Oikeustieteellinen tiedekunta


Nyligen publicerat

  • Hanninen, Aleksei (Helsingin yliopisto, 2018)
    Business restructuring generally means the cross-border restructuring of multinational enterprises’ risks, functions and/or assets. This research deals with the transfer pricing treatment of business restructurings from the perspective of Russian, Finnish and U.S. tax law. The guiding principle of transfer pricing — the arm’s length principle — requires that the pricing of a related party transaction must ultimately conform to prices used between independent parties in similar transactions under similar circumstances. The main topic of this study is further divided into two primary research questions. First, this study examines to what extent business restructurings may become objects of transfer pricing under the national transfer pricing regulations in Russia, Finland and the USA. The second research question is how the arm’s length transfer prices should be determined for transfers of such assets/something of value that are deemed to be in the scope of the national transfer pricing rules. Further analysis is presented regarding whether the national transfer pricing regulations follow the arm’s length principle efficiently, and whether the OECD Transfer Pricing Guidelines could currently be used as an international standard in transfer pricing of business restructurings. This study aims to clarify the position of business restructurings as a legal phenomenon in the set of legal norms regulating transfer pricing. This research approach is known as a legal dogmatic approach. As the research objective is to examine the current legal state concerning transfer pricing of business restructurings in Russia, Finland and the USA, the results derived from the aforementioned jurisdictions are compared with each other. Thus, the second research method in this study is the comparative method. This research reveals that, especially in Russia, business restructurings may not fall efficiently within the scope of application of the transfer pricing rules, resulting in that the arm’s length principle is not fully followed. Although the current legal situation in Finland and the USA is more consistent with the arm’s length principle, certain partial issues remain ambiguous. In particular, the broad concept of intangible property used in Finnish (OECD-based) and U.S. transfer pricing rules is not entirely clear and straightforward, which may result in uncertainty of the transfer pricing treatment in business restructurings. Furthermore, the determination of arm’s length compensations for transfers of something of value in business restructurings may be challenging. Traditional transfer pricing methods may poorly be applied to transfers of intangibles and a going concern, and it is unclear how other valuation techniques should be applied in the transfer pricing context. The best solution to address the uncertainties that relate to the transfer pricing of business restructurings is the conclusion of multilateral or bilateral advance pricing agreements (APAs) with tax authorities. In addition to APAs, the compliance with the general transfer pricing documentation and reporting requirements as well as taxpayers’ self-initiated transfer pricing adjustments may lead to potential transfer pricing disputes with tax authorities being avoided. Lastly, apart from analyzing whether related parties have complied with the arm’s length principle during business restructurings, the anti-avoidance rules prohibiting unjustified tax benefits must be borne in mind in the decision-making regarding business restructurings.
  • Amorosa, Paolo (Helsingin yliopisto, 2018)
    In the interwar years, international lawyer James Brown Scott wrote a series of works on the history of his discipline. He made the case that the foundation of modern international law rested not, as most assumed, with the seventeenth-century Dutch thinker Hugo Grotius, but with sixteenth-century Spanish theologian Francisco de Vitoria. Far from being an antiquarian assertion, the Spanish origin narrative placed the inception of international law in the context of the discovery of America, rather than in the European wars of religion. The recognition of equal rights to the American natives by Vitoria was the pedigree on which Scott built a progressive international law, responsive to the rise of the United States as the leading global power and developments in international organization such as the creation of the League of Nations. At the same time, Scott associated the authority of Vitoria with projects he invested with personal meaning but were controversial within the US foreign policy establishment he belonged to. Scott claimed the authority of Vitoria in order to obtain the blessing of international adjudication by the Catholic Church and the recognition of equal rights for women by treaty. The dissertation describes the Spanish origin project in context, relying on Scott’s biography, changes in the self-understanding of the international legal profession, as well as on larger social and political trends in US and global history. Keeping in mind Vitoria’s persisting role as a key figure in the canon of international legal history, the dissertation sheds light on the contingency of shared assumptions about the discipline and their unspoken implications. The legacy of the international law Scott developed for the American century is still with the profession today, in the shape of the normalization and de-politicization of rights language and of key concepts like equality and rule of law.
  • Zhao, Yajie (Helsingin yliopisto, 2018)
    This thesis explores the evolution of Chinese IP mechanisms during national development and transition to becoming a well-developed country. This subject is studied from the perspective of intellectual property (IP), with a special focus on the People’s Republic of China since 1949. Internationally, the Chinese State, as a late-developing country, has adopted various mechanisms to narrow its gap in income and in technological capability in relation to developed countries. Meanwhile, internally, China itself is going through a crucial stage of social transition, and switching its economic model from labour-intensive mode to high-tech and innovation-intensive mode. During China’s international ‘catch-up’ process, and its own social transition, the role of IP has constantly changed. This research on China’s IP covers a period of the late Qing Dynasty until early June 2017, especially focusing on the period after 1949 and the modern Chinese IP system since its Reform and Opening-up Policy in 1979. The reviewed literature covers: (1) Chinese IP-related legislation and policies; (2) the domestic and international academic IP studies; (3) research reports from international organizations; (4) central reports from the Central Committee of the Communist Party of China, other reports and speeches from the central government with a historical period start from 1933; and (5) IP-related annual reports and statistics from the State Intellectual Property Office and the various levels of the people’s court. This thesis combines the narrative approach of Chinese IP studies, law in context, and historical perspective, and specifically studies the question: ‘what is the IP system’s role in the catch-up process of China?’ The main research question is divided into sub questions: How does the development of the IP system and the national Science and Technology (S&T) integrate with each other (Chapter 2)? How is the IP system absorbed into Chinese society? The absorption of an IP system is explored via two aspects: one imperative aspect is the evolution of IP system from the perspective of enforcement (Chapter 3); and the other is how the IP system from the state level involved has impacted on the Chinese business players (Chapter 4). The manuscript concludes: Even though external pressures played an undeniable role during Chinese IP development, which can chase back to the 19th Century, China has been constantly advancing its IP system and its implementation mainly because of its internal and developmental needs since 1949 (Chapter 5). The outcome of this thesis summarises the three decades of Chinese modern IP development and its enforcement in the following way: an advanced legislation system that goes along with the international standards, an enforcement system with Chinese characteristics, and an administrative system for registration and examination focusing mainly on the domestic industries yet taking international practices as reference. China’s adjustments of the IP policies are ultimately determined by the overall objectives for catching up and building an innovative country. China updates its IP system strictly in line with its level of national S&T development. Based on the internal and international conditions, it is a selected development model from China’s side to emphasize IP reform and modernization.
  • Vasara-Aaltonen, Marianne (Helsingin yliopisto, 2017)
    This research examines the studies of Swedish jurists abroad from ca. 1630 to 1800. The focus is on students of the Academy of Turku with the help of its online database of matriculation records, which also contains biographical information on the students. Thus it has been possible to search among the students for those future jurists who had also studied at foreign universities. The research period covers a good century-and-a-half during which Sweden underwent many profound political and societal changes. The study journeys of the jurists are put into context with these developments. The main research questions are: 1) When were studies abroad most popular and what changes occurred over the period? 2) At which foreign universities did these students enrol? 3) What kind of careers did these men have? 4) Why did aspiring Swedish jurists travel abroad to study? 5) Why did the jurists’ studies abroad change over time? 6) What do these developments reveal about the Swedish legal profession? The study shows that the most popular foreign universities among these Swedish students were the Dutch University of Leiden and the German universities of Rostock, Jena, Halle, and Greifswald. Travels abroad were most common around the middle of the seventeenth century but slowly began to decline in the second half of the century. By the middle of the eighteenth century, these journeys had almost completely stopped. Over half of the students going to Leiden were of noble origin, whereas students at the German universities came from a wider variety of backgrounds. Furthermore, the study illustrates how future jurists did not necessarily study (only) law, but could opt for a variety of subjects. This was especially the case for the noble students. Most of the students held positions within the judiciary during their careers. Especially at the beginning of the research period these careers were often combined with other posts in the civil administration. During the seventeenth century many of the students, especially those who had studied in Leiden, ended up working at courts of appeal, but this was no longer the case after the turn of the eighteenth century. Careers in town judiciaries could be found carrying on longer into the eighteenth century. The rush of Swedish students to foreign universities in the first half of the seventeenth century was linked to the growing administration and especially the founding of the courts of appeal. A great need arose for trained officials, but domestic universities could not yet fulfil that need. The role of the higher nobility was crucial for the development of jurists’ studies abroad in the seventeenth century. Tradition, confessional questions, and political relations affected the choice of university for those travelling abroad. Especially around the middle of the seventeenth century, networks and patronage also played an important part in these study journeys. The turn in the popularity of studies abroad in the seventeenth century is connected to the shift in the position of the higher nobility. The lessening of jurists’ studies abroad in the eighteenth century can be seen in context with paths of advancement within the Swedish administration becoming more regulated and the legal sphere becoming more national. These circumstances made studies abroad less appealing than they had been during the previous century. The decrease was also part of a general decrease in European student migration.
  • Niemelä, Pekka (Helsingin yliopisto, 2017)
    This dissertation analyses the relationship of EU Law and International Investment Law from a number of different perspectives. These perspectives relate to two distinct debates that concern the future of investment treaties in Europe. The first debate relates to the formal relationship of EU law and bilateral investment treaties (BITs) of EU member states. The Commission has argued that BITs concluded between two EU member states (so called intra-EU BITs) are incompatible with EU law and have to be terminated. The Commission has raised these arguments not only before the European Court of Justice (ECJ) but also before arbitral tribunals presiding over investment disputes raised under intra-EU BITs. The ECJ will take issue with the Commission's arguments in the near future, but arbitral tribunals have rejected them in each case. The first purpose of the thesis is to examine whether the Commission's arguments hold water by analysing the relevant case law of the ECJ, and to explain why arbitral tribunals have consistently rejected the arguments. The discussion highlights the reasons behind the different perspectives of the Commission and arbitral tribunals as well as analyses a number of related issues, such as applicable conflict rules, the role of party intent, and the (limited) role that courts and tribunals can play in the resolution of treaty conflicts. The second relevant debate relates to the broader political and economic implications of investment treaties. This debate is relatively polarised and centres on the ability of investors to challenge host state measures in ad hoc arbitration. The critics argue that investment arbitration constrains the regulatory autonomy of host states, as investors are able to challenge measures adopted in sensitive areas of public policy, such as public health. As the EU is now competent to negotiate investment agreements with its major trade and investment partners, such as the United States and Canada, the critics fear that the inclusion of investment protection provisions in EU-level agreements will expose the member state to a high number of investor claims challenging legitimate public interest measures. On the other side of the argument, the proponents argue that the critique is based on misunderstandings and hyperbole, with arbitral tribunals showing a high measure of deference to the public interests of host states. The second purpose of the thesis is to understand the plausibility of these opposing arguments by analysing both the assumptions that undergird them as well as the materials on which they rely. The analysis shows that the arguments are based on anecdotal evidence and contested assumptions, rather than on empirically proven hypotheses or on rigorous analyses of the case law that arbitral tribunals have hitherto produced. My analysis also shows that the disagreement is ultimately political, as the opposing arguments rely on contrasting understandings about how state-market relations should be arranged in the global economy. The broad argument of the thesis is that the relationship of EU law and member states' investment treaties should not be decided on the basis of the Commission's formal arguments, but by discussing the different political visions upon which the opposing arguments depend. The same argument applies with equal force in respect of the EU's external investment policy.
  • Mustasaari, Sanna (Helsingin yliopisto, 2017)
    This dissertation investigates how transnational family relationships come to assume legal character, how and for what purposes ‘legality’ is invoked; and analyses the ways in which the recognition of transnational family relationships generate belonging or non-belonging and how these belongings are constructed in legal practice and argumentation. Finally, it explores whether recognition theory might offer grounds for rethinking social justice in relation to transnational families. It traverses three fields of law: family law, private international law and migration law. The dissertation examines the research subject at four different sites: Muslim marriage practices in Finland; religion, culture and the concept of gender equality within the framework of The Convention on the Elimination of All Forms of Discrimination against Women (CEDAW); legislation in the Nordic countries on family reunification; and selected court cases on family reunification from the Supreme instances in Finland and Sweden, and the European Court of Human Rights and the European Court of Justice. At each site, research material differs and consequently different methodologies are applied, but the overall theoretical framework of the dissertation is socio-legal; feminist intersectionality in particular is used as an analytical approach. The dissertation consists of six articles that from different perspectives examine the ways in which transnational families are recognised and regulated in law. Article I, ‘Between “official” and “unofficial”: Discourses and practices of Muslim marriages in Finland’, draws on qualitative data from interviews with imams and other staff in eight Helsinki-based mosques, individuals, and bureaucrats; and cases collected from four local register offices and three district courts. It traces the ‘legality’ of Muslim marriages in mosques, practices of selected individual Muslims, and state institutions concerned with the registration and validity of marriages. Article II, ‘CEDAW and the Riddle of Diversity: Can Culture, Traditions or Religion Justify Economic Inequalities Embedded in Family Laws?’, focuses on the issue of culture and human rights law through a discussion of the concept of equality underpinning the CEDAW Convention. Article III, ‘Ruling on belonging: transnational marriages in Nordic immigration laws,’ examines the immigration regimes concerning marriage migration in the Nordic countries, all of which have introduced considerable restrictions on family reunification in their Aliens Acts in recent years. Article IV, ‘The “nuclear family paradigm” as a marker of rights and belonging in transnational families,’ and Article V, ‘The married child belongs to no one? Legal recognition of forced marriages and child marriages in the reuniting of families,’ argue that by invoking the discourses of status and relationship, the tensions and intersections of different legal fields are controlled, all the while the image of unitary law is maintained. Article VI, ‘Best interests of the child in family reunification - a citizenship test disguised?’ examines how the rights of the child become paradoxical when applied as part of the proportionality assessment used for the purposes of family reunification, and how a non-belonging identity is actively constructed for a citizen-child in the argumentation of the case. The dissertation adds to the studies on transnationalism and develops the notion of intersectionality from the specific perspective of legal research.
  • Erkkilä, Ville (Helsingin yliopisto, 2017)
    This dissertation is a history of the ideas of German legal historian Franz Wieacker. The broader aim of this study is to analyze the intellectual context in which Wieacker’s texts were situated, thus the German legal scientific discourse from 1933 to 1968. In this study Franz Wieacker’s texts are analyzed in the light of his correspondence and the broader social historical change of the twentieth century Germany. The study concentrates on the intertwinement of his scientific works with the contemporary society, as well as on the development of his personal perception of continuity and meaning in history. The theoretical framework of the dissertation derives from conceptual history and hermeneutics of historiography. As objects of analyze I have picked two concepts which Franz Wieacker often utilized in illuminating European legal history: Rechtsbewusstsein (legal consciousness) and Rechtsgewissen (legal conscience). These concepts were the key terms in his attempt to analyze the themes of justice and the rule of law in European history. In concrete terms, the change in the meanings of Wieacker’s concepts Rechtsgewissen and Rechtsbewusstsein is being tracked in reference to paradigmatic changes in continental legal science and social historical development of Germany. The analysis conducted in this dissertation proves Franz Wieacker’s continuous and firm belief in the necessity of the distinct social position of legal scholars in society. The prestigious status of the ‘juridical estate’ was a premise for social justice. Furthermore, Wieacker’s view on society was shaped by his unconditional trust on the values concerning learnedness and higher education. This preconception was due to his upbringing and attachment to the values of Weimar Republic Bildungsbürgertum, ‘learned bourgeoisie’. As a result, in the later scientific production of Franz Wieacker, the themes of ‘communality’ as the context of legal scholarship and ‘elastic creativity’ as the aim of legal science were significantly important. Wieacker explained the diverse social breaches and recent crises of Germany through a vast narrative of European legal culture, which he constructed with the means of concepts. Despite the radical changes brought about the National-Socialist seizure of power of 1933 and the end of the Second World War in 1945, the core of his scholarly identity remained the same from Weimar to the Federal Republic of Germany.
  • Railas, Lauri (The Faculty of Law of the University of Helsinki and the author, 2004)
  • Nieminen, Kati (Helsingin yliopisto, 2017)
    This dissertation consists of five previously published articles and an introduction, which introduces the theoretical framework, methodology, main arguments and the common themes of the articles. The overall contribution of the research is that it shows how, on one hand, the legal practices reproduce the unified citizen subject, and how the human subject is fragmented in legal practices on the other hand. In other words, this dissertation focuses in producing ‘us’ and ‘the other’ in law. The first two articles discuss the ways in which ‘us’, the citizen subject, is produced in law by observing how the European Court of Human Rights deflects disobedience and political protests. In the first article, Disobedient Subjects, I argue that in the so called headscarf cases, the logic of the legal argumentation can be traced back to the subjectivation of the citizen, as the Court reproduces the way in which the relationship between religion and the state is entangled with the citizen subjectivity. Moreover, my analysis shows that the Court’s approach to religion depends on whether religion is conceptualized as a personal belief system, cultural tradition, or as political. The second article, Rebels without a Cause? analyses the Court’s approach to disobedience. I argue that the political challenge the conscientious objector poses to their society is in legal proceedings transformed into a question of the personal right to freedom of religion and belief. Interestingly, the Court’s argumentation strategy is completely opposite regarding the Islamic headscarf cases on one hand, and conscientious objection to military service on the other hand. In the headscarf cases the Court chooses to emphasize the headscarf as a political symbol, whereas conscientious objection it treats as a manifestation of personal belief. These approaches could easily be reversed. In the third article, Who Belongs? I continue to discuss the construction of the modern Turkish citizen subjectivity. A Muslim woman wearing a headscarf, the conscientious objector, the Kurds struggling to be recognized as an ethnic minority, and the Gezi park protestors all pose the same question for the law, as they challenge the prevailing notion of possible identities and aspire to shift the limits of ‘us’ in order to include the excluded, or to question the dynamics of inclusion and exclusion more profoundly. In the third article my analysis shifts from the European Court of Human Rights to the ways in which the Turkish citizen subjectivity is challenged in the domestic courts, in the cabinets of power, and in the streets of Istanbul. The fourth and the fifth article move on to discuss othering in law. In The Detainee, the Prisoner, and the Refugee, I analyse the dynamics of subject production at the Guantanamo bay detention center, the maximum security prisons in the US, and the European refugee camps in order to explore the ways in which reduced legal subjectivities vulnerable to violence and exploitation, are produced and resisted in these sites, and how resistance, such as hunger striking, exposes the law’s violence. The fifth and final article, Forever Again, addresses the way in which responsibility for torture is deflected in two official documents, namely in the executive summary of the report on the CIA’s use of the so called enhanced interrogation techniques, and in CIA’s response to its claims. My analysis explains the discursive strategies that allow torture to be simultaneously absolutely prohibited and yet legally practiced. The themes of subjectivity, disobedience, and the law connect the five articles. In the introductory part I develop these themes further, and observe the fragmentation of the legal subject, the ways in which the theories of civil disobedience might contribute to totalizing the citizen subjectivity, and promote the idea of law as a discourse rather than a doctrine, institution, or system.
  • Jiménez Fonseca, Manuel (Helsingin yliopisto, 2017)
    This study explores the historical relationship between international law and nature from a critical standpoint. In particular, it seeks to demonstrate that the appropriation of non-European nature in colonial times played a fundamental role in the development of international law and that, conversely, international law was instrumental in legitimizing the imperialist appropriation of non-European nature. Legal arguments fashioned around the use and exploitation of nature validated a number of imperial interventions in non-European territories that resulted in western environmental hegemony while producing environmental degradation and social dislocation in those territories. The thesis argues that the imperialist appropriation of non-European ecosystems took place at two different levels: one material, the other conceptual. On the one hand, the introduction of the economic institutions of private property and international trade in non-European territories, through a supposedly universal international legal language, served to privatize and commodify non-European nature. On the other hand, international legal scholars and colonial commentators developed a discourse that presented the European management of the environment as progressive and superior to that of non-Europeans. Rather than constituting separate elements, these two dimensions functioned together. The alleged backwardness of non-Europeans in mastering their natural habitats created fertile ground for the introduction of European economic institutions in the colonies. In turn, the assumed progressiveness of those institutions served to demonstrate European superiority in regard to the use of non-Europeans ecosystems. The result was a rather robust rationale that allowed fulfilling one of the main goals of Western territorial expansion: the seizing of natural resources overseas. By demonstrating that European colonists and intellectuals placed non-Europeans in a continuum with nature, this research aims both to question and broaden the traditional understanding of the civilizing mission. That mission was larger than the mere attempt to redeem non-Europeans and upgrade their condition. It was a more thorough, encompassing and far reaching project: the project of creating progress out of the transformation of non-European wilderness wild nature and wild people into civilization.
  • Heikkilä, Pekka (Helsingin yliopisto, 2017)
    The doctoral dissertation examines the legal form of Finnish savings banks from the viewpoint of stability ‒ namely, how their organisation, purpose and operating principles have been considered in legislation. The dissertation study spans the history of Finnish banking regulation from the rules of the first savings bank, founded in Turku in 1822, up until the credit institution and resolution acts of 2014. The study examines the reasons for why banking has been subject to specific regulation and supervision. It also discusses the interests promoted by banks during legislative processes and the organising of banking supervision, as well as the impact of the sector s lobbying on the final contents of laws. The primary sources of the study consist of legislative materials ‒ i.e. committee reports, government proposals and legal texts ‒ and the decisions of the Savings Banks Guarantee Fund (1925‒1998), in which it ruled either to safeguard a struggling savings bank s independent operations or to have it merge with another savings bank. Important sources also include works on banking history and the savings banks own trade journal Säästöpankki (1904‒2010). The study is set against the background of the German and English roots of savings banking. It also includes comparisons to other Nordic countries. The study shows that the banks different historical backgrounds have influenced their operating rights and led to the mismatched pace of legislative harmonisation. According to the study, the special characteristics of savings banks ‒ lack of ownership, non-profitability, locality, and involvement of depositors in the selection of administration ‒ were maintained until the early 1990s but have since lost relevance. Similar development has taken place in many other European countries. Savings banks stability was primarily based on the safety of lending and the mutual risk sharing enabled by the banks' own guarantee fund, whereas in commercial banks it was solely based on an individual bank's own capital. Due to the lack of ownership, a savings bank's board and senior management have had strict liabilities for losses. How liability falls is unpredictable, and hence the outcomes of legal proceedings ‒ the parties ruled liable and the large compensation amounts ‒ have not always been considered just. Legislative reviews have been motivated by problems that have arisen along the way. The study examines the crises that Finnish savings banks have collectively faced. The reasons for the crises have been political, related to money market deregulation, or caused by setbacks in the economy. The first such crisis was the deposit run triggered by the Crimean War in 1854. As a result of the latest crises, legislation has been amended to enable a savings bank to change its company form, and banks joint liability has been increased through mutually collected funds.
  • Haapanen, Anna (Helsingin yliopisto, 2017)
    The study concerns overlapping intellectual property rights patents and copyrights in computer programs under the US and EU law including the national laws of Finland. The focus of the study is the less frequently studied subject of patents in context of free and open source software (FOSS) licensing and specifically, exhaustion of patents and grant of implied patent licenses in context of FOSS. The main research questions are: What is the exposure to FOSS licensor's patent portfolio based on sale, licensing and/or mere distribution of FOSS? What forms of FOSS licensing may trigger exhaustion of patent rights in computer programs under statutory and/or case law of the US and EU? In what circumstances may FOSS licensing trigger implied patent rights under the US or EU law (mainly laws of Finland in Nordic context) even in the absence of express grant of patent rights in the FOSS (copyright) licenses subject to the study. In order to understand exhaustion of software patents and grant of implied patent licenses, also copyright exhaustion and express copyright licensing as well as related contract theories are examined in FOSS context. In addition to copyright law, also contract law is used as a tool in the study despite that the main research questions concern patent law. The results of the study include that FOSS licensing may constitute sale of software triggering exhaustion of patents in copies of FOSS program. Further, FOSS licensing may trigger, based on the totality of the circumstances, an implied patent license despite that the FOSS licenses subject to the study do not include express patent license grants. Finally, despite the differences in the legal doctrines and concepts of the US and EU law, the exposure to FOSS licensor's patent portfolio based on patent exhaustion or implied patent license may be similar in the different jurisdictions subject to the study.
  • Toivonen, Virve-Maria (Talentum, 2017)
    This dissertation, titled Child s Rights and Legal Safety Child Welfare Cases in Administrative Courts, belongs to the fields of child law and administrative procedural law. The work deals with the work of administrative courts in care orders, and its main focus is on how the legal system takes into account children and their rights and interests, especially the principle of the best interest of the child and the child s right to participate. The best interest of the child and the child s right to participate are guaranteed to children in the Finnish Child Welfare Act (417/2007), as well as in many human rights instruments. Despite the strong legislative status, research has demonstrated that in practice weaknesses still remain in the implementation of these and other children s rights in practice. Therefore, in the dissertation, children s rights are explored from the point of view of Access to Justice, which is about a right to a court proceeding, but also and above all, it concerns making rights real. The study draws on two kinds of equally important research material. Firstly, children s rights are studied with the help of legislative material (domestic law and international human rights treaties, especially the UN Convention on the Rights of the Child) and legal scholarship. Secondly, empirical research from different fields is examined to point out a major gap in the law in books compared to the law in action. By combining the research results, the dissertation seeks answers to two questions: what causes the problems in implementing children s rights and how childrens s rights could be secured more effectively in the future, especially in the courts. The study is based on one of the central ideas of Law and Society research, which is legislation as an instrument of social guidance: when the defects of court work are known, one can try to remedy them by amending the law or providing education and training to judges. The dissertation emphasizes the importance of rights in matters concerning children s nursing and care. Protecting the rights of individuals is the core of the legal system and without rights children can be said to be left without legal protection. One of the main functions of the courts is to provide people with legal safety. Children are no exception, and child-related matters are becoming more common in courts. Thus, it is not unimportant how judges face the child in court and how children s rights are implemented by courts. Children s legal safety in courts can be improved, for example, by appointing them a guardian or a legal assistant. However, this does not remove or reduce the responsibility of the judge to ensure that the rights of the child are met. This responsibility does not mean that the judge advocates for the child, but it but it means that procedural equality between the child and the adults must be secured.. To achieve this, the judge needs to be active in leading the court procedure. In addition, court procedures need to be developed towards being more child-friendly, and this development must be based on up-to-date research that includes children s views and experiences. The Finnish Child Welfare Act can be said to be a modern law of children s rights. It fulfills, in principle, the binding obligations of human rights treaties. However, the law in books is just a first step in making rights real, and the reality may more or less differ from regulation for various reasons. In the dissertation, it is argued that some of these reasons are structural and legislative, but that some reasons stem from old adult attitudes and practices towards children. The latter refers to the situation in which the objectives of legislation are not met because the attitudes and practices of those who apply the law remain the same, even when the law changes. To change these attitudes, the key is to provide the professionals with training , based again on up-to-date research on children and children s rights. In some respects, the legislation should be more precise and also more obligatory. In child-related matters, discretionary legislation has until now been common. It has been believed that discretion provides outcomes that are more beneficial to the child. Often the result has, however, been the opposite. The dissertation also argues that the challenges children face in the realization of their rights can be partly traced back to the lack of interest in children and their rights in jurisprudence. In future, jurisprudence must take a strong and clear responsibility for children s rights and their realization by accurately analyzing and operationalizing them. This is a prerequisite for systematic discourse on children s rights and for transparency in decision-making concerning children.
  • Kremer, Jens (Helsingin yliopisto, 2017)
    This dissertation analyses specific privacy problems arising from the surveillance of public spaces. It studies the scope and limitations of the human right to privacy and a right to personal data protection in light of advanced surveillance and security technologies. The main research question therefore asks how the existing European fundamental rights to privacy and data protection address increasing surveillance and the unprecedented surveillance capabilities of public spaces in Europe. This study is divided into two main parts. After introducing the research problem and a descriptive discussion of existing and future surveillance technologies, the first part discusses the theoretical conceptions behind this research, namely the concept of public space, privacy, data protection and security. Part two of this study then discusses four more specific issues in relation to public space surveillance: Individually targeted surveillance, mass surveillance, surveillance done by private actors, automation of surveillance, and incident prediction. In order to address the research question, this study analyses existing legislation, jurisprudence and specific cases. The overall framework for analyses is derived from a fictional urban surveillance scenario, representing a large European city. This surveillance scenario serves as an anchor point to identify central problems and issues for further fundamental rights based analyses. In that sense, this study uses legal and critical analyses of a specific scenario in order to identify existing, but also potential future legal problems arising from sophisticated public space surveillance. This study consequently identifies several ways to address public space surveillance from a European fundamental rights perspective. The analyses of a right to privacy and a right to personal data protection show that the European system of fundamental rights protection is very well capable of addressing legal problems arising from public surveillance. However, there is a lack of available case law dealing with complex technological surveillance in Europe. This study therefore distils two main approaches for addressing public surveillance: The first approach is based on individual freedom, relying on the legitimate expectations of legal subjects, the second, which is derived from human dignity and personality rights, challenges the communal effects of surveillance. Each approach comes with a fundamentally opposite take on public surveillance. Furthermore, this study shows, how data protection functions as a gap-filler between the two approaches. In its conclusion, this study therefore illustrates several ways to address public space surveillance, and it shows that there is a series of legal problems arising from sophisticated technological surveillance, which require a reformulation of legal arguments addressing public place surveillance.
  • Tuori, Taina (Helsingin yliopisto, 2016)
    The purpose of this study is to research the emergence of rights language in the mandates system of the League of Nations. After the First World War, the League of Nation mandates were established as a solution to the problem of what to do with the former colonies of the defeated states. An internationalized administration was set up in 1919 by the Allied powers, who occupied the former German colonies and Turkish territories. After the war, these territories were transformed into mandates. In my research I am tracing the emergence of rights language in the League of Nations mandates system and its afterlife, meaning the decisions regarding the Mandate of South West Africa by the International Court of Justice. The main research questions are how rights vocabulary operated in the League of Nations and when human rights appeared in the language concerning the mandates. Attention is given to how non-European communities were treated in international institutions, in the mandates system of the League of Nations and the post World War II decisions concerning the mandates by the International Court of Justice and whether the novel rhetoric of human rights in the United Nations system was applied to the mandates. The years under scrutiny are 1921-1971. When examining the application of the mandates system, my aim has been to single out those moments when a particular concern has been articulated in rights vocabulary. In the first section I am studying the emergence of the League of Nations mandates system and presenting its machinery. The Permanent Mandates Commission of the League of Nations wanted to emphasize that they were forming a truly unique system, instead of being another way of colonizing states beyond the borders of Europe. The mandatory powers were expected to take into consideration native laws and customs and to safeguard native rights and interests. In the second main section, I follow the emergence of the rights language in the minutes of the Mandates Commission during the years 1921-1939. In the absence of a fully-fledged modern vocabulary of rights language, I have examined discussions on land tenure, the obligations that newly independent territories would have, the eradication of slavery, the issues of forced labour, the position of women and the liberty of conscience as arenas of proto-rights language. In these debates, issues that are currently understood as rights issues were discussed under concepts like guarantees, liberties, obligations, social problems, matters, questions, and, albeit rarely, rights. Finally, I have studied the issue of individual petitions to the Mandates Commission, which were authorized by the League of Nations in 1923. In the third main section I have examined the afterlife of the mandates, particularly the mandates cases in the International Court of Justice. In these cases, the International Court of Justice revisits several times the meaning and content of the mandates, finally approaching them through the language of human rights. The League of Nations mandates system is not usually even mentioned in connection with human rights, but dropped entirely outside of the human rights narrative, or if considered, regarded as uninteresting. However, the mandates system is the first international institution where the demands of humanity and the welfare of the people were written down into the system and were evident in the international regulation and administration of theinstitution. There were established controls over how the mandatories would fulfil their obligations over the well-being of the population of the mandated areas. Yet, for the mandatories, the mandates system appearedonly little different from the previous colonial administration and to some extent the Mandates Commission shared this view.