【關於Court’s Authority of Cessation】
我想法院得已令R國停火的法源,
會不會是根據2005年那份聯大的文件[GA Res. 60/147],
而它就是個reflection of customary law:
[Basic Principles and Guidelines on the Right to a Remedy and
Reparation for Victims of Gross Violations of International
Human Rights Law and Serious Violations of International
Humanitarian Law]
如果R嚴重地違反ICCPR跟AP II,
那根據這份文件中的IX. Reparation for harm suffered,
18. In accordance with domestic law and international law, and taking
account of individual circumstances, victims of gross violations of
international human rights law and serious violations of international
humanitarian law should, as appropriate and proportional to the gravity
of the violation and the circumstances of each case, be provided with full
and effective reparation, as laid out in principles 19 to 23, which include
the following forms: restitution, compensation, rehabilitation, satisfaction
and guarantees of non-repetition.
所以法院應該可以order cessation
然後法源是:
Para. 22. Satisfaction should include, where applicable, any or all of the
following: (a) Effective measures aimed at the cessation of continuing
violations...
所以會不會讓法院可以order cessation的原因,
其實不是因為2條4的違反 (當然這還是可以爭, 只是還不知道法源為何)
但我想對於predator drone strikes造成嚴重的人權法和人道法的違反,
反而更可以是中止作為的法源, 因為這份文件的文義其實很明顯~
(只是用語是[should ])
+++as reminded by TH+++
這份文件的前言有提到:
Emphasizing that the Basic Principles and Guidelines contained herein
do not entail new international or domestic legal obligations but identify
mechanisms, modalities, procedures and methods for the implementation
of existing legal obligations under international human rights law and
international humanitarian law which are complementary though different
as to their norms...
所以...應該還是可以說成:
It is of character of existing customary international law...
【關於Assurance of Gender Equality】
我想大家都應該已經看過了,
但因為我也不太確定現在Claim III的contents是什麼,
所以我還是review了一次幾個重要文件,
並截取其中我覺得可行的statements:
1) ICCPR General Comment No. 28
Para. 2: Article 3 implies that all human beings should enjoy the rights
provided for in the Covenant, on an equal basis and in their totality.
(Para. 4: ....Articles 2 and 3 mandate States parties to take all steps
necessary, including the prohibition of discrimination on the ground of
sex, to put an end to discriminatory actions, both in the public and the
private sector, which impair the equal enjoyment of rights.)
最重要的是這段(Para. 5): Inequality in the enjoyment of rights by
women throughout the world is deeply embedded in tradition, history
and culture, including religious attitudes... States parties should ensure
that traditional, historical, religious or cultural attitudes are not used to
justify violations of women’s right to equality before the law and to
equal enjoyment of all Covenant rights...(所以其實...R不能只是單純
說要promote gender equality, 還要強調Mavazzi tradition到底是侵
害了女人什麼樣的CP權, 始為足矣!)
然後, Para. 21有更specifically地提到第18條之適用: ...These freedoms,
protected by article 18, must not be subject to restrictions other than those
authorized by the Covenant (所以只有public safety可以作為justification)
and must not be constrained...by interference from fathers, husbands,
brothers or others. Article 18 may not be relied upon to justify
discrimination against women...
+++++
2) ICESCR General Comment No. 18 (2005)
一個小提醒是, 如果重點是放在right to work, 那則是ESC權利的問題,
在ICESCR第6條, 而CESCR在Para. 1就開宗明義地說:
The right to work is essential for realizing other human rights and forms an
inseparable and inherent part of human dignity.
而在Para. 13有特別討論[Women and the right to work]: ... The Committee
underlines the need for a comprehensive system of protection to combat gender
discrimination and to ensure equal opportunities and treatment between men
and women...emphasis should be placed on...certain traditional cultures which
compromise the opportunities for the employment and advancement of women.
Para. 19. 20有再重申一次這個立場: States parties have a specific and
continuing obligation to move as expeditiously and effectively as possible
towards the full realization of article 6.
(然後Para. 50更進一步地表示了: ...law enforcement is invited to pay greater
attention to violations of the right to work in the exercise of their functions.)
+++++
3) ICESCR General Comment No. 16 (2005)
至於ICESCR下gender equality的問題, Para. 11有定義ICESCR下的
婦女歧視: Discrimination against women is “any distinction, exclusion or
restriction made on the basis of sex which has the effect or purpose of impairing
or nullifying the recognition, enjoyment or exercise by women, irrespective of
their marital status, on a basis of equality of men and women, of human rights
and fundamental freedoms in the political, economic, social, cultural, civil or any
other field”...而Para. 23表示: Implementing article 3, in relation to article 6,
requires inter alia, that in law and in practice, men and women have equal
access to jobs at all levels and all occupations..., in both the public and private
sectors,...
在關於obligation to protect的部分, Para. 19: The obligation to protect
requires States parties to take steps aimed directly at the elimination of
prejudices, customary and all other practices that perpetuate the notion of
inferiority or superiority of either of the sexes, and stereotyped roles for men
and women. States parties’ obligation to protect under article 3 of ICESCR
includes...to prevent third parties from interfering directly or indirectly with
the enjoyment of this right (可能說是Zetian men嗎?)...再加上Para. 20
(States parties have an obligation to monitor and regulate the conduct of
non-State actors to ensure that they do not violate the equal right.)
而Para. 15更是進一步地承認: The principles of equality and
non-discrimination are not always sufficient to guarantee true equality.
Temporary special measures may sometimes be needed in order to bring
disadvantaged or marginalized persons or groups of persons to the same
substantive level as others. (Mavazzi Ban?) Temporary special measures
aim at realizing not only de jure or formal equality, but also de facto or
substantive equality for men and women...As long as these measures are
necessary to redress de facto discrimination (要件一) and are terminated
when de facto equality is achieved (要件二), such differentiation is
legitimate (法律效果).
但最重要的應該是Para. 36: States parties are encouraged to adopt temporary
special measures to accelerate the achievement of equality between men and
women in the enjoyment of the rights under the Covenant. Such measures are
not to be considered discriminatory in themselves as they are grounded in the
State’s obligation to eliminate disadvantage caused by past and current
discriminatory laws, traditions and practices.
(然後就會被問how to determine the duration of being temporary?
答案就會是同段的…The nature, duration and application of such measures
should be designed with reference to the specific issue and context, and
should be adjusted as circumstances require....to being discontinued when
the objectives...have been achieved.)
+++++
4) ICESCR General Comment No. 20 (2009)
上面這個意見, 其實有被CESCR再reaffirmed過一次, 根據
Para. 39 (Elimination of systemic discrimination): States parties must
adopt an active approach to eliminating systemic discrimination and
segregation in practice. Tackling such discrimination will usually require
a comprehensive approach with a range of laws, policies and programmes,
including temporary special measures. States parties should... in relation
to groups of individuals facing systemic discrimination, to penalize them
in case of non-compliance...The adoption of strict measures against
incitement to discrimination are often necessary.
Eliminating systemic discrimination will frequently require devoting
greater resources to traditionally neglected groups...particular attention will
need to be given to ensuring that laws and policies are implemented by...
others in practice.
+++++
哈~因為實在是太懶得看CEDAW跟CRC的規定了,
所以我只討論了ICCPR跟ICESCR下,
關於gender equality的要求...
至於為什麼特別討論[gender equality],
因為我想[public safety]這個論點,
大家應該都準備得很充分了(而且我也有點懶),
反正...目的只是再稍稍提醒一下大家,
以免到時候, 有法官提到某個特定文件,
Oralists回答不出來, 主要在討論什麼issues...
到時就糗大囉!!! (嗯, 我想應該足夠了吧~)
我想法院得已令R國停火的法源,
會不會是根據2005年那份聯大的文件[GA Res. 60/147],
而它就是個reflection of customary law:
[Basic Principles and Guidelines on the Right to a Remedy and
Reparation for Victims of Gross Violations of International
Human Rights Law and Serious Violations of International
Humanitarian Law]
如果R嚴重地違反ICCPR跟AP II,
那根據這份文件中的IX. Reparation for harm suffered,
18. In accordance with domestic law and international law, and taking
account of individual circumstances, victims of gross violations of
international human rights law and serious violations of international
humanitarian law should, as appropriate and proportional to the gravity
of the violation and the circumstances of each case, be provided with full
and effective reparation, as laid out in principles 19 to 23, which include
the following forms: restitution, compensation, rehabilitation, satisfaction
and guarantees of non-repetition.
所以法院應該可以order cessation
然後法源是:
Para. 22. Satisfaction should include, where applicable, any or all of the
following: (a) Effective measures aimed at the cessation of continuing
violations...
所以會不會讓法院可以order cessation的原因,
其實不是因為2條4的違反 (當然這還是可以爭, 只是還不知道法源為何)
但我想對於predator drone strikes造成嚴重的人權法和人道法的違反,
反而更可以是中止作為的法源, 因為這份文件的文義其實很明顯~
(只是用語是[should ])
+++as reminded by TH+++
這份文件的前言有提到:
Emphasizing that the Basic Principles and Guidelines contained herein
do not entail new international or domestic legal obligations but identify
mechanisms, modalities, procedures and methods for the implementation
of existing legal obligations under international human rights law and
international humanitarian law which are complementary though different
as to their norms...
所以...應該還是可以說成:
It is of character of existing customary international law...
【關於Assurance of Gender Equality】
我想大家都應該已經看過了,
但因為我也不太確定現在Claim III的contents是什麼,
所以我還是review了一次幾個重要文件,
並截取其中我覺得可行的statements:
1) ICCPR General Comment No. 28
Para. 2: Article 3 implies that all human beings should enjoy the rights
provided for in the Covenant, on an equal basis and in their totality.
(Para. 4: ....Articles 2 and 3 mandate States parties to take all steps
necessary, including the prohibition of discrimination on the ground of
sex, to put an end to discriminatory actions, both in the public and the
private sector, which impair the equal enjoyment of rights.)
最重要的是這段(Para. 5): Inequality in the enjoyment of rights by
women throughout the world is deeply embedded in tradition, history
and culture, including religious attitudes... States parties should ensure
that traditional, historical, religious or cultural attitudes are not used to
justify violations of women’s right to equality before the law and to
equal enjoyment of all Covenant rights...(所以其實...R不能只是單純
說要promote gender equality, 還要強調Mavazzi tradition到底是侵
害了女人什麼樣的CP權, 始為足矣!)
然後, Para. 21有更specifically地提到第18條之適用: ...These freedoms,
protected by article 18, must not be subject to restrictions other than those
authorized by the Covenant (所以只有public safety可以作為justification)
and must not be constrained...by interference from fathers, husbands,
brothers or others. Article 18 may not be relied upon to justify
discrimination against women...
+++++
2) ICESCR General Comment No. 18 (2005)
一個小提醒是, 如果重點是放在right to work, 那則是ESC權利的問題,
在ICESCR第6條, 而CESCR在Para. 1就開宗明義地說:
The right to work is essential for realizing other human rights and forms an
inseparable and inherent part of human dignity.
而在Para. 13有特別討論[Women and the right to work]: ... The Committee
underlines the need for a comprehensive system of protection to combat gender
discrimination and to ensure equal opportunities and treatment between men
and women...emphasis should be placed on...certain traditional cultures which
compromise the opportunities for the employment and advancement of women.
Para. 19. 20有再重申一次這個立場: States parties have a specific and
continuing obligation to move as expeditiously and effectively as possible
towards the full realization of article 6.
(然後Para. 50更進一步地表示了: ...law enforcement is invited to pay greater
attention to violations of the right to work in the exercise of their functions.)
+++++
3) ICESCR General Comment No. 16 (2005)
至於ICESCR下gender equality的問題, Para. 11有定義ICESCR下的
婦女歧視: Discrimination against women is “any distinction, exclusion or
restriction made on the basis of sex which has the effect or purpose of impairing
or nullifying the recognition, enjoyment or exercise by women, irrespective of
their marital status, on a basis of equality of men and women, of human rights
and fundamental freedoms in the political, economic, social, cultural, civil or any
other field”...而Para. 23表示: Implementing article 3, in relation to article 6,
requires inter alia, that in law and in practice, men and women have equal
access to jobs at all levels and all occupations..., in both the public and private
sectors,...
在關於obligation to protect的部分, Para. 19: The obligation to protect
requires States parties to take steps aimed directly at the elimination of
prejudices, customary and all other practices that perpetuate the notion of
inferiority or superiority of either of the sexes, and stereotyped roles for men
and women. States parties’ obligation to protect under article 3 of ICESCR
includes...to prevent third parties from interfering directly or indirectly with
the enjoyment of this right (可能說是Zetian men嗎?)...再加上Para. 20
(States parties have an obligation to monitor and regulate the conduct of
non-State actors to ensure that they do not violate the equal right.)
而Para. 15更是進一步地承認: The principles of equality and
non-discrimination are not always sufficient to guarantee true equality.
Temporary special measures may sometimes be needed in order to bring
disadvantaged or marginalized persons or groups of persons to the same
substantive level as others. (Mavazzi Ban?) Temporary special measures
aim at realizing not only de jure or formal equality, but also de facto or
substantive equality for men and women...As long as these measures are
necessary to redress de facto discrimination (要件一) and are terminated
when de facto equality is achieved (要件二), such differentiation is
legitimate (法律效果).
但最重要的應該是Para. 36: States parties are encouraged to adopt temporary
special measures to accelerate the achievement of equality between men and
women in the enjoyment of the rights under the Covenant. Such measures are
not to be considered discriminatory in themselves as they are grounded in the
State’s obligation to eliminate disadvantage caused by past and current
discriminatory laws, traditions and practices.
(然後就會被問how to determine the duration of being temporary?
答案就會是同段的…The nature, duration and application of such measures
should be designed with reference to the specific issue and context, and
should be adjusted as circumstances require....to being discontinued when
the objectives...have been achieved.)
+++++
4) ICESCR General Comment No. 20 (2009)
上面這個意見, 其實有被CESCR再reaffirmed過一次, 根據
Para. 39 (Elimination of systemic discrimination): States parties must
adopt an active approach to eliminating systemic discrimination and
segregation in practice. Tackling such discrimination will usually require
a comprehensive approach with a range of laws, policies and programmes,
including temporary special measures. States parties should... in relation
to groups of individuals facing systemic discrimination, to penalize them
in case of non-compliance...The adoption of strict measures against
incitement to discrimination are often necessary.
Eliminating systemic discrimination will frequently require devoting
greater resources to traditionally neglected groups...particular attention will
need to be given to ensuring that laws and policies are implemented by...
others in practice.
+++++
哈~因為實在是太懶得看CEDAW跟CRC的規定了,
所以我只討論了ICCPR跟ICESCR下,
關於gender equality的要求...
至於為什麼特別討論[gender equality],
因為我想[public safety]這個論點,
大家應該都準備得很充分了(而且我也有點懶),
反正...目的只是再稍稍提醒一下大家,
以免到時候, 有法官提到某個特定文件,
Oralists回答不出來, 主要在討論什麼issues...
到時就糗大囉!!! (嗯, 我想應該足夠了吧~)
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