气候变化国际法问题研究
发布时间：2018-07-26 17:10
【摘要】：早在20世纪70年代,国际社会已经开始关注全球变暖和气候变化问题。1992年,在巴西里约热内卢召开的联合国环境与发展大会通过了《联合国气候变化框架公约》,正式宣告了各国共同应对气候变化挑战的立场和决心,为气候变化国际法的产生与发展奠定了踏实的基础。1997年通过的《京都议定书》标志着气候变化国际法从软法框架发展成有法律约束力的国际法律义务规范体系。经过艰苦的谈判和利益交换,2005年京都议定书正式生效。时至今日,《京都议定书》第一阶段的减排承诺期已临近结束。气候变化国际法前期发展的丰硕成果并不能消减后京都时代(2012年后)气候变化国际法面临的巨大困难和障碍。发达国家与发展中国家的对立立场,各个国家集团的利益分歧,气候变化作为国际环境问题的特殊性,种种因素都导致气候变化国际法的发展进入了一个十分关键、敏感和危险的时期。 本论文在回顾气候变化国际法发展与演变的基础上,分析了气候变化国际法的价值取向、核心问题和交叉问题,并对2012年后的气候变化国际法发展做出了预测和展望,同时也对我国的气候变化法律制度提出了意见和建议。本文分为导言和正文两大部分,正文由六章组成,全文共计21万余字。 导言部分除了对选题意义与研究目标进行阐述以外,使用了相当篇幅介绍了全球变暖和气候变化问题的科学背景。气候变化本身是一个自然现象,需要科学理论和工具进行观察、分析和预测。讨论气候变化,不能完全脱离科学和技术背景,该特点直接影响了人类对于气候问题的认识和理解,也间接影响了气候变化国际法的发展。虽然人类社会已经承认人类排放温室气体的活动是全球变暖的主要原因,气候变化对人类生存和发展也已经或即将产生巨大的影响,但有关气候变化的影响预测在科学上仍然存在一些争论和质疑。气候变化问题在科学上的不确定性直接影响到气候变化国际法的发展,这是不能回避的问题。 正文第一章为“气候变化国际法的发展与演变”。本章详细介绍了《联合国气候变化框架公约》和《京都议定书》的产生历史,并对公约和议定书的内容进行了介绍,在肯定其历史意义和作用的同时,也对公约和议定书的不足之处进行了分析。本章同时对2007年以后的联合国气候变化大会进行了介绍,包括巴厘岛会议、波兹南会议、哥本哈根会议以及刚刚结束的坎昆气候大会。除了联合国框架下的国际活动之外,政府间气候变化专家小组(IPCC)、世界银行、非政府组织的活动同样对气候变化国际法的发展起到了推动和促进作用。 正文第二章为“气候变化国际法的价值取向与原则体现”。本章分为三节,分别阐述了气候变化国际法的三大价值取向,即公平价值、效益价值和效率价值。在论述三大价值的同时,给出了体现该价值取向的针对性原则。气候变化国际法的公平价值需要兼顾代内公平和代际公平,因此“共同但有区别责任”原则是该价值的最好体现。气候变化国际法的效益价值要求在不阻碍人类经济发展的基础上保护环境利益,可持续发展原则成功地将环境与发展的矛盾糅合成一个共同理念,满足了气候变化制度的环境效益价值。气候变化国际法的效率价值期望通过经济学上的成本效益分析,使得人类能够运用有限的资源获得最大的收益,气候变化国际法的成本效益原则作为制度设计的基本理念和手段之一,已经获得了各成员国的普遍认可。 正文第三章为“气候变化国际法核心问题述评”。该章围绕气候变化国际法制度的基本问题、核心问题进行了广泛的论述和讨论,篇幅较为庞大。该章首先对负有盛名的《京都议定书》灵活履约机制进行了分析,即清洁发展机制、联合履约机制、排放交易机制,同时将欧盟泡的集体履约机制加入到灵活履约机制体系当中。该章第二节则对气候变化的四支柱问题,即减缓、适应、资金和技术问题,进行了讨论,对四支柱问题之间的关系和互动进行了专门的讨论。减缓是气候变化国际法规范的传统内容,适应问题也逐渐得到了缔约方的重视,资金和技术是所有工作的基础和条件。本章第三节专门针对气候变化国际法的履约机制进行了论述。就当前的现实情况而言,气候变化国际法的履约前景并不乐观,《京都议定书》制定的独具特色的遵约机制是否能够起到效果,都是值得关注的问题。 正文第四章为“气候变化与其他国际法部门的交叉问题评述”。气候变化作为人类面临的共同环境问题,必然与其他国际法部门发生联系。在国际环境法领域,里约三公约(气候变化、生物多样性和荒漠化问题)的联合履行机制已经初步形成,而气候变化对湿地、世界遗产、森林、动植物保护等产生的显著影响,使得气候变化问题与多数国际环境公约发生了有机联系,国际环境公约之间的合作和协调成为将来工作的重要内容。就国际法律责任而言,全球变暖的始作俑者应当承担气候变化的历史责任和赔偿义务,但是国际责任问题本身理论性强、实践性弱,气候变化损害适用国际责任在实践中存在较大的客观困难,短期内难以改变。气候变化严重侵害了生存权、健康权、居住权、发展权等基本人权,虽然在国际层面上没有专门的法律文件,但部分司法案例已初步确立了以人权作为依据控诉气候变化责任者的可行性。在国际法律责任适用困难的情况下,人权可以作为应对气候变化和损害赔偿申诉的依据。 正文第五章为“对2012后气候变化国际法发展的展望”。气候变化国际法的发展目前面对的困难很多,例如南北矛盾、主体庞大、利益多元、议题泛化等。要推进气候变化国际法进一步的发展,需要提炼出制度的关键议题,集中资源进行突破,例如资金和技术问题、碳汇问题、市场手段运用等。2012后国际法的发展需要从两个方向同时进行,一是从上往下(Top-down)继续进行气候变化普遍性国际法的制度建设,国际上很多组织和研究机构也已经提出了很多建议方案,具有一定的参考价值;二是从下往上(Bottom-up)着重发展区域性国际法,区域国际法包括双边、多边和区域性合作。在当前气候变化国际谈判进入僵局的背景下,区域性国际法的发展却相当活跃,效果显著。气候变化国际法的发展要两条腿同时走路,才能真正达到应对气候变化的最终目的。 正文最后一章为“我国应对气候变化的法律政策和制度完善”。我国目前已经成为世界上温室气体排放量最高的国家。作为一个发展中大国,我国承担着经济发展和环境保护的双重任务,在国际社会上承受的压力也越来越大。加强国内的气候变化法律制度建设是必要而紧迫的工作。我国目前虽然没有专门的气候变化应对法,但是相关的法律制度已经初具雏形,当前完善应对气候变化法律制度的工作思路是:推动应对气候变化的专门立法,修改和补充现行法律,包括能源类、产业经济类、环保类、资源类法律等。在完善我国应对气候变化法制进程中,立法机构和政府要树立和落实科学发展观,贯彻可持续发展原则,自主积极减排,这不仅是为了履行国际义务,也是为我们后代的环境利益提供保障。
[Abstract]:As early as 1970s, the international community has begun to pay attention to global warming and climate change in.1992. The United Nations Conference on environment and development, held in Rio De Janeiro, Brazil, adopted the United Nations Framework Convention on climate change, which formally declared the position and determination of countries to deal with the challenges of climate change and for the international law of climate change. The emergence and development of the Kyoto Protocol, which was passed in.1997, marked a legally binding international legal system of legal obligations from the soft law framework to the development of the international law of climate change. After hard negotiations and the exchange of interests, the Kyoto Protocol entered into force in 2005. The promise period of emission reduction is close to the end. The great achievements of the early development of the international law of climate change can not reduce the great difficulties and obstacles facing the international law of climate change after the Kyoto (after 2012). The opposition between the developed and the developing countries, the disproportionation of the interests of the various national groups, and the climate change as a special international environmental problem All kinds of factors have led to the development of international law of climate change into a crucial, sensitive and dangerous period.
On the basis of reviewing the development and evolution of the international law of climate change, this paper analyses the value orientation, core and cross issues of the international law of climate change, and makes a forecast and prospect for the development of international law of climate change after 2012, and puts forward suggestions and suggestions for the legal system of climate change in China. There are two parts of speech and text. The main body is composed of six chapters, with a total of 21 words.
In addition to expound the significance and research objectives of the topic, the introduction uses a considerable length to introduce the scientific background of global warming and climate change. Climate change itself is a natural phenomenon. It needs scientific theories and tools to observe, analyze and predict. The discussion of climate change is not completely separated from the back of science and technology. It has a direct impact on human understanding and understanding of climate issues and the indirect impact on the development of international law on climate change. Although human society has recognized that human emissions of greenhouse gases are the main cause of global warming, climate change has already or is about to have a huge impact on human survival and development, but it is concerned. There are still some controversies and questions about the impact of climate change in science. The uncertainty of the climate change in science directly affects the development of international law on climate change, which is an unavoidable problem.
The first chapter of the text is "the development and evolution of the international law of climate change". This chapter introduces the history of the United Nations Framework Convention on climate change and the Kyoto Protocol, and introduces the contents of the Convention and protocol, while affirming its historical significance and role, it also points out the shortcomings of the Convention and the protocol. This chapter also introduces the United Nations Conference on climate change after 2007, including the Bali Island conference, the Poznan conference, the Copenhagen conference and the just ending Cancun climate conference. In addition to the international activities under the United Nations Framework, the Intergovernmental Panel on climate change (IPCC), the world bank, and the non-governmental organization activities It also played a role in promoting and promoting the development of international law on climate change.
The second chapter of the text is "the value orientation and principle of the international law of climate change". This chapter is divided into three sections. This chapter expounds the three values of the international law of climate change, namely, the fair value, the benefit value and the efficiency value. At the same time, it gives the pertinence principle of reflecting the value orientation while discussing the three values. The international law of climate change. The principle of "common but differentiated responsibility" is the best embodiment of this value. The benefit value of the international law of climate change requires the protection of environmental interests on the basis of the development of human economy. The principle of sustainable development combines the contradiction of environment and development successfully. The common concept meets the environmental benefit value of the climate change system. The efficiency value of the international law of climate change is expected to make the human being able to use limited resources to obtain the maximum benefit through the economic cost-benefit analysis. The cost benefit of the international law of climate change is one of the basic ideas and means of the system design. It has been universally recognized by all Member States.
The third chapter of the text is "a review of the core issues of the international law of climate change". This chapter focuses on the basic issues of the international law system of climate change and its core issues, which are widely discussed and discussed. The chapter first analyzes the flexible performance mechanism of the famous "Kyoto Protocol", namely, the clean development mechanism and the joint performance. The second section of this chapter discusses the four pillars of climate change, namely, mitigation, adaptation, financial and technical issues, and discusses the relationship and interaction between the four pillar problems. The mitigation is the climate change. The traditional content of the norms of international law and the problem of adaptation have gradually been paid attention to by the parties. Capital and technology are the basis and condition of all work. The third section of this chapter is devoted to the performance mechanism of international law on climate change. Whether the compliance mechanism formulated by the protocol can achieve results is a matter of concern.
The fourth chapter of the text is "a review of the intersecting issues of climate change and other international law departments". As a common environmental problem facing mankind, climate change is bound to be linked with other international law departments. In the field of international environmental law, the joint implementation mechanism of the three Rio conventions (climate change, biodiversity and desertification) has been preliminary. The significant impact of climate change on wetlands, world heritage, forests, and animal and plant protection makes the problem of climate change organic related to most international environmental conventions. Cooperation and coordination among international environmental conventions has become an important part of future work. As for international legal responsibility, the initiator of global warming should be concerned. When undertaking the historical responsibility and compensation obligation of climate change, the problem of international responsibility itself is very theoretical and weak in practice. It is difficult to change the application of international responsibility for the damage of climate change in practice, and it is difficult to change in the short term. The climate change has seriously infringed the basic human rights, such as the right to survival, the right to health, the right of residence, the right to development and so on, though There are no special legal documents at the international level, but some judicial cases have preliminarily established the feasibility of using human rights as the basis for the prosecution of climate change responsibility. In the case of difficulties in the application of international legal liability, human rights can be used as the basis for responding to climate change and damages.
The fifth chapter of the text is "the prospect of the development of international law of climate change after 2012." the development of the international law of climate change is facing many difficulties, such as the north and South contradictions, the main body, the diversity of interests, and the generalization of the issues. To advance the further development of the international law of climate change, the key issues of the system should be refined and the centralized resources are to be concentrated on the process of development. The development of international law after.2012, such as capital and technology, carbon sequestration and market means, needs to be carried out at the same time in two directions. One is to continue the system construction of the international law of climate change universality from the upper and lower (Top-down). Many international organizations and research institutions have also put forward a lot of proposals. The two is to focus on the development of regional international law and regional international law, including bilateral, multilateral and regional cooperation from the bottom to the top (Bottom-up). In the context of the impasse of international negotiations on climate change, the development of regional international law is quite active and effective. The development of international law on climate change will take two legs at the same time, Only in this way can we truly achieve the ultimate goal of tackling climate change.
The last chapter of the text is "China's legal policy and system to cope with climate change". China has now become the world's highest greenhouse gas emission country. As a developing country, China bears the dual task of economic development and environmental protection, and the pressure to bear in the international community is increasing. The construction of the legal system of climate change is a necessary and urgent work. Although there is no special response to climate change in China, the relevant legal system has begun to take shape, and the work train of thought to improve the legal system for climate change is to promote the special legislation on climate change, to amend and supplement the current laws, including In the process of improving our country's response to climate change legal system, the legislature and the government should set up and implement Scientific Outlook on Development, carry out the principle of sustainable development, and actively reduce the emission reduction, which is not only to fulfil international justice, but also to provide guarantee for the environmental interests of our future generations.
【学位授予单位】：华东政法大学
【学位级别】：博士
【学位授予年份】：2011
【分类号】：D996.9
本文编号：2146705
[Abstract]:As early as 1970s, the international community has begun to pay attention to global warming and climate change in.1992. The United Nations Conference on environment and development, held in Rio De Janeiro, Brazil, adopted the United Nations Framework Convention on climate change, which formally declared the position and determination of countries to deal with the challenges of climate change and for the international law of climate change. The emergence and development of the Kyoto Protocol, which was passed in.1997, marked a legally binding international legal system of legal obligations from the soft law framework to the development of the international law of climate change. After hard negotiations and the exchange of interests, the Kyoto Protocol entered into force in 2005. The promise period of emission reduction is close to the end. The great achievements of the early development of the international law of climate change can not reduce the great difficulties and obstacles facing the international law of climate change after the Kyoto (after 2012). The opposition between the developed and the developing countries, the disproportionation of the interests of the various national groups, and the climate change as a special international environmental problem All kinds of factors have led to the development of international law of climate change into a crucial, sensitive and dangerous period.
On the basis of reviewing the development and evolution of the international law of climate change, this paper analyses the value orientation, core and cross issues of the international law of climate change, and makes a forecast and prospect for the development of international law of climate change after 2012, and puts forward suggestions and suggestions for the legal system of climate change in China. There are two parts of speech and text. The main body is composed of six chapters, with a total of 21 words.
In addition to expound the significance and research objectives of the topic, the introduction uses a considerable length to introduce the scientific background of global warming and climate change. Climate change itself is a natural phenomenon. It needs scientific theories and tools to observe, analyze and predict. The discussion of climate change is not completely separated from the back of science and technology. It has a direct impact on human understanding and understanding of climate issues and the indirect impact on the development of international law on climate change. Although human society has recognized that human emissions of greenhouse gases are the main cause of global warming, climate change has already or is about to have a huge impact on human survival and development, but it is concerned. There are still some controversies and questions about the impact of climate change in science. The uncertainty of the climate change in science directly affects the development of international law on climate change, which is an unavoidable problem.
The first chapter of the text is "the development and evolution of the international law of climate change". This chapter introduces the history of the United Nations Framework Convention on climate change and the Kyoto Protocol, and introduces the contents of the Convention and protocol, while affirming its historical significance and role, it also points out the shortcomings of the Convention and the protocol. This chapter also introduces the United Nations Conference on climate change after 2007, including the Bali Island conference, the Poznan conference, the Copenhagen conference and the just ending Cancun climate conference. In addition to the international activities under the United Nations Framework, the Intergovernmental Panel on climate change (IPCC), the world bank, and the non-governmental organization activities It also played a role in promoting and promoting the development of international law on climate change.
The second chapter of the text is "the value orientation and principle of the international law of climate change". This chapter is divided into three sections. This chapter expounds the three values of the international law of climate change, namely, the fair value, the benefit value and the efficiency value. At the same time, it gives the pertinence principle of reflecting the value orientation while discussing the three values. The international law of climate change. The principle of "common but differentiated responsibility" is the best embodiment of this value. The benefit value of the international law of climate change requires the protection of environmental interests on the basis of the development of human economy. The principle of sustainable development combines the contradiction of environment and development successfully. The common concept meets the environmental benefit value of the climate change system. The efficiency value of the international law of climate change is expected to make the human being able to use limited resources to obtain the maximum benefit through the economic cost-benefit analysis. The cost benefit of the international law of climate change is one of the basic ideas and means of the system design. It has been universally recognized by all Member States.
The third chapter of the text is "a review of the core issues of the international law of climate change". This chapter focuses on the basic issues of the international law system of climate change and its core issues, which are widely discussed and discussed. The chapter first analyzes the flexible performance mechanism of the famous "Kyoto Protocol", namely, the clean development mechanism and the joint performance. The second section of this chapter discusses the four pillars of climate change, namely, mitigation, adaptation, financial and technical issues, and discusses the relationship and interaction between the four pillar problems. The mitigation is the climate change. The traditional content of the norms of international law and the problem of adaptation have gradually been paid attention to by the parties. Capital and technology are the basis and condition of all work. The third section of this chapter is devoted to the performance mechanism of international law on climate change. Whether the compliance mechanism formulated by the protocol can achieve results is a matter of concern.
The fourth chapter of the text is "a review of the intersecting issues of climate change and other international law departments". As a common environmental problem facing mankind, climate change is bound to be linked with other international law departments. In the field of international environmental law, the joint implementation mechanism of the three Rio conventions (climate change, biodiversity and desertification) has been preliminary. The significant impact of climate change on wetlands, world heritage, forests, and animal and plant protection makes the problem of climate change organic related to most international environmental conventions. Cooperation and coordination among international environmental conventions has become an important part of future work. As for international legal responsibility, the initiator of global warming should be concerned. When undertaking the historical responsibility and compensation obligation of climate change, the problem of international responsibility itself is very theoretical and weak in practice. It is difficult to change the application of international responsibility for the damage of climate change in practice, and it is difficult to change in the short term. The climate change has seriously infringed the basic human rights, such as the right to survival, the right to health, the right of residence, the right to development and so on, though There are no special legal documents at the international level, but some judicial cases have preliminarily established the feasibility of using human rights as the basis for the prosecution of climate change responsibility. In the case of difficulties in the application of international legal liability, human rights can be used as the basis for responding to climate change and damages.
The fifth chapter of the text is "the prospect of the development of international law of climate change after 2012." the development of the international law of climate change is facing many difficulties, such as the north and South contradictions, the main body, the diversity of interests, and the generalization of the issues. To advance the further development of the international law of climate change, the key issues of the system should be refined and the centralized resources are to be concentrated on the process of development. The development of international law after.2012, such as capital and technology, carbon sequestration and market means, needs to be carried out at the same time in two directions. One is to continue the system construction of the international law of climate change universality from the upper and lower (Top-down). Many international organizations and research institutions have also put forward a lot of proposals. The two is to focus on the development of regional international law and regional international law, including bilateral, multilateral and regional cooperation from the bottom to the top (Bottom-up). In the context of the impasse of international negotiations on climate change, the development of regional international law is quite active and effective. The development of international law on climate change will take two legs at the same time, Only in this way can we truly achieve the ultimate goal of tackling climate change.
The last chapter of the text is "China's legal policy and system to cope with climate change". China has now become the world's highest greenhouse gas emission country. As a developing country, China bears the dual task of economic development and environmental protection, and the pressure to bear in the international community is increasing. The construction of the legal system of climate change is a necessary and urgent work. Although there is no special response to climate change in China, the relevant legal system has begun to take shape, and the work train of thought to improve the legal system for climate change is to promote the special legislation on climate change, to amend and supplement the current laws, including In the process of improving our country's response to climate change legal system, the legislature and the government should set up and implement Scientific Outlook on Development, carry out the principle of sustainable development, and actively reduce the emission reduction, which is not only to fulfil international justice, but also to provide guarantee for the environmental interests of our future generations.
【学位授予单位】：华东政法大学
【学位级别】：博士
【学位授予年份】：2011
【分类号】：D996.9
【引证文献】
相关期刊论文 前1条
1 陈若英;;感性与理性之间的选择——评《气候变化正义》和减排规制手段[J];政法论坛;2013年02期
相关硕士学位论文 前2条
1 孔令颖;中国应对气候变化法律体系的完善[D];北京交通大学;2012年
2 季华;全球气候变暖背景下的人类生存权保护[D];外交学院;2012年
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