论中国人权保障的四类规范及其相互关系

中国人权保障规范的主要形式可以根据规范制定主体分为执政党规范、法律规范、行政规范和社会规范。随着依法治国方略的推进,法律规范正在成为人权保障的主导规范。但这并不意味着要排除人权保障的其他规范形式,而是要建立法律规范与其他规范的制约和联系机制,包括适时转化机制、实施监督机制、细化补充机制和合法性审查机制。     

论社会权的宪法规范基础

尽管我国学界主流观点倾向于肯定社会权的宪法基本权利性质,但却只是基于"事实平等"应得到保障这样的价值追求上的理由,而未能提供一个宪法规范意义上的依据.因此,有必要通过确立"事实平等"在宪法平等规范中的地位,论证"事实平等"这项价值追求乃是宪法平等规范的应有之意,来为社会权寻得一个更为坚实的宪法规范基础.     

The UN Human Rights Norms for Corporations: The Private Implications of Public International Law

Though many years in the making, the UN Human Rights Norms forCorporations only registered on the radars of most states, corporationsand civil society organisations in August 2003 when they beganto move up the ladder of the United Nation's policy-making processes.Since then they have been subject to intense, and sometimesintemperate, debate, scrutiny and controversy. A particularlegal feature of the deliberations has been the focus on theclosely related questions of the legal standing of the Normsin their present format (namely, an imperfect draft, and therefore,of no direct legal force), and what they might become (possibly—thoughnot likely soon—a treaty that speaks to corporations butbinds states). A potent mix of distrust and suspicion, vestedinterests, politics and economics has given rise to a greatdeal of grand-standing and cant concerning these questions andhow they might be answered. In this article, the authors explorethe history of the Norms and the form and content of the debatethat surrounds them, in their attempt to disentangle the legalfrom the rest. That said, the article also focuses on the realpoliticking of the circumstances in which the Norms now findthemselves and it seeks to offer some guidance as to where theNorms—or at least their substance, if not their form—mightgo from here.     

Human Genetics Studies: The Case for Group Rights

In this essay, the author focuses on an underlying theoretical issue which she believes seriously affects our collective response to the idea of group rights in the genetic-control context. That issue is to what extent are our responses to claims of group rights hampered by our bringing to the table (consciously or unconsciously) a model which is structured to acknowledge only individual concerns? Put another way, to what extent are our objections to group rights in this context a product of our inability (or refusal) to imagine the idea of group rights, rather than the product of truly substantive concerns?     

Negligence and Human Rights Law: The Case for Separate Development

A number of judges and academics have argued in favour of the convergence of negligence law with human rights law. By contrast, the thesis of this article is that the two legal orders should develop independently, so that for the most part the law of negligence ought not to be affected by human rights considerations. It is argued that the case for convergence is based on two false assumptions, namely that human rights law and negligence law perform similar functions within our legal order and that the norms of human rights law are more fundamental than the norms encapsulated in negligence law. It is also argued that convergence would undermine the coherence of negligence law. Ultimately, the case for separate development rests on the desirability of recognising public law and private law as autonomous normative systems with their own distinctive rationales, concepts and core principles.     

社会保障的人权保护

国际人权条约将社会保障确认为人权的重要内容,使社会保障权表现为国家义务的形式,国家应努力创造条件使其向现实权利转化。从我国条约适用来看,已经生效的国际人权条约必须首先转化为国内法才能得到执行,表明了立法对于人权保护的重要性和基础性地位,而我国的社会保障立法滞后,难以满足现实需要。所以,应按照条约要求和国内实际情况,围绕社会保障权构建一个完备的权利保障法律体系,积极履行国际义务,加强社会保障的人权保护,促进社会保障权的实现。     

Anti‐Imperialism: Generating Universal Human Rights out of Local Norms

To counter possibilities for human rights as cultural imperialism, (1) I develop a notion of human rights as culturally particular and valid only locally. But they are an increasingly generalizable particularism. (2) Because the incommensurability of different cultures does not entail an uncritical tolerance of just about anything, but rather allows for an objectivating stance toward other communities or cultures, locally valid human rights have a critical capacity. (3) Locally valid human rights promote a community's self‐representation and thus allow for diversity, rejecting the coercive (mis)representation of a community or culture as incapable of representing itself.     

Judicial Activism in Perilous Times: The Turkish Case

Under what circumstances do courts act in ways that challenge the political hegemony of the military in countries with weak democratic institutions? This article addresses this question by focusing on a critical case of judicial activism in Turkey. It argues that lower courts unexpectedly can be centers of judicial activism that contributes to expansion of civil liberties and restrictions on arbitrary state power when the high judiciary supports the political status quo. This is because lower courts provide greater access to legal mobilization pursued by civil society actors. At the same time, judicial activism in lower courts is sustainable only when political power is distributed among elites with conflicting interests, and the civilian government offers support and protection to activist members of the judiciary.     

Human trafficking: the case of Burmese refugees in Thailand

With an estimated 30 protracted refugee situations around the globe, the number of refugees finding themselves in prolonged displacement is alarming. While demarcated refugee camps are a visible component of this phenomenon, the link between protracted displacement and increased risks of human trafficking is much less evident. Within refugee camps, the lack of law and order or police protection along with the presence of large numbers of helpless people create a pool of readily available supply for those who want to exploit them. This account will discuss the conditions of displacement that contribute to human trafficking risks, particularly as they relate to the protracted refugee situation of Burmese in Thailand. The case study will be followed by a number of policy and practice recommendations for the reduction of these risks.     

Human Rights Trials in an Era of Democratic Stagnation: The Case of Turkey

Domestic human rights trials are often conceptualized within the context of transition toward democracy. Yet, a recent cascade of trials in Turkey defies this argument. Between 2008 and 2015, Turkish courts oversaw fifteen trials examining individual criminal accountability for human rights violations carried out by the Turkish military during the conflict with the PKK in the 1990s. The cascade of trials has emerged and remained ongoing while the Turkish regime has become steadily more authoritarian. This article explains the emergence of these trials by the redistribution of power among elite actors, which created a window of opportunity allowing for ongoing legal mobilization to result in prosecutions. Drawing on original data from interviews conducted in Turkey between 2014–2015, this study demonstrates the importance of power redistribution for human rights during periods of democratic stagnation, while emphasizing the ability of trials to contribute to the contestation of hegemonic narratives.     

The Social Norms of Waiting in Line

This article examines the rules and practices of waiting in line as a system of informal order, showing that despite its reputation for drudgery, the queue offers rich insights about social norms and the psychology of cooperation. The article begins by investigating the implicit customs of physical waiting in line, uncovering the surprisingly complex unwritten rules (and exceptions) that give queues stability even in the absence of legal governance or state enforcement. Yet the prevailing norms literature typically explains informal order by reference to close‐knit groups that can impose sanctions on violators of extralegal rules. This raises a puzzle: Why do queue norms repeatedly produce informal, yet reliable, order among total strangers unlikely to interact again? This article answers this question by looking to social‐psychological research showing that people tend to be strong reciprocators rather than selfish utility maximizers. This model makes sense of both our tendency to defer to line norms as well as the disproportionate sanctions with which defectors from these norms meet.     

公法与国际人权法的互动:香港特别行政区的个案

作为前英国殖民地,并在1997年成为中华人民共和国的特别行政区,香港为公法与国际人权法的互动提供了有研究价值的一个个案。自1991年起,透过殖民地宪法文件的修订及立法方式,《公民权利和政治权利国际公约》的人权规范在香港开始具有宪法性效力,并且可为本地法院适用,作为违宪审查中审查立法及政府行为是否违宪的基准。1997年香港回归祖国后,在根据《中华人民共和国香港特别行政区基本法》成立的新宪制下,香港法院继续行使这种违宪审查权。本文概述了香港法制中国际人权法规范的适用情况,透过香港近年来的一些重大案例,阐明了公法和国际人权法在香港互动的情况。并试图在国际及全球性脉络中,探求香港个案的定位,为研究香港公法与国际人权法的互动和汇流建立一个概念架构。     

以人权促进发展:工具性人权论

人权与发展是当今世界两大议题,而长久以来人权与发展在两条互不搭界的轨道上运行,人权与发展的结合能为人类增添更多福祉。人权是发展的目的,发展是为了扩展人权,这是目的性人权论。而人权必须以经济社会发展为基础,且人权能够促进经济社会发展,因而"以人权促进发展"的工具性人权,是人权最终得以保障的最佳路径。工具性人权有着深厚的法理底蕴、现实基础和规范支撑,人权演进的历史其实就是一部工具性人权的发展史,从古代到现代、从美国到中国的实践经验无不表明人权对发展的重大作用,世界人权宪章等国际规范性文件无不论证着工具性人权的重要价值。