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Protection of Climate Displaced Persons under International Law: A Case Study from Mataso Island, Vanuatu 国际法下气候流离失所者的保护:以瓦努阿图马塔索岛为例
IF 0.6 Q2 LAW Pub Date : 2018-12-01 DOI: 10.2139/ssrn.3325937
M. Wewerinke‐Singh, Tess Van Geelen
International human rights law has evolved to offer specific protection to persons who are internally displaced. This protection is becoming increasingly important as the effects of climate change are putting more populations around the world at risk of displacement. However, there is still limited empirical insight into the factors that enhance or undermine effective protection of the rights of climate displaced persons in practice. This article seeks to fill this gap, drawing on a case study of climate displacement resulting from Tropical Cyclone Pam which struck the Pacific Island nation of Vanuatu in March 2015. We note that Vanuatu has an expansive suite of laws and policies dedicated to disaster preparation, risk reduction and response, as well as climate change and disaster displacement. However, its capacity to fulfil its human rights obligations in the face of climate disasters is undermined by a lack of resources and institutional capacity. We argue that this gap must be addressed through an integrated approach to international law that emphasises human rights obligations of international cooperation and assistance along with obligations relating to climate change mitigation, adaptation and capacity building under international climate change law. Vanuatu's experience with Cyclone Pam also provides a clear case for strengthening the Warsaw International Mechanism for Loss and Damage Associated with Climate Change Impacts ('Warsaw Mechanism') in a manner that results in enhanced human rights protection for climate displaced persons.
国际人权法已经发展到向国内流离失所者提供具体保护。随着气候变化的影响使世界各地越来越多的人口面临流离失所的风险,这种保护变得越来越重要。然而,对于在实践中加强或破坏气候流离失所者权利有效保护的因素,经验见解仍然有限。本文试图填补这一空白,借鉴了2015年3月袭击太平洋岛国瓦努阿图的热带气旋帕姆造成的气候流离失所的案例研究。我们注意到,瓦努阿图有一套广泛的法律和政策,专门用于备灾、减少风险和应对,以及气候变化和灾害流离失所。然而,由于缺乏资源和机构能力,联合国在气候灾害面前履行其人权义务的能力受到了削弱。我们认为,必须通过对国际法采取综合办法来解决这一差距,这种办法强调国际合作和援助的人权义务,以及国际气候变化法规定的与减缓、适应和能力建设有关的义务。瓦努阿图在飓风帕姆方面的经验也为加强与气候变化影响有关的损失和损害的华沙国际机制(“华沙机制”)提供了一个明确的案例,从而加强对气候流离失所者的人权保护。
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引用次数: 6
Indigenous Consent: A Self-Determination Perspective 土著同意:一个自决的视角
IF 0.6 Q2 LAW Pub Date : 2018-04-01 DOI: 10.2139/SSRN.3153945
N. Yaffe
With the rise of “Free, Prior, and Informed Consent” (“FPIC”), obtaining consent from Indigenous peoples has become central to many struggles involving Indigenous communities. Yet even as consent-seeking practices become more universal, developments in the implementation of FPIC threaten to sever FPIC from its normative foundations. FPIC is a manifestation of, and pathway towards promoting, self-determined governance by Indigenous communities. Self-determination, however, is all but absent from the conception of FPIC articulated by those who often bear de facto responsibility for its implementation: companies who wish to pursue projects on Indigenous peoples’ land. Companies have taken the lead in (1) generating normative guidance regarding FPIC, (2) implementing FPIC processes, and (3) evaluating FPIC processes’ implementation. Yet FPIC as interpreted and implemented by actors on the ground has heretofore received insufficient attention. This article critically evaluates emerging FPIC practices in light of FPIC’s normative foundations. This article suggests that we are witnessing “FPIC’s normative drift”: a process whereby FPIC is adopted by companies, but denuded of its normative import. Corporate articulations of FPIC suggest companies employ a thin, liberal notion of consent, inconsistent with understanding FPIC as part of a self-determined governance process. I argue that corporate delegation of FPIC obligations has gone too far, such that independent oversight from settler State or independent authorities is needed. I explore options for the institutional and procedural form for settler State re-engagement.
随着“自由、事先和知情同意”(FPIC)的兴起,获得土著人民的同意已成为涉及土著社区的许多斗争的核心。然而,即使寻求同意的做法变得更加普遍,FPIC实施的发展也有可能使FPIC脱离其规范基础。FPIC是土著社区自主治理的一种表现和促进途径。然而,那些经常对实施FPIC负有实际责任的人——那些希望在土著人民的土地上开展项目的公司——所阐述的FPIC概念中几乎没有自决。公司已经在以下方面发挥了带头作用:(1)制定FPIC的规范性指导,(2)实施FPIC流程,以及(3)评估FPIC流程的实施。然而,由实地行动者解释和执行的FPIC迄今没有得到足够的重视。本文根据FPIC的规范基础对新兴FPIC实践进行了批判性评估。这篇文章表明,我们正在目睹“FPIC的规范漂移”:FPIC被公司采用的过程,但被剥夺了规范的重要性。企业对FPIC的表述表明,企业采用了一种单薄、自由的同意概念,这与将FPIC理解为自主治理过程的一部分不一致。我认为,FPIC义务的公司授权已经走得太远,因此需要来自定居者国或独立当局的独立监督。我探讨了移民国重新接触的体制和程序形式的备选办法。
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引用次数: 5
International cooperation and responsibility sharing to combat climate change: Lessons for international refugee law 应对气候变化的国际合作与责任分担:国际难民法的经验教训
IF 0.6 Q2 LAW Pub Date : 2017-12-01 DOI: 10.2139/ssrn.3360753
Rebecca Dowd, J. McAdam
By examining high level statements by states at the past four sessions of the Conferences of the Parties to the United Nations Framework Convention on Climate Change (2013-16) and the UN General Assembly over the past decade, this article seeks to provide insights into the meaning of responsibility sharing, international cooperation, and common but differentiated responsibilities and respective capabilities in international environmental law from the perspective of individual states. Its purpose is to elucidate more fully how these precepts might inform deliberations on responsibility sharing for international refugee protection. This article complements a recent piece by the same authors examining the concepts of 'international cooperation' and 'responsibility sharing' in international refugee law. Since these principles are at a more advanced stage in international environmental law (most notably through their inclusion in binding international agreements on climate change), the present article compares and contrasts how states understand and apply them in that context. While there are some fundamental differences between responsibility sharing in the two regimes, it is clear that no state alone can respond to the protection needs of the world's refugees nor address the global impacts of climate change. The need for international cooperation and responsibility sharing in both cases is clear; indeed, it is a humanitarian imperative. Yet, the article shows that, ultimately, national interests tend to prevail when states determine how such global issues should be addressed.
本文通过对过去十年来《联合国气候变化框架公约》(2013- 2016年)四届缔约方大会和联合国大会上各国高层发言的梳理,试图从各国的视角来洞察责任分担、国际合作、共同但有区别的责任和各自能力在国际环境法中的意义。其目的是更充分地阐明这些规则如何为关于分担国际难民保护责任的审议提供信息。这篇文章补充了同一作者最近的一篇文章,该文章研究了国际难民法中的“国际合作”和“责任分担”概念。由于这些原则在国际环境法中处于较先进的阶段(最明显的是通过将其纳入具有约束力的国际气候变化协定中),因此本文比较和对比了各国在这一背景下如何理解和应用它们。尽管两国在责任分担方面存在一些根本差异,但很明显,没有哪个国家能够单独应对世界难民的保护需求,也无法应对气候变化的全球影响。在这两种情况下进行国际合作和分担责任的必要性是明确的;事实上,这是人道主义的当务之急。然而,这篇文章表明,当国家决定如何解决这些全球性问题时,最终往往是国家利益占上风。
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引用次数: 1
A Requiem for the Trans-Pacific Partnership: Something New, Something Old and Something Borrowed? 跨太平洋伙伴关系的安魂曲:有新、有旧、有借鉴?
IF 0.6 Q2 LAW Pub Date : 2017-12-01 DOI: 10.7892/BORIS.108788
Polanco Lazo Rodrigo, Sebastian Fiedler
On 4 February 2016, after almost seven years of negotiations, the Trans-Pacific Partnership Agreement (‘TPP’) was signed by 12 negotiating countries. The TPP was then labelled by all signatory countries as a ‘new’, ‘high standard’, and ‘21st century agreement’. However, the ratification process of the agreement was stalled and most likely in a definitive way, after the United States decided to withdraw from the TPP in January 2017. Before regretting this development, looking back to the halt of the ratification process of the TPP one can ask how much innovation this treaty really had and the usefulness of mourning the failure of having a TPP agreement, either in terms of future usage of TPP text, or in terms of political relevancy. This article aims to describe the level of novelty of the TPP, specifically in comparison with existing trade and investment agreements between TPP signatory countries, notably the United States. For that purpose, we have focused on the core disciplines of the agreement that were highlighted as novelty parts of the TPP, or that generated debate during the negotiation of the treaty. As a benchmark, we have compared the texts of the previous treaties concluded between TPP signatory states, with the TPP chapters on investment, government procurement, regulatory coherence, sustainable development, intellectual property, cross-border trade in services, telecommunications, electronic commerce, competition, and state-owned enterprises, small and medium-sized enterprises (‘SMEs’), transparency and anti-corruption. The article concludes that the TPP was largely ‘Made in America’ — the same country that triggered its demise — as the structure and content of the treaty clearly follow the texts of previous agreements concluded by the United States. However, the influence of other TPP signatories is also perceived in the final text, notably Australia, Canada, Chile and Peru. We also conclude that some parts of the TPP were not particularly novel for signatory countries, as the treaty built on existing trade and investment agreements, offering a consolidation of commitments already present in treaties in force between TPP signatories. However, the TPP also delivered innovation, by including certain disciplines that have not been traditionally established in preferential trade agreements (like regulatory coherence and e-commerce) and others that have benefited from a larger development compared to existing agreements (like intellectual property and sustainable development). Both consolidation and innovation features can be useful for a TPP 11 or for future preferential trade agreements.
2016年2月4日,经过近7年的谈判,12个谈判国家签署了《跨太平洋伙伴关系协定》(TPP)。TPP被所有签署国称为“新的”、“高标准的”、“21世纪的协议”。然而,在美国于2017年1月决定退出TPP后,该协议的批准进程陷入停滞,而且很可能是最终的。在为这一发展感到遗憾之前,回顾一下TPP批准过程的停顿,我们可以问一下,这个条约到底有多少创新,为TPP协议的失败而哀悼有什么用,无论是从TPP文本的未来使用,还是从政治相关性来看。本文旨在描述TPP的新颖性,特别是与TPP签署国(尤其是美国)之间现有的贸易和投资协定进行比较。为此,我们将重点放在TPP协议的核心原则上,这些原则被强调为TPP的新颖性部分,或者在条约谈判期间引发争论的部分。作为基准,我们将TPP签署国之前签订的条约文本与TPP关于投资、政府采购、监管一致性、可持续发展、知识产权、跨境服务贸易、电信、电子商务、竞争、国有企业、中小企业、透明度和反腐败的章节进行了比较。这篇文章的结论是,TPP很大程度上是“美国制造”——正是这个国家引发了它的消亡——因为该条约的结构和内容明显遵循了美国之前达成的协议的文本。然而,TPP其他签署国的影响力也体现在最终文本中,尤其是澳大利亚、加拿大、智利和秘鲁。我们还得出结论,TPP的某些部分对签署国来说并不是特别新颖,因为该条约建立在现有的贸易和投资协定的基础上,巩固了TPP签署国之间已经存在的有效条约中的承诺。然而,TPP也带来了创新,包括一些传统上没有在优惠贸易协定中建立的学科(如监管一致性和电子商务),以及与现有协定相比受益于更大发展的其他学科(如知识产权和可持续发展)。整合和创新的特点对TPP或未来的优惠贸易协定都很有用。
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引用次数: 7
Affective Critique: Fear, Hope, Abandonment and Pleasure in Dianne Otto's Living with International Law 情感批判:黛安娜·奥托《与国际法共存》中的恐惧、希望、放弃与愉悦
IF 0.6 Q2 LAW Pub Date : 2017-07-19 DOI: 10.22024/UNIKENT/03/FAL.399
Vanja Hamzić
However, a cursory glance over the standard set of proposals of affect theorists suggests that all this is well-nigh impossible. Not only is affect often theorised— for instance, in Brian Massumi’s work—as autonomous and outside social signification,1 that primary field of critical theory; it is also posited as a critique of sorts of critical social studies, with its attention to the residue that constructivist models of social studies leave behind—‘the residue or excess that is not socially produced, and that constitutes the very fabric of our being’. 2 The visual arts theorist Simon O’Sullivan therefore concludes: ‘Affects are [...] the stuff that goes on beneath, beyond, even parallel to signification. [...] You cannot read affects, you can only experience them’.3 This assertion implies that affect as critical object stands in opposition to critique, or at least the critique produced by attention to social structures.
然而,粗略地看一下情感理论家的标准建议,就会发现这一切几乎是不可能的。情感不仅经常被理论化——例如,在Brian Massumi的作品中——作为自主的和社会意义之外的,这是批判理论的主要领域;它也被认为是对各种批判性社会研究的批判,它关注社会研究的建构主义模型留下的残余——“不是社会生产的残余或过剩,它们构成了我们存在的结构”。因此,视觉艺术理论家西蒙·奥沙利文得出结论:“情感是……在意义之下,在意义之上,甚至与意义平行的东西。[…你不能读懂影响,你只能体验它们这一论断意味着,作为批判对象的情感与批判对立,或至少与对社会结构的关注所产生的批判对立。
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引用次数: 2
European Extraterritoriality in Semicolonial Ethiopia 欧洲在半殖民地埃塞俄比亚的治外法权
IF 0.6 Q2 LAW Pub Date : 2016-08-08 DOI: 10.2139/SSRN.2819885
Hailegabriel Gedecho Feyissa
Scholarly discussions regarding European legal imperialism in semicolonial nations of the modern era have not considered Ethiopia. China, Japan and other Middle and Far Eastern nations have been the dominant, if not exclusive, objects of historical studies in European extraterritoriality. Furthermore, there appears to be a consensus that both the rise and decline of European extraterritoriality in the semicolonial world (effected through ‘mixed courts’) only form part of the history of the pre-Second World War international law system. Nonetheless, a forgotten strand of European extraterritoriality overstayed the Second World War in semicolonial Ethiopia. Apart from aiming to restore visibility to Ethiopia’s unknown experience with European extraterritoriality, this study tries to explain the late arrival, the gradual resurgence and the post-Second World War decline of European extraterritoriality in Ethiopia. It argues that European extraterritoriality in Ethiopia, which was weak during the first third of the 20th century, reached its zenith in the post-Second World War period, but was miscast as a modernisation project, rather than a colonial one.
关于欧洲法律帝国主义在现代半殖民地国家的学术讨论没有考虑埃塞俄比亚。中国、日本和其他中东和远东国家一直是欧洲治外法权历史研究的主要对象(如果不是唯一的话)。此外,似乎有一种共识,即欧洲在半殖民地世界的治外法权的兴起和衰落(通过“混合法院”实现)只是第二次世界大战前国际法体系历史的一部分。尽管如此,在半殖民地埃塞俄比亚,一股被遗忘的欧洲治外法权在第二次世界大战之后仍然存在。除了旨在恢复对欧洲治外法权在埃塞俄比亚不为人知的经验的认识外,本研究还试图解释欧洲治外法权在埃塞俄比亚的姗姗来迟、逐渐复苏以及二战后的衰落。它认为,欧洲在埃塞俄比亚的治外法权在20世纪前三分之一时期很弱,在二战后达到了顶峰,但被错误地定位为一个现代化项目,而不是一个殖民项目。
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引用次数: 7
Writing the fine print: Developing regional insurance for climate change adaptation in the pacific 撰写细则:为太平洋地区的气候变化适应发展区域保险
IF 0.6 Q2 LAW Pub Date : 2014-12-01 DOI: 10.6084/M9.FIGSHARE.1431427.V1
Jeffrey McGee, Liam Phelan, Joseph Wenta
CONTENTS I Introduction II Climate Change and Extreme Weather Events III Adaptation in the International Climate Regime IV Insurance and Adaptation in the International Climate Regime V Models for Climate Change Insurance VI Caribbean Catastrophe Risk Insurance Facility VII Climate Change Insurance and the Pacific Island States VIII Viability of Climate Insurance as a Long-Term Adaptation Strategy IX Conclusion I INTRODUCTION Many Small Island Developing States ('SIDS') lie only metres above sea level, making them particularly vulnerable to the impacts of climate change in both the shorter (eg storm surge during large tropical cyclones) and longer (eg sea level rise) terms. (1) The modest ambition for mitigation (ie reduction) (2) of greenhouse gas emissions in the United Nations Framework Convention on Climate Change ('UNFCCC'), (3) Kyoto Protocol (4) and Copenhagen Accord (5) means that the prospect of avoiding an increase in mean surface temperature of less than two degrees is now very low. (6) The latest climate science suggests the Earth is on a path that will lead to a rise in mean surface temperature of between three and six degrees by 2100. (7) Unless there is a significant reduction in greenhouse gas emissions over coming decades, SIDS are likely to experience tropical cyclones of greater severity, disrupted rainfall patterns and sea level rise. (8) Recent extreme weather events in the Asia-Pacific region, such as Typhoon Haiyan (9) and Cyclone Ian, (10) demonstrate the significant impact of these events on SIDS. (11) The lack of success in mitigating greenhouse gas emissions has led to adaptation to climate change impacts gaining greater prominence within the United Nations climate negotiations. Adaptation to climate change has been defined as '[a]djustment in natural or human systems in response to actual or expected climatic stimuli or their effects, which moderates harm or exploits beneficial opportunities'. (12) Adaptation may take many forms, including pre-emptive action to limit damage from climate change-related events (eg implementing more ambitious building codes to make buildings more resilient to storms) and building institutions to aid recovery after a climate-related event (eg improving emergency services capacity to respond in the immediate aftermath of adverse weather events). Domestically, insurance is an established mechanism to spread financial risk of adverse events and build societal resilience. However, at an international level, the issue of climate change-related insurance has only proceeded in fits and starts. Proposals for an insurance mechanism to support the adaptation of SIDS to climate change date back to 1991. At that time, the Alliance of Small Island States ('AOSIS') proposed an international, state-based pool to provide insurance against the impacts of climate change-related sea-level rise. (13) Despite this early call by AOSIS, a climate change-related insurance mechanism was not included in either the
内容一、导言二、气候变化和极端天气事件三、国际气候制度中的适应四、国际气候制度中的保险和适应五、气候变化保险模式六、加勒比巨灾风险保险基金七、气候变化保险和太平洋岛国八、气候保险作为长期适应战略的可行性九、结论一、导言许多小岛屿发展中国家(“SIDS”)仅位于海平面以上几米的地方这使得它们在短期(如大型热带气旋期间的风暴潮)和长期(如海平面上升)内特别容易受到气候变化的影响。(1)《联合国气候变化框架公约》(UNFCCC)、(3)《京都议定书》(4)和《哥本哈根协议》(5)中关于减缓(即减少)(2)温室气体排放的适度雄心,意味着目前避免地表平均温度上升低于2度的前景非常渺茫。(6)最新的气候科学表明,到2100年,地球表面的平均温度将上升3到6度。(7)除非未来几十年温室气体排放显著减少,否则小岛屿发展中国家很可能遭遇更严重的热带气旋、降雨模式中断和海平面上升。(8)近期发生在亚太地区的极端天气事件,如台风海燕(9)和气旋伊恩(10),显示了这些事件对小岛屿发展中国家的重大影响。(11)由于在减少温室气体排放方面缺乏成功,适应气候变化影响在联合国气候谈判中变得更加突出。对气候变化的适应被定义为“自然或人类系统为响应实际或预期的气候刺激或其影响而进行的调整,从而缓和危害或利用有益的机会”。(12)适应可以采取多种形式,包括采取先发制人的行动,限制气候变化相关事件造成的损害(例如,实施更加雄心勃勃的建筑规范,使建筑物更能抵御风暴),以及建立机构,帮助在气候相关事件发生后的恢复(例如,提高在不利天气事件发生后立即作出反应的应急服务能力)。在国内,保险是分散不良事件金融风险和建立社会复原力的既定机制。然而,在国际层面上,与气候变化相关的保险问题只是断断续续地进行着。建立一个支持小岛屿发展中国家适应气候变化的保险机制的建议可以追溯到1991年。当时,小岛屿国家联盟(AOSIS)提议建立一个以国家为基础的国际资金池,以防范与气候变化相关的海平面上升的影响。(13)尽管小岛屿国家联盟很早就发出了这样的呼吁,但《联合国气候变化框架公约》和《京都议定书》都没有包括与气候变化有关的保险机制。2007年,与气候变化相关的保险再次出现在联合国气候变化框架公约议程上,因为巴厘行动计划启动了关于加强适应行动的国际讨论,“包括风险分担和转移机制,如保险”。(14) 2008年,小岛屿国家联盟在巴厘行动计划下提交了一份文件,要求将保险机制作为应对气候相关损失和损害的更广泛措施的一部分。(15)与1991年的提案不同,2008年的小岛屿国家联盟提案要求为飓风、洪水和干旱等与气候变化有关的极端天气事件提供保险。(16) 2010年,《坎昆协定》还邀请各国提交关于建立气候风险保险机制的文件,作为强化适应框架的一部分,以应对极端天气事件的影响。(17) 2012年在多哈举行的缔约方大会(COP)第18次会议似乎是协助适应气候变化的机构发展方面的一个突破。…
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引用次数: 12
What Does the Emerging International Law of Migration Mean for Sovereignty 新兴的国际移民法对主权意味着什么
IF 0.6 Q2 LAW Pub Date : 2013-03-11 DOI: 10.2139/SSRN.2231454
Chantal Thomas
The emergence of an international law of migration has lent ballast to claims by philosophers, such as Benhabib, who contend that “since the UN Declaration of Human Rights in 1948, we have entered a phase in the evolution of global civil society, which is characterized by a transition from international to cosmopolitan norms of justice.” However, migrant rights are often hotly contested, not least by the states against whom they are asserted. At the very least, however, presumptions of absolute sovereign prerogative have been thrown into question. If national borders are far from open to migrants, one might be able to say that as a normative matter, at least, they are less presumptively, or more contestedly, closed.My purpose in this draft essay is not to mount a detailed doctrinal analysis of this emerging international law, but rather to survey the theoretical discourses of sovereignty that create the backdrop for current debates over migration law and policy. I conclude that neither liberal nor biopolitical discourses by themselves explain the warp and weave of this emerging body of law. Rather, a structural equivocation within international law encompasses opposing positions of realpolitik apology for sovereign power, on the one hand, and aspiration towards utopian universality, on the other. Moreover, a survey of the history of international law locates the bases for migrant rights (alongside other human rights claims) in natural law traditions that predate the rise of “plenary power” conceptions of sovereignty. Before we international lawyers congratulate ourselves regarding the progressive or progressionistic roots of international law, however, the colonial dimension of those natural law traditions should be clarified.Finally, I want to explore an ethics for migration law and policy that would extend beyond the constraints that, similarly to those described above for emerging law, also characterize current discourses of reform - made salient by the recent “comprehensive immigration reform” debates in the U.S. Congress - that is to say, beyond an apologetic pragmatics of population management on the one hand versus a utopian cosmopolitanism, on the other. Somewhat tentatively for the time being I am calling this an ethics of “new organicism.”
国际移民法的出现为Benhabib等哲学家的主张提供了支撑,他们认为“自1948年联合国人权宣言以来,我们已经进入了全球公民社会演变的一个阶段,其特征是从国际正义准则向世界正义准则过渡。”然而,移民的权利经常受到激烈的争论,尤其是在那些主张移民权利的国家之间。然而,至少,绝对主权特权的假设受到了质疑。如果国家边界远未对移民开放,人们或许可以说,作为一个规范问题,至少,它们不那么假定或更有争议地关闭了。我在这篇初稿中的目的不是对这一新兴的国际法进行详细的理论分析,而是调查主权的理论话语,这些话语为当前关于移民法律和政策的辩论创造了背景。我的结论是,自由主义和生命政治话语本身都无法解释这一新兴法律体系的扭曲和编织。相反,国际法中的结构性模棱两可包括现实政治的对立立场,一方面是为主权权力道歉,另一方面是对乌托邦普遍性的渴望。此外,对国际法历史的调查发现,移民权利(以及其他人权主张)的基础是在主权的“全部权力”概念兴起之前的自然法传统中。然而,在我们国际律师为国际法的进步或进步主义根源而沾沾自喜之前,应该澄清这些自然法传统的殖民方面。最后,我想探讨一种移民法律和政策的伦理,它将超越约束,与上述新兴法律的约束类似,这些约束也是当前改革话语的特征——最近在美国国会进行的“全面移民改革”辩论突出了这一点——也就是说,一方面超越了人口管理的道歉实用主义,另一方面超越了乌托邦世界主义。暂时,我暂且暂且称其为“新有机体论”的伦理学。
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引用次数: 11
How Command Responsibility Got So Complicated: A Culpability Contradiction, Its Obfuscation, and a Simple Solution 指挥责任是如何变得如此复杂的:一个罪责矛盾,它的混淆,和一个简单的解决方案
IF 0.6 Q2 LAW Pub Date : 2011-10-28 DOI: 10.2139/SSRN.1950770
Darryl Robinson
The literature on command responsibility is extensive and is rapidly growing more complex. In this article, I argue that command responsibility can be much simpler than it seems.I focus on a single puzzle, a puzzle hidden in plain sight. The puzzle is that the Tribunal jurisprudence uses command responsibility to convict persons without causal contribution to the crime, while also recognizing a culpability principle that requires causal contribution. This stark contradiction has been obscured by many arguments in the jurisprudence and discourse. Indeed, many readers will raise a host of arguments to deny the contradiction I just described. I will dissect the major arguments to demonstrate that the contradiction does indeed exist. I argue that Tribunal jurisprudence took an early wrong turn in concluding that the “failure to punish” branch of command responsibility is irreconcilable with a contribution requirement. This led to a rejection of causal contribution. Subsequent efforts to deny, avoid or resolve the resulting contradiction with the culpability principle have spawned many inconsistent, complex and convoluted claims about command responsibility. These include the descriptions of command responsibility as ‘sui generis’, as hybrid, as variegated, as responsibility for-the-acts-but-not-for-the-acts, as neither-mode-nor-offence or as sometimes-mode-sometimes-offence. However, if we revisit the first misstep, a simple and elegant solution is available. Command responsibility is a mode of accessory liability and requires causal contribution. I draw on scholarship from criminal law theory to explore the parameters of the contribution requirement.
关于指挥责任的文献非常广泛,而且正迅速变得更加复杂。在本文中,我认为命令责任可以比看起来简单得多。我专注于一个谜题,一个隐藏在眼前的谜题。令人困惑的是,法庭的判例使用命令责任对没有因果关系的人定罪,同时也承认需要因果关系的罪责原则。这一鲜明的矛盾被法理学和话语中的许多争论所掩盖。的确,许多读者会提出许多论点来否认我刚才描述的矛盾。我将详细分析主要论点,以证明这种矛盾确实存在。我认为,法庭的判例在得出“未能惩罚”指挥责任部门与捐款要求不可调和的结论时,早就犯了一个错误。这导致了对因果关系的否定。随后否认、避免或解决与罪责原则相矛盾的努力催生了许多关于指挥责任的不一致、复杂和令人费解的主张。这些包括将指挥责任描述为“自成一体”,混合的,多样化的,为行为负责但不为行为负责,既非模式不犯罪,也非模式有时犯罪。然而,如果我们回顾第一个错误,一个简单而优雅的解决方案是可用的。指挥责任是附属责任的一种模式,需要因果贡献。笔者借鉴刑法理论的研究成果,对出资条件的参数进行了探讨。
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引用次数: 36
The international legal scholar in Palestine: hurling stones under the guise of legal forms? 国际法律学者在巴勒斯坦:打着法律形式的幌子扔石头?
IF 0.6 Q2 LAW Pub Date : 2011-04-19 DOI: 10.2139/SSRN.1846867
Jean d’Aspremont
This paper is the written transcript of the author’s exchange of views with Martti Koskenniemi and Mudar Kassis on the occasion of a debate organized by the Institute of Law (IoL) of the University of Birzeit. The paper explores the origin of international lawyers’ frustrated expectations when it comes to the role of international law in the Middle East. It more specifically argues that the disenchantment of international lawyers is the upshot of three well-entrenched beliefs. It then elaborates on three attitudes which can help international lawyers make sense of the role of international law in general and, in particular, in the Palestinian-Israeli conflict. Attention is paid to the place of compliance in studies about international law, the role of legal forms and, eventually, the role of international legal scholars in a conflict like the Palestinian-Israeli conflict. The spoken character of the text has been preserved.
本文是作者与Martti Koskenniemi和Mudar Kassis在Birzeit大学法律研究所组织的辩论中交换意见的书面记录。本文探讨了国际法在中东的作用问题上,国际律师期望受挫的根源。它更具体地认为,国际律师的觉醒是三个根深蒂固的信念的结果。然后,它详细阐述了三种态度,这些态度可以帮助国际律师理解国际法在一般情况下,特别是在巴以冲突中的作用。关注遵守在国际法研究中的地位,法律形式的作用,以及最终国际法律学者在巴以冲突等冲突中的作用。文本的口语特征被保留了下来。
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引用次数: 29
期刊
Melbourne Journal of International Law
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