Browsing by study line "International Law"

The emergence of a new wave of private companies and entrepreneurs who are entering the space industry, colloquially known as New Space, is challenging the traditional model of space exploration and exploitation and has brought with it a multitude of new opportunities and challenges, particularly in the realm of space mining. With the increasing interest in the extraction of valuable resources from celestial bodies such as the Moon, questions surrounding the legal status of the celestial bodies have become more pressing than ever before. This master’s thesis seeks to explore the legal status of the Moon in light of the emerging activities of New Space, specifically with regards to space mining. The thesis begins by providing a historical overview of the legal framework that currently governs outer space, focusing on the the Outer Space Treaty of 1967 and the Moon Agreement of 1979, as well as the discussions before and after the conclusion of these international agreements. It also examines the various proposals and debates surrounding the legal status of the Moon, including the concept of “common heritage of mankind.” Next, the thesis delves into current state practice embedded in recent national laws and policies that permit space mining, exploring the various legal frameworks that have been proposed or put into practice by governments. This includes a detailed analysis of the legal challenges facing space mining, such as the lack of clear property rights and the potential for conflict between different actors. Finally, the thesis explores some (existing yet marginalised) alternative ways to think vis-à-vis outer space and the celestial bodies at the age of New Space, by highlighting the need for continued collaboration and dialogue between international actors, as well as the importance of clear and comprehensive legal frameworks that define the legal status of the Moon for a peaceful and sustainable future for extraterrestrial activities.

Today’s geopolitical situation seems to give the EU and NATO many reasons to combine their forces. Following Russia’s unlawful attack against Ukraine in February 2022, both clubs of sovereign states have found themselves dealing with the same question; how to ensure security of the European continent against external aggressions? While defence is traditionally strongly linked with the core functions of NATO, it is evident that the EU has shown a keen interest in operating in this field as well. While this development is understandable and necessary, it sparks a need to have a thorough relook at the work distribution of these two organizations. Therefore, this thesis concentrates on the following research question: Understanding that a significant majority of Member States of the European Union are also members of NATO, to what extent do these two organizations’ legal mandate to act within the field of security and defence overlap with each other? What could be possible ways to further promote the clarity between the EU’s and NATO’s legal competences in the field? This research is first and foremost rooted in international institutional law, meaning that all aspects of this research are meant to serve the understanding of the regulatory framework in an inter-institutional relationship. While political dimensions are always closely intertwined with this aspect and are thus extensively discussed within the thesis, their main purpose still remains to serve as a tool to grasp the essence of the legal-regulatory side of the relationship. Consequently, this research follows a multi-method approach. The benefit of utilising a combination of methodologies is that it allows me to examine my research question from several perspectives; as my research question is multifaceted and includes both legal, political, and historical dimensions, I believe that this is the best way to gain the most complete picture of the research subject.

Following a long tradition of international criminal justice, the Office of the Prosecutor (“OTP”) of the International Criminal Court (”ICC”) has also directly targeted high-level international perpetrators to end impunity for the most serious crimes. However, after over two decades in action, the ICC has convicted only five international criminals, none of whom can be considered most responsible for the crimes, and has constantly intervened with the atrocities too slowly. The ICC’s ineffectiveness and the finding that domestic courts also struggle to prosecute international cases suggest that many international perpetrators may currently go completely unpunished, thus creating the so-called “impunity gap” for international crimes. Therefore, the OTP must no longer directly target the high-level offenders but instead consider a different approach for pursuing the same goal. Taking a socio-legal approach, this thesis aims to propose a new strategy for the OTP within an existing legal framework and to examine whether it could solve the problems causing the ICC’s ineffectiveness. With examples from the United States and the International Criminal Tribunal for the former Yugoslavia, this thesis proposes that the OTP must first prosecute several lower-level offenders while actively using plea bargaining to incentivize them to cooperate against their superiors to prosecute the high-level offenders successfully. This thesis argues that implementing the new strategy is crucial for the ICC to hold the most senior international offenders accountable and to build peace in war-torn regions as intended. At the center of this thesis is the finding on how the new strategy could help the OTP overcome its main investigative difficulties in terms of sufficient evidence and reliable witness testimonies. This thesis further argues that because the new strategy would allow the ICC to use its resources more effectively and grow more efficient, it can succeed better despite having a limited budget and global scope. However, the lack of political support and State cooperation limits the impact of the proposed strategy indicating flaws in the Rome Statute. This thesis also argues that the new strategy allows the ICC to produce a more significant deterrent effect while motivating the States to prosecute international cases more effectively. In conclusion, while the results of this thesis suggest that the OTP should implement the proposed strategy, as it would allow the ICC to narrow the impunity gap on behalf of the ICC itself and behalf of national courts, amending the Rome Statute to include provisions for enforcing the cooperation with the States might be required for better results.

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.

The Research aims to study the notions of responsibility and liability of controllers and processors and their development that led them to the current status under the GDPR. The Research will also evaluate the importance of the changes in business practices, whether the transmission to the GDPR regime was easy, and whether it was fully completed. The First Chapter of the Research studies the development of data protection legislation at the national and international levels, as well as the main points about data protection law in the EU, focusing is on the development of the responsibility and liability of controllers and processors. In the Second Chapter, the Research studies the approaches to the responsibility and liability of controllers and processors in the EU in detail. The provisions of the GDPR will be explored in comparison with the DPD, and the main changes for controllers or processors are discussed. In the Third Chapter, three recent cases related to non-compliance of different types of controllers: a public authority, a legal service provider and a retailer. This chapter studies the actual examples of challenges of the controllers and their consequences. The Research found that in any period of the development of legislation and at any level, the controller remained primarily responsible and liable, even when the concept of the processor was formed under the DPD. Even though the GDPR introduced several duties that aimed at both the controller and processor and those that were targeting the processor specifically, the existing available practice mainly concerns the controller. The Research also showed that there is still a need to improve the controller’s compliance with the obligations imposed under the GDPR.

This study focuses on an analysis of two challenges facing the Central Asian region: the establishment and advancement of the Rule of Law and the fight against corruption. Despite being a historically important geostrategic region at the crossroads of the European and Asian continents, Central Asia does not always receive the attention it deserves, and research materials specifically concerning the region’s issue of Rule of Law development and its relationship with corruption are few. This study aims to analyse and assess foreign evaluations and promotions of Rule of Law and anticorruption measures targeting Central Asian countries. The specific legacy of Soviet times and countries made of subnational identities and kinship networks suggests another type of modernity that need to be composed with. This study finds that the neoliberal model presuming that a thick rule of law combined with liberalised markets will result in economic development has been discredited by high growth countries having free-market economies and liberalised capitalism but maintaining high level of corruption, institutionalised autocracy and state capture. This study shows that global governance instruments have still not fully come to grasp with this reality. Many still combine economic objectives with rule of law advancement through neoliberal ideals. Yet, the promotion of free trade and deregulated markets can encourage rent-seeking activities, which in turn can foster corruption weakening the rule of law in developed countries and hindering its development in transition nations.

The alarming state of the environment has led to a sobering realisation by the global community of the need to act promptly for environmental protection. International environmental law is a fairly new field of law addressing the challenges that the global environment faces in an ever-increasing extent. The current study focuses on questions related to the application of state responsibility in the context of international environmental law, and difficulties involved in this respect. Additionally, the thesis will examine inherent ambiguities of international environmental law in respect of the preventive approach to environmental harm. The traditional response of international law to transboundary damage in general has been to impose responsibility on a state that has caused the damage. Accordingly, the state in question has been required to desist from the harmful conduct and to provide accurate reparation to the injured state for the damage that has been caused. In other words, the sovereign rights of states have been diminished for the benefit of the environment and issues regarding environmental harm have been addressed with a focus on reparation. The state responsibility regime is quite well established in international law and customary rules have been codified to provide a clear framework of preconditions in order for state responsibility to be invoked. The compatibility of the state responsibility regime with matters related to the environment can, however, be questioned. This is because state responsibility rests on a reparative approach in regard to harm caused to neighbouring states. The nature of irreversible and irreparable environmental harm, however, is such that requires prior attention rather than counting on a reactive approach to harm that has occurred. The challenges faced by state responsibility in the context of international environmental law include, for instance, difficulties in identifying the source of environmental harm, the establishment of a causal link between a suspected harmful activity and damage as well as the attribution of such harmful conduct to a state. The difficulties mentioned above have not gone unnoticed by the international community which has realised that the reparative no-harm rationale behind state responsibility is ill-adapted to address environmental concerns. The core objective of the rules of international law governing the environment is the prevention of environmental harm rather than just providing a state that suffers environmental damage an opportunity to seek reparation. Hence, a paradigm shift from a reparatory approach to a preventive approach has occurred. Essentially, the principle of prevention, which has become a foundational principle in the field of international environmental law, entails a duty for states to prevent, reduce or control significant transboundary environmental harm resulting from activities within their jurisdiction or control. However, while preventive action is preferable in regards of environmental protection, the regime of preventive measures is not without its ambiguities. Unclarities can be discovered, for instance, in the objective of the obligation to prevent harm as well as its core elements of due diligence and the threshold of significant harm. Despite its ambiguities, the principle of prevention remains as the governing norm in respect of addressing transboundary environmental harm. What needs to be acknowledged is that international environmental law finds itself in a state of development, whereby its rules and principles have yet to deploy their full legal effects. Notwithstanding the incompatibility of a reparative approach with environmental protection, the study arrives at the conclusion that state responsibility, while in principle not an ideal approach, at least for the time being has a significant role in addressing transboundary environmental harm – in ensemble with prevention.

The codification of the law of the sea at the third United Nations Conference on the Law of Sea (UNCLOS III) was a significant development within that body of law. With it came the establishment of a sui generis area in the seas named the Exclusive Economic Zone (EEZ). Each coastal state can establish an EEZ up to 200 nautical miles from the baseline of which its territorial sea is measured. Within the new zone, the separation of activities that belong under the freedom of the high seas took place. Sovereign rights and jurisdiction over such activities as fishing, erecting artificial installations and marine scientific research were attributed to coastal states. While traditional freedoms of the high seas, such as navigation, were assigned to flag states. The attempt to create a compromise represents the latest solution to the classic conflict between the free sea (mare liberum) and the closed sea (mare clausum). However, making a new zone between the high seas and the territorial waters of coastal states left legal ambiguity with activities that are not explicitly attributed to the coastal state or the flag state. Two of those unattributed activities are bunkering and ship-to-ship transfers. The uncertainty involving the two activities has created disputes which have found their way to the International Tribunal for the Law of the Sea (ITLOS). In the cases of the M/V “Saiga” and M/V “Virginia G,” the activity of bunkering foreign fishing vessels was adjudicated at ITLOS. The three options available to the Tribunal were to attribute bunkering to the coastal state, the flag state, or deciding the activity based on equity. In M/V “Saiga,” ITLOS used judicial restraint and refused to settle the issue of bunkering, despite the request of both parties. However, the situation in the case of M/V “Virginia G” required a decision. Through arguments using the text of UNCLOS and the practices of coastal states, ITLOS decided the bunkering of foreign fishing vessels to be under the jurisdiction of the coastal state due to a connection with fishing. Bunkering in all other instances and arguments based on marine pollution were not considered. Currently, before ITLOS is the case of the M/T “San Padre Pio.” The unattributed activity of conducting a ship-to-ship transfer within the EEZ of a coastal state will be decided. An analysis of the argumentation utilized in earlier cases was used to predict the outcome of this dispute. The Tribunal will likely find a solution based on incompatible laws and will not have to categorize ship-to-ship transfers, thus leaving the activity’s attribution unsettled.

Tämä tutkielma tutkii syitä siihen, miksi nk. ”ihmisoikeuspoikkeus” ei ole sellaisenaan menestynyt hyväksyttynä poikkeuksena valtion, valtiojohdon tai diplomaatin immuniteettiin. Ihmisoikeuspoikkeuksella tarkoitetaan tässä tutkielmassa poikkeusta immuniteettiin, joka perustuu ainoastaan ihmisoikeusloukkaukseen. Tällaisessa tilanteessa immuniteettia siis rajoitettaisiin siten, että ihmisoikeutta loukannut valtio, valtiopäämies tai diplomaatti ei voisi enää nauttia sen tuomasta suojasta. Näin saatettaisiin ihmisoikeusloukkauksen tehnyt taho oikeudelliseen vastuuseen. Tutkielman aihetta lähestytään pääosin lainopillisin keinoin. Tutkielma toteaa, että pääsyy ihmisoikeuspoikkeuksen menestymisen tiellä on varsinkin Kansainvälisen tuomioistuimen ICJ:n suhtautuminen jus cogens-argumenttiin. Tutkielmassa todetaan argumentin perustuvan siihen, että tietyt ihmisoikeudet ovat jus cogens-luontoisia, jolloin niistä ei voida millään tavalla poiketa. Näin ollen immuniteetin tuoma suoja ei olisi sovellettavissa niiden loukkaustapauksissa. Immuniteetti taas on prosessin este, joka estää tuomioistuinta edes tarkastelemasta onko jus cogens-luonteen omaavaa sääntöä rikottu. Kansainvälinen tuomioistuin näkee näiden kahden käsitteen välillä ylitsepääsemättömän ongelman, jonka vuoksi ihmisoikeuspoikkeuksen edistäminen valtion tai valtiojohdon immuniteetin tasolla ei ole edennyt. Tutkielma näkee potentiaalisen takaportin ihmisoikeuspoikkeukselle muodostuvan diplomaattisen immuniteetin tasolla. Tarkasteltaessa Iso-Britannian korkeimman oikeuden kahta päätöstä on selvää, että ihmisoikeusloukkausten uhrien edustajat ovat myös havahtuneet jus cogens-argumentin menestyksettömyyteen. Näin ollen ihmisoikeuspoikkeusta on lähdetty edistämään Diplomaattisia suhteita koskevan Wienin Yleissopimuksen (VCDR) artiklan 31(1)(c):n liiketoimintapoikkeuksen alla, luoden potentiaalisen pohjan yleiselle ihmisoikeuspoikkeukselle tulevaisuudessa.

The thesis is a study of the communicated case ‘S.S. and the Others v. Italy’ (application no. 21660/80) of the European Court of Human Rights (ECtHR). The application is on behalf of the victims of an incident in which a migrant boat found itself in distress after having left Libya for Europe. The Libyan Coast Guard failed to rescue all of the migrants and allegedly acted negligently, mistreating those they took onboard, and returned them to Libya, exposing them to continued ill-treatment and some of them also to forced return (refoulement) to their countries of origin. Italy is a State Party to the European Convention on Human Rights (ECHR), and has a bilateral agreement, ‘Memorandum of Understanding’ (MoU), with Libya (a non-ECHR State). On the basis of the MoU, Italy funds and equips the Libyan Coast Guard. The agreement can be seen as a means to ‘outsource’ border control and to instruct Libya to intercept migrants before they reach Italy and the European Union (EU), thus effectively circumventing the obligations of the ECHR. The research question is in two parts. First, I ask whether Italy had extraterritorial jurisdiction as stated in Article 1 ECHR, and second, if it had, has Italy violated its positive obligations to secure the applicants’ rights. Jurisdiction is a ‘threshold criterium’ for the Court to study the merits of an application. As for the violations, the thesis focuses on Article 2 (right to life) and Article 3 (prohibition of torture; includes also the prohibition of forced return, or refoulement). The methodology is doctrinal in that the thesis aims to examine critically the central features of the relevant legislation and case law in order to create an arguably correct and sufficiently complete statement on the Court’s reasoning and outcome. The main sources are the provisions of the ECHR itself and the relevant previous case law of the Court, together with a literature review. Additionally, there are third-party interveners’ statements and a video reconstruction of the events. The Court’s questions and information requests to the parties, as attached to the application, are used as a starting point. Besides a hypothesis of the argumentation and the decision of the Court, some estimations are made about what could be the consequences of the decision to such bilateral pacts as the MoU between Italy and Libya, and, in general, to ‘deals’ between the EU Member States and third or transit countries. Finally, the thesis reflects on the eventual repercussions on the topical issue of the EU Commission’s 23.9.2020 proposal for the New Pact on Migration and Asylum, which appears to encourage the Member States to maintain and develop outsourcing practices.