政治哲学中的“自由”观论

在当代社会的法律和政治话语中,“自由”已取得了支配性的地位,但其内涵和外延仍然较为模糊,甚至一切非“自由”的或反“自由”的也成为了“自由”的。应在现代性的情景下重新审视政治哲学中的“自由”观。     

ISO Standards Addressing Issues of Bias and Impartiality in Forensic Work

The ISO/IEC 17020 and 17025 standards both include requirements for impartiality and the freedom from bias. Meeting these requirements for implicit cognitive bias is not a simple matter. In this article, we address these international standards, specifically focusing on evaluating and mitigating the risk to impartiality, and quality assurance checks, so as to meet accreditation program requirements. We cover their meaning to management as well as to practitioners, addressing how these issues of impartiality and bias relate to forensic work, and how one can effectively evaluate and mitigate those risks. We then elaborate on specific quality assurance policies and checks and identify when corrective action may be appropriate. These measures will not only serve to meet ISO/IEC 17020 and 17025 requirements, but also enhance forensic work and decision-making.     

China and UN environmental policy: institutional growth,learning and implementation

The focus of this article is on whether, and to what extent, the major UN bodies for environmental issues—the United Nations Environmental Programme (UNEP), the Commission for Sustainable Development (CSD), and the Global Environmental Facility (GEF)—have had any impact upon how China addresses and approaches its environmental issues. The UN bodies seem to have had some degree of day-to-day influence in a range of fields. UNEP has provided assistance in terms of policy formulation, technical assistance, training of personnel, public awareness and networking. The CSD seems to have made fewer practical and concrete contributions to China’s environmental policies; it serves as an arena for learning and discussion of environmental issues, rather than as a body for policy implementation. The GEF, on the other hand, has been an important source for the implementation of environmental policies in China. As to China’s contribution to environmental issues on the global arena, China does not seem to give priority to the international level of environmental policies. It is an active participant and stakeholder in international bodies such as UNEP and the CSD, but it is currently not providing any leadership. This is in clear contrast to domestic policy, where environmental issues are becoming increasingly important, attracting the attention of the media, policy-makers and the public. The article concludes that should this trend consolidate, establishing the management of the environment and natural resources as major issues in Chinese politics, it is reasonable to expect that China will in the future aim to play a leading role in environmental politics at the international level.     

从自由到平等:美国言论自由的现代转型

自1960年代开始,美国言论自由开启了从经典时期向现代的转型。在色情作品、仇恨言论和竞选经费三个领域,言论自由分别与性别平等、种族平等和财富平等正面相遇。通过把"平等"价值引入言论自由这一转型,使色情作品、仇恨言论和竞选经费从单纯的自由问题变为平等与自由间的平衡;同时,为了促进平等,它还强调法律和政策应告别形式中立,必须向弱势群体有所倾斜。这一转型相当于一场言论自由的"新政",终结了言论自由的洛克纳时代,重塑了言论自由的范式和议程,并对当代言论自由的发展产生持续和深远的影响。     

The Case for Large Participatory Conferences as a Means of Decision Making in International Environmental Law

As global environmental concerns such as climate change draw ever greater attention, there are increasing demands for national governments to engage in coordinated, internationally consistent decision making on environmental mandates, standards, and related matters. Are large participatory conferences the best means to achieve effective, consensus-based decision making in international environmental law? This article proposes two sets of reasons to answer this question affirmatively. First, legal reasons, since several sources of international law point to an incipient right to public participation in international environmental decision making, which could be satisfied by convening these conferences. And second, normative reasons, since allowing for participation is more consistent with the fundamental principles of liberty and equality, and participatory processes enhance the acceptance of the decisions and at the same time augment the possibilities of implementation.     

“后TRIPS时代”知识产权国际保护的中国路径

发达国家和发展中国家在有关知识产权国际保护议题上所产生分歧的根本原因在于双方在国际知识产权问题上的利益失衡。走出这种困境的出路在于知识产权国际保护制度的变革。从程序选择上看,知识产权国际保护应疏通其言论渠道;从实体规范上看,知识产权国际保护应弥补其制度缺失。     

国际刑事法院管辖权探究——以利比亚情势为视角

在利比亚战争期间,国际刑事法院对卡扎菲等人发出逮捕令,对卡扎菲政权的灭亡以及被追捕的有关人的生命、自由产生巨大影响。利比亚战争虽然已经结束,但国际刑事法院的各项诉讼活动仍在进行。通过利比亚战争期间国际刑事法院的一系列活动,可以看出国际刑事法院的管辖权依据、行使的方式和结构,同时也证明了国际刑事法院在处理重大国际事件,特别是国际罪行中的重要性、权威性、公正性和独立性。     

All Citizens are Created Equal,but Some are More Equal Than Others

Nationality is the legal bond between a person and a state that connotes full and equal membership of the political community. Yet, in the practice of states, not everyone who is admitted as a national enjoys the full package of rights attached, nor the same security of status. The phenomenon of inequality among citizens is particularly apparent when examining the question of how protected the legal bond itself is: citizenship by birth is more secure than citizenship acquired otherwise—such as by naturalisation—and mono citizens are less prone to withdrawal of nationality than persons with dual or multiple nationality. As nationality revocation gains new attention from states as a tool to counter terrorism, prompting much political, public and academic debate, the reality that this measure often applies only to particular sub-groups of citizens demands closer scrutiny. This article explores how law and practice on citizenship deprivation is to be evaluated against contemporary standards of international law. While states justify unequal application of citizenship deprivation measures by invoking the duty to avoid statelessness, this article shows that the application of other international standards such as non-discrimination and the prohibition of arbitrary deprivation of nationality calls into question the legitimacy of citizenship stripping as a security instrument. Finally, the article reflects on the broader implications of the current trend towards greater inequality of citizenship status as a reaction to the perceived threat that terrorism poses to the integrity of the state, discussing how the creation of different classes of citizen is in fact likely to have a deeper and more lasting impact on the foundations of liberal democracies.

     

The Trilemma of European Economic and Monetary Integration,and Its Consequences

The article analyses trade‐offs between sovereignty, mass politics and economic and monetary union (EMU), employing Rodrik's paradox of globalisation. The logic of EMU is incompatible with sovereignty and mass politics—only two of the three can coexist. It is argued that three different answers to the trilemma can be observed in the EU practice. In the initial EMU, integration was limited to safeguard mass politics and sovereignty. Member States were free to set economic policies in response to domestic mass politics. This proved unsustainable. During the crisis, democracy was sacrificed to bolster integration, while sovereignty was maintained. Rules on fiscal discipline and macroeconomic imbalances constrain mass politics, and non‐democratic institutions have acquired more prominent roles. Finally, long‐term plans for a genuine EMU envisage the strengthening of integration and moving the locus of democracy to the EU level, while weakening sovereignty. The analysis carries implications. If national courts insist on sovereignty and democracy, the likely consequence is an unworkable EMU, damaging the output legitimacy of the EU. The model adopted in the crisis reinforces the elite nature of the EU, undermines democracy at the national level and may bolster political extremism. This leaves the task of building the preconditions for democracy at the European level.     

Gangs and Coups D' Streets in the New World Disorder: Protean Insurgents in Post-modern War

The mutation of protean “street gangs” to insurgents illustrates that insurgents need not be ideologically oriented, and need not be traditional revolutionary fighters emerging from the mountains and jungles to take down or control a government. Rather, they may have their own specific commercial money-making motives, and can emerge out of the favelas, callampas, villas miserias, and pueblas jovenes (city slums) not so much to replace governments as to gain very lucrative freedom of movement and action within a supposedly sovereign national-state. Also, mature second and third generation gangs have been known to act as proxies and mercenaries for traditional nation-states that want to maintain “plausible deniability,” and to act as mercenaries for warlords, organized criminal organizations, and/or drug-trafficking cartels that—on certain occasions—need additional “fire-power”. The instability and lack of individual and state security generated by gangs phenomenon and their nefarious allies are also known to lead to the radical change of failed state status. In these terms, gangs are no longer a singular law enforcement issue. As crime and war become more and more indistinguishable, gangs must be considered a larger national security issue—that, paradoxically, must be viewed as a local concept.     

The European Court of Human Rights,Amicus Curiae,and Violence against Women

Are international courts and advocacy group legal mobilization shaping human rights politics? This question poses a theoretical and empirical challenge to state dominated understandings of international litigation. This article theorizes the interaction between advocacy groups and the European Court of Human Rights and the role this participation plays in the enforcement and development of human rights. The analyses examine institutional factors shaping broad trends in mobilization complemented by two in depth studies examining a single mode of participation, amicus curiae and a single area of law, violence against women. The data identify the critical role standing rules, court review powers and group expertise play in transnational rights mobilization and development. The findings bring into question dominant understandings of international law and contribute to a more complex understanding of law in a global age where international courts and societal actors are shaping the direction of rights protection.     

论欧洲人权机构对人身自由与安全权的保护

人身自由与安全权是一项重要的基本人权,同时也是实现其他权利的基础.作为<世界人权宣言>发表后诞生的第一个区域性人权保护组织,欧洲人权机构通过其丰富的判例对"人身自由"与"人身安全"内涵作出界定,确立了人身自由与安全权保护的一系列标准,并注重对被依法剥夺人身自由者所享有的权利的保护,但是,欧洲人权机构在保护人身自由与安全权方面存在人权委员会与人权法院对个案的决定相互矛盾的问题,欧洲人权法院对个别案件作出的判决也存在对公约的规定适用不当和对该项权利保护乏力的问题.     

National innovation systems and the globalization of nanotechnology innovation

While there has been much emphasis over the last decade on the science of nanotechnology and on the implications and risks of potential applications, it is now timely to increase attention to the emerging dynamics of nanotechnology commercialization. This paper examines, from a global perspective, where and how corporations are entering into nanotechnology innovation. The paper tests the proposition that a significant shift has occurred in recent years in the orientation of corporate nanotechnology activities—from research discovery to patented applications. It also examines the extent to which the character and structure of corporate nanotechnology activity by country initially reflects national innovation system characteristics and prior public research funding inputs in the stage when discovery is most emphasized. The results indicate that national innovation systems characteristics are significant factors in the commercialization shift of nanotechnology and highlight the importance of innovation system policy factors. We also observe the influence of cross-border international invention linkages, suggesting that national innovation policies also need to be open and international in orientation.     

Linking the global to the national: an application of the international pathways model to examine the influence of international environmental agreements on Cameroon’s forest policy

Cameroon’s tropical forest cover is one of the largest in the world. It is home to some of the world’s rarest plant and animal species. However, the country has suffered extensive forest loss for many decades as a result of socioeconomic and political factors. The growing global concern for the health of the world’s forests and related global issues has placed pressure on Cameroon to sustainably manage its forests. The intricacies of domestic and international pressures on Cameroon’s forest sector means that policy makers have to take into consideration the dynamics of the domestic-international nexus in developing the country’s forest policies. The increasingly integrated global governance of the world’s forests—international agreements, protocols and treaties, international program, international institutions, international actors, and international norms—together constitute international policy regimes that have influenced the direction of Cameroon’s forest policy. Employing the international pathways framework model, an analytic model which describes how transnational actors and international institutions affect domestic policies and policy making, this paper examines the extent to which international environmental agreements have influenced the direction of Cameroon’s forest policy and policy making. The application of the international pathways model facilitated analytic review and allowed for a better understanding of how Cameroon has utilized the complex global forest governance arrangements to enhance its domestic forest policy.     

International Law as Language—Towards a “Neo” New Haven School

This paper examines the tension between the mainstream belief in international law as a source of objectivity distinct from politics and its new stream critics that question the validity of such a distinction. It is argued that, as a type of language, international law is not distinct from politics as a function of objectivity, but rather by the fact that it serves the international community’s thymos. The phenomena of global administrative law and NATO’s use of force in Kosovo are analyzed as examples of how the thymos drives international law. Building on feminist theories of international law, the article sets forth a vision of international law as the primary communicative device for the international community’s thymos.     

宪法上的自由之极限:美国"劳伦斯案"评析

基本自由权之逻辑终点,可分为内外两面:所有自由中自主性最高的那一个,可谓自由之内在极限;而在整体法秩序中,宪法实定法所能给出的最边界自由,可谓自由之外在极限。当代国家所面临的同性恋者权利问题,正是自由这两个面向结合最为紧密的法律难题之一。面对这样一个临界权利的难题,2003年的美国联邦最高法院,在公认是持保守主义观点的大法官占多数的格局下,却通过劳伦斯案判决,对当今人类实定宪法上的最为极限的自由,做出了一个颇为激进的自由主义宣告。     

挑战与回应:全球化视野下的国家主权

全球化是一个涉及到人类经济、政治、文化和社会生活诸领域的世界性历史进程。经济全球化不仅从多方面影响了主权国家的经济职能和经济主权,而且通过法律全球化对国家的法律主权构成了一定的挑战。经济全球化深刻影响到世界政治组织的构成及其活动方式和范围、对以国家为中心的、分散的主权政治架构也会产生广泛的影响。文化全球化推动了全球体系中的文化整合与文化嬗变,影响了人们的主权观念,并在一定程度上制约着人们的行为以及人们之间的关系模式,改变着国家的政治生活形式,深刻影响着国家的文化主权,对民族国家和国际社会的治理及其宪政化提供了新的机遇并带来了新的挑战。因此,为了推进全球法治进程,必须树立新的主权理念,实现主权要素的重构。     

The Concept of Liberty in "A Theory of Justice" and Its Republican Version

Abstract. The Author offers three interpretations of the Rawlsian conception of liberty. At the same time he compares this formal version of civil and political liberty with the substantive version produced by the republican theory of liberty. The first question is this: Can liberties be unequal? Here the liberal concept of liberty is discussed linking human will of liberty and equality. The second question is: Can liberties be equal when their respective values are not? The Author stresses the Rawlsian distinction between liberty and the value of liberty showing the risk of reducing the less powerful to dependency. The third question is: Can political liberty be limited for the sake of personal liberties? From a republican perspective the answer to the Rawlsian instrumental conception of political liberty is that all personal liberties are necessarily founded on political liberty.*     

Just-in-Time Justice: Globalization and the Changing Character of Law,Order, and Power

This article examines how economic globalization has dialectically interacted with the nation-state and legal order to facilitate the production of “just-in-time justice”—the increasingly flexible character of law, order, and power. Utilizing Chambliss’s analytic strategy, particularly his dialectical approach to lawmaking, I first examine the relationship between the global social order, economic globalization, and the changing architecture of nation-states. I then explore ways that the legal order has been flexibilized, including the creation of “states of exception,” the privatization of social control functions of the state, the development of transnational spaces for governance, and the widespread use of surveillance. My analysis of these transformations suggests that the greatest danger in the contemporary moment may be what we do not know, what is hidden from public accountability, beyond the public gaze. Importantly, this analysis also highlights that law continues to matter—or else there would not be such a press to ensure its disappearance.     

International human rights and the collegiation of journalists: The case of Costa Rica

This article examines the controversial Latin American practice of requiring colegio membership for journalists. The focus is a ruling by the Costa Rica Supreme Court that declared the obligatory‐membership requirement of the Costa Rica College of Journalists—one of Latin America's strongest colegios—to be unconstitutional because it violated the free expression clause of the American Convention on Human Rights. The courts incorporation of the American Convention's standard of press freedom is considered for its reliance on a provision of the Costa Rica Constitution that requires human rights protections of international treaties be held superior to national laws. The rationale's significance for the entire region—where 13 countries have colegio laws—is weighed by analyzing comparable clauses in the constitutions of other Latin American countries.