论国际法中的软规范
发布时间：2018-11-09 18:04
【摘要】：国际法中的软规范,亦称软法,指原则上没有法律约束力但有实际效力的行为规则。软规范作为法律的一种表现形式,其概念最早出现在国际法领域,其他领域则较少出现。但随着公共治理的兴起和全球化的快速发展,国际软规范在很多领域大规模的涌现并得到了很好的运用,特别是在国际经济贸易、国际环保、信息技术、人权保护等领域。国际软规范起初并没有得到学者们的重视,认为软规范不具有强制约束力,也就不能称之为法律,但随着软规范在国际各领域的广泛应用,越来越多的学者们逐渐改变了对软规范的冷漠态度,把关注的目光投向了软规范的研究,软规范呈现出勃勃生机。随着研究的逐步展开和日渐深入,愈来愈多的学者对软规范的存在、意义及其作用持肯定态度。 尽管国际法长期以来在维护国际秩序方面发挥着重要作用,但传统国际法仍然存在着不可回避的缺陷：第一,在国际交往中存在很多复杂的问题丞待解决,而国际泫却无法对此进行规范,国际社会没有现成的解决方案以便运用；第二,由于国家间存在着意识形态、思想观念、社会现实等方面的差异,在执行国际法的相关条约规定时,如果遭遇阻力而强行执行规范的话往往适得其反；第三,国际法的制定是一个相当漫长的过程,无法及时因应变动不居的国际现实,其主要原因是因为每一个国家都不会在维护自己国家的国家主权和利益方面做出让步。当出现这种局面时,传统意义上的国际法就无法发挥其应有的作用。相较于传统国际法中的硬规范而言,国际软规范关注的是争论中的各国就某个争议问题达成共识,软规范所独有的开放性、参与性、回应性、(?)少协商的障碍,就某项经济和政治僵局达成妥协,而将其约束力留在将来进行协商和讨论。软规范的多样性、灵活性还能够在很大程度上起到补充硬规范的作用。小仅如此,软规范还可以使被硬规范忽略掉的那部分的主体参与到协商过程中来。 本文采取综合与比较相结合的方法对国际法中的软规范的产生背景、演变过程、研究现状、软规范的基本概念、软规范与硬规范的联系、软规范的表现形式与软规范的功能等方面进行阐述。在介绍国际法中的软规范的形成过程中则主要采取的是案例研究方法,以期能够更为详细清楚的介绍国际软规范是如何形成的。 加强对国际软规范的研究,有利于我们更加准确的理解国际法的本质,从而进一步有效发挥国际法规范的功能,更为重要的是在当今这个以和平与发展为主题的国际大环境中国际软规范所扮演的角色是传统意义上的国际法所不能代替的,尤其是国际软规范在构建和谐国际关系,维护国际秩序方面所发挥的重要作用。
[Abstract]:Soft norms in international law, also called soft law, refer to rules of conduct that are not legally binding in principle but have actual force. As a manifestation of law, the concept of soft norm first appeared in the field of international law, but seldom in other fields. However, with the rise of public governance and the rapid development of globalization, international soft norms have emerged in a large scale in many fields, especially in international economic and trade, international environmental protection, information technology, human rights protection and other fields. At first, the international soft norms have not been paid much attention by scholars, and they think that soft norms are not binding, so they can not be called law, but with the wide application of soft norms in various fields of the world, More and more scholars have gradually changed their indifferent attitude towards soft norms and paid close attention to the study of soft norms. With the gradual development and deepening of the research, more and more scholars hold a positive attitude towards the existence, significance and function of soft norms. Although international law has played an important role in maintaining the international order for a long time, there are still some unavoidable shortcomings in the traditional international law: first, there are many complex problems to be solved in international exchanges. The international community does not have a ready solution to regulate this; the international community does not have a ready solution for its use; Second, due to the differences in ideology, social reality and so on, it is often counterproductive to enforce the norms when implementing the relevant treaties and regulations of international law. Third, the formulation of international law is a long process, unable to respond to the changing international reality in time, the main reason is that each country will not make concessions in safeguarding its own national sovereignty and interests. When this happens, the traditional sense of international law can not play its due role. Compared with the hard norms in the traditional international law, the international soft norms are concerned with the consensus reached by the countries in dispute on a particular issue, the unique openness, participation, responsiveness of the soft norms, (?) The obstacle to less negotiation is to reach a compromise on an economic and political impasse, leaving its binding force for future consultation and discussion. The diversity of soft specifications, flexibility can also play a large role in complementing hard norms. In this case, the soft specification can also involve the subject of the part neglected by the hard specification in the negotiation process. In this paper, the background, evolution, research status, basic concepts of soft norms, the relationship between soft norms and hard norms are studied by means of the combination of synthesis and comparison. The manifestation of soft specification and the function of soft specification are expounded. In the process of introducing the soft norms in international law, the paper mainly adopts the case study method, in order to explain in more detail how the international soft norms are formed. Strengthening the study of international soft norms is conducive to a more accurate understanding of the nature of international law, thereby further effectively exerting the functions of the norms of international law. What is more important is that the role played by international soft norms in the current international environment with the theme of peace and development cannot be replaced by international law in the traditional sense, especially in the construction of harmonious international relations. The important role played in maintaining the international order.
【学位授予单位】：河北经贸大学
【学位级别】：硕士
【学位授予年份】：2011
【分类号】：D99
本文编号：2321164
[Abstract]:Soft norms in international law, also called soft law, refer to rules of conduct that are not legally binding in principle but have actual force. As a manifestation of law, the concept of soft norm first appeared in the field of international law, but seldom in other fields. However, with the rise of public governance and the rapid development of globalization, international soft norms have emerged in a large scale in many fields, especially in international economic and trade, international environmental protection, information technology, human rights protection and other fields. At first, the international soft norms have not been paid much attention by scholars, and they think that soft norms are not binding, so they can not be called law, but with the wide application of soft norms in various fields of the world, More and more scholars have gradually changed their indifferent attitude towards soft norms and paid close attention to the study of soft norms. With the gradual development and deepening of the research, more and more scholars hold a positive attitude towards the existence, significance and function of soft norms. Although international law has played an important role in maintaining the international order for a long time, there are still some unavoidable shortcomings in the traditional international law: first, there are many complex problems to be solved in international exchanges. The international community does not have a ready solution to regulate this; the international community does not have a ready solution for its use; Second, due to the differences in ideology, social reality and so on, it is often counterproductive to enforce the norms when implementing the relevant treaties and regulations of international law. Third, the formulation of international law is a long process, unable to respond to the changing international reality in time, the main reason is that each country will not make concessions in safeguarding its own national sovereignty and interests. When this happens, the traditional sense of international law can not play its due role. Compared with the hard norms in the traditional international law, the international soft norms are concerned with the consensus reached by the countries in dispute on a particular issue, the unique openness, participation, responsiveness of the soft norms, (?) The obstacle to less negotiation is to reach a compromise on an economic and political impasse, leaving its binding force for future consultation and discussion. The diversity of soft specifications, flexibility can also play a large role in complementing hard norms. In this case, the soft specification can also involve the subject of the part neglected by the hard specification in the negotiation process. In this paper, the background, evolution, research status, basic concepts of soft norms, the relationship between soft norms and hard norms are studied by means of the combination of synthesis and comparison. The manifestation of soft specification and the function of soft specification are expounded. In the process of introducing the soft norms in international law, the paper mainly adopts the case study method, in order to explain in more detail how the international soft norms are formed. Strengthening the study of international soft norms is conducive to a more accurate understanding of the nature of international law, thereby further effectively exerting the functions of the norms of international law. What is more important is that the role played by international soft norms in the current international environment with the theme of peace and development cannot be replaced by international law in the traditional sense, especially in the construction of harmonious international relations. The important role played in maintaining the international order.
【学位授予单位】：河北经贸大学
【学位级别】：硕士
【学位授予年份】：2011
【分类号】：D99
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