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Citizenship for Sale? 公民身份出售?
Pub Date : 2017-08-03 DOI: 10.1093/OXFORDHB/9780198805854.013.34
Ayelet Shachar
“There are some things that money can’t buy.” Is citizenship among them? In her contribution to the Oxford Handbook of Citizenship, Professor Shachar explores this question by highlighting the core legal and ethical puzzles associated with the surge in cash-for-passport programs. The spread of these new programs is one of the most significant developments in citizenship practice in the past few decades. It tests our deepest intuitions about the meaning and attributes of the relationship between the individual and the political community to which she belongs. This chapter identifies the main strategies employed by a growing number of states putting their visas and passports “for sale,” selectively opening their otherwise bolted gates of admission to the high-net-worth individuals of the world. Moving from the positive to the normative, the discussion then elaborates the main arguments in favor of, as well as against, citizenship-for-sale. Shachar draws attention to the distributive and political implications of these developments, both locally and globally, and identifies the deeper forces at work that contribute to the perpetual testing, blurring, and erosion of the state-market boundary regulating access to membership.
“有些东西是钱买不到的。”公民身份也在其中吗?在为《牛津公民手册》(Oxford Handbook of Citizenship)撰写的文章中,沙查尔教授通过强调与现金换护照计划激增相关的核心法律和道德难题,探讨了这个问题。这些新项目的推广是过去几十年公民实践中最重要的发展之一。它考验着我们对于个人与其所属的政治共同体之间关系的意义和属性的最深刻的直觉。本章指出了越来越多的国家“出售”他们的签证和护照所采用的主要策略,有选择地向世界上的高净值人士打开了他们原本紧闭的大门。然后,讨论从积极的角度转向规范的角度,阐述了支持和反对出售公民身份的主要论点。沙查尔提请注意这些发展在本地和全球的分布和政治影响,并确定了更深层次的力量,这些力量导致了规范入会的国家-市场边界的不断考验、模糊和侵蚀。
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引用次数: 8
International Standards on Business and Human Rights: Is Drafting a New Treaty Worth it? 工商业与人权国际标准:起草新条约值得吗?
Pub Date : 2017-04-08 DOI: 10.2139/ssrn.2849178
Constance de la Vega
In 2014, the United Nations Human Rights Council adopted a resolution to establish a Working Group to draft a treaty on business and human rights. In the aftermath of this resolution, much is being written on what such a treaty would cover. And in light of the very close vote approving the resolution — and the likelihood that few developed countries would ratify the treaty — a question may arise as to whether the effort to draft the treaty would be worth it. To answer this question, this paper examines the International Convention for the Protection of All Rights of Migrant Workers and Their Families — which has only been ratified by a small number of states (and primarily by sending countries). This paper first summarizes the history of the efforts to address corporate accountability, and examines the current voluntary and mandatory international standards relevant to the human rights obligations of businesses. The paper then reviews the Convention on Migrant Workers and the Committee on Migrant Workers (CMW) Concluding Observations on reports of the States Parties. These reports indicate that states have adopted legislation to both educate their own citizens who might emigrate to other countries as well as to provide some benefits to migrant workers in their own countries. Despite the small number of States Parties to the Convention, this legislation demonstrates what can be done to protect the rights of migrant workers both in sending and receiving countries, and it helps develop best practices to promote their rights. And while the CMW has raised concerns regarding the adequacy of this legislation, the laws have helped to develop the legal standards regarding the definition of migrant workers, and regarding the rights of those in irregular situations. The paper asserts that these benefits will clearly have an effect on the evolution of the law protecting migrant workers and their families. The Convention on Migrant Workers thus provides a good model for the possible benefits of a treaty on human rights, even if such a treaty is not widely ratified. First, the drafting of a binding document has helped develop the law on migrant workers. Second, the treaty has helped to promote and protect the rights of workers from sending states as well as migrants who live in the States Parties. The paper concludes that the drafting of a treaty on business and human rights could have a similar effect. Such a treaty could promote the development of international standards to address the topic at the international level, as well as the development of procedures at the national level. It could also provide a forum for addressing redress at the international level when the domestic procedures are not sufficient.
2014年,联合国人权理事会通过了一项决议,成立了一个工作组,起草一项工商业与人权条约。在这一决议之后,关于这样一项条约将涵盖哪些内容,人们写了很多文章。鉴于通过决议的票数非常接近,而且几乎没有发达国家会批准该条约,可能会出现一个问题,即起草该条约的努力是否值得。为了回答这个问题,本文考察了《保护移徙工人及其家庭所有权利国际公约》——该公约只有少数国家批准(主要是移民原籍国)。本文首先总结了解决企业问责制的历史,并审查了当前与企业人权义务相关的自愿和强制性国际标准。然后,论文审查了《移徙工人公约》和移徙工人委员会关于缔约国报告的结论性意见。这些报告表明,各州已经通过立法,既要教育可能移民到其他国家的本国公民,又要为本国的移民工人提供一些福利。尽管《公约》的缔约国数量很少,但这项立法表明可以采取哪些措施来保护原籍国和接受国移徙工人的权利,并有助于制定促进其权利的最佳做法。虽然移徙工人委员会对这项立法的充分性表示关切,但这些法律有助于制定关于移徙工人的定义和关于非正规身份者的权利的法律标准。文章断言,这些好处显然会对保护农民工及其家庭的法律的演变产生影响。因此,《移徙工人公约》为人权条约可能带来的好处提供了一个很好的模式,即使这种条约没有得到广泛批准。首先,起草一份具有约束力的文件有助于制定关于农民工的法律。其次,该条约有助于促进和保护来自派遣国的工人以及居住在缔约国的移民的权利。该报告的结论是,起草一项关于商业和人权的条约可能会产生类似的效果。这样一项条约可以促进制订国际标准,在国际一级处理这一问题,并在国家一级制订程序。它还可以提供一个论坛,在国内程序不充分的情况下在国际一级处理补救问题。
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引用次数: 2
On Normative Effects of Immigration Law 论移民法的规范效应
Pub Date : 2017-02-28 DOI: 10.2139/ssrn.2741233
Emily Ryo
Can laws shape and mold our attitudes, values, and social norms, and if so, how do immigration laws affect our attitudes or views toward minority groups? I explore these questions through a randomized laboratory experiment that examines whether and to what extent short-term exposures to anti-immigration and pro-immigration laws affect people’s implicit and explicit attitudes toward Latinos. My analysis shows that exposure to an anti-immigration law is associated with increased perceptions among study participants that Latinos are unintelligent and law-breaking. In contrast, I find no evidence that exposure to pro-immigration laws promoted positive attitudes toward Latinos. Taken together, these results suggest that exposure to anti-immigration laws can easily trigger negative racial attitudes, but fostering positive racial attitudes through pro-immigration laws might be substantially more difficult. I argue that a fuller appreciation of the impacts of immigration laws requires an understanding of their normative effects. I conclude by discussing the directions for future research on law, racial attitudes, and intergroup relations, and the policy implications of my findings.
法律能否塑造和塑造我们的态度、价值观和社会规范?如果可以,移民法如何影响我们对少数群体的态度或看法?我通过一个随机的实验室实验来探索这些问题,该实验检验了短期接触反移民和支持移民的法律是否以及在多大程度上影响了人们对拉丁美洲人的隐性和显性态度。我的分析表明,接触反移民法与研究参与者越来越多地认为拉丁美洲人不聪明、违法有关。相比之下,我没有发现任何证据表明,接触亲移民法律会促进对拉美裔人的积极态度。综上所述,这些结果表明,接触反移民法很容易引发消极的种族态度,但通过支持移民法培养积极的种族态度可能要困难得多。我认为,要更全面地了解移民法的影响,就需要了解它们的规范性影响。最后,我讨论了未来在法律、种族态度和群体间关系方面的研究方向,以及我的研究结果的政策含义。
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引用次数: 4
Climate Change and Human Trafficking After the Paris Climate Agreement 《巴黎气候协定》后的气候变化和人口贩运
Pub Date : 2016-06-03 DOI: 10.7916/D8T43T72
M. Gerrard
Climate change is a major contributor to migration and displacement. Persistent drought forced as many as 1.5 million Syrian farmers to move to overcrowded cities, contributing to social turmoil and ultimately a civil war that drove hundreds of thousands of people to attempt to cross the Mediterranean into Europe. Drought also worsened refugee crises in the Sahel, the Horn of Africa and other parts of the continent. Climate change can cause displacement in multiple ways. No reliable estimates exist of the number of people who will be displaced partly or wholly by climate change, due to uncertainties concerning the rate of climate change, the ability of different societies to cope with this change, and other factors. However, several estimates put the number of people in the hundreds of millions in the latter part of this century. It is well documented that displacement leads to a considerable increase in human trafficking (often for sexual exploitation or forced labor) and smuggling (which often leads to fatalities in transit). Climate change represents one of the most profound injustices in today’s society, for those who will suffer the most, those displaced from their homes, are the poorest among us – those who contributed the least to the excess energy use that is at the root of much of the problem.
气候变化是造成移徙和流离失所的一个主要因素。持续的干旱迫使多达150万叙利亚农民迁往拥挤的城市,导致社会动荡,最终爆发内战,迫使数十万人试图越过地中海进入欧洲。干旱还加剧了萨赫勒地区、非洲之角和非洲大陆其他地区的难民危机。气候变化可以通过多种方式导致流离失所。由于气候变化的速度、不同社会应对这一变化的能力以及其他因素的不确定性,目前还没有关于部分或全部因气候变化而流离失所的人数的可靠估计。然而,有几项估计表明,本世纪下半叶的人口将达到数亿。有充分证据表明,流离失所导致人口贩运(通常是为了性剥削或强迫劳动)和走私(往往导致在过境途中死亡)的大量增加。气候变化是当今社会最严重的不公正现象之一,因为受害最深的人,那些背井离乡的人,是我们当中最贫穷的人——那些对能源过度使用贡献最小的人,而能源过度使用正是许多问题的根源。
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引用次数: 2
Can Minimum Core Obligations Survive a Reasonableness Standard of Review Under the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights? 最低核心义务能否通过《经济、社会、文化权利国际公约任择议定书》的合理审查标准?
Pub Date : 2016-03-07 DOI: 10.2139/SSRN.2744436
L. Forman
In 2013, after twenty years of debate, an Optional Protocol to the International Covenant on Economic, Social and Cultural Rights came into operation, enabling the international justiciability of this Covenant’s rights for the first time. Under this mechanism, individuals within ratifying countries can submit complaints to the Committee on Economic, Social and Cultural Rights alleging violations of Covenant rights including health. The Protocol ushers in a new era for the international justiciability of this right, with the potential to advance its normative development and offer material gains to applicants. In this light the Committee’s enforcement may prove an important crucible for the evolution of rights like health. Yet the Committee’s interpretive approach to this right may conflict with the adjudicative approach laid out in relation to the Protocol. For example, Protocol guidelines adopt a ‘reasonableness approach’ to adjudication (drawn from the South African Constitutional Court), which may contradict the Committee’s core obligations approach to interpreting economic, social and cultural rights. This analysis remains speculative since the Committee has yet to release a decision under this mechanism. Accordingly, my paper will contrast the Committee’s adjudicative rules against earlier interpretations of the right to health to analyze its potential approach to enforcement, and to consider the implications for individual complainants, domestic litigation, and indeed, the evolution of the right to health more generally.
2013年,经过20年的辩论,《经济、社会及文化权利国际公约任择议定书》开始生效,首次使《公约》各项权利具有国际可诉性。根据这一机制,批准国境内的个人可以向经济、社会和文化权利委员会提出申诉,指称包括健康权在内的《公约》权利受到侵犯。《议定书》为这项权利的国际可诉性开创了一个新时代,有可能推动其规范性发展,并为申请人带来实质性利益。有鉴于此,委员会的执法可能是健康等权利演变的重要考验。然而,委员会对这项权利的解释性办法可能与就《议定书》规定的裁决性办法相冲突。例如,议定书准则对裁决采取了“合理方法”(取自南非宪法法院),这可能与委员会解释经济、社会和文化权利的核心义务方法相矛盾。这种分析仍然是推测性的,因为委员会尚未根据这一机制作出决定。因此,我的论文将把委员会的裁决规则与先前对健康权的解释进行对比,分析其潜在的执法方法,并考虑其对个人申诉人、国内诉讼以及更普遍的健康权演变的影响。
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引用次数: 6
European Human Rights Law and the Normalisation of the ‘Closed Material Procedure’: Limit or Source? 欧洲人权法与“封闭材料程序”的正常化:限制还是来源?
Pub Date : 2015-11-01 DOI: 10.1111/1468-2230.12155
E. Nanopoulos
Once a legal abnormality that was criticised on human rights grounds, the closed material procedure (CMP) has now become the main mechanism for dealing with allegedly sensitive security information in the UK. This article considers the role of European human rights law in that process. It argues that the CMP can be conceptualised as the product of human rights law, which has developed so as to legalise and normalise its use, and that this process is symptomatic of a deeper inter‐relationship between human rights law and the preservation of states' security interests, which renders the former inherently unsuitable for dealing with security phenomena.
封闭材料程序(CMP)曾经是一种因人权理由而受到批评的法律异常,现在已成为英国处理所谓敏感安全信息的主要机制。本文探讨了欧洲人权法在这一进程中的作用。本文认为,CMP可以被定义为人权法的产物,人权法的发展使其使用合法化和正常化,这一过程表明人权法与维护国家安全利益之间存在更深层次的相互关系,这使得前者本质上不适合处理安全现象。
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引用次数: 9
Hannah Arendt's Moral Ontology: Comments on David Luban's Arendt on the Crime of Crimes 汉娜·阿伦特的道德本体论——评鲁班《阿伦特论罪之罪》
Pub Date : 2015-09-01 DOI: 10.1111/raju.12085
L. Coutinho
David Luban identifies a tension between Arendt's conception of ethnic identification in a context of persecution and her conception of humanity. That tension pertains to the reality - or realities - that Arendt addresses: the moral reality of her Bildung that appears throughout her work, and is centered on the “dignity of man,” on the one hand, and the divisive, “political” reality that she was forced to face when “attacked as a Jew,” on the other. By implicitly accepting that in a context of persecution one cannot escape the framing relevance of the “political” - an idea that is also present in her imaginary condemnation speech of Eichmann - Arendt betrays a fundamental theme of her work: “forgiveness” and the inherent possibility of a “new beginning.”
大卫·鲁班指出了阿伦特在迫害背景下的种族认同概念和她的人性概念之间的紧张关系。这种紧张关系与阿伦特所论述的现实——或现实——有关:她的《教养》的道德现实贯穿她的整个作品,一方面以“人的尊严”为中心,另一方面,她在“作为犹太人受到攻击”时被迫面对的分裂的“政治”现实。阿伦特含蓄地承认,在迫害的背景下,一个人无法逃避“政治”的框架相关性——这一观点也出现在她对艾希曼的想象谴责演讲中——背叛了她作品的一个基本主题:“宽恕”和“新开始”的内在可能性。
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引用次数: 1
Direct Parental Negligence Liability: An Expanding Means to Hold Parent Companies Accountable for the Human Rights Impacts of Their Foreign Subsidiaries 直接父母过失责任:让母公司对其外国子公司的人权影响负责的一种扩大手段
Pub Date : 2015-05-07 DOI: 10.2139/SSRN.2607592
Nora Mardirossian
In order to provide access to remedy for victims of human rights impacts and encourage parent companies to prevent future impacts by their foreign subsidiaries, there is a need for national courts to apply tort law duty of care obligations to parent companies. This paper argues that parent companies with high levels of control or supervision of their subsidiaries owe a direct duty of care to those whose risk of injury is foreseeable. When these parents act negligently – failing to meet this duty of care or exercise due diligence – in controlling the actions of their subsidiaries, they should be held directly liable. The paper aims to clarify why and how parent companies can be held liable for failing to exercise a requisite duty of care in controlling the acts of their subsidiaries when human rights impacts result. First, the need to turn to conventional tort litigation of human rights impacts in the wake of Kiobel is discussed. Next, the paper discusses the normative justifications for holding parent companies accountable and gives a short overview of alternative approaches to doing so. The paper then turns to two recent decisions that have opened up the ability to bring direct parental negligence claims and that should serve as examples for other courts, especially those operating under common law tort principles. In the U.K., the court in Chandler v. Cape held a parent company owed a direct duty of care to the employees of its subsidiary and that that duty was breached. In Canada, the Choc v. Hudbay court found that a parent company may owe a direct duty of care to a Guatemalan indigenous community whose rights were violated by a subsidiary of a Canadian parent company. Finally, the conformity of these decisions with international human rights law principles will be considered.
为了向人权影响的受害者提供获得补救的机会,并鼓励母公司防止其外国子公司今后造成影响,国家法院有必要将侵权法中的注意义务适用于母公司。本文认为,对子公司具有高度控制或监督能力的母公司对可预见伤害风险的子公司负有直接注意义务。当这些母公司在控制其子公司的行为方面行为疏忽——未能履行这种注意义务或尽职调查——时,它们应该承担直接责任。本文旨在澄清,当对人权产生影响时,母公司为何以及如何对未能履行必要的注意义务以控制其子公司的行为承担责任。首先,本文讨论了继Kiobel案之后转向传统侵权诉讼的人权影响的必要性。接下来,本文讨论了追究母公司责任的规范性理由,并简要概述了这样做的替代方法。然后,论文转向了最近的两项裁决,这两项裁决开启了提起直接父母过失索赔的能力,这应该成为其他法院的榜样,特别是那些在普通法侵权原则下运作的法院。在英国,在Chandler v. Cape一案中,法院认为母公司对其子公司的雇员负有直接的注意义务,而这一义务被违反了。在加拿大,Choc诉Hudbay法院认定,母公司可能对危地马拉土著社区负有直接注意义务,该社区的权利受到加拿大母公司子公司的侵犯。最后,将审议这些决定是否符合国际人权法原则。
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引用次数: 16
The Laws of War and Public Opinion: An Experimental Study 战争法则与舆论:一项实验研究
Pub Date : 2015-01-16 DOI: 10.2139/ssrn.2439428
Adam Chilton
Research examining whether the laws of war change state behavior has produced conflicting results, and limitations of observational studies have stalled progress on the topic. To bring new evidence to the debate, I have conducted a survey experiment that directly tests whether one mechanism hypothesized to drive compliance with international law - changes in public opinion - creates pressure to comply with the laws of war. The results provide qualified support to research suggesting that democracies may comply with the laws of war when there is the expectation of reciprocity.
关于战争法是否会改变国家行为的研究产生了相互矛盾的结果,而观察性研究的局限性也阻碍了这一主题的进展。为了给这场辩论带来新的证据,我进行了一项调查实验,直接测试一种被假设为推动遵守国际法的机制——公众舆论的变化——是否会产生遵守战争法的压力。这些结果为以下研究提供了有力的支持:当存在互惠预期时,民主国家可能会遵守战争法。
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引用次数: 97
Role of Multilateral Institutes in Sustainable Development 多边机构在可持续发展中的作用
Pub Date : 2015-01-02 DOI: 10.2139/ssrn.2544547
Kiran Ranganath Kale
Sustainable development is an organizing principle for human life on a finite planet. It opposes a desirable future state for human societies in which living conditions and resource-use meet human needs without undarning the sustainability of natural system and the environment. So those future generations may also have their needs. In this way the word sustainable has been used in too many situations today and ecological sustainable growth, sustainable economics sustainable societies, sustainable agriculture. Everything is sustainable thus the social dimension of sustainable development has most often been ignored when developing future scenario or at best been dealt with as a framework condition for successful environment this would be removed by active participation of multilateral institute in sustainable development. And due to their active participation there is possibility of improvements in market economy, environment and social criteria will be developed. In this way it is not the purpose of this paper to undertake a systematic review of the economic or geographical consequences of moving from unsustainable to sustainable development mode. While some sectors of the economy might be reformed with little difficulty, in others the cost may considerable. This not a matter that the private economic markets alone can resolve although proper national, sectorial and regional polices would certainly helped the private sector to better management of the resource base would certainly help the lead the private sector to better management of the resource base. It is the public sector with its vital role in the policy formation and its services, that is chief player in redirecting growth to more sustainable forms. The private sector, including the increasingly recognized and active NGOs, is the pivotal co-participant of change in most increasingly recognized and active NGOs and some public spirited lawyers is the pivotal co-participant of change in most societies. The progress towards sustainable development also requires the active participation of the multilateral and bilateral finance and technical assistance institutions -- the World Bank, the regional Development bank (which include the Inter-American Bank Development Bank, the Asian Development Bank, and the United System of Agencies).
在这个有限的星球上,可持续发展是人类生活的组织原则。它反对人类社会的理想未来状态,在这种状态下,生活条件和资源利用满足了人类的需要,而又不损害自然系统和环境的可持续性。因此,这些后代可能也有他们的需求。这样,“可持续”这个词在今天的很多情况下都被使用了生态可持续增长,可持续经济可持续社会,可持续农业。一切都是可持续的,因此可持续发展的社会层面在制定未来设想时往往被忽视,或者充其量被当作成功环境的一个框架条件来处理,这将通过多边机构积极参与可持续发展而消除。由于他们的积极参与,有可能改善市场经济,环境和社会标准将得到发展。因此,本文的目的并不是要系统地审查从不可持续的发展模式转向可持续的发展模式所造成的经济或地理后果。虽然某些经济部门的改革可能不会有什么困难,但在其他部门,改革的代价可能相当大。这不是一个仅靠私营经济市场就能解决的问题,尽管适当的国家、部门和区域政策肯定会帮助私营部门更好地管理资源基础,肯定会帮助领导私营部门更好地管理资源基础。公共部门在政策制定和服务方面发挥着至关重要的作用,在将增长转向更可持续的形式方面发挥着主要作用。私营部门,包括越来越被认可和活跃的非政府组织,是大多数越来越被认可和活跃的非政府组织变革的关键共同参与者,而一些热心公益的律师是大多数社会变革的关键共同参与者。实现可持续发展的进程还需要多边和双边金融和技术援助机构——世界银行、区域开发银行(包括美洲开发银行、亚洲开发银行和联合国机构系统)——的积极参与。
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引用次数: 0
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