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Violations of the Right to Property in Libya and the Promise of Transitional Justice 利比亚对财产权的侵犯与过渡时期司法的承诺
Q3 Social Sciences Pub Date : 2022-04-01 DOI: 10.1163/22131035-11010001
Alexander Fowler, Mohamed Radan
Libya’s Law No. 4 of 1978, which authorised the confiscation of real estate from private owners and its redistribution to other needy citizens, reflected elements of a long debate at the international level about the human right to property. This article examines Law No. 4 against Libya’s obligations under international law and finds that it led to violations of the right to property for which redress still remains outstanding today. Noting also the extensive violations of property rights and displacement in Libya due to civil conflict since 2011, as well as previous ineffective efforts at transitional justice, the article argues for a new concerted attempt at a comprehensive property claims mechanism applying the Pinheiro Principles and complementary international instruments within a broad-ranging transitional justice process. More broadly, Libya’s experience lends weight to calls for encapsulating the right to real property in multilateral treaty form.
利比亚1978年第4号法律授权没收私人业主的房地产,并将其重新分配给其他有需要的公民,反映了国际上关于财产权的长期辩论的内容。本条审查了违反利比亚国际法义务的第4号法律,发现该法律导致了侵犯财产权的行为,至今仍未得到补救。又注意到自2011年以来,利比亚因国内冲突而发生的大规模侵犯财产权和流离失所事件,以及以往在过渡时期司法方面的无效努力,文章主张在广泛的过渡司法程序中,采用皮涅罗原则和补充性国际文书,建立一个全面的财产索赔机制。更广泛地说,利比亚的经验支持将不动产权利纳入多边条约形式的呼吁。
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引用次数: 0
The European Court of Human Rights’ Approach to Causes of Iranians’ Asylum Applications in the light of Non- Refoulement Principle 欧洲人权法院在不驱回原则下对伊朗人庇护申请原因的处理
Q3 Social Sciences Pub Date : 2022-03-30 DOI: 10.1163/22131035-11010003
Hojjat Salimi Turkamani
One of the most important principles of asylum law is the principle of non- refoulement whereby a refugee should not be returned to his/her home country where his /her life or liberty would be at risk. Although this principle is not explicitly recognised in the European Convention on Human Rights (echr), the European Court of Human Rights (ECtHR), as oversight judicial mechanism of the convention, in its jurisprudence, with its extensive interpretation of Article 3 of the Convention, has made refugees subject to human rights protections. Some Iranians, knowing the importance of this article and the role of the Court in ensuring its observance, seek refuge in European states and eventually recourse to the Court alleging a breach of Article 3 obligations if extradited by a European state. The main question of this article is what is the court’s approach to the reasons for the Iranians’ asylum applications? Case by case study shows that religious, sexual and political reasons are the main reasons for Iranians seeking asylum and the Court has taken a low threshold for religious causes and taken an easy approach, while it has taken a strict approach to sexual and political causes with high thresholds.
庇护法最重要的原则之一是不驱回原则,即不应将难民送回他/她的生命或自由有危险的原籍国。虽然《欧洲人权公约》没有明确承认这一原则,但欧洲人权法院作为《公约》的监督司法机制,在其判例中对《公约》第3条进行了广泛的解释,使难民受到人权保护。一些伊朗人知道该条的重要性和法院在确保遵守该条方面的作用,因此在欧洲国家寻求庇护,并最终在被欧洲国家引渡时向法院提出违反第3条义务的指控。本文的主要问题是,法院如何处理伊朗人申请庇护的原因?逐个个案研究表明,宗教、性和政治原因是伊朗人寻求庇护的主要原因,法院对宗教原因采取较低的门槛和简单的办法,而对门槛较高的性和政治原因采取严格的办法。
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引用次数: 0
Tkhelidze v. Georgia: Domestic Abuse and the European Court of Human Rights Tkhelidze诉格鲁吉亚:家庭虐待和欧洲人权法院
Q3 Social Sciences Pub Date : 2022-03-24 DOI: 10.1163/22131035-11010002
R. McQuigg
On 8 July 2021, in Tkhelidze v. Georgia, the European Court of Human Rights (ECtHR) added to its growing body of jurisprudence on domestic abuse. This case is noteworthy as being the first decision of the ECtHR on this issue since the Grand Chamber issued its judgment in Kurt v. Austria, the only domestic abuse case to date which has been heard by the Grand Chamber. In its judgment, the Grand Chamber set out a number of general principles to be applied in such cases, and these principles were subsequently applied in Tkhelidze. The decision in Tkhelidze also highlighted that a procedural breach of article 2 can be established by a lack of an effective investigation into the failings of state authorities to respond sufficiently to domestic abuse.
2021年7月8日,在Tkhelidze诉格鲁吉亚一案中,欧洲人权法院(ECtHR)为其日益增多的家庭虐待判例增添了新的内容。值得注意的是,此案是欧洲人权法院自大分庭对库尔特诉奥地利案作出判决以来就这一问题作出的第一项裁决,该案是迄今为止大分庭审理的唯一一宗家庭虐待案件。大分庭在其判决书中规定了在这类案件中适用的若干一般原则,这些原则后来在Tkhelidze案中适用。Tkhelidze案的决定还强调指出,如果对国家当局未能对家庭虐待作出充分反应进行有效调查,则可以确定程序性违反第2条。
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引用次数: 0
Contents 内容
Q3 Social Sciences Pub Date : 2021-12-13 DOI: 10.1163/22131035-10020007
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引用次数: 0
Human Trafficking in the Context of Global Migration: Modern Manifestation of De Facto Slavery, Servitude and Forced or Compulsory Labour 全球移民背景下的人口贩运:事实上的奴隶制、奴役和强迫或强制劳动的现代表现
Q3 Social Sciences Pub Date : 2021-12-13 DOI: 10.1163/22131035-10020006
Manisuli Ssenyonjo
In recent years there has been a significant increase in trafficking in human beings as a global phenomenon. COVID-19 pandemic created conditions that increased the number of persons who were vulnerable to human trafficking and disrupted current and planned anti-trafficking initiatives. Human trafficking treats human beings as commodities to be bought and sold and put to forced labour often for lower or no payment. This constitutes a modern form of de facto slavery, servitude and forced or compulsory labour. This article provides an overview of international law on human trafficking and considers response to human trafficking in Africa. It further considers whether diplomats can be held accountable for exploitation of migrant domestic workers in receiving States. It further examines whether diplomatic immunity can be used as a bar to the exercise of jurisdiction by domestic courts and tribunals of a state which hosts the diplomat (the ‘receiving state’) in cases of employment of a trafficked person by a former or serving diplomat. It ends by considering whether trafficked persons should be held to bear individual criminal responsibility for crimes they have committed (or were compelled to commit) in the course, or as a direct consequence, of having been trafficked. Such crimes may include unlawful entry into, presence or residence in another country of transit or destination, working without a work permit, sex work, and use of false identity/false passport.
近年来,作为一种全球现象,贩卖人口的现象显著增加。新冠肺炎大流行创造了条件,增加了易受人口贩运影响的人数,并扰乱了当前和计划中的反贩运举措。人口贩运将人视为买卖的商品,并将其强迫劳动,通常报酬较低或没有报酬。这构成了一种现代形式的事实上的奴役、奴役和强迫或强制劳动。本文概述了关于人口贩运的国际法,并考虑了对非洲人口贩运的对策。它还审议了外交官是否可以对接收国剥削移徙家庭佣工的行为负责。它进一步审查了在前外交官或现任外交官雇用被贩运者的案件中,外交豁免权是否可以被用作禁止外交官所在国(“接收国”)的国内法院和法庭行使管辖权的障碍。它最后审议了被贩运者是否应为其在被贩运过程中犯下(或被迫犯下)的罪行或作为被贩运的直接后果而承担个人刑事责任。此类犯罪可能包括非法进入、存在或居住在另一个过境国或目的地国、在没有工作许可证的情况下工作、性工作以及使用假身份/假护照。
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引用次数: 0
The Need for a New Paradigm in International Law to Provide International Protection 需要一种新的国际法范式来提供国际保护
Q3 Social Sciences Pub Date : 2021-11-29 DOI: 10.1163/22131035-10020002
J. Sarkin
Too little is provided, not only in international law, but also by the United Nations, for victims around the world. This article therefore argues that a new paradigm is needed. It uses the conflict in Syria since 2011, specifically focusing on how enforced disappearances and arbitrary detentions have been used, to examine these questions. It has been reported that at least 150,000 people have been affected by these practices, but the number may be as high as a million. Because the state has used these practices methodically, they amount to a widespread and systemic attack on the civilian population and, therefore, to crimes against humanity. While the Syrian regime is primarily responsible, non-state actors have also been committing these types of crimes. The article discusses the general processes that have been set up to deal with the conflict in international law and by the United Nations in places like Syria. It finds that very little has been done to end the conflict in Syria, other than mediation. The article then reviews the international processes dealing with disappearances and detentions in Syria that families can report to, and the role these institutions have played so far. It again finds that very little has been achieved. The article also examines other countries where processes have been set up to deal with missing and disappeared persons, such as Armenia, Azerbaijan, Bosnia-Herzegovina, Cyprus, and Georgia, to learn the lessons from these past processes for the Syrian situation. It is argued that, generally when mass atrocities occur, the UN on rare occasions will create an accountability process, but never creates a process that focuses on the needs of victims: finding their loved ones, getting them released from custody if they are alive, or finding the truth about what happened to them and where their remains are. The article therefore argues that a new mechanism is needed for Syria (but also for other places) to get people released, and to find information on others whose whereabouts are unknown due to the conflict and/or the mass human rights abuses. It contends that the mechanism could be set up by the UN, and if not, by a regional actor such as the European Union, or by several states. It is reasoned that the mechanism ought to have a Board made up of a representative each from the International Committee of the Red Cross (ICRC), the International Commission on Missing Persons (ICMP), the UN Working Group on Enforced or Involuntary Disappearances (WGEID), the UN Working Group on Arbitrary Detentions (WGAD) and a Syrian organisation, elected each year.
不仅国际法,而且联合国为世界各地的受害者提供的援助也太少。因此,本文认为需要一种新的范式。它利用2011年以来叙利亚的冲突,特别关注强迫失踪和任意拘留是如何被利用的,来研究这些问题。据报道,至少有15万人受到这些做法的影响,但这个数字可能高达100万。由于国家有条不紊地使用这些做法,它们相当于对平民人口的广泛和系统性攻击,因此构成了反人类罪。虽然叙利亚政权负有主要责任,但非国家行为者也犯下了这类罪行。这篇文章讨论了国际法和联合国在叙利亚等地为处理冲突而设立的一般程序。它发现,除了调解之外,在结束叙利亚冲突方面几乎没有采取任何行动。然后,这篇文章回顾了处理叙利亚失踪和拘留问题的国际程序,家属可以向这些程序报告,以及这些机构迄今为止所发挥的作用。它再次发现,所取得的成就微乎其微。这篇文章还考察了其他国家,如亚美尼亚、阿塞拜疆、波斯尼亚和黑塞哥维那、塞浦路斯和格鲁吉亚,这些国家已经建立了处理失踪人员和失踪人员的程序,以从叙利亚局势的这些过去程序中吸取教训。有人认为,一般来说,当大规模暴行发生时,联合国在极少数情况下会建立一个问责程序,但从来没有建立一个关注受害者需求的程序:找到他们的亲人,如果他们还活着,就让他们从拘留所获释,或者找到他们身上发生的事情和遗体所在的真相。因此,文章认为,叙利亚(以及其他地方)需要一个新的机制来释放人们,并寻找因冲突和/或大规模侵犯人权而下落不明的其他人的信息。它认为,该机制可以由联合国建立,如果不能,可以由欧盟等地区行为者或几个国家建立。有理由认为,该机制应该有一个委员会,由红十字国际委员会、国际失踪人员委员会、联合国强迫或非自愿失踪问题工作组、联合国任意拘留问题工作组和一个叙利亚组织各一名代表组成,每年选举产生。
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引用次数: 3
Compensation for Wrongful Conviction/Miscarriage of Justice in Hong Kong in Light of A v Secretary for Justice and Another [2020] hkcfi 427; hcal 176/2018 (11 March 2020) 根据A v Secretary for Justice and Another【2020】hkcfi 427,香港因错误定罪/司法不公而获得的赔偿;hcal 176/2018(2020年3月11日)
Q3 Social Sciences Pub Date : 2021-11-29 DOI: 10.1163/22131035-10020005
J. D. Mujuzi
Article 14(6) of the International Covenant on Civil and Political Rights (iccpr) provides for the right to compensation for wrongful conviction or miscarriage of justice. In Hong Kong, there are two compensation schemes for people who have been wrongfully convicted – the statutory scheme under Article 11(5) of the Bill of Rights Ordinance and the ex gratia scheme (also applicable to wrongful imprisonment). Although there are cases in which Hong Kong courts have dealt with the right to compensation under the ex gratia scheme, it was only in March 2020, in A v Secretary for Justice and Another, that the High Court, for the first time, dealt with a case on the right to compensation under Article 11(5). In this article, the author discusses the right to compensation for wrongful conviction in Hong Kong generally and in particular under Article 11(5) of the Bill of Rights Ordinance. The author deals with the case of A v Secretary for Justice and Another and illustrates how the High Court’s interpretation of Article 11(5) of the Bill of Rights Ordinance is likely to impact on the right to compensation for wrongful conviction in Hong Kong in the future.
《公民权利和政治权利国际公约》第十四条第六款规定了对错误定罪或误判获得赔偿的权利。在香港,有两项针对被错误定罪人士的赔偿计划,即《人权法案条例》第11(5)条下的法定计划和特惠计划(同样适用于错误监禁)。虽然香港法院曾处理过根据特惠金计划获得赔偿的权利的案件,但直到2020年3月,高等法院才在A诉律政司司长和另一案中首次处理了根据第11条第(5)款获得赔偿权利的案件。在这篇文章中,提交人讨论了香港因错误定罪而获得赔偿的权利,特别是根据《人权法案条例》第11(5)条。提交人处理A诉律政司司长及另一人一案,并说明高等法院对《人权法案条例》第11(5)条的解释可能会对香港日后因错误定罪而获得补偿的权利产生影响。
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引用次数: 2
General comment No. 5 (2021) on Migrants’ Rights to Liberty, Freedom from Arbitrary Detention and their Connection with other Human Rights 关于移民的自由权、免受任意拘留的自由权及其与其他人权的联系的第5号一般性意见(2021年)
Q3 Social Sciences Pub Date : 2021-11-10 DOI: 10.1163/22131035-10020003
Article 16 of the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families protects the right of migrant workers and members of their families to liberty and security of person. Under Article 17, those deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person and for their cultural identity. The Committee on Migrant Workers’ General Comment No. 5 (2021) provides authoritative interpretation of articles 16 and 17 and other articles of the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families in the context of the rising trend towards criminalization of migration and increasingly frequent use of detention of migrants. General Comment No. 5 (2021) intends to provide guidance to States on fulfilling their obligations under the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families in relation to the right to liberty and protection against arbitrary detention, and other intersecting human rights obligations and other human rights obligations arising from the intersection of those rights with other human rights. The General Comment is also aimed at providing guidance to States on the implementation of the Global Compact for Safe, Orderly and Regular Migration and to other stakeholders on implementing initiatives to promote and protect human rights and to monitor compliance thereof.
《保护所有移徙工人及其家庭成员权利国际公约》第16条保护移徙工人及其家人的人身自由和安全权利。根据第17条,被剥夺自由者应受到人道待遇,并尊重人的固有尊严和文化特性。移徙工人委员会第5号一般性意见(2021年)对《保护所有移徙工人及其家庭成员权利国际公约》第16条和第17条以及其他条款作出了权威性解释,因为对移徙的刑事定罪趋势日益上升,对移民的拘留越来越频繁。第5号一般性意见(2021)旨在为各国履行《保护所有移徙工人及其家庭成员权利国际公约》规定的与自由权和免受任意拘留保护有关的义务提供指导,以及其他相互交叉的人权义务以及这些权利与其他人权相互交叉所产生的其他人权义务。一般性意见还旨在就《安全、有序和正常移徙全球契约》的执行情况向各国提供指导,并就促进和保护人权的举措的执行情况和监督遵守情况向其他利益攸关方提供指导。
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引用次数: 0
Books Received 收到的书籍
Q3 Social Sciences Pub Date : 2021-11-10 DOI: 10.1163/22131035-10020004
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引用次数: 0
Ensuring the Rights of Women Migrant Workers – Analysis and Practice from Viet Nam 保障农民工妇女权利——越南的分析与实践
Q3 Social Sciences Pub Date : 2021-11-09 DOI: 10.1163/22131035-10020001
Thi Hong Nguyen, Phuong Dung Nguyen
Women migrant workers, who make up almost half of the migrant population in Vietnam, have been seeking employment opportunities in order to strengthen their standing both economically and socially. Nevertheless, women migrant workers are exposed to more risks and human rights violations than their male counterparts owing to their binary susceptibility as migrants and women. Compounding this, the existing international (human rights) treaties have yet to afford sufficient legal protection to them. Coming from a third world nation, Vietnamese female migrant workers face a multitude of risks arising from their status. Given the risks that they face, further actions by the Vietnamese Government to comprehensively address the problems related to the protection of migrant workers’ rights are needed. Cooperation amongst States in establishing a dialogue and reaching solutions to effectively tackle issues related to women migrant workers is essential.
女性移民工人几乎占越南移民人口的一半,她们一直在寻找就业机会,以加强自己的经济和社会地位。尽管如此,女性移民工人比男性移民工人面临更多的风险和侵犯人权的行为,因为她们作为移民和妇女具有二元敏感性。更糟糕的是,现有的国际(人权)条约尚未为它们提供足够的法律保护。来自第三世界国家的越南女性移民工人面临着身份带来的诸多风险。鉴于他们面临的风险,越南政府需要采取进一步行动,全面解决与保护移徙工人权利有关的问题。各国在建立对话和达成有效解决移徙女工问题的解决方案方面进行合作至关重要。
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引用次数: 0
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International Human Rights Law Review
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