Traditional comparative private law scholars have a firm grasp of laws in several countries, but rarely of those in more than one hundred countries. Quantitative comparative private law scholars have placed dozens of countries into a legal family genealogy, but not based on a systematic understanding of legal substance around the world. Using a unique, hand-coded data set on 108 property doctrines (transformed into 170 binary variables) in 129 jurisdictions, we ran supervised and unsupervised machine-learning algorithms. Some of our findings confirm the conventional wisdom: French and German property laws are influential; mixed jurisdictions like South Africa and Scotland are one of a kind; common law jurisdictions form a group of their own; and a handful of formerly socialist countries, led by Russia, cluster together. Unlike the prior literature, however, we do not find that East Asian jurisdictions warrant a category of their own; but belong to distant groups. Spain and many Latin American countries form a separate group. Rather than finding a clear-cut common versus civil law division, we observe that the France-inspired group is one supercluster, separate from other jurisdictions.
{"title":"Drawing the Legal Family Tree: An Empirical Comparative Study of 170 Dimensions of Property Law in 129 Jurisdictions","authors":"Yun-chien Chang, Nuno Garoupa, M. Wells","doi":"10.1093/JLA/LAAA004","DOIUrl":"https://doi.org/10.1093/JLA/LAAA004","url":null,"abstract":"Traditional comparative private law scholars have a firm grasp of laws in several countries, but rarely of those in more than one hundred countries. Quantitative comparative private law scholars have placed dozens of countries into a legal family genealogy, but not based on a systematic understanding of legal substance around the world. Using a unique, hand-coded data set on 108 property doctrines (transformed into 170 binary variables) in 129 jurisdictions, we ran supervised and unsupervised machine-learning algorithms. Some of our findings confirm the conventional wisdom: French and German property laws are influential; mixed jurisdictions like South Africa and Scotland are one of a kind; common law jurisdictions form a group of their own; and a handful of formerly socialist countries, led by Russia, cluster together. Unlike the prior literature, however, we do not find that East Asian jurisdictions warrant a category of their own; but belong to distant groups. Spain and many Latin American countries form a separate group. Rather than finding a clear-cut common versus civil law division, we observe that the France-inspired group is one supercluster, separate from other jurisdictions.","PeriodicalId":45189,"journal":{"name":"Journal of Legal Analysis","volume":"180 1","pages":""},"PeriodicalIF":2.2,"publicationDate":"2020-03-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"77500732","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Contemporary property theory highlights information costs as the central determinant of exclusion rights and numerus clausus-type standardization: rising information costs lead to stronger exclusion rights and more standardization, whereas falling information costs have the opposite effect. This paradigmatic model lacks, however, a theory of how information costs change in the first place. By developing such a theory, this article demonstrates that, in prominent cases, the legal impact of information costs tends to be counterbalanced by concurrent changes in individual preference, and that preexisting predictions about the relationship between information costs, standardization, and exclusion are therefore partially wrong, and otherwise incomplete.
{"title":"Beyond Information Costs: Preference Formation and the Architecture of Property Law","authors":"Zhang T.","doi":"10.1093/jla/laz007","DOIUrl":"https://doi.org/10.1093/jla/laz007","url":null,"abstract":"<span><div>Abstract</div>Contemporary property theory highlights information costs as the central determinant of exclusion rights and numerus clausus-type standardization: rising information costs lead to stronger exclusion rights and more standardization, whereas falling information costs have the opposite effect. This paradigmatic model lacks, however, a theory of how information costs change in the first place. By developing such a theory, this article demonstrates that, in prominent cases, the legal impact of information costs tends to be counterbalanced by concurrent changes in individual preference, and that preexisting predictions about the relationship between information costs, standardization, and exclusion are therefore partially wrong, and otherwise incomplete.</span>","PeriodicalId":45189,"journal":{"name":"Journal of Legal Analysis","volume":"37 5","pages":""},"PeriodicalIF":2.2,"publicationDate":"2020-02-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"138520805","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Locke’s labor theory, the most familiar of property theories, has faced centuries of philosophical criticism. Nonetheless, recent legal scholars have applied it to intellectual property while overlooking these philosophical critiques. Philosophers, on the other hand, are largely absent in IP theorizing, thus not asking whether Locke’s resilient intuition is salvageable in copyright’s domain. This Article argues that Lockean copyright is actually far more plausible than Lockean property, for it avoids the most devastating objections the latter faces. It then defends a surprising doctrinal implication of this theoretical conclusion: a workable Lockean copyright favors rights far more limited than present law.
{"title":"Lockean Copyright versus Lockean Property","authors":"Mala Chatterjee","doi":"10.2139/SSRN.3423423","DOIUrl":"https://doi.org/10.2139/SSRN.3423423","url":null,"abstract":"Locke’s labor theory, the most familiar of property theories, has faced centuries of philosophical criticism. Nonetheless, recent legal scholars have applied it to intellectual property while overlooking these philosophical critiques. Philosophers, on the other hand, are largely absent in IP theorizing, thus not asking whether Locke’s resilient intuition is salvageable in copyright’s domain. This Article argues that Lockean copyright is actually far more plausible than Lockean property, for it avoids the most devastating objections the latter faces. It then defends a surprising doctrinal implication of this theoretical conclusion: a workable Lockean copyright favors rights far more limited than present law.","PeriodicalId":45189,"journal":{"name":"Journal of Legal Analysis","volume":"79 1","pages":""},"PeriodicalIF":2.2,"publicationDate":"2020-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"88079292","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Transferable Development Rights (TDRs) were supposed to be a solution to the intractable problems of land use, a bit of institutional design magic that married the interests of development and preservation at no cost to taxpayers and with no legal risk. Under a TDR program, development is limited or barred on properties targeted for preservation or other regulatory goals, but owners of those lots are allowed sell their unused development rights to other property owners. In theory, this allows the same amount of development to occur while preserving favored uses without tax subsidies or constitutional challenges. Reviewing their use over the last forty years, this Article shows that the traditional justifications for TDRs do not work. In practice, TDRs are not necessary to avoid takings litigation, are not costless to taxpayers, and do not balance the interests of preservation and development, but instead serve as yet another growth control in metropolitan areas where such controls have caused housing crises and major harms to the national economy. Assessed as a technocratic tool for solving problems in land use, TDRs are a failure. But this Article shows that there is a case for TDRs not as a technocratic but rather as a political tool. By giving valuable development rights to some popular or otherwise politically influential owners of regulated property, a city can build a coalition for re-zonings that might otherwise be politically impossible. The effect of TDRs on politics can be positive to the extent that TDRs strengthen constituencies or land use goals that local politics systematically undercounts, as we show through an analysis of New York City’s Special District Transfer TDR program. In particular, TDRs could help break Not In My Back Yard opposition to new development by building a competing pro-growth coalition. More generally, using TDRs as an example, the Article shows how land use law is the creator as well as creature of local politics. Existing property law helps cement anti-development coalitions, but savvy leaders could use moments in power to create stable pro-growth coalitions by enacting new laws that help mobilize new pro-growth constituencies. Understanding these “constituency effects” of land use law allows policymakers to redesign entitlements like TDRs to produce a healthier land use policies.
可转让发展权(tdr)被认为是解决棘手的土地使用问题的一种方法，是一种制度设计的魔法，它将发展和保护的利益结合在一起，不需要纳税人付出代价，也没有法律风险。根据TDR计划，为保护或其他监管目标而开发的物业受到限制或禁止，但这些地块的所有者可以将其未使用的开发权出售给其他业主。理论上，这允许在保留有利用途的同时进行同等数量的开发，而无需税收补贴或宪法挑战。本文回顾了过去四十年来tdr的使用情况，表明传统的tdr理由并不成立。在实践中，tdr并不是避免征收诉讼的必要条件，对纳税人来说也不是没有成本的，也没有平衡保护和发展的利益，而是在大都市地区作为另一种增长控制手段，这种控制已经造成了住房危机，并对国民经济造成了重大损害。作为解决土地使用问题的技术官僚工具，tdr是失败的。但这篇文章表明，tdr不是作为一种技术官僚，而是作为一种政治工具。通过将宝贵的开发权给予受监管房产的一些受欢迎的或在政治上有影响力的所有者，一个城市可以建立一个联盟来重新划分区域，否则这在政治上是不可能的。正如我们通过对纽约市特区转移TDR计划的分析所显示的那样，TDR对政治的影响可以是积极的，因为TDR加强了地方政治系统低估的选区或土地使用目标。特别是，tdr可以通过建立一个与之竞争的支持增长的联盟，帮助打破反对新开发的“不要在我的后院”(Not In My backyard)。更一般地说，本文以tdr为例，说明土地使用法既是地方政治的创造者，又是地方政治的创造者。现有的物权法有助于巩固反发展联盟，但精明的领导人可以利用掌权的时机，通过颁布新的法律，帮助动员新的支持增长的选民，来建立稳定的支持增长的联盟。理解了土地使用法的这些“选民效应”，政策制定者就可以重新设计像tdr这样的权利，从而制定更健康的土地使用政策。
{"title":"Building Coalitions Out of Thin Air: Transferable Development Rights and “Constituency Effects” in Land Use Law","authors":"R. Hills,, David Schleicher","doi":"10.1093/jla/laz008","DOIUrl":"https://doi.org/10.1093/jla/laz008","url":null,"abstract":"Transferable Development Rights (TDRs) were supposed to be a solution to the intractable problems of land use, a bit of institutional design magic that married the interests of development and preservation at no cost to taxpayers and with no legal risk. Under a TDR program, development is limited or barred on properties targeted for preservation or other regulatory goals, but owners of those lots are allowed sell their unused development rights to other property owners. In theory, this allows the same amount of development to occur while preserving favored uses without tax subsidies or constitutional challenges. Reviewing their use over the last forty years, this Article shows that the traditional justifications for TDRs do not work. In practice, TDRs are not necessary to avoid takings litigation, are not costless to taxpayers, and do not balance the interests of preservation and development, but instead serve as yet another growth control in metropolitan areas where such controls have caused housing crises and major harms to the national economy. Assessed as a technocratic tool for solving problems in land use, TDRs are a failure. But this Article shows that there is a case for TDRs not as a technocratic but rather as a political tool. By giving valuable development rights to some popular or otherwise politically influential owners of regulated property, a city can build a coalition for re-zonings that might otherwise be politically impossible. The effect of TDRs on politics can be positive to the extent that TDRs strengthen constituencies or land use goals that local politics systematically undercounts, as we show through an analysis of New York City’s Special District Transfer TDR program. In particular, TDRs could help break Not In My Back Yard opposition to new development by building a competing pro-growth coalition. More generally, using TDRs as an example, the Article shows how land use law is the creator as well as creature of local politics. Existing property law helps cement anti-development coalitions, but savvy leaders could use moments in power to create stable pro-growth coalitions by enacting new laws that help mobilize new pro-growth constituencies. Understanding these “constituency effects” of land use law allows policymakers to redesign entitlements like TDRs to produce a healthier land use policies.","PeriodicalId":45189,"journal":{"name":"Journal of Legal Analysis","volume":"65 1","pages":"79-135"},"PeriodicalIF":2.2,"publicationDate":"2020-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"77852399","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Abstract We present a new framework for analyzing defamation liability that serves both to clarify and complicate understandings of the law’s consequences for speakers, victims, and the marketplace of ideas. In addition to the familiar deterrence and chilling effects, we show how defamation liability can generate a “warming effect,” making statements more credible and potentially raising both the quality and quantity of speech. We also explain how a more plaintiff-friendly liability regime may exacerbate harms to defamation victims. We end by considering the possibility of “self-tailored” defamation law, with victims or speakers selecting the defamation liability regime that applies to them.
{"title":"Free Speech and Cheap Talk","authors":"Daniel Hemel,Ariel Porat","doi":"10.1093/jla/laz004","DOIUrl":"https://doi.org/10.1093/jla/laz004","url":null,"abstract":"Abstract We present a new framework for analyzing defamation liability that serves both to clarify and complicate understandings of the law’s consequences for speakers, victims, and the marketplace of ideas. In addition to the familiar deterrence and chilling effects, we show how defamation liability can generate a “warming effect,” making statements more credible and potentially raising both the quality and quantity of speech. We also explain how a more plaintiff-friendly liability regime may exacerbate harms to defamation victims. We end by considering the possibility of “self-tailored” defamation law, with victims or speakers selecting the defamation liability regime that applies to them.","PeriodicalId":45189,"journal":{"name":"Journal of Legal Analysis","volume":"15 12","pages":"46-103"},"PeriodicalIF":2.2,"publicationDate":"2019-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"138520852","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Digital information is the fuel of the new economy. But like the old economy’s carbon fuel, it also pollutes. Harmful “data emissions” are leaked into the digital ecosystem, disrupting social institutions and public interests. This article develops a novel framework—data pollution—to rethink the harms the data economy creates and the way they have to be regulated. It argues that social intervention should focus on the external harms from collection and misuse of personal data. The article challenges the hegemony of the prevailing view—that the injuries from digital data enterprise are exclusively private. That view has led lawmakers to focus solely on privacy protection as the regulatory objective. The article claims, instead, that a central problem in the digital economy has been largely ignored: how the information given by people affects others, and how it undermines and degrades public goods and interests. The data pollution concept offers a novel perspective why existing regulatory tools—torts, contracts, and disclosure law—are ineffective, mirroring their historical futility in curbing the harms from industrial pollution. The data pollution framework also opens up a rich roadmap for new regulatory devices—“an environmental law for data protection”—which focuses on controlling these external effects. The article examines how the tools used to control industrial pollution—production restrictions, carbon tax, and emissions liability—could be adapted to govern data pollution.
{"title":"Data Pollution","authors":"O. Ben‐Shahar","doi":"10.2139/ssrn.3191231","DOIUrl":"https://doi.org/10.2139/ssrn.3191231","url":null,"abstract":"\u0000 Digital information is the fuel of the new economy. But like the old economy’s carbon fuel, it also pollutes. Harmful “data emissions” are leaked into the digital ecosystem, disrupting social institutions and public interests. This article develops a novel framework—data pollution—to rethink the harms the data economy creates and the way they have to be regulated. It argues that social intervention should focus on the external harms from collection and misuse of personal data. The article challenges the hegemony of the prevailing view—that the injuries from digital data enterprise are exclusively private. That view has led lawmakers to focus solely on privacy protection as the regulatory objective. The article claims, instead, that a central problem in the digital economy has been largely ignored: how the information given by people affects others, and how it undermines and degrades public goods and interests. The data pollution concept offers a novel perspective why existing regulatory tools—torts, contracts, and disclosure law—are ineffective, mirroring their historical futility in curbing the harms from industrial pollution. The data pollution framework also opens up a rich roadmap for new regulatory devices—“an environmental law for data protection”—which focuses on controlling these external effects. The article examines how the tools used to control industrial pollution—production restrictions, carbon tax, and emissions liability—could be adapted to govern data pollution.","PeriodicalId":45189,"journal":{"name":"Journal of Legal Analysis","volume":"5 1","pages":""},"PeriodicalIF":2.2,"publicationDate":"2019-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"81793203","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
According to common conception, laws should make actors internalize all the costs and benefits of their actions to make them behave efficiently. This article shows that even when only partial internalization is possible, private law can create efficient incentives by ensuring that each actor internalizes an identical proportion of the costs and benefits.This proportional internalization principle has profound implications. In tort law, it offers a new mechanism for dividing liability between multiple parties. In contract law, it suggests a new default rule for joint ventures. And, in restitution law, it presents an alternative doctrinal formulation for restitution for unrequested benefit.
{"title":"The Proportional Internalization Principle in Private Law","authors":"Omer Pelled","doi":"10.1093/jla/laz006","DOIUrl":"https://doi.org/10.1093/jla/laz006","url":null,"abstract":"According to common conception, laws should make actors internalize all the costs and benefits of their actions to make them behave efficiently. This article shows that even when only partial internalization is possible, private law can create efficient incentives by ensuring that each actor internalizes an identical proportion of the costs and benefits.This proportional internalization principle has profound implications. In tort law, it offers a new mechanism for dividing liability between multiple parties. In contract law, it suggests a new default rule for joint ventures. And, in restitution law, it presents an alternative doctrinal formulation for restitution for unrequested benefit.","PeriodicalId":45189,"journal":{"name":"Journal of Legal Analysis","volume":"20 1","pages":""},"PeriodicalIF":2.2,"publicationDate":"2019-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"89679140","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Recoupment inquiries play an increasingly important role in antitrust analysis, yet they raise a number of conundrums: How can a failure of recoupment due to the plausible long-run profit recovery being dwarfed by short-run losses be reconciled with a defense of no predation that presupposes no short-run sacrifice to begin with? How can recoupment inquiries be diagnostic with respect to competing explanations for defendants’ behavior—such as product promotion or “legal” predation—that likewise require recoupment? This article addresses these questions and others by grounding recoupment and predatory pricing analysis more broadly in a decision framework that focuses on classification (distinguishing illegal predation from other explanations for firms’ pricing) and on the magnitudes of the deterrence benefits and chilling costs of imposing liability. Regarding the latter, although concerns for the chilling of procompetitive activity sensibly drive predatory pricing analysis, the great variation in chilling costs across competing explanations for alleged predation is unrecognized. Much of the analysis here is not particular to recoupment; the investigation aims to inform future research, policy, and practice regarding many aspects of predatory pricing as well as other forms of anticompetitive conduct. Forthcoming, Journal of Legal Analysis (2018)
{"title":"Recoupment and Predatory Pricing Analysis","authors":"L. Kaplow","doi":"10.1093/JLA/LAY003","DOIUrl":"https://doi.org/10.1093/JLA/LAY003","url":null,"abstract":"Recoupment inquiries play an increasingly important role in antitrust analysis, yet they raise a number of conundrums: How can a failure of recoupment due to the plausible long-run profit recovery being dwarfed by short-run losses be reconciled with a defense of no predation that presupposes no short-run sacrifice to begin with? How can recoupment inquiries be diagnostic with respect to competing explanations for defendants’ behavior—such as product promotion or “legal” predation—that likewise require recoupment? This article addresses these questions and others by grounding recoupment and predatory pricing analysis more broadly in a decision framework that focuses on classification (distinguishing illegal predation from other explanations for firms’ pricing) and on the magnitudes of the deterrence benefits and chilling costs of imposing liability. Regarding the latter, although concerns for the chilling of procompetitive activity sensibly drive predatory pricing analysis, the great variation in chilling costs across competing explanations for alleged predation is unrecognized. Much of the analysis here is not particular to recoupment; the investigation aims to inform future research, policy, and practice regarding many aspects of predatory pricing as well as other forms of anticompetitive conduct. Forthcoming, Journal of Legal Analysis (2018)","PeriodicalId":45189,"journal":{"name":"Journal of Legal Analysis","volume":"64 1","pages":"46-112"},"PeriodicalIF":2.2,"publicationDate":"2018-12-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"84469988","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Jon Kleinberg,Jens Ludwig,Sendhil Mullainathan,Cass R Sunstein
Abstract The law forbids discrimination. But the ambiguity of human decision-making often makes it hard for the legal system to know whether anyone has discriminated. To understand how algorithms affect discrimination, we must understand how they affect the detection of discrimination. With the appropriate requirements in place, algorithms create the potential for new forms of transparency and hence opportunities to detect discrimination that are otherwise unavailable. The specificity of algorithms also makes transparent tradeoffs among competing values. This implies algorithms are not only a threat to be regulated; with the right safeguards, they can be a potential positive force for equity.
{"title":"Discrimination in the Age of Algorithms","authors":"Jon Kleinberg,Jens Ludwig,Sendhil Mullainathan,Cass R Sunstein","doi":"10.1093/jla/laz001","DOIUrl":"https://doi.org/10.1093/jla/laz001","url":null,"abstract":"Abstract The law forbids discrimination. But the ambiguity of human decision-making often makes it hard for the legal system to know whether anyone has discriminated. To understand how algorithms affect discrimination, we must understand how they affect the detection of discrimination. With the appropriate requirements in place, algorithms create the potential for new forms of transparency and hence opportunities to detect discrimination that are otherwise unavailable. The specificity of algorithms also makes transparent tradeoffs among competing values. This implies algorithms are not only a threat to be regulated; with the right safeguards, they can be a potential positive force for equity.","PeriodicalId":45189,"journal":{"name":"Journal of Legal Analysis","volume":"199 1","pages":"113-174"},"PeriodicalIF":2.2,"publicationDate":"2018-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"138520804","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This Article provides the first comprehensive, global examination of state and international practice bearing on Article 49(6) of the Fourth Geneva Convention, which provides that an “Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies.” This provision is a staple of legal and diplomatic international discussions of the Arab-Israeli conflict, and serves as the basis for criticism of Israeli settlement policy. Despite its frequent invocation in the Israeli context, scholars have never examined – or even considered – how the norm has been interpreted and applied in any other occupation context in the post-WWII era. For example, the International Committee of the Red Cross’s (ICRC) influential Study on Customary International Humanitarian Law lists 107 instances of national practice and UN practice applying or interpreting the prohibition, and all but two relate to Israel. Many questions exist about the scope and application of Art. 49(6)’s prohibition on “transfer,” but they have generally been answered on purely theoretically. To better understand what Art. 49(6) does in fact demand, this Article closely examines its application in all other cases in which it could apply. Many of the settlement enterprises studied in this Article have never been discussed or documented. All of these situations involved the movement of settlers into the occupied territory, in numbers ranging from thousands to hundreds of thousands. Indeed, perhaps every prolonged occupation of contiguous habitable territory has resulted in significant settlement activity.Clear patterns emerge from this systematic study of state practice. Strikingly, the state practice paints a picture that is significantly inconsistent with the prior conventional wisdom concerning Art. 49(6). First, the migration of people into occupied territory is a near-ubiquitous feature of extended belligerent occupations. Second, no occupying power has ever taken any measures to discourage or prevent such settlement activity, nor has any occupying power ever expressed opinio juris suggesting that it is bound to do so. Third, and perhaps most strikingly, in none of these situations have the international community or international organizations described the migration of persons into the occupied territory as a violation of Art. 49(6). Even in the rare cases in which such policies have met with international criticism, it has not been in legal terms. This suggests that the level of direct state involvement in “transfer” required to constitute an Art. 49(6) violation may be significantly greater than previously thought. Finally, neither international political bodies nor the new governments of previously occupied territories have ever embraced the removal of illegally transferred civilian settlers as an appropriate remedy.The deeper understanding – based on a systematic survey of all available state practice – of the prohibition on settlements should
本条第一次全面、全面地审查了与《日内瓦第四公约》第49条第6款有关的国家和国际惯例，该条规定“占领国不得将其本国平民的一部分驱逐或移送到其占领的领土”。这一规定是关于阿以冲突的法律和外交国际讨论的主要内容，也是批评以色列定居点政策的依据。尽管它经常在以色列的背景下被引用，但学者们从来没有研究过——甚至没有考虑过——在二战后的任何其他占领背景下，这一规范是如何被解释和应用的。例如，红十字国际委员会(ICRC)颇具影响力的《习惯国际人道主义法研究》(Study on Customary International Humanitarian Law)列出了107个国家实践和联合国实践适用或解释禁令的例子，除了两个以外，其余都与以色列有关。关于第49条第(6)款禁止“转让”的范围和适用，存在着许多问题，但一般都是在纯理论上得到了解答。为了更好地理解第49条第(6)款的实际要求，本文仔细审查了它在所有其他可能适用的情况下的适用情况。本文研究的许多聚落企业从未被讨论或文献记载。所有这些情况都涉及移民进入被占领领土，人数从数千到数十万不等。事实上，也许每一次对连续可居住领土的长期占领都会导致大量的定居活动。这种对国家实践的系统研究，形成了清晰的模式。引人注目的是，国家实践描绘了一幅与第49(6)条之前的传统智慧明显不一致的画面。首先，人民向被占领土的迁移是长期交战占领的一个几乎无处不在的特征。第二，没有任何占领国采取任何措施阻止或阻止这种定居活动，也没有任何占领国在法律上表示它必须这样做。第三，也许也是最引人注目的是，在所有这些情况下，国际社会或国际组织都没有将人员向被占领领土的移徙描述为违反第49(6)条。即使在少数情况下，这些政策遭到了国际社会的批评，但也不是在法律上。这表明，构成第49(6)条违反所要求的国家直接参与“转让”的程度可能比以前认为的要大得多。最后，无论是国际政治机构还是以前被占领领土的新政府，都从未把驱逐非法转移的平民定居者作为一种适当的补救办法。基于对所有现有国家实践的系统调查对禁止定居点的更深入了解，应该为关于阿拉伯-以色列冲突的法律讨论提供信息，包括国际刑事法院可能对这种活动进行的调查。更广泛地说，本文对第49条第6款的新理解也可以为如何正确对待几个正在进行的占领提供重要启示，从西撒哈拉和北塞浦路斯，到俄罗斯对乌克兰和格鲁吉亚的占领，本条首次记录了这些占领的解决政策。
{"title":"Unsettled: A Global Study of Settlements in Occupied Territories","authors":"E. Kontorovich","doi":"10.2139/SSRN.2835908","DOIUrl":"https://doi.org/10.2139/SSRN.2835908","url":null,"abstract":"This Article provides the first comprehensive, global examination of state and international practice bearing on Article 49(6) of the Fourth Geneva Convention, which provides that an “Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies.” This provision is a staple of legal and diplomatic international discussions of the Arab-Israeli conflict, and serves as the basis for criticism of Israeli settlement policy. Despite its frequent invocation in the Israeli context, scholars have never examined – or even considered – how the norm has been interpreted and applied in any other occupation context in the post-WWII era. For example, the International Committee of the Red Cross’s (ICRC) influential Study on Customary International Humanitarian Law lists 107 instances of national practice and UN practice applying or interpreting the prohibition, and all but two relate to Israel. Many questions exist about the scope and application of Art. 49(6)’s prohibition on “transfer,” but they have generally been answered on purely theoretically. To better understand what Art. 49(6) does in fact demand, this Article closely examines its application in all other cases in which it could apply. Many of the settlement enterprises studied in this Article have never been discussed or documented. All of these situations involved the movement of settlers into the occupied territory, in numbers ranging from thousands to hundreds of thousands. Indeed, perhaps every prolonged occupation of contiguous habitable territory has resulted in significant settlement activity.Clear patterns emerge from this systematic study of state practice. Strikingly, the state practice paints a picture that is significantly inconsistent with the prior conventional wisdom concerning Art. 49(6). First, the migration of people into occupied territory is a near-ubiquitous feature of extended belligerent occupations. Second, no occupying power has ever taken any measures to discourage or prevent such settlement activity, nor has any occupying power ever expressed opinio juris suggesting that it is bound to do so. Third, and perhaps most strikingly, in none of these situations have the international community or international organizations described the migration of persons into the occupied territory as a violation of Art. 49(6). Even in the rare cases in which such policies have met with international criticism, it has not been in legal terms. This suggests that the level of direct state involvement in “transfer” required to constitute an Art. 49(6) violation may be significantly greater than previously thought. Finally, neither international political bodies nor the new governments of previously occupied territories have ever embraced the removal of illegally transferred civilian settlers as an appropriate remedy.The deeper understanding – based on a systematic survey of all available state practice – of the prohibition on settlements should ","PeriodicalId":45189,"journal":{"name":"Journal of Legal Analysis","volume":"103 1","pages":"285-350"},"PeriodicalIF":2.2,"publicationDate":"2017-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"77757554","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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