试论非政府组织在国际环境法中的作用

非政府组织作为政府和企业以外的社会组织的第三种形式之一,在当前人类社会活动的不同领域正发挥着日益重要的作用。随着全球化不断向纵深发展,世界相互依赖的程度日益加深,我们享受着全球化带来的好处的同时,也面临着全球化环境问题的困扰。在传统的以强制力为基础的国家权威无力解决这一棘手问题时,非政府组织的作用渐趋突出,他们是国际环境法的参与者、监督者和促进者,是国际环保事业的重要组织者和参加者。     

论预先防范原则在国际环境法中的地位

预先防范原则是在20世纪80、90年代出现在国际环境法领域的一种新的处理缺少确切科学证据的环境风险的主张.迄今已有至少八个国际环境条约载入了与预先防范原则有关的内容,虽然具体用词不尽相同;与预先防范原则有关的案例也已经有数个.以这些为研究对象,探讨预先防范原则在国际环境法上的地位.现在预先防范原则还没有形成国际环境法领域的习惯法,但很多国家愿意在处理缺少确切科学证据的环境风险时,使用与其相关的方法或措施.     

国际公法在WTO争端解决中的作用与应用

WTO法是在国际公法的大背景中创制的,WTO协定不是存在于一个不受一般国际法影响的制度中。WTO法从来就不是一个封闭的、自给自足的法律制度,WTO规则是更广泛的国际公法内容的一部分,它在国际公法的框架内运作,并不是脱离国际公法的法律子系统。至少在解释的层面,它们总是会有某种程度的互动。国际公法可为WTO规则提供规范背景,有助于WTO无具体规定的某些方面的运作或提供解释性指导。在解释WTO协定的必要范围内,专家组和上诉机构有权使用或考虑其他条约、习惯和一般法律原则。但是,它们并非作为法律适用。在WTO争端解决中,其他国际法规则的作用是有限的、辅助的。     

Reforming International Environmental Governance: An Institutionalist Critique of the Proposal for a World Environment Organisation

This article argues that a World Environment Organisation (WEO) does not promise to enhance international environmental governance. First, we claim that the establishment of an international organisation alone in a policy field currently populated by regimes cannot be expected to significantly improve environmental governance because there is no qualitative difference between these two forms of governance institutions. Second, we submit that significant improvement of international environmental governance through institutional re-arrangement must rely on a modification of decision-making procedures and/or a change of institutional boundaries. Third, we develop three principal models of a possible WEO. A WEO formally providing an umbrella for existing regimes without modifying issue-areas and decision-making procedures would be largely irrelevant. A WEO integrating decision-making processes of existing regimes so as to form comprehensive world environment rounds of intergovernmental bargaining would be largely dysfunctional and prone to a host of negative side-effects. A supranational WEO including large-scale use of majority decision-making and far-reaching enforcement mechanisms across a range of environmental issues might considerably enhance international environmental governance, but it appears to be grossly utopian. In conclusion, a WEO cannot be at the same time realistic, significant and beneficial for international environmental governance. Available political resources should be invested in advancing existing and emerging sectoral environmental regimes rather than in establishing a WEO.     

Clustering of Multilateral Environmental Agreements: Potentials and Limitations

The concept of clustering of multilateral environmental agreements (MEAs), i.e. the integration of groups of MEAs or parts thereof, has acquired prominence in recent discussions about reforming international environmental governance. Understood as a continuing process, clustering of MEAs aims at advancing the ongoing process of integrating the elements of this system more systematically and dynamically. This paper proceeds in three steps. First, it demonstrates that a distinction needs to be made between clustering of organisational elements of MEAs and their functions, since the conditions and the effects of their integration differ significantly. Second, it argues that – in contrast to several existing approaches that seek to build clusters starting from similarities in one dimension – any attempt to integrate elements of MEAs needs to be based upon the analysis of a range of factors that influence the prospects of such integration (including overlap of membership and issues, practical feasibility, legal obstacles, and functional requirements). Third, the article contrasts the main potential benefits of a clustering of MEAs, namely efficiency gains and an increase in the coherence of international environmental governance, with the main challenges of international environmental policy, namely reaching agreement, implementing such agreement effectively and preventing/managing inter-institutional conflict. While clustering cannot be expected to make a significant direct contribution to addressing these challenges, it has a potential to economise and enhance the system of international environmental governance with positive indirect effects promoting better international environmental protection in the longer term.     

The Design of Environmental Regimes: Social Construction, Contextuality, and Improvisation

While much of the literature on environmental regimes has focused on effectiveness, this article takes a new look at a lesser-studied topic, the evolution of regime design. Understanding how regimes differ in design, and how various factors and processes shape such design, is important if we are to more carefully craft these regimes. We should also pay close attention to the formative role of social construction and context. Focusing on transboundary marine programs, we see that their designs basically follow a common template, namely that of the UNEP (United Nations Environmental Programme) Regional Seas Programme. However, the action of context (i.e., local actors and political processes) can modify these designs away from the common template. The extent to which these programs begin to differentiate from each other may be an important sign of program maturity and responsiveness to context. In this article, we examine a set of transboundary marine programs to uncover what the important dimensions of differentiation are. Then, we focus on one specific program, the SSME (Sulu-Sulawesi Marine Ecoregion) and closely trace how its specific form and organization came about. The analysis is informed by a model of institutional coherence that portrays institutions as the product of multiple generative mechanisms (e.g., social construction, ecological fit, and others). While it is premature to make definite judgments about the relative merits of competing regime designs, the work provides us with a new mode of analysis that can provide helpful directions for institutional assessment.     

Science and Policy in International Environmental Agreements: Lessons from the European experience on Transboundary Air Pollution

Science and policy come together in the use of computer models for International Environmental Agreements (IEAs). We study a successful case in using Integrated Assessment Models (IAMs) in defining the long-range transboundary air pollution policies in Europe. In the light of the history of the LRTAP Convention of the UN-ECE, we consider the special circumstances which led to the success of the RAINS model that was employed. We find that the collaborative, self-aware and evolutionary character of the institutional framework built among the LRTAP Convention, IIASA and the EU facilitated the successful adoption of RAINS. We also show how the limits of computer models, fully recognised in this case by producers and users, leave issues of uncertainty, distribution and ethics unresolved. When facing international negotiations, several coalitions might emerge. An analysis of the situtation is done in terms of First-Comers and Late-Comers in Environmental policy, the first group undertaking the initiative to formulate international policies on issues that are of concern to themselves and for which they have acquired technologies, models and know-how, while the second group is just following international policy and most often viewing it as a constraint. This is discussed in the example of the Spanish participation in the negotiations about sulphur emissions in the buildup to the Oslo Protocol. The adoption of the precautionary principle is often being used as a way to handle uncertainty when facing urgent policy responsibilities for environmental issues.     

The Fate of Public International Law: Between Technique and Politics

Public international law hovers between cosmopolitan ethos and technical specialization. Recently, it has differentiated into functional regimes such as 'trade law', 'human rights law', 'environmental law' and so on that seek to 'manage' global problems efficiently and empower new interests and forms of expertise. Neither of the principal legal responses to regime-formation – constitutionalism and pluralism – is adequate, however. The emergence of regimes resembles the rise of nation States in the late nineteenth century. But if nations are 'imagined communities', so are regimes. Reducing international law to a mechanism to advance functional objectives is vulnerable to the criticisms raised against thinking about it as an instrument for state policy: neither regimes nor states have a fixed nature or self-evident objectives. They are the stories we tell about them. The task for international lawyers is not to learn new managerial vocabularies but to use the language of international law to articulate the politics of critical universalism.     

Overlapping International Regimes: The Case of the Intergovernmental Forum on Forests (IFF) between Climate Change and Biodiversity

A great number of organisations and actors are participating in a plethora of international and regional fora geared towards the forest issue. Are there inherent traits about how these fora interact that can increase understanding about why the forest issue seems largely to be at a standstill? In this article I focus on the final meeting of the Intergovernmental Forum on Forests (IFF-4) and examine the overlap with the Convention on Biological Diversity (CBD) and the overlap with the Climate Change Convention (UNFCCC). How have the overlaps between these international fora been dealt with and why has one led to linkages while the other has not?

     

国际商事仲裁裁决承认和执行中的公共政策问题

在国际商事仲裁裁决的承认和执行中,公共政策是一个极不确定的因素,一国为保护本国当事人的利益,可能会以此为由拒绝承认和执行外国仲裁裁决.国际法协会国际商事仲裁委员会认为,在国际商事仲裁裁决的承认和执行方面,应采纳国际公共政策的概念,以避免因各国对公共政策的理解不同而影响国际商事仲裁裁决在世界范围内的承认和执行.该委员会还认为,一国的国际公共政策包括该国所希望保护的与道德和公正相关的基本原则、该国的强行法规范以及该国应承担的国际义务,并对其具体适用提出了针对性的建议.     

The Evolving Structure of the Environmental Justice Movement in the United States: New Models for Democratic Decision-Making

Over the last two decades in the United States, mainstream environmental organizations have reduced, rather than increased, democratic participation by citizens in environmental problem-solving. The environmental justice movement, on the other hand, has served to enlarge the constituency of the environmental movement by incorporating poorer communities and oppressed people of color into environmental decision making process; build community capacity by developing campaigns and projects that address the common links between various social and environmental problems; and facilitate community empowerment by emphasizing grassroots organizing over advocacy. This paper outlines the different components in the environmental justice movement. It is our contention that if researchers and policymakers continue to conceive of the ecological crisis as a collection of unrelated problems, then it is possible that some combination of regulations, incentives, and technical innovations can keep pollution and resource destruction at tolerable levels for more affluent socioeconomic populations. However, poor working class communities and people of color which lack the political–economic resources to defend themselves will continue to suffer the worst abuses. However, if the interdependency of issues is emphasized as advocated by the environmental justice movement, then a transformative environmental politics can be invented.     

国际法在非洲国家国内法中的地位和作用

国际法在国内法中的地位问题对致力于宪政改革的非洲国家来说,具有重要的意义。国际法与国内法的关系在理论上存在着分歧。在实践中,各国通常采用采纳或转化方式使国际法在国内法院中得以适用。非洲国家在实践中主要遵循了英国和法国的做法。南部非洲的一些国家不但在宪法中规定了国际法在国内法中的地位,而且还规定国内法院在对宪法或其他法律进行解释时,要利用或考虑到国际法。而其他许多非洲国家不愿将国际法直接纳入到它们的宪法中。不过,即使宪法中没有规定国际法地位的非洲国家,它们的法院在审理案件时也常会参照有关国际法的规定。     

International Law-Making in the Field of Sustainable Development:The Unequal Competition Between Development and the Environment

Since 1992, the tension between environmental and developmental concerns has been a central element in the international law-making process which has resulted in the adoption of various treaties and international instruments in the field of sustainable development. These instruments show that reconciliation between environment and development has not been easy to achieve. The balance seems to tip in favour of the protection of the environment. This paper explores how some of the "well-established" principles and concepts of international environmental law, as well as some new developments in this field, may have contributed to the tendency of excluding conditionality and equitable considerations from the elaboration and application of an increasing number of obligations taken by States in the field of environmental protection. It is contended here that environmental protection has developed to a certain extent at the expense of international economic law relating to development. This has been an incidental consequence of, at least, three elements: the movement toward more participation of transnational civil society in the international environmental law-making process; the use of a rights and duties language which helps to mask the developmental aspects sometimes involved in the prevention of environmental damage; and, the attractiveness of the establishment of a right to a healthy environmental.     

Advancing Direct Corporate Accountability in International Human Rights Law: The Role of State-Owned Enterprises

Resorting to the immensely state-centric international legal system to regulate corporate human rights abuses is often viewed as inadequate. Among many proposals aiming at filling the international regulatory gaps, imposing international human rights obligations directly on corporations is a bold one, which, due to profound doctrinal and practical challenges, is yet to be materialized. However, state-owned enterprises (SOEs), given their prima facie “state–business nexus” that blurs the traditional public–private divide, might provide a renewed opportunity to push forward the “direct international corporate accountability” campaign. This study investigates whether SOEs represent a golden chance for direct corporate accountability in the international legal regime. This study provides a legal analysis supported by case law, and by comparative and empirical research when appropriate. After providing a definitional account of SOEs, it examines the legal status of SOEs under international law. Then, in the reverse direction, it proceeds to explore if the state–business nexus of SOEs as non-state actors could render the argument toward direct international corporation accountability more convincing. Major findings reveal that SOEs, to a limited extent, represent a renewed opportunity to rethink direct corporate accountability under international law.     

The Griffiths Question Map: A Forensic Tool For Expert Witnesses’ Assessments of Witnesses and Victims’ Statements

Expert witnesses are sometimes asked to assess the reliability of young witnesses and victims’ statements because of their high susceptibility to memory biases. This technical note aims to highlight the relevance of the Griffiths Question Map (GQM) as a professional forensic tool to improve expert witnesses’ assessments of young witnesses and victims’ testimonies. To do so, this innovative question type assessment grid was used to proceed to an in‐depth analysis of the interview of an alleged 13‐year‐old victim of a sexual assault and two rapes. Overall, the GQM stressed how the interview was mainly conducted in an inappropriate manner. The results are examined with regard to scientific knowledge on young witnesses and victims’ memory. Finally, it is argued that expert witnesses in inquisitorial systems might use the GQM while encountering difficulties to fulfill the legal standards for expert evidence in adversarial systems because of the lack of studies regarding its reliability.     

Environmental Governance: The Role of Institutions in Causing and Confronting Environmental Problems

This article describes and explains in accessible terms major findings arising from the work of the long-term international research project on the Institutional Dimensions of Global Environmental Change (IDGEC). In analyzing the roles institutions play in both causing and confronting environmental problems, the project directs attention to three analytic themes – known as the problems of fit, interplay, and scale – and seeks to illuminate these concerns through empirical studies of marine, terrestrial, and atmospheric systems. IDGEC science has highlighted the pervasiveness of institutional misfits and begun to identify the reasons why misfits often prove difficult to eliminate, even when their existence becomes widely known. Research conducted under the auspices of the project demonstrates the growing impact of national and even international institutions on the effectiveness of local resource regimes. Similarly, IDGEC research has identified reasons why policy instruments that work well at the national level (e.g., tradable permits) are frequently difficult or impossible to transfer to the international level. To make the discussion of these findings concrete, the project has explored the problem of fit with particular reference to the performance of Exclusive Economic Zones, the problem of interplay through an analysis of the fate of tropical forests, and the problem of scale through an account of the limits of emissions trading as a policy instrument in the climate change regime.     

The Arts and International Relations: The Evolving Identity of the Edinburgh International Festival in the Cold War Era

This article attempts to discuss the delicate relationship between the arts and international politics and the instrumental role the arts may play in international relations. The paper sets the Cold War as the stage and uses the Edinburgh International Festival as the subject of research to trace the interplay between the arts and international relations. Specifically, the article answers the questions of how the festival was impacted by the changing international relations over the Cold War period and how the festival as an arts organization exerted influence on international politics.     

The Role of Forensic Botany in Solving a Case: Scientific Evidence on the Falsification of a Crime Scene

Forensic botany can provide useful information for pathologists, particularly on crime scene investigation. We report the case of a man who arrived at the hospital and died shortly afterward. The body showed widespread electrical lesions. The statements of his brother and wife about the incident aroused a large amount of suspicion in the investigators. A crime scene investigation was carried out, along with a botanical morphological survey on small vegetations found on the corpse. An autopsy was also performed. Botanical analysis showed some samples of Xanthium spinosum, thus leading to the discovery of the falsification of the crime scene although the location of the true crime scene remained a mystery. The botanical analysis, along with circumstantial data and autopsy findings, led to the discovery of the real crime scene and became crucial as part of the legal evidence regarding the falsity of the statements made to investigators.     

Legacy Contaminants of Emerging Concern: Lead (Pb), Flint (MI), and Human Health

Abstract

As a heavy metal industrially mined for millenia, lead (Pb) is a legacy contaminant. It is also a contaminant of emerging concern because of its persistence, toxicity, and recent discovery of its resurgence in drinking water serving homes and schools, recently and most notoriously in Flint, Michigan. Concern about lead, however, has reemerged beyond Flint, exemplifying adoption of bad science policy despite availability of relevant good science. Much is known about lead toxicity, and profiled here. Whereas adults chronically exposed to lead may experience peripheral neuropathy, infants and children are more susceptible. They constitute sensitive subpopulations because their blood-brain barriers are immature, making them susceptible to central nervous system effects, most notably reduced IQ, when lead penetrates to developing brains. Failure to protect disadvantaged populations in Flint and beyond despite availability of proven science and inexpensive technology also exemplifies instances of environmental injustice. Emerging concern about lead thus illustrates failure of social as well as science policy. A critical lesson to be learned is that vigilance must be maintained, as knowledge about lead exposure and toxic effects provided by science does not automatically result in consistent and evenhanded legal and regulatory protection provided by government.