Browsing by Subject "International Law"

Sort by: Order: Results:

Now showing items 1-20 of 23
  • Wesanko, Jyri (Helsingin yliopisto, 2021)
    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.
  • Nissel, Tzvika (Helsingin yliopisto, 2016)
    State responsibility is the doctrine that regulates international enforcement actions. Among international lawyers, there is a shared sense of mystery about State responsibility. While the doctrine clearly guarantees the enforceability of international law, its practice consistently languishes from a lack of international policemen. History is one lens through which to view this paradox. In this study, I describe the three most influential efforts to establish a legal standard for international enforcement actions: U.S. diplomatic practice, German legal theory and U.N. codification. In the late nineteenth century, lawyers in the U.S. State Department turned to international tribunals to redress alien injuries. These lawyers relied on international law to justify their legal intervention. Latin Americans, who were frequently the respondents of such claims, disputed the relevance of international law to its treatment of aliens; to them, alien protection was essentially a domestic affair. However, by the twentieth century, a U.S. practice of arbitration had established that States could be held responsible for breaching their international duties to protect aliens. The resulting awards were professional but haphazard. States were ordered to pay reparations for alien injuries, but why and how much they had to pay remained largely unarticulated. The first systematic treatment of State responsibility surfaced in late-nineteenth century Germany. These early writings were extrapolations from domestic principles of law rather than inductions of international awards. German lawyers viewed the U.S. practice of international arbitration as ad hoc settlements of private disputes rather than as the adjudication of public disputes. Thus, the German approach to State responsibility was not restricted to the field of alien protection in particular; it provide for the preconditions of international liability in general. When the U.N. undertook to codify the field, it chose to base its efforts on German theory rather than on the U.S. practice. This strategy divided State responsibility into general and specific parts. Generally, enforcement actions were subject to the U.N. doctrine. Exceptionally, a specific practice (e.g., alien protection) was permitted to continue as lex specialis. Contrary to many commentators, I see no crisis in this result. No singular doctrine has ever encapsulated the practice of international enforcement. Since the 1870s, international lawyers have employed State responsibility as a pliable concept to suit particular ends. By providing these perspectives, I hope to illustrate how three groups of lawyers practitioners, theorists and doctrinalists have been able to cope with the enduring mystery of State responsibility.
  • Tarkiainen, Lauri Vilppu Juhani (Helsingin yliopisto, 2019)
    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.
  • Aloia, Vinicius (Helsingin yliopisto, 2020)
    The recent shift in paradigm caused by the increasing democratisation and commercialisation of outer space, commonly referred to as ‘NewSpace’, has once again rekindled humankind’s interest in space and space exploration. The trend to global digitalisation is changing the traditional face of space activities and the space industry is now subject to a commercialisation wave. With technological advancements, private commercial entities have taken it up to the stars in order to turn a profit. New actors in NewSpace range from the pragmatics of the space industry, dealing with, for instance, satellite communications and connectivity, satellite components, satellite navigation, and launch services, all the way to the dreamers postponing immediate rewards, working towards concepts such as mining and utilising space resources, in-orbit servicing of satellites, space tourism, where space is conceived as an instrument for implementing new business models and ideas. While the traditional space industry dates back to the space race, States are no longer the only actors with spacefaring capabilities. The emergence of NewSpace, private non-governmental actors taking part in space activities, and new business models call for new technologies and implementation practices that create new legal and regulatory challenges that NewSpace companies and the traditional commercial space sector need to take into account in their business activities. To answer whether the current international and national legal framework is sufficient to accommodate the recent paradigm shift and new trends and the approach of the Nordic countries, this thesis will provide a cursory look on the issue and scrutinise the main legal and regulatory challenges faced by NewSpace companies, and, when appropriate, the impact on and the response of Nordic countries in tackling these challenges. First, it will provide the necessary historical background on the space industry as a whole, explaining the roots of NewSpace and how the industry has developed to its current state. Second, it will introduce the basic concepts of space law, the five international space treaties – which compose the international legal framework on space activities – and a more in-depth look on the basic requirements and conditions for authorisation in national space legislation. The national legal framework for space activities in Norway, Sweden, Finland, and Denmark will be examined comparatively and their impact of national legislation on the private space industry in the Nordic countries. Finally, this thesis analyses the main legal issues surrounding both the traditional space sector, such as contract practices in the space industry, aspects of space insurance, and export, and hallmark projects typical of NewSpace, such the exploitation of space resources from the Moon and other celestial bodies, and suborbital flights, and active debris removal.
  • Forji Amin, George (2020)
    This thesis examines the historical economic processes and legal regimes between the 15th and 19th centuries that caused Sub-Saharan Africa to assume the trajectory of underdevelopment in the world system. Particular emphasis is placed on various development initiatives which international law has historically legitimated for Africa and how they have shaped the continent economically. It is underscored that European extraterritorial imperialism during the era under consideration, was a political expression, poignantly expressed through evangelizing and civilizing missions. The first objective of the thesis is to interrogate the economic and legal components of the evangelizing and civilizing missions, especially the way in which international law introduced two economic institutions that were to shape the economic future of Sub-Saharan Africa for centuries, namely: trade and private property rights. The study observes that a regime of exception advanced by publicists between the 15th and 18th centuries, enabled international law to conceptualize human beings as legitimate private property. Upon invoking and relying on Papal Bull decrees as well as just war doctrines, European powers were able not only to trade Sub-Saharan African peoples as commodities (slaves), but also maintained them in the Americas under conditions of bondage as legitimate goods, marred by grave violation of rights. The second objective is to explore the techniques according to which African Sovereignty was roundly submerged into European Sovereignty in the 19th century, following the wave of rivalries by varying European companies scrambling for territorial control across Africa. It is underscored that the validation of the concept of “effective occupation” at the 1884-85 Berlin Conference as an acceptable legal standard for European appropriation of colonies on the continent, not only resulted to the partition of the continent to become European protectorates but moreover brought about a pivotal shift in the discipline of international law. The 19th century was accordingly animated by the logic of the civilizing mission—the duty of the civilized to rule and nurture the uncivilized—a modality for preparing them to join the family of nations. The study underscores that doctrines of trade and property rights sanctioned by international law resulted to a trend of dispossession of non-Europeans in general and Africans in particular by Europeans colonizers. While it is peoples that Africa was robbed of during the first era (15th-18th centuries), in the second era (19th century), the entire continent was appropriated and partitioned as protectorates of European sovereigns. This study embraces two interdisciplinary methodologies, which are primarily historical but also critical and philosophical. The two approaches are Marxism and Third World Approaches to International Law (TWAIL). Whereas the former puts emphasis on the exploitative nature of the international legal order and its historiography, the latter conceives international law from the standpoint of the Third World, denouncing its current oppressive nature while at the same time underlying its liberating potential.
  • Nordman, Jenna (Helsingin yliopisto, 2020)
    This thesis examines actual and potential human rights impacts of fashion industry. The main approach on subject is from the viewpoint of business and human rights, but corporate social responsibility and sustainability are utilised and discussed as well. Fashion industry in the thesis is defined in an encompassing manner, including productions, marketing and retailing of clothes, footwear, accessories, and cosmetics. Fashion industry is the second largest sector of industry in the world. Many different areas of human rights, recognised in international human rights instruments, are impacted directly and indirectly through actions and functions of fashion industry. ‘Race to the bottom’ and fast fashion phenomenon have pushed down the prices and quality of fashion merchandise during the past decades. Fashion industry is labour-intensive and low prices are often the result of poor working conditions and remunerations that are significantly below living wages. Child labour, forced labour, dangerous working conditions and lack of unionisation are common and result to widespread egregious human rights violations in the manufacturing and production of the raw materials in fashion industry. Industry’s use of natural resources is often reckless and wasteful, and overproduction has resulted to discarding and destroying large quantities of unsold merchandise. More direct human rights impacts, relating to fashion industry and environment, can occur through use and disposal of chemicals and dyes in the manufacturing processes that can have an affect on the living standards and health of the surrounding communities. Different forms of discrimination have been commonly manifested within the industry. There have been numerous lawsuits on discrimination and harassment in workplaces in fashion industry. Statistics, as well as researches based on interviews, show diversity to be realised poorly in the fashion business. Portraying harmful and offensive stereotypes in marketing practices and advertisement reflects problems of discrimination that are deep rooted in the company cultures of the industry and portrays lack of awareness on the issue. Right to property is often infringed in the fashion industry, since copying designs is a common custom. Most well-known cases are between major fashion labels, but in this work, the focus is on rights of small designers and on cultural property of distinct culturally unified groups of people. Taking intellectual property without permission from independent designer can potentially infringe their right to property as well standard of living and using cultural property of a distinct community can be an offensive on the group’s dignity, beliefs and traditions as well as infringement on their economic rights. In this thesis these issues are approached with a somewhat holistic manner. The main tool is the UN Guiding Principles on Business and Human Rights and a loose template of human rights impact assessment, based on the principles, but issues are processed from multiple focus points. There are currently various voluntary models for responsible business practices as well as national laws and different initiatives on corporate social responsibility, business and human right and sustainable business conduct. This fragmentation makes it essential to approach the issue with an all-inclusive method.
  • Manner, Tupuna (Helsingin yliopisto, 2021)
    International maritime transportation of goods is an inevitable part of global trade and economics. Over 90 percent of global trade are seaborne. Shipping is considered as cost-effective transport mode and it emits less greenhouse gases than e.g. freight or air cargo. Global trade is expected to rise. Shipping industry must be able to answer to the increasing demand of delivering shipping services while adapting to sustainability requirements such as reducing GHG emissions. Shipping interests both public and private sectors and engages complex cross-border supply chain stakeholders from various interest groups. International sustainability and maritime policies are affecting shipping industry from multiple levels. Both the European Union and the United Nations are implementing new normative tools and mechanisms to enhance a sustainability trajectory into all areas of business and society. Traditional treaties and conventions are supplemented by new objectives to meet the overarching sustainable development and economic growth requirements. Three complex subject matters are discussed – the international maritime regulatory scheme, climate and sustainability regulatory scheme and, the wicked problem of reducing shipping industry GHG emissions. An interdisciplinary method is used. The overarching research theme is – what actions and measures are needed in order to safeguard that shipping industry can answer (i) to the increasing demand of delivering shipping services and, (ii) to the increasing sustainability requirements. Two research questions are asked: 1) who governs international maritime affairs and shipping sustainability objectives in the context of shipping GHG emissions reductions, and 2) how to implement the GHG reductions objectives in the shipping industry? In order to attain sustainable development objectives into shipping industry practices, innovative administrative solutions and governance models are needed from the maritime affairs policy makers on both national and international level. Interdisciplinary and innovative solutions are needed to tackle emissions reductions objectives.
  • Salmimies, Johannes (Helsingin yliopisto, 2021)
    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.
  • Mustonen, Marika (Helsingfors universitet, 2016)
    The national security exception under Article XXI of GATT is a major exception to Members’ obligations under the WTO. However, it has been claimed to be a loophole to the WTO system, and it goes beyond the principles of general international law on lawful suspension of treaty obligations. Throughout the GATT 1947 and WTO practice, from early cases to the case US – Helms-Burton regarding the U.S. embargo against Cuba, it has not yet been resolved whether Article XXI could be subject to the WTO dispute settlement system. The subject matter of this thesis has significant importance today. Russia imposed counter sanctions on the EU, Norway, the United States, Australia and Canada, and banned the importation of listed agricultural products, raw materials and food from the targeted countries. By doing so, Russia violated its obligations under the WTO. However, Russia justified its measures stating that it is a matter of its ‘national security interests’. Economic sanctions have played a role in the trade arena as a tool for states’ foreign policy. The relationship between the WTO and national security remains still unresolved after nearly 70 years. The Russian unilateral justification for its counter sanctions, could make a potential case to the WTO panels or the Appellate Body on Article XXI of GATT. This thesis will discuss, whether the WTO panels and the Appellate Body should have a competence to investigate the national security exception Article XXI of GATT in a dispute, and second, whether they can assess the justification of economic sanctions taken under Article XXI(b)(iii) of GATT, and third, if so, how such assessment and interpretation of justification could be conducted. Forth, it will be reviewed whether the WTO should tolerate the unlimited invocation of Article XXI by Members. This thesis is faithful to legal dogmatic method. To understand the subject matter, the first part will shortly explain the main provisions of GATT and economic sanctions in the context relevant to this study, and then provide an overview of the WTO jurisdiction and its dispute settlement system in the light of state sovereignty, which is vital to bear in mind in the discussion of national security. In the second part, this thesis will study thoroughly Article XXI of the GATT, focusing on its most controversial subsection (b)(iii). To understand well the key issues, it is necessary to discuss in this part the historical background and the preliminary works of the security exception clause. This will be examined and assessed through the relevant cases on the invocation of the Article XXI, in the light of the presented varying interpretations and factual grounds. The third part will look at the WTO panels’ and the Appellate Body’s possible methods for interpreting ‘justification’ of economic sanctions taken under Article XXI(b)(iii) of GATT, both in the light of case history and principles of general international law, and will propose an alternative approach which could be applied arising national security related disputes. Last, the conclusion will summarize the findings and make suggestions for possible solutions for the current controversy.
  • Bakanov, Vladislav (Helsingin yliopisto, 2021)
    Ubiquitous digitalization and advancement of technology led to a tremendous shift in regulation of copyright in the European Union over two last decades. New reality poses new challenges for the collective management organizations and traditional way of their operation. Through conceptual analysis of framework for regulation of copyright operation of collective management organizations in the EU this research seeks to find how futureproof they are as a legal institute.
  • Rönnberg, Pernilla (Helsingin yliopisto, 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.
  • Wahlström, Eve (Helsingin yliopisto, 2021)
    Chinese labour programs in Xinjiang allow the use of Uyghurs and members of other Muslim minority groups for forced labour in factories owned by private entities. In this thesis, the Uyghur forced labour scheme is researched through the lens of corporate responsibility to respect human rights under the UN Guiding Principles on Business and Human Rights (UNGPs). The purpose of this thesis is to provide a legal assessment of the scope and extent of transnational corporations’ responsibility under the UNGPs’ business and human rights regime for relying on goods, components, and materials sourced from China implicated in forced labour in the Xinjiang region. Uyghur forced labour is a human rights violation, and under the UNGPs, transnational corporations are expected to respect human rights in all their business activities wherever they operate. As part of the corporate responsibility to respect human rights, transnational corporations should address the risk of Uyghur forced labour by conducting human rights due diligence. Transnational corporations have a non-binding responsibility to respect human rights under the UNGPs. The analysis shows that transnational corporations do not have obligations under international law to respect human rights in their extraterritorial activities. Transnational corporations are bound by domestic laws prohibiting international human rights violations and forced labour in their extraterritorial activities. The analysis shows that home states of transnational corporations have extraterritorial jurisdiction in certain situations to incur legal liability on the extraterritorial activities of corporate nationals or their overseas subsidiaries where they fail to respect human rights and the prohibition of forced labour.
  • Vlodder, Albert (Helsingin yliopisto, 2021)
    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.
  • Lempiäinen, Henri (Helsingin yliopisto, 2021)
    The purpose of this thesis is to determine how economic sanctions imposed by the United States and their Office of Foreign Assets Control are enforced and why they are strictly observed in countries and by entities not under the United States’ jurisdiction. The focus is on Finland and how Finnish legislation enables this. This thesis includes a historical and theoretical look into the use of economic sanctions and into how global economic factors affect the way United States economic sanctions function. The thesis also establishes an overall view of the main issuers of economic sanctions that affect Finland. The effects of economic sanctions are analyzed by examining the legal case between Boris Rotenberg and four Finnish banks. Boris Rotenberg was placed under sanctions by the United States, which led to him being denied banking services and to his payments not being forwarded. This resulted in Boris Rotenberg suing the banks for the denial of the services. The case is important for demonstrating how the United States economic sanctions work in practice in Finland and how they affect entities not under the jurisdiction of the United States. The conclusion of the thesis is that the fact that economic sanctions imposed by the United States are not legally enforceable in Finland is of very little consequence since the repercussions of non-compliance are harsh. The United States economic sanctions cannot be violated without violating Finnish legislation, which in practice means that United States economic sanctions can be seen to be enforceable in Finland as well.
  • Heinänen, Saku (Helsingin yliopisto, 2021)
    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.
  • Aromäki, Tommi (Helsingin yliopisto, 2021)
    In this Master’s thesis the aim is to examine what are the elements of direct and public incitement to genocide under the Rome Statute, and how have they been examined in international criminal jurisprudence, what is the territorial jurisdiction of the ICC in light of the recent rulings by the Court’s PTCs and how can it be applied to incitement to genocide committed through the internet as well as can a social media platform’s owner be considered responsible for incitement to genocide under the Rome Statute. The inspiration for this thesis arises from the role Facebook has had in the alleged crimes that have taken place in Myanmar and the Statutes failure to take into account crimes committed in the internet. The role social media has had in the violence against Rohingyas gives a graphic example of the impact such inciting material may have through the global outreach of social media platforms. The methodology used in the thesis is primarily doctrinal. However, the research questions are approached with the help of an article written by Michail Vagias concerning the jurisdiction of the ICC over core crimes committed through the internet. The article is discussed throughout the thesis. The thesis begins with establishing the elements of direct and public incitement to genocide. With the help of the jurisprudence of ad hoc tribunals, this thesis puts together an exhaustive definition of the crime, gathering also the most contentious issues concerning the definition and nature of the crime. Next, the territorial jurisdiction of the Court is examined. In addition to reviewing the article by Vagias, this thesis examines in-depth two recent decision by the Court’s PTCs that define the limits of the Court’s territorial jurisdiction. Through an examination of the Court’s territorial jurisdiction, the PTCs’ recent decisions and relevant legal scholarship, this thesis will provide a refined version of Vagias’ approach on the Court’s jurisdiction over crimes committed online and the hypothetical situation he uses to illustrate the issue. The crime of direct and public incitement to genocide can be considered a preliminary phase of the gravest crime known to mankind and thus has to be effectively prosecuted when appropriate. Because of the emergence of new technologies and the changes in its operational environment, the Court must, in addition to the actual perpetrator, consider the responsibility of those de facto providing the platform for incitement to genocide. Thus, this thesis also sets out to investigate under what circumstances a controlling owner of a social media platform can be 1. held criminally responsible under the Rome Statute for incitement to genocide taking place on the platform or 2. held responsible for aiding and abetting in incitement to genocide taking place on the platform. In addition to the Court’s jurisdiction over natural persons acting on behalf of a company and over proper and improper omissions, this thesis discusses elements of commission by omission and aiding and abetting by omission as they are established in the jurisprudence of the ad hoc tribunals. This thesis will contribute by proposing that an executive could be held liable if the specific elements of omission, constructed from the jurisprudence of the ad hoc tribunals and recent legal scholarship, are fulfilled. In addition, this thesis will argue that the elements of commission by omission differ from the elements of aiding and abetting by omission. Further, this thesis discusses whether an executive of a social media platform is under the legal duty to prevent incitement to genocide from taking place according to international law.
  • Christodoulides, Photeini (Helsingin yliopisto, 2017)
    The settlement of the maritime dispute between the Republic of Turkey (RoT) and the Republic of Cyprus (RoC) in the Eastern Mediterranean is politically deadlocked. Both countries keep insisting on their maritime claims despite the diplomatic settlement efforts by the United Nations and the Council of Europe. RoC argues that an equidistance line should be drawn between the two opposite areas, whereas RoT claims that the existence of relevant circumstances, including geographical and non-geographical factors, necessitates a different maritime solution. As their maritime dispute is, besides a political matter, a legal matter regulated by international law, this thesis aims to review the claims of both parties based on the contemporary conventional and customary international law of the sea, with due regard to state practice and international jurisprudence. To determine where the maritime boundary between Turkey and Cyprus lies, legally speaking, an attempt is made to critically compare this case with the outcome of relevant international judicial decisions.
  • Suvanto, Sophie (Helsingin yliopisto, 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.
  • Back, Joel (Helsingin yliopisto, 2021)
    Claims of breach of legitimate expectations have been widely used by investors in the energy sector. The protection of legitimate expectations is one of the core elements of the fair and equitable treatment obligation which is included in most investment treaties. The protection of expectations is an important function of investment treaties as investors make their investment decisions on the basis of calculations on the expected return, which is highly dependent of the laws in the state where the investment is made. In other words, returns of energy investments are directly linked to the stability and predictability of domestic laws. There is a need to protect investors against adverse state measures, as subsequent state conduct after that the investment decision has been made can cause substantial loses for the investors within the energy sector. However, at the same time, states need to implement measures that may affect investments in a detrimental manner to achieve certain energy policy goals. The energy sector and energy law are constantly developing due to changing circumstances. The current change is driven by the energy transition and the move towards a low-carbon economy. Environmental protection, human rights and renewable energy production are key issues of the energy transition. These issues are getting more and more attention in energy policies. Investment treaty provisions, and especially the FET standard, have usually been drafted in a vague manner which does not explicitly tell what the relationship is between investment protection and host state’s regulatory right. This has led to many different conceptions of the doctrine of legitimate expectations. These conceptions have usually either been overinclusive or underinclusive. This thesis suggests that most investment treaties should be interpreted in a balanced manner that considers both the interests of investors and host states. Therefore, a balancing approach where investors’ expectations are weighed against the host states’ right to regulate is needed. It is argued in this thesis that a conception on the protection of expectations should be based on the principles of legal certain and proportionality. A justification that is based on these two principles could be applied in a manner that is balanced and would not be over- or underinclusive. This principle-based approach would replace the doctrine of legitimate expectations. According to this approach legitimate expectations would only be an element that should be considered in the assessment on whether investors right to legal certainty has been breached, but legitimate expectations would not constitute a self-standing doctrine with direct legal effect. This thesis argues that a similar approach used in EU law should be applied in international investment disputes. In EU law the principle of legal certainty is just one principle that should be weighed against other core principles of the EU. Therefore, it is suggested that when assessing if investors’ expectations should be protected in specific circumstances, arbitral tribunals should use and weigh the international energy law principles against the principle of legal certainty when conducting a proportionality assessment. It is concluded that this principles based approach would be the most suitable conception for the protection of investors’ expectations as it would not be under- or overinclusive and it could be used in a flexible manner to changing circumstances in the energy market. This principle-based approach would be allowed under the current normative framework. However, it would be sensible to include in investment treaties that when considering if investors’ expectations should be protected, arbitral tribunals should rely on the principle of legal certainty, and conduct a proportionality assessment where all circumstances relating to the investment and the state measure are considered. As this thesis concerns the question of whether the current framework allows treaties to be interpreted in a balanced manner, the thesis will mainly rely on doctrinal research. In addition, by applying an inductive methodology this thesis will answer whether the doctrine has been conceptualized in a suitable manner in investment disputes.