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Emancipating human rights: Capitalism and the common good 解放人权:资本主义与共同利益
IF 1.5 2区 社会学 Q1 Social Sciences Pub Date : 2023-06-29 DOI: 10.1017/s0922156523000316
M. Salomon
This article begins with a study of the political economy of welfare capitalism to demonstrate how the private quest for profit was never going to be undermined by the advance of socio-economic rights. Contrary to the conventional view among human rights lawyers, capital draws power from its rights or welfarism. It is in recognizing the role that socio-economic rights play in serving capitalism that the field of international law concerned with structurally transformative human rights can begin to explore how socio-economic rights inhibit alternative forms of social organization. This work then turns to recovering property rights through a study of recent evictions and housing rights case law of the UN Committee on Economic, Social and Cultural Rights that problematizes structural inequities and calls the financialized capitalist system into question. Next this work investigates radical legal positivism in international indigenous rights jurisprudence for how it transcends the private ownership of indigenous lands and control over the means of production. The social function of property rights is then revisited and extended, drawing to a close an article that unearths how socio-economic rights might yet emancipate people from capitalist property relations, alter the underlying structure of the economy, and, in time, sever its concordance with the capitalist welfare state.
本文首先研究福利资本主义的政治经济学,以证明私人对利润的追求永远不会被社会经济权利的进步所破坏。与人权律师的传统观点相反,资本从其权利或福利主义中获得权力。只有认识到社会经济权利在为资本主义服务方面所起的作用,与结构性变革人权有关的国际法领域才能开始探索社会经济权利如何抑制其他形式的社会组织。这项工作随后转向通过对联合国经济、社会和文化权利委员会最近的驱逐和住房权利判例法的研究来恢复财产权,这些判例法使结构性不平等问题成为问题,并对金融化的资本主义制度提出了质疑。接下来,本研究探讨了激进的法律实证主义在国际土著权利法学中如何超越土著土地的私有制和对生产资料的控制。然后,财产权的社会功能被重新审视和扩展,最后一篇文章揭示了社会经济权利如何将人们从资本主义财产关系中解放出来,改变经济的基本结构,并及时切断其与资本主义福利国家的一致性。
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引用次数: 0
A coherence framework for fact-finding before the International Court of Justice 国际法院实况调查的连贯框架
IF 1.5 2区 社会学 Q1 Social Sciences Pub Date : 2023-06-09 DOI: 10.1017/s0922156523000286
J. Devaney
It is the task of the International Court of Justice to establish the operative facts from which to draw normative conclusions in all contentious cases that come before it. This task, however, is complicated where those facts necessitate engagement with specialized epistemic fields other than law such as science. Drawing on legal theory and epistemology I propose a coherence framework for the establishment of the facts in such cases. In essence, this means that the Court need not show that its factual determinations have been established beyond all doubt, nor even that they satisfy a certain standard of probability. Rather, what the Court must show is that a factual determination it has made has been arrived at through a rational process and that it is coherent. The coherence framework also has both descriptive and normative value as it both maps neatly on to the current (best) practice of the Court and provides a justification for why it should operate this way in the future.
国际法院的任务是确定可操作的事实,以便在其收到的所有有争议的案件中得出规范性结论。然而,这项任务很复杂,因为这些事实需要参与科学等法律以外的专门认识领域。根据法律理论和认识论,我提出了一个连贯的框架,以确定此类案件中的事实。从本质上讲,这意味着法院不需要证明其事实认定是毫无疑问的,甚至不需要证明它们符合一定的概率标准。相反,法院必须表明的是,它作出的事实决定是通过合理的程序作出的,而且是连贯一致的。连贯性框架也具有描述性和规范性的价值,因为它既与法院目前的(最佳)做法相吻合,又为法院今后为什么应该这样运作提供了理由。
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引用次数: 0
Beyond rhetoric: Interrogating the Eurocentric critique of international criminal law’s selectivity in the wake of the 2022 Ukraine invasion 超越修辞:质疑以欧洲为中心的对2022年乌克兰入侵后国际刑法选择性的批评
IF 1.5 2区 社会学 Q1 Social Sciences Pub Date : 2023-06-06 DOI: 10.1017/s0922156523000237
Patryk I. Labuda
Russia’s full-blown invasion of Ukraine has reinvigorated the debate over international criminal law’s selectivity. While many have welcomed the renewed interest in accountability for international crimes in the wake of the ‘Ukraine moment’, others have emphasized double standards in the enforcement of international criminal law, including a lack of accountability for Western violations and disproportionate attention to European victims. This article interrogates the master narratives about international criminal law’s post-Ukraine selectivity and complicates accusations of bias by emphasizing Ukraine’s liminal status in the global order and the cross-border nature of aggression as an explanatory factor for differentiated responses from states. It suggests that concerns about an invidious ‘Ukraine effect’ on international criminal law enforcement are less persuasive after the International Criminal Court’s decade-long conflict with the African Union, and that a decentring of investigations to Eurasia should be construed not only as a moment of soul-searching but also as a welcome opportunity to rebalance the scales of justice. The article encourages international criminal law stakeholders to move beyond critique that unwittingly essentializes Eurocentric assumptions and to devise a more compelling vision of global criminal law enforcement that challenges crimes and inequalities both between and within states.
俄罗斯对乌克兰的全面入侵重新激起了关于国际刑法选择性的辩论。虽然许多人欢迎在“乌克兰时刻”之后重新关注追究国际罪行的责任,但也有人强调在执行国际刑法方面存在双重标准,包括对西方违法行为缺乏问责,以及对欧洲受害者的过度关注。本文通过强调乌克兰在全球秩序中的有限地位和侵略的跨国界性质作为各国不同反应的解释因素,对有关乌克兰后国际刑法选择性的主要叙述进行了质疑,并使偏见指控复杂化。它表明,在国际刑事法院与非洲联盟长达十年的冲突之后,对国际刑事执法令人反感的“乌克兰效应”的担忧不那么有说服力,并且将调查分散到欧亚大陆不仅应该被解释为一个自我反省的时刻,而且应该被解释为重新平衡司法尺度的一个受欢迎的机会。这篇文章鼓励国际刑法的利益相关者超越那些无意中使欧洲中心假设变得本质化的批评,并设计一个更令人信服的全球刑事执法愿景,挑战国家之间和国家内部的犯罪和不平等。
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引用次数: 2
Mapping interpretation by the International Criminal Court 国际刑事法院对地图的解释
2区 社会学 Q1 Social Sciences Pub Date : 2023-05-25 DOI: 10.1017/s0922156523000225
Stewart Manley, Pardis Moslemzadeh Tehrani, Rajah Rasiah
Abstract This article is one of very few attempts to empirically measure legal interpretation. It maps the application of eleven interpretation elements (good faith, ordinary meaning, object and purpose, etc.) in Articles 31 and 32 of the Vienna Convention on the Law of Treaties (VCLT) across ten International Criminal Court case studies. The elements were coded for identity and sequence of element, and amount of text used in applying each element. The mapping and analysis reveal, among other things, that the application of the VCLT across cases is markedly inconsistent and, in some instances, opaque and arguably unjustifiable. The results suggest, at least based on this small sample, that the ICC’s current practice of applying the accommodating, flexible methodology of the VCLT may be inconsistent with the requirement of strict construction in Article 22 of the Rome Statute, and that even when strict construction does not technically apply, a more systematic, transparent, and robust approach should nevertheless still be followed.
本文是对法律解释进行实证衡量的为数不多的尝试之一。它绘制了《维也纳条约法公约》(VCLT)第31条和第32条中11个解释要素(善意、一般含义、目的和目的等)在10个国际刑事法院案例研究中的适用情况。对元素进行编码,以确定元素的身份和顺序,以及应用每个元素时使用的文本数量。映射和分析显示,除其他事项外,VCLT在不同情况下的应用明显不一致,在某些情况下,不透明且可以说是不合理的。结果表明,至少基于这一小样本,国际刑事法院目前采用灵活的VCLT方法的做法可能与《罗马规约》第22条严格解释的要求不一致,即使严格解释在技术上不适用,仍应遵循一种更系统、更透明和更稳健的方法。
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引用次数: 0
Responses of international legal academia to the Russian invasion of Ukraine 国际法学界对俄罗斯入侵乌克兰的反应
IF 1.5 2区 社会学 Q1 Social Sciences Pub Date : 2023-05-24 DOI: 10.1017/S0922156523000304
Anna Marhold
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引用次数: 0
The 2022 Russian intervention in Ukraine: What is its impact on the interpretation of jus contra bellum? 2022年俄罗斯对乌克兰的干预:它对反战争法的解释有什么影响?
IF 1.5 2区 社会学 Q1 Social Sciences Pub Date : 2023-05-22 DOI: 10.1017/s0922156523000249
Olivier Corten, Vaios Koutroulis
This article examines the precedential value of Russia’s ‘special military operation’ against Ukraine in February 2022 for the purpose of interpreting the rules of jus contra bellum. Following the methodology set down by the ICJ in its Nicaragua judgment, self-defence is identified as the legal basis explicitly invoked by Russia in order to justify its operation in Ukraine. The authors then examine closely the reactions by third states with respect to the legality of Russia’s military operation and establish that the legal arguments put forth by Russia – including, more specifically, an innovative reading of the right to self-defence of entities unilaterally recognized as states – have been overwhelmingly rejected by third states. On that basis, the authors conclude that this precedent does not challenge the established understanding of the prohibition to use force in international relations and of its exceptions.
本文考察了2022年2月俄罗斯对乌克兰的“特别军事行动”的先例价值,以解释战争反法规则。根据国际法院在其尼加拉瓜判决中规定的方法,自卫被认定为俄罗斯明确援引的法律依据,以证明其在乌克兰的行动是正当的。然后,作者仔细研究了第三国对俄罗斯军事行动合法性的反应,并确定俄罗斯提出的法律论点——更具体地说,包括对单方面承认为国家的实体的自卫权的创新解读——已被第三国绝大多数拒绝。在此基础上,提交人得出结论,这一先例并不挑战对国际关系中禁止使用武力及其例外情况的既定理解。
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引用次数: 0
The social field of international adjudication: Structures and practices of a conflictive professional universe 国际裁判的社会领域:一个充满冲突的专业领域的结构和实践
IF 1.5 2区 社会学 Q1 Social Sciences Pub Date : 2023-05-17 DOI: 10.1017/S0922156523000213
T. Soave
Abstract The modern professional world of international adjudication bears little trace of the ‘invisible college’ theorized by Oscar Schachter 50 years go. Instead, it has become a social field marked by a fierce competition among actors possessing unequal skills and influence. Moving from these premises, this article unravels the socio-professional dynamics of the community of legal experts – judges, arbitrators, government agents, private counsel, court bureaucrats, specialized academics, etc. – dealing with the judicial settlement of international disputes on a daily basis. On the one hand, the community has developed a specific set of social structures, practices, and dispositions that distinguish it from the rest of the international legal profession and insulate its activities from outside interference. On the other, it is the site of an endless struggle among its participants, who deploy various forms of capital to consolidate their positions relative to one another. Having outlined the twofold structure of the community – externally autonomous and internally conflictive – the article reflects on how co-operation and competition affect the everyday unfolding of international judicial proceedings and the production of legal outcomes at the international level.
50年前奥斯卡·沙克特提出的“隐形学院”理论在现代国际裁判界已经没有了痕迹。相反,它已经成为一个社会领域,其标志是演员之间的激烈竞争,他们拥有不平等的技能和影响力。从这些前提出发,本文揭示了法律专家社区的社会专业动态-法官,仲裁员,政府代理人,私人律师,法院官僚,专业学者等-在日常基础上处理国际争端的司法解决。一方面,法律界发展了一套特定的社会结构、实践和倾向,使其与其他国际法律界区分开来,使其活动不受外界干涉。另一方面,它是参与者之间无休止斗争的场所,他们部署各种形式的资本来巩固他们相对于彼此的地位。在概述了共同体的双重结构- -外部自治和内部冲突- -之后,这篇文章反映了合作与竞争如何影响国际司法程序的日常展开以及国际一级法律结果的产生。
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引用次数: 0
Judge Antônio Augusto Cançado Trindade: An unwavering quest for international justice and for the universalization and humanization of international law Antônio奥古斯托·卡纳帕拉多·特林达德法官(以英语发言):坚定不移地追求国际正义和国际法的普遍化和人性化
IF 1.5 2区 社会学 Q1 Social Sciences Pub Date : 2023-05-10 DOI: 10.1017/S0922156523000080
A. Yusuf
On 29 May 2022, our eminent colleague Antônio Augusto Cançado Trindade passed away in Brasilia, Brazil, after an extended illness. The International Court of Justice lost a unique and singular judge who was profoundly committed to justice among nations big and small, to the protection of the dignity of human beings whatever may be their station in life, and to the safeguarding of humanity and its home planet. International law lost one of its most distinguished, most productive, and most creative scholars. I lost a dear friend whom I had known for almost 50 years, and for whom I always had a lot of affection and admiration. Antônio Augusto Cançado Trindade was born in Belo Horizonte, Brazil, in 1947. He obtained his first degree in law from the Federal University of Minas Gerais (UFMG), where he initially developed his interest in international law. He decided to pursue this interest at the University of Cambridge, UK, where he obtained a Master’s degree and a PhD in international law. His doctoral thesis on the application of the rule of exhaustion of local remedies in international law was awarded the Yorke prize. It was also a prelude to his plentiful writing on international law as the thesis consisted of two volumes and 1,700 pages. It was later published by Cambridge University Press (1983, 443 pages) and has since become a work of reference in this area.1 This was not, however, his first book. He published his Fundamentos jurídicos dos direitos humanos, which reflected his life-long passion for human rights, in 1969 in Brazil.2 He went on to publish, before his death, 78 books and more than 790 articles and other publications, thus becoming one of the most prolific writers on international law in the twentieth and early twenty-first centuries. Having completed his studies in Cambridge, UK, Cançado Trindade went back to Brazil where he was appointed professor of public international law at the University of Brasilia in 1978, and a year later at the Rio Branco diplomatic academy where he taught several generations of Brazilian lawyers and diplomats. From then onwards, he devoted his life to the study, teaching and dissemination of international law and to the promotion and protection of human rights. For him the two were intrinsically intertwined, since, in his view, the ultimate purpose of law, and of international law in particular, was the protection of human rights and the promotion of human welfare. His career was thus marked by a constant endeavour for the humanization of international law.
2022年5月29日,我们的著名同事Antônio Augusto Cançado Trindade在巴西巴西利亚久病去世。国际法院失去了一位独特的法官,他坚定地致力于大小国家之间的正义,致力于保护人的尊严,无论他们在生活中的地位如何,致力于维护人类及其家园。国际法失去了一位最杰出、最有成果、最有创造力的学者。我失去了一位认识近50年的好朋友,我一直对他充满感情和钦佩。安东尼奥·奥古斯托·坎萨多·特林达德1947年出生于巴西贝洛奥里藏特。他在米纳斯吉拉斯联邦大学(UFMG)获得了第一个法律学位,最初在那里他对国际法产生了兴趣。他决定在英国剑桥大学攻读国际法硕士学位和博士学位。他关于用尽当地补救办法规则在国际法中的适用的博士论文被授予约克奖。这也是他关于国际法的大量写作的前奏,因为这篇论文由两卷1700页组成。这本书后来由剑桥大学出版社出版(1983年,443页),后来成为这一领域的参考著作。1然而,这并不是他的第一本书。1969年,他在巴西出版了《人权基金会》,反映了他一生对人权的热情。2他在去世前出版了78本书、790多篇文章和其他出版物,从而成为二十世纪和二十一世纪初国际法最多产的作家之一。在英国剑桥完成学业后,Cançado Trindade回到巴西,1978年被任命为巴西利亚大学国际公法教授,一年后在里约布兰科外交学院教授几代巴西律师和外交官。从那时起,他毕生致力于国际法的研究、教学和传播以及促进和保护人权。对他来说,这两者本质上是相互交织的,因为在他看来,法律,特别是国际法的最终目的是保护人权和促进人类福利。因此,他的职业生涯以不断努力使国际法人性化为标志。
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引用次数: 0
LJL volume 36 issue 2 Cover and Front matter 《LJL》第36卷第2期封面和封面
IF 1.5 2区 社会学 Q1 Social Sciences Pub Date : 2023-05-10 DOI: 10.1017/s0922156523000262
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引用次数: 0
LJL volume 36 issue 2 Cover and Back matter LJL第36卷第2期封面和封底
IF 1.5 2区 社会学 Q1 Social Sciences Pub Date : 2023-05-10 DOI: 10.1017/s0922156523000274
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引用次数: 0
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Leiden Journal of International Law
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