Institutions and the Growth of Knowledge: Evidence from International Environmental Regimes

This article argues that institutions not only reflect ideas prevalent at the time of their creation, but also play vital roles in driving the growth and dissemination of knowledge. Because institutions are not actors in their own right, however, it is essential to identify the mechanisms through which they influence the behavior of those who are producers and consumers of knowledge. The central section of the article explores three distinct mechanisms or families of mechanisms that come into play in this context:(1) framing the research agenda, (2) privileging certain types of knowledge claims, and (3) guiding the application of knowledge to specific policy concerns. The article's concluding section examines the policy implications flowing from the proposition that institutions play significant roles in creating knowledge regarding the issues they address. Throughout, observations relating to international environmental or resources regimes provide a source of illustrations.     

国际核安全合作法律机制研究

核武器扩散、核能利用安全、核恐怖主义问题是当前国际核安全领域急需解决的热点问题,亦是关乎世界和平与安全的重大命题.解决该问题需要各国超越政治制度的差异和意识形态的分歧,实现真诚的谅解和持久的合作,建立国际核安全法律机制.现有的国际核安全合作法律机制是以限制核能军用、促进核能民用的国际法律文件为基础、以国际原子能机构为组织核心辅以多边及双边实践的初具规模的体系,然而该体系仍有诸多不足.完善国际核安全合作法律机制需要:改善核安全机制的法律基础;优化国际原子能机构的效能;建立稳定、合作与互信的国际安全大环境;在集体安全的框架里,加强国际社会的团结合作.     

A Century of Green Lessons: The Contribution of Nature Conservation Regimes to Global Governance

This paper reviews the lessons learned over the past 100 years in international management and conservation of the Earth's natural heritage and biological resources (fauna and flora), in the face of growing threats of degradation and extinction. The focus is on the effectiveness of intergovernmental and non-governmental institutions – in terms of agenda-setting, regime formation, implementation and compliance, and reactions to non-compliance. Among specific case histories analysed are the ivory trade ban, the whaling moratorium, and attempts at establishing an international forest regime. Innovative governance features highlighted in the field of global living resource management include active NGO participation, the use of selective economic incentives and disincentives (e.g. multilateral or bilateral trade sanctions), and a number of judicial enforcement remedies for both species-based and area-based conservation agreements. The paper concludes by assessing the prospects of transition from the paradigm of 'permanent sovereignty over natural resources' towards new concepts of public trusteeship and stewardship.     

Protecting the Right to Housing in the Aftermath of Natural Disaster: Standards in International Human Rights Law

In 2006, the United Nations High Commissioner for Refugees reportedthat an average of 211 million people each year were directlyaffected by the accumulated impact of natural disasters.¹ Thisis approximately five times the number of people thought tohave been affected by conflict over the past decade.² It iscommonly expected that, as a result of climate change, populationgrowth and inappropriate urbanisation, the incidence, severityand impact of natural disasters will continue to rise. And yetwhile the obligations of states in situations of armed conflicthave been extensively debated, the applicability of human rightslaw in the aftermath of natural disaster has not been so widelyexamined by regional or international human rights bodies. Thispaper considers the obligations of governments in the aftermathof natural disasters, with a particular focus on the right tohousing. The applicability of human rights law (and specificallyeconomic, social and cultural rights) in the aftermath of naturaldisaster is considered in a general sense, followed by a discussionof the content of the right to housing, and the obligationsof governments to respect, protect and fulfil this right inthe course of responding to disaster. The question of whetherstates have an obligation to provide restitution, compensationor other form of reparation to those who have lost homes, landand property by reason of natural disaster is also discussed.The paper draws on examples from the Indian Ocean tsunami (2004),the Pakistan earthquake (2005) and the South Asian floods (2007),and identifies specific elements of government obligations thatare of particular importance in ensuring the right to adequatehousing in the aftermath of natural disaster.     

Facilitating corruption and human rights violations: the role of international financial institutions

The connection between corruption and the suppression of human rights has been recognized by scholars of human rights, state and state-corporate crime, non-governmental organizations, the United Nations as well as various governments. Scrutiny of governmental and/or regime corruption has been a primary focus, in relation to barriers and/or violations of human rights. Additionally, multinational companies’ complicity in corruptive policies and practices has raised concerns, in particular in the arms and natural resources sector. Glaringly absent, however, within the criminological literature are discussions of, and research on, the role of international financial institutions (IFIs) in relation to high levels of state corruption, save for the relatively little criminological research that has explored how cooperative endeavors between international financial institutions, transnational corporations, and states often result in demonstrably harmful activities as a result of structural adjustment policies. As such, it seems appropriate to consider how certain components and/or policies of IFIs facilitate rather than constrain corruptive practices by regimes, militias, paramilitaries, and transnational corporations. Such an exercise is not only important for its etiological contributions, but also to draw criminological attention to this phenomenon and because these organizations have stated a commitment to reducing state level corruption. I hope to extend the focus and insights of criminological analysis of crimes of globalization herein.     

Human rights and the peace process in Northern Ireland

The notion that the abuse of human rights leads to conflict has been recognised by commentators and international legal instruments. Human rights activists in Northern Ireland have long argued that the failure on the part of the government to comply with its international obligations to protect rights has exacerbated the conflict. This essay is predicated on the thesis that, as issues of justice and the abuse of rights were central to the genesis of the conflict, they must also be the seminal strands in the search for peace. By way of an audit measured against the proposals of human rights activists and the recommendations of international institutions charged with assessing UK compliance with human rights treaties, the essay examines the changes in the human rights situation in Northern Ireland since the declarations of the ceasefires. The discussion draws on the experience of other jurisdictions to support its central thesis. Finally, the reasons for the UK reluctance to adopt a more rights-centred approach to peace negotiations are outlined, and the practical benefits which would result from such an approach is considered. Committee on the Administration of Justice The views expressed here are those of the author and do not necessarily reflect those of CAJ.     

Law and Institutional Legitimacy in the Practice of Human Rights

The Heart of Human Rights develops an account of human rights as legal entities that serve important moral purposes in a legitimate international human rights practice. This paper examines Allen Buchanan’s general concept of institutional legitimacy and aims to expand that concept by emphasizing its connection with several ideas developed in the book about the nature and function of a system of international human rights. When it incorporates those ideas, Buchanan’s ‘Metacoordination View’ can be seen to set a standard of legitimacy not only for assessments of an international scheme of human rights institutions, but also for the basic institutional structures of domestic states. Furthermore, we can see how the nature and function of human rights in the international practice of human rights bears on legitimacy assessments of particular domestic institutions.     

知识产权国际造法新趋势

在 TRIPs 协议产生后十余年的时间里,知识产权国际造法活动明显加快。在WTO 体制之外,不少国际组织、机构和论坛围绕着如何处理保护知识产权与维护生物多样性、合理开发植物基因资源、促进公共健康、维护人权之间的关系等问题,对 TRIPs 协议所确立的一系列高标准的知识产权规则提出了批判,探讨和制订了一系列软法性质的、倡导人权和维护社会公共利益的知识产权新规则。这些活动打破了 WTO 和 WIPO 在国际法层面上对知识产权立法权的垄断,反映了国际社会对知识产权私权利之外的人权、公共健康等社会权益的日益重视,势必对未来知识产权国际立法和国内立法产生深远影响。     

Of Austerity,Human Rights and International Institutions

Austerity measures have led to the denial of social rights and widespread socio‐economic malaise across Europe. In the case of countries subjected to conditionality imposed by international institutions, the resultant harms have highlighted a range of responsibility gaps. Two legal developments come together to expose these gaps: Greece's argument in a series of cases under the European Social Charter that it was not responsible for the impact on rights brought about by austerity measures as it was only giving effect to its other international obligations as agreed with the Troika; and the concern to emerge from the Pringle case before the European Court of Justice that European Union (EU) institutions could do outside of the EU what they could not do within the EU ‐‐disregard the Charter of Fundamental Rights. That the Commission and the European Central Bank were in time answerable to international organisations set up to provide financial support adds an additional layer of responsibility to consider. Taking Greece as a case study, this article addresses the imperative of having international institutions respect human rights.     

Black Box Production of Paper Fish: An Examination of Knowledge Construction and Validation in Fisheries Management Institutions

In this paper I examine the relationship of institutional structures of governance to the production, acceptance and legitimization of knowledge by various stakeholder groups participating in fisheries management arenas. I focus first on the New England groundfishery where the stock assessments of federal scientists have come under intense criticism by fishermen. As a counterpoint, I examine knowledge production for management purposes in two fisheries where cooperative management institutions have emerged: the Puget Sound region of Washington and the Kuskokwim River watershed of Alaska. Knowledge is produced and legitimated differently by the different stakeholders in the management process. The findings highlight the critical importance of two-way communication, in which stakeholder groups both listen and are listened to, in creating a legitimated and more robust knowledge base with which management decisions can be made.     

国际知识产权保护和我国面临的挑战

在全球化中知识产权保护不断强化、中央提出建设创新型国家的大背景下,我国的知识产权保护面临着挑战和机遇。基于对世界上主要国家、地区知识产权制度与相关国际条约及其对我国的影响之考察,对各国及国际的知识产权保护中值得借鉴之处的分析,我们应当做的是:一方面利用知识产权制度业已形成的高端保护推动国民在高新技术与文化产品领域搞创造与创作这个“流”,另一方面积极促成新的知识产权制度来保护我们目前可能处优势的传统知识及生物多样化这个“源”。这样,才更有利于加快我国向“知识经济”与和谐社会发展的进程。     

Moving from secrecy to transparency in the offensive cyber capabilities sector: The case of dual-use technologies exports

Transparency is central to the prevention of human rights abuses. Over the past few decades, a belief in transparency has permeated multiple industries, reflected in an explosion of legislation intended to further this principle. Yet, despite this emphatic recognition of the importance of transparency, the activities of government and private sector actors involved in the development, sale, and export of Offensive Cyber Capabilities (OCC) remain cloaked in secrecy regardless of the sector’s role in facilitating human rights abuses. In this article, we tackle this broader challenge of secrecy via a case study on the export of dual-use technologies. We theorize why secrecy has been so prevalent in the OCC sector. We consider the role of different forms of secrecy—such as commercial secrecy and opportunistic secrecy by governments—in facilitating this situation. We argue that injecting greater transparency into the OCC sector is critical to deterring human rights abuses through accountability and oversight, can help counter the proliferation of offensive cyber technology proliferation, and can ensure better overall governance in regimes governing the export of dual-use technologies. Mandating transparency by governments and exporting companies in the OCC sector can pave the way for policy changes to better regulate this industry and finds support in international human rights principles related to transparency. In closing, we examine how transparency might be incorporated into export frameworks addressing dual-use technologies.     

Sharing the benefits of biodiversity the Kani TBGRI deal in Kerala,India

Abstract

The United Nations Convention on Biological Diversity (CBD) concluded at the Earth Summit in 1992, mandates that where utilisation of the knowledge, innovations and practices of local and indigenous communities leads to benefits, such benefits shall be equitably shared with the holders of such knowledge, innovations and practices. The study analyses some of the issues that have emerged in the context of a ‘benefit sharing exercise’ attempted by the Tropical Botanic Garden and Research Institute (TBGRI), a research institute based in Kerala, with the Kani tribals of Kerala, pursuant to the development of a pharmaceutical drug, based on the knowledge, information and natural resources that the Kanis have nurtured over many years.

As the case study illustrates, the debate on benefit sharing in the absence of other fundamental rights such as the rights to land, access to the resource and adequate governance structures becomes a limited and myopic exercise. A ‘fair and equitable benefit sharing mechanism’ would therefore call for certain basic pre‐conditions that will be discussed in the course of the study.     

Localizing Gender Equality after Conflict

Debates have grown in recent years concerning the realistic utility and application of international human rights law to a local context. Since 2000, the United Nations Security Council has issued eight Women, Peace, and Security resolutions geared toward promoting gender equality measures in conflict prevention during conflict and post-conflict settings. The first of these resolutions, United Nations Security Council Resolution (UNSCR) 1325, has been adopted by a number of UN Member States through National Action Plans (NAPs), which provide a framework and roadmap for integrating gender equality measures at the domestic level. Although NAPs were once considered promising, they have largely been unsuccessful.

By examining the implementation challenges facing other gender equality measures and localization programs that seek more effective implementation of the Women, Peace, and Security Resolutions, the following argues that a bottom-up approach rather than a top-down approach must be considered more seriously by international actors supporting implementation and integration of international human rights law, not only for the obvious reason that it emboldens local agency in the adoption process, but also because it is likely to produce outcomes that are meaningful and sustainable for the communities most affected by these provisions.

As such, continued emphasis on change that emanates from the top down in a given country often ignores the reality that gender equality measures in international human rights law are often perceived by governments and civil society actors as a serious disruption to domestic gender norms. Sole reliance on state institutions to deliver these commitments is flawed because it fails to recognize the necessary dialog and contestation among various stakeholders concerning the role of external norms in a local context.     

Truth as Justice: Investigatory Commissions in Latin America

In recent years, Latin American countries have sought to come to terms with prior periods of widespread human rights violations, relying increasingly on investigatory commissions. Investigatory efforts have been undertaken by democratically elected governments that replaced military dictatorships, by UN-sponsored commissions as part of a UN-mediated peace process, and by national human rights commissioners. This article examines truth commissions in Chile and El Salvador, an investigatory effort in Honduras, and a proposed commission in Guatemala. It compares the achievements and limitations of these commissions within the political constraints and institutional reality of each country, focusing on four major goals: the effort to create an authoritative account of the past; vindication of victims; recommendations for legislative, structural, or other changes to avoid repetition of past abuses; and establishing accountability or the identity of perpetrators.     

State‐Sponsored Homophobia and the Denial of the Right of Assembly in Central and Eastern Europe: The “Boomerang” and the “Ricochet” between European Organizations and Civil Society to Uphold Human Rights

State‐sponsored homophobia emerged in certain Central and Eastern European states in the past decade, with the denial of the right of assembly for gay pride marches. However, more recently there has been progress in the recognition of the fundamental democratic right of assembly. What accounts for this progress in fulfilling commitments enshrined in the European human rights treaties? This article proposes that the response of European organizations, in particular the Council of Europe and the European Union, as well as human rights nongovernmental organizations working in collaboration with local civil society organizations, have been critical to this progress. Previous literature has described a “boomerang” effect, in which aggrieved citizens use transnational activist networks to publicize human rights violations and put pressure on governments to fulfill their international legal commitments. To understand the functioning and effectiveness of the “boomerang” we introduce the concept of the “ricochet”—a process in which various institutions and civil society rapidly exchange information as well as political and legal argumentation. We posit that the ricochet is an integral process in the development of a European consensus on the human rights recognized by the European Court of Human Rights. Four cases have been selected for empirical analysis: Poland, Latvia, Serbia, and Russia. In analyzing the ricochet of information and argumentation between institutions and civil society, we find the consensus has been framed around the right of assembly, instead of the more contested area of human rights and sexual orientation.     

The Politics of Punishment and the Siege of Sarajevo: Toward a Conflict Theory of Perceived International (In)Justice

Liberal legalism noncontroversially advocates procedural fairness and due process in institutions such as the International Criminal Tribunal for the Former Yugoslavia (ICTY). The visible conflicts come with the ebb and flow of international jurisdictional claims, suspicions of racial/ethnic and cultural biases in deliberations and decisions, prioritization of purposes in sentencing decisions, and the intrusion of institutional and international political debates into the liberal legal agenda. These conflicts threaten to create a legitimacy deficit in diffuse support for the ICTY. We examine these conflicts within the context of two surveys about the ICTY conducted in Sarajevo in 2000 and 2003. The results indicate that the citizens of Sarajevo increasingly believe that the ICTY is politically influenced by internationally appointed judges, peaking with the sentencing of Stanislav Galic for the siege of Sarajevo. This conflict focuses on issues of substantive rather than procedural justice and is increasingly articulated as a rejection of international political intervention that subverts the need for a local sense of justice. This may be a sequence of political conflict and disillusionment that is as inevitable as it is unavoidable.     

Prelapsarian State: Forgiveness and Reconciliation in Transitional Justice

Since South Africa's Truth and Reconciliation Commission (TRC), 'reconciliation' is now an authoritative discourse governing political transition. Reconciliation governs the 'moral reordering' of national communities in the wake of conflict and transition to more democratic regimes by enquiring into, and attempting to address, past gross violations of human rights perpetrated, in the main, against civilian populations by the state and its agents. Reconciliation eschews retributive justice in favour of 'restorative' modes of 'dealing with the past', and has come, broadly, to be institutionalised by the truth commission. South Africa's TRC animated theological discourses of forgiveness and Christian reconciliation in order to legitimise and endow with moral resonance the project of transitional justice. This article enquires into the political effects of such an animation, and investigates the performance of forgiveness and reconciliation as metaphor and narrative.     

中国国际私法诉讼竞合探究

诉讼竞合是由于各国对管辖权规定的差异而产生的一种现象。但对诉讼竞合 ,迄今我国既无相应的立法可资因应 ,亦没有形成判例规则。这种状况不仅不利于保护我国当事人的合法权益 ,而且亦使我国法院在面临此类问题时无所依循。因此 ,我国除应积极参与《国际民商事管辖权和判决的承认与执行公约》(即《海牙管辖权公约》)以及相关国际公约的制定之外 ,还需进行相应的补充立法以更好地协调国际私法诉讼竞合之法律冲突 ,促进国际司法协助的顺利进行