欧洲司法中的人权保护制度评析

面对司法活动可能带来的人权的侵犯,欧洲司法中的人权保护的实践从理念与实践的层面上都进行了回应,包括超国家层面的两种人权保障机制的选择,制度方面的完善以及人权法院对制度上人权保护规则的实现。这也揭示了欧洲人权保护的司法实践中存在的冲突和困难。从未来发展来看,在欧洲联盟和欧洲理事会之间欧洲司法中人权保护制度可能会做出自己的选择,这些都为完善我国相关立法与司法实践提供了合理借鉴。     

Section 994 of the Companies Act 2006 and the Primacy of Contract

The Court of Appeal's decision in Fulham Football Club (1987) Ltd v Richards & Anor is both of interest and significance. By embracing the idea of the parties’ ability to ‘contract out’ of their statutory right to petition the court for relief under section 994 of the Companies Act 2006 (the so‐called ‘unfair prejudice’ remedy), their Lordships have not only contrived to stunt the future development of unfair prejudice as a minority shareholder remedy but, and more importantly for the purposes of this case note, their decision has reasserted and extended the contractual analogy in modern UK company law.     

The ‘Right to be Forgotten’ – Worth remembering?

In the last few years there has been a lot of buzz around a so-called ‘right to be forgotten’. Especially in Europe, this catchphrase is heavily debated in the media, in court and by regulators. Since a clear definition has not emerged (yet), the following article will try to raise the veil on this vague concept. The first part will weigh the right’s pros and cons against each other. It will appear that the ‘right to be forgotten’ clearly has merit, but needs better definition to avoid any negative consequences. As such, the right is nothing more than a way to give (back) individuals control over their personal data and make the consent regime more effective. The second part will then evaluate the potential implementation of the right. Measures are required at the normative, economical, technical, as well as legislative level. The article concludes by proposing a ‘right to be forgotten’ that is limited to data processing situations where the individual has given his or her consent. Combined with a public interest exception, this should (partially) restore the power balance and allow individuals a more effective control over their personal data.     

Reviews

The recent discourse on ‘new antisemitism’ and the Israeli-Palestinian conflict sometime gives the impression that Europe is fundamentally and irredeemably antisemitic. Klug maintains that, while there is a persistent vein of antisemitism in the culture, and while there is evidence of an increase in anti-Jewish attacks since 2000, this perception of Europe is exaggerated. He argues that it is part of a mindset that tends to overstate hostility towards Israel and Jews, or to assume that this hostility is antisemitic, or both. Often this goes along with a tendency to connect antisemitism, via anti-Zionism, with anti-Americanism. Klug believes that notion of a mindset, Klug turns to the question of definition, examining the view that antisemitism is indefinitely mutable. Invoking recent work on the subject, he suggests that at the core of antisemitism is the stock figure of the ‘Jew’. This gives us a criterion with which to judge whether or not a given text—including an attack on Israel or Zionism—is antisemitic. On the basis of the analysis so far, Klug critiques the view that hostility to Israel in general is a new twist on an old antisemitic theme. In this connection, he discussed a 2003 Eurobarometer opinion poll in which 59 per cent of respondents said that Israel is a ‘threat to peace in the world’. Some see this as proof that Europe is antisemitic; Klug rejects this interpretation and traces it back to the mindset he has describing. He argues that people in the grip of this mindset tend to take a one-sided view of the Israeli-Palestinian conflict. This can lead to ‘antisemitism in reverse’: projecting the figure of the antisemite on to someone who does not fit the bill. Klug concludes that the prospects for the European debate on antisemitism are poor unless it can be disentangled from partisan Middle East politics.     

Europe,the Final Solution and the dynamics of intent

ABSTRACT

The scale and scope of the ‘final solution’ of the ‘Jewish question’ were extreme even in the horrific annals of genocide. Bloxham attempts to shed light on the pattern of mass murder in its expansion and contraction by viewing the Holocaust in a set of temporally and culturally specific contexts. It places the Holocaust into a broader European framework of violent ethnopolitics and geopolitics from the late nineteenth century through the mid-twentieth century. The Holocaust is depicted as an only partially discrete part of a continental process of traumatic flux, and a part, furthermore, that can itself be partially disaggregated into national and regional components. Bloxham moves from a general consideration of patterns of ethnic violence in the period to a closer causal explanation that shows the different valences of Nazi policy towards Jews in the lands directly ruled by Germany and those of Germany's allies respectively. He shows that the peculiarly extensive ambitions of the ‘final solution’ at its most expansive can only be explained when wider geopolitical and strategic contextual terms are factored in along with consideration of Nazi ideology and the internal dynamics of some of the key institutions of the perpetrator state.     

Beyond the ‘Auschwitz syndrome’: Holocaust historiography after the Cold War

ABSTRACT

The end of the Cold war has seen an explosion in Holocaust history, and some significant changes in the main historiographical explanations. The ‘return of ideology’ that began displacing the ‘functionalist’ or ‘structuralist’ dominance of the 1980s remains strong. But it is being supplemented by very detailed regional and local studies, by analyses of different experiences of ghettoization in different places, and by a focus on the widespread plunder and corruption that accompanied the killing process. This enormous attention to detail reveals that the Holocaust unfolded differently in different places; but it also demonstrates the existence of an overall framework in which all the operations took place, what we might call an ‘antisemitic consensus’. Simultaneously, historians have broadened the discussion of the Holocaust, situating it into a transnational or world-historical context of imperialism and colonialism. Stone outlines in broad brush some of these themes, and asks what effects they have had and will continue to have on Europeans' self-understanding in an age in which the post-war anti-fascist consensus has been dismantled while Holocaust-consciousness is officially enshrined into European identity.     

The integration hypothesis: How the European Union shapes economic voting

Whereas economic perceptions influence the national vote in Western European countries, globalization, or international openness, conditions the influence of economic perceptions on that national vote. But how do attitudes toward the EU itself influence the economic vote? After establishing the presence of a national economic vote in Southern Europe (Spain, Italy, Greece and Portugal) we test the hypothesis that heightened perception of European Union economic responsibility reduces the magnitude of the national economic vote coefficient. These tests are carried out on current (2009) survey data, via logistic regression analysis of fully specified voting behavior models, estimated country-by-country and in a data pool. Clearly, the national economic vote diminishes, to the extent the EU is held responsible for the economy.     

Economic crisis and elections: The European periphery

This paper introduces the articles in the symposium which address the issue of democratic accountability and economic voting in polities on the European periphery. The economic crisis that hit the world economy in 2008 has severely challenged the capacity of governments to steer the national economy and has had a strong impact on their electoral support. The papers discuss whether economic voting and democratic accountability are increasing or, on the other hand, they could be depressed by globalisation and by shifts of ruling competence from the national to the supranational European arena.     

A deterrent to diversity: The conditional effect of electoral rules on the nomination of women candidates

Previous literature regarding the effects of electoral systems on candidate selection has implied a false dichotomy regarding proportional representation (PR) versus single member districts (SMD). This paper unpacks the category of proportional representation, and finds significant differences in the behavior of selectorates depending on their configuration of PR. Using both a natural experiment as well as an original data set comprised of 1095 party lists, I find that the type of proportional representation – i.e., whether or not the voters are allowed to pick a particular candidate from the party list – can have a significant effect on the number of women candidates selected to run for office. Further, I find that the strength of this effect depends on cultural gender norms; if a substantial segment of society believes that women are best in traditional roles, not as leaders, there is a significant, negative effect of the decisive intraparty preference vote on the nomination of women candidates.     

从欧盟制宪看国家主权的"可分性"

在全球化的背景下,对国家主权的绝对性提出了挑战,传统的国家主权概念也逐渐发展为相对国家主权。《欧盟宪法条约》的制定过程和内容,既体现出主权“可分性”,又体现出主权可分的有限性,即《条约》各成员国对某些主权的让渡必须是以强调国家主权为基石的。