This contribution discusses the recent ‘paradigm shift’ in Danish refugee policy towards temporary protection and return in light of the law of the international legal standards governing when an asylum state can end the protection of refugees. The article provides an overview of the spectrum of cessation standards drawing on the 1951 Refugee Convention, complementary protection under human rights law and the concept of temporary protection, before setting out the legislative changes making up the Danish ‘paradigm shift’. The Danish case reveals a structural gap in the law of cessation as it regards to complementary protection. The lack of a comprehensive complementary protection framework in some jurisdictions leaves the law open to governments wishing to instrumentalise and minimise protection obligations. Finally, the article analyses legal and policy implications of the policy turn, discussing Denmark’s potential role as a forerunner in temporary protection and cessation, gaps in the law of cessation vis-à-vis complementary protection, and calling for increased scholarly focus on the law of cessation.
An environmental impact assessment (eia) can have a valuable role in effectuating substantive rules of international law of the environment, such as the obligation of due diligence and the precautionary approach. Thus this article seeks to examine the interlink between an obligation to perform an eia, the obligation of due diligence, and the precautionary approach, focusing on temporal elements of international law of the environment. First, this article examines the interlink between an obligation to conduct an eia and the obligation of due diligence. Second, this article addresses the interlink between an obligation to conduct an eia and the precautionary approach. Third, the timing of triggering the obligation to conduct an eia must be considered. Finally, this article examines the issues of breach of the obligation to conduct an eia, before offering conclusions.
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.
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.
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 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.
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.
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.
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.