Browsing by study line "International Law"

Abstract The two globally leading anti-corruption acts, the United States’ Foreign Corrupt Practices Act (‘FCPA’) and the United Kingdom’s Bribery Act, stand at the forefront of international fight against corruption. These acts prohibit foreign bribery of public officials with an extraterritorial jurisdiction. During the past years, enforcement activities of these laws have significantly grown. Only during 2020, the total penalties for violations of the FCPA imposed by the US authorities to companies was USD 6.4 billion. Out of these 12 companies only one was from the US: jurisdiction of this strict act is exceptionally broad. A company involved in international business and the individuals representing it may face severe penalties, if the company fails to prevent corruption in its business. The US and UK anti-corruption regulation include, however, a significant defence mechanism for the companies. If the company can demonstrate, after having violated either the US or UK anti-corruption laws, that despite its representative engaged in foreign bribery, it has an effective corporate compliance and ethics program, it may receive declination or at least substantial credit possibly worth of millions. The US and UK authorities have issued guidance on corporate compliance and ethics programs to support the prosecutors in their enforcement activities. This guidance also supports the companies in identifying what is required from a corporate compliance and ethics program to be considered effective. This guidance is of utmost importance for companies, as comprehensive case law is not available when majority of cases are settled. What is enough when it comes to corporate compliance and ethics programs? The requirements of the FCPA and UK Bribery Act on corporate compliance programs are studied in this thesis using a comparative research methodology, demonstrating that full compliance with these acts can be reached simultaneously. However, it is also concluded, that given the inadequate guidance by the supporting documentation, the companies cannot verify their compliance without their compliance and ethics programs being investigated by the authorities, ie US or UK prosecutors. A clear lack of guidance is identified.

When it comes to resolving disputes, planning before the conflict has arisen has become more and more a substantiated phenomena around the world. It is interesting to analyse and explore whether this could be possible also in solving work related individual disputes in Finland by other means. The typical solving method is through litigation, in Finnish district courts. However, This often requires a greater amount of resources and time than what a normal employee might not have, at least they would be in a weaker position than the employer in court. Thus, other ways to resolve these types of disputes do exist, Nevertheless, among litigation there are alternative dispute resolution methods. One of the methods is part of the research question of this paper, so-called Arbitration. Arbitration is private, efficient and usually less costly than litigation. It is highly used in business related disputes between two businesses in Finland, but it is intriguing to gain knowledge if it is used or could be used in individual disputes concerning work related disputes. The main focus will be in Finland because arbitration is not relatively used as much as it is in other countries in individual disputes, especially in employment relationships. What makes everything complicated and Finland an interesting topic is the availability of a labour court that doesn’t resolve all labour disputes, the vital principles that protect weaker parties like the employers and many other laws which interfere with arbitration. It is not solemnly up to the parties to go with arbitration even though arbitration is described as a process that is voluntary and time efficient. The features of arbitration would probably be ideal for both employees and employers, but there are downsides which will be explained and demonstrated in a more detailed manner. Even though it would be ideal, especially for workers to receive the verdict or judgement sooner in cases like illegal determination of work contract, there are other perks lost when one chooses arbitration over litigation. One of these includes the legal-aid the state offers in Finland, which is not admitted to arbitration. This might or mostly does put the employee and employer in an unpleasant disadvantage even though arbitration considered the parties to be equal. Along with these other values are considered and weighted along the research. Thus, Our main focus is whether arbitration could be possible or even allowed to be used in Finland in individual work related disputes, if not, maybe there could be an opening soon for arbitration in the future.

The purpose of this study is to research legal challenges and solutions for data sharing with autonomous ships. Autonomous ships store and share a significant amount of data, and data sharing occurs between various parties with autonomous ships. The aim of this study is to analyze and examine the legal challenges and solutions related to different types of data sharing activities in autonomous shipping, as well as to research the general legality of autonomous ships. The first part of this study is to study how well autonomous ships fit into the existing legislative framework. The existing legislative framework is mainly based on IMO conventions, and the purpose of this study is to research those conventions from the perspective of autonomous ships. Based on this research, amendments are proposed when necessary to better support the legality and development of autonomous ships. In addition to the IMO conventions, other relevant sources, such as guidelines on MASS trials, are examined to highlight guidance on the development of autonomous ships. The legal analysis on IMO conventions and other sources shows that as the level of autonomy of a ship increases, the more challenging the ship is for the legal framework. Several conventions directly mention the need for a master and crew to be physically present on board, and various watchkeeping duties are required to be performed by human senses. Regarding the use of human senses, a legal argument can be made to accept technological means as long as they are at least equally functional than human senses. For remotely controlled ships, a legal question is whether a master and crew can operate from the SCC and how well this satisfies the requirement to operate on board. Recommended action is to amend those IMO conventions that require physical human presence and decision-making to accept the lack of manned crew and the presence of autonomous decision-making. However, technical requirements are recommended to be included in the legal amendments to the conventions to ensure a high level of safety and functionality. The second part of the thesis examines legal challenges and solutions for data sharing with autonomous ships. First, a factual assessment of data sharing principles with autonomous ships are described and discussed, and afterwards a legal analysis is conducted. The legal analysis on data sharing and autonomous ships examines what kind of legal challenges exist with data sharing and autonomous ships and how to solve them by legal solutions. Cyber security is a key challenge with autonomous ships, and its role in data sharing is analyzed and requirements to have robust cyber security systems are recommended. For operational data sharing, the issue of ensuring a functional data flow is necessary. Autonomous ships should be legally required to have strong data sharing and connectivity capabilities in order to comply with requirements to share information. Also, this requirement is to achieve as safe and functional navigation as possible. The role of ship-to-ship and ship-to-port data sharing are examined, and legal requirements should facilitate their maximal utilization. At the end of this study, a contractual framework is applied by using the Sitra Rulebook on data sharing in order to illustrate how contractual means can support data sharing with autonomous ships.

This study examines the use of migrants or asylum seekers as a means of pressure by States towards other States. The term ‘coercive engineered migration’ (CEM) by Kelly Greenhill, denoting cross-border population movements that are deliberately created or manipulated in order to induce political, military and/or economic concessions from a target State or States, is used as the factual framework in this study to describe the phenomenon under examination. Inspired by the recent events between Belarus and its neighbours, this study looks at a situation, where a sending State, outside the EU and CoE, is deliberately sending asylum seekers to its neighbour, the receiving State, being an EU and CoE Member State. The research question guiding this study is: ‘Can an EU and CoE member State receiving asylum seekers in connection to a situation of coercive engineered migration prevent the entry into its territory from said individuals?’ An answer is attempted via doctrinal analysis of the receiving State’s rights under the jus ad bellum and parallel obligations under international human rights law, namely obligations relating to non-refoulement and collective expulsion of aliens under the ECHR. It is submitted that a CEM situation may amount up to a use of force and where it does, in order to draw a balance between the State’s rights and the human rights of the asylum seekers, the receiving State should be able to derogate from its collective expulsion-related obligations under the ECHR and the EU Fundamental Rights Charter in order to close off a portion of its land border to defend itself against the CEM situation deliberately created by the sending State.

There has always been an imbalance between a small buyers and professional sellers. Understanding and managing the market ecosystem for ones’ advantage requires resources. Given the larger amounts of resources professional seller parties often possess, especially compared to small buyers, they have the possibility to find out the key elements of prevailing market ecosystem, and correspondingly understand and utilize better the existing options. Hence professional sellers often have the upper hand in trade negotiations and ability to dominate trade related negotiations and terms of trade. There is a demand for a different kind of trading approach that would provide quickly better temporary or permanent bargaining position for small buyers. Small buyers could benefit from a functional, scalable, international, and effective way to access and form legally qualified buyer groups that can gain negotiation leverage and correspondingly discounts that usually only a large buyer organisation can access. Fundamental challenges in grouping parties in order to obtain leverage in trade negotiations culminates in how to first identify and group different parties into buyer groups and then to define the rights and responsibilities between the group members. It becomes evident that technology, such as an online platform, is required to perform such a procedure. The platform is a plug-and-play business model that allows multiple participants (e.g. small buyers and professional sellers) to interact with each other and create and exchange value. This thesis will present core concepts and regulation related to digital grouping of buyers into buyer groups in the EU. With the information obtained, a Buyer Grouping Process Framework, sort of an algorithm, is developed. This Framework provides a way to efficiently group buyers with similar demand, and then to define appropriate legal entity under which buyers can group, conduct bidding, and make desired trade with a leverage and consequently with better terms.

The need to effectively regulate the environment is recognized globally, for example, under the Paris Agreement, states are obligated to formulate national policies to combat the adverse effects of climate change. However, states are increasingly facing the consequences of such regulation in investment arbitration, as these progressive environmental protection goals can lead to a multi-billion claim made by foreign investors. International investment law and the investor-state dispute settlement are currently going through a so-called “legitimacy crisis” as there has been criticism towards both its substantive and procedural levels. As a response to this imbalance, there has been a move towards trying to reestablish international investment law. The overall purpose of this thesis is to examine the conflicting dimension of the link between environmental and investment protection. The aim is therefore to examine the defects of the international investment treaty regime in relation to the sovereign right of states to regulate environmental concerns. This is done by examining frequently used substantive treaty provisions that protect foreign investment: expropriation, fair and equitable treatment (FET), most-favored-nation (MFN) and national treatment (NT). It then examines how investment tribunals have interpreted these provisions when a foreign investor has challenged environmental measures taken by the host state in investor-state arbitration. This thesis further examines whether new types of clauses introduced in international investment agreements in recent years have succeeded in balancing the rights of investors with the interest of states in regulating public issues such as the environment. These include environmental treaty language that clarifies that investment protection should not be implemented at the expense of public policy issues. This thesis finds that both the vaguely worded investment protection provisions in international investment agreements and the inconsistent practice of arbitral tribunals have created uncertainty about the extent of state liability. It therefore seems that international investment law is still in a formative stage with respect to public interest concerns such as environmental protection. These reforms may increase the interaction between international investment law and environmental protection. However, these measures are not sufficient as they do not reduce the likelihood of a state being sued in investor-state arbitration. Therefore, more radical reforms are needed in the future to address the negative impact of the investment regime on the environmental protection measures of states.

Women commit international crimes for a variety of reasons, including political and personal agendas. Still, the perceptions of female offenders are often very gendered. These perceptions vary between female offenders committing crimes solely because they are influenced by a man to female offenders being sadistic monsters. In both instances female offenders are denied their personal agency. Either they are mentally, and sexually, deranged or not personally responsible for the crimes committed. This is a factor in sentencing proceedings as gender has been proved to play a role. It can act as an aggravating factor, which is the case when women are portrayed as monsters, or as a mitigating one. International crime and criminology have also generally considered female perpetrators an anomaly. Most of the early works in these fields either ignored the possibility of a woman committing crimes or regarded female criminals as mentally deranged to separate them from ‘ordinary’ women. Women are often victimised during conflicts and the protection of these women is extremely important. This work is not to undermine the efforts to protect women but to offer a more holistic approach to women’s wartime experiences. This thesis will discuss the crimes committed by Azra Basic during the war in Bosnia Herzegovina and Lynndie England in Abu Ghraib during the ‘war on terror’. Both women served as prison guards during their respective conflicts and were accused of participating in various atrocious crimes. England quickly became the face of the Abu Ghraib -scandal, not because she was more responsible of the torture than others, but because she was a young woman. Basic and England received relatively long sentences when these are viewed in context with the sentences of the men involved. In international criminal law there is an explicit obligation to prosecute or extradite. But with the primacy having been given to national courts, sentencing practices are not cohesive and national courts may be inclined to be more lenient towards their own nationals. In the cases of England and Basic it becomes clear that, although gendered language is not present in many court decisions or indictments, gender stereotypes and narratives have an impact on how men and women and their appropriate roles are seen in a society. Thus, though gender-neutral in language, the decisions were impacted by the fact that the perpetrators were women.

AI-driven innovation offers numerous possibilities for the public sector. The potential of digital advancements is already palpable within the tax administrations. Automation is efficiently used for tax assessments, to perform compliance management, to enhance revenue collection and to provide services to taxpayers. A digital transformation encompassing Big Data, advanced analytics and ADM systems promises significant benefits and efficiencies for the tax administrations. It is essential that public organizations meet the necessary legal framework and safeguards to expand the use of these automated systems since its sources of information, technical capacity, and extent of application have evolved. Using Finland as a case study, this research assesses the use of automated decision-making systems within the public sector. Constitutional and administrative legal principles serve as guidelines and constraints for the administrative activity and decision-making. This study examines the lawfulness of the deployment of ADM systems in the field of taxation by looking its compatibility with long-standing legal principles. Focus if given to the principles of the rule of law, due process, good administration, access to information, official accountability, confidentiality, and privacy. Numerous public concerns have been raised regarding the use of ADM systems in the public sector. Scholars, academics and journalists have justifiably pointed out the risks and limitations of ADM systems. Despite the legal challenges posed by automation, this research suggests that ADM systems used to pursue administrative objectives can fit with long-standing legal principles with appropriate regulation, design and human capacity.

Tutkielma keskittyy ristiriitaan vihreän siirtymän ja saamelaisille alkuperäiskansana kuuluvien oikeuksien toteutumisen välillä. Useat kansainväliset sopimukset, muun muassa YK:n kansalais- ja poliittisia oikeuksia koskeva yleissopimus, sekä YK:n alkuperäiskansojen oikeuksia koskeva julistus turvaavat saamelaisten itsemääräämisoikeutta sekä oikeutta harjoittaa ja ylläpitää kulttuuriaan, johon kuuluvat myös perinteiset elinkeinot, kuten poronhoito. Samalla ilmastonmuutos vaatii uusiutuvan energian määrän lisäämistä. Tuulivoimaa pidetään yhtenä tärkeimpänä uusiutuvan energian tuotantomuotona. Tuulivoimaprojekteilla on kuitenkin todettu olevan merkittäviä vaikutuksia poronhoidon harjoittamiseen projektien eri vaiheissa rakentamisesta energiantuotantoon. Tutkielman ensimmäinen osa keskittyy tuulivoiman ja poronhoidon väliseen konfliktiin. Tutkielmassa tarkastellaan, salliiko kiireellinen vihreän energian tarve tasapainottelua vihreän siirtymän ja saamelaisten oikeuksien toteutumisen välillä, kun arvioidaan, loukkaako tuulivoimaprojekti saamelaisten kulttuurisia oikeuksia KP-sopimuksen 27 artiklan perusteella. Tutkielman toinen osa keskittyy saamelaisten itsemääräämisoikeuden toteutumiseen Suomen järjestelmässä. Oikeus osallistua saamelaisten asioihin vaikuttavaan päätöksentekoon on tärkeä osa saamelaisten itsemääräämisoikeutta. Tutkielmassa selvitetään saamelaisten osallistumisoikeuden toteutumista tuulivoimaa koskevan päätöksenteon näkökulmasta. Lisäksi tutkielmassa arvioidaan vaikutuksia, joita alkuvuonna 2023 kaatuneella hallituksen esityksellä HE 274/2022 vp. olisi ollut saamelaisten osallistumisoikeuden toteutumiseen kansainvälisten ihmisoikeuksien valossa huomioiden ihmisoikeusinstituutioiden ratkaisukäytännön. Tutkielmassa esiteltyjen argumenttien nojalla johtopäätöksinä esitetään ensinnäkin, että jonkinlainen tasapainottelu vihreän siirtymän ja poronhoitoon liittyvien oikeuksien välillä voi olla sallittua, jos kysymyksen katsotaan olevan perustavanlaatuisten oikeuksien välisestä arvioinnista. Keskenään tasapainoteltavat perustavanlaatuiset oikeudet olisivat tässä tapauksessa yhteiskunnan jäsenten oikeus hyvään ja terveelliseen ympäristöön sekä saamelaisten oikeus harjoittaa ja ylläpitää poronhoitoelinkeinoa. Tällainen tilanne voi kuitenkin olla kysymyksessä vain, jos tuulivoiman sijoittaminen alueelle, jossa sillä on vaikutuksia poronhoitoon, on välttämätöntä vihreän energian tuottamiseksi ja elinkelpoiseen ympäristöön liittyvän oikeuden toteuttamiseksi. Mikäli tuulivoimalle on löydettävissä sijainteja, jotka rajoittavat poronhoitoa vähemmän tai ei lainkaan, ei vihreän siirtymän tärkeydellä voi perustella KP-sopimuksen 27 artiklan turvaamien oikeuksien rajoittamista. Suomen järjestelmään liittyen esitetään, että saamelaisten osallistumisoikeudet poronhoitoon vaikuttavaa tuulivoimaa koskevaan päätöksentekoon eivät ole tasolla, jota saamelaisten kansainvälisten alkuperäiskansoja koskevien ihmisoikeuksien täysimääräinen toteutuminen vaatii. Ensinnäkin saamelaiskäräjälain 9 §:ssä säädetty velvoite neuvotella saamelaiskäräjien kanssa päätöksistä, jotka vaikuttavat saamelaisiin tai heidän oikeuksiinsa, koskee vain saamelaisten kotiseutualuetta. Lisäksi velvoite näyttää toteutuvan vaihtelevasti ja paikoin riittämättömällä tavalla. Muulla osalla poronhoitoaluetta, jolla yli 75 % paliskunnista sijaitsee, neuvotteluvelvoite perustuu poronhoitolain 53 §:ään, jonka mukaan velvoite on vain valtion viranomaisilla ja soveltuu vain valtion omistamaa maata koskevaan päätöksentekoon. Poronhoitolain velvoite näyttää painottavan oikeutta elinkeinoon ja takaa saman turvan saamelaisten lisäksi myös alkuperäiskansaan kuulumattomille poronhoitoa harjoittaville henkilöille, eikä siis heijasta riittävällä tavalla saamelaisten alkuperäiskansa-asemaan liittyviä kansainvälisessä oikeudessa tunnustettuja oikeuksia. Lisäksi tutkielmassa esitettyjen näkökulmien perusteella esitetään, että saamelaiskäräjälain uudistamista koskevan hallituksen esityksen 274/2022 vp läpimenolla olisi ollut merkittäviä saamelaisten osallistumisoikeuksia edistäviä vaikutuksia. Tärkeimmät osallistumisoikeutta parantavat vaikutukset olisivat olleet kaikkien saamelaisten kulttuuriin ja perinteisiin elinkeinoihin vaikuttavien päätösten tuomisella esitetyn 9 §:n yhteistyö- ja neuvotteluvelvoitteen piiriin sekä neuvotteluvelvoitteen laajentamisella muun muassa kunnallisvaltuustoihin, jotka käyttävät merkittävää päätöksentekovaltaa maankäyttöä koskevissa asioissa.

In this Master’s thesis, “International Courts: Challenges New and Old - A Deconstruction on the Work of International Courts”, the aim is to critically appraise some characteristics of international courts that seem to hinder their impact and be problematic to their legitimacy. It presupposes that these features are hidden by the conventional legend-building narratives on international courts. To deconstruct this framework in which they operate, the thesis focuses on three features it argues are connected: the type of justice international courts provide; the democratic legitimacy vacuum in which they operate and the effect of fragmentation and the proliferation of international courts. The inspirations for the thesis notably stem from the remarks that other institutions have raised in popularity in tackling issues of international justice, and from the observation that the issues faced by international courts have, to some extent, remained similar for over a century. The thesis also accepts as a starting point that legal theory on the international field lags behind reality and has struggled to provide a comprehensive theoretical framework under which international courts operate. In order to locate the questions to be asked and to provide an explanation of their need and perceived benefits, the thesis first lays out the historical context of the emergence of international courts on the international stage. This historical context is argued to be closely connected to the legend-building narratives on international courts. Next, in chapter three, inspired by the notion of micro and macro justice, the thesis then makes observations on the kind of justice international courts actually can and should aim for and the results they can achieve. It argues that international courts are limited in the type of justice they can provide, and thus unable to alone reach the goals they were created to fulfil. In chapter four, the thesis then notes that the democratic legitimacy of international courts has been considered questionable from their very appearance, an issue argued to be of relevance still today, not least to the glaring lack of a global demos. It is thus observed that due to the reality of the international field, international courts have had to take the role of a norm-creator. The thesis argues that none of the traditional counter-arguments to this problematic feature can be held satisfactory. Further, it is asserted that the absence of a legislative causes problems to international courts both as an interpreter and as a norm-creator. Finally, the thesis then moves on to a more recent development in chapter five, namely legal fragmentation and the proliferation of international courts. While these make the international legal field more complex, create overlapping systems and thus potential power struggles, it is argued that this phenomenon also further affects the issue of democratic legitimacy and the justice provided by international courts. This happens notably because they lessen the control of states on the newly established norms and institutions. Further, while fragmentation might aid international courts in focusing on micro justice, it complicates their norm-creating process. As a conclusion, the thesis summarises the problems it claims are caused by the framework in which international courts operate and how they differ from the legend-building narrative. Additionally, it restates a few possible modest paths of development to tackle each of the noted problems, although it is argued that to truly solve the encountered issues, the establishment of an international legislative would be required. Due to the research question and the multiplicity of issues treated, the methods used in the thesis are a combination of critical analysis with theoretical and historical approaches, with an end-goal to provide a critical legal study on the impact of international courts.