公共卫生与人权

本文是置人权于中国公共卫生场域中的阐释。起因是2004年后——2004年,人权在中国入宪——当人们试图以人权作为转型中中国公共卫生的基础理念时,却发现从旧体制（计划经济体制）走出来的中国公共卫生很难在实际上接受人权：是同样地保护每一个人,还是保护大多数人;是首先着眼于管理,还是强调国家对每一个人的健康权的积极责任,是在中国,公共卫生必须面对的问题。     

Patents & the progress of personalized medicine: biomarkers research as lens

This article addresses the barriers to personalized medicine, focusing on the burgeoning field of biomarkers research. The author begins by framing intellectual property issues as more than a product of industry incentives and suggests that these issues are deeply entangled with other barriers facing personalized medicine such as regulatory framework deficiencies. The author proposes a set of future research questions to more fully define the barriers to biomarkers research and to uncover which corrective measures may be effective. The author concludes by recommending an integration of regulatory and patent reforms, with a call to action by scholars, scientists, representatives of the biopharmaceutical industry, and policy-makers.     

Are Those Cookies for Me or My Baby? Understanding Detained and Incarcerated Teen Mothers and Their Children

This article describes the barriers to understanding and meeting the needs of detained and incarcerated teen mothers and their children and suggests strategies for overcoming these barriers. The barriers include impaired research access, insufficient programs and services, and improper conditions of confinement. The author presents a blueprint of girl‐specific strategies for improving services, such as the administration of a needs‐based intake screening and assessment. Exemplary programs from around the nation are cited and their methods described. The article provides a comprehensive plan for systemic change that can be effected by judges, lawyers, program administrators, and other juvenile justice professionals.     

论专利壁垒的剥削性

专利壁垒有两点区别于传统的非关税贸易壁垒:一是它不仅出现在跨国贸易的流通领域,而且存在于一国的产业领域;二是专利壁垒表面上是为阻止竞争产品进入专利保护地域,而实质上是为保护专利产品市场,拉动专利产品生产规模,使专利权尽可能实现价值增量,从而获得超额剩余价值,因此,专利壁垒具有剥削性。通过创新型劳动的价值计算、创新型劳动与剩余价值的形成、专利壁垒与剩余价值的实现等方面对专利壁垒的剥削性加以剖析,提出专利壁垒的应对方略不仅要从国家和企业两个层面着手,更应当从构建和谐共赢的国际知识产权法律制度和建立国际经济新秩序大视角着眼。     

The EU Restriction of Hazardous Substances Directive: Problems arising from Implementation Differences between Member States and Proposed Solutions

Directive 2002/95/EC, the Restriction of Hazardous Substances or 'RoHS' Directive, restricts the use of environmentally hazardous substances in electrical and electronic equipment distributed and sold in the EU from 1 July 2006. The Directive's objectives are to harmonize EU Member States' national legislation and protect human health and the environment. This article reveals differences in the implementation of the RoHS Directive at the time it took effect. Differences were revealed in the analysis of results obtained from telephone interviews conducted with all but four of the 25 EU Member State RoHS enforcement officials. Differences in implementation created barriers to the achievement of the RoHS Directive's objectives and caused problems for producers of electrical and electronic equipment. The article attributes the principal cause of differences in implementation to insufficiently detailed text in the RoHS Directive. The article also considers how barriers and problems could have been prevented and makes proposals to solve them.     

The health and human rights movement: progress and obstacles

There is a new maturity about the health and human rights movement as it endeavours to integrate human rights into health policies at the national and international levels. In addition to the traditional human rights techniques, such as "naming and shaming", the movement is also using new approaches such as indicators, benchmarks and impact assessments. However, it is confronted with a range of major obstacles and this article focuses on two of them: the inadequate engagement within the health and human rights movement of (i) established human rights non-governmental organisations and (ii) health professionals. This article argues that established human rights non-governmental organisations should work on health and human rights issues, such as maternal mortality, just as vigorously as they already campaign on disappearances, torture and prisoners of conscience. Also, it emphasises that health and human rights complement and reinforce each other. Nevertheless, many health professionals have never heard of the right to the highest attainable standard of health. The article argues that there is no chance of operationalising the right to health without the active engagement of many more health professionals, and it makes some preliminary observations about steps that might be taken to deepen health professionals' engagement in the health and human rights movement.     

Ensuring Fairness and Justice for Noncitizen Survivors of Domestic Violence

Immigrant women who are abused face multiple barriers to seeking legal protection from the abuse. In many cases, immigrant women are unaware of the protections afforded noncitizens by the Violence Against Women Act (VAWA) and subsequent immigration laws. They may assume that noncitizens cannot access legal remedies or may fear deportation from being exposed as a noncitizen. These and other barriers such as language access and misinformation about U.S. laws about violence further shift the burden to judges, attorneys, and advocates to ensure that immigrant women are not underserved. The courts must also be aware of the consequences for noncitizens who perpetrate domestic violence. This article will provide a comprehensive overview of issues facing the courts when noncitizens are petitioners, respondents, or both in domestic violence cases, including a discussion of findings that can be made for immigrant survivors of domestic violence.     

Parallel trade and free trade agreements

Legal context. Free trade agreements seek to remove unjustifiedbarriers to trade. Normally barriers to trade are imposed bystates, such as quotas, tariffs, subsidies and regulatory restrictions.However, sometimes barriers will be imposed by private partiesseeking to prevent parallel trade (arbitrage) of their own products.The aim of this article is to examine the way in which freetrade agreements deal with private barriers to parallel tradeand thus to consider to what extent parallel trade is possiblewithin free trade areas. Key points. The article considers first the situation withinthe European Community, which has long supported parallel tradethrough its provisions on the free movement of goods and competitionlaw, before turning to the approach taken in the Community'sfree trade agreements with third countries. It carries out thesame exercise in relation to the United States and then considershow parallel trade is dealt with by the World Trade Organisation.Finally, as free trade agreements only seek to remove unjustifiedbarriers, it considers possible justifications for the differentapproaches before drawing some tentative conclusions. Practical significance. This article considers the impact whichthe overlap between intellectual property, competition law andtrade law has in relation to parallel trade. As well as reviewingthe current position, which will be of use to businesses andlegal practitioners on both sides of parallel trade, it assessesthe underlying justifications which are relevant to policy makingin this field.     

Justice for victims of human trafficking in Australia? Issues associated with Australia’s criminal justice response to trafficking in persons

Australia has witnessed an increase in human trafficking cases in recent years, most of which have involved women trafficked for sexual exploitation. In response, and within the framework of the United Nations Protocol to Prevent and Suppress Trafficking in Persons, especially Women and Children, Australia has introduced legislation to combat human trafficking and punish traffickers. However, the number of prosecutions of human trafficking offences in Australia has, to date, been low. Drawing on the available literature, this article sets out to explore the reasons for this, which the paper argues have largely centered on Australia’s previously restrictive visa framework for trafficking victims. The paper also explores other obstacles and barriers to successful prosecutions, such as issues associated with discrediting and attacking vulnerable witnesses, and lengthy and complex trials. The paper argues that Australia needs to increase its efforts to meet the obligations set out by the United Nations Recommended Principles and Guidelines on Human Rights and Human Trafficking, and to balance its priorities regarding prosecution and victim protection.     

SITUATED IDENTITIES OF YOUNG, AFRICAN AMERICAN FATHERS IN LOW-INCOME URBAN SETTINGS

Young, low-income, African American fathers have been at the center of research, practice, and policy on families over the past decade. This article uses a "voicing" analytic technique to examine identities among young, low-income, African American fathers living in an urban setting; the intersections of these identities; and the fathers' perceptions of the influences of familial, peer, and legal systems as barriers and resources in their development as fathers and the sustainability of their fathering roles. The primary questions addressed urban fathers' representations of their transition to fatherhood, intergenerational relationships, transformative events, and visions of a possible self. Results from a survey, focus groups, and interviews suggest that the fathers seek to reinvent themselves and reconstruct their identities by separating from street life, redefine home as a place of stability, and challenge the practices of social and legal systems that appear to work against their responsible fathering.     

Regulatory Jurisdiction and the WTO

The WTO is not explicitly concerned with the problem of regulatoryjurisdiction in connection with prudential regulation (as opposedto industrial policy regulation). However, as the WTO has addressedincreasingly complex regulatory barriers to trade, it has developedseveral devices that have the implicit effect of allocatingregulatory jurisdiction among states.This article reviews afew illustrative cases in WTO law, including Helms–Burton,Shrimp, and Gambling. This review suggests how these cases maybe understood as dealing with allocation of regulatory jurisdiction.Negative integration rules such as national treatment or proportionalitymay serve as devices applied by tribunals for allocation ofregulatory authority. The WTO has very limited rules of positiveintegration—whereby states either harmonize regulationor agree on more specific allocations of regulatory authority,such as mutual recognition. However, it has developed a modestdegree of capacity to engage in positive regulation, or to referto positive integration rules developed in other contexts, suchas Codex Alimentarius. Finally, this article examines theoreticalbases for allocating and reallocating regulatory jurisdictionin order to establish a framework by which to analyse the roleof the WTO in this context.     

A cross-national analysis of policies affecting innovation diffusion

Innovation diffusion is important for both firms’ profitability and countries’ economic growth. For these reasons, policies that aim to reduce the main barriers to innovation diffusion are a relevant issue on the agenda of most policy makers. Although the importance of this topic is widely recognized, few studies explore public policies that aim to enhance innovation diffusion. This article attempts to fill this literature gap. Specifically, the study aims to clarify the role of policy makers in promoting new technology diffusion, to identify the barriers that affect the process of innovation diffusion and that are relevant for public policy makers and to analyze potential policies to overcome the main barriers to the diffusion of new relevant technologies. This study shows that public policies must simultaneously address the most relevant barriers to the diffusion of a new technology to be effective. Focusing on only specific barriers by developing policies with a too narrow scope may lead to poor results. The study explores a topic that is almost neglected in the innovation management literature. On the one hand, the article provides a conceptual framework for analyzing public policies. On the other hand, it proposes an overview of the repertoire of policies that policy makers can use to overcome the most relevant barriers to the diffusion of a new technology. In doing so, it also contributes to the debate about the role of the policy maker in the process of innovation development and diffusion.     

我国积极应对绿色壁垒的法律对策

随着可持续发展理念的深入人心以及全球性环境保护运动的开展,加之贸易保护主义的抬头,绿色壁垒作为一种技术性贸易壁垒的新形式为广大发达国家所利用,这对发展中国家特别是我国的对外贸易提出了挑战。本文分析了绿色壁垒的涵义、成因及表现形式,指出了绿色壁垒对我国的影响,提出了我国应对绿色壁垒的法律对策。     

Resistance to the mainlandization of criminal justice practices: a barrier to the development of restorative justice in Hong Kong

This article examines the political and legal barriers to introducing restorative justice (RJ) in Hong Kong. It argues that the processes involved in RJ may be in conflict with the rule of law, which is regarded by the citizens of Hong Kong as sacrosanct in their resistance to the "mainlandization" of criminal justice practices after China resumed sovereignty of Hong Kong. It is argued that, because it could admit such potentially harmful Chinese criminal justice concepts as "rule by the people," "absence of the presumption of innocence," "leniency for self-confession and severity for resistance," and "toeing the party line," RJ would be devoid of any restorative substance and could breach the principles of due process.     

Compensation for medical injury in New Zealand: does "'no-fault" increase the level of claims making and reduce social and clinical selectivity?

The issues of patient safety and quality of care have gained policy attention with a growing appreciation of the scale and impact of medical injury in health systems. While the focus is clearly on the prevention of iatrogenic injury, the question of patient compensation is now also considered important, if only because in fault-based tort systems the fear of litigation may itself be a barrier to the disclosure and open discussion of medical error. No-fault systems, by contrast, do not require proof of culpability, and thus may both reduce barriers to compensation and increase disclosure of error. Little evidence, however, is available on the performance of such systems. This article reports on the analysis of two data sources-a sample of hospital admissions and a complete set of compensation claims for medical injury. Both are for the same year and region of New Zealand, a country that has maintained a no-fault system of accident compensation for a quarter of a century. Just over 2 percent of hospital admissions were associated with an adverse event that was potentially compensable under scheme criteria. While the claims process was well targeted, the level of claims making and receipt was low, with the ratio of successful claims to potentially compensable events being approximately 1:30. Comparison of social and clinical characteristics of the two data sets revealed a degree of selectivity. Compared with the hospital events, the typical successful claimant was younger and female and was much more likely to have experienced a surgical adverse event that, while unexpected, was not due to substandard care. It is concluded that, in interpreting these results, account needs to be taken of a number of features unique to the New Zealand system. These include: the limited payoff for a compensation claim (no pain and suffering or lump sum, free hospital care); the relative complexity of the grounds for claim (either rarity and severity or practitioner error); and a history of limited litigation for medical error. This suggests that, while the New Zealand system is well targeted, cheap, and free of financial and legal barriers, a change in legal doctrine alone has not in itself been sufficient to remove completely the selective and low level of claims making traditionally associated with patient compensation under tort.     

论体育赛事转播权的体育法规制

体育赛事转播权作为一种体育行业约定俗成的惯用语,在我国并未构成法律权利。体育赛事转播“三点三层”的商业模式和法律构架能够证明,体育赛事转播建筑于赛事组织者对于体育赛事所享有的某种未经法律认可的基础性权利。学理分析表明,“商品化权”和“无形财产权”的学说并不能正确解释此种基础权利,而“物权”和“民事权益”的解释方法也难以精确的定位该权利属性。因此,赛事组织者对体育赛事所拥有的绝对权难以在现有法律体系内得到妥善解释。在比较欧美体育强国有关体育赛事转播权法律定性的基础上,本文指出,赛事权利应由体育法进行规范,赋予体育协会赛事权利人的合法地位,从而借助民法和体育法间的一般法和特别法关系完整保障赛事权利,这也是解决具有行业特殊性的体育法律问题的一种有效方式。     

The relationship between mandated community treatment and perceived barriers to care in persons with severe mental illness

OBJECTIVE: In recent decades debate has intensified over both the ethics and effectiveness of mandated mental health treatment for persons residing in the community. Perceived barriers to care among persons subjected to mandated community treatment, and the possibility that fear of involuntary treatment may actually create or strengthen such barriers rather than dissolve them, are key issues relevant to this debate but have been little studied. This article explores the link between receipt of mandated (or "leveraged") community treatment and reasons for avoiding or delaying treatment reported by persons with severe mental illness. It also examines the potential moderating effect of social support on the association between mandated treatment experiences and barriers attributable to fear of involuntary commitment or forced treatment. METHOD: Data are presented from a survey of 1011 persons with psychiatric disorders being treated in public-sector mental health service systems in five U.S. cities. Logistic and negative binomial regression analyses were used to examine the association between mandated community treatment and perceptions of barriers to care, controlling for demographic and clinical characteristics. RESULTS: Across sites, 32.4% to 46.3% of respondents reported barriers attributed to fear of forced treatment. Whereas 63.7% to 76.1% reported at least one non-mandate-related barrier to care; the mean number of non-mandated barriers to care ranged from 1.6 to 2.3 (range 0-7). Between 44.1% and 59.0% of participants had experienced at least one type of leveraged treatment. Persons experiencing multiple forms of mandated treatment were more likely to report barriers to care in comparison to those not reporting mandated treatment. Findings also indicated that social support moderates the relationship between multiple leverages (three or four forms) and mandate-related barriers to care. CONCLUSIONS: Perceived barriers to care associated with mandated treatment experience have the potential to adversely affect both treatment adherence and therapeutic alliance. Awareness of potential barriers to care and how they interact with patients' perceived social support may lead to improved outcomes associated with mandated treatment.     

Intimate Partner Violence Related Stress and the Coping Experiences of Survivors: “There’s Only So Much a Person Can Handle”

Intimate partner violence (IPV) is a prevalent problem associated with multiple negative outcomes for survivors’ well-being. Coping has emerged as an important construct in understanding the association between IPV and survivors’ well-being. Research is needed to better understand the contextual complexity of IPV as a stressor, determine if IPV is a unique stressor, and document survivors’ coping experiences. This article reports findings of a qualitative study with 25 female survivors and 6 service providers. Analysis of interview data shows 3 key themes: (a) coping strategies used by survivors; (b) challenges and barriers to coping with IPV; and (c) IPV as a unique stressor. Despite multiple challenges and barriers to coping with IPV, survivors use multiple, varied strategies to cope with their experiences of abuse. However, given the context and nature of IPV, violent victimization is a distinct stressor with unique barriers that often require IPV-specific coping strategies.     

Human Rights in an Era of Neoliberal Globalization: The Alien Tort Claims Act and Grassroots Mobilization in Doe v. Unocal

This article examines a widely publicized corporate accountability and human rights case filed by Burmese plaintiffs and human rights litigators in 1996 under the Alien Tort Claims Act in U.S. courts, Doe v. Unocal , in conjunction with the three main theoretical approaches to analyzing how law may matter for broader social change efforts: (1) legal realism, (2) Critical Legal Studies (CLS), and (3) legal mobilization. The article discusses interactions between Doe v. Unocal and grassroots Burmese human rights activism in the San Francisco Bay Area, including intersections with corporate accountability activism. It argues that a transnationally attuned legal mobilization framework, rather than legal realist or CLS approaches, is most appropriate to analyze the political opportunities and indirect effects of Doe v. Unocal and similar litigation in the context of neoliberal globalization. Further, this article argues that human rights discourse may serve as a common vocabulary and counterhegemonic resource for activists and litigators in cases such as Doe v. Unocal , contrary to overarching critiques of such discourse that emphasize only its hegemonic potentials in global governance regimes.     

For the Love of Darcie: Recognising the Human–Companion Animal Relationship in Housing Law and Policy

This paper identifies the law’s failure to recognise and protect the human–companion animal relationship in the housing arena. The nature of the human–companion animal relationship has striking similarities to human–human relationships in the socially supportive aspects of the relationship such as attachment, nurturance and reliable alliance. This contributes to the social life and sense of well-being of the owner. There is also evidence that the human–companion animal relationship can have physical health benefits such as lowering the risk of death by cardiovascular disease. It is clear that society benefits from the human–companion animal relationship, which many owners perceive as akin to family, in the form of healthier, less isolated people with better social networks. Yet in the key area of housing, the law does nothing to protect or even recognise this relationship. In consequence, every year thousands of tenants in both the public and private sector are faced with ‘no pet’ covenants in their leases and grapple with difficulties such as reduced housing options, higher rents or the traumatic decision to give up their companion animal for rehoming or euthanasia. This is especially prevalent amongst vulnerable people, like the elderly and mentally ill, who are more likely to need to move into supported accommodation. This article examines housing law in countries, such as France and Canada, that prohibit ‘no pet’ covenants in residential leases and provides arguments for the effective formulation and implementation of such law in the UK.