Browsing by Subject "international law"

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  • 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.
  • Garcia-Salmones Rovira, Monica (University of Helsinki, 2012)
    A Science of Interests: The Project of 20th Century Positivist International Law This research aims to contribute to a project of reconceptualisation of the concept of law within which discussions over publicness are possible. It is a study of the substance and of the form of positive international law. In particular, it constitutes an investigation of how each determines the other. The research addresses geologically the change in the substance and form of international law in the 20th century. It analyses how the economic view of the world of several influential international lawyers inaugurated a new style of doing theory. The argument set forth is that international law was both re-founded on the premises of an internationalist sense of economic interdependence and transformed into a science. The outcome of this process was doctrinally the inauguration of economic legal-positivism; and politically a change of language: from the expansionist empire to universal internationalism. However, the study questions the idea that imperial practices were abandoned in the course of the renewal of legal theory. The work of two of the most respected theoreticians of 20th century international law, Lassa Oppenheim (1858-1919) and Hans Kelsen (1881-1973), constitutes the core of this research which follows the thread connecting their theories. Research Questions: The legal theoretical tenets of economic legal positivism focus on setting out the conditions of a theory under which international legislation would be possible. Based on this premise, the following research questions are posed: What is the particular political project of economic-positivist international law? How does this political project influence legal theory? Why is it important to unearth today the economic foundation of positivist international law? Method: The research employs the geological method, proposed originally by Joseph H.H. Weiler. The geological method contributes to incorporate in the study both the historical and the philosophical aspects of the formation of the positivist international legal theory. The connections existing between international legal positivism and both the European philosophical tradition and the tradition of international law to the present day are thereby uncovered. The use of philosophical realism seeks to provide a holistic approach to the theory of economic-positivist international law and to establish the rule of alterity epistemologically (the fact that human beings are social beings). Conclusions: The thesis concludes that the theoretical conditions of international legal positivism still belong today to a philosophy of interests which constitutes an individualist philosophy. This fact continues to obstruct the political discussion on what is good and just in the global order. The establishment of legal instruments to pursue that just order requires a reconceptualisation of law.
  • MORRIS, P. Sean (2020)
    One of the most important cases in the jurisprudence of international law – Chorzów Factory – has a hidden secret, so much so that, even when in plain sight, legal post-mortems of the case fail to mention this well-kept secret. Chorzów Factory was about intellectual property rights, specifically patents and trade secrets, and this narrative has never been fully addressed. When the developments in international investment law and arbitration are fully considered it is worth looking back at Chorzów Factory to associate it with new streams of contemporary investor-state disputes that include issues such as intellectual property rights. Because Chorzów Factory has established the full reparation standard for unlawful expropriation, the standard has enabled a continuity of international law and underscores its importance for contemporary investment arbitration. However, the intellectual property narrative of Chorzów Factory has been neglected, and, in this article, I want to develop the intellectual property narrative of Chorzów Factory and to demonstrate the nexus between fair compensation, intellectual property rights and the continuity of international law.
  • 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.
  • Tahvanainen, Tanja (Helsingin yliopisto, 2020)
    The purpose of this Master’s thesis is to analyse state-sponsored terrorism from the perspective of the doctrine of state responsibility. The aim of this work is to assess whether it is possible to hold a state responsible for the acts of non-state terrorist actors which originate from its territory. The term “state-sponsored terrorism” is used in this work to refer to situations where a state provides support to a terrorist organisation for the purpose of carrying out acts of international terrorism. State terrorism, which can be understood as terrorism practiced by states, falls outside the scope of this study. The methodology followed in this thesis is doctrinal research. As such, this thesis utilises international conventions, custom, academic literature and case law as sources. Particular attention is given to the International Law Commission’s 2001 Articles on Responsibility of States for Internationally Wrongful Acts which are utilised to conceptualise international responsibility and highlight some of the shortcomings of the existing state responsibility rules in the context of state-sponsored terrorism. The starting point of this research has been the view expressed in academic literature that the rules of state responsibility are unable to respond to challenges posed by state-sponsored terrorism. Thus, this thesis also considers the customary obligation of states to refrain from activities that may cause harm to the territory of other states as an alternative to state responsibility. The use of terrorist organisations as proxies has become more attractive for states seeking to avoid the increasing costs of traditional warfare and the risk of nuclear war. States support terrorist groups to evade international responsibility and deny their role in terrorist activities. Attributing responsibility for terrorist acts is imperative if states are to prevent international terrorism. State sponsorship of terrorism therefore poses a significant challenge to the international community. This study finds that establishing responsibility for state sponsorship of international terrorist organisations is often difficult, if not impossible, because the evidence linking the wrongful act to the actions or omissions of the state is lacking. Even if an injured state can show that another state has provided some logistical support, financing or sanctuary to the terrorist organisation that committed a terrorist act this is not enough to hold the state sponsor responsible for the consequences of wrongful private conduct that it has helped bring about in many cases.
  • Soirila, Pauno (2022)
    The debate over the restitution of cultural property is usually framed as the dispute between what John Henry Merryman defined as 'cultural nationalism' and 'cultural internationalism': the opposite viewpoints that argue whether cultural heritage objects should be returned to their countries of origin or spread around the world as determined by other principles. I argue, however, that the concepts are problematic both in their definition and their perception as two dialectically opposed sides of a dispute. This article analyses the restitution debate by examining some of the most important arguments and counterarguments used in the debate and by comparing them to the international law 'New Stream' theory. It is revealed that a similar indeterminacy which defines international law in the theory also defines the restitution debate, and that cultural nationalism and internationalism do not in fact provide answers to the debate but only function as two entry points that echo each other without a way to end the debate. Therefore, it is necessary to see beyond the two concepts in order to find solutions to the disputes.
  • 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.
  • Husa, Jaakko (2021)
    The relationship between comparative law and public international law is paradoxical. These fields are in principle close to each other but remote in practice. The emergence of comparative international law has changed the situation as it invites comparative law scholars to enter into discussion on international law. This article provides a critical analysis on the possibilities for comparative law in the field of international law. It discusses and explains why a non-normative understanding of comparative international law works well together with the pluralist conception of comparative law, and why a normative understanding of comparative international law is incompatible with it. This article explains why comparative law scholars do not welcome the use of comparative law for international law purposes with open arms.
  • Cantell, Mikko (2007)
    The weight of neoconservative ideology in world politics is generally identified and acknowledged. In spite of this more profound studies are found wanting. I attempt to make the ideology more understandable and approach it from a distinct point of view, examining neoconservatism's attitude to torture in the United States' 'Global War on Terror'. In so doing, my aim is also to clarify the thus far somewhat vague distinction between the current U.S. administration and neoconservatism in political and academic writing. I have utilized the theory of cognitive dissonance created by Leon Festinger to study the mechanisms in play concerning the different attitudes toward the use of torture. The theory has so far found very few applications in the study of international relations, but I believe there to be significant potential in its future use. On a more concrete level, I undertake to examine whether the core values of neoconservatism (human rights, liberal democracy, 'American values' and 'moral use of power') on the one hand, and condoning attitudes toward the use of torture on the other, give rise to an intolerable inner conflict that could be called cognitive dissonance. The use of torture is absolutely prohibited in international law, standards and norms. The most central internationally binding legal obligation prohibiting the use of torture is the Convention against Torture from 1984. The convention prohibits the use of torture in all cases and without exception. My study examines the question of torture in the context of the 'War on Terror' and the relation of torture to the individual. The individual rises in fact to be one of the most salient levels of analysis in the paper: each of neoconservatism's core values can be said to be based on defending the rights of the individual while torture can simultaneously be defined as being the ultimate denial of the individual worth and dignity. I conclude my study by asserting that neoconservatism's attitude toward torture has led to severe conflicts with its own core values. Although accurate definitions of the mechanisms used in alleviating the dissonance are impossible to find, the study gives evidence indicating that denial of responsibility and a rearranging of the hierarchy of internal values can have been included in the reduction of dissonance. I consider the notion that attempts to reduce dissonance typically 'spill over' to other seemingly unattached areas of decision-making very important. This means that in addition to core values or the fundamental level of ideology, past decisions also influence future decisions.
  • Kari, Ville (2020)
    This thesis explores the rise and fall of the classical doctrine of civil war in international law. The doctrine was based on the legal concepts of war, peace and neutrality and their application to internal conflicts. In the traditional Westphalian system, rebellions and insurrections were understood strictly as internal affairs of sovereign states, and insurgents enjoyed no standing before the law of nations. However, under some circumstances the facts of an insurrection would necessitate its recognition by foreign powers as a situation of civil war, where the laws of war and neutrality applied. While the classical law of civil war was once a well-known part of legal scholarship, there have been few major studies on the subject for several decades, and the classical concepts and arguments of civil war have become increasingly difficult to assess using the present-day vocabularies. This study seeks to make the classical doctrine more understandable again, and to explain how it fell out of use in the twentieth century. The main findings are as follows. The origins of the doctrine were in the early modern revolutions, in particular the Dutch revolt and the English civil war. The synthesis of the legal principles of civil war was drafted by Emer de Vattel in his Droit des gens (1758). The rise of the classical doctrine of civil war took place when those principles were invoked by the American and Spanish American colonial revolutionaries during the transatlantic revolutions, as they established insurgent prize jurisdictions and claimed belligerent rights on the high seas. The doctrine began its decline in state practice after the abolition of privateers in 1856 and the Geneva arbitration in 1872. The practice of belligerent recognition was gradually superseded by alternative and often more indeterminate approaches, such as the qualified recognition of insurgencies. This also contributed to the gradual development of the law of intervention and the law of state responsibility as legal approaches to internal conflicts. After international law took a more professional form in the 1870s, the classical doctrine of civil war was developed further by legal scholars. Dedicated monographs were published by Carlos Wiesse and Marquis d’Olivart in the 1890s, and two resolutions on the subject were passed by the Institut de Droit International in 1900. But with the renunciation of war in 1928 and the founding of the United Nations in 1945, civil war as a legal concept began to wither away and was eventually replaced by the new languages of armed conflict and international humanitarian law. The transition led into a crisis in the classical law of civil war, as illustrated by the case example of the Spanish civil war in 1936–1939. The sunset of the classical doctrine of civil war can be identified in the drafting of the Geneva Conventions of 1949, in the new legal approaches arising from decolonization, and in its final consideration at the Institut session at Wiesbaden in 1975.
  • Klabbers, Jan (T.M.C. Asser Press cop., 2021)
    Netherlands Yearbook of International Law
    This contribution addresses the role of national yearbooks of international law in the formation and maintenance of national academic communities (“imagined communities”, if you will), and their potential role in the education of aspiring international lawyers. It takes personal reflections as its starting point, and eventually suggests that such yearbooks are well worth cherishing—they fill a void in the academic industrial process, a void left by the predominance attached to research monographs and journal articles.
  • Reiman, Tea (2002)
    This study examines states’ non-compliance with the rulings of the International Court of Justice. Submission to international arbitration is a special case of international law, implying sacrifice of state’s autonomy of action and acceptance of the risk of sanctions. This study examines two cases of non-compliance with the rulings of the Court, the Fisheries Jurisdiction and the Gabcíkovo-Nagymaros cases. Security is the fundamental interest, function, and raison d’être of the state, the safeguarding of which supersedes all other issues. Securitization of an issue provides the state internal legitimacy for tackling the issue with all measures. The objective of the study is to examine whether the central issue of the dispute was perceived as a security threat and successfully securitized in both Iceland and Hungary, and whether non-compliance with the ruling was a consequence of securitization in the Fisheries and Gabcikovo cases. The study consists of two analytical phases: the analysis of the securitization processes of the cases, and the analysis through the sectoral approach, which consists of five security sectors. The study is primarily based on Buzan, Wæver, and de Wilde’s framework for analysis. The study is a two-case study. The cases were selected according to the requirements posed by the theoretical framework. The study is an ideographic analysis, in which methods of qualitative research are used. The research data consists of documentary material: previous studies, judgments, articles, and other existing literature and relevant legal analyses. The research techniques of textual analysis and source criticism are employed. The hypotheses are verified by the analysis. Both securitization processes were successful, and non-compliance was demonstrated to be a consequence of the securitization. Further findings are related to the theoretical framework: the relative importance of the sectors, the cross-sectoral dynamics, and the developments of the security discourse. The implication of securitization processes to the role of the Court in the international system are also discussed. The results of the study are applicable only to the two examined cases, yet securitization provides a possible explanation of non-compliance with the rulings of the International Court of Justice also in a wider context.
  • Vihma, Antto (2012)
    The objective of this dissertation is to contribute to our understanding of global governance, using the concepts of hard law and soft law to analyze international agreements that are developed as tools of global governance. They can be placed on a continuum from ideal hard law treaties to the vaguest and voluntary soft law. This dissertation presents an analytical framework for comparing legal arrangements on different positions along the continuum. The framework focuses on two overarching evaluative criteria; effectiveness and legitimacy. Both are further divided into sub-components that can be evaluated contextually. To complement the general theoretical discussion, the dissertation includes three focused empirical case studies on the relationships between hard law and soft law in global climate governance. In order to gain further understanding of international agreements, the thesis makes three central and overarching claims. I argue that the legalization continuum offers an academically solid and policy-relevant approach to international agreements, contrary to some other suggested categorizations. I also call for both a comprehensive and practice-oriented analytical approach for further research into whether and how the characteristics of law in global governance matter. Comprehensiveness means that the analysis should take into account both rationalist and constructivist insights, keeping in mind that the key evaluative criteria, effectiveness and legitimacy, are deeply intertwined. The related claim of practice-orientation is that in order to have relevance, this analysis must be firmly embedded in the political context, most notably North-South politics. Applying the comprehensive and practice-oriented research approach, the dissertation presents three empirical case studies. First, the study elaborates how the soft-hard law dynamics are crucially important in the domestic/foreign policy interface of major developing countries, through a case study of Indian climate politics. Second, the results indicate that non-UN soft law being used to exert influence on the negotiations within the UN context. Lastly, the thesis argues that while the developing country interests are both converging and diverging, the increasingly conflicting interests, as well as the very slowly eroding common identity, are leading to increased challenges to South unity.
  • Creutz, Katja (Hakapaino, 2015)
    This thesis explores the law of state responsibility in international law from a critical standpoint. The main argument is that there are no longer justifications for holding state responsibility as the foremost responsibility system in international law. The importance of state responsibility has diminished; state responsibility has moved from a paradigm to the periphery in the international legal order. The thesis advances on two fronts to prove the veracity of the argument. First, it evaluates the law of state responsibility as adopted in the International Law Commission s 2001 Articles on State Responsibility in order to pinpoint problems in the general state responsibility rules. Second, the thesis explores how alternative constructions of responsibility, that is international liability and international criminal law, have overtaken portions of the state responsibility domain. Functionality is presented as the most suitable appraisal framework for an analysis of how state responsibility rules respond to challenges such as globalization and its actors, the diversity of responsibility ideas, and the normative fragmentation of responsibility in international law. The thesis thus prioritizes the practical usefulness of a responsibility regime in international law rather than abstract system-building functions. The exploration into the functionality of rules for state responsibility is preceded by an excursion into the evolution of state responsibility. The historical outlook will reveal how the rules developed, what dilemmas have characterized the state responsibility project and how these tensions have affected the formation of the ILC state responsibility rules. The critical appraisal of the general rules of state responsibility addresses a range of problems that relate to legal pluralization, form, function and implementation. It is argued that the state responsibility rules are unable to respond to the multi-actor and multi-issue world, to norm differentiation, and to the diversity of function, all of which contributes to the marginalization of the law of state responsibility. The thesis contends that the decision to create one all-embracing responsibility system for all kinds of violations of international law in order to build a credible international legal order actually led to lessened functionality. Real-world problems of crucial importance to the international community cannot be effectively handled under the state responsibility regime. From the demerits of state responsibility, the thesis proceeds to explore particularized responsibility regimes that have developed and strengthened as alternatives to state responsibility. International liability and international criminal law rules are explored from specific points of functionality that state responsibility is ill-suited to handle, i.e. social control, collectivity and the signalling effect. It is submitted that their particularity is an asset that allows regimes to deal with real problems in flexible and creative ways. They have thus effectively contributed to the side-tracking of state responsibility.
  • Liimatainen, Nora (Helsingin yliopisto, 2023)
    The alarming state of the environment has led to a sobering realisation by the global community of the need to act promptly for environmental protection. International environmental law is a fairly new field of law addressing the challenges that the global environment faces in an ever-increasing extent. The current study focuses on questions related to the application of state responsibility in the context of international environmental law, and difficulties involved in this respect. Additionally, the thesis will examine inherent ambiguities of international environmental law in respect of the preventive approach to environmental harm. The traditional response of international law to transboundary damage in general has been to impose responsibility on a state that has caused the damage. Accordingly, the state in question has been required to desist from the harmful conduct and to provide accurate reparation to the injured state for the damage that has been caused. In other words, the sovereign rights of states have been diminished for the benefit of the environment and issues regarding environmental harm have been addressed with a focus on reparation. The state responsibility regime is quite well established in international law and customary rules have been codified to provide a clear framework of preconditions in order for state responsibility to be invoked. The compatibility of the state responsibility regime with matters related to the environment can, however, be questioned. This is because state responsibility rests on a reparative approach in regard to harm caused to neighbouring states. The nature of irreversible and irreparable environmental harm, however, is such that requires prior attention rather than counting on a reactive approach to harm that has occurred. The challenges faced by state responsibility in the context of international environmental law include, for instance, difficulties in identifying the source of environmental harm, the establishment of a causal link between a suspected harmful activity and damage as well as the attribution of such harmful conduct to a state. The difficulties mentioned above have not gone unnoticed by the international community which has realised that the reparative no-harm rationale behind state responsibility is ill-adapted to address environmental concerns. The core objective of the rules of international law governing the environment is the prevention of environmental harm rather than just providing a state that suffers environmental damage an opportunity to seek reparation. Hence, a paradigm shift from a reparatory approach to a preventive approach has occurred. Essentially, the principle of prevention, which has become a foundational principle in the field of international environmental law, entails a duty for states to prevent, reduce or control significant transboundary environmental harm resulting from activities within their jurisdiction or control. However, while preventive action is preferable in regards of environmental protection, the regime of preventive measures is not without its ambiguities. Unclarities can be discovered, for instance, in the objective of the obligation to prevent harm as well as its core elements of due diligence and the threshold of significant harm. Despite its ambiguities, the principle of prevention remains as the governing norm in respect of addressing transboundary environmental harm. What needs to be acknowledged is that international environmental law finds itself in a state of development, whereby its rules and principles have yet to deploy their full legal effects. Notwithstanding the incompatibility of a reparative approach with environmental protection, the study arrives at the conclusion that state responsibility, while in principle not an ideal approach, at least for the time being has a significant role in addressing transboundary environmental harm – in ensemble with prevention.
  • Xu, Yan (Helsingin yliopisto, 2020)
    This thesis describes and analyses a fairly recent phenomenon – the Belt and Road Initiative, ie the initiative of building the Silk Road Economic Belt and 21st Century Maritime Silk Road. As a new form of international cooperation introduced by Chinese government in 2013, the initiative was created in response to complex international, regional and domestic situations. The first and second chapters are intended to give a brief introduction to the initiative, including the background, research questions, structure of the thesis, author’s motivation for this study, the historical reference, recent history, et cetera. The third chapter looks into the existing instruments and institutions under the initiative and attempts to explain its architecture, following which the fourth chapter tries to understand the initiative from an institutional and normative point of view, and the fifth chapter sums up this thesis. The initiative has a historical reference to the ancient silk road, both overland and maritime trading routes which facilitate the exchange of goods, information, technologies, ideas between the countries along the routes. Beyond the literal meaning, the initiative extends its wishes to carry on “silk road spirit” that passed from generation to generation in history. While the initiative envisages such a connectivity network, it is more a corollary of the unique development path of China, particularly since it started to “open up” itself to the world, as led by the its renowned “reform and opening up” policy in 1978. Around forty years of economic reform gives rise to China’s increase influence in the globe. The reform as started in economic sphere was later expanded to politics, culture, society and ecology. Shortly following Xi Jinping arising as China’s latest paramount leader, the initiative was announced, then further developed in the subsequent years. The Belt and Road initiative is established by two speeches of Xi Jinping in Kazakhstan and Indonesia, and it comprises a wide range of policy instruments, commonly including, policy orientation or proclamation papers formulated by China’s communist party. These policy instruments largely reflect the objectives of the initiative and actions China takes to achieve such vision. Furthermore, local provincial governments’ responses to the “vision and actions” of the central government of China, together with China’s policies concerning the outbound and inbound investment, are regarded as part of the policy instruments used under the initiative. From a global perspective, China engages with other states and organizations on cooperation within the framework of the initiative through memoranda of understanding, which are not intended to give rise to rights and obligations under international law. Joint statements are also commonly used for the promotion of the initiative, as part of a bigger picture of China’s bilateral relationships with other states. It is difficult to define the initiative in that the above instruments are policy-oriented and are not intended to delimit its scope (but to promote the initiative and facilitate the implementation of the initiative). As it is created to serve as a model of international cooperation, it is thus compared with formal organizations. A preliminary conclusion is reached under the thesis that the initiative is essentially different from formal organizations and loosely connected with the international legal community – it is a sort of spoke-and-hub network that is informal, flexible and inclusive. It is also explored briefly that such informal network actually reflects China’s wish to establish an alternative model of international cooperation due to its unique political and economic system (socialism with Chinese characteristics) that fundamentally differs from the liberal international system in a Western sense.
  • Seppänen, Riikka (2002)
    This study examines the EU-US sanctions dispute over the Helms-Burton and D’Amato Acts from 1996 to 1998. In this study the focus is on analysing whether during the santions dispute the US was hastening the end of its favourable unipolar position in the international system due to its own foreign policy choices or whether the dispute qualifies as a balancing attempt by the EU. The systemic level theoretical framework consists of neorealism and sanction studies. Unit level factors are used as explanatory factors without a theory. The general EU-US relationship is used to reflect tendencies stated in the research question. Earlier sanctions and sanctioning patterns are reviewed. The study concludes that the US made a dual error in its decision to impose extraterritorial sanction laws against the EU. Firstly, the US confused the targets of the sanctions laws. Secondly, the US confused its foreign and economic policy strategies. This meant using confrontational economic strategy towards a foreign policy objective. Taken together, the US succumbed to arrogance of power and ended up possibly deteriorating its future systemic position. The EU's response was a twofold implicit balancing. The EU's first reaction was to shield itself against the US sanctions with Blocking Statue and Joint Action and so to protect its sovereignty and retain independent capacity to act. The EU's second implicit balancing reaction was meant to discipline the US against its arrogance of power by initiating a dispute settlement procedure in the WTO. The conclusion is that the sanctions dispute had both the effects of deteriorating the US future position as well as possibly increasing the position of the EU in the future. Yet, the US as an initiator of the sanctions dispute gives more explanatory power to the former. The source material of this study consists of neorealist theories. The most important source has been the edited book of Ethan Kapstein and Michael Mastanduno 'Unipolar Politics'(1999) Also sanction studies have been used. An important source has been 'Feeling Good or Doing Good with Sanctions – Unilateral Economic Sanctions and the US National Interest' (1999) by Ernst Preeg.
  • Kiiski, Saskia (Helsingin yliopisto, 2022)
    The EU is proactively marketing itself as a global leader on the environment and climate. Whilst championing for better protection of the environment at a time of a climate crisis is commendable, a problematic phenomenon is taking place. The EU is increasingly relying on unilateral measures aimed at shaping both process and legal standards outside of EU territory, hence challenging the sovereignty of other states. These internal measures of an outward-looking nature include the EU Timber Regulation, the inclusion of aviation to the EU Emissions Trading System, and importantly, more proposals have been heard, such as a proposal for an EU legal framework to halt and reverse EU-driven global deforestation. This enthusiasm towards unilateral action on the environment and climate welcomes critical analysis of these measures as tools for global environmental and climate governance. This thesis argues that regulation needs to be characterized as a form of power, exercised by the EU in the shape of unilateral regulation. In this context, unilateralism is utilized as a strategy of a global hegemon looking to compel others into its dominant worldview, accomplished here by establishing European standards as global standards. Hence, whilst the EU’s unilateral measures can secure better protection of the environment and climate, and are merited with success in creating transnational environmental law, they remain highly problematic. This thesis focuses on the international legal order and how it accommodates unilateralism in the field of environmental and climate law. It is argued that the EU’s unilateral measures should be regarded as an extraterritorial exercise of jurisdiction. Due to this conclusion, it will be considered whether multilateralism as the basis of international environmental law is a thing of the past and whether unilateral measures could be justified on a reconceptualized legal order, which accommodates unilateralism. Such discussion is relevant due to the current climate crisis and calls for a reconceptualization of the legal order into one which sees the environment and climate as a global concern facing all of humanity and knowing no territorial borders. It will be argued that the EU’s unilateral measures aimed at producing environmental standards outside its territory are not a reflection of a shift in the international legal order or the end of multilateralism but reflect the EU’s ambitions of global regulatory dominance.
  • Noparast, Zahra (Helsingin yliopisto, 2019)
    The UN peacekeeping missions have constituted a substantial part of international attempts for maintaining and restoring international peace and security. The missions have been deployed in almost every part of the world to control conflict situations and keep the adversaries apart. In some cases the operations held all the hallmarks of an enforcement action and did not observe the three pillars of the UN peacekeeping action. The deployment of forces in "peace enforcement", dominantly after the Cold War with questionable legal basis led to unfortunate outcomes. Furthermore, non-stop reports of alleged crimes committed by military, and civil peacekeeping personnel tarnished the image of the organization as a peace-broker. It seems that the organization is unable to solve the problems attached to the deployment and conduct of the operations. Having said that one has to acknowledge that during last seven decades the organization has set up many panels, committees, commissions which led to the publication of lengthy reports with different titles for overcoming those problems, but the recommendations fell on deaf ears, and the member states did not comply with them, because it was not legally binding. The best example was the Zied report, which was published after the widespread alleged atrocities of the peace personnel in Congo in the early 1990s. Since these political attempts did not yield any tangible results, the legal approach to remove the problems so as to have successful missions seems inevitable. According to paragraph 1(a) of article 13 of the UN Charter, The General Assembly is entrusted to encourage "…the progressive development of international law and its codification…" The organization has been successful in this field and sponsored the adoption of many legal instruments such as the four Geneva Conventions of 1949. Moreover, the UN General Assembly established a permanent subsidiary organ, namely; the International Law Commission to enhance the process of law-making, but all the attempts have been for bringing law and order only among member states. The organization itself is not a party to those legal instruments, and this situation caused many difficulties for the international community, specifically as far as legal successful conduct and command of UN peace operations are concerned. Since the UN peace operations under any title are the only mechanism at the service of the international community, revisiting the causes of the failure of the missions in number of cases is indispensable. Therefore, this dissertation presents a thorough research of the organization's record of observing international law in terms of establishing, conducting, commanding and financing the peace missions. The main question of this research is how to make the UN peacekeeping operation more successful while the rules of international law could be observed in every step of establishing a mission. In this research the connection between the major problems that the organization has experienced and the absence of UN conventional obligation is scrutinized to the point of conclusion that each problem could be overcome if the international community adopts a comprehensive legal convention on peacekeeping. To the author of this thesis, the suggested convention would comprise existing legal instruments such as the four Geneva Conventions, and adaptation of them to the status of the UN as an international organization. However, new codifications are necessary where there are no legal international instruments for removing the ever-lasting problems of deploying a peace operation. The main areas which require new codification are as follows: giving the peace enforcement action a proper legal basis; determining the effective command and control of forces by the organization, or establishing dual responsibility of force-contributing states; establishing an effective, and authentic accountability mechanism for the prosecution of the alleged criminal acts of peace personnel by either national states, or an international tribunal; setting up a proper mechanism for monitoring justifiable financial contribution of all member states to the cause in a way that no state, large or small could withhold their assessed share of contribution; and finally observing well-functioning of the Secretariat which has played a defining role in the outcome of every peace operation. The proposal in this dissertation may be materialized if some countries take the initiative and put it on the Agenda of the General Assembly for discussion. Let's hope there will be enough volunteers who consider the lawful and orderly manner of deploying peacekeeping missions as an urgent and vital step for having a peaceful world which would be beneficial for all member states. .
  • Perttunen, Juhani (Helsingin yliopisto, 2006)
    The subject of this study is to clarify the legal consequences of non-recognition. Firstly,a survey is presented of the current thinking and practice of non-recognition. On this basis, an attempt will then be made to examine the behavior toward unrecognized entities of those states refusing them recognition. The focus of the study is on various forms of international intercourse and the position of unrecognized entities before the courts of non-recognizing states. State practice during non-recognition varies considerably, which renders the identification of such practice according to clear rules and guidelines rather difficult. The subjective evaluation by each state of the international situation and the political need to withhold or grant recognition often seems to prevail over objective legal criteria when the issue of of relations with unrecognized states and governments arises. However, some degree of the effective existence of such an entity seems a prerequisite for any kind of contact. The will and the intention of the non-recognizing state are crucial as to the form and extent of these relations. Nevertheless, a trend is emerging in which an increasing number of states no longer automatically associate non-recognition with the absence of relations,perhaps the only exception being the collective non-recognition based on the decisions of the United Nations. Relations with unrecognized entities express, however, only the willingness of a non-reconizing state to enter into a specific kind, mode and scope of contacts it deems appropriate in each case. Accordingly, non-recognition nowadays indicates that, besides political reluctance,in the opinion of the non-reconizing state,a new entity does not enjoy the equal status in international law required for the general legal capacity to maintain "government to government" relations on the international level. Thus, non-recognition preserves a certain legal effect. In addition, non-recognition as a collective sanction has played an important role in UN practice and deserves further attention when considering the use and scope of non-recognition itself.