Browsing by discipline "Kansainvälinen oikeus"

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.