Rwanda Crisis and Genocide in Case Law of Rwanda Tribunal

After the Second World War the public was shocked to learn about the horrors perpetrated. As a response to the Holocaust, the newly established United Nations adopted the Genocide Convention of 1948 to prevent future genocides and to punish the perpetrators. The Convention remained, however, almost dead letter until the present day. In 1994, the long-lasted tension between the major groups of Hutu and Tutsi in Rwanda erupted in mass scale violence towards the Tutsi ethnic group. The purpose was to eradicate the Tutsi population of Rwanda. The international community did not halt the genocide. It stood by idle, failing to follow the swearing-in of the past. The United Nations established the International Criminal Tribunal for Rwanda (the ICTR) to bring to justice persons responsible for the genocide. Ever since its creation the ICTR has delivered a wealth of judgements elucidating the legal ingredients of the crime of genocide. The case law on determining the membership of national, ethnic, racial or religious groups has gradually shifted from the objective to subjective position. The membership of a group is seen as a subjective rather than objective concept. However, a totally subjective approach is not accepted. Therefore, it is necessary to determine some objective existence of a group. The provision on the underlying offences is not so difficult to interpret compared to the corresponding one on the protected groups and the mental element of genocide. The case law examined, e.g., whether there is any difference between the words killing and meurtre, the nature of mental harm caused by the perpetrator and sexual violence in the conflict. The mental element of genocide or dolus specialis of genocide is not thoroughly examined in the case law of the ICTR. In this regard, reference in made, in addition, to the case law of the other ad hoc Tribunal. The ICTR has made a significant contribution to the law of genocide and international criminal justice in general. The corpus of procedural and substantive law constitutes a basis for subsequent trials in international and hybrid tribunals. For national jurisdictions the jurisprudence on substantive law is useful while prosecuting international crimes.

Posted Workers and Free Movement of Services in the European Union – the Impact on National Employment and Immigration Law

This thesis examines posting of workers within the free movement of services in the European Union. The emphasis is on the case law of the European Court of Justice and in the role it has played in the liberalisation of the service sector in respect of posting of workers. The case law is examined from two different viewpoints: firstly, that of employment law and secondly, immigration law. The aim is to find out how active a role the Court has taken with regard these two fields of law and what are the implications of the Court’s judgments for the regulation on a national level. The first part of the thesis provides a general review of the Community law principles governing the freedom to provide services in the EU. The second part presents the Posted Workers’ Directive and the case law of the European Court of Justice before and after the enactment of the Directive from the viewpoint of employment law. Special attention is paid to a recent judgment in which the Court has taken a restrictive position with regard to a trade union’s right to take collective action against a service provider established in another Member State. The third part of the thesis concentrates, firstly, on the legal status of non-EU nationals lawfully resident in the EU. Secondly, it looks into the question of how the Court’s case law has affected the possibilities to use non-EU nationals as posted workers within the freedom to provide services. The final chapter includes a critical analysis of the Court’s case law on posted workers. The judgments of the European Court of Justice are the principal source of law for this thesis. In the primary legislation the focus is on Articles 49 EC and 50 EC that lay down the rules concerning the free movement of services. Within the secondary legislation, the present work principally concentrates on the Posted Workers’ Directive. It also examines proposals of the European Commission and directives that have been adopted in the field of immigration. The conclusions of the case study are twofold: while in the field of employment law, the European Court of Justice has based its judgments on a very literal interpretation of the Posted Workers’ Directive, in the field of immigration its conclusions have been much more innovative. In both fields of regulation the Court’s judgments have far-reaching implications for the rules concerning posting of workers leaving very little discretion for the Member States’ authorities.

Legal Reasoning in Context

This study in EU law analyses the reasoning of the Court of Justice (the Court of Justice of the European Union) in a set of its preliminary rulings. Preliminary rulings are answers to national courts questions on the interpretation (and validity) of EU law called preliminary references. These questions concern specific legal issues that have arisen in legal disputes before the national courts. The Court of Justice alone has the ultimate authority to interpret EU law. The preliminary rulings bind the national courts in the cases giving rise to the preliminary reference, and the interpretations of EU law offered in the preliminary rulings are considered generally binding on all instances applying EU law. EU law is often described as a dynamic legal order and the Court of Justice as at the vanguard of developing it. It is generally assumed that the Court of Justice is striving to realise the EU s meta-level purpose (telos): integration. Against this backdrop one can understand the criticism the Court of Justice is often faced with in certain fields of EU law that can be described as developing. This criticism concerns the Court s (negatively) activist way of not just stating the law but developing or even making law. It is difficult to analyse or prove wrong this accusation as it is not in methodological terms clearly established what constitutes judicial activism, or more exactly where the threshold of negative activism lies. Moreover, one popular approach to assessing the role of the Court of Justice described as integration through law has become fairly political, neglecting to take into consideration the special nature of law as both facilitating and constraining action, not merely a medium for furthering integration. This study offers a legal reasoning approach of a more legalist nature, in order to balance the existing mix of approaches to explaining what the Court of Justice does and how. Reliance on legal reasoning is found to offer a working framework for analysis, whereas the tools for an analysis based on activism are found lacking. The legal reasoning approach enables one to assess whether or not the Court of Justice is pertaining to its own established criteria of interpretation of EU law, and if it is not, one should look more in detail at how the interpretation fits with earlier case-law and doctrines of EU law. This study examines the reasoning of the Court of Justice in a set of objectively chosen cases. The emphasis of the study is on analysing how the Court of Justice applies the established criteria of interpretation it has assumed for itself. Moreover, the judgments are assessed not only in terms of reasoning but also for meaningful silences they contain. The analysis is furthermore contextualised by taking into consideration how the cases were commented by legal scholars, their substantive EU law context, and also their larger politico-historical context. In this study, the analysis largely shows that the Court of Justice is interpreting EU law in accordance with its previous practice. Its reasoning retains connection with the linguistic or semiotic criteria of interpretation, while emphasis lies on systemic reasoning. Moreover, although there are a few judgments where the Court of Justice offers clearly dynamic reasoning or what can be considered as substantive reasoning stemming from, for example, common sense or reasonableness, such reasons are most often given in addition to systemic ones. In this sense and even when considered in its broader context, the case-law analysed in this study does not portray a specifically activist image of the Court of Justice. The legal reasoning approach is a valid alternative for explaining how and why the Court of Justice interprets EU law as it does.

From Francovich to Köbler and beyond : The evolution of a State liability regime for the EC

The aim of this paper is to present the evolution of the Francovich doctrine within the European legal order. The first part deals with the gradual development of the ECJ's case law on State liability in damages for breach of EC law. Starting from the seminal Francovich and Brasserie du Pêcheur, the clarification of the criteria set by the Court is attempted with reference to subsequent case law, whereas issues concerning the extent and form of the compensation owned are also mentioned. The second part concerns one of the more recent developments in the field, namely State liability for breaches of Community law attributed to national judiciary. The Court's ruling in Köbler is examined in connection with two other recent judgments, namely Commission v. Italy of 2003 and Kühne & Heitz, as an attempt of the ECJ to reframe its relationships with national supreme courts and appropriate for itself the position of the Supreme Court in the European legal order. The implications on State liability claims by the ruling in Commission v. France of 1997 constitute the theme of the third part, where it is submitted that Member States can also be held liable for disregard of Community law by private individuals within their respected territories. To this extent, Schmidberger is viewed as a manifestation of this opinion, with fundamental rights acquiring a new dimension, being invoked by the States, contra the individuals as a shield to liability claims. Finally, the third part examines the relationship between the Francovich doctrine and the principle of legal certainty and concludes that the solutions employed by the ECJ have been both predictable and acceptable by the national legal orders. Keywords: State liability, damages, Francovich, Köbler, Schmidberger

Struggles over legitimacy in global organizational restructuring: A rhetorical perspective on legitimation strategies and dynamics in a shutdown case

Critical organization scholars have focused increasing attention on industrial and organizational restructurings such as shutdown decisions. However, we know little about the rhetorical strategies used to legitimate or resist plant closures in organizational negotiations. In this paper, we draw from New Rhetoric to analyze rhetorical struggles, strategies and dynamics in unfolding organizational negotiations. We focus on the shutdown of the bus body unit of the Swedish company Volvo in Finland. We distinguish five types of rhetorical legitimation strategies and dynamics. These include the three classical dynamics of logos (rational arguments), pathos (emotional moral arguments), and ethos (authority-based arguments), but also autopoiesis (autopoietic narratives), and cosmos (cosmological constructions). Our analysis adds to the previous studies explaining how organizational restructuring as a phenomenon is legitimated, how this legitimation has changed over time, and how contemporary industrial closures are legitimated in the media. This study also increases our theoretical understanding of the role of rhetoric in legitimation more generally.

The Gendered Social Organisation of Defence: Two Ethnographic Case Studies in the Finnish Defence Forces

In Finland the organising of defence is undergoing vast restructuring. Recent legislation has redefined the central tasks of the Finnish Defence Forces. At the same time, international security cooperation, economic pressures and new administrative paradigms have steered the military towards new ways of organising. National defence is not just politics and principles; to a large extent it is also enacted in day-to-day life in organisations. The lens through which these realities of defence are analysed in this study is gender. How is the security sector – and national defence as part of it – organised in the changing security environment? What is the new division of labour between different societal actors in the face of security challenges? What happens ‘at work’ within the military and the defence sector more broadly? How does gender affect the way in which defence is organised and understood, and how do the changes in the organising of security affect gender relations? The thesis searches for answers to these questions in the context of two organisational settings in the male-dominated defence sector. The case study on a Finnish peacekeeping unit in the Balkans opens a critical view on men’s social practices and the everyday life of crisis management organisations. In the second case study, reorganising of provisioning in the Finnish Defence Forces turns out to be a complicated process where different power relations and social divisions intermingle. Tallberg’s extensive ethnographic fieldwork in the two focal organisations has produced a detailed set of data that lays the basis for critical analysis and policy development in terms of defence organising, cooperation around peace and security issues, and gender equality in organisations. Observations and results are provided for understanding social networks, militarisation, authority relations, care, public-private partnerships, personnel policies, career planning, and humour.

Struggles Over Legitimacy in Global Organizational Restructuring: A Rhetorical Perspective on Legitimation Strategies and Dynamics in a Shutdown Case

Critical organization scholars have focused increasing attention on industrial and organizational restructurings such as shutdown decisions. However, little is known about the rhetorical strategies used to legitimate or resist plant closures in organizational negotiations. In this article, we draw from New Rhetoric to analyze rhetorical struggles, strategies and dynamics in unfolding organizational negotiations. We focus on the shutdown of the bus body unit of the Sweden-based Volvo Bus Corporation in Finland. We distinguish five types of rhetorical legitimation strategies and dynamics. These include the three classical dynamics of logos (rational arguments), pathos (emotional moral arguments), and ethos (authority-based arguments), but also autopoiesis (autopoietic narratives), and cosmos (cosmological constructions). Our analysis contributes to previous studies on organizational restructuring by providing a more nuanced understanding of how contemporary industrial closures are legitimated and resisted in organizational negotiations. This study also increases theoretical understanding of the role of rhetoric in legitimation more generally.

Patents, Ethics and Stem Cell Research : The Case of hESC Innovation in Australia, Europe and the United States

Embryonic stem cells offer potentially a ground-breaking insight into health and diseases and are said to offer hope in discovering cures for many ailments unimaginable few years ago. Human embryonic stem cells are undifferentiated, immature cells that possess an amazing ability to develop into almost any body cell such as heart muscle, bone, nerve and blood cells and possibly even organs in due course. This remarkable feature, enabling embryonic stem cells to proliferate indefinitely in vitro (in a test tube), has branded them as a so-called miracle cure . Their potential use in clinical applications provides hope to many sufferers of debilitating and fatal medical conditions. However, the emergence of stem cell research has resulted in intense debates about its promises and dangers. On the one hand, advocates hail its potential, ranging from alleviating and even curing fatal and debilitating diseases such as Parkinson s, diabetes, heart ailments and so forth. On the other hand, opponents decry its dangers, drawing attention to the inherent risks of human embryo destruction, cloning for research purposes and reproductive cloning eventually. Lately, however, the policy battles surrounding human embryonic stem cell innovation have shifted from being a controversial research to scuffles within intellectual property rights. In fact, the ability to obtain patents represents a pivotal factor in the economic success or failure of this new biotechnology. Although, stem cell patents tend to more or less satisfy the standard patentability requirements, they also raise serious ethical and moral questions about the meaning of the exclusions on ethical or moral grounds as found in European and to an extent American and Australian patent laws. At present there is a sort of a calamity over human embryonic stem cell patents in Europe and to an extent in Australia and the United States. This in turn has created a sense of urgency to engage all relevant parties in the discourse on how best to approach patenting of this new form of scientific innovation. In essence, this should become a highly favoured patenting priority. To the contrary, stem cell innovation and its reliance on patent protection risk turmoil, uncertainty, confusion and even a halt on not only stem cell research but also further emerging biotechnology research and development. The patent system is premised upon the fundamental principle of balance which ought to ensure that the temporary monopoly awarded to the inventor equals that of the social benefit provided by the disclosure of the invention. Ensuring and maintaining this balance within the patent system when patenting human embryonic stem cells is of crucial contemporary relevance. Yet, the patenting of human embryonic stem cells raises some fundamental moral, social and legal questions. Overall, the present approach of patenting human embryonic stem cell related inventions is unsatisfactory and ineffective. This draws attention to a specific question which provides for a conceptual framework for this work. That question is the following: how can the investigated patent offices successfully deal with patentability of human embryonic stem cells? This in turn points at the thorny issue of application of the morality clause in this field. In particular, the interpretation of the exclusions on ethical or moral grounds as found in Australian, American and European legislative and judicial precedents. The Thesis seeks to compare laws and legal practices surrounding patentability of human embryonic stem cells in Australia and the United States with that of Europe. By using Europe as the primary case study for lessons and guidance, the central goal of the Thesis then becomes the determination of the type of solutions available to Europe with prospects to apply such to Australia and the United States. The Dissertation purports to define the ethical implications that arise with patenting human embryonic stem cells and intends to offer resolutions to the key ethical dilemmas surrounding patentability of human embryonic stem cells and other morally controversial biotechnology inventions. In particular, the Thesis goal is to propose a functional framework that may be used as a benchmark for an informed discussion on the solution to resolving ethical and legal tensions that come with patentability of human embryonic stem cells in Australian, American and European patent worlds. Key research questions that arise from these objectives and which continuously thread throughout the monograph are: 1. How do common law countries such as Australia and the United States approach and deal with patentability of human embryonic stem cells in their jurisdictions? These practices are then compared to the situation in Europe as represented by the United Kingdom (first two chapters), the Court of Justice of the European Union and the European Patent Office decisions (Chapter 3 onwards) in order to obtain a full picture of the present patenting procedures on the European soil. 2. How are ethical and moral considerations taken into account at patent offices investigated when assessing patentability of human embryonic stem cell related inventions? In order to assess this part, the Thesis evaluates how ethical issues that arise with patent applications are dealt with by: a) Legislative history of the modern patent system from its inception in 15th Century England to present day patent laws. b) Australian, American and European patent offices presently and in the past, including other relevant legal precedents on the subject matter. c) Normative ethical theories. d) The notion of human dignity used as the lowest common denominator for the interpretation of the European morality clause. 3. Given the existence of the morality clause in form of Article 6(1) of the Directive 98/44/EC of the European Parliament and of the Council of 6 July 1998 on the legal protection of biotechnological inventions which corresponds to Article 53(a) European Patent Convention, a special emphasis is put on Europe as a guiding principle for Australia and the United States. Any room for improvement of the European morality clause and Europe s current manner of evaluating ethical tensions surrounding human embryonic stem cell inventions is examined. 4. A summary of options (as represented by Australia, the United States and Europe) available as a basis for the optimal examination procedure of human embryonic stem cell inventions is depicted, whereas the best of such alternatives is deduced in order to create a benchmark framework. This framework is then utilised on and promoted as a tool to assist Europe (as represented by the European Patent Office) in examining human embryonic stem cell patent applications. This method suggests a possibility of implementing an institution solution. 5. Ultimately, a question of whether such reformed European patent system can be used as a founding stone for a potential patent reform in Australia and the United States when examining human embryonic stem cells or other morally controversial inventions is surveyed. The author wishes to emphasise that the guiding thought while carrying out this work is to convey the significance of identifying, analysing and clarifying the ethical tensions surrounding patenting human embryonic stem cells and ultimately present a solution that adequately assesses patentability of human embryonic stem cell inventions and related biotechnologies. In answering the key questions above, the Thesis strives to contribute to the broader stem cell debate about how and to which extent ethical and social positions should be integrated into the patenting procedure in pluralistic and morally divided democracies of Europe and subsequently Australia and the United States.

Trafficking in human beings and Foucauldian biopower : A case study in the expansion of the human rights phenomenon

Trafficking in human beings has become one of the most talked about criminal concerns of the 21st century. But this is not all that it has become. Trafficking has also been declared as one of the most pressing human rights issues of our time. In this sense, it has become a part of the expansion of the human rights phenomenon. Although it is easy to see that the crime of trafficking violates several of the human rights of its victims, it is still, in its essence, a fairly conventional although particularly heinous and often transnational crime, consisting of acts between private actors, and lacking, therefore, the vertical effect associated traditionally with human rights violations. This thesis asks, then, why, and how, has the anti-trafficking campaign been translated in human rights language. And even more fundamentally: in light of the critical, theoretical studies surrounding the expansion of the human rights phenomenon, especially that of Costas Douzinas, who has declared that we have come to the end of human rights as a consequence of the expansion and bureaucratization of the phenomenon, can human rights actually bring salvation to the victims of trafficking? The thesis demonstrates that the translation process of the anti-trafficking campaign into human rights language has been a complicated process involving various actors, including scholars, feminist NGOs, local activists and global human rights NGOs. It has also been driven by a complicated web of interests, the most prevalent one the sincere will to help the victims having become entangled with other aims, such as political, economical, and structural goals. As a consequence of its fragmented background, the human rights approach to trafficking seeks still its final form, consisting of several different claims. After an assessment of these claims from a legal perspective, this thesis concludes that the approach is most relevant regarding the mistreatment of victims of trafficking in the hands of state authorities. It seems to be quite common that authorities have trouble identifying the victims of trafficking, which means that the rights granted to themin international and national documents are not realized in practice, but victims of trafficking are systematically deported as illegal immigrants. It is argued that in order to understand the measures of the authorities, and to assess the usefulness of human rights, it is necessary to adopt a Foucauldian perspective and to observe the measures as biopolitical defence mechanisms. From a biopolitical perspective, the victims of trafficking can be seen as a threat to the population a threat that must be eliminated either by assimilating them to the main population with the help of disciplinary techniques, or by excluding them completely from the society. This biopolitical aim is accomplished through an impenetrable net of seemingly insignificant practices and discourses that not even the participants are aware of. As a result of these practices and discourses, trafficking victims only very few of fit the myth of the perfect victim, produced by biopolitical discourses become invisible and therefore subject to deportation as (risky) illegal immigrants, turning them into bare life in the Agambenian sense, represented by the homo sacer, who cannot be sacrificed, yet does not enjoy the protection of the society and its laws. It is argued, following Jacques Rancière and Slavoj i ek, that human rights can, through their universality and formal equality, provide bare life the tools to formulate political claims and therefore utilize their politicization through their exclusion to return to the sphere of power and politics. Even though human rights have inevitably become entangled with biopolitical practices, they are still perhaps the most efficient way to challenge biopower. Human rights have not, therefore, become useless for the victims of trafficking, but they must be conceived as a universal tool to formulate political claims and challenge power .In the case of trafficking this means that human rights must be utilized to constantly renegotiate the borders of the problematic concept of victim of trafficking created by international instruments, policies and discourses, including those that are sincerely aimed to provide help for the victims.