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In order for an international crime to be prosecuted in a domestic court, norms prescribing punishability have to be adopted in the legal system of the respective State. The article analyses issues that come up with autonomous transposition of international criminal law norms into the domestic legal order, based on the example of the Estonian Penal Code. It also seeks to offer an explanation as to why it is necessary to be aware of these issues and what the strategies would be to overcome problems with transposition. Both issues of the special part as well as the general part are touched upon.

In: Baltic Yearbook of International Law Online

The European Court of Human Rights with its case law has been for decades a particularly important actor in developing human rights law in Europe and beyond. At the same time the question as to the legal nature of its case law has not received a single answer. Most traditionally, the answer to this question has been that case law is binding on all States parties to the Convention at least to the extent that it contains lex interpretata as part of the Court’s authoritative interpretation of the Convention entrusted to it by the founding States of the Convention regime. In accordance with the Convention’s Article 46, judgments of the Court are binding on the respondent State. At the same time, judgments are followed more generally by the Contracting Parties while the Court’s case law has added to the original – admittedly open-ended – text of the Convention. This article explores the impact of civil law tradition, Anglo-Saxon tradition and the theory of sources of international law on better conceptualization of the legal nature of the case law of the Court. It arrives at the conclusion that at least for the time being, there is a coherent tendency in more advanced legal systems to acknowledge that the courts and judges do occasionally make law. The example of the European Court of Human Rights goes along with these developments. It is argued that case law is a material source of law while the overall consolidation of the Convention system begs for the conclusion that the Court’s case law has become a formal source of law.

In: Baltic Yearbook of International Law Online

The article scrutinizes the Baltic States and their century of independence which have been the focus of interest of various sciences. On the occasion of the commemoration of the 100th anniversary of the proclamation of the independence of the Baltic States – Estonia, Lithuania and Latvia – some parallels could be drawn with the historical, economic and political development of these countries and Bulgaria. These parallels are not only found in the political and legal period but are contained in different stages, which shows the interesting legal and political nature of the Baltic States and some of their common problems and events with the countries of Eastern Europe and, in particular, the example with Bulgaria. The article has also drawn attention to a significant problem that the three Baltic States and Bulgaria have to deal with, namely the demographic crisis. This problem is particularly important in the light of migratory pressures that the countries outlining the external borders of the European Union are facing and it involves systematic and long-term efforts.

In: Baltic Yearbook of International Law Online

In September 1939, after having included a secret protocol on spheres of influence in the so-called Molotov- Ribbentrop Pact, Germany and the Soviet Union invaded Poland and divided it between themselves. It was not long before the Soviet Union approached Finland by proposing exchanges of certain territories: ‘in our national interest we want to have from you certain territories and offer in exchange territories twice as large but in less crucial areas’. Finland, suspicious of Soviet motives, refused – the outcome was the Soviet war of aggression against Finland by the name of the Winter War in 1939–1940. The Soviet Union won this war and compelled Finland to cede several territories – about 10 per cent of Finland’s area.

After the Winter War, Finland sought protection from Germany against the Soviet Union and decided to rely on Germany. After Germany attacked the Soviet Union in June 1941, Finland joined the German war effort in the so-called Continuation War and reoccupied the territories lost in the Winter War. Finnish forces did not stop at the old border but occupied Eastern (Soviet) Karelia with a desire eventually to annex it. By that measure, Finland joined as Germany’s ally in its war of aggression against the Soviet Union in violation of international law. In their strong reliance on Germany, the Finnish leaders made some very questionable decisions without listening to warnings from Western States about possible negative consequences.

Germany lost its war and so did Finland, which barely avoided entire occupation by the Soviet Army and succeeded in September 1944 in concluding an armistice with the Soviet Union. Finland lost some more territories and was subjected to many obligations and restrictions in the 1947 Paris Peace Treaty, dictated by the Allies.

This article analyses, according to the criteria of international law, Finland’s policy shortly prior to and during the Continuation War, especially Finland’s secret dealings with Germany in the months prior to the German attack against the Soviet Union and Finland’s occupation of Eastern Karelia in the autumn of 1941. After Adolf Hitler declared that Germany was fighting against the Soviet Union together with Finland and Romania, was the Soviet Union entitled – prior to the Finnish attack – to resort to armed force in self-defence against Finland? And was Finland treated too harshly in the aftermath of World War ii? After all, its role as an ally of Germany had been rather limited.

In: Baltic Yearbook of International Law Online

Military investment in robotics technology is leading to development and use of autonomous weapons, which are machines with varying degrees of autonomy in target, attack, and infliction of lethal harm (that is, injury, suffering or death). Examples of autonomous weapons include weapons systems involving levels of automation and remotely controlled human input, unmanned armed aerial vehicles (uav), remotelycontrolled robotic soldiers, bio-augmentation, and 3D printed weapons. Autonomous weapons generally fall into one of two categories: semi-autonomous, involving some degree of autonomy in certain critical functions such as acquiring, tracking, selecting, and attacking targets, along with a degree of human input or remote control (for example, uav or ‘drones’); and autonomous, involving higher levels of independent thinking as regards critical functions without the need for human input or control (for example, US Navy X-47B uav with autonomous take-off, landing, and aerial refuelling capability). The trend is clearly towards developing autonomous weapons. Development of new weapons aimed at reducing costs and casualties is not a new phenomenon in warfare. Technological advances have created greater distance between the soldier and the battlefield. A bullet fired from a rifle handled by a human has been superseded by a missile fired from a remotely controlled or autonomous machine. So what makes autonomous weapons different? What particular challenge do they pose international law? Although autonomous weapons may be employed to attack nonhuman targets, such as state infrastructure, here I am primarily concerned with their use for lethal attacks against humans.

In this chapter I focus on autonomous weapons (both semi-autonomous and fully autonomous) and their impact on human dignity under two of Kant’s conceptual strands: (1) human dignity as a status entailing rights and duties; and (2) human dignity as respectful treatment. Under the first strand I explore how use of autonomous weapons denies the right of equality of persons and diminishes the duty not to harm others. In the second strand I consider how replacing human combatants with autonomous weapons debases human life and does not provide respectful treatment. Reference is made to contemporary development of Kant’s conceptual strands in icj and other international jurisprudence recognising human dignity as part of ‘elementary considerations of humanity’ in war and peace.

In: Baltic Yearbook of International Law Online

Focusing on the life and work of the Estonian politician and Statesman Jüri Jaakson (1870–1942), the article gives an overview of the changing historical and social context that has influenced the formation of Estonian law. Estonia’s historical diversity can be regarded as events of transformation and disruption that have resulted in vague concepts.

The article consists of three interrelated parts, taking into account that law and society are interconnected and that politics is constructed through language. The first part builds on Jüri Jaakson’s presentation at the first Estonian Lawyers’ Days in 1922, and shows how historical events have influenced political and legal conceptualisation. The second part shows how Jüri Jaakson’s own biography tragically reflects the changing Estonian historical context that he himself considered diverse and controversial. Finally, in the third part, some normative assertions have been made in an attempt to show that any legal term always relates to a certain social and political context.

Although the author’s aim has not been to frame a doctrine or provide instruction, but rather, with the help of Jüri Jaakson’s thoughts situated in the context of his time, to offer a moral measure for understanding the developments that could influence small states, it offers a measure for understanding why societies require (new) conceptualisation and re-conceptualisation. Conceptualisation is understood as constructing something new that we cannot identify in the past, while reconceptualisation is understood as change, also resulting from discontinuity and/or interruption. Because there are no unchangeable social categories or meanings, continuity can at best mean a situation where the research objects have remained more static over a concrete period.

Methodologically this article is an attempt to connect legal research with a conceptual historical approach.

In: Baltic Yearbook of International Law Online

One hundred years on from the establishment of the first World Court provides an excellent occasion to assess the evolution of International Justice and its role in setting new standards of inter-State behaviour. Faith in the rule of law and international justice in the institutionalised world order by Lithuania, Latvia and Estonia was based on the public mood in the aftermath of the First World War, as well as distinctly practical security interests. Early acceptance of the Court’s jurisdiction in turn contributed to the formation of international law with three cases and interpretation by the Court of numerous rules of international law.

In: Baltic Yearbook of International Law Online

The conventions of legal argumentation have the tendency to reinforce the notion that the development of international law is a principled affair. This article will examine the elaboration of one particular treaty – the Tartu Peace Treaty signed between Estonia and Soviet Russia in 1920 – in order to see to what extent it lends support to the idea that treaties grow out of principles. The Tartu Peace Treaty perfectly illustrates the point that the contents of a treaty can be entirely indeterminate with regard to their underlying principles. My conclusion is not that, in this case, pragmatism triumphed over principles: that the negotiating parties refrained from debates over abstract principles and took the more pragmatic route of finding an array of concrete solutions. Whilst it is true that the end result – the Treaty as it finally stood – was detached from any single foundational idea, it was not obtained by putting principles aside. The Tartu Peace Conference rather offers us a particularly good example of how principles can be used as rhetorical ploys.

In: Baltic Yearbook of International Law Online

The utilisation of the concept of vulnerability in international law has risen exponentially. This contribution intends to analyse the issues underlying this phenomenon. Vulnerability is frequently used in a functional manner in order to enhance the protection of individuals. Therefore, even if vulnerability has been initially developed as a non-legal concept, it has now become integrated into legal discourse. As it inevitably supposes the contributions of other disciplines such as moral philosophy and legal sociology, vulnerability reshapes the ways in which individuals are protected by law. Hence, the reconsideration of several concepts, especially individual autonomy and international responsibility, paves the way for better protection of individuals.

In: Baltic Yearbook of International Law Online

Abstract

Self-determination for Aboriginal people in Australia has been a long sought after yet difficult objective to reach. The recently concluded Noongar Settlement in the state of Western Australia opens new opportunities and could potentially set a new benchmark for non-territorial autonomy and self-government for an Aboriginal community. The Noongar Settlement exceeds the more traditional settlements of a native title claim since it provides elaborate institutions for self-government albeit by way of private bodies corporate. The bodies corporate for the Noongar people would enable them to make and administer decisions; offer services; undertake management of public conservation areas; and advocate for the best interests of their community. This privatised form of self-government may not only provide new impetus to other land claim processes in Australia, it may also address the often-heard demands from Aboriginal people for a treaty to be entered into between themselves and the government of Australia.

In: International Journal on Minority and Group Rights

Abstract

Immigrants in the United States of America (usa) face challenges regarding the utilisation of healthcare services. Issues include difficulty to access healthcare services. Qualitative descriptive phenomenological design was used in the analysis. Data were collected using a semi-structured interview format with eight conveniently selected Eritrean immigrants living in Indianapolis. Data were analysed using Interpretive Phenomenological Analysis Framework for data analysis. The findings indicate that the cultural beliefs, socioeconomic status, immigration status of Eritrean emigrants and the policies related to financing healthcare services for migrants in Indianapolis have a huge impact on determining the utilisation of healthcare services by Eritrean immigrants in Indianapolis. It is concluded that there is limited access by Eritrean immigrants in Indianapolis to healthcare services. There is a need for policy revision regarding the financing of healthcare services for immigrants and the provision of services to improve access and accommodate cultural diversity.

In: International Journal on Minority and Group Rights

Abstract

Worldwide, 2.5 billion people today depend on lands managed through customary, community-based tenure systems. Although land and natural resources are recognised as essential elements for the realisation of many human rights, international human rights law does not recognise a human right to land, except for indigenous peoples. With the recent adoption of the UN Declaration on the Rights of Peasants and other people working in rural areas (undrop), the right to land is now recognised for new categories of rural workers. This article explores the governance of land and natural resources beyond the case of indigenous peoples’ rights. It argues that undrop contains key and mutually reinforcing elements of the human rights and collective action approaches to the governance of land and natural resources, and therefore has the potential to ensure the social and environmental ‘viability’ of the commons.

In: International Journal on Minority and Group Rights

Abstract

Hindu women’s limited right to inheritance in Bangladesh is a story of state-sponsored deprivation; a frustrating legacy of the political authority’s systematic indifference and failure in protecting minority women’s right to property for nearly half a century. Bangladesh, from its early decades, has experienced the resurgence of religion as one of the driving factors behind gender and minority-sensitive policy formulation and implementation. Under the veil of constitutional secularism, religion has become one of the most pervasive tools in the hands of the political authorities for methodical marginalisation of religious minority groups especially of Hindu community. Consequently, Bangladesh has failed to move forward with appropriate legislative measures for improving the present status of Hindu women’s right to property. This article argues that the underlying reasons behind such failure is intrinsically intertwined with power-centric electoral politics rather than normative socio-religious practices.

In: International Journal on Minority and Group Rights

Abstract

The aim of this article is to examine Turkey’s reservation to Article 27 of the International Covenant on Civil and Political Rights (iccpr) and to advance a plausible argument for its invalidity based upon the relevant secondary rules of international law.

In: International Journal on Minority and Group Rights

Abstract

Despite the constitutional and legislative guarantee to land in Uganda, customary land tenure seems to suffer from inadequate legal protection, a situation that is analogous to that in the colonial and the immediate post-independence era. This article critically examines the normative content of the constitutional and legislative right to land in Uganda and argues that the customary land right is not adequately protected as the other categories of land tenure, in which land is owned and legally recognised in Uganda. It also serves to illustrate that the inadequate protection of customary land rights is analogous to the situation in the colonial and immediate post-independence era, and that weak customary land rights could be susceptible to the occupants’ deprivation during land grabbing. There is a need to address this situation in order to holistically ensure and promote an effective land governance regime that respects and protect customary land tenure.

In: International Journal on Minority and Group Rights

Abstract

More than 75 per cent of the world’s known stateless belong to minorities. Building upon ethnographic research conducted between 2008–2017, this paper considers the case of ethnic Vietnamese minority populations in Cambodia. Members of this group are long-term residents, having been born and raised in the country for generations, with the exception of the period during the Khmer Rouge regime when they were forcibly deported to Vietnam. Since their return to Cambodia in the early 1980s, individuals from this group have been regarded by Cambodian authorities as ‘immigrants’. This paper examines how discriminatory policies, laws and administrative practices regulate individual and collective identities, while creating categories that determine social inclusion and exclusion. In doing so, this paper makes visible the ambivalence of law and rights – both as tools for the construction of exclusionary citizenship, but also as instruments which minorities to contest their social exclusion.

In: International Journal on Minority and Group Rights

Abstract

This article investigates the economic status of Christians in Syria and Egypt during the era of Presidents Hosni Mubarak (1981–2011) and Hafez al-Assad (1971–2000). As they were discriminated against politically, socially, religiously and culturally, this article answers the puzzle of why the Christians in Syria and Egypt did not face any discrimination at the economic level in the era of the aforementioned authoritarian regimes.

In: International Journal on Minority and Group Rights

Abstract

State accommodation of plural identity has remained very much subject to the contestations of a majority/minority paradigm, through which autonomy and tolerance are still negotiated and filtered. These social reconfigurations, including those oriented towards internal self-determination and minority rights regimes, reveal glimpses of a dark neo-colonial underbelly to state rule. A comparison between the Ottoman millet system and the Israeli control system illustrates that imperial modes of ‘divide and rule’, or ‘segmented pluralism’, continue to operate, and are sometimes even enhanced, through the deployment of minority rights. Using a selective Marxist reading, this paper will initially explore the parallels between imperial and modern state rule in the face of pluralism before discussing the methods used for hegemony-maintenance, including: segmentation; dependence; and cooptation. Finally, a socio-legal discussion on the ways in which the forces of hegemony are heavily guised and sustained will follow.

In: International Journal on Minority and Group Rights
In: International Labour Law Reports Online
In: International Labour Law Reports Online
In: International Labour Law Reports Online
In: International Labour Law Reports Online
In: International Labour Law Reports Online