside its jurisdiction. The main question of this thesis is to analyse the validity of the current transfer mechanism, the Privacy Shield, when transferring personal data from the EU or the EEA to the USA. The aim of this thesis is to analyse how the current framework has created a stronger protection of personal data of data subjects within the EU, with the ruling of the CJEU on the Safe Harbour in mind. Furthermore, the aim also to evaluate whether the current framework will hold up against the level of adequacy set by the General Data Protection Regulation (GDPR) as the Privacy Shield was originally drafted with the level of adequacy laid down by the Directive 95/46/EC as a benchmark. The main findings of this thesis are, that while the emergence Privacy Shield has helped to promote the importance the protection of personal data when it is transferred outside the territorial scope of the EU, it has failed to provide adequate safeguards in certain aspects. The main aspects where the Privacy Shield has failed to provide adequate safeguards are the access to personal data by U.S. authorities and to provide effective legal remedies. The Privacy Shield could become the function framework it was set out to be, but without a common goal and a common understanding of what lies at the bottom of the issues, the EU and the USA will continue to struggle in creating a binding and enforceable framework that works. The underlying issue seems to be as much of a political nature than of a regulatory one.
  • Katila, Pauliina (2014)
    Currency undervaluation is a well-known and commonly used method for stimulating economic growth. Although the exact effects of exchange rate arrangements on international trade are highly debated, the fact that strong interlinkages between the two exist is unquestionable. This thesis departs from the generally accepted truth that an undervalued currency functions in practice as a subsidy to exports and tariff on imports. By using the method of legal dogmatics, the thesis analyzes how currency undervaluation can be assessed under international law, focusing on the examination of whether invoking the provisions of the IMF Articles of Agreement or WTO agreements to challenge currency undervaluation could be successful. In order to understand the issues behind this question, the first part of this thesis provides a short overview of the history of international regulation of currencies and the rise and fall of the Bretton Woods system. Parting from the principle of monetary sovereignty and its implications, the thesis provides a cursory glance at the development of international obligations regarding currencies and exchange rates. The second part deals shortly with the relevant provisions of the IMF’s Articles of Agreement and the shortcomings related thereto. Article IV(1)(iii) of the IMF Articles of Agreement places an obligation on member states to avoid manipulating exchange rates in order to gain an unfair competitive advantage over other members. Despite in theory providing an answer to the problem of currency undervaluation, this provision is in practice essentially inoperative, due to the subjective element included in it. Even in the unlikely case that the IMF were to reach the decision that one of its members was in breach of this Article, it has no effective dispute settlement system it could avail itself of if the said member state did not comply with the IMF’s recommendations to remove the breach. With the IMF being unable to effectively deal with the issue, the attention of politicians and academics alike has turned to the WTO, which provides an extremely effective dispute settlement mechanism. Due to its tariff-cum-subsidy effects, currency undervaluation makes it possible for WTO members to circumvent their obligations under the WTO agreements by nullifying, or at least diminishing, the effects of tariff concessions and eluding the prohibition on granting export subsidies. This thesis aims to provide an in-depth analysis of the WTO provisions that are most probable to be invoked with the aim of curbing currency undervaluation: Article XV of the General Agreement on Tariffs and Trade and the WTO provisions on subsidies. As an integral part of this examination, the thesis first discusses the relationship between the International Monetary Fund and the World Trade Organization in currency-related matters and the division of jurisdiction between the two institutions. The main finding in this regard is that although the interpretation of these provisions could in theory be stretched in order to cover currency undervaluation, the WTO cannot at present provide a sustainable answer to the issue of currency undervaluation. This thesis argues that the problems in adjudicating currency manipulation essentially arise from historical developments and the failure to adapt the instruments of international law to a new economic reality. This, together with the fear of overlapping jurisdictions between international institutions, has led to a loophole in international economic law. Initially the division of authority between the WTO and the IMF was clear: exchange rate issues under the par value system were a matter to be dealt with exclusively within the IMF. After the breakdown of the par value system, misuse of monetary policies became easier and more frequent, but nothing was done to reinforce the authority of the IMF. This has led to a situation where the IMF has the jurisdiction to deal with exchange rate issues, but lacks an effective enforcement mechanism to ensure that its rulings are followed. The WTO on the other hand has at its disposal an extremely effective dispute resolution mechanism but lacks jurisdiction regarding currency issues.
  • Valo, Janne (2014)
    The thesis reviews the issue of cyber attacks and international law in terms of jus ad bellum, the law concerning the recourse to force by states. The thesis takes the view that the existing rules on the use of force, namely Articles 2(4) and 51 of the United Nations Charter and the corresponding rules of customary international law apply to attacks regardless of the way they are carried out and thus, they apply to cyber attacks as well. Two central examples of different kinds of cyber attacks are presented to illustrate the issue: the attacks against Estonia in 2007 and Stuxnet, the malware that targeted Iranian nuclear facilities and was discovered in 2010. Before covering the main question of if and when cyber attacks may constitute uses of force or armed attacks, the thesis takes a brief historical look at how the just war doctrine and the regulation of war have evolved to their current state. The thesis argues that while cyber attacks are a new phenomenon with certain unique aspects, they are a part of the evolution and continuum of armed conflict. The thesis takes a look at the different approaches (instrument-based, target-based and effects-based) to assessing the question of whether or not a cyber attack crosses the threshold of a use of force or an armed attack. The effects-based view is found to be most appropriate one. It is argued that particularly cyber attacks that cause death, injury, damage or destruction qualify as uses of force. As cyber operations make it possible to cause severe economic consequences without the use of physical force, the question of economic force is discussed as well. The thesis argues that while the prevailing view is that Article 2(4) does not cover the use of economic force, the question may arise in the context of cyber attacks, and an attack with such consequences may result in a reappraisal of the issue in state practice. Turning to armed attacks, the thesis argues that cyber operations may also qualify as armed attacks. Accepting the prevailing view that distinguishes between uses of force and armed attacks, the thesis claims that for a cyber operation to rise to the level of an armed attack, the consequences must be sufficiently grave. It is argued that for example a denial-of-service attack does not fulfil the criteria of an armed attack, but an attack that causes fatalities or severe damage or destruction would cross the threshold and justify self-defence. The thesis also discusses the question of anticipatory self-defence in the context of cyber attacks.
  • Vigil Nolasco, Damarys A. (2014)
    Detention of unaccompanied migrant children has become a more and more common practice among EU member states and therefore it is important to study if this practice is consistent with the rights enshrined in the Convention on the Rights of the Child (CRC). The purpose of the present research is to establish if detention as such can be considered as being in the best interest of the child. In order to approach this problem, the main research question is whether EU migration directives and the practice of the EU Member States are compatible with the principle of the best interest of the child flowing from the CRC, with a particular focus on unaccompanied migrant children. In order to answer this question I have structured the thesis as follows: In chapter two I analyze the CRC and specifically the principle of the best interest of the child as well as its scope. The principle in conjunction with article 37 of the CRC is of vital importance for the thesis as this article specifically refers to the issue of detention of minors. I will look at whether the Convention is able to protect children adequately, in terms of its internal coherence and the way how the rights of children are regulated. In chapter three I discuss the application of the CRC in the EU migration law. First I will look at the position the CRC takes in the EU treaties. Then I will proceed to a discussion of the EU law on migration and the best interest of the child, namely directives. Later on I describe my personal experience during a visit to a detention center in Finland and give my comments and recommendations about this visit. The conclusion in chapter three shows that despite it would seem like detention is not consistent with the principle of the best interest of the child. Nevertheless, when applied in an appropriate manner and as prescribed by the law and in the respect of all the safeguards given by international law and directives, it is a practical solution to the issue of unaccompanied minor migrant children.
  • Beletskaya (Santamala), Maria (2014)
    This study investigates the nature and economic effects of the contractual remedies and their role and specifics of application in the contemporary international trade, demonstrated on the example of standard construction contracts. Various remedies are examined within several legal orders across Civil and Common law traditions from the position of their convergence and utilization in the international contracting. Main focus of the research is on the economic efficiency of the contractual remedies as elements of integrated system, flexible and adjustable due to changes (internal and external to the parties’) in the circumstances after conclusion of the contract. Purpose of the study is to analyze possibilities for further harmonization of the contractual remedies’ regulation and adoption of their more efficient forms, developed within different jurisdictions and soft law codifications. These improved forms, as discussed in the work, are capable of enhancing economic efficiency of individual remedies and their productive incorporation in a cohesive remedial system, enabling contractual parties to divide various interests inside one contract and vary levels of their respective protection, exploiting suitable function of each remedy. First part is dedicated to studying definition of remedy, its functions and approach to it, developed within various contractual theories; it also briefly examines general differences between Common and Civil law systems, explaining dissimilarities in formation of remedies in various legal orders. In the second part I analyze specifics of each remedy in respective jurisdictions, including analysis of local statutory and case law, considering laws of France, Germany, UK, USA, and Finland and international codifications, underlying economic effects and drawbacks of every remedy. Remedies in question are: specific performance; damages’ compensation; termination of contract; liquidated damages and penalty; price reduction and performance withholding. Third chapter is devoted to history of development of the construction contract, combining elements of sale and service; application of each remedy in the standard construction contracts in their dynamic system and methods of improving economic efficiency. The research concludes that each remedy may simultaneously have various functions (preventive, restorative and corrective) regardless of compensatory or non-compensatory criterion, which currently becomes irrelevant. Remedial system adopted in the contract should be flexible and easy adjustable to the changes in the post-contractual circumstances. Following the ongoing process of normative convergence various legal orders should be harmonized; they should recognize autonomy of the parties to create own enforceable hierarchy of remedies within the contract and should ensure judicial intervention solely from the angle of safeguarding just and fair outcome. Study further determines that measures of enhancing economic efficiency of each remedy have been already developed in the practice and only need recognition and change of attitude in the respective national systems, widening perspectives of interpretation and qualification.
  • Farzamfar, Mehrnoosh (2017)
    In this master’s thesis, I analyse the legality discourse of diplomatic assurances in the cases of expulsion to torture. The reason for this study is that there are controversies in International Human Rights Law surrounding the permissibility of creating and using diplomatic assurances in torture-expulsion cases. The ongoing discussion about the validity of assurances in the cases of expulsion to torture could be divided into two conflicting categories: oppositional approach and optimistic approach. What both approaches have in common is that they argue that there is a pertinent need to evaluate if there are substantial grounds to believe that the returnee would be in danger of being subjected to torture. This evaluation process is known as torture risk assessment, which is inherent within the application of the principle of non-refoulement to torture, as a jus cogens norm of International Law. The jurisprudence of the European Court of Human Rights, in the landmark case of Othman (Abu Qatada) v. the United Kingdom, shows that by creating strong diplomatic assurances, which for example, encompass effective post-return monitoring and enforcement mechanisms, the real risk of torture shall be removed and the individual could be returned safely. This strengthening of diplomatic assurances in the cases of expulsion to torture is a practical response to compensate for the ambiguity inherent in different aspects of the concept of torture. This ambiguity includes uncertainties about what torture is and when and how it might happen. This is the main reason for the need to conduct torture risk assessment and to formulate effective and enforceable assurances in the cases of expulsion to torture. Based on this, assurances should be seen as the manifestation of States’ intent to create binding international obligations in direct connection and with reference to their obligations under the principle of non-refoulement to torture.
  • Hyartt, Anne (2016)
    Extraterritorial use of force by States against suspected terrorists is no longer a new phenomenon in today’s world, yet it remains controversial how such situations should be classified under international law and which rules should govern extraterritorial counterterrorism operations. The purpose of this study is to contribute to this topical discussion. This thesis examines the practice of United States (U.S.) to conduct targeted killings against Al-Qaida in the Arabian Peninsula (AQAP) in Yemen via drone strikes and aims at finding potential answers to controversial issues surrounding the targeted killings operations. The underlying purpose of targeted killing is to intentionally deprive a person of life, and therefore the legal basis for such a conduct should be known. It is vital to understand that the assessment on the legality of a specific targeted killing depends on the context in which it is conducted. If a targeted killing is conducted within armed conflict, then international humanitarian law is the applicable legal framework; if it is conducted outside armed conflict, then human rights law is the applicable legal framework. It has long been the U.S. assertion that it is in an armed conflict with Al-Qaida, Taliban and their associated forces. This thesis takes as its starting point the U.S. assertion and attempts to establish whether and under what conditions this claim could be true with respect to the situation in Yemen. Thus, the subject is examined solely from an international humanitarian law (IHL) perspective, though human rights are taken into account as far as they also apply during armed conflict. Questions relating to inter-State use of force are not studied in this thesis, as the U.S. is conducting its operations with the consent of Yemen. The topic is further framed to concern only targeted killings conducted with drones, as drone technology has raised additional concern over the legality of targeted killings operations, and because drone strikes have been particularly typical way of conducting operations by the Obama administration. First of all, this thesis seeks to determine that if the U.S. drone strikes in Yemen are conducted within an armed conflict, how the conflict should be classified under IHL. IHL recognizes two types of armed conflicts: international armed conflict (IAC) and non-international armed conflict (NIAC). The U.S. position is that it is engaged in a single armed conflict with Al-Qaida and its associated forces, and that the type of the armed conflict is some kind of global non-international armed conflict. This position is rejected in this thesis. However, classification of the situation faces problems both under the law governing IAC and the law governing NIAC. Much of the study on this question regards the threshold of armed conflict. It is suggested that customary rules of IHL which are same for both IACs and NIACs could be applied to the situation between the U.S. and AQAP even if the nature of the conflict is not decisively determined. After coming to such conclusion, this thesis studies which are the rules of customary IHL applicable in both NIACs and IACs that are relevant when assessing the legality of U.S. drone strikes in Yemen. First, drone technology and drones as weapons are studied and it is concluded that even though drones are relatively new weapons IHL still applies to them, and that under the rules of IHL, drones cannot categorically be seen as illegal weapons. Focus is then turned to rules governing targeting, as it is possible that drones are used in a way which violates IHL even if they are not illegal as weapons. The following concepts are examined: principle of distinction and prohibition on indiscriminate attacks, combatant status, direct participation in hostilities and status of members of organized armed groups, principle of proportionality, feasible precautions in attack and whether there is a requirement to not kill unless necessary under IHL. Attention is then turned to human rights and it is determined that while IHL is the applicable law as lex specialis during armed conflict, if a particular killing during armed conflict violates norms of IHL, then it also violates the right to life under human rights law. Finally, it is studied whether it seems that the U.S. is abiding by the applicable rules of IHL in its actions when conducting drone strikes in Yemen. While it is acknowledged that it is a positive development that the U.S. is publishing any information related to its counterterrorism operations, it is also noted that usually the information given is too general and vague to be used in proper legality assessments. The U.S. constantly states that it adheres to all applicable law in its operations, yet mixes different legal concepts and fails to provide critical information, based on which the correctness of its claim could be determined. As long as the U.S. is not publishing detailed data on its drone strikes and on the criteria which makes an individual targetable, it is impossible to properly assess the legality of the U.S. actions. Still, some remarks can be made. It is concluded that at least some of the targeting practices the U.S. is using seem to violate rules of IHL. Brief remarks are then given on what kind of conduct amounts to serious violations of IHL under both IAC and NIAC and on the related transparency and accountability obligations of States.
  • Väänänen, Suvi (2020)
    On 15 November 2000, the United Nations General Assembly adopted the United Nations Convention against Transnational Organized Crime (the Palermo Convention). The United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances of 1988 was used as a model. Drug-related crime had been long controlled with severe punishments and developed control mechanisms, but also there was already quite good knowledge on how drug-related organized criminals operate - despite the drug industry’s fast growth that was ever so difficult to slow down. Drug-related crime was part of the discussions as one type of transnational organized crime when the talks of the Convention began, and it was part of the first drafts of the Convention. Ultimately, the Palermo Convention lacks any mentioning of illicit traffic in narcotic drugs. However, what sparked the elaboration of the Palermo Convention was a growing need for international regulation concerning traffic in persons, and especially to protect women and children from abuse and effects of organized crime. Traffic in persons was perceived to be quite profitable for example due to minor risks compared to possible financial gains from drug trafficking which has however much higher risks for severe punishments and then confiscation. Also, women and children were seen to be the most vulnerable groups for exploitation and in urgent need for protection. This thesis focuses on firstly to recognize the reasons why illicit traffic in narcotic drugs was omitted from the text of the Palermo Convention and secondly on transnational organized crime, especially drug-related crime. This latter research aims to put the Palermo Convention in a larger context. There was an urgent need for this new comprehensive convention on organized crime and its elaboration was a speedy process. In this thesis I study the whole elaboration of the Palermo Convention in the sense of what types of questions were raised during the elaboration of it, and how these questions may have affected the question of illicit drug trafficking as part of the Convention. The research regarding the omitting of drug-related crime from the Palermo Convention’s text after its first drafts is done based on the Travaux Préparatoires, that is the preparatory work of the Convention and its Protocols, and other preparatory materials and official documents that were formed during the Convention’s elaboration. In the study on drug-related crime and transnational organized crime from a wider perspective, related literature is used. Ultimately, there is not enough support to conclude that particularly illicit traffic in narcotic drugs, as the form of crime appeared in the first drafts of the Convention, wanted to be left out of the Convention. Some main themes that had an impact in the omission of illicit traffic in narcotic drugs are the scope and comprehensiveness of the Convention, removing a designated list of offences from the Convention and the urgency and speediness of the negotiations. More important and pervasive provisions against transnational organized crime in general were articles on criminalization of participation to organized criminal group’s activity, articles on money-laundering and corruption. These crimes can take place in link to other crimes like trafficking narcotic drugs and human trafficking. Targeting against the “business” activity, those things that keep facilitating a criminal group’s business, is most likely more efficient in the fight against transnational organized crime.
  • Stenman, Rosa (2018)
    Valtiontuet ovat kansainvälisissä kauppasuhteissa herkkä aihe. Valtiontuet koskettavat Euroopan unionin jäsenvaltioiden välistä kauppaa ja sen lisäksi myös kansainvälistä kauppaa yleisellä tasolla. Valtiontukia tarvitaan ja käytetään yleisesti hyväksyttyjen tärkeiden asioiden saavuttamiseksi, kuten valtioiden taloudellisten ja sosiaalisten tavoitteiden saavuttamiseksi. Valtiontuilla voi ja yleensä on myös vastakkainen vaikutus kauppakumppaneiden intresseille. Valtiontuilla voi siten olla negatiivinen vaikutus kauppakumppaneiden kotimaan markkinoilla sekä heidän vientimarkkinoilla, valtiontuen aiheuttamasta markkinakilpailusta. Valtiontuet ovat aiheuttaneet valtavan määrän riitoja ja käynnistäneet useita oikeusriitoja niin WTO:ssa kuin EU:ssa. EU-jäsenvaltioiden on noudatettava sekä EU- että WTO-oikeuden säännöksiä ja siksi tässä tutkielmassa verrataan kielletyn valtiontuen käsitettä EU-säännöksien ja WTO-säännöksien pohjalta. Tutkielman tarkoituksena on komparatiivisen tutkimuksen avulla löytää mahdollisia yhtäläisyyksiä ja mahdollisia eroja niistä ja sitten katsoa mihin erot voivat käytännössä johtaa.
  • af Hällström, Camilla (2014)
    This thesis examines immunity from execution of state property in execution proceedings of arbitral awards. In this study, I aim to consider the extent of immunity from execution in these execution proceedings. This includes considerations of current rules in public international law on immunity from execution and the application of these rules on national execution proceedings of arbitral awards. Immunity from execution protects state property from execution measures. Immunity from execution is based on equality of states and the upholding of friendly relations between states. States have in the 20th century started to participate in commercial transactions and dealings with individuals. This has led to the revision of the traditionally absolute notion of immunity from execution. Immunity from execution has been limited in certain instances. The view on the extent of immunity from execution is not always coherent in the international community. There is no universal international convention in force that regulates the matter. National courts interpret the rules on immunity from execution, which means that there can be quite incoherent and unexpected decisions in this area of public international law. The certainty of execution is of crucial importance in relation to arbitral proceedings. Immunity from execution is a factor that compromises this certainty. As arbitration is time-consuming and costly, uncertainty relating to the execution of arbitral awards can mean that individuals refrain from arbitrating against states. This, again, can impact trade and investment involving states. The Sedelmayer saga is an excellent illustration of the implications that immunity from execution can have on execution of mixed arbitral awards. Sedelmayer is an investor whose investment was expropriated by the Russian Federation. An arbitral award was subsequently rendered against Russia. Sedelmayer has sought execution against Russian property in both Germany and Sweden over the last 13 years, without fully succeeding to satisfy the award. He also appealed to the European Court of Human Rights on the ground of the German proceedings. In this thesis, I will critically consider the implications that immunity from execution can have on execution of arbitral awards. Regard will be taken to sources of public international law, especially treaties and customary international law. I will also examine domestic legislation and case law in order to accurately consider national perceptions and tendencies of immunity from execution. I will especially use the Sedelmayer saga as an illustrating and exemplifying series of case law.
  • Zalmanovitch, Oded (2014)
    The recognition and enforcement of arbitral awards is of paramount significance for the success of arbitration in the international arena. In fact, the enforceability of arbitral awards throughout the world is perceived as one of the main advantages of arbitration. Since the inception of the New York Convention in 1958, nearly 150 states have acceded to the Convention, making it one of the most successful international conventions in history. By means of establishing a mechanism through which arbitral awards are easily enforceable worldwide, the New York Convention has empowered commercial parties with an effective method of resolving their disputes via a neutral forum and a process they confide in. However, the ultimate test of any arbitration proceeding is its ability to render an award which, if necessary, will be recognized and enforced in relevant national courts. The recognition and enforcement of international arbitral awards entangle a potentially complicated succession of topics. In numerous cases, enforcement of an arbitral award implicates the national law of the state where an award is made, the national law of the state where enforcement is sought, and the stipulations of feasible international conventions or treaties. Essentially, the New York Convention, the UNCITRAL Model Law and other national arbitration statutes not only form a common presumption that international arbitral awards are legitimate and must be recognized, but also allow for non-recognition and enforcement of awards on the same enumerated and considerably limited substantive grounds. In a theoretical sense, perhaps the most intriguing facet of the New York Convention resides in the limitations placed on the grounds for resisting enforcement. It is inevitable that the grounds for non-enforcement as stipulated under the New York Convention are susceptible to be interpreted divergently by various dissimilar courts seized in any particular matter. In an ideal world, the provisions of the New York Convention and of the Model Law would be understood and interpreted in the same exact way by courts everywhere. In practice, however, this ideal does not quite happen as there are recurring inconsistent decisions under the New York Convention. The main objective of this study is to provide a comprehensive legal analysis of the challenging boundaries and exceptions to the enforcement of international arbitral awards in an attempt to reach conclusive findings regarding the extent of their impact. The primary focus will be put on the obstacles and hurdles to the enforcement of international arbitral awards, namely the exhaustive resisting grounds stipulated under the New York Convention. These resisting grounds will be thoroughly explored and examined both theoretically and pragmatically.
  • Kerälä, Saija (2020)
    Tutkielmassa tarkastellaan EU:n direktiivin implementointia kansalliseen oikeusjärjestelmään implementointiprosessin näkökulmasta. Tutkielmassa tarkastellaan aluksi yleisellä tasolla kansainvälisen oikeuden ja EU-oikeuden perusteita. Tämä luo pohjan tutkielman tarkemman kohteen eli EU:n direktiivin implementointiprosessin tarkastelulle. Tutkielman tarkoituksena on selvittää direktiivin implementointiprosessin kulku ja vaiheet tarkemmin. Tämän selvittämiseksi on perehdytty yksittäisen direktiivin osalta toteutettuun implementointiprosessiin. Tarkastelun kohteeksi on valittu Euroopan parlamentin ja neuvoston direktiivi jäsenvaltioiden tavaramerkkilainsäädännön lähentämisestä (tavaramerkkidirektiivi). Tavaramerkkidirektiivin implementoinnin yhteydessä toteutettiin Suomessa laaja-alainen jo vanhentuneen ja epäyhtenäisen kansallisen tavaramerkkilain kokonaisuudistus, jonka seurauksena implementoinnin yhteydessä tehdyt lakimuutokset ylittivät monin paikoin direktiivin minimivaatimukset. Prosessina tavaramerkkidirektiivin implementointi noudatti lainmukaista EU-asioiden kansallista käsittelyä. Suomen mukanaolo EU:n valmisteluprosessissa oli myös tärkeää ja sitä kautta saatiin jo direktiiviin valmisteluvaiheessa läpi Suomelle tärkeitä kantoja. Implementointiprosessin yhteydessä tehdyn tavaramerkkilain kokonaisuudistuksessa otettiin osittain tavaramerkkidirektiivin säädökset sellaisenaan kansalliseen lakiin ja siten täytettiin direktiivin minimivaateet. Osittain käytettiin hyväksi direktiivin antama mahdollisuus säätää sen käsittelemistä asioista tarkemmin tai laajemmin. Prosessi oli pitkä ja monivaiheinen ja implementoinnissa myöhästyttiin direktiivin asettamasta voimaansaattamisen aikarajasta. Lopputulemana voidaan kuitenkin todeta, että tavaramerkkidirektiivin implementointi oli kokonaisuutena onnistunut prosessi ja sen kautta saatiin tuotua Suomen kansalliseen oikeusjärjestelmään kattavasti direktiivin vaatimat säädökset. Samalla toteutetun tavaramerkkilain kokonaisuudistuksen kautta luotiin Suomeen moderni ja toimiva yhtenäinen tavaramerkkejä koskeva lainsäädäntö, joka on linjassa EU:n tavaramerkkioikeuden kanssa.
  • Hakkarainen, Mikko (2015)
    Asylum seekers aspiring to find refuge in the territory of the European Union are faced with a myriad of barriers to entry that inhibit or even prevent legal entry into the Union. Among these barriers emerges EU visa policy effectively requiring nationals of all major refugee-producing countries to meet strict visa requirements to lawfully cross the external borders of the Union. As a result many attempt to reach the territory of the Member States irregularly and often in precarious fashion. The EU Visa Code (810/2009/EC) enables Member States to issue visas for humanitarian purposes despite the applicant not fulfilling the prescribed entry requirements under the Schengen acquis. The thesis expounds current visa practices in the Schengen framework and sheds light on the barriers to entry and the notion of the humanitarian visa. The employment of conscious and harmonised visa policy at Union level could facilitate the safe passage of asylum seekers into the European Union as one tool in the toolbox for lowering the migrant death toll.
  • Pohja, Sebastian (2019)
    Science plays an important role in determining factual issues. Science also has a link with public international law. Courts, whether national or international, rely on scientific facts, theories and expertise in their work. The United Nations’ principal judicial organ, the International Court of Justice, is not an exception and occasionally it has to rely on scientific expert evidence. This thesis studies the procedural rules related to scientific fact-finding in the International Court of Justice. The theoretical background of the thesis is based on the division of two important schools of thought when it comes to scientific fact-finding in international adjudication. The so-called nihilist school is rejected in the thesis but the emphasis is on a variation of the second school (Victorian engagement) called outsourcing school. The outsourcing school claims that international courts take scientific knowledge into account when solving disputes and they call experts to produce evidence. The thesis addresses the following research question: “Should scientific experts be heard before the International Court of Justice as counsels or as witnesses”. The research method is purely traditional doctrinal legal research. This method was chosen because of the sources of the study that mainly consist of provisions of the Statute of the International Court of Justice, the Rules of Court, other official documents and case-law of the International Court of Justice. The first part of the thesis, focusing on the Statute of the International Court of Justice and the Rules of Court, utilizes the standard interpretation methods of international treaties. When it comes to the second part of the study, the case-law, the method is to describe and critically analyse three cases of the International Court of Justice. In the thesis I have been able to confirm that pursuant to Article 43(5) of the Statute of the International Court of Justice together with Articles 54-72 of the Rules of Court, scientific experts should be heard before the Court as expert witnesses instead of counsels of the parties. This approach seems to be applied by the Court according to its latest case-law. The conclusion is confirmative interpretation applied by the Court in Whaling in the Antarctic case. The interpretation of the Statute of the International Court of Justice and the Rules of Court demonstrates that there are multiple provisions concerning experts in the oral proceedings. It is not mentioned in the rules that experts should be heard as counsels in the oral proceedings. Instead the rules concerning experts in the procedure all focus on the oral proceedings and assimilate experts with witnesses. This suggests that the correct position for scientific experts is as expert witnesses who make the solemn declaration before giving their evidence. The three cases assessed in the thesis are all related to international environmental law because it is a field of law with close connection to scientific knowledge. The first case, Gabčíkovo-Nagymaros, demonstrated that hearing the experts as counsels caused mostly a confusion and eventually the Court partly rejected the scientific evidence in the judgement. The second case, Pulp Mills on the River Uruguay, was a “game changer” in the sense that the members of the Court identified the problem of hearing scientific experts as counsels and expressed in the judgement and the dissenting opinions that hearing them as expert witnesses would have been much more reasonable. The last case, Whaling in the Antarctic, was basically the Court’s new interpretation put into practice. In this case the Court used the whole potential of Article 43 of the Statute of the International Court of Justice and Articles 54-72 of the Rules of Court and it proved to be beneficial to hear experts as expert witnesses instead of counsels. Hearing scientific experts as expert witnesses gives the parties the possibility to better actualize their procedural rights. They may both examine the expert evidence by presenting questions directly to the experts called by either of the parties. It increases the efficiency of the procedure because the experts do not engage in reviewing each other’s actions or rhetorical speeches but focus on the scientific issues. Additionally it makes the procedure more transparent because one may note the responses to questions presented by the members of the Court and observe what the judges are focusing on.
  • Mykkänen, Esa (2017)
    Tämä tutkielma käsittelee palauttamiskielto-periaatteen sisältöä kolmessa eri ihmisoikeussopimuksessa. Palauttamiskielto-periaate liittyy pakolaisoikeuteen, mutta sitä toteuttaa nykyisin myös yleiset ihmisoikeussopimukset. Valitut kolme ihmisoikeussopimusta ovat sopimus pakolaisten oikeudellisesta asemasta (1951, myöhemmin YK:n pakolaissopimus), Euroopan ihmisoikeussopimus (1950, myöhemmin EIS) ja kidutuksen ja muun julman, epäinhimillisen ja halventavan kohtelun tai rangaistuksen vastainen yleissopimus (1984, myöhemmin KVY). Ensimmäinen ja viimeinen sopimus ovat YK:n alaisuudessa solmittuja sopimuksia, kun taas keskimmäinen sopimus on Euroopan neuvoston alainen. Palauttamiskielto-periaate merkitsee pääpiirteissään sitä, että henkilöä ei saada siirtää pois maasta, jos häntä siirron kohteena olevalla alueella kohtaisi perusteltu riski vainosta, kidutuksesta taikka epäinhimillisestä tai alentavasta kohtelusta tai rangaistuksesta. YK:n yleissopimus suojaa henkilöä vainolta ja koskee henkilöitä, jotka ovat kotimaansa ulkopuolella eli sillä on selvin kytkös pakolaisiin. EIS suojaa kaikkia henkilöitä kotimaassa olemisesta riippumatta, ja sen tarjoama suoja kattaa niin kidutuksen kuin epäinhimillisen tai halventavan kohtelun tai rangaistuksen. KVY suojaa samaten kaikkia henkilöitä kotimaassa olemisesta riippumatta, mutta sen tarjoama suoja kattaa vain kidutuksen. Työssä on eroteltu periaatteen sisällöstä eri osa-alueita, jotka ovat suojan alueellinen ja henkilöllinen kattavuus, kielletyn kohtelun sisältö, riskiä koskeva harkinta ja periaatteen absoluuttinen luonne. Näitä osa-alueita käsitellään sekä kussakin sopimuksessa erikseen, että sopimuksia vertailevasti. Täten tarkoituksena on selvittää periaatteen sisältöä kussakin sopimuksessa huomioiden mahdollisia eroja ja yhtäläisyyksiä sekä aukkoja suojelussa, jota periaate etenkin pakolaisille tarjoaa.
  • Grönholm, Jessica (2015)
    This thesis addresses the role of home states in relation to extraterritorial human rights violations committed by their corporate nationals, more specifically transnational corporations (TNCs). This thesis examines the difficulties of holding TNCs directly accountable for the violations they commit. Secondly, this thesis explores whether and to what extent home states of TNCs can become responsible for extraterritorial human rights violations committed by TNCs domiciled in their territories. This thesis approaches the issue of home state responsibility from two separate points of view namely the law on state responsibility and international human rights law. Growing corporate power and its possible detrimental impact on the enjoyment of human rights has not gone unnoticed. TNCs’ corporate structures are as the name says, transnational, and their operations are commonly global. This in turn leads to a situation in which the operations of a TNC existing under the laws of one state may impact the lives of people located in other the countries hosting the operations of the TNC. Although some attempts have been made in the international legal sphere to keep corporations directly accountable for the human rights violations they commit, under the current state of international law, no legally binding provisions exist to keep corporations directly accountable. Focus has therefore been on states’ obligations to ensure the adequate protection of human rights and this thesis stresses the obligations of the home state. The two separate approaches to state responsibility examined in this thesis are built on very different premises. Firstly, the law of state responsibility provides the circumstances pursuant to which the acts of TNCs can become attributable to the home state as an act of state. As a general rule, private acts are not automatically imputable to the state, but may under certain circumstances be considered as such. This thesis explores the exemptions to this basic rule of non-attribution and the conditions when a state can be held responsible for the acts of TNCs. Pursuant to the rules of state responsibility, acts of TNCs may become attributable to the home state in four situations, namely when the TNC has the status of an organ of the state de facto or de jure; when the TNC has been authorized to exercise governmental authority; when the TNC has acted under the instructions, direction or control of the state and when the home state acknowledges and adopts the conduct as its own. However, as this thesis demonstrates the criteria for attribution of TNCs’ conduct to the state are rather strict and the practical usefulness of the law of state responsibility for the purposes of keeping home states responsible for human rights abuse is rather speculative. The second approach adopted in this thesis finds its basis in human rights law. It is widely acknowledged that states are under an obligation to respect, protect and fulfil human rights. Of these three aspects, the obligation to protect is central to this thesis as it concerns the state’s duty to protect human rights of individuals from infringements of non-state actors such as TNCs. The positive duties to protect human rights have traditionally been perceived to apply in the domestic territories of the state, and this thesis examines whether the home states of a TNC can be under an obligation to extend this protection to the human rights of people in third states and thus to control their corporate nationals by means of e.g. legislation. The recent developments in this field signal of a willingness to recognize and strengthen the duties of home states’ extraterritorial obligations. This is perhaps due to the fact that recent initiatives have on the one hand abandoned the idea of direct corporate accountability and relied solely on the permissibility of home state regulation, which is insufficient and gives rise to governance gaps. However, the work of various human rights treaty bodies signal of the possibility of recognizing such home state obligations and is also discussed in this thesis. Conclusively, the discussion in this thesis provides that home states can incur state responsibility under certain rather strict conditions. The conclusions also highlight that of the two approaches addressed in this thesis, international human rights law is perhaps a better tool in this regard. Nevertheless, the existence of legally binding norms is still an unresolved matter. Therefore the conclusions of this thesis observe the need to clarify the precise scope of the extraterritorial obligations of home states with regard to control of TNCs.