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Privacy, Property, and Third-Party Esteem in Arendt’s Constitutionalism 阿伦特宪政思想中的隐私、财产与第三人尊严
IF 1.2 Q1 LAW Pub Date : 2023-08-23 DOI: 10.3390/laws12050075
E. Mcgroarty, BRENDAN IGNATIUS Mcgroarty
In On Revolution, Hannah Arendt makes the case that a constitution must account for the need of the human person to participate in the building of society, both as a primordial and continual action of founding. This paper draws on Arendt’s insight on the relationship between privacy and the notion of property, both of which the constitution must protect, as it is dependent on those notions. Property in its fullest sense is the means by which a person interacts with others and establishes a society. Particularly important for this notion of engagement are the concepts of shame and the love of goodness. The actor emerges from the private sphere to interact with others on the strength of the secrecy and confidentiality of her intimate, private relationships. Property is therefore essential to human flourishing and happiness. Following this, the activity of constructing the public forum on the basis of the private is an important feature of Arendt’s constitutionalism. Human Action showers third-party esteem on the actor’s family and friends, binding them to the constitutional structure and strengthening familial relationships and social cohesion.
在《论革命》一书中,汉娜·阿伦特提出,宪法必须考虑到人参与社会建设的需要,这既是一种原始的,也是一种持续的建国行动。本文借鉴了阿伦特对隐私和财产概念之间关系的见解,这两者都是宪法必须保护的,因为它依赖于这些概念。财产在其最完整的意义上是一个人与其他人相互作用并建立社会的手段。对于这种参与的概念来说,特别重要的是羞耻和对善的爱的概念。演员从私人领域中脱颖而出,与他人互动,依靠的是她亲密的私人关系的秘密性和保密性。因此,财产对人类的繁荣和幸福是必不可少的。在此之后,在私人论坛的基础上建构公共论坛的活动是阿伦特立宪主义的一个重要特征。《人的行动》给演员的家人和朋友带来了第三方的尊重,将他们与宪法结构联系在一起,加强了家庭关系和社会凝聚力。
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引用次数: 0
International Child Abduction in South Africa 南非的国际儿童绑架案
IF 1.2 Q1 LAW Pub Date : 2023-08-21 DOI: 10.3390/laws12040074
Zenobia Du Toit, Bia Van Heerden
This chapter evaluates how South Africa approaches and applies certain aspects of the Hague Convention on the Civil Aspects of International Child Abduction, the challenges it faces, and how it submits proposals to improve its application. The SA courts are the upper guardians of children in terms of the common law and uphold the best interests of the child as a paramount principle. The Chief Family Advocate (“FA”) has been appointed as the Central Authority (“CA”) and falls under the Department of Justice and Correctional Services. The Chief Liaison Judge is based in the Appeal Court and has appointed Liaison Judges in the Provincial Divisions. How SA approaches international child abduction, and applies the HC, is explored. SA has a rich jurisprudence around the practical application of the HC. The procedure in these matters; the general rules and exceptions; the voice, representation and participation of the child; and the approach to children’s best interests and measures to protect their interests are evaluated. SA’s approach in regard to HC matters could be improved. How the challenges of an independent best-interests factor, outcomes veering away from the return principles, the FA’s compromised role as the CA, and the delays in outcomes prejudice the HC’s philosophy and the application thereof are considered. Recommendations are made for the acceleration of proceedings, more certainty in the consideration of Article 13 defences incorporating protective measures in return orders, further clarity from courts or the implementation of practice directives in these matters, the use of mediation, and further guidelines/directives to be provided. Given the importance of the HC in international child abduction matters, hopefully the aims and purposes of the HC can be fully realised in SA’s future.
本章评估了南非如何处理和适用《国际拐骗儿童行为的民事方面海牙公约》的某些方面,南非面临的挑战,以及南非如何提出改进其适用的建议。根据普通法,SA法院是儿童的最高监护人,并将儿童的最大利益作为最高原则。首席家庭律师(“FA”)已被任命为中央管理局(“CA”),隶属于司法和惩教部。首席联络法官设在上诉法院,并任命了各省的联络法官。探讨SA如何处理国际儿童绑架问题,并应用HC。SA在HC的实际应用方面有丰富的判例。这些事项的程序;一般规则和例外情况;儿童的发言权、代表权和参与权;评估了实现儿童最大利益的方法和保护儿童利益的措施。SA在HC事务方面的做法可以改进。如何考虑独立的最大利益因素的挑战、偏离回报原则的结果、英足总作为CA的妥协角色以及结果的延迟对HC的哲学及其应用造成的影响。建议加快诉讼程序,在审议将保护措施纳入返还令的第13条抗辩时更加确定,法院进一步澄清或执行这些事项的实践指令,使用调解,并提供进一步的指导方针/指令。鉴于HC在国际儿童绑架事件中的重要性,希望HC的目标和宗旨能够在SA的未来得到充分实现。
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引用次数: 0
An Examination of the Role of Perpetrator’s Relationship to Overall School Shooting Casualties 行凶者与校园枪击事件整体伤亡关系之角色检视
IF 1.2 Q1 LAW Pub Date : 2023-08-18 DOI: 10.3390/laws12040073
Justin J. Joseph, Christoper W. Purser
High-profile school shootings in recent years have fueled fear and uncertainty among stakeholders (e.g., parents, teachers, and students) and the public debate on gun control legislation nationwide. These fears are reflected in the public discourse and the academic community, which focuses their investigation on rampage school shootings. To address this gap in the empirical literature, the current study’s goal is twofold: (1) to contribute to the descriptive understanding of school shooting characteristics; and (2) address the gaps in the extant literature through examining the perpetrators relationship with the school on the total number of victims during a school shooting incident. Secondary data analysis was performed on the K-12 School Shooting database (K-12 SSDB). A negative binomial and descriptive analysis were conducted on the K-12 School Shooting database, established by the Naval Postgraduate School’s Center for Homeland Defense and Security (CHDS) in 2018, which has been recently updated to reflect recent incidents. The findings and policy implications of the findings are discussed in detail in the manuscript.
近年来,备受瞩目的校园枪击事件加剧了利益相关者(如家长、教师和学生)的恐惧和不确定性,并引发了全国范围内关于枪支管制立法的公开辩论。这些担忧反映在公共话语和学术界,他们的调查重点是校园枪击事件。为了解决实证文献中的这一空白,本研究的目标有两个:(1)有助于对校园枪击特征的描述性理解;(2)通过研究校园枪击事件中受害者总数的肇事者与学校的关系,解决现有文献中的空白。对K-12学校射击数据库(K-12 SSDB)进行二次数据分析。对海军研究生院国土防御与安全中心(CHDS)于2018年建立的K-12学校枪击数据库进行了负二项和描述性分析,该数据库最近进行了更新,以反映最近发生的事件。研究结果和研究结果的政策含义在手稿中进行了详细讨论。
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引用次数: 0
The Gap between the International Criminal Court and Victims: Criminal Trial Reparations as a Case Study 国际刑事法院与受害者之间的差距:刑事审判赔偿个案研究
IF 1.2 Q1 LAW Pub Date : 2023-08-16 DOI: 10.3390/laws12040072
Yidou Yang
Although victims have the right to limited participation in trials and to seek reparations after sentencing, the legal structure of the International Criminal Court (ICC) prioritizes retributive justice over restorative justice and punishment over reparations. Thus, currently, although the perpetrators can be tried through the ICC, it is still difficult to obtain reasonable compensation for the damages suffered by the victims. On the one hand, the ICC’s reparation system may be restricted by the identity of the victim, ICC internal factors, and so on. The current structure of the ICC compensation system allows for hierarchical relationships between victims, while at the same time, there is tension between individual and collective types of compensation. These factors have led to a disconnect and gap between the protection of rights at the theoretical level and actual reparation. This dichotomy between the theoretical protection of the rights of victims and the real protection of victims in practice exists in the ICC. Victims are isolated from the field of vision due to potential repercussions. The idealistic illusion of justice is completed when the ICC stands on the stage and accepts the audience’s praise. However, for compensation in criminal courts, people are paying increasing attention to the legal process and content. In practice, the proportion of victims of international crimes is not low, and in some cases, victims are widespread. It can be seen that criminal compensation for victims is an issue that spans a vast range of people and regions. Nonetheless, there are still research gaps regarding reparation and other ideas of justice according to the ICC, how the ICC provides multifaceted safeguards for victims, and the limitations and influence of the mechanism of the ICC on the compensation of victims. Considering the above problems, this paper aims to analyze the International Criminal Court indemnity cases. This paper wishes to analyze reparations and other ideas of justice under the ICC, examining the approach of the ICC toward compensation for victims, where the ICC is heading regarding reparations for victims, how the reparations system works, and the advantages and disadvantages of the reparations system, as well as what are the potential problems of ICC related to reparations. What guarantees do the ICC’s mechanisms provide for victims to be able to receive reparations? How does the structure of the ICC reparations system conflict with victims’ reparations in practical terms? What are the potential obstacles and gaps between criminal trial reparations and victims? The first chapter wants to analyze the early Nuremberg tribunal, Tokyo tribunal, ICTY, and the ICTR by analyzing whether international criminal justice under these military tribunals was restorative justice or reparation justice and interspersed with analyses of reparation to victims under these tribunals. Then, it analyses it further about justice and reparation of the I
虽然受害者有权有限地参与审判并在判刑后寻求赔偿,但国际刑事法院的法律结构优先考虑报复性司法而不是恢复性司法,优先考虑惩罚而不是赔偿。因此,目前虽然可以通过国际刑事法院对肇事者进行审判,但仍然难以对受害者所遭受的损害获得合理的赔偿。一方面,国际刑事法院的赔偿制度可能受到受害人身份、国际刑事法院内部因素等方面的制约。目前国际刑事法院赔偿制度的结构允许受害者之间的等级关系,同时,个人赔偿和集体赔偿之间存在紧张关系。这些因素导致了理论层面的权利保护与实际赔偿之间的脱节和差距。这种对受害者权利的理论保护与对受害者权利的实际保护之间的二分法存在于国际刑事法院。由于潜在的影响,受害者被隔离在视野之外。当ICC站在舞台上接受观众的赞美时,正义的理想主义幻想就完成了。然而,对于刑事法院的赔偿,人们越来越关注其法律程序和内容。在实践中,国际罪行受害者的比例并不低,在某些情况下,受害者是广泛的。由此可见,受害人的刑事赔偿是一个涉及广泛人群和地区的问题。然而,在国际刑事法院的赔偿和其他司法理念、国际刑事法院如何为受害者提供多方面保障以及国际刑事法院对受害者赔偿机制的局限性和影响等方面,仍存在研究空白。鉴于上述问题,本文旨在对国际刑事法院赔偿案件进行分析。本文希望分析国际刑事法院下的赔偿和其他司法理念,研究国际刑事法院对受害者赔偿的做法,国际刑事法院在受害者赔偿方面的发展方向,赔偿制度是如何运作的,赔偿制度的利弊,以及国际刑事法院在赔偿方面的潜在问题。国际刑事法院的机制为受害者能够获得赔偿提供了哪些保证?国际刑事法院赔偿制度的结构在实践中与受害者赔偿有何冲突?刑事审判赔偿与受害者之间的潜在障碍和差距是什么?第一章对早期的纽伦堡法庭、东京法庭、前南问题国际法庭和卢旺达问题国际法庭进行分析,分析这些军事法庭下的国际刑事司法是恢复性司法还是赔偿司法,并穿插分析这些法庭下对受害者的赔偿。在此基础上,进一步分析了国际刑事法院的司法与赔偿,并对受害人的赔偿以及国际刑事法院赔偿理念的演变进行了探讨。运用这些观点分析了国际刑事法院审判下的赔偿与其他不同的司法理念。文章第二章通过对“参与审判赔偿”、“参与审判的限制”、“对被害人的安全保护”等问题的分析,展示了目前国际刑事法院制度在被害人赔偿问题上的保护与进步,这是因为被害人参与审判会给被害人赔偿问题带来很大的帮助。本文分析了参与审判赔偿的意义和不足,因为“参与审判”与赔偿是相互联系、相辅相成的,被害人的参与将给赔偿问题带来很大的帮助,因此对赔偿问题的解决是必要的和有意义的。本文分析了“保护受害者的财务状况:一种可能的替代赔偿方法”一节,因为在某种程度上,它可以被视为国际刑事法院赔偿的一种替代方法。文章的第三章希望通过对“小额赔偿”、“法院对受害人赔偿权利的沉默”、“国际刑事法院的司法行政模式任意性”等问题的分析,来论证和分析国际刑事法院赔偿制度的结构与受害人赔偿在现实中的冲突。由于法院对受害者赔偿权利的沉默和国际刑事法院的司法行政模式仍然是可选择的,两者都直接影响到赔偿问题。 第四章主要分析国际刑事法院对受害者赔偿的一些潜在负面影响,具体包括“受害者的社会死亡”、“对受害者与法院之间“表达”的限制”、“国际刑事法院是否希望改善其对受害者的态度?”具体分析和论证其对受害者赔偿的潜在负面影响。在此基础上,本文分析了刑事审判赔偿与被害人之间的差距,以确定两者之间存在哪些负面影响。
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引用次数: 0
Law and Children’s Decision Making: What Is the Rights Approach? 法律与儿童决策:什么是权利方法?
IF 1.2 Q1 LAW Pub Date : 2023-08-15 DOI: 10.3390/laws12040071
J. Tobin
This paper outlines three broad models that have informed the relationship between the law and children’s involvement in decision making—the property/instrumentalist approach, the welfare approach, and a rights-based approach. It identifies and critiques contemporary legal practices that regulate children’s decision making against the standards required under a rights-based approach. The focus is on three contexts—(i) statutory bright line minimum age rules; (ii) presumptive age limits, and (iii) individual decision making involving children where there is often an interplay between the principle of Gillick competency and the parens patriae jurisdiction of a court. The key arguments advanced are that a rights-based approach tolerates minimum age rules and presumptive age limits under certain conditions. A rights-based approach also aligns closely with the principle of Gillick competency but offers a deeper and more nuanced insight into how to enable and support decision making with children across childhood. Finally, a rights-based approach also offers novel insights into how the parens patriae jurisdiction of common law courts, with its historical emphasis on the protection of children, could be developed to better protect children’s rights and decisional autonomy.
本文概述了三种广泛的模式,它们为法律和儿童参与决策之间的关系提供了信息——财产/工具主义方法、福利方法和基于权利的方法。它确定并批评了当代法律实践,这些实践规范了儿童的决策,违反了基于权利的方法所要求的标准。重点放在三个方面——(i)法定的最低年龄规则;(ii)推定年龄限制,以及(iii)涉及儿童的个人决策,其中Gillick能力原则和法院的父母管辖权之间经常存在相互作用。提出的关键论点是,基于权利的方法在某些条件下容忍最低年龄规则和推定年龄限制。基于权利的方法也与Gillick能力原则密切一致,但对如何在整个童年时期支持和支持儿童的决策提供了更深入、更细致的见解。最后,一种基于权利的方法也为如何发展以保护儿童为历史重点的普通法法院的父系管辖权,以更好地保护儿童的权利和决策自主权提供了新的见解。
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引用次数: 1
Concurrent Convention and Non-Convention Cases: Child Abduction in England and Wales 公约和非公约并行案件:英格兰和威尔士的儿童拐骗案
IF 1.2 Q1 LAW Pub Date : 2023-08-07 DOI: 10.3390/laws12040070
R. George, J. Netto
The courts of England and Wales permit applicants in 1980 Hague Convention child abduction proceedings also to bring concurrent applications for the return of the child to their state of habitual residence based on a summary welfare assessment, which can be issued and heard alongside the Hague application. Given the different nature of these two applications, having them heard concurrently raises a number of challenges for the parties in terms of the evidence required and for the court in terms of the analytical process being undertaken. This article explores the nature of the two applications, the reasons why they might be brought concurrently, and the challenges that can arise in such cases.
英格兰和威尔士法院允许1980年《海牙公约》儿童绑架诉讼的申请人根据简易福利评估同时提出将儿童送回其惯常居住地的申请,该评估可以与海牙申请一起发布和审理。鉴于这两项申请的性质不同,同时审理这些申请对当事方提出了一些所需证据方面的挑战,对法院提出了一些分析过程方面的挑战。本文探讨了这两种应用程序的性质,它们可能同时出现的原因,以及在这种情况下可能出现的挑战。
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引用次数: 0
Hearing Children’s Objections in Hague Child Abduction Proceedings in England and Wales, Australia, and the USA 在英国、威尔士、澳大利亚和美国的海牙儿童诱拐诉讼中听取儿童的异议
IF 1.2 Q1 LAW Pub Date : 2023-08-05 DOI: 10.3390/laws12040069
Michelle Fernando, Jess Mant
In this article we compare how children’s objections to being returned to their country of origin are treated in Hague child abduction matters in three different international jurisdictions: England and Wales, Australia, and the United States. We examine the relevance of children’s views for the purposes of the ‘gateway’ stage of the relevant exception to mandatory return, and how children’s objections have been approached in legislation, case law, and scholarly commentary. We critique each jurisdiction’s approach against the objectives of the Hague Convention and the Convention on the Rights of the Child. We discuss how aspects such as the methods by which children are heard can make a difference to experiences for children and make recommendations to promote greater certainty and consistency in how children’s objections are heard and considered across jurisdictions.
在本文中,我们比较了三个不同的国际司法管辖区(英格兰和威尔士、澳大利亚和美国)在海牙儿童诱拐案件中如何处理儿童对返回原籍国的反对。我们研究了儿童观点在强制归还相关例外的“门户”阶段的相关性,以及儿童的反对意见在立法、判例法和学术评论中是如何处理的。我们批评每个司法管辖区违反《海牙公约》和《儿童权利公约》目标的做法。我们讨论了听取儿童意见的方法等方面如何对儿童的经历产生影响,并提出建议,以促进跨司法管辖区听取和考虑儿童反对意见的方式的更大确定性和一致性。
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引用次数: 0
The Application of a Human Rights Approach toward Crimes of Corruption: Analyzing Anti-Corruption Regulations and Judicial Decisions 人权观在腐败犯罪中的应用:反腐败法规与司法判决分析
IF 1.2 Q1 LAW Pub Date : 2023-08-02 DOI: 10.3390/laws12040068
Mahrus Ali, Andi Muliyono, Syarif Nurhidayat
This study aimed to examine the connection between the crime of corruption and human rights violations. Indonesia’s corruption-eradication regulations have increased the possibility of handling human rights-based corruption cases. This study employed doctrinal legal research that mainly relied on anti-corruption legislation and corruption cases in judicial decisions. The results showed that the law states that corruption infringes on people’s economic, social, and cultural rights. We employed a plausible scenario to provide practical explanations of the relationship between the two variables. The types of crimes of corruption have a direct nexus to the violation of human rights. In addition, there was inadequate proof of the connection between corruption and human rights violations in court rulings. Specifically, a few court decisions relate corruption to human rights violations. Judges consider the relationship more thoroughly when making legal considerations and when it is not applied as an aggravated circumstance, resulting in significantly milder prison sentences. The findings imply the necessity of mainstreaming corruption as a human rights violation through comprehensive and massive studies. Furthermore, legal enforcement institutions need to issue guidelines and provide continuous training on handling human rights-based corruption cases to the police, public prosecutors, and judges.
本研究旨在探讨腐败罪与侵犯人权行为之间的联系。印度尼西亚的反腐条例增加了处理基于人权的腐败案件的可能性。本研究采用了理论法律研究,主要依靠反腐败立法和司法裁决中的腐败案件。结果表明,法律规定腐败侵犯人民的经济、社会和文化权利。我们采用了一个看似合理的场景来对这两个变量之间的关系提供实际的解释。腐败犯罪的类型与侵犯人权有直接关系。此外,法院裁决没有充分证明腐败与侵犯人权之间的联系。具体而言,一些法院判决将腐败与侵犯人权行为联系起来。法官在进行法律考虑时,以及在不将其作为加重情节适用时,会更彻底地考虑这种关系,从而大大减轻刑期。调查结果表明,有必要通过全面和大规模的研究将腐败作为侵犯人权行为纳入主流。此外,执法机构需要发布指导方针,并向警察、检察官和法官提供处理基于人权的腐败案件的持续培训。
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引用次数: 1
Legal Framework for Social Infrastructure for Social Integration of the Roma and Their Preferences: Case of Slovenia 促进罗姆人社会融合及其偏好的社会基础设施法律框架:斯洛文尼亚案例
IF 1.2 Q1 LAW Pub Date : 2023-07-31 DOI: 10.3390/laws12040067
Andrej Sluga, D. Bogataj, Eneja Drobež
The EU and its Member States share responsibility for improving the living conditions and integration of the Roma into society. When developing systemic solutions to address the challenges of the Roma population, the first thing to do is to provide them with a suitable living environment. A suitable living environment for vulnerable social groups includes social housing adapted to their needs and preferences as part of the social infrastructure. In the first, theoretical part, this paper explores the existing international, EU, and Slovenian legal framework for addressing the housing needs of the Roma community. In the second, empirical part, the preferences of the members of the Roma Community regarding the type and architecture of housing, and their financial capacity regarding the type and location of accommodation are examined through a survey that was conducted in the Roma settlement “Kerinov Grm”. The research paper gives answers to the following research questions: (1) what are the preferences of the inhabitants of Roma settlements regarding the type of housing and architecture? (2) how to provide adequate housing for members of the Roma community? and (3) do the Roma take advantage of the available free non-profit housing, and if not, why? The survey shows a very low level of satisfaction with living in Roma settlements, which, in combination with the growing population, limited possibilities for settlement expansion, and specific housing preferences, poses a unique challenge to the state and local communities.
欧盟及其成员国在改善罗姆人的生活条件和使罗姆人融入社会方面负有共同责任。在制定系统性解决方案以应对罗姆人面临的挑战时,首先要做的是为他们提供合适的生活环境。弱势社会群体的适当生活环境包括适应其需要和偏好的社会住房,作为社会基础设施的一部分。在第一部分理论部分,本文探讨了解决罗姆人社区住房需求的现有国际、欧盟和斯洛文尼亚法律框架。在第二个实证部分,通过在“Kerinov Grm”罗姆人定居点进行的一项调查,考察了罗姆人社区成员对住房类型和建筑的偏好,以及他们在住房类型和地点方面的经济能力。研究论文给出了以下研究问题的答案:(1)罗姆人定居点居民对住房和建筑类型的偏好是什么?(2)如何为罗姆人社区成员提供适当的住房?(3)罗姆人是否利用了免费的非营利性住房,如果没有,为什么?调查显示,居住在罗姆人定居点的满意度非常低,再加上人口增长、定居点扩张的可能性有限以及特定的住房偏好,这对州和地方社区构成了独特的挑战。
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引用次数: 0
Rights-Based Approaches to Environmental Protection and Pandemic Prevention 基于权利的环境保护和流行病预防方法
IF 1.2 Q1 LAW Pub Date : 2023-07-31 DOI: 10.3390/laws12040066
J. Rudall
This article reflects on the proposed pandemic treaty negotiations, the content of the recently published Zero Draft and its prospects for success in preventing future pandemics from emerging at all. It argues that, as presently conceived, the proposed instrument does little to address environmental damage as the primary driver of zoonotic spillover, nor does it make sufficient provision for the implementation and enforcement of legal obligations. In particular, the piece suggests that human rights and rights of nature can and should feature more prominently in efforts to fully realize the One Health agenda and strengthen environmental governance with a view to mitigating the risk of future pandemics. Experience from rights-based approaches in other contexts suggests that they offer a promising conduit for achieving genuine policy reform and accountability regarding environmental degradation. Indeed, human rights and rights of nature can play an important role in mitigating ecological destruction, biodiversity loss and, in turn, preventing disease transmission from the natural world.
本文回顾了拟议的大流行病条约谈判、最近公布的零草案的内容及其在防止未来大流行病出现方面取得成功的前景。报告认为,按照目前的设想,拟议的文书几乎没有解决作为人畜共患病溢出的主要驱动因素的环境破坏问题,也没有为实施和执行法律义务作出充分的规定。这篇文章特别指出,人权和自然权利能够而且应该在充分实现“同一个健康”议程和加强环境治理以减轻未来大流行病风险的努力中占有更突出的地位。在其他情况下基于权利的办法的经验表明,它们为实现真正的环境退化政策改革和问责制提供了一个有希望的渠道。事实上,人权和自然权利可以在减轻生态破坏、生物多样性丧失以及反过来防止疾病从自然界传播方面发挥重要作用。
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引用次数: 0
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