Complying with Human Rights

ABSTRACT

The empirical assessment of how signatories of human rights conventions comply with their obligations has, so far, yielded conflicting results, especially regarding the compliance mechanisms that are the most promising to ensure improving human rights records. We argue that this is due to the fact that differences in compliance systems have been neglected and that different compliance mechanisms have been assessed in isolation, without considering possible interactions. To analyze this argument, we propose a novel way to assess the effect of these mechanisms by relying on a Markov-transition model. Our results show that human rights violations are time dependent and that the effect of independent variables is conditional on previous human rights violations as well as on the strength of human rights compliance systems.     

Current legal approaches to international Terrorism

Abstract

Most difficulties in achieving international cooperation to suppress “terrorism” reflect failures to take account of the way authority is distributed in the international legal order. Attempts to narrow or abolish the “political offense,” exception to extradition treaties, are seen as either futile or self‐defeating for both political and legal reasons. Five other approaches are analyzed and promise is seen in three of them. The fourth, resting on the extension of national jurisdiction in disregard of the limits inherent in the international legal order, is seen as the one most attractive to the United States, Germany, and Iran, but the one most likely to lead to unmanageable political complications. The fifth, relating to an “international criminal court,” is seen as most attractive to lawyers who would like to rule the world, but is inconsistent with both law and reality. A plea is made to statesmen and lawyers to examine the other three more closely.     

国际法上的“强行法”规范初探

国际法上的"强行法"规范是指由全体国际社会成员所公认且在缔约时不能贬损的那些国际法律规范,对此类规范的存在,国际社会已经形成普遍共识;其最初适用范围仅仅限于国家的缔约行为,但随后逐渐及于其它国家行为;国际法学说、条约及国际司法实践初步确认了某些具体的规则具有"强行法"规范的性质,但关于"强行法"的更为明确或具体的范畴问题,国际社会远未达成普遍共识,因而在"强行法"规范的识别及具体适用上存在相当困难;经过深入的国际法理论研究和有力倡导以及长期的国际法实践的推演,国际法上的"强行法"规范更有可能通过习惯国际法的方式加以产生;在条件成就时,再由习惯国际法规则演变或制定为条约国际法规则。     

领土条约的界定标准、解释方法及其运行结构

领土主权属于一国的核心利益问题。国际法院基于《维也纳条约法公约》第31-32条之规定,在解决领土条约争端时采取了"实质优于形式"和"同意"等界定标准。同时,在适用该《公约》解释相关条款时采取了不同的解释方法,体现了一定的灵活性,但也出现过矛盾与反复。对此,应根据该《公约》第31-32条规定的内部要素及外部变量,优化领土条约的解释方法和运行结构。这种路径的设计不再拘泥于《条约法公约》本身,适当拓展、引入当事方提供的证明事实真相的关键证据,对领土条约的解释进行补充说明,并非游离于《条约法公约》之外,转而寻求保持占有法律、有效控制等法理基础及相应的事实主张和证据,而是将两者合而为一,以《条约法公约》解释规则为主,其他关键证据为辅的层级解释路径。另外,国际法院在解释相关领土条约时,除了适用"《条约法公约》+其他层级关键证据"模式外,还应借鉴学界的解释方法论,以使得两者交互影响,进一步完善条约解释方法的路径,实现对领土条约解释规则的再造。     

韩国人权保障法律制度研究

1948年以来,韩国的人权状况随着国内政权的更迭和逐渐民主而出现从压制逐渐过渡到有力保障的过程,韩国的人权保障法律制度在其民主化进程中逐步完善并向系统化发展,主要表现在韩国1987年宪法对基本人权的规定,同时韩国加入与人权有关的国际条约,来巩固和加强对人权的保护力度,并且按照相关国际条约向国际组织报告韩国的人权状况,接受国际评论。然而,个人申诉权在韩国并没有真正得以实施。     

试论条约机构与多边条约的实施——以多边环境协定的缔约方大会管理模式为例

条约机构对多边条约的实施这种方式，具有集体性、多边合作性、持续性、长期性以及预防性的特点，它使多边条约的实施更为有力，更能保证条约得以遵守。对于国际法而言，它是在国家自觉遵守和独力自救这两种传统的国际法实施方式之外，新发展起来的一种实施方式。它使国际法的实施从单边向多边、从单独执行向合作实施、从各自监督向集体监督发展。它是国际法上一大突破，丰富了国际法的实施方式，提高了国际法实施的可能性。     

Between continuity and change: The EU's mechanism of differentiated value integration

How does the European Union integrate new values into the text of its treaties? A growing body of literature indicates that, in the past three decades, new norms and values have entered the EU's discourse, resulting in what is usually termed ‘normative power Europe’. Yet the research and knowledge to‐date about the EU's discursive assimilation of new values and norms is surprisingly poor. As any institutional change, such integration has the potential to undermine the coherence of the EU's identity and thus also its objective to ‘speak with one voice’. This article explores the EU's discursive management of the continuity‐versus‐change imperative by analysing the integration of new values into the text of its treaties. This issue is addressed based on a quantitative content analysis on the full texts of European founding treaties between the 1950s and 2009. Findings show that the distribution of the EU's values in the text is not uniform: while the language of market economy and democracy is pervasive, the values of peace, European identity, rights and social justice are mentioned less frequently and in restricted linguistic environments. To account for the differences in the integration of values into the EU's treaty discourse, the article develops the notion of a discursive mechanism of differentiated value integration (MDVI). This rationale echoes the logic of differentiation in policy implementation employed by the EU. It is claimed here that, applied in the European discursive arena, MDVI allows radically different readings of the same text. This helps the EU to maintain a coherent value identity while at the same time enabling change.     

Constitutional Dynamics in the European Union: Success,Failure, and Stability of Institutional Treaty Revisions

ABSTRACT

Despite high institutional hurdles for constitutional change, one observes surprisingly many EU treaty revisions. This article takes up the questions of what determines whether a treaty provision is successfully changed and why provisions are renegotiated at subsequent Intergovernmental Conferences. The article presents an institutionalist theory explaining success and renegotiation and tests the theory using all core institutional provisions by means of Qualitative Comparative Analysis. The causal analysis shows that low conflict potential of an issue is sufficient for successfully changing the treaties. Furthermore, high conflict potential of an issue and its fundamental change are sufficient for it to be renegotiated.     

Direct democracy and regional integration: Citizens' perceptions of treaty implications and the Irish reversal on Lisbon

Analyses of voting in European Union referendums typically distinguish between ‘second‐order’ effects and the impact of substantive ‘issues’. In order to explain change in referendum outcome, two types of substantive issues are distinguished in this article. Focusing on Irish voting in the Lisbon Treaty referendums and using data from post‐referendum surveys, it is found that perceptions of treaty implications outperform underlying attitudes to EU integration in predicting vote choice at both referendums, and perceptions of treaty implications are strong predictors of vote change between the referendums. The findings have broadly positive implications for normative assessments of the usefulness of direct democracy as a tool for legitimising regional integration advance.     

Juridical and constitutional implications of CARICOM treaty practice

In a case involving a CARICOM member state in relation to the Agreement Establishing the Council for Legal Education (CLE), several law students of one member state party to the Agreement were denied their entitlement to pursue professional studies in a school of law established for the purpose in another member state because the second member state had not implemented the relevant provision of the CLE Agreement. The CLE in the member state concerned pleaded the absence of an enacting provision in the Legal Profession Act as the ground for not observing the provisions of the Agreement. No action was brought at the international level by the state of the students aggrieved to vindicate their rights and the action brought by the students themselves at the municipal level did not and could not succeed. Following an overview of CARICOM treaty practice, this article examines the effects of unincorporated treaties in the light of dualism, to which doctrine the overriding majority of CARICOM states subscribe.