國(guó)際環(huán)境條約遵約機(jī)制研究
發(fā)布時(shí)間：2019-04-13 11:36
【摘要】： 國(guó)際環(huán)境條約的遵約機(jī)制是針對(duì)環(huán)境問題的特點(diǎn)，在國(guó)際環(huán)境條約框架內(nèi)，通過(guò)締約方之間及締約方與條約內(nèi)設(shè)機(jī)構(gòu)之間的合作，加強(qiáng)締約方履約能力，以促進(jìn)遵約，并處理不遵約問題的一種新型的履約保障程序和機(jī)制。這一機(jī)制強(qiáng)調(diào)預(yù)防不遵約并促進(jìn)遵約，是針對(duì)全球環(huán)境問題和環(huán)境公約的特點(diǎn)，對(duì)避免爭(zhēng)端方法的有益探索。從特點(diǎn)上來(lái)說(shuō)，遵約機(jī)制具有預(yù)防性、非對(duì)抗性、條約內(nèi)生性等特征。 從經(jīng)濟(jì)學(xué)的角度分析，遵約機(jī)制深刻體現(xiàn)了各締約國(guó)在遵守條約方面的利益衡量和損益評(píng)估結(jié)果，也映射了國(guó)際環(huán)境合作的復(fù)雜性。國(guó)際環(huán)境合作需要一系列國(guó)際制度的支撐。國(guó)際制度的起源與國(guó)際合作的出現(xiàn)，本質(zhì)上是通過(guò)國(guó)際社會(huì)中個(gè)體之間復(fù)雜的談判和博奕過(guò)程來(lái)完成的。 遵約機(jī)制離不開國(guó)際環(huán)境法基本原則的指導(dǎo)。其原則主要有兩項(xiàng)：一是風(fēng)險(xiǎn)預(yù)防原則，二是共同但有區(qū)別的責(zé)任原則。前者是遵約機(jī)制追求的目標(biāo)之一，后者是遵約機(jī)制設(shè)計(jì)和運(yùn)行的基本前提和重要條件。 一個(gè)完整的遵約機(jī)制應(yīng)當(dāng)包含三方面的法律規(guī)則：(1)遵約基本規(guī)則體系；(2)遵約判定體系；(3)不遵約反應(yīng)體系。這三方面的規(guī)則互相結(jié)合，互相補(bǔ)充，構(gòu)成了一種既承上啟下，又相對(duì)獨(dú)立的獨(dú)特國(guó)際法律機(jī)制。 在實(shí)施機(jī)構(gòu)上，各遵約機(jī)制大多設(shè)立了遵約委員會(huì)處理遵約問題。遵約委員會(huì)是根據(jù)締約方會(huì)議的相關(guān)決議設(shè)立，按締約方會(huì)議授權(quán)處理遵約問題的專門機(jī)構(gòu)。遵約委員會(huì)向締約方會(huì)議報(bào)告工作，并接受締約方會(huì)議的政策指導(dǎo)。根據(jù)授權(quán)，各遵約委員會(huì)均有權(quán)受理遵約案件，并確定是否遵約的事實(shí)，但是否可以采取促進(jìn)遵約的措施，各條約的授權(quán)不盡相同。不同授權(quán)，體現(xiàn)了遵約委員會(huì)與締約方會(huì)議以及締約方的不同關(guān)系，也體現(xiàn)了遵約委員會(huì)的不同職能。 一般來(lái)說(shuō)，，遵約機(jī)制可以通過(guò)以下三種方式啟動(dòng)：一是締約國(guó)針對(duì)其他締約國(guó)提出；二是締約國(guó)考慮到本國(guó)履約的實(shí)際情況而主動(dòng)提出；三是由條約機(jī)構(gòu)，如國(guó)際環(huán)境條約的秘書處或者特定的專家評(píng)審組結(jié)合其掌握的締約國(guó)的遵約情況而提出。遵約機(jī)制的運(yùn)行程序因啟動(dòng)方式的不同而略有不同，但大體上都包含遵約信息審查、判定、遵約或不遵約的結(jié)論認(rèn)定、采取處理措施等階段。在臭氧層保護(hù)和氣候變化等領(lǐng)域，幾個(gè)典型的國(guó)際環(huán)境條約的遵約機(jī)制的運(yùn)行也各有特點(diǎn)。 國(guó)際環(huán)境條約的不遵約，對(duì)發(fā)展中國(guó)家而言主要原因是履約能力不足，對(duì)發(fā)達(dá)國(guó)家則更多是由于缺乏政治意愿。發(fā)達(dá)國(guó)家政治意愿不足，對(duì)于履行向發(fā)展中國(guó)家提供資金和技術(shù)援助的義務(wù)態(tài)度消極，造成發(fā)展中國(guó)家履約能力不足，這是國(guó)際環(huán)境條約不遵約問題的根源。對(duì)發(fā)展中國(guó)家來(lái)說(shuō)，發(fā)達(dá)國(guó)家提供援助的制度是國(guó)際環(huán)境條約的前提和核心。遵約機(jī)制強(qiáng)調(diào)通過(guò)促進(jìn)性措施提高履約能力，是國(guó)際環(huán)境條約援助制度的強(qiáng)化和補(bǔ)充，有助于發(fā)展中國(guó)家獲得履約援助，可以在一定程度上解決由于履約能力不足造成的不遵約。例如，在《蒙特利爾議定書》的實(shí)踐中，遵約機(jī)制處理了多起經(jīng)濟(jì)轉(zhuǎn)軌國(guó)家的不遵約案例，對(duì)協(xié)助這些國(guó)家解決履約困難，促進(jìn)《蒙特利爾議定書》的實(shí)施起到了重要作用。 中國(guó)是發(fā)展中國(guó)家。中國(guó)本著國(guó)際合作的真誠(chéng)態(tài)度，認(rèn)真遵守本國(guó)締結(jié)或參加的國(guó)際環(huán)境條約，取得了良好的遵約效果。但是，在履約能力建設(shè)、履約資金和技術(shù)、發(fā)揮地方政府和企業(yè)對(duì)遵約的積極主動(dòng)等方面還需要進(jìn)一步加以關(guān)注。
[Abstract]:The compliance mechanism of the international environmental treaty is a feature of environmental issues that, within the framework of the international environmental treaty, enhance the Party's compliance capacity through cooperation among and among Parties and within the treaty, in order to promote compliance, And to deal with a new performance guarantee procedure and mechanism for non-compliance issues. This mechanism stresses that prevention of non-compliance and the promotion of compliance is a useful exploration of the avoidance of dispute methods in response to the global environmental and environmental conventions. In particular, the compliance mechanism has the characteristics of preventive, non-confrontational, endogenetic and so on. From the perspective of economics, the compliance mechanism has a profound reflection of the results of the assessment of the interests of States parties in respect of the treaty and the results of the gains and losses, as well as the complex of international environmental cooperation Heterosexual. International environmental cooperation requires a range of international regimes Support. The origin of the international system and the emergence of international cooperation are, in essence, through the complex negotiations between individuals in the international community and the process of game The compliance mechanism cannot be separated from the basic international environmental law The principle is guided by two principles: one is the principle of risk prevention, the other is common but differentiated The former is one of the objectives pursued by the compliance mechanism, which is the basic premise of the design and operation of the compliance mechanism A full compliance mechanism should include three legal rules: (1) a system of basic rules of compliance; (2) a compliance determination system; and (3) ) The non-compliance reaction system. These three rules are combined with each other and complement each other to form a relatively independent and independent Unique international legal mechanisms. Most of the compliance mechanisms have been established in the implementation mechanism Compliance Committee deals with compliance issues. The Compliance Committee is established in accordance with the relevant resolutions of the Conference of the Parties and is mandated by the Conference of the Parties Implementation of the report of the Compliance Committee to the Conference of the Parties and Policy guidance by the Conference of the Parties. In accordance with the mandate, the Compliance Committee has the right to receive a compliance case and to determine the fact of compliance, but whether it is possible to take measures to promote compliance The mandates of the various treaties are not the same. Different mandates reflect the different relations between the Compliance Committee and the Conference of the Parties and the Parties, as well The different functions of the Compliance Committee. In general, the compliance mechanism can be launched in three ways: one is the State party's submission to other States parties; and the second is the actual situation of the State party taking into account its national performance The third is to be combined with a treaty body, such as the secretariat of the international environmental treaty or a specific expert rating group Compliance with the State party in question. The operating procedures of the compliance mechanism vary slightly from the start-up approach, but generally include compliance information review, decision, compliance or non-compliance. in that area of the protection of the ozone layer and climate change, several typical international environmental strip The operation of the existing compliance mechanism has also been characterized. The non-compliance of the international environmental treaties, for developing countries, is mainly due to the lack of performance capacity, The lack of political will for developed countries is due to the lack of political will in the developed countries and the negative attitude of the developed countries to the fulfilment of their obligations to provide financial and technical assistance to developing countries, resulting in insufficient performance capacity in developing countries This is the root of the issue of non-compliance in the international environmental treaties. For developing countries, developed countries provide support The system of co-operation is the premise and the core of the international environmental treaties. The compliance mechanism stresses the strengthening and complementarity of the international environmental treaty assistance system through the promotion of the promotion of sexual measures and the strengthening and addition of the international environmental treaty assistance system, which can, to a certain extent, assist developing countries in obtaining performance assistance To address non-compliance due to insufficient performance capacity. For example, in the practice of the Montreal Protocol, the compliance mechanism has addressed the non-compliance cases of many countries with economies in transition and is contributing to the resolution of the difficulties of implementation in those countries and for the promotion of the Mr. Trelier's Protocol China is a developing country. China is in good faith in international cooperation, and is seriously concerned with the conclusion of the country or The international environmental treaties to which it is a party have achieved good compliance. However, in the capacity-building of performance, performance funds and technology, local governments and enterprises are
【學(xué)位授予單位】：中國(guó)政法大學(xué)
【學(xué)位級(jí)別】：博士
【學(xué)位授予年份】：2007
【分類號(hào)】：D996.9
本文編號(hào)：2457517
[Abstract]:The compliance mechanism of the international environmental treaty is a feature of environmental issues that, within the framework of the international environmental treaty, enhance the Party's compliance capacity through cooperation among and among Parties and within the treaty, in order to promote compliance, And to deal with a new performance guarantee procedure and mechanism for non-compliance issues. This mechanism stresses that prevention of non-compliance and the promotion of compliance is a useful exploration of the avoidance of dispute methods in response to the global environmental and environmental conventions. In particular, the compliance mechanism has the characteristics of preventive, non-confrontational, endogenetic and so on. From the perspective of economics, the compliance mechanism has a profound reflection of the results of the assessment of the interests of States parties in respect of the treaty and the results of the gains and losses, as well as the complex of international environmental cooperation Heterosexual. International environmental cooperation requires a range of international regimes Support. The origin of the international system and the emergence of international cooperation are, in essence, through the complex negotiations between individuals in the international community and the process of game The compliance mechanism cannot be separated from the basic international environmental law The principle is guided by two principles: one is the principle of risk prevention, the other is common but differentiated The former is one of the objectives pursued by the compliance mechanism, which is the basic premise of the design and operation of the compliance mechanism A full compliance mechanism should include three legal rules: (1) a system of basic rules of compliance; (2) a compliance determination system; and (3) ) The non-compliance reaction system. These three rules are combined with each other and complement each other to form a relatively independent and independent Unique international legal mechanisms. Most of the compliance mechanisms have been established in the implementation mechanism Compliance Committee deals with compliance issues. The Compliance Committee is established in accordance with the relevant resolutions of the Conference of the Parties and is mandated by the Conference of the Parties Implementation of the report of the Compliance Committee to the Conference of the Parties and Policy guidance by the Conference of the Parties. In accordance with the mandate, the Compliance Committee has the right to receive a compliance case and to determine the fact of compliance, but whether it is possible to take measures to promote compliance The mandates of the various treaties are not the same. Different mandates reflect the different relations between the Compliance Committee and the Conference of the Parties and the Parties, as well The different functions of the Compliance Committee. In general, the compliance mechanism can be launched in three ways: one is the State party's submission to other States parties; and the second is the actual situation of the State party taking into account its national performance The third is to be combined with a treaty body, such as the secretariat of the international environmental treaty or a specific expert rating group Compliance with the State party in question. The operating procedures of the compliance mechanism vary slightly from the start-up approach, but generally include compliance information review, decision, compliance or non-compliance. in that area of the protection of the ozone layer and climate change, several typical international environmental strip The operation of the existing compliance mechanism has also been characterized. The non-compliance of the international environmental treaties, for developing countries, is mainly due to the lack of performance capacity, The lack of political will for developed countries is due to the lack of political will in the developed countries and the negative attitude of the developed countries to the fulfilment of their obligations to provide financial and technical assistance to developing countries, resulting in insufficient performance capacity in developing countries This is the root of the issue of non-compliance in the international environmental treaties. For developing countries, developed countries provide support The system of co-operation is the premise and the core of the international environmental treaties. The compliance mechanism stresses the strengthening and complementarity of the international environmental treaty assistance system through the promotion of the promotion of sexual measures and the strengthening and addition of the international environmental treaty assistance system, which can, to a certain extent, assist developing countries in obtaining performance assistance To address non-compliance due to insufficient performance capacity. For example, in the practice of the Montreal Protocol, the compliance mechanism has addressed the non-compliance cases of many countries with economies in transition and is contributing to the resolution of the difficulties of implementation in those countries and for the promotion of the Mr. Trelier's Protocol China is a developing country. China is in good faith in international cooperation, and is seriously concerned with the conclusion of the country or The international environmental treaties to which it is a party have achieved good compliance. However, in the capacity-building of performance, performance funds and technology, local governments and enterprises are
【學(xué)位授予單位】：中國(guó)政法大學(xué)
【學(xué)位級(jí)別】：博士
【學(xué)位授予年份】：2007
【分類號(hào)】：D996.9
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