Disputationer 2014

Ulrika Wennersten

Immaterialrätt och skydd av samhällsideal
– en studie av klassikerskyddet i upphovsrätten och undantagen i varumärkesrätten, mönsterrätten och patenträtten för allmän ordning och goda seder

Datum för disputation: fredagen den 23 maj 2014
Fakultetsopponent: professor Jens Schovsbo, Köpenhamns universitet, Danmark
Ämne: civilrätt

Abstract

The subject of this thesis is intellectual property and protection of non-commercial societal interests. The study is divided in two main parts. The first part deals with the provision of the Swedish Copyright Act laying down that literary and artistic works may not be performed or reproduced publicly after the death of their author in a manner that violates cultural interests (protection for classics). The second part deals with the provisions of trademark, design and patent law according to which products and their commercial exploitation are exempt from protection to the extent that they are contrary to ordre public/public policy or morality (morality exceptions).

The aim of the investigation, in a broad sense, is to study the intended and actual functions of protection for classics and the morality exceptions, intended functions being those that the legislator had in mind and actual ones being their application in case-law. Starting from the historical, social and legal context in which these provisions evolved, and taking account of their objectives, both specifically and as part of a system, the investigation identifies, compares and examines the above-mentioned functions of these provisions. The purpose of this is to provide a coherent and systemized description of the norms, to compare the provisions with each other and to analyze the problems that have arisen or may arise in their application. However, the intention is not only to identify and explain difficulties in application, but also to problematise the functions of the provisions and then to reflect critically on their present design and their justification. A further aim of the investigation is to analyze the reasons for the absence of a morality exception in copyright law and to consider whether a court of law could refuse to hear a case, or dismiss it on the merits, because the copyrighted work is contrary to ordre public/public policy or morality.

Gunnar Thor Pétursson

The Proportionality Principle as a Tool for Disintegration in EU Law
– of Balancing and Coherence in the Light of the Fundamental Freedoms

Datum för disputation: måndagen den 28 april 2014
Fakultetsopponent: professor Janneke Gerards, Radbouds universitet, Nederländerna
Ämne: EU-rätt

Abstract

This thesis analyses the operations of the principle of proportionality when the Court of Justice reviews national measures that restrict the fundamental freedoms laid down in the EU Treaties. That judicial review often entails balancing of rights, and this study is a quest for coherence in the adjudication of different, and at times perplexing legal norms, of various national and international origins.

Many have held that the principle of proportionality is applied in EU law as a tool for integration. The main aim of this thesis is to study whether, and to what extent, the proportionality principle may also serve as the main tool to secure disintegration in EU law. That means verifying whether the principle is an apt methodological tool to secure deference, divergence and flexibility necessary in the adjudication of EU rules and the deep national interests.

The analytical framework, within which the Court of Justice reviews the restrictive measures, is influenced by several factors, which seem to impact the level of intensity of the review. These factors, the balancing parameters, are unravelled by analysing the broader normative framework surrounding the Court’s judicial review. Balancing techniques and balancing theories are important in this light; alongside with tracing the origins of the proportionality principle and the role of the margin of appreciation doctrine in EU law. Furthermore, in order to define and categorize the types of balancing methods used by the Court of Justice in this context, an in-depth empirical legal research is undertaken.

Martin Sunnqvist

Konstitutionellt kritiskt dömande
- förändringen av nordiska domares attityder under två sekel

Datum för disputation: fredagen den 4 april 2014
Fakultetsopponent: professor Jørn Øyrehagen Sunde, Bergens universitet, Norge
Ämne: rättshistoria

Abstract

Under senare år har de högsta domstolarna i Norden i ett antal uppmärksammade avgöranden åsidosatt lagar, som stått i strid med respektive lands grundlag eller med EKMR. En omdebatterad fråga är om domstolarna har gått för långt – eller om de har väntat för länge med att ta på sig denna uppgift.

I denna bok sätts de nordiska domarnas uppgift att kritiskt granska lagars förenlighet med konstitutionella normer in i sitt historiska sammanhang. Med hjälp av en komparativ rättshistorisk metod analyseras domstolarnas förhållande till de andra båda statsmakterna och grundlagarnas förhållande till lagar och andra typer av normer. Analysen tar sin utgångspunkt i de konstitutionella förändringar som ägde rum i Norden år 1809, 1814 och 1849.

Domarnas uppgift att granska att lagar och andra föreskrifter stämmer med konstitutionella normer sammanfattas under begreppet konstitutionellt kritiskt dömande. I fokus står hur domarnas attityder till denna uppgift har förändrats under de senaste två århundradena.

De argument som nu stödjer ett konstitutionellt kritiskt dömande har förts fram i den rättsliga diskussionen i alla de nordiska länderna sedan tidigt 1800-tal. Argumentens genomslag har dock varierat stort mellan de olika länderna och mellan olika tidsperioder. När nu konstitutionella normer inte tolkas bara av den nationella lagstiftaren utan även av internationella organ, har domarna kommit i en ny position: Det är i domstolarna som de konstitutionella normerna förverkligas och ges sitt konkreta innehåll.

In English

In recent years, the supreme courts in the Nordic countries have set aside statutes as contrary to the constitution of the country or to the ECHR. A much debated question is whether the courts have gone too far – or if they have waited too long to take on this task.

In this dissertation, the task of Nordic judges to critically examine the compatibility of legislation with constitutional norms is put in its historical context. With the help of a comparative legal historical method, the relationship between the judiciary and the other two branches of government, and between the constitutions and the other types of norms, is analyzed. The analysis takes as its point of departure the constitutional changes that took place in the Nordic countries in 1809, 1814 and 1849.

The task of judges to review whether legislation is consistent with constitutional norms is in this dissertation called constitutional critical judging. The focus is on how the attitudes of judges toward this task have changed over the past two centuries.

The arguments now supporting constitutional critical judging have been put forward in the legal discussion in all the Nordic countries since the early 19th century. The effect of these arguments has varied between the different countries and between different time periods. Now that constitutional norms are not to be interpreted only by the national legislator, but also by international bodies, the judges have gained a new position: The constitutional norms are materialized in the courts.

Anna Bruce

Which Entitlements and for Whom? The Convention on the Rights of Persons with Disabilities and its Ideological Antecedents

Datum för disputation: fredagen den 14 mars 2014
Fakultetsopponent: professor Jerome Bickenbach, Queens universitet, Kanada
Ämne: mänskliga rättigheter

Abstract

The Convention on the Rights of Persons with Disabilities (CRPD), adopted by the UN in 2006, represents the coming of age of a human rights approach to disability. In doing so, it provides answers to the questions what ‘disability’ is, who ‘persons with disabilities’ are and what entitlements are legitimate and relevant in relation to ‘disability’. Partly, these answers flow from the heritage of international human rights law: individual rights and principles such as equality, dignity, liberty and autonomy and choice. An equally important part of the heritage of the CRPD is that of models of disability which have developed within disability research and activism.

This book explores the CRPD through its ideological antecedents. It provides a comparative analysis of the CRPD, the negotiations through which it was developed, four different models of disability (ICIDH, the Social Model of Disability, ICF and the Minority Group Model of Disability), and critical points that have been made against these models. Against this backdrop, the choices made by the negotiators of the CRPD in relation to the named questions emerge as paths chosen at cross-roads, rather than as self-evident.

Through this comparison, the book illuminates central choices that were made in the negotiations and their effects for which entitlements are protected for whom, as well as the challenges facing the monitoring and implementation of the CRPD, with a particular focus on the right to health. There is an ambiguous relationship between the right to health in human rights law and the model which had the strongest influence on the negotiations of the CRPD: the Social Model of Disability. This book shows that while there is considerable common ground between the CRPD and the Social Model of Disability (as delineated for the purposes of this book and as it was understood in the negotiations of the CRPD), the former departs from the latter on central points, which has implications for the monitoring and implementation of the right to health. In conclusion, I argue that the relationship between the Social Model of Disability and the right to health needs to be clarified in order for this right to materialise equally for the entire constituency of the CRPD.

Markus Gunneflo

The Life and Times of Targeted Killing

Datum för disputation: måndagen den 10 mars 2014
Fakultetsopponent: professor Anne Orford, Melbournes universitet, Australien
Ämne: folkrätt

Abstract

Against the background of the ongoing shift in the perception of the legality and legitimacy of extraterritorial lethal force in counterterrorism, this thesis analyses the emergence of so-called “targeted killing” in the history of Israel and the US, as well as in international law. It finds that the relationship between targeted killing and law, particularly international law, is not a straightforward case of more or less determinate and legally binding norms being applied to state measures adopted in situations of insecurity (in this case, those of the second Intifada and 9/11) but rather one of a much longer and mutually productive relationship.

Making use of the work of Roberto Esposito, Walter Benjamin and Carl Schmitt, and with due attention to the particular historical contexts and the legal and political conditions in which Israel and the US took up their policies of targeted killing, the thesis highlights both the general problem of the precarious relationship between violence and law in the sovereign protection of the political body and the more particular question of the mutually productive relationship between targeted killing and international law. The emergence of targeted killing is accounted for by an analysis of the enactment of certain conceptions of sovereignty, law and political community in the articulation of problems and threats; the provision of answers, definitions and interpretations; and the shaping and gaining in importance of practices over time. In the case of the US, the study goes back to the early 1980s; with Israel, it goes as far back as the birth of the state.

Recognising that the question of the lawfulness of targeted killing is far from settled, the thesis argues that targeted killing has the effect of renewing international law’s sanctioning of lethal force in an individualising and deterritorialising fashion that defies conceptions of universal and inalienable human rights by either subordinating human rights to the law of armed conflict or by merging the two, with the effect of simultaneously restraining and licensing targeted killing.