Global Birthright Citizenship Laws: How Inclusive?

Netherlands International Law Review - The principal way in which formal citizenship status is acquired is on the basis of birth, whether by descent (ius sanguinis) or territory of birth (ius...     

海外华人与国籍法——国籍法的社会学分析

海外华人对中国历史上的国籍立法具有十分重要的影响 ,这种影响不仅体现在海外华人的要求与力量是推动国籍立法的一个主要原因 ,而且也体现在立法中为争取海外华人的认同、维护华侨的正当利益、发展正常国家间关系对血统主义原则的采用以及关于入籍与出籍的一些具体规定上。海外华人对国籍立法的影响也说明 ,法律源于社会 ,即一部法律制定的起因及其采用何种原则 ,主要是受当时社会形势的影响 ,而关于立法的知识则在其次。     

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.

     

公民司法救济权的入宪问题之研究

司法救济权是宪法上的一项基本人权,其行使与保障首先需要由宪法做出安排。司法救济权与诉权在制度化的发展轨迹上有着明显的不同,司法救济权的入宪,绝不意味着是对诉权的简单重复。我国宪法并无关于司法救济权的直接规定,这种状况不仅淡化了宪法在保护公民司法救济权方面的功能,割裂了宪法与部门法之间在权利保护上的联系,也使得司法救济权这样一项基本人权被淹没在非基本权利之中而为人们所忽视甚至否定。基于司法救济权本身所固有的特定的宪法含义,只有将其纳入公民宪法权利的体系范畴之内,才能给予强有力的法律保障,也才能给各项具体诉讼法律制度的设计和运作提供最高依据和准则。     

The citizen‐makers: Ethical dilemmas in immigrant integration

The topic of citizen‐making—turning migrants into citizens—is one of the most politically contested policy areas in Europe. Access to European citizenship is governed by national law with almost no EU regulation. The Article brings to the fore normative concerns associated with citizen‐making policies in Europe (Section 2). It examines ethical dilemmas involved in the process of creating new citizens (Section 3) and promotes the adoption of a European legal framework on access to citizenship (Section 4). The overall claim is that every newcomer will be required to demonstrate, as a prerequisite for citizenship, attachments to the constitution of the specific Member State, yet the test will be functional, flexible and non‐exclusive. As the topic of EU citizenship law is currently at the centre of the European agenda, this article has both theoretical significance and policy implications.     

美国宪法所体现的平衡原则

美国宪法是一部对世界格局影响深远的杰作。本文分析了美国宪法制订的背景,以及美国宪法运作成功的重要因素——其自身蕴含的平衡机制。在美国宪法制订过程中,宪法制定者们最重视的就是各种因素之间的平衡,其核心是参议院与众议院之间的平衡,立法权、行政权和司法权三者之间的平衡、州与联邦之间的平衡,其中这一切平衡都以人民主权为基础。     

The Court of Justice and the Union Citizen

Abstract Over a decade since the conception of the Union citizen, the aim of this article very simply is to measure his growth and maturity with a sustained analysis of the jurisprudence of the Court of Justice in this regard. After all, it was Advocate General Lèger who stated that it was for the Court to ensure that its full scope was attained. The article focuses predominantly on three areas of study: Member State nationality law and citizenship, the effect and meaning of Article 18 EC, and the ever‐evolving right to equal treatment for the Union citizen. It is fully updated in the light of recent case law, the Treaty establishing a Constitution for Europe, and the newly adopted Directive 2004/58 EC.     

The Law on Citizenship of the USSR

The new Law on USSR Citizenship, adopted by the USSR Supreme Soviet, December 1, 1978, is a notable contribution to carrying out the program of legislative activity deriving from the USSR Constitution of 1977. The issuance of such a law is envisaged directly in the Constitution, which reads: "The grounds and procedure for acquiring or forfeiting Soviet citizenship are defined by the Law on Citizenship of the USSR" (Article 33). The new law replaces the 1938 Law on USSR Citizenship. That law, consisting of only eight articles, no longer covers many questions of citizenship arising in practice at the present time. Various normative documents were adopted in addition thereto, including instructions by ministries and agencies regulating certain important relationships that should have been settled in law. In writing the new USSR Citizenship Law, the goal was to embrace all questions of citizenship requiring legislative regulation. The law reproduces the corresponding provisions of the USSR Constitution and gives consideration to provisions of the previously prevailing legislation on citizenship and to present practices in this regard. There are new provisions as well. The drafting of the bill was conducted on a broad democratic basis; participating were deputies to the USSR Supreme Soviet, the relevant ministries and agencies, the presidiums of supreme soviets of union republics, and representatives of the science of jurisprudence.     

追问“常识”——宪法是什么

宪法是国家的根本大法,这更多的是从效力方面来明确宪法的。全面认识宪法,还应包括更多的内容:宪法是法的组成部分,因而宪法具有可诉性;宪法是人民授权政府的一份授权委托书,因而宪法是控制公共权力的控权法,同时又是保护人民权利的保权法;宪法是国家活动总章程,因而宪法明确了国家的组织原则和管理方式;宪法调整的是国家的重大社会关系,因而宪法在内容上有别于其他普通法律;宪法具有最高的法律效力,因而制宪和修宪的程序比普通法律严格。     

论行政许可听证制度的法理基础和宪法依据

行政许可听证制度是一项保障行政许可相对人发表意见、了解行政机关作出行政许可决定的依据,保护当事人民主权利的法律制度。探讨行政听证制度的宪法依据和法理基础不仅是行政许可听证制度的立法要求,而且也是完善和发展我国听证制度的现实需要。自然公正原则、正当法律程序和依法治国理论是西方国家听证制度的法理基础。美国听证制度的依据源于宪法规定的正当法律程序。确立我国行政许可听证制度的宪法依据,进一步完善我国听证制度就必须修正《宪法》第五十一条,增加“中华人民共和国公民所享有的宪法和法律规定的权利,一切国家机关未经合法程序不得剥夺。”一款,并制订统一的《行政程序法》。     

宪法学的应有品质:以人为本、面向民众、扎根生活

82年宪法实施以来,我国宪法学研究取得了长足的进步,但也存在自身的不足,面临发展的困境。而造成困境的深刻缘由在于问题意识不强、与部门法学对话的意识和能力不强、本土意识不强、直接切入社会热点问题尤其是公民权利问题并加以解决的意识和能力不强等几个方面。要走出现实困境,必须以人为本、面向民众、关注民生、扎根生活,这是中国宪法学的应有品质,也是中国宪法学研究工作者的应有品质。     

Unity Dow v. Attorney-General (Botswana) [June 1991

The plaintiff was a citizen of Botswana, married to a non-citizen, whose children had been denied citizenship under a provision of the Citizenship Act 1984 that conferred citizenship on a child born in Botswana only if "a) his father was a citizen of Botswana; or b) in the case of a person born out-of-wedlock, his mother was a citizen of Botswana." The plaintiff claimed that this provision violated guarantees of the Botswana Constitution. The High Court agreed, holding that the provision infringed the right to liberty, the right not to be expelled from Botswana, the right not to be subjected to degrading treatment, and the right not to be discriminated against on the basis of sex. It concluded that the right to liberty had been infringed because the provision hampered a woman's free choice to marry a non-citizen and, in fact, undermined marriage; that the right not to be expelled from Botswana was infringed because, if the plaintiff's resident permit was not renewed she would be forced to leave Botswana if she desired to stay with her family; and that the right not to be subjected to degrading treatment was infringed because any law discriminating against women constitutes an offense against human dignity. This decision was subsequently upheld by the Botswana Court of Appeal.     

Marginalized Mothers,Reproductive Autonomy,and ‘Repeat Losses To Care’

Over 70,000 children are ‘looked after’ by local authorities in England and Wales. Emerging research suggests that a significant proportion of their birth parents have either already lost a child to permanent adoption or will go on to lose others. These ‘repeat loss’ cases raise difficult questions about marginalized mothers and their reproductive autonomy. This article considers past and present tactics used by the state in its attempts to limit that autonomy, including institutionalization, sterilization, long‐acting contraception, and permanent adoption. It argues that the gradual democratization of intimate citizenship over the past century, defined as a person's ability to choose and direct their intimate relationships, has obliged the contemporary state to develop new tactics which aim to build personal capacity and to balance enhanced child protection with enhanced reproductive autonomy.     

宪法概念的分析

宪法经历了从古代宪法、近代宪法和现代宪法的变迁 ,三者之间既有历史的延续性 ,又有内涵上的差异性或发展 ,民主、宪政是否必然成为宪法的构成因素值得进一步的考究。中国传统的宪法概念不再具有充分的说服力 ,宪法概念应该回归宪法的本质 :确立国家权力的实现形式 ,规范国家权力的运行。新的宪法概念将对宪法的理论研究及其实践产生重要意义。     

Undocumented consciousness: Citizenship and illegality in the lives of US citizen youth

This paper examines the impact of immigration law on US citizens' understanding of legal status categories. Prior research on legal consciousness has uncovered the ways in which undocumented persons make sense of and navigate their legal position in society. Less is known, however, about the paradox of US citizen children who are legally protected by their citizenship yet grow up in the context of their parents' precarious immigration statuses. Drawing on interviews with US citizen youth and undocumented parents, I conceptualize the phenomenon of undocumented consciousness to explain how US citizens make sense of parental legal status vulnerability. By witnessing their parents' blocked opportunities from work, travel, and other aspects of life, youth begin to attach meaning to citizenship and its protections, all the while forming an understanding of what it means, practically, to live in the United States with and without legal status. Findings reveal the mechanisms by which it is possible for functions of immigration law to have adverse impacts on the lives of US citizens themselves.     

公正审判权的宪法性论说

从公正审判权在法律中的地位来看,公正审判权属于宪法性权利。公正审判权作为宪法性权利在许多国家的宪法中已经得到直接或间接的体现。公正审判权符合宪法权利的几个基本特征:公正审判权是公民所享有的重要的基本权利之一;公正审判权规制国家权力与公民权利之间的关系;公正审判权具有母体性;公正审判权是其他权利无法替代和不可转让的一项权利。     

Acquisition of Nationality by Birth on a Particular Territory or Establishment of Parentage: Global Trends Regarding Ius Sanguinis and Ius Soli

Netherlands International Law Review - This contribution maps recent global trends regarding the grounds for acquisition of citizenship by descent and by birth on a particular territory. Questions...     

论宪法监督的司法化

我国宪法确立了由最高国家权力机关监督宪法实施的模式 ,实践证明 ,这是一个失效的制度设计。失效的根本原因不在于宪法监督程序不完善 ,而在于这一模式背离了宪法监督的本质。宪法监督是多数民主的“制动器” ,唯有司法化的监督才能担此重任。司法性宪法监督与“议会至上”、“多数民主”是可以调和的。宪法是法律 ,然后才是最高法律 ,宪法的法律性也意味着宪法可以而且应当由司法化的机关加以适用。     

欧盟宪治:一种亚国家主义的解读

欧盟宪法的出现,为欧洲治理提供了全新的思路,也预示着法律在区域层次的治理中能够发挥更大的作用,欧盟宪法为何能产生,这种新的法律诞生的背景是什么?这样一部旨在独立国家主体间调节的亚国家主义性质的宪法究竟能发挥多大的作用,它又将遭遇什么问题?本文试图从欧洲治理以及欧盟宪法的性质特点、目前所遭遇的困境以及其前景等方面加以分析。     

The European Constitution: A Semiotics Analysis of Ideology, Identity and Global Commun in Present-Day Europe

This paper proposes an analysis of the European Constitution from the perspective of its conditions of possibility. The focus is on the conditions that subtend the European constitution, the conditions, the premises that make the European Constitution possible. In the present context of discourse “possibility” is understood in the sense of Kantian critique. But here critique is based on Reasonableness rather than on Reason—in fact a thesis orienting this essay is that the human being to survive and to survive well must quickly change from a rational animal into a reasonable animal. Is the European constitution possible? Where must we search for the necessary conditions that support the European constitution (1) in common historical and cultural traditions, in common practices, in common social behaviours or (2) merely in a shared decision, an accord, a contract, a convention? There exists a third possibility: the idea that Europe has no future without a European constitution founded on awareness that all European Nations participate in a common destiny, which in the era of globalization is the destiny the whole world, indeed of life over the whole planet. Such participation must be based on the logic of otherness and reasonableness of which the human being alone as a semiotic animal is capable. As a semiotic animal, that is, an animal capable of metasemiosis, reflection and critical consciousness, the human being is responsible for all of life over the planet.