Browsing by discipline "Folkrätt"

This thesis examines the principle of non-refoulement under two different frameworks of international law, refugee law and human rights law, with the purpose of finding out how the content and interpretation of this principle are different between them. While the main purpose and idea of the principle is the same, to protect individuals from being sent to persecution or torture or other ill-treatment, there are nevertheless some differences. Therefore, the purpose of this research is to determine how and to what extent non-refoulement is interpreted differently in these regimes. Furthermore, an analysis on the reasons behind these differences as well as a discussion on the significance it has to the individual are also included. The main difference between the two frameworks concerns exceptions. Under human rights law, non-refoulement is an absolute principle and no derogation from it is allowed under any circumstances. On the contrary, two exceptions are permitted in the refugee law framework allowing states to expel, extradite or remove in other ways an individual even if a risk to their life or freedom exists in the receiving state if that person is a risk to the national security or the person has been convicted of a serious crime and is considered a danger to the community. These different interpretations on non-refoulement create situations where an individual may be treated differently depending on which framework is applied. Some scholars have also questioned the absoluteness of Article 3 of the European Convention on Human Rights under which non-refoulement is protected. States have heavily protested against the European Court of Human Rights interpretation of Article 3 claiming that since exceptions are allowed under refugee law, they should be able to apply them. One of the issues is that refugee law is mainly applied at the national level which means that states are interpreting and applying international law in accordance with their interests. Often, the interest of states is different from that of the refugee which leads to the situation that the individual refugee loses as states are able to apply the exceptions. Furthermore, the lack of an international court or treaty body able to give binding decisions on the interpretation of the 1951 Convention has also contributed to the fact that the state perspective wins. When it comes to the underlying reasons behind these different interpretations, it appears that the human rights law interpretation on non-refoulement has been developed with the objective of guaranteeing protection for all individuals. Refugee law is of course focused on securing the rights of refugees but when examining the preparatory works of the 1951 Refugee Convention, it was clear that there was also a strong will to include a safety net for states in the form of exceptions. Thus, the diverging interests of individuals and states have contributed to the tension now visible between refugee law and human rights law. There appears to be a conflict between state sovereignty and the refugee’s rights and interests. It is therefore questioned whether the 1951 Convention provisions on non-refoulement actually offer protection for the individual or the state.

Sexual violence in conflict against men and boys has been prevalent throughout conflicts in history. Nonetheless, this form of violence has received less attention in international scholarly and judicial discourses than similar forms of abuse against women and girls. Building on critical feminist thought, this thesis seeks to study the thematic development of international criminal tribunals’ and courts’ discussions on sexual violence against men and boys in conflict. Further, it examines how feminist legal activists’ framings of conflict-related sexual violence are visible in international criminal law (ICL) case law and what consequences these framings have on male victims of sexual violence. Since the 1990s, the feminist debate on sexual violence in conflict produced different strategies of influencing the international debate on conflict-related sexual violence. Governance feminist have sought to do so from within ICL institutions and critical feminist have mostly reviewed and engaged in the discourse and its consequences largely as external actors. This thesis argues that in an attempt to include women’s concerns in ICL case law, governance feminism introduced a gender language to ICL that reduces a contextualising analysis of gender-based violence, which lies at the heart of feminist legal thought and advocacy, to a predominant focus on sexual violence. The adoption of this governance feminist understanding of gender has curtailed the recognition and documentation of conflict-related sexual violence against men and boys in ICL court and tribunal cases. The thesis shows that conflict-related sexual violence against men is primarily discussed by ICL benches under the themes of rape, torture, imprisonment and in some contexts as psychological violence. The examined courts utilise a simplistic understanding of conflict-related sexual violence. They frame male victims predominantly through the same lenses as female victimhood as feminised and humiliated individuals caught in power contestations, sex binaries with men as perpetrators and women as victims, and one-dimensional ethnic divisions. Sexually abused men who do not conform to heterosexual norms, are members of specific ethnic groups or have been violated in detention conditions are thus often not recognised as victims. Their evidence is frequently excluded from ICL court proceedings due to the absence of comprehensive deconstructions of social and cultural norms surrounding gender conceptions in ICL case law. The lack of this dismantling of gender constructions in ICL proceedings raises further questions on the treatment of complex identity questions in ICL courts and the role of critical feminist legal thought as either reform driven or critical lens on discussions of gender in ICL.

Most of world’s over 20 million refugees today reside in protracted refugee situations that are defined as refugee situations lasting more than 5 years with no immediate resolution in sight. These situations typically occur and are hosted by state actors in the developing world. These situations do not only challenge the basic premise of refugee protection, but they are a major source of irregular movements of people across state borders and a source of a number of adversarial security, political, institutional and human rights implications. Refugee presence is in turn often perceived as a possible source of insecurity by the host governments. Host governments have dealt with protracted refugee situations by enactment of containment policies that often prevent refugees from accessing basic services and posed a challenge to realization of refugee protection standards enshrined in the 1951 UN Convention Relating to the Status of Refugees. This study adopts a socio-legal research approach to exploring protection challenges and potential pathways of improving the lives of millions in protracted refugee situations. Through examination of relevant legal and policy framework as well as qualitative and quantitative data on protracted refugee situations, this study outlines typical trends and characteristics of protracted refugee displacement and explains some the key legal, political and institutional adversarial implications of protracted displacement. Focusing specifically on refugee camp environments, this study also employs a case study method to analyse the experience of Somali refugees in Kenya and Syrians in Jordan on protracted refugee displacement. The study also seeks to identify some of the shortcomings of existing governance of and international law and policy responses and framework on protracted refugee situations. The overall objective of this study is to examine protracted refugee situations as a specific challenge to the international refugee law and protection regime. The overall conclusion of this study is that the international refugee law and the actions of international community have not been adequate in their response to evolving nature of modern forced displacement as evidenced by prevalence of protracted refugee situations. With the projected impact of e.g. climate change, the policy shift and action is necessary to ensure that the international refugee protection regime is equipped to answer to the 21st century challenges of contemporary forced displacement.

“Excessive delays in the delivery of justice are equal to the denial of justice”. This is a sentence that has repeatedly appeared in different reports, research papers, comments and opinions circling the UN internal justice system. This article attempts to seek answers to the question whether it is possible to assess the quality of justice of the UN internal justice system in different ways established in national and supra-national organizations.

Is about the sanctions and procedures of the United Nations Security Council and the problems their application in practise may cause. Two cases are presented to exemplify the problems from an individual’s standpoint as well as that of the states bound by obligations towards individuals. The Kadi case represents a very direct breach of the rights of individuals attempted to justify with the need to protect and maintain international peace and security. It is argued that principles of necessity, proportionality, due process and legality are not paid sufficient attention and that the sanctions imposed by the Security Council should not be targeted on individuals since adequate means for legal protection are not available against such sanctions dictated by an intra-governmental organ without the capacity to arrange court hearings should the targeted individual wish to defend their self against the accusations. The facts of the Kadi case are presented along with the assessment of the human rights that conflict with the Security Council Resolutions in question. The improvements made into the procedures of the Sanctions Committee are noted despite the conclusion that they are not sufficient to make up for the inherent deficiencies of the sanctioning system in terms of human rights guarantees. In the Lockerbie case, the thesis argues, the Security Council was utilized to circumvent an international treaty to allow for a result that satisfied two of the permanent members of the Council, which again led to a violation of the rights of an individual. The Security Council demanded Libya to adjust its claims under the Montreal Convention which essentially prevented the International Court of Justice from effectively applying its jurisdiction. Instead being given the opportunity to trial its own nationals, Libya was pressured into allowing an international ad hoc court to try the suspects in the Netherlands. As a result, the individuals in question were put through a trial in which their rights as the accused where blatantly overlooked. Whether the convicted individual or any Libyan national for that matter, was responsible for the bomb aboard the Pan Am flight that exploded above Lockerbie in 1988 Is left uncertain. The authority and function of the Security Council and the historical background of it is presented in the third chapter. The reality of international politics is taken into account when deliberating the options for the restriction of the actions of the Council. The instances that are examined in sought of possible solutions include the International Court of Justice, the United Nations Charter, the General Assembly, human rights and international law. Assessment of the possible restrictions is performed taking into consideration the continuing need for an effective organ with the means to intervene when something threatens international peace or security. The credibility of the institution and the present and (possible) future compliance issues are reflected on. The European development in especially the field of human rights protection is presented as a possible source of inspiration for improving respect for fundamental human rights within the United Nations. The conclusions present the need to balance the different goals of the international community and the Security Council as the instrument of international law enforcement. Effective peace maintenance and human rights protection need to find correspondence with the interests of both the members of the Security Council and the general membership of the United Nations to allow both individual and common benefits realized. Being aware of the difficulties in changing greatly influential, international documents such as the United Nations Charter, which was obviously a result of various compromises to begin with, changing the Charter directly, is mostly disregarded as an option for updating the function of the Security Council. The thesis relies on the assumption that changing the Charter is not a realistic option at the moment and looks for solutions to the presented problems elsewhere. Gradually changing the present standpoints, deliberation procedures could amount to a sufficient correction of the power locus around the Security Council. If not, the International Court of Justice adopting a more teleological style of interpretation to reign in the actions of the Council could pose as a last resort to finding the necessary check to the balances.

Sovereign debt plays an important role in the public finance and financial stability of a state. The euro crisis and the Greek sovereign debt restructuring in 2012 have caused an increasing interest in sovereign debt in the eurozone. The fact that countries in the eurozone with a weaker economic profile have a more difficult access to funding has provoked economists make suggestions to create seniority in sovereign borrowing. In those proposals, EU countries would pool a portion of their national debt as senior sovereign debt, while national debt beyond this would be treated as junior debt. Although the creation of senior structures in sovereign debt has been widely discussed in the eurozone, there is only very limited research on the legal ways to create seniority in sovereign borrowing. The research questions of this thesis are 1) ‘How does seniority operate in sovereign borrowing from the legal perspective?’ 2) ‘What would be a concrete example creating seniority in sovereign debt of eurozone members?’ and 3) ‘What legal elements should be considered if creating seniority in sovereign debt of eurozone members?’ The thesis will firstly present the suggestions by economists to create seniority in sovereign borrowing and then continue to study sovereign debt The thesis will assess the first research question by introducing the basic concepts of sovereign debt: definition of sovereign debt and default, sovereign debt creditors, debt restructuring and the governing law. Furthermore, the thesis will research the principles of international law affecting the status of a sovereign, the preferred status of international organizations and the interpretation of the pari passu clause in the sovereign debt contracts. To respond to the second research question, the thesis will present a national tranching proposal created by Wendorff and Mahle in detail. To respond to the third research question the thesis will be assessing possibilities for seniority in the eurozone by using a framework of formal, structural and functional elements. The thesis considers that the most likely way to create seniority in sovereign borrowing in the eurozone would be through an agreement, thus the relevant formal elements would be on governing law and on the agreement. Alternatives to governing law would be changing English law, changing national legislations of eurozone countries or creating an international convention with a framework which the contracts could refer to. Important considerations in creating agreements with seniority structures would be the choice of law and contract clauses. From existing systems of law, English law would be the most suitable national law as it is already widely used in sovereign debt contracts in the eurozone. In regard to the contract clauses, the thesis will not suggest any specific clauses to be introduced but looks at the existing contracts already in use in private borrowing and analyses the learnings from the use of pari passu in sovereign borrowing. The nature of sovereign debt as a less-developed area of international law makes the research a bit more dispersed, together with the fact that sovereign debt positions itself in the intersection of private and public international law. Although sovereign debt seniority is much researched from the economic perspective, legal contributions are still few and additional research on the topic is needed. Legal aspects of sovereign debt have a large effect in the development of the EU as a political union, thus in-depth research on the topic is crucial.

Tässä tutkielmassa tarkastellaan siirtymävaiheen oikeutta erityisenä oikeudenalana ja esitellään sille ominaiset toimintamekanismit. Näiden toisiaan täydentävien mekanismien tarkoituksena on vastata tietyn valtion alueella repressiivisen hallintojärjestelmän aikana tehtyihin törkeisiin ihmisoikeusloukkauksiin. Siirtymävaiheen prosessin myötä pyritään laiton hallintojärjestelmä saattamaan päätökseen sellaisin kauaskantoisin keinoin, jotka takaavat yhteiskunnan muutoksen rauhanomaisesti, pysyvästi ja kestävästi. Tutkielmassa määritellään ensin valtion kansainvälisen oikeuden mukainen vastuu ja toimintavelvoitteet valtion edellisen hallinnon aikana syyllistyttyihin ihmisoikeusloukkauksiin. Työssä esitellään tärkeimmät voimassaolevat ihmisoikeussopimukset ja määritellään sellaiset törkeät ihmisyyttä vastaan tehdyt rikokset, joihin apartheid- hallinto syyllistyi tiettyjä henkilöryhmiä kohtaan Etelä-Afrikassa vuosien 1948-1990 aikana. Tuolloin rotuerottelupolitiikkaa käytettiin valtiovallan systemaattisena välineenä sen politiikan tueksi ja valtaapitävän eliitin aseman vahvistamiseksi. Etelä-Afrikan ihmisoikeusrikosten räikeys herätti kansainvälisen yhteisön vakaasti vastustamaan rotuerottelupolitiikkaa. Tapahtumat muokkasivat yleistä oikeusajattelua ja rotuerottelun luonnetta rikoksena ihmisyyttä vastaan alettiin korostaa. Tämä johtikin kansainvälisten syrjinnän ja rotuerottelun vastaisten valtiosopimusten solmimisiin. Siirtymävaiheen mekanismeista poimitaan lähempään tarkasteluun totuuskomissiotie vertaillen sitä rikosoikeudenkäyntivaihtoehtoon. Pohditaan kysymystä, tulisiko siirtymävaiheessa keskittyä menneiden läpikäyntiin ja syyllisten rankaisemiseen, vai mieluummin totuuden löytämiseen ja tulevaisuuteen kohdistuviin muutoksiin, jotka ehkäisisivät historiaa toistamasta itseään. Totuuskomission toimivaltuus perustuu hallituksen myöntämään virallisen mandaattiin, joka määrittää sen toiminnan laajuuden ja rajat. Tutkimuksessa on pyritty erittelemään, millä tavoin totuuskomissio voi olla hyödyksi demokraattiseen hallitusmuotoon siirryttäessä ja jälleenrakennettaessa kansainvälisen oikeuskäytännön ja oikeusvaltioperiaatteen mukaista yhteiskuntaa. Esitetään näkemys siitä, että siirtymävaiheen oikeus, ollakseen pitkällä tähtäimellä muutoksia aikaansaava, on nähtävä holistisesti lähestyttävänä haasteena, jossa huomioon on otettava valtion poliittinen, kulttuurillinen ja historiallinen konteksti. Tarkemmin tarkastelussa on perehdytty Etelä-Afrikan Totuus- ja sovittelukomissioon (Truth and Reconciliation Commission of South Africa, TRC), mutta myös muidenkin totuuskomissioiden työtä ja tuloksia on käytetty havainnollistettaessa tämän mekanismin vaikutuksia yhteiskuntaan. TRC:n osalta pohditaan, miten tämä totuuden selvittämistä ja sovinnollisuutta korostanut totuuskomissio toteutti sille kansainvälisen oikeuden mukaiset tavoitteet: totuuden selvittäminen, ihmisoikeusrikoksista syyttäminen ja rankaiseminen, vastaavanlaisten rikosten ennaltaehkäisy tulevaisuudessa ja asianmukaisten hyvitysten takaaminen rikosten asianomistajille. Syitä eritellään siihen, miksi kiistellyn armahdusehdon kirjaamiseen päädyttiin Etelä-Afrikan väliaikaisesta perustuslaista ja demokraattisista vaaleista neuvoteltaessa. Työssä pohditaan, oliko armahdusten takaaminen siten ristiriidassa edellä mainittujen kansainvälisoikeudellisten velvoitteiden kanssa, vai edistikö se peräti totuuden selvittämistä toimien siten demokratian ja yhteisön eheytymisen kannustimena. Etelä-Afrikan Totuuskomission onnistumisiksi on luettava ainakin sen tavoite nostaa esiin apartheidiin liittyvät laajemmat ilmiöt, kuten vaikkapa eri ammattikuntien ja muiden yhteiskunnassa vaikuttavien tahojen vastuu järjestelmän ylläpitämisessä. Totuuskomissio järjesti mahdollisuuden tulla kuulluksi kaikille niille asianomistajille, jotka olivat halukkaita antamaan lausuntonsa. Todistajainsuojeluohjelma ja uhreille järjestetty psykologinen tuki madalsivat todistajien kynnystä tähän. Armahduksen myöntämisen mahdollisuus osaltaan edisti totuuden selvittämistä, sillä ihmisoikeusrikoksiin syyllistyneillä oli mahdollisuus täyden tunnustamisen kautta vapautua syytteistä. Siihen, edistikö Totuuskomissio yhteisön eheytymistä ja traumaattisista kokemuksista vapautumista pitkällä tähtäimellä, ei tässä tutkimuksessa voitu antaa yksiselitteistä vastausta.

This thesis addresses the role of public international law in the debt crises of developing countries. More specifically, it explores whether the rules of treaty law, the law of State responsibility, and international human rights law provide any guidance for debtor States seeking relief from their official creditors in times of difficulties arising from exogenous shocks. This issue is of much importance in an era when crises are more common and interrelated than before. Developing countries are particularly vulnerable to crises and, moreover, the total debt burden of developing countries has continued to increase steadily. Even though today there are some international mechanisms for resolving debt crises, such as the Paris and London Clubs and the HIPC Initiative, renegotiations continue to be based on ad hoc arrangements and political negotiations. Major creditors are generally much more powerful than their debtor countries. One reason for this is that there is no international regulation of sovereign insolvency and the role of litigation is small. Resolution of debt crises is disorderly and may come at a high cost for developing countries, as they are often deprived of their economic independence. Due to this unstructured nature of sovereign debt, many call for a more legally oriented practice. The three branches of international law that this thesis is interested in provide different approaches to debt. Firstly, treaty law concerns termination and suspension of international agreements. When the debtor faces difficulties, it may try to suspend the loan agreement on the grounds of fundamental change of circumstances (rebus sic stantibus), for example, provided that the debtor’s burden has increased in an unforeseen manner. However, applying this ground is subject to strict requirements and, moreover, treaty law is relevant only for loan agreements governed by international law. Secondly, the law of State responsibility provides for legal justifications that a debtor State may invoke if it cannot pay its debts. While force majeure is limited to situations of material impossibility, the customary defence of necessity is more interesting in the context of sovereign debt. Under necessity, the breach of an obligation is justified, if it helps to safeguard an essential interest, such as the provision of essential public services. Recently, Argentina, for example, has invoked necessity in litigations relating to its default. However, so far, courts and tribunals have been reluctant to apply necessity in practice, as the requirements for applying the defence are very strict. The third area of interest, human rights, is somewhat different from the two others. Sovereign debt has important implications for human rights and heavy debt burdens have often been found to constitute an important obstacle for the realization of economic and social rights in particular. In many cases poor debtor States are not able to both service their debts and to take care of the basic needs of their citizens. Human right aspects are often overrun by creditor interests, even though debtor States have obligations to provide a minimum level of rights to their own people and States in general are obliged to respect and not to harm the realization of rights in other countries. The biggest challenge with rights-based arguments is the lack of enforcement mechanisms. All in all, even though debt crises are normally resolved in political negotiations, international law has some kind of a role to play in their resolution. Even though they are not perfectly suitable to debt crises, the above mentioned arguments nevertheless provide legal guidance and may assist debtors to seek justice against creditor countries and international financial institutions. Such a legal approach can also make the resolution of debt crises more fair to all parties.

Tiivistelmä/Referat – Abstract This thesis aims to unravel one of undiminished debates of international law, namely, the correlation between State immunity in civil proceedings and jus cogens norm. It attempts to do so by exploring how one of the two affects the other one within the respective rationales. On the side of State immunity, at heart of the debate is whether or not a jus cogens exception to immunity can be covered by the rationale of the restrictive immunity. For an act of a foreign State to be immune under the current phase of State immunity, it should either be acta jure imperii or fall within the provided exception to immunity in the written rules of State immunity. Thus, in order for a State that violated jus cogens norm to be accountable before a foreign court, acts contrary to jus cogens should be by no means sovereign acts. However, the examinations on the contemporary categorization of State conducts and the legal structure of State immunity draws that even those acts are still considered as acta jure imperii, notwithstanding the abusiveness of the sovereign power, the lack of official mandate and severe illegality of the acts. Furthermore, none of the written law of immunity provide a jus cogens exception. Meanwhile, even acta jure imperii that causes physical harms to person or property in sovereign capacity can be deprived of jurisdictional immunity under the so-called territorial tort exception, as one of the traces that retains territorial sovereignty over State immunity. Summations of the legal debates on the territorial tort exception draws that the public character of jus cogens violating acts committed on the territory of the forum State is pushed back to territoriality. However, when it comes to armed forces and military operations, international law entitles absolute immunity to the group and the acts committed even on the territory of the forum State. On the side of jus cogens, at the heart of debate is the impact of jus cogens as the highest international law on State immunity both internationally and nationally. Some argue that the superior attribute of jus cogens enables the norm to automatically overrides the immunity of a foreign State. However, merely resorting to the notion of jus cogens and assuming a priori conflict is incompatible with the framework of current international law. Rather, for there to be a conflict between jus cogens and State immunity, it should be that jus cogens must contain a stipulation that State immunity cannot derogate from. On close scrutiny, however, both the literatures and the State practices in judicial form do not recognize any ancillary procedural rule of peremptory norm to offset State immunity. Moreover, any inherent means to enforce jus cogens cannot be deduced from the concept of jus cogens itself. At the domestic level, on the other hand, the impact of jus cogens as a rule of international law is limited in particular in the States with domestic immunity legislation. It has been upheld that even the supremacy of jus cogens does not affect the principle of the primacy of domestic legislation. Thus, although the doctrine of implied waiver was asserted in order to overcome the statutory limitation, the immunity is retained in those States, unless a jus cogens exception to immunity is enacted. In contrast, in the States where domestic immunity legislation is lacking, the jurisprudences adopted the interpretative approach that referred to the wide spectrums of the arguments of international law at issue including those of the law of State responsibility and focused on the values that jus cogens aims to protect.

In 2010 the Review Conference of the Rome Statute agreed to include a definition of the crime of aggression and conditions for the Court to exercise jurisdiction over the crime into the Statute. Determining the existence of an act of aggression falls within the scope of the UN Security Council’s Chapter VII powers. The purpose of this study is to examine the consequence of these new jurisdictional provisions in the context of the relationship between the International Criminal Court and the United Nations Security Council. In particular, the purpose of this study is to examine whether the International Criminal Court would engage in judicial review of Security Council resolutions on aggression, now that the Court has become entwined with the Council’s determinations on aggression under article 39. In international law, judicial review is understood as the review of Security Council resolutions (and sometimes General Assembly resolutions) by international courts. It is an examination or review conducted by a judiciary of the legality or consequences of acts of a legislative or executive body. The Charter of the UN does not directly empower any court with the power to review Security Council decisions. While some international courts have engaged in different forms of review or examination of Security Council resolutions, mainly due to questions arisen through litigation, no court has a similar jurisdictional relationship with the Security Council as the ICC does. The study examines the amendment provisions and the theory and practice behind judicial review in international law and concludes that it is possible that the ICC may engage in an expressive form of judicial review while deciding on acts of aggression and the crime of aggression.