人权保障视角下的WTO公共道德例外条款研究
发布时间：2019-01-07 21:27
【摘要】：作为国际组织的WTO及其成员国在人权文书中体现的习惯国际法规则的约束下都承担保护人权的法律义务。WTO保护和促进人权的途径有多种,比较而言,司法模式中灵活解释GATT第20条(a)款公共道德例外条款最具有现实可行性,而且能够实现对基本人权的全面保护,各类人权贸易措施都可以引用该款获得合法性辩护。公共道德例外条款条文简单,含义开放而富有弹性,其人权保障功能的实现与否完全依赖于WTO争端解决机构对该款的解释和澄清,因此案例实证分析具有重大意义。案例分析最重要理论工具是《维也纳条约法公约》所规定的文本解释法、目的和宗旨解释法以及有效解释法和诚信解释原则等国际法的习惯解释规则。本研究以公共道德例外条款的人权保障功能为中心,得出以下四个重要创新性结论:第一,公共道德例外条款的范围涵盖人权贸易措施。根据WTO司法实践,参照其他国际仲裁机构的判决,公共道德的性质决定其内容是随着时代的发展而不断演变,而且WTO成员方有权单独界定各自公共道德的内容和范围。因此可以说认定公共道德的内容可以随着时间和国别的不同而不同,人权完全可以被纳入到公共道德的范畴。另外,根据《维也纳条约法公约》,分析公共道德的通常意义、目的宗旨和上下文,GATT起草的历史资料,参照学理分析,公共道德保护的社会利益也包含人权。第二,国际人权法对公共道德例外条款解释具有重要影响和作用。WTO争端解决机构适用之法以涵盖协定为主,包括国际人权法在内的一般国际法实体规则除非构成习惯法,否则都不可以直接适用;但是,解释之法不同于适用之法,WTO解释之法范围更广,包括国际人权法在内。WTO条约解释采用客观解释方法,注重文本的客观含义,含义模糊的概念如公共道德等可以与时俱进赋予人权涵义。第三,因为侵犯人权的行为发生在境外,人权贸易措施具有域外管辖的特点,但是以合法国家利益为连接点,仍然可以适用公共道德例外条款为之合法性辩护。WTO并没有明确的规则界定域外管辖的合法性,争端解决机构也没有明确表明意见。根据国际法的一般理论以及国家实践,因为人权义务的普世特点,各国在促进和保护人权方面具有合法国家利益,这也是WTO公共道德例外条款项下人权措施域外管辖的合法性依据。第四,人权贸易措施可以通过公共道德例外条款的“必需性”检测和引言的非歧视检测。只要设计合理,尊重国际人权法关于贸易制裁措施的一般程序要求,遵守WTO司法实践中上诉机构提出的程序性方案,定向和半定向制裁措施都可以通过“必需性”检测和引言的非歧视检测。全面制裁措施没有豁免与侵犯人权无关的企业和产品,可能构成任意或不合理的歧视,不能引用公共道德例外条款获得合法性辩护。
[Abstract]:WTO, as an international organization, and its member States, bound by the rules of customary international law embodied in human rights instruments, undertake legal obligations to protect human rights. There are many ways in which WTO can protect and promote human rights. In the judicial mode, it is most feasible to interpret the public moral exception clause of GATT Article 20 (a), and it can realize the comprehensive protection of basic human rights. All kinds of human rights trade measures can be used to justify the legality of this clause. The article of public morality exception clause is simple, the meaning is open and flexible, the realization of its human rights protection function depends entirely on the interpretation and clarification of this paragraph by the WTO dispute settlement body, so the case empirical analysis is of great significance. The most important theoretical tool of case analysis is the text interpretation law stipulated in the Vienna Convention on the Law of treaties, the object and purpose interpretation method, and the customary interpretation rules of international law, such as the effective interpretation law and the principle of good faith interpretation. This study focuses on the human rights protection function of the public moral exception clause, and draws the following four innovative conclusions: first, the scope of the public moral exception clause covers human rights trade measures. According to the judicial practice of WTO, referring to the judgments of other international arbitration institutions, the nature of public morality determines that its content evolves with the development of the times, and the members of WTO have the right to define the content and scope of their own public morality separately. Therefore, it can be said that the content of public morality can vary with time and country, and human rights can be brought into the category of public morality. In addition, according to the Vienna Convention on the Law of treaties, the analysis of the general meaning, purpose and context of public morality, the historical data drafted by GATT, and the theoretical analysis show that the social interests protected by public morality also include human rights. Secondly, international human rights law has an important impact and function on the interpretation of public moral exceptions. The law applicable to the WTO dispute settlement body is predominantly covered by agreements, including the substantive rules of general international law, including international human rights law, unless they constitute customary law, Otherwise, it can not be applied directly; However, the law of interpretation is different from the applicable law. The scope of the law of WTO interpretation is wider, including international human rights law. The interpretation of WTO treaties adopts an objective interpretation method and pays attention to the objective meaning of the text. Vague concepts such as public morality can advance with the times and endow the meaning of human rights. Thirdly, because human rights violations occur outside the country, human rights trade measures are characterized by extraterritorial jurisdiction, but they are linked by legitimate national interests. The WTO does not have clear rules to define the lawfulness of extraterritorial jurisdiction, nor does the dispute settlement body express its opinion. In accordance with the general doctrine of international law and State practice, because of the universal character of human rights obligations, States have a legitimate national interest in the promotion and protection of human rights, This is also the legal basis of the extraterritorial jurisdiction of human rights measures under the exception clause of public morality of WTO. Fourthly, human rights trade measures can be tested by "necessity" of public morality exception clause and nondiscrimination test of introduction. As long as the design is reasonable, the general procedural requirements of international human rights law with regard to trade sanctions are respected, and the procedural scheme proposed by the appellate body in the judicial practice of the WTO is observed, Both targeted and semi-targeted sanctions can be tested for "necessity" and nondiscrimination. Comprehensive sanctions, which do not exempt businesses and products unrelated to human rights violations, may constitute arbitrary or unreasonable discrimination and cannot be justified by invoking public moral exceptions.
【学位授予单位】：上海交通大学
【学位级别】：博士
【学位授予年份】：2014
【分类号】：D996.1
，
本文编号：2404188
[Abstract]:WTO, as an international organization, and its member States, bound by the rules of customary international law embodied in human rights instruments, undertake legal obligations to protect human rights. There are many ways in which WTO can protect and promote human rights. In the judicial mode, it is most feasible to interpret the public moral exception clause of GATT Article 20 (a), and it can realize the comprehensive protection of basic human rights. All kinds of human rights trade measures can be used to justify the legality of this clause. The article of public morality exception clause is simple, the meaning is open and flexible, the realization of its human rights protection function depends entirely on the interpretation and clarification of this paragraph by the WTO dispute settlement body, so the case empirical analysis is of great significance. The most important theoretical tool of case analysis is the text interpretation law stipulated in the Vienna Convention on the Law of treaties, the object and purpose interpretation method, and the customary interpretation rules of international law, such as the effective interpretation law and the principle of good faith interpretation. This study focuses on the human rights protection function of the public moral exception clause, and draws the following four innovative conclusions: first, the scope of the public moral exception clause covers human rights trade measures. According to the judicial practice of WTO, referring to the judgments of other international arbitration institutions, the nature of public morality determines that its content evolves with the development of the times, and the members of WTO have the right to define the content and scope of their own public morality separately. Therefore, it can be said that the content of public morality can vary with time and country, and human rights can be brought into the category of public morality. In addition, according to the Vienna Convention on the Law of treaties, the analysis of the general meaning, purpose and context of public morality, the historical data drafted by GATT, and the theoretical analysis show that the social interests protected by public morality also include human rights. Secondly, international human rights law has an important impact and function on the interpretation of public moral exceptions. The law applicable to the WTO dispute settlement body is predominantly covered by agreements, including the substantive rules of general international law, including international human rights law, unless they constitute customary law, Otherwise, it can not be applied directly; However, the law of interpretation is different from the applicable law. The scope of the law of WTO interpretation is wider, including international human rights law. The interpretation of WTO treaties adopts an objective interpretation method and pays attention to the objective meaning of the text. Vague concepts such as public morality can advance with the times and endow the meaning of human rights. Thirdly, because human rights violations occur outside the country, human rights trade measures are characterized by extraterritorial jurisdiction, but they are linked by legitimate national interests. The WTO does not have clear rules to define the lawfulness of extraterritorial jurisdiction, nor does the dispute settlement body express its opinion. In accordance with the general doctrine of international law and State practice, because of the universal character of human rights obligations, States have a legitimate national interest in the promotion and protection of human rights, This is also the legal basis of the extraterritorial jurisdiction of human rights measures under the exception clause of public morality of WTO. Fourthly, human rights trade measures can be tested by "necessity" of public morality exception clause and nondiscrimination test of introduction. As long as the design is reasonable, the general procedural requirements of international human rights law with regard to trade sanctions are respected, and the procedural scheme proposed by the appellate body in the judicial practice of the WTO is observed, Both targeted and semi-targeted sanctions can be tested for "necessity" and nondiscrimination. Comprehensive sanctions, which do not exempt businesses and products unrelated to human rights violations, may constitute arbitrary or unreasonable discrimination and cannot be justified by invoking public moral exceptions.
【学位授予单位】：上海交通大学
【学位级别】：博士
【学位授予年份】：2014
【分类号】：D996.1
，
本文编号：2404188
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