Browsing by Subject "Oikeustiede"

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  • Liivoja, Rain (Centre of Excellence in Global Governance Research, University of Helsinki, 2011)
    States regularly deploy elements of their armed forces abroad. When that happens, the military personnel concerned largely remain governed by the penal law of the State that they serve. This extraterritorial extension of national criminal law, which has been treated as axiomatic in domestic law and ignored by international law scholarship, is the subject of this dissertation. The first part of the study considers the ambit of national criminal law without any special regard to the armed forces. It explores the historical development of the currently prevailing system of territorial law and looks at the ambit that national legal systems claim today. Turning then to international law, the study debunks the oddly persistent belief that States enjoy a freedom to extend their laws to extraterritorial conduct as they please, and that they are in this respect constrained only by some specific prohibitions in international law. Six arguments historical, empirical, ideological, functional, doctrinal and systemic are advanced to support a contrary view: that States are prohibited from extending the reach of their legal systems abroad, unless they can rely on a permissive principle of international law for doing so. The second part of the study deals specifically with State jurisdiction in a military context, that is to say, as applied to military personnel in the strict sense (service members) and various civilians serving with or accompanying the forces (associated civilians). While the status of armed forces on foreign soil has transformed from one encapsulated in the customary concept of extraterritoriality to a modern regulation of immunities granted by treaties, elements of armed forces located abroad usually do enjoy some degree of insulation from the legal system of the host State. As a corollary, they should generally remain covered by the law of their own State. The extent of this extraterritorial extension of national law is revealed in a comparative review of national legislation, paying particular attention to recent legal reforms in the United States and the United Kingdom two states that have sought to extend the scope of their national law to cover the conduct of military contractor personnel. The principal argument of the dissertation is that applying national criminal law to service members and associated civilians abroad is distinct from other extraterritorial claims of jurisdiction (in particular, the nationality principle or the protective principle of jurisdiction). The service jurisdiction over the armed forces has a distinct aim: ensuring the coherence and indivisibility of the forces and maintaining discipline. Furthermore, the exercise of service jurisdiction seeks to reduce the chances of the State itself becoming internationally liable for the conduct of its service members and associated civilians. Critically, the legal system of the troop-deploying State, by extending its reach abroad, seeks to avoid accountability gaps that might result from immunities from host State law.
  • Tolttila, Karri (Suomalainen Lakimiesyhdistys, 2020)
    This study analyses one of the most prominent instrument of mutual recognition, the European Arrest Warrant (EAW). The surrender mechanism of EAW is meant to replace the system of extradition based on a complex network of international conventions and bilateral treaties, which has governed the relationships between the Member States of EU. By replacing the previous extradition systems like the 1957 European Convention on Extradition (ECE), the EAW has introduced a system of surrender between judicial authorities for categorized offences, without control of double criminality and other traditional conditions for extradition. This system of surrender is established through Council Framework Decision of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States (hereinafter “Framework Decision). The rules governing the Framework Decision in Finland are laid down in an Act of Parliament: laki (1286/2003) rikoksen johdosta tapahtuvasta luovuttamisesta Suomen ja muiden Euroopan unionin jäsenvaltioiden välillä. With the EAW, traditional political and diplomatic extradition cooperation between States is replaced by direct cooperation between judicial authorities. This means that the surrender is a judicial, and not anymore a political matter. Furthermore, as the surrender system is based on the principle of mutual recognition, an EAW is not a request in a traditional sense that can be granted or refused by the recipient State. According to Article 1(2) of the Framework Decision “shall” be executed and the terminology of Articles 3 and 4 of the FD speaks of cases on “non-execution” of an EAW rather than “refusal to grant”. The aim for the study is to find out in which situations and for what conditions a requested person can be surrendered from a Member State to another Member State within EU. This thesis explores the major changes that the EAW system has introduced compared to traditional extradition. Secondly, the study analyses the consequences that these changes have from the point of individual and what is the added value of the EAW for efficient criminal law cooperation between EU Member States. The aspect of the study focuses on the Member State level (in this case especially Finland). The thesis studies the impact of the EU developments on the national legislation with the aim of pinpointing similarities and differences between extradition and surrender; EU legislation and national Member State implementation legislation, and the influences which affect these distinctions. The thesis analyses the meaning and functioning of the principles of mutual recognition and mutual trust. Mutual trust is an essential element of mutual recognition as it enables free movement of judicial decisions across the EU via the recognition and execution of foreign judgements with a minimum of formality and limited grounds for refusal. It is argued whether it is appropriate that cooperation can take place on the basis of a high level of mutual trust in the criminal justice systems of Member States, premised upon the presumption that fundamental rights are in principle respected fully across the EU. The thesis follows legal dogmatic methods. The aim is to analyse legal norms and legal constructions and give them content and context. The dogmatic method applied to the study is supported by practical analysis. The aim is not only to reach conclusions concerning the contents of legal norms e.g. rules governing extradition and surrender and requirements of law but study the practical functioning of these norms.
  • Linnanmäki, Kirsikka (Alma Talent, 2019)
    My doctoral dissertation, titled The Best Interests of the Child in Child Custody Disputes in Court-connected Mediation, combines child law and mediation theories. I investigate how the best interests of the child and mediation are determined and how these two perspectives interact with each other, both in theory and in practice. In addition, needs for further development of the procedure are outlined. With child custody disputes, I refer to conflicts and disputes between the guardians (typically the parents) regarding their child, over custody, residence, right of access (contact, visitation) and child maintenance. Court-connected mediation in Finland is an in-court alternative process to court trial with one or more impartial, neutral mediator. In this interdisciplinary I have combined legal theory and doctrine, theories and methods from the social sciences and multidisciplinary mediation theories. First, I focused on the theories and principles of court-connected mediation through legal doctrine and mediation theories to outline the context for court-connected mediation. Secondly, I focused on the theories and principles of child law. The modern view of child law is based on the UN Convention on the rights of the child and its rights-based interpretations of the best interests of the child. In addition, national legislation is systemised and interpreted. Thirdly, I focused on the contents and definitions of custody disputes and court-connected mediation. In addition, I looked at access to justice. Fourthly, my research includes an empirical section with observations and interviews. No children were interviewed, since they did not participate in the mediations, which is customary in Finland. The data was analysed with content analysis. The main findings of the research are the following. First, the definitions of the best interests of the child are various and partly contradictory in the pluralistic legislation concerning court-connected mediation in custody disputes. Multiple interpretations of the best interests norm and principle are possible, but not all of them correspond to the modern child law perspective. Secondly, the court-connected mediation model in legislation is somewhat contradictory in child custody matters: the generally adopted dichotomy of facilitative and evaluative models seems to be insufficient to achieve a rights-based interpretation of the best interests of the child. Thirdly, I saw the best interests of the child as a multidisciplinary set of factors, including a child’s legal rights that need to be taken into account and evaluated individually on a case-by-case basis. The empirical data suggested that in practice the interpretations of mediation and of the best interests of the child were somewhat narrower compared to the theoretical options that are available. Consideration of the cross-effects of child law and mediation theory perspectives has thus unused potential. Court-connected mediation in child custody disputes in Finland could be improved both in theory and in practice by developing deeper understandings of child law and mediation theories as well as their interaction, by amendments to legislation and other regulations, by more training in mediation and child law, and by an altogether more systemic and reflexive approach. More attention could be paid to children’s human rights requirements and also to access to justice in its many dimensions in the context of mediation as an alternative process.
  • Collin, Jesse (Alma Talent Oy, 2020)
    Osake ja modernit arvopaperimarkkinat on yhtiö- ja arvopaperimarkkinaoikeudellinen väitöskirja pörssiyhtiön osakkeen omistuksen sisällöstä suhteessa tiettyihin rahoitusvälineisiin. Osakkeenomistajilla on keskeinen rooli osakeyhtiön hallinnossa (corporate governancessa), sillä heille on annettu viimekätinen valta päättää yhtiön asioista äänestämällä yhtiökokouksessa. Perinteisesti suhteessa osakeyhtiöön osakkeen on katsottu muodostavan jakamattomana pidetyn oikeuksien ja velvollisuuksien summan. Lisäksi osakkeenomistajille annettuja oikeuksia on perusteltu oman pääoman ehtoisen sijoituksen riskillä, sillä yhtiön rahoittajien keskuudessa osakkeenomistajien sijoitusta on pidetty kaikkein riskipitoisimpana. Finanssiteknologian ja arvopaperimarkkinoiden kehityksen myötä perinteinen käsitys osakeomistuksen sisällöstä on murentumassa. Esimerkiksi eurooppalaiset aktivistiosakkeenomistajat ovat kyenneet pilkkomaan osakkeen tuottamia oikeuksia irti toisistansa ja muokkaamaan osakeomistuksen riskiä hyödyntämällä moderneja rahoitusvälineitä ja markkinakäytäntöjä, kuten johdannaisinstrumentteja ja lyhyeksimyyntiä. Tämä niin kutsuttu osakeoikeuksien pilkkominen on vaikuttanut eurooppalaiseen yhtiö- ja arvopaperimarkkinasääntelyä koskevaan sääntelypoliittiseen keskusteluun sekä muovannut pörssiyhtiöitä koskettavaa viimeaikaista EU-sääntelyä. Tutkimuksessa perehdytään syvällisesti pörssiyhtiön osakeomistusta määrittäviin taustateorioihin ja nykyaikaiseen osakkeenomistaja-aktivismiin. Toisaalta teoksessa tarkastellaan kattavasti käytännönläheisellä otteella osakkeenomistajan oikeuksia ja velvollisuuksia määrittävää yhtiö- ja arvopaperimarkkinaoikeudellista sääntelyä. Tutkimuksessa on huomioitu kattavasti pörssiyhtiöiden osakeomistusta koskettava kansallinen sääntely erityispiirteineen kuten myös viime aikoina merkittäviä muutoksia läpikäynyt EU-sääntely.
  • Lindqvist, Jenna-Sofia (Helsingin yliopisto, 2018)
    As the traditional Internet has developed into the The Internet of Things (‘IoT’), personal data protection law has also expanded from being a niche field of law, into a legal area that is applicable in almost all sectors, services, and technologies. Globalisation and the vast technological development, and elaborated collection of data, has raised questions about whether the current EU data protection legislation can cope with the new challenges that the modern technology poses. As a result, the EU Commission undertook to propose a new EU data protection legislation, to replace the Data Protection Directive (‘DPD’), and to better cope with modern data protection issues, the legislation which we now know as the General Data Protection Regulation (‘GDPR’), and which became applicable in 2018. This article-based doctoral dissertation sets out some of the key elements of the EU data protection reform package that has been processed for the past six years, and highlights some of the main changes in comparison to the situation governed by the outdated DPD. The main method is legal dogmatic with elements of both ‘legal-political’ and ‘problem-centred’ methods. The context of the research is the IoT and personal data challenges brought by it to data subjects, mainly by private stakeholders. As will be identified in this dissertation, the IoT poses challenges to personal data protection mainly because the amount of personal data that is collected has increased substantially, and because information is gathered from so many different, scattered sources. In addition, the form of automatic communication between smart devices makes it difficult to apply fundamental transparency and fairness principles. This dissertation investigates the complexity of the legal state in EU surrounding personal data protection in the context of the IoT. The articles forming the dissertation outline changes both in law, and the world at large, point out legal unclarities, and contribute to the academic discussion about the possible effects of the GDPR. In a nutshell, this study aims to answer the question: Is the GDPR fit to deal with new technologies such as the IoT?
  • Kontkanen, Pirjo Kristiina (Helsingin yliopisto, 2006)
    Copyright within university research and teaching Freedom of science is the basic principal at the universities. Freedom of science and copyright are both guaranteed as constitutional rights. Constitutional rights act as principals. When deciding a concrete case one has to chart which rights are applicable and then weight the balance of the rights. When studying copyright one has to take into account also directives and international agreements. National rules on copyright are based on several international agreements and a lot of directives have been given to harmonize national regulations. In principal constitutional rights such as scientific freedom have been ensured and taken into account when enacting copyright legislation. Changes in society and universities, however, create new situations where copyright appear and interact in a new way. When discussing the use of copyright protected material within university research and teaching one has to take into account how university functions have been divided into two sectors and how the principals directing university activities have to accommodate to changing conditions. In order to create more equal ways of handling copyright protected material at the universities and to ensure proper user rights for the university society university policies on copyright as well as a bit more detailed legislation on the relations between copyright and university research and teaching are needed. The present regulations do not ensure the rights of the university society to needed extent but leave too many situations uncertain.
  • Tuura, Heini (Helsingin yliopisto, 2019)
    This dissertation concerns armed intervention by invitation in international law. In its essence, intervention by invitation entails the use of force with the consent of the territorial State, which appears simple. However, the modern form of the concept is fraught with legal complexities, including its relationship with the United Nations Charter. The instrument, which should regulate the use of force and make it a collective matter, does not mention unilateral intervention by invitation, leaving its legal basis complicated. Still, this impasse has been bypassed, allowing the concept to exist despite its inherent contradictions. The thesis examines the position of intervention by invitation in international law governed by the Charter: why the doctrine continues to exist as an international legal concept and how it has fared since 1945. Accordingly, the dissertation has been divided into three research topics: (1) the exact legal basis of intervention by invitation and how it is related to other uses of force, (2) the concept in practice, and (3) its current and future prospects. The thesis deploys the New Haven School approach to international law, thus adopting a policy-oriented perspective. Upon examination, it is held that the concept is a result of decision-making processes which took place following the adoption of the Charter. These processes were pushed by the most powerful States, which endorsed invited interventions in the absence of collective security. Thus, the concept’s emergence is attributed to the failure to implement the scheme of the Charter wholly in the midst of the Cold War, which led to political developments that necessitated the return of invited interventions. Modern intervention by invitation hence exists due to changing circumstances and the State policies adopted in response, not the black letter of law itself. This is mirrored in the practice of the doctrine, which is erratic in many senses, and its current place in international law. Despite this antagonistic character quality, intervention by invitation has also played a stabilising role during the UN era, as it has quietly served the common values of the global community. This was particularly the case during the Cold War, when the concept — while deepening the polarisation of relations — prevented the political crisis from reaching the point of no return. The doctrine has thus served a dual purpose, attending to both sovereign and common interests. This ambivalence is relevant, because the definitions between unilateral and collective measures, as well as internal and international matters, are becoming hazier. Such developments inevitably have an impact on intervention by invitation and the values it serves. Of late, intervention by invitation has been invoked to promote global interests more expressly, which suggests that the concept is indeed transforming. However, this transformation may be hindered by the fact that unlike during the Cold War, when it kept the balance of terror in check, intervention by invitation currently has no wider purpose to serve. Finding such a purpose is of upmost importance, should the concept aspire to embody global and sovereign interests in a balanced manner.
  • Soirila, Ukri (Helsingin yliopisto, 2018)
    The 1990s and the first years of the twenty-first century witnessed the sporadic emergence of a new vision of global law – one based on the human individual and humanity at large. Although it has taken many different forms, this vision has been uniform in its push to radically alter how we understand international law by seeking to posit the human as the primary subject of the international legal order and humanity as its main source of legitimacy. The vision is spelled out rather explicitly in some academic works, hinted at in others, and pops up here and there in international legal practice. Together, the thesis calls these instances “the law of humanity project”. The thesis provides an immanent critique of that project. In particular, it focuses on the outcomes of the project, asking how might the circulation of the humanity language, and in particular the claim that we are or should be moving towards law of humanity, produce and sustain such relations of power which are inimical to the aims of the project? In so doing, the thesis proceeds through three steps. Part I situates the emergence of the law of humanity project in a specific historical and theoretical context in the post-Cold War period and analyses its different academic manifestations. The central finding is that the project seeks to achieve its goals by increasing the importance and circulation of certain key concepts which are assumed to change the way we perceive international law. Three such concepts are identified, namely human rights, human security and human dignity. Part II challenges the underlying assumption of the law of humanity project that the increased relevance of the aforementioned concepts would necessarily change international law to the direction desired by the proponents of the project. Addressing each of the concepts individually, the Part argues that due to their indeterminacy, all of the concepts can be used for myriad purposes, some of which can be entirely opposite to the aims of the law of humanity theorists. Part III shifts gear and focuses on how humanity rhetoric has actually been used in action, and with what outcomes. The Part makes two key arguments for the entire thesis. The first is that although the humanity rhetoric has been impressive, it is not clear that it would have increased the well-being of individuals or empowered them. Where the rhetoric has clearly made an impact, however, is in disciplining the state and in allowing deep-penetrating interventions into what goes on within states and how they are organized. The second key argument is that the law of humanity project may operate like an ideology, obscuring how the humanity rhetoric can be used to produce and sustain relations of power by presenting all uses of rhetoric as further steps in a rather linear story culminating in the emergence of “law of humanity”. In so doing, it may enable such relations of power which are inimical to the main ideas of the law of humanity project and which are difficult to reconcile with the humanity rhetoric. This is so in particular because of forms of power/knowledge which may greatly benefit from the law of humanity project disciplining the state.
  • Salonen, Antti P. (Helsingin yliopisto, 2019)
    The emergence and rapid evolution of the over-the-counter (OTC) derivatives market in the early 1980s revolutionized the whole landscape of finance. OTC derivatives are financial products that are transnational in their nature. These products do not follow any jurisdictional lines nor theoretical boundaries focusing on state-made law. They transcend them. The central argument of this research is that legal scholarship requires a legal theoretical approach capable of recognizing private normativity and that accepts that it is not only nation states and organizations that derive their powers from states that can produce law. Transnational method allows the observer to acknowledge the transnational elements of finance and then set them into a legal theoretical structure. This research retells the evolution of the OTC derivatives market through the application of transnational method. Instead of building a narrative emphasizing the de- and reregulation policies and politics, the research focuses on early beginnings of the largest capital market in the world, the so-called eurobond market of the 1960s. Through legal innovation, this market developed its own transnational rules. In the 1980s, this market became integrated with the rapidly growing market for swaps, a type of OTC derivative. Seeing the demand for contractual standardization,a handful of financial institutions became organized through a trade organization today known as the International Swaps and Derivatives Association, Inc. (ISDA). The main product of ISDA, the ISDA Master Agreement architecture, had become by far the most used standard agreement in the OTC derivatives market already before the 1990s. Post financial crisis of 2008, this transnational contract still holds a central position in a very different regulatory environment than that of the 1980s. Transnational method identifies the supply and demand for financial and legal innovation, and the facilitative role that nation states and international organizations can play in enhancing private normativity and the transnationalisation of law. The results that transnational method tells are first and foremost descriptive. The application of transnational method requires a functional, rather than formal, understanding of ‘law’ because this allows private normativity to be recognized and its ontology properly understood.
  • Kolehmainen, Esa (Helsingin yliopisto, 2019)
    Every useful view to legal system is, at some extent, a perspective, which combines both hermeneutical and normative aspects of human mind. Indeed, in hermeneutics we do not just suffer lack of normative aspects in thinking while our “conceptual framework” is trained to identify and analyze conceptualized facts and phenomenas of the visual world. The problem is also, as it were, how to grasp a linguistic perspective to formation of value-judgments and normative speech in general. Last mentioned items are presupposed in hermeneutics. However, hermeneutical view and the question of language by which to gain position from which we would be able to use language as a tool also outside the scope of positive philosophy of science, are closely linked to each other. Normative aspect takes its steps towards the same problem – the problem of adequate language scheme – but from the different direction. Now we start, as it were in the kelsenian point of view, from the myth of norm and unsatisfactories are semantical by their very nature. We also would like to know how our antirealism works as a pragmatic craftmanship – used in hypothetical situations and guarded by our conceptual potentiality as a whole. Actuality of legal language is always a combination of these two perspectives. The language of legal system should be analogous to hermeneutical point of view to language in general. The semantical steps taken outside the scope of myth are to be adequate to needs of language-user who wishes – for example – to give commands, reason from juristic premises – or justify by means of language, that is: give the best possible argumentable solution to a given legal question. Thesis at hand is a feasibility study on larger investigation on “theory of elementary language” which could give us a better view on conceptuality especially on ethical issues concerning inner point of view and the use of language outside the immediate main field of the philosophy of ordinary language. Thesis interprets subject matter on two meanings. Firstly, how legal theory presupposes internal point of view (and how dworkinian “insider´s view” which I don´t consider distant general concept in comparison to hartian “internal point of view”) when we are dealing with different kinds of abstract problems in theory of law (chapters 2–4). Secondly, how far we can reach without mentioned point of view when making attempts to solve problems – or at least develop solutions to problems – emerging from particular normative cases or from the theory of law itself. Chapters 2–4 introduce the proper items of the work. If, at the same time, we understand them as arguments for the field of study of the internal language, our angle to legal theory is somewhat late wittgensteinian. Chapters are introducing perspectives to the problem of internal language needed both in naturalistic and noncognitive subjectivism. Chapter two deals with relativeness of the sources of law stating 24 different modes of sources. Chapter three interprets the conception of “institutional fact” from the idea of an implication (“ontic implies deontic”) which also have intimate connection to analogy. Chapter 4 interprets the problem of easy cases, that is, cases we consider intuitively and heuristically clear ones from the basis of our sources of law. Thesis claims that we have at least eight built-in ways on our reach to construe doubt in asking normative questions as a necessary conceptual condition for normative thinking.