Browsing by Subject "Human Rights Law"
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(2021)As transnational corporations have emerged as some of the most prominent actors within the international system, there have been several attempts to approach them through international legal and normative instruments during the past 50 years. Despite this, there is no established system by which corporate actors can be held directly accountable for human rights abuse under international law. Accessing domestic remedies for human rights abuse by transnational corporations remains a challenge as the abuse often occur in regions where fair and effective court proceedings are unavailable. Extraterritorial court proceedings, on the other hand, entail several practical and legal barriers to the access to remedy, causing a general lack of final court rulings in the field. Against this background, international arbitration has been proposed as an accessible and effective method for the resolution of disputes which concern corporate activities and human rights. In December 2019, the Hague Rules on Business and Human Rights Arbitration were launched with the intent of facilitating arbitration of disputes in this context. The aim of arbitration under the Hague Rules is to provide those affected by adverse human rights impacts of businesses with the possibility of a remedy and to provide businesses with a mechanism for addressing their adverse human rights impacts. The aim of the study is to examine the potential of international arbitration as an alternative dispute resolution method for cases concerning adverse human rights impacts by transnational corporations. As the underlying issues which give rise to the need for a non-Statebased grievance mechanism, the thesis addresses the limited international legal framework applicable to corporate actors and the barriers to remedy that victims may face in human rights litigation against transnational corporations. Acknowledging that arbitration is not meant as a general substitute for Statebased redress mechanisms, the thesis finds that international arbitration under specialized procedural rules can provide several advantageous features that improve the access to remedy for victims of human rights abuse by transnational corporations. However, the availability and effectiveness of arbitration in this context is dependent on additional mechanisms to be established on the initiative of states, businesses or international institutions. The thesis concludes that business and human rights arbitration is a well-motivated option to be developed further.
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(2021)Abstract Faculty: Faculty of Law Degree programme: Master of Laws Study track: International Law Author: Sami Keinänen Title: The Progressive Development and Codification of Peremptory Norms of International Law Level: Master’s Thesis Month and year: November 2021 Number of pages: XXXII + 80 Keywords: International Law, Human Rights Law, Jus Cogens, Peremptory Norm, State Immunity, State Responsibility, Universal Jurisdiction, Draft Conclusions on Peremptory Norms of International Law, International Law Commission Supervisor or supervisors: Ukri Soirila Where deposited: University of Helsinki Library Additional information: Abstract: Jus cogens has attributes from both legal positivism and natural law and has witnessed narrow and more expansive interpretations. This thesis examines the case law related to peremptory norms, the theoretical and practical features, defects and definitional issues of jus cogens, and the ideological changes which need to take place in order to facilitate its future applications as a general rule of international law. Article 53 of the Vienna Convention defines peremptory norms as rules accepted and recognized by the international community of states as a whole as norms from which no derogation is permitted, voiding treaties if at the time of their conclusion they conflict with peremptory norms of international law, effectuating a normative hierarchy of international law and allowing sovereign states to be bound by norms which they have not explicitly consented to. The essential nature of peremptory norms is believed to be that they reflect and protect the fundamental values of the international community. The determination of the substance and applicability of peremptory norms has been the subject of enduring debate and uncertainty. Jus cogens suggests a non-consent-based hierarchy of norms, but in its sectoral aspects its influence has been negligible due to both political and ideological reasons and the distinction between substantive and procedural rules. The international community has not reached a consensus on whether the primary value of jus cogens is in the symbolic idealization of a value-oriented international legal order, or in the direct application of fundamental principles of general international law. The contemporary effects of jus cogens have therefore been more subtle than they could have been with a strict hierarchical interpretation of jus cogens as the highest law. Following the International Law Commission’s Draft Conclusions on Peremptory Norms of General International Law (jus cogens) in 2019 this thesis systematizes and analyzes the major decisions of courts, debates and conclusions of the International Law Commission, comments by governments and the writings of scholars in an attempt to exhibit that the real obstacle for the broad interpretation of jus cogens is not strictly juridical, and can be resolved with a socio-legal approach and a reprioritization of interests. The fiduciary theory places international law over sovereignty and the interests of individuals over those of states, and could be the required missing piece in addition to a hint of judicial activism which would allow jus cogens to fulfil its potential. Jus cogens continues to develop progressively, and the Draft Conclusions have engaged the international community in a discussion that will ultimately, given enough time, result in an evolution of the concept of jus cogens and the establishment of a value-based international legal order founded on the fundamental principles of human rights.
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(2020)Indigenous peoples and local communities’ traditional knowledge are essential for the protection of global biodiversity as 80 % of the global biodiversity lies within land managed by indigenous peoples. Traditional knowledge has been misappropriated since before the 15th century. Today, traditional knowledge is misappropriated when corporate entities monopolise and patent the knowledge, without the communities’ approval. Knowledge is also lost due to environmental disruption by development and infrastructure projects. The Convention on Biological Diversity and the Nagoya Protocol protects traditional knowledge through access and benefit-sharing obligations. The Nagoya Protocol further holds an obligation to consider community protocols, in accordance with domestic laws, when implementing state obligations concerning access and benefit-sharing. As it is only the Nagoya Protocol that directly refers to community protocols and only as an obligation to consider them in accordance with domestic law, the benefit of community protocols and their ability to protect traditional knowledge, depends on the support and regulation of community protocols at both the national and international level. The aim of this study is, therefore, to examine the protection of traditional knowledge by using community protocols, by analysing how community protocols are regulated and supported at the local, national and international level. To determine how community protocols are regulated and supported at the international level, the Nagoya Protocol and decisions by the Conference of the Parties to the Convention on Biological Diversity are examined. To conclude how community protocols are applied and upheld in practice, national legislation and practices regarding the support and development of community protocols are reviewed. At the local level community protocols by the Raika community in India and the Kukula Traditional Health Practitioners Association in South Africa are analysed, together with an analysis of the national legislation relating to the protection of traditional knowledge. This thesis finds that at the international and national level, the use of community protocols is encouraged as an instrument to assist in the access and benefit-sharing process. They are not regulated or supported as an instrument that can protect environmental sustainability, which would also indirectly safeguard traditional knowledge. However, at the local level community protocols are seen as a more versatile tool that can be used to protect the environment, provide access to restricted land and clarify the access and benefit-sharing procedure. Community protocols are by no means regulated or supported as a panacea for the protection of traditional knowledge and the regulation and support for them at the local, national and international level differ. Nevertheless, community protocols are considered to be a versatile instrument that can be adapted to suit the indigenous communities’ needs depending on the states willingness and the communities understanding of their rights both nationally and internationally.
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