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Abstract
This article analyses the content of the mutual defence obligation contained in the EU Treaty Article 42(7) in relation to the Swedish constitutional rule on the sending of armed forces abroad and the emerging 'deepened defence cooperation' between Sweden and Finland. The article tries to understand the prevailing Swedish position in legal terms and suggests an alternative flexible way on Sweden's part of conceiving the binding force of Article 42(7). The question is whether the EU Treaty contains an international obligation of a quality to activate a provision in the Swedish Constitution entitling the government to decide on its own, without having to seek the otherwise necessary approval by Parliament, to send Swedish armed forces to other countries for instance on a mission of collective self-defence. The possibility of looking at the EU Treaty and the Swedish Instrument of Government in this way is not considered in any of the Swedish official inquiries into the Swedish security and defence policy of which there have been quite a few recently.

This article investigates the Swedish constitutional framework for international military action. The constitutional provisions on self-defence and on the sending of armed forces to other countries are in focus. The provisions mainly concern the division of powers between the government and parliament and generally contain little substance. In the context of a relatively recent revision of the entire Swedish Constitution also the constitutional provisions on the government's power to deploy the armed forces were subject to review. In the end not much was changed, but several suggestions for change were put forward by the official commission of inquiry on constitutional reform. Even though the suggestions for change were for the most part rejected, they are discussed in this article as a backdrop to the rules that remained. An ambition to tie the Swedish constitutional regulation even closer to international law was part of the suggested change which was eventually approved.

The constitutionally-based right of access to documents has a long history in Sweden and is considered crucial to Swedish democracy. On entering the EU in 1995, Sweden declared that public access to official records forms part of Sweden's constitutional, political and cultural heritage. The members of the EU for their part declared that they took it for granted that Sweden would fully comply with Community (now Union) law with respect to openness and transparency. Sweden continues to push for transparency when EU legislation that potentially contains secrecy clauses is negotiated. It turns out, however, that EU membership does pose challenges to the strong Swedish right of access to documents. The protection of personal data is controversial in Sweden to the extent that the stricter EU legislation clashes with the traditionally weak protection of privacy in Swedish law; the Swedish right of access to information has largely outweighed the right to privacy. Large amounts of publicly available personal data are amassed in databases by private actors for commercial reasons, under the protection of the Swedish constitution. This is causing problems, especially since Sweden considers Swedish constitutional law to precede EU legislation in the field of access to information. Sweden will somehow have to solve the dilemmas caused by the differing traditions of transparency between itself and other EU member states. Official Swedish inquiries and the EU Regulation will provide many answers to these questions in 2016.

The right of access to documents is constitutionally based in Sweden and has a long history. The right of access is considered crucial to Swedish democracy. On entering the EU in 1995, Sweden declared that public access to official records forms part of Sweden's constitutional, political and cultural heritage. The members of the EU for their part declared that they took it for granted that Sweden would fully comply with Community, now Union, law with respect to openness and transparency. Sweden continues to push for transparency when EU legislation potentially containing secrecy clauses is negotiated in the EU. It turns out, however, that the EU membership does pose challenges to the strong Swedish right of access to documents. The protection of personal data is controversial in Sweden to the extent that the stricter EU legislation clashes with the traditionally weak protection of privacy in Swedish law; the right of access to information has largely overridden the right to privacy. Large amounts of publicly available personal data, amassed in data bases by private actors, for commercial reasons but under the protection of the Swedish constitution, is causing problems especially since the Swedish constitutional law is considered, by Sweden, to precede EU legislation in the field. Sweden will somehow have to solve the dilemmas caused by the differing traditions of transparency between itself and other members of the EU and of other international organizations. Many answers – perhaps converging - will be provided in 2016 by Swedish official inquiries and the EU Regulation.Article first published online: 22 MARCH 2016

The responsibility to protect was invoked by the United Nations (UN) Security Council in support of its authorization of a military intervention in Libya in 2011. In the wake of the intervention, Brazil approached the UN with a new doctrine: the responsibility while protecting. The responsibility while protecting implies a greater degree of caution on the part of the international community in its exercise of the responsibility to protect. Intentionally or unintentionally, Brazil mixes aspects of the jus ad bellum with aspects of the jus in bello in the new doctrine. This is controversial and potentially detrimental to both areas of law. An additional layer of limitations on the use of armed force in multinational peace operations is introduced beyond the existing restrictions on warfare following from international humanitarian law. A lack of clarity pertaining to the use of force and to the respective roles of the Security Council and the General Assembly in this respect in the exercise of the responsibility to protect contribute to making the responsibility while protecting seem increasingly enigmatic. Interpreted constructively, however, the responsibility while protecting simply urges the international community to follow international law. This would be good.

Justice after war is becoming an increasingly pressing concern. The cases of Afghanistan, Iraq and most recently Libya illustrate the importance of as well as the difficulties involved in the efforts to manage the outcome of armed conflict in a constructive way. The jus post bellum is meant to serve as the normative framework for the efforts to stabilise the post-conflict situation. The jus post bellum also has the future peaceful and arguably democratic and human rights respecting development of the post-conflict society in view. This article aims at drawing the conceptual and substantive contours of the jus post bellum and to discuss its relationship with other parts of international law, primarily the other bodies of law making up the law of armed conflict. Depending on one's perspective the jus post bellum can be claimed not yet to exist, to exist already or irrespective of which to be superfluous as a separate category of law. The article recognises the apparent need for a comprehensive post-conflict law to serve as a bridge between war and stable peace. What way the international community should take in order to arrive at a just and useful normative framework for building peace is far from certain, however.

AbstractThe Swedish parliament has a strong position in the decision-making on the international use of force. Still, its role is affected by the rapid internationalization of the Swedish defence. More and quicker decisions have to be taken on Swedish contributions to international peace operations. The origin of the decisions of the Swedish parliament, moreover, can be traced to international decision-making bodies on which the Swedish parliament and sometimes even the Swedish government have no influence at all. Parliament is conscious of its important role and looks after its interests in the domestic decision-making context. Sometimes it challenges the government on specific issues relating to the operations, but in the end parliament always tend to agree and unanimously as well. This article studies the involvement of the Swedish parliament in the decision-making on the contribution of armed troops to international peace operations since the end of the Cold War. The article gives particular attention to the use – or not – of the law delegating the decision-making power over troop contributions entirely to the government. The issue of self-defence against armed attacks on the Realm is also taken up and the potential impact of an expanded notion of self-defence on the decision-making role of parliament. Concerns of democratic accountability form the background to the reasoning in its entirety.

This working paper deals with the individual criminal accountability of employees of private security and/or military companies (PSMCs) in armed conflict. From the perspective of international humanitarian law the PSMCs are interesting because they cause theoretical and practical problems to the current legal system. The private character of these companies does not fit in with the presumed public nature of the national armed forces participating in an armed conflict. The difficulties caused by the PSMCs, however, should not be exaggerated. There is plenty of applicable law both within the international humanitarian legal field and in other sub-systems of international as well as domestic law of states. The problems are primarily practical, they turn on the implementation of the current international legislation which falters for different reasons with respect to the "private warriors". For the time being, the legal system can remain intact and the "private warriors" can be dealt with as if they were either public warriors - i.e. combatants - or civilians. From the normative point of view it is important that there are no holes in the law that would allow the PSMCs to carry out criminal acts without sanction.

AbstractThis article explores the development of a doctrine of humanitarian intervention and responsibility to protect among Swedish policy-makers. The doctrine may or may not include an authorization by the United Nations (UN) Security Council as a necessary component. The article investigates how the new doctrine fits with the Swedish constitutional regulation of the use of force and how the evolution of the new Swedish view of the jus ad bellum interacts with the regulation of the use of force in the European Union (EU). The responsibility to protect answers to many of the concerns voiced in Parliament; the doctrine caters both to those who wish a basis for action independent of the Security Council and to those who are faithful to the UN. The parliamentary debates as well as government documents point to a developing political consensus that unilateral humanitarian intervention may be justified under certain exceptional circumstances. The argument that decisions should be made by the Security Council is difficult to maintain in the face of grave human suffering which would otherwise warrant action by the international community. The increasing ability and willingness to intervene internationally in Sweden and the EU leads to a further question, namely: For what will the force be used?

AbstractThis article investigates the inter-play between jus ad bellum and jus in bello in order to see what effects as to substance and structure that the inter-play may have on each field. The contact between the twofields of law will probably lead to modifications in each. Contrary to what is often presumed, in the relative competition between jus ad bellum and jus in bello, it may be very well be that jus in bello will emerge as the strongest body of norms. This, moreover, would seem the most likely development given the current focus on the suffering of civilians during armed conflict and the rise of human rights and humanitarian concernsgenerally in international law. Jus in bello may come to condition jus ad bellum and not the otherway round. This may make the disappearing dichotomy between jus ad bellum and in bello seem less threatening. A strengthened jus in bello and related concerns may even come to push jus ad bellum into irrelevance or obsolescence.

AbstractThe Swedish defence policy has undergone a dramatic shift in recent years from focusing on defending Swedish territory to focusing on making the world a better place. The questions asked in this article relate to the Swedish constitutional regulation of the use of the Swedish armed forces and the potential impact of the European Security and Defence Policy on the interpretation of the Constitution. A fundamental revision of a policy central to the identity of the state has taken place, and the constitutional regulation as such stays intact. The old constitutional rules also function in the new defence policy environment, but new practice may entail a new interpretation. Different aspects of the change in defence policy will be weighed in relation to the existing Constitution. The Constitution sets limits to when Swedish armed forces may be sent abroad, but it also provides the opportunities. In a time of internationalisation and active use of military means to accomplish things around the world, the enabling aspect of the Constitution becomes important. The constitutional regulation accords the government and Parliament a lot of freedom, indeed unlimited freedom as long as they agree. Under the Constitution any coalition, context or cause is just.