人權(quán)保障視角下的WTO公共道德例外條款研究
發(fā)布時(shí)間：2019-01-07 21:27
【摘要】：作為國(guó)際組織的WTO及其成員國(guó)在人權(quán)文書(shū)中體現(xiàn)的習(xí)慣國(guó)際法規(guī)則的約束下都承擔(dān)保護(hù)人權(quán)的法律義務(wù)。WTO保護(hù)和促進(jìn)人權(quán)的途徑有多種,比較而言,司法模式中靈活解釋GATT第20條(a)款公共道德例外條款最具有現(xiàn)實(shí)可行性,而且能夠?qū)崿F(xiàn)對(duì)基本人權(quán)的全面保護(hù),各類人權(quán)貿(mào)易措施都可以引用該款獲得合法性辯護(hù)。公共道德例外條款條文簡(jiǎn)單,含義開(kāi)放而富有彈性,其人權(quán)保障功能的實(shí)現(xiàn)與否完全依賴于WTO爭(zhēng)端解決機(jī)構(gòu)對(duì)該款的解釋和澄清,因此案例實(shí)證分析具有重大意義。案例分析最重要理論工具是《維也納條約法公約》所規(guī)定的文本解釋法、目的和宗旨解釋法以及有效解釋法和誠(chéng)信解釋原則等國(guó)際法的習(xí)慣解釋規(guī)則。本研究以公共道德例外條款的人權(quán)保障功能為中心,得出以下四個(gè)重要?jiǎng)?chuàng)新性結(jié)論:第一,公共道德例外條款的范圍涵蓋人權(quán)貿(mào)易措施。根據(jù)WTO司法實(shí)踐,參照其他國(guó)際仲裁機(jī)構(gòu)的判決,公共道德的性質(zhì)決定其內(nèi)容是隨著時(shí)代的發(fā)展而不斷演變,而且WTO成員方有權(quán)單獨(dú)界定各自公共道德的內(nèi)容和范圍。因此可以說(shuō)認(rèn)定公共道德的內(nèi)容可以隨著時(shí)間和國(guó)別的不同而不同,人權(quán)完全可以被納入到公共道德的范疇。另外,根據(jù)《維也納條約法公約》,分析公共道德的通常意義、目的宗旨和上下文,GATT起草的歷史資料,參照學(xué)理分析,公共道德保護(hù)的社會(huì)利益也包含人權(quán)。第二,國(guó)際人權(quán)法對(duì)公共道德例外條款解釋具有重要影響和作用。WTO爭(zhēng)端解決機(jī)構(gòu)適用之法以涵蓋協(xié)定為主,包括國(guó)際人權(quán)法在內(nèi)的一般國(guó)際法實(shí)體規(guī)則除非構(gòu)成習(xí)慣法,否則都不可以直接適用;但是,解釋之法不同于適用之法,WTO解釋之法范圍更廣,包括國(guó)際人權(quán)法在內(nèi)。WTO條約解釋采用客觀解釋方法,注重文本的客觀含義,含義模糊的概念如公共道德等可以與時(shí)俱進(jìn)賦予人權(quán)涵義。第三,因?yàn)榍址溉藱?quán)的行為發(fā)生在境外,人權(quán)貿(mào)易措施具有域外管轄的特點(diǎn),但是以合法國(guó)家利益為連接點(diǎn),仍然可以適用公共道德例外條款為之合法性辯護(hù)。WTO并沒(méi)有明確的規(guī)則界定域外管轄的合法性,爭(zhēng)端解決機(jī)構(gòu)也沒(méi)有明確表明意見(jiàn)。根據(jù)國(guó)際法的一般理論以及國(guó)家實(shí)踐,因?yàn)槿藱?quán)義務(wù)的普世特點(diǎn),各國(guó)在促進(jìn)和保護(hù)人權(quán)方面具有合法國(guó)家利益,這也是WTO公共道德例外條款項(xiàng)下人權(quán)措施域外管轄的合法性依據(jù)。第四,人權(quán)貿(mào)易措施可以通過(guò)公共道德例外條款的“必需性”檢測(cè)和引言的非歧視檢測(cè)。只要設(shè)計(jì)合理,尊重國(guó)際人權(quán)法關(guān)于貿(mào)易制裁措施的一般程序要求,遵守WTO司法實(shí)踐中上訴機(jī)構(gòu)提出的程序性方案,定向和半定向制裁措施都可以通過(guò)“必需性”檢測(cè)和引言的非歧視檢測(cè)。全面制裁措施沒(méi)有豁免與侵犯人權(quán)無(wú)關(guān)的企業(yè)和產(chǎn)品,可能構(gòu)成任意或不合理的歧視,不能引用公共道德例外條款獲得合法性辯護(hù)。
[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.
【學(xué)位授予單位】：上海交通大學(xué)
【學(xué)位級(jí)別】：博士
【學(xué)位授予年份】：2014
【分類號(hào)】：D996.1
，
本文編號(hào)：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.
【學(xué)位授予單位】：上海交通大學(xué)
【學(xué)位級(jí)別】：博士
【學(xué)位授予年份】：2014
【分類號(hào)】：D996.1
，
本文編號(hào)：2404188
本文鏈接：http://www.sikaile.net/falvlunwen/guojifa/2404188.html
最近更新
教材專著
