备战打仗中的国际人道法规则运用

国际人道法的基本原则之一是区分对待战斗员和平民,以便在武装冲突中有效地对战争受难者进行保护,平衡"军事必要"与"人道需求"这一矛盾。从实践经验上看,我军在战争中往往守法做的比较好,而在对付敌人违法作战方面准备不足。在未来军事斗争中应利用国际人道法的相关知识,做到既严格遵守又灵活运用。具体做法包括:将遵守国际人道规则列入部队训练和演习内容;运用国际人道法合理进行目标选择与打击;做到正确、灵活地对待和使用保护性标志;灵活处置国际人道法的守势反用等。     

The Hamdan Case and the Application of a Municipal Offence: The Common Law Origins of 'Murder in Violation of the Law of War'

This article examines the legal origins of ‘murder inviolation of the law of war’, an offence defined in theUS Military Commissions Act (MCA) and resorted to in the caseagainst Salim Ahmed Hamdan. Hamdan was acquitted of conspiringto commit this offence based in part on a questionable legalinstruction. The acquittal may have been proper under a correctview of the law. Nevertheless, the specific context in whichthis offence was alleged, combined with the judge's instruction,highlights key aspects of the US approach to the prosecutionof unprivileged fighters for a ‘law of war violation’.This approach, which is substantially represented by the USSupreme Court's judgment in ex parte Quirin, has been criticizedby International Humanitarian Law (IHL) scholars as an erroneousview of customary IHL. However, close analysis of the legaland historical context in which this approach developed revealsthat ‘murder in violation of the law of war’ isa municipal US offence that represents an English common lawimplementation of the law of nations. This article explainswhy reading this offence to incorporate IHL war crimes, as Hamdan'sjudge did, is inappropriate in the context of the MCA and Hamdan'scase. It then demonstrates that the authorities relied uponby the Quirin Court, the Lieber Code and a treatise by authoritativeUS military law commentator, William Winthrop, understood punishmentfor law of war violations to be permitted by the law of nationsbut imposed under municipal law. Thus, ‘murder in violationof the law of war’ is properly viewed as a municipal,common law offence punishing unprivileged fighters. In futurestudies the author will address the appropriateness of prescribingand enforcing this municipal offence in extraterritorial armedconflict.     

Promotion and implementation of international humanitarian law: a Commonwealth perspective

This paper provides an update on some important developments and initiatives relating to international humanitarian law (IHL), with specific reference to the Commonwealth. In particular, the paper considers the promotion and implementation of IHL and highlights the importance of preventing and punishing violations of IHL. It also outlines key humanitarian themes and legal concepts.     

Social Values and the Multiple Sources of European Social Law

Abstract: The paper aims at describing the current status of European social law, by examining different sources. These include the most recent directives; the Protocol attached to the Maastricht Treaty; the Commission's latest White papers on social policies and on economic growth and unemployment; and the case law of the European Court of Justice. In such a variegated legal landscape, a significant role could be played by non-binding measures; the notion of soft law is slowly acquiring its own dignity in European social law and is emerging for open interpretation. Yet, European labour law houses a fragile body of norms. The spreading of social values would become a tangible prospect if the potential of the multiple sources here examined were better exploited by all actors. Although a coherent legal structure is still to come, a legal culture is being created which should be strengthened through action by all Community institutions.     

Predicting future litigiousness

Using a national sample of adults with various legal experiences, the current study examines the impact of prior legal experiences, general attitudes about lawyers and the legal system, and status characteristics on individuals' perceived likelihood of hiring a lawyer for resolving various personal problems in the future. Persons who have been involved in prior legal disputes, who have more positive attitudes about lawyers, and who hold more favorable views about the effectiveness of law in resolving conflict report significantly higher chances of hiring an attorney. Individuals' assessments of their future litigiousness, however, are largely independent of their status characteristics (e.g., gender, income, education, age) and the quality of treatment in their prior legal disputes (e.g., ratings of procedural justice, level of satisfaction with case outcome, and how their lawyer handled the case). The paper concludes by discussing the implications of these findings for improving the quality of legal services and for the future use of law as a method of conflict resolution.     

军事司法权能否推定

现代法治要求以权力法定为原则,以权力推定为例外。由于军事法理研究相对薄弱,以及法律与实践的内在冲突,军事司法权受军事统率权控制的制度惯性延续至今,表现在我国军事司法权配置中存在许多权力推定现象。基于现代法治的内在要求,以及依法治国方略和依法治军方针的现实需要,特别是军事司法权属于国家司法权的理论定位,在军事司法权配置实践中,应当严格限制军事司法权的推定,逐步实现从权力推定向权力法定的过渡,军事领导机关不宜再行使军事司法立法权,军事司法机关也不宜再行使军事司法解释权。     

Law, Struggle, and Political Transformation in Northern Ireland

This article analyses the role of law as an element of the Republican Movement's violent and political struggle during the Northern Ireland conflict. The trials and legal hearings of paramilitary defendants, the use of judicial reviews in the prisons, and the use of law in the political arena are chosen as three interconnected sites which highlight the complex interaction between law and other forms of struggle. The author argues that these three sites illustrate a number of themes in understanding the role of law in processes of struggle and political transformation. These include: law as a series of dialogical processes both inside and outside a political movement; law as an instrumental process of struggle designed to materially and symbolically 'resist'; and the constitutive effects of legal struggle upon a social and political movement. The article concludes with a discussion as to whether or not Republicans' emphasis upon 'rights and equality' and an end to armed struggle represents a 'sell out' of traditional Republican objectives.     

Verba and Voluntas – Conflict of Laws in Interpretation of Contracts

This paper aims to describe an existing legal practice of contractual interpretation in Estonian legal order. In order to investigate the semiotic essence of contractual interpretation and its limits, this paper narrows its focus on a notion “conflict of laws” (as developed by Roberta Kevelson). By conflict of law is meant a depiction of incompatibility or conflict of co-existing legal practices, the conflict, which is both internal and external to Estonian legal system. From the inner perspective of Estonian legal order, the conflict of law is subsequently reduced to the conflict in law, and being analyzed on the grounds of contract law, the conflict of legal rules, in fact becomes a issue of contractual interpretation. It is claimed in this paper that there has been a fundamental incompatibility between objective and subjective approaches to interpretation of contracts. As later as 19th century, with the development of systematic legal science, an apparent confusion of objective and subjective approaches was becoming transformed into an open and growing system of law, based on a fusion of both methods. This paper lays theoretical grounds for a practical test, which could measure the exact level of legal integrity between different elements of legal system.     

Comments on Illegal War and Illegal Conduct: Are the Two Related?

This article examines whether there is a link between the legality or otherwise of an armed conflict under jus ad bellum and the subsequent conduct of the campaign under jus in bello. This is done by comparing two conflicts where the legality was not in serious dispute, the Falklands/Malvinas conflict and the Iraq War 1990–1991, and three where the legality has been questioned, Kosovo 1999, the ‘global war on terror’ and the Iraq War 2003. In looking for a common link, the author is drawn away from concerns over the jus ad bellum to doubts over the content of the relevant law governing the conduct of hostilities. Uncertainties in the law have occurred both from the extension to non-international armed conflict of ‘Hague law’, traditionally applicable only in international armed conflicts, and the overlap between human rights law and the law of armed conflict. The author concludes that there is a danger that the balance between military necessity and humanity may be disturbed so that the law will become impracticable in the cauldron of conflict to the detriment of all, soldier and civilian alike.

     

A Model for the ‘War Against Terrorism’? Military Intervention in Northern Ireland and the 1970 Falls Curfew

This paper questions the claim that British militarized security strategy in Northern Ireland offers a model for the global 'war against terrorism' by exploring the critically important (though neglected) 'Falls Curfew' episode. Part one explores the relationship between law, legitimacy, and the role of the military in democracies experiencing violent conflict. Part two examines the operationalization of the law on military intervention during the curfew, drawing on archival material and employing empirical studies. Part three draws overall conclusions, relating the contribution that the curfew made to the escalation of the conflict to its operational aspects and legal underpinnings. Failings are identified, and some general lessons drawn out about the dangers of a 'war' model in complex and violent political disorders.     

Objectives of Russian law schools today: what is the “ideal jurist”?

ABSTRACT

This article describes how Russian law schools understand their objectives today and whether there is an ideal model of a jurist to which law schools should conform. Different qualitative methods were used in this study, including a review of the post-Soviet legal education reforms, analysis of regulations governing higher legal education, analysis of websites, and expert semi-structured interviews with heads of law schools. The results demonstrate the difficulties faced by law schools, which are forced to balance the state standards of higher education and external legal, social, economic, and political challenges. The study concludes that law schools are experiencing serious difficulties with respect to understandings of their objectives as well as the current redefinition of the normative ideal model of a jurist. The study also makes it possible to draw conclusions about the importance of legal knowledge, different ways of understanding prestige in the legal profession, and the revival of features of the Soviet model of the “ideal jurist.”     

法的时间效力界限与法的稳定性——以德国民法为研究视角

法的时间效力问题，简言之要解决的是，如果一个时间段上的法律关系跨越新旧法律的交替，那么旧法所规定的法律效力是否、在何种程度上继续发生效力；或者是否应该以形式上的时间点为界限，让旧法上的法律后果丧失效力，依照新法重新做出安排。萨维尼有关法的时间效力理论就法的时间效力冲突等问题进行了详尽的分析，在德国民法上，针对不同的法律关系诸如物权、债权以及婚姻家庭关系等，在法的时间效力方面设定了不同的规则。随着我国《物权法》、《侵权责任法》等几部重要法律的颁布，施行过程中新旧法律冲突的问题不断出现，目前中国民法典的制定也已经提上日程，民事法律的时间效力问题将会是立法者和学者都无法回避的重要问题之一，德国法的相关理论与规定可资借鉴。     

Disintegration: Environmental Protection and Article 81 EC

This article addresses the question of whether the modernisation and decentralisation of EC competition law will affect the integration of environmental protection requirements into the framework of Article 81 EC. First, the interface between competition policy and environmental protection at both the constitutional level and operational level is investigated. Following this, the Commission's assessment of environmental benefits under Article 81(3) EC prior to decentralisation and modernisation is explored. It is submitted that the Commission's expansion of its interpretation of the first two positive criteria of Article 81(3) EC allowed environmental objectives and competition goals to be balanced within the framework of Article 81 EC. Finally, this article examines the extent to which the decentralisation and modernisation of Community competition law may impede the integration of environmental protection into the definition and implementation of Article 81 EC.     

卫生法地位研究

卫生法是否为独立的法律部门,是卫生法学研究的热点问题。本文在对划分法律部门的目的、意义和标准重新构思的基础,认为卫生法在职能、调整对象和调整方法上都不足以成为一个独立的法律部门。尽管作为独立的卫生法法律部门难以成立,但完全可以形成一个以卫生法律规范和卫生法律问题为研究对象的独立、综合的卫生法学学科。     

Interim Legality: A Mistaken Assumption?--An Analysis of Depleted Uranium Munitions under Contemporary International Humanitarian Law

Depleted Uranium (DU) munitions are the latest, and perhapsmost effective, in a long line of armour-piercing projectilesused by military powers the world over. DU is a very dense material,allowing it to pack a lot of kinetic energy into its "punch",which makes it remarkably good at puncturing (enemy) armour.However, DU is also radioactive waste. Although DU does notactually employ radiation for its primary purpose—andhas negligible radioactive output compared to the more (in)famous fissile uranium isotopes—it has been alleged, withsome scientific support, that this radiation plays an insidioussecondary role, causing superfluous injury and unnecessary sufferingamong combatants; while also indiscriminately "attacking" (i.e.seriously adversely affecting) local civilians living in ornear combat zones. The purpose of the present paper is to analyse these allegationsand to consider their effects—whether true, false, orinconclusive—within the framework of contemporary internationallaw. To this end, the allegations of proponents will be summarisedand the supporting and negating scientific data considered.Then the current rules of international humanitarian law (IHL)will be examined and applied within a systemic context intendedto highlight the implicit assumptions and theoretical misunderstandingswhich generally plague their application. The scientific data pertaining to DU illustrates the complexityof the instant problem, and perhaps more importantly, helpsto demonstrate the degree to which even a superficially obviousclaim—i.e. dumping radioactive material is bad—canin fact form the basis of protracted, and ultimately inconclusiveargument, especially if the contentions of each side shouldprove in some way incommensurate. This is a problem which can be exaggerated in internationallaw by the absence of a court of compulsory jurisdiction, andfurther exacerbated in IHL by the use of relatively imprecisevariables to construct the matrices within which decisions areto be made. These problems, however, also serve, positively,to emphasise the importance of understanding the legal realityof the interim period before definitive conclusions to suchdisputes are constructed or discovered. Elucidation of the legalregime in force in this interim period thus forms an importantfocus of the present inquiry.     

WTO争端解决机构适用MEAs的可行性分析

近年来,WTO体系下贸易与环境的冲突频繁,成为国际社会广泛关注的热点。对于DSB是否能适用MEAs这一问题,无论在理论界还是实践中都存在极大争议。WTO并非独立封闭的法律体系,将MEAs引入贸易与环境争端解决程序不失为一条新的解决思路。且DSB报告在WTO体系内具有事实上的先例作用,因此MEAs的适用有着充足的法理基础和实践支持。     

经济法律责任独立性探讨

对法律责任划分标准的正确理解,是认识经济法律责任独立存在的前提条件。经济法律责任是以法律责任的部 门法性质为标准对法律责任进行分类的结果,且经济法律责任具有其独特性。独立的经济法律责任体制有利于 责权利效相统一原则的实现;更能体现经济法的"社会本位"性;充分发挥经济法作为独立部门法的作用;促进经 济法主体守法和执法。构建时,必须遵循经济法自身体系要求,体现经济法律责任自身特色,形式上可以与其他 部门法形式相交叉,可通过经济法中的民事责任、经济法中的行政责任、经济法中的刑事责任、经济法中的经济责 任的方式来实现。     

Prolonged Armed Conflict and Diminished Deference to the Military: Lessons from Israel

We examine whether the level of deference shown by the Israeli Supreme Court to military decisions has changed over time by empirically analyzing the entire body of Supreme Court decisions in petitions against the military commander between 1990 and 2005. Setting forth a number of different factors that might generally affect the degree of deference to state agencies, we hypothesized that there would be a decrease in deference in the relationship between the Court and the military commander during the examined period. Our findings show that deference to the military commander has indeed diminished significantly. We argue that this is best explained by the continuation of the armed conflict (and its aftermath, namely, the routinization and increase in the number of petitions by the civilian population) and also—to some extent—by the rise of a substantive rule-of-law legal consciousness, central to which is the importance of human rights.     

Strengthening Humanitarian Law: what role for Commonwealth countries

This article explores some of the new challenges confronting Commonwealth countries in the context of international humanitarian law (IHL). The very nature of non-international armed conflicts presents new challenges that did not exist in the context of inter-State conflicts, which were conducted in the traditional battlefield with well demarcated boundaries. The point is made that, in addressing the role of the Commonwealth in relation to contemporary IHL issues, a good starting point would be the shared commonalities between the two branches of law, HRL and IHL, notwithstanding their distinct paths of development. There are several important areas that could form the core of Commonwealth cooperation in strengthening IHL, including in the area of legislation, national mechanisms for the implementation of IHL and regional measures to strengthen IHL.     

两大法系惩戒性军事法概要

莫里斯与古斯塔夫斯的《战争法典》对两大法系惩戒性军事法的形成起到了奠基作用。在两大法系主要国家,惩戒性军事法以军事司法权的运作为核心,主要围绕军事司法管辖权及军事司法程序构建军事司法制度。20世纪50年代以来,受《欧洲人权公约》及《联合国公民权利和政治权利公约》的影响,两大法系惩戒性军事法的发展又呈现出了一些新的特点。