欧盟涉外离婚法律适用的新发展——以《罗马条例Ⅲ》为中心

伴随欧洲一体化进程的深入,欧盟内部人员的跨国流动和社会家庭秩序的正常运转,要求成员国彼此间在涉外婚姻家庭冲突法领域实现统一化。以欧盟婚姻事项冲突法立法演变为出发点,以《罗马条例Ⅲ》的法律规定为中心,笔者着重探究将意思自治原则引入涉外婚姻家庭法律适用的合理性;并在现行规定的基础上反观惯常居所地这一连结因素的折衷性,试图思考理论层面可能浮出的疑难及其解决路径。     

The Shield of Heracles: Multiple streams and the emotional endowment effect

What factors explain the persistence of emotion in public policy? Applying the multiple streams framework, it is hypothesised in this article that the more intense the fear and the longer it persists under high salience, task unfamiliarity and complexity, and inconsistent preferences, the less likely it is for policy to change. The study examines the Greek attempt to block international recognition of the Former Yugoslav Republic of Macedonia (1990–1993) and finds the power to build coalitions through emotional arousal that in the short run helps reframe losses and paradoxically undermines political support in the long run. Illuminating the emotional endowment effect within the logic of appropriateness, the article concludes that policy is made under certain conditions on the basis of validating emotions.     

Fiji’s Foreign Relations: Retrospect and Prospect

Abstract

Of all the island states of the Southwest Pacific, Fiji’s foreign relations have been the most fraught since the advent of independence in the region, due largely to a succession of coups d'état. These have invariably precipitated adverse responses from major partners and aid donors, notably Australia, New Zealand, the United States and the European Union. The last coup in 2006 also unsettled relations in Fiji’s more immediate region, especially among some of its smaller Polynesian neighbours, contributing to Fiji’s unprecedented suspension from the Pacific Islands Forum. This article reviews Fiji’s foreign relations from the time of independence in 1970 through the period of successive coups to the 2014 elections. It also examines Bainimarama’s strategies in extending foreign relations in the broader international sphere as well as issues surrounding the ‘normalisation’ of relations with its traditional partners.     

The foreign policy and diplomatic attributes of a developmental state: South Africa as case study

With South Africa having declared itself a developmental state, this paper posits that if a developmental state is one that drives development, then the foreign policy of such a state should pursue development as one of its most important goals. Similarly the diplomatic corps of such a state should prioritise economic, commercial, para- and public diplomacy as drivers of diplomacy. In answering the question, ‘What should be the foreign policy and diplomatic attributes of a developmental state?’, the authors, through an exploratory approach, seek to analyse how well the state has fared in achieving this objective. To be a successful developmental state, a strategic capacity should exist and a clear strategic conception of the state's national interest should be formulated. Old paradigms about the role and functions of the diplomatic corps are challenged and a meritocratic diplomatic corps is strongly advocated to support the state's declared developmental goals.     

Typology of State Types: Persistence and Transition

Research on state fragility has seldom examined questions of persistence and transition of states. We develop a sixfold typology of states to examine how key structural features of states evolve and contribute to successful exits from fragility in some cases and persistence in others. Particularly worrisome is the lack of positive transition among the weakest states. Our findings are derived from a minimalist construct of a refined time series data set involving state indicators of authority, legitimacy, and capacity. Case studies of some of the more turbulent examples support our state trajectories. Additionally, changes in legitimacy most often led state transitions into or out of fragility. Implications of intervention policy for transitioning states out of fragility are addressed, and these are given particular focus since fragile states experience at least twice the intensity/incidence of internal armed conflict compared to other states.     

Uncertainties at the European Union's southern borders: actors,policies, and legal frameworks

A multiplicity of legal and political arrangements regulate the European Union's external borders. With borders representing the intersection between national and international law and politics, the EU also acquired some legal competences in this realm. The resulting triple set of rules coincides with the growing disaggregation of the classical functions of borders. This state of affairs generates legal and procedural uncertainties and results in a growing ambiguity and lack of transparency, in terms of competences and accountability. Due to the EU's concerns with transnational terrorism, and the growing securitization of migration, the EU's borders with the states of the Middle East and North Africa are particularly relevant in this regard, with the resulting uncertainties touching upon fundamental rights. This article discusses the conceptual starting point of the growing institutional, legal, and political complexity at the EU's southern borders, together with relevant aspects and developments, thus also providing the background to the different contributions in this special issue.     

Uncertainty at the EU's borders: narratives of EU external relations in the revised European Neighbourhood Policy towards the southern borderlands

This article analyses the role of narratives in European Union (EU) external relations in the revised European Neighbourhood Policy (ENP) and systematically explores how they operate in practice in the context of the EU's border management practices vis-à-vis the “southern borderlands”, in particular with respect to their inclusionary and exclusionary potential. Key EU documents and statements by EU agents, released throughout the first three years of Arab uprisings and pertaining to the revised ENP, will be subjected to a thorough examination which highlights four observations: first, in spite of the fact that the revised ENP is rooted in several narratives, some nevertheless dominate over others; second, the simultaneous presence of and recourse to different narratives contribute to an increase, rather than a decrease, of uncertainty in the EU's southern borderlands; third, despite a multitude of narratives which serve to legitimize EU action in the framework of the revised ENP, the latter perpetuates the logics of its predecessor by generating benefits mainly for the EU itself; fourth, that the first three years of the revised ENP have in practice demonstrated that an imbalance exists between on the one hand the original acceptance of the narratives by EU stakeholders and on the other hand their willingness to abide by them and fill them with life.     

Mapping out the institutional geography of external security in the EU

The growth of European Union (EU) competences in the field of external security in the last decade has produced a substantial increase in the number of EU institutions and bureaucratic actors engaged in the planning and management of these policies. Moreover, the expansion of competences in such a sovereign sensitive area comes up against the persistent intergovernmental nature of the security sector. This has resulted, on the one hand, in a complex institutional architecture with heavy demands in terms of coordination, and on the other hand, in a stark differentiation and stratification of the legal regimes with a potential to impact on policy outcomes. This state of uncertainty is particularly relevant when looking at relations with countries bordering the Union, as the long-standing web of interactions there has developed a more complex institutional environment. While most of the scholarly literature focuses on single institutional sectors or policies (Common Security and Defence Policy, European Neighbourhood Policy, or the external side of the Area of Freedom, Security and Justice), this study seeks to address the issue with a comprehensive analysis of the institutional framework that has emerged in the last decade, more notably, since the entry into force of the Treaty of Lisbon. The article provides, first, an overview of the EU’s institutional actors responsible for security policies in the regions bordering the EU, and second, an examination of the different mechanisms established to address the coordination issue. Finally, this study will argue that the traditional military dimension is but one, and certainly not the most developed, of the security instruments employed by the EU. At another level, it will be argued that the shift of focus from the military to other security tools has altered the institutional balance in the security sector, substantially adding to the relative influential weight of the Commission.     

Investment Treaty Law and the Fear for Sovereignty: Transnational Challenges and Solutions

This article addresses the vagueness, and the interpretative challenges associated with, international investment agreements (IIAs) and develops a new normative framework for interpreting these treaties. It focuses on the historical embedding of investment protection as a means of facilitating economic development as well as upon its synthetic public law nature. The analysis shows that a teleological approach to interpretation imposes boundaries on the meaning of substantive IIA provisions. The article then elaborates how the transnational dimension of IIAs provides a benchmark, which is the level of protection offered to economic actors against interference by the state in countries with the highest rule of law standards. The article then shows how the resulting challenges of comparative public law could be addressed through the methodology of re‐ and pre‐statement of transnational uniform ‘principles’: sophisticated and detailed rules striking the proper balance between private economic interests and the public regulatory interest, so as to provide more legal certainty for both investors and host states.     

中国外汇管理法律制度的缺失与调整

中国现行外汇管理法律制度所存在着缺失:外汇法在金融法律体系中缺位;外汇监管机构在金融监管体系中缺位;外汇管理法规体系的系统性与一致性缺失。外汇管理法律制度缺失可能产生监管漏洞,出现监管难度增加的后果。必须调整中国外汇法律制度,制定《外汇法》,明确外汇监管的基本手段,整合管理法规与规章,规范法规创制程序,整合法规体系。