论气候变化对人权国际保护的影响

气候变化与人权国际保护都是当代国际法的热点问题,全球性、长期性与政治性是二者的共同特征。气候变化对人类社会和自然界的影响是多层次的,而它对人权国际保护的影响涉及国家安全、人道主义问题、发展权、健康权以及国际关系的调整等各个方面。中国作为全球温室气体排放大国,应转变观念,从战略高度重视气候变化问题;同时,还要加强国际合作,重视应对气候变化中的发展权,并加强与气候变化有关的法制建设。     

Turning the Tide: Recognizing Climate Change Refugees in International Law

Many of the debates surrounding the environmental, social, and economic implications of climate change are now well known. However, there is increasing concern over the extent to which those suffering displacement or forced migration as a result of climate change are protected. This article seeks to highlight the plight of such individuals and suggests how the current protection gap might be remedied. Present legal structures, such as the Refugee Convention and the framework for Internally Displaced Persons (IDPs), prove largely inadequate having been constructed for different purposes and being limited in their application. The alternative proposed in this article is a regionally oriented regime operating under the auspices of the UN Climate Change Framework. While both the Climate Change Convention and the Kyoto Protocol currently call for regional cooperation in respect of adaptation activities, it is argued there should be an explicit recognition of so‐called climate change refugees in the post‐Kyoto agreement that allows for, and facilitates, the development of regional programs to address the problem. Employing such a strategy would remedy the current protection gap that exists within the international legal system, while allowing states to respond and engage with climate change displacement in the most regionally appropriate manner.     

合作与牵制:气候变化的国际法律机制及其应对

全球气候变化问题是当前的热点话题,各国在参与实施《联合国气候变化框架公约》及《东京议定书》中都在积极寻求制高点。因此在全球气候变化的控制和实施方面,国际社会体现出合作与牵制两种表现,牵制是在谈判中的牵制,谈判是相互牵制的谈判,这两种表现中,合作是目的,牵制是手段。发展中国家要在2012年之前做好充分准备具有一定的挑战性,需要处理好合作与牵制的关系,我国面临的问题具有一定的独特性,处理好控制全球气候变化方面的合作与牵制的关系,积极应对全球气候变化问题。     

Good Climate Governance: Only a Fragmented System of International Law Away?

Fragmentation is the hallmark of international environmental law—it is both the key to its success and the pathway to its unraveling. Recognizing that law is an essential component of systems of supranational climate governance, addressing gaps between international legal systems is fundamentally important to the legitimacy of international law and to on‐going attempts to use international law as a central component in efforts to address climate change. This article analyzes developments in international environmental law with a view towards suggesting how efforts to develop an international climate change legal regime—and a broader system of global climate governance—highlight the pressing need to look more closely at the linkages between climate change and other areas of international law and to begin thinking about ways to minimize gaps and maximize cooperation among international environmental institutions and between international environmental law and other spheres of international law.     

中国刑法中的"没收"及其缺憾与完善

中国刑法规定的“没收”分为刑罚性质的没收和非刑罚性质的没收。没收刑制度在中国刑法中虽然予以了保留,但其存在也必然深受国际大气候的影响,其存在的合理性受到质疑。完善中国刑法中的“没收”制度应从如下方面着手:一是废止没收财产刑;二是将没收作为一种独立处分,以“对财产的强制处理方法”的名义单列;三是设立追征制度;四是对没收财产刑执行过程中可能发生的侵犯他人合法财产权益的情况规定没收补偿制度和没收替代制度;五是开展刑事没收的国际合作。     

Climate change and the credibility of international commitments: What is necessary for the U.S. to deliver on such commitments?

The engagement of the United States is critical to the success of any international effort against global climate change. Although international climate efforts require long-lasting, credible commitments by participating countries, risk of failure to deliver on such commitments rises with the degree of gap that the domestic institutions permit between the executive and the legislature. The U.S. withdrawal from the Kyoto Protocol indicated that the Clinton administration’s effort to bring international solutions into the domestic arena before domestic consensus was obtained was counterproductive. The congressional politics over budgetary allocation regarding the Bush administration’s technology policies showed that general preference to a technology-oriented approach to climate change alone did not ensure the credibility of international commitments. These cases revealed that the U.S. climate diplomacy was lacking in domestic institutional mechanisms that bring the executive branch’s deal at international negotiations, and the legislators’ preferences at home, closer together. For the U.S. to take leadership in international climate cooperation, domestic institutional frameworks which reconcile the interests of the two branches are necessary. This paper suggests that such domestic institutional frameworks feature two components: regular channels of communication between the two political branches; and, incentive mechanisms for the two branches to swiftly come to terms with each other.

Climate Change Policies, Energy Security and Carbon Dependency Trade-offs for the European Union in the Longer Term

Energy policy in the European Union (EU) faces two major challenges. The first challenge is posed by EUs commitment to reduce greenhouse gas emissions to the atmosphere in the context of the international agreement on climate change. The second challenge is to keep ensuring European security of energy supply, while its dependency on external sources of energy is projected to increase. In this paper, two long-term alternative climate change policy scenarios for Europe are examined. In the first scenario, EU reduces carbon dioxide emissions by domestic measures; in the second scenario EU maximizes cooperation with the countries of the former Soviet Union (FSU). Impacts on carbon flows between the EU and FSU and on the external energy dependency of the EU are assessed with an applied general equilibrium model, GTAP-E, whose set of energy commodities is expanded with combustible biomass as a renewable and carbon-neutral energy commodity. The results show that there is a trade-off between economic efficiency, energy security and carbon dependency for the EU. The FSU would unambiguously prefer cooperation.     

Global Climate Change and the Fragmentation of International Law

Born into the wider body of international law, the climate regime needs to be understood in light of preexisting regimes. By drawing on the current debate about fragmentation in international law, this article highlights challenges for international lawyers and policymakers in navigating the relationship between the climate regime and the biodiversity regime, and the relationship between the climate regime and the multilateral trading system. This article concludes that a narrow focus on conflicts misrepresents the multifaceted nature of climate change and precludes an adequate jurisprudential understanding of the relationship between the climate regime and other regimes. An improved understanding, particularly with respect to interactions with the biodiversity regime, requires a broadening of the debate that takes account of the institutional aspects of these relationships that may allow enhanced political cooperation and coordination. Further, international law, and in particular the emerging concept of systemic integration, has the potential to make a positive contribution to the climate‐trade interplay.     

Multilateral cybersecurity governance: Divergent conceptualizations and its origin

Conventional wisdom holds that none of the main global challenges of the 21st century—whether it is climate change, nuclear weapons or cyber insecurity—can be adequately addressed without proper international cooperation. However, multilateral cooperation in many issue areas including cybersecurity is in a state of gridlock. Diverging conceptualizations of the subject matter has been offered as one driving factor behind the difficulty to cooperate at the international level.This paper contends that while international cooperation in cybersecurity has been difficult because of diverging definitions and conceptualizations of the subject, which are apparent in the international system, the problem grew into a state of gridlock because this divergence is anchored in the incompatibility of the ways in which major cyber powers organize their respective political systems at home. As such, it is argued that, the role of the multilateral system to bring about any significant progress in cybersecurity governance is very limited.     

Attainability of International Environmental Agreements as a Social Situation

This paper applies the theory of social situations to study whether international environmental agreements (IEAs), mainly those on greenhouse gas emission reductions, can be attained. A game theoretic model is generally a black box for decision makers, where the mechanisms, which lead to solution(s) of the game, are not explicitly pointed out. This paper opens this black box by making the (institutional) move rules explicit. The usual pessimistic outcome with an ineffective and small size of stable coalitions among world regions is countered. Our model challenges conventional wisdom in the sense that large coalitions are possible outcomes of the cartel game, namely by incorporating: (1) farsightedness, and (2) coalitional moves with commitment as an alternative to myopic and individual moves which characterise the cartel game. We show that even if the international negotiations on climate change mitigation are modelled as an n-person prisoner's dilemma, one cannot rule out cooperation among world regions as a solution of the game. Indeed, in most analysed situations the grand coalition is among the solutions of the game. This shows that predictions based on cartel stability may be too pessimistic if it comes to analysing incentives to cooperate in implementing international environmental policy. Moreover, in an empirically calibrated model, we find three out of six instances where Russia (with or without the US) has an incentive to sign the Kyoto protocol.     

The role of the Asia Pacific Partnership in discursive contestation of the international climate regime

After withdrawing from the Kyoto Protocol, the US Bush Administration and the Australian Howard Government pursued an international climate change policy focussed on voluntary international agreements outside the UN climate negotiations. This strategy included the formation of several climate agreements directed at technology development, including the 2005 Asia Pacific Partnership on Clean Development and Climate (APP). The APP provides a model for international climate change policy directed at voluntary national greenhouse gas intensity targets, technology development through sectoral public–private partnerships and technology diffusion through trade. This article situates the APP within these US and Australian inspired climate agreements formed outside the UN negotiations. Bäckstrand and Lövbrand’s (in M. Pettenger (ed.) The social construction of climate change: power knowledge norms discourses, 2007) discourse analysis in relation to the international climate negotiations is used to explore differences between the APP and UN climate treaties. We find the APP embodies a discourse of what we call ‘deregulatory ecological modernisation’ that promotes limited public funding to ease informational failures in markets for cleaner technologies and management practices. The deregulatory ecological modernisation discourse is a deeply intensive market liberal approach to international climate change policy, which contests binding emission reduction targets and the development of a global carbon market. The USA, Australia, Japan and Canada represented a core group of countries that used the APP to promote the deregulatory ecological modernisation discourse and thereby contest any deepening of developed nations' emission reduction targets for the post-2012 period. However, with changes of leadership and new parties in power in the USA and Australia, it appears that the deregulatory ecological modernisation discourse has lost ground compared to a reengagement with discourses supportive of developed country emission reduction targets and equity-based adaptation and technology transfer assistance for developing nations.     

最密切联系原则的成因分析

最密切联系原则是20世纪中叶美国“冲突法革命”最卓越的成果,其一经产生便引起各国的瞩目,成为判断一个国家国际私法立法是否现代化的标准之一.该原则适应了国际社会迅速发展的形势需要,满足了国际社会对法律适用的公正性与合理性的追求,在国际私法发展史上具有里程碑意义.然而,任何理论的产生都并非是横空出世,最密切联系原则的形成与确立,既有其自身在现代国际关系中适应法律价值观从形式正义向实质正义转变的原因,也有政治、经济的巨大变革及实用主义哲学的推动因素.     

Climate change coalition formation and equilibrium strategies in mitigation games in the post-Kyoto Era

This paper analyzes the formation of country coalitions in the context of international negotiations on climate change mitigation and simulates the emergence of an equilibrium solution in this game-theoretic framework, while accounting for the interplay with external influences. Coalition formation is gauged through clustering analysis on multiple factors including natural, economic, and social factors, RCPs, and other aspects. Projected emission is found to be the main determinant in forming coalitions, and the USA, EU, China?+?India, and the rest of the world constitute the four-coalition configuration that is stable across different scenarios. Under this base configuration, the Regional Integrated Climate-Economy model for Coalition Game model is implemented to assess the sensitivity of equilibrium solutions to parameter uncertainties, sanctions on non-mitigation, and adjustments in coalition composition. The main conclusion of the game simulations is that no coalition would adopt a mitigation strategy at the Nash equilibrium if no penalty is in place. The Nash equilibrium remains stable even when the climatic and economic parameters are disturbed. As an alternative to the conventional game, an external sanction is imposed on coalitions that choose not to mitigate climate change; in this scenario, climate change mitigation propagates across coalitions according to various sanction levels. The paper also shows that a social welfare compensation between two coalitions may alter the equilibrium game strategy depending on whether the compensation outweighs the welfare loss from mitigation.     

The Climate Change Regime: An Enviro-Economic Problem and International Administrative Law in the Making

The climate change problem, or global warming, has gained a prominent place on the international political agenda, since the mid-1980s, when it first attracted political attention. The problem was initially perceived mainly as an environmental problem that could be resolved by technological solutions, its current perception, this essay argues, is best characterized as that of an enviro-economic problem. A perception that is exemplified by the ongoing negotiations for the development of economic mechanisms to tackle the problem. The climate change arena is a complex one, involving dichotomies between developed and developing countries, between fossil fuel producing and importing countries and between small island developing states and other states. This essay outlines the interests that play a role in the climate change negotiations and discusses the international climate change regime as contained in the United Nations Framework Convention on Climate Change and its Kyoto Protocol. It concludes that the climate change negotiations are complicated by the fact that the negotiators, in addition to developing new substantive rules for a complex problem, are involved in developing new systemic rules for the international legal system. These new systemic rules have more in common with rules of national systems of public or administrative law than with traditional rules of international law, which have many similarities with national systems of contract law.     

The Proposed 100 by 50’ Act: Protecting Collective Bargaining of Workers in a “Just Transition” to a Clean-Energy Future

There is a longstanding misconception that any overlap between environmental policy and labor rights results in conflict. With the intensifying threat of climate change and the decline of fossil fuel development, international labor and climate groups have collaborated to develop a framework for a just transition to sustainable development that emphasizes social dialog between stakeholders. An increasing number of nations are guided by this framework as each incorporates its own transition model. The United States, however, remains on the sidelines. This article proposes that the U.S. enact recently proposed legislation to transform its energy sector, while also protecting its workers and the environment.     

碳关税分析

碳关税将气候问题与国际贸易挂钩,将对中国国际贸易产生重大影响。从经济学与法学等多个角度,分析将碳排放量与国际贸易挂钩是否具有合理性与可行性,进而提出中国在此问题上应有的立场和应对措施。     

论《京都议定书》对国际政治和国际经济的潜在影响

《京都议定书》是国际社会在防止全球气候变暖的国际合作方面取得的一份具有里程碑意义的国际法文件。《京都议定书》对国际政治将产生如下影响:发展中国家,尤其是中国、印度等发展中大国承受着越来越大的减排压力;推动欧盟一体化的进程,并进一步提升欧盟的国际政治地位;发展中国家阵营内部呈现出进一步分化的趋势。《京都议定书》对国际经济的影响主要表现在:对各国总体的经济福利产生影响;《京都议定书》产生的“碳泄漏”问题可能使得缔约国在竞争力和产业结构调整等方面发生一系列变化;对国际资本流动产生影响;《京都议定书》将推动能源技术的进步,尤其是推动低碳技术和高能效技术的创新与扩散。     

Implicit Ingroup Favoritism,Outgroup Favoritism,and Their Behavioral Manifestations

Three broad themes that emerge from the social psychological research on unconscious or implicit prejudice and stereotypes are highlighted in this article. First, individuals who belong to socially advantaged groups typically exhibit more implicit preference for their ingroups and bias against outgroups than do members of socially disadvantaged groups. This research suggests that intergroup preferences and prejudices are influenced by two different psychological forces—people's tendency to prefer groups associated with themselves as a confirmation of their high self-exteem versus their tendency to prefer groups valued by the mainstream culture as a confirmation of the sociopolitical order in society. Second, these inplicit prejudices and stereotypes often influence people's judgements, decisions, and behaviors in subtle but pernicious ways. However, the path from implicit bias to discriminatory action is not inevitable. People's awareness of potential bias, their motivation and opportunity to control it, and sometimes their consciously held beliefs can determine whether biases in the mind will manifest in action. Finally, a new line of research suggests that implicit biases exhibited by individuals who belong to socially disadvantaged groups towards their own group may have unintended behavioral consequences that are harmful to their ingroup and themselves.     

气候保护和环境正义——气候保护的国际法律框架和发展中国家的参与模式

气候保护国际法律框架的公正性是发展中国家积极参与国际气候保护合作的一个重要前提条件。"人均平等排放权"原则作为分配减排义务的原则在法律上符合正义原则。这一原则应作为评价发展中国家在未来的气候保护法律框架中应承担的义务模式的标准。