国际环境条约遵约机制研究
发布时间：2019-04-13 11:36
【摘要】： 国际环境条约的遵约机制是针对环境问题的特点，在国际环境条约框架内，通过缔约方之间及缔约方与条约内设机构之间的合作，加强缔约方履约能力，以促进遵约，并处理不遵约问题的一种新型的履约保障程序和机制。这一机制强调预防不遵约并促进遵约，是针对全球环境问题和环境公约的特点，对避免争端方法的有益探索。从特点上来说，遵约机制具有预防性、非对抗性、条约内生性等特征。 从经济学的角度分析，遵约机制深刻体现了各缔约国在遵守条约方面的利益衡量和损益评估结果，也映射了国际环境合作的复杂性。国际环境合作需要一系列国际制度的支撑。国际制度的起源与国际合作的出现，本质上是通过国际社会中个体之间复杂的谈判和博奕过程来完成的。 遵约机制离不开国际环境法基本原则的指导。其原则主要有两项：一是风险预防原则，二是共同但有区别的责任原则。前者是遵约机制追求的目标之一，后者是遵约机制设计和运行的基本前提和重要条件。 一个完整的遵约机制应当包含三方面的法律规则：(1)遵约基本规则体系；(2)遵约判定体系；(3)不遵约反应体系。这三方面的规则互相结合，互相补充，构成了一种既承上启下，又相对独立的独特国际法律机制。 在实施机构上，各遵约机制大多设立了遵约委员会处理遵约问题。遵约委员会是根据缔约方会议的相关决议设立，按缔约方会议授权处理遵约问题的专门机构。遵约委员会向缔约方会议报告工作，并接受缔约方会议的政策指导。根据授权，各遵约委员会均有权受理遵约案件，并确定是否遵约的事实，但是否可以采取促进遵约的措施，各条约的授权不尽相同。不同授权，体现了遵约委员会与缔约方会议以及缔约方的不同关系，也体现了遵约委员会的不同职能。 一般来说，，遵约机制可以通过以下三种方式启动：一是缔约国针对其他缔约国提出；二是缔约国考虑到本国履约的实际情况而主动提出；三是由条约机构，如国际环境条约的秘书处或者特定的专家评审组结合其掌握的缔约国的遵约情况而提出。遵约机制的运行程序因启动方式的不同而略有不同，但大体上都包含遵约信息审查、判定、遵约或不遵约的结论认定、采取处理措施等阶段。在臭氧层保护和气候变化等领域，几个典型的国际环境条约的遵约机制的运行也各有特点。 国际环境条约的不遵约，对发展中国家而言主要原因是履约能力不足，对发达国家则更多是由于缺乏政治意愿。发达国家政治意愿不足，对于履行向发展中国家提供资金和技术援助的义务态度消极，造成发展中国家履约能力不足，这是国际环境条约不遵约问题的根源。对发展中国家来说，发达国家提供援助的制度是国际环境条约的前提和核心。遵约机制强调通过促进性措施提高履约能力，是国际环境条约援助制度的强化和补充，有助于发展中国家获得履约援助，可以在一定程度上解决由于履约能力不足造成的不遵约。例如，在《蒙特利尔议定书》的实践中，遵约机制处理了多起经济转轨国家的不遵约案例，对协助这些国家解决履约困难，促进《蒙特利尔议定书》的实施起到了重要作用。 中国是发展中国家。中国本着国际合作的真诚态度，认真遵守本国缔结或参加的国际环境条约，取得了良好的遵约效果。但是，在履约能力建设、履约资金和技术、发挥地方政府和企业对遵约的积极主动等方面还需要进一步加以关注。
[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
【学位授予单位】：中国政法大学
【学位级别】：博士
【学位授予年份】：2007
【分类号】：D996.9
本文编号：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
【学位授予单位】：中国政法大学
【学位级别】：博士
【学位授予年份】：2007
【分类号】：D996.9
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