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国际法治视野内国际非政府组织问责机制研究

ISBN:978-7-5161-6256-9

出版日期:2015-04

页数:194

字数:203.0千字

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基金信息: 国家社会科学基金 展开
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国际非政府组织在全球发展迅猛,其通过参与和促进国际良法与全球善治的形成,积极地加入到国际法治的进程中来。作为国际法治的参与者和促进者,国际非政府组织发挥出的积极作用已经在全世界范围内引起广泛关注。但是事物的发展总有两面性,国际非政府组织在参与国际法治的进程中也显现出众多不和谐的因素,其中尤为值得关注的是国际非政府组织在国际法治的进程中显现出问责危机,大量的实例表明这一危机已经在一定程度上阻碍了国际非政府组织发挥参与和促进的作用,所以有必要对国际非政府组织在国际法治中的问责进行考量。

国际法治是国际社会接受良好的法律达到善治的一种状态。虽然国际法治是法治向国际社会的延伸,但是国际法治区别于国内法治,有其独特的内涵。结合国际法治所依附的国际大环境和国际法的不成体系等特点,赋予了目前所探讨的国际法治为多元化法治与国际法之治、其内在要求表现为国际良法与全球善治等独特的内涵。其中国际法治的多元化最主要的表现是参与主体的多元化,除了国家和政府间国际组织之外,有大量的事实证明国际非政府组织凭借其自身的独特优势已经参与到国际法治的进程中,国际非政府组织在实现国际法治所要求的国际良法与全球善治的过程中发挥了重要作用。有大量的事实证明国际非政府组织在国际法治中担当着参与者和促进者的角色。所以,国际法治的多元化特点要求国际非政府组织的问责也要呈现出与以往不同的特点,主要表现为问责对象、问责主体、问责内容、问责方式、问责目的与问责过程等具备多元化的独特内涵。

数量众多的国际条约和政府间国际组织都或多或少、或直接或间接地通过各种形式在国际法中赋予了国际非政府组织以应该由国际法主体所享有的权利,没有无义务的权利,既然因为权利而行使了权利,那就有义务接受责任。所以在国际法治视野内对国际非政府组织的问责进行探讨的理论框架为“基于权利而问责”:权利与责任是相对的,国际非政府组织既然享有国际法所赋予的权利,就要承担责任,在国际法治的进程中就要对利益相关者交代自己的所作所为,并要接受利益相关者的评估,根据结果接受相应的惩罚和奖励。

国际非政府组织问责危机的起因主要包括国际非政府组织的迅速增长、吸引资金的大量增加、在国际良法与全球善治的实现过程中发挥越来越重要的作用和其存在的合法性危机等。而正是这些原因的存在导致国际非政府组织与国际法治的互相借重与需要愈来愈强,所以在这种背景下在国际法治视野内探讨国际非政府组织的问责危机是十分有必要的。由于目前国际法治主要是指国际法之治,是适用于国际法主体之间的法治,但鉴于国际非政府组织国际法主体地位的缺失,所以在国际法治视野内探讨国际非政府组织的问责还存在着一定的障碍。虽然国际非政府组织在发展的过程中,在面对获取国际法律地位的历史机遇的时候都做出了努力,但是囿于各种条件的限制,所取得的进展还不是很令人满意。

目前,按照国际非政府组织问责的主体进行分类,在国际法治视野内主要包括三类国际非政府组织问责机制,这些机制在发挥积极作用的同时,也存在一些不可避免的缺陷。首先,国家通过国内立法和少数欧洲国家通过缔结国际条约的方式对在本国领域范围内进行活动的国际非政府组织的问责提出要求,但是由于各国立法和观念不同,这种方式良莠不齐,并且只影响在一定范围内的国际非政府组织;其次,政府间国际组织与国际非政府组织之间的关系主要表现为合作和管制,在两者建立的咨商与参与的合作关系中,政府间国际组织通过设置义务对国际非政府组织的问责发挥了一定的积极作用,但是囿于两者法律地位的不平等性,这种问责机制的建立肯定是不正式和不全面的;最后,国际非政府组织通过缔结和加入各种行为准则和道德准则的方式对自身的问责设置了种种要求,但是这种方式存在着自愿性特点,大多数行为准则都存在着实施机制缺失等先天不足的缺陷。所以,这些对国际非政府组织问责机制并没有完全发挥出所期望的作用。

鉴于在国际法治视野内国际非政府组织问责的独特内涵,再加上不同的利益相关者对不同的国际非政府组织提出不同的问责要求,所以在短时期内立即构建出完全有效的国际非政府组织问责机制的可能性是非常小的。结合国际法治独特的内涵要求与国际非政府组织自身的特点可以发现,目前构建国际非政府组织问责机制的最好途径就是在充分利用现有几种问责机制的基础上,向以国际条约建构国际非政府组织问责机制的方式过渡。大量事实证明,从应然的角度出发,国际非政府组织已经具备了作为国际法主体的资格,所以也就具备了以国际条约建构国际非政府组织问责机制的可行性。在坚持以人为本、可持续发展与和谐共存理念的基础上,适用法治原则、透明原则与平衡原则缔结国际条约,通过回答国际非政府组织对什么问责、向谁问责与怎样问责三个问题对国际非政府组织问责机制的构建做出较为详细的规定,并且该类条约应把建立核准机制、实施机制与加入相关行为准则的先行机制作为重中之重,只有这样这类条约才不会流于形式。虽然这种方式的实施也将面临着时间与成本的考验,但是从长远的角度来看,这种方式将是一种符合发展规律的较为有效的方式。

关键词:国际法治;国际非政府组织;问责;利益相关者;行为准则

ABSTRACT

International Non-Governmental Organizations(INGOs),widespread around the world,have positively participated in the process of international rule of law by improving the formation of international good laws and good governance.As the participant and promoter of international rule of law,INGOs have played an active role in their procedure and gained widespread attention worldwide.However,everything has two sides,there has existed a good deal of disharmony between INGOs and the procedure of international rule of law.Particularly,the accountability crisis that INGOs have encountered in this procedure has hindered their participation in it,therefore,it is necessary for INGOs to examine their accountability in international rule of law.

International rule of law is one condition that the international community has accepted a good governance by law.Although it's an extension of domestic rule of law to international community,it's quite different from the domestic one.Considering the international environment depended upon by international rule of law and fragmentation of international law,the international rule of law has its peculiar connotations such as diversified legislation,international legislation,and its intrinsic requirement of international good law and good governance.

Among these elements,the diversification of international rule of law manifests itself in participants.Apart from domestic and international governmental organizations,INGOs have been reported to have participated in the procedure ofinternational rule of law by right of its own peculiar superiority.In addition, INGOs have played a key role in the procedure of international good law and global good governance required by the international rule of law.

INGOs demonstrate their roles of participants and promoters in the procedure of international rule of law from numerous facts.Hence,the diversification of the international rule of law requires features of the accountability of INGOs different from the past,which mainly include objects,subjects,contents, mothods,purposes and procedures of the accountability.

Numerous international treaties and international governmental organizations more or less endow INGOs with the rights enjoyed by the subjects of international law in both direct and indirect ways.There is no right without obligation.Moreover, if INGOs have rights to exercise their power,they are in duty bound to accept their obligations.Therefore,this paper attempts to explore the accountability of INGOs in the theoretic framework of“the accountability on the basis of rights”from the perspective of the international rule of law.The essence of this basis is the relativity between rights and duties,which means that since INGOs enjoy rights endowed by international law,they should undertake relevant obligations.INGOs should account for what they do to stakeholders and accept evaluation by them,so as to accept rewards or punishment according to evaluation results.The accountability crisis of INGOs stems from the rapid growth of INGOs,the increase of their financial investment;increasing significance in implementing international good law and global good governance and legality crisis.

However,it is those factors that lead to the increasing interaction between INGOs and the international rule of law,therefore,it is necessary to discuss the accountability crisis of INGOs from the perspective of international rule of law.

The international rule of law mainly refers to rule by international law applied among the subjects of international law.However,it is quite difficult to exhaustively reveal all the problems in the accountability crisis of INGOs from the perspective of international law,due to the deficiency of INGOs’ status as subjects in international law.Despite of all kinds of efforts made by INGOs to gain status of international law in their developmental process,the present progress is still unsatisfied because of various restrictions.

The mechanism of accountability of INGOs can be divided into three subclasses from the perspective of accountability subjects,all of which have both positive and negative sides.Firstly,every country should claim requirements to INGOs acting domestically through domestic legislation,moreover,a few coun tries in Europe can conclude international treaties to realize it.However,owing to the distinction of law and values among different countries,this method has very limited influence in INGOs.Secondly,the relationship between IGOs and INGOs manifests coorperation and regulation,in which IGOs have played a positive role in the accountability of INGOs by establishing the latter's obligations.However,given the inequal international legal status between IGOs and INGOs,surely this kind of accountability mechanism is not formal and comprehensive.Lastly,INGOs have itself restrained in establishing their own accountability by concluding and entering all kinds of codes of conduct and ethics which have inherent inadequacy in their implement mechanism because of voluntary nature.

In view of the peculiar connotation of INGOs’ accountability from the perspective of international rule of law and different requirements made by numerous stakeholders,theirs is little possibility for INGOs establishing a most effective mechanism of accountability.Combining connotational requirements of international rule of law and their own characteristics,the author has found that the best way is taking good advantage of several current mechanisms of accountability to transit towards the ones constructed by treaty.Massive facts have demonstrated that INGOs have gained the qualification of the subject of international law so that constructing the accountability mechanism of INGOs by entering into treaty is feasible.On the basis of people-oriented,sustainable development and harmonious coexistence principles,INGOs should obey rule of law as well as transparency and balance principles to conclude treaty,and formulate detailed rules for the construction of INGOs’ accountability mechanisms by answering the content,object and procedure of INGOs’ accountability.What is more important,is focusing on approval,implementation mechanism and prior mechanism of participating in pertinent codes of conduct,or this kind of treaty would become formalistic.Although this method may face the challenge of time and cost,it will be quite an effective model which complies with the law of development in the long run.

Key words:international rule of law;INGOs;accountability;stake⁃holders;code of conduct

International non-governmental organizations (NGOs) are growing rapidly around the world and actively participate in the international rule of law process by participating in and promoting the development of international good law and global governance. As participants and promoters of the international rule of law, the active role played by international non-governmental organizations has attracted widespread attention throughout the world. However, there are always two sides to the development of things, and international NGOs have also shown many discordant factors in the process of participating in the international rule of law, among which it is particularly noteworthy that the accountability crisis of international NGOs in the process of international rule of law has appeared, and a large number of examples show that this crisis has hindered the role of international NGOs in participating and promoting to a certain extent, so it is necessary to consider the accountability of international NGOs in the international rule of law. The international rule of law is a state in which the international community accepts good law and achieves good governance. Although the international rule of law is an extension of the rule of law to the international community, the international rule of law is different from the domestic rule of law and has its own unique connotation. Combined with the characteristics of the international environment on which the international rule of law depends and the fragmentation of international law, the international rule of law currently discussed is endowed with unique connotations such as pluralistic rule of law and rule of international law, and its inherent requirements are manifested as international good law and global good governance. In addition to countries and intergovernmental international organizations, there is a large number of facts that have proved that international NGOs have participated in the process of international rule of law by virtue of their own unique advantages, and international NGOs have played an important role in the process of realizing international good law and global good governance required by the international rule of law. There is abundant evidence of the role of international non-governmental organizations as participants and facilitators in the international rule of law. Therefore, the pluralistic characteristics of the international rule of law require that the accountability of international NGOs should also show different characteristics from the past, mainly manifested in the unique connotations of the object, subject, content, method, purpose and process. A large number of international treaties and intergovernmental international organizations have conferred in international law, to a greater or lesser extent, or directly or indirectly, international non-governmental organizations with rights that should be enjoyed by subjects of international law, without rights without obligations. Therefore, the theoretical framework for exploring the accountability of international NGOs in the perspective of international rule of law is "accountability based on rights": rights and responsibilities are relative, since international NGOs enjoy the rights granted by international law, they must assume responsibility, and in the process of international rule of law, they must explain their actions to stakeholders, and accept the assessment of stakeholders, and accept corresponding punishments and rewards according to the results. The causes of the accountability crisis of international NGOs mainly include the rapid growth of international NGOs, the large increase in attracting funds, the increasingly important role of international good law and global good governance, and the crisis of legitimacy. It is precisely because of these reasons that the mutual dependence and need between international NGOs and the international rule of law have become stronger, so it is necessary to discuss the accountability crisis of international NGOs in this context from the perspective of international rule of law. Since the current international rule of law mainly refers to the rule of international law and is applicable to the rule of law among subjects of international law, in view of the lack of the status of international NGOs as subjects of international law, there are still certain obstacles to exploring the accountability of international NGOs from the perspective of international rule of law. Although international non-governmental organizations have made efforts in the process of development and in the face of the historic opportunity to obtain international legal status, the progress made is not very satisfactory due to various constraints. At present, according to the classification of the main body of international NGO accountability, there are mainly three types of international NGO accountability mechanisms in the perspective of international rule of law, and these mechanisms play an active role, but also have some inevitable shortcomings. First, States impose demands on the accountability of international NGOs operating within their national territory through domestic legislation and, in a small number of European countries, through the conclusion of international treaties, but this approach varies well due to differences in national legislation and perceptions and affects only a certain range of international NGOs; Secondly, the relationship between intergovernmental international organizations and international NGOs is mainly manifested in cooperation and control, and in the cooperative relationship between the two established by consultation and participation, intergovernmental international organizations have played a certain positive role in the accountability of international NGOs by setting obligations, but due to the unequal legal status of the two, the establishment of such accountability mechanisms is certainly informal and incomplete; Finally, international NGOs set various requirements for their own accountability by concluding and acceding to codes of conduct and ethics, but this approach is voluntary, and most codes of conduct have inherent shortcomings such as lack of implementation mechanisms. As a result, these accountability mechanisms for international NGOs have not fully served as expected. Given the unique connotation of international NGO accountability in the context of the international rule of law, coupled with the different accountability requirements of different stakeholders for different international NGOs, the possibility of immediately constructing a fully effective international NGO accountability mechanism in a short period of time is very small. Combining the unique connotation requirements of the international rule of law with the characteristics of international NGOs themselves, it can be found that the best way to build an international NGO accountability mechanism at present is to make full use of several existing accountability mechanisms and transition to the way of constructing an international NGO accountability mechanism through international treaties. A large number of facts have proved that from the perspective of course, international NGOs already have the qualifications to be subjects of international law, so it is feasible to establish an accountability mechanism for international NGOs through international treaties. On the basis of adhering to the concept of people-oriented, sustainable development and harmonious coexistence, international treaties should be concluded by applying the principles of rule of law, transparency and balance, and the construction of the accountability mechanism of international NGOs should be made in more detail by answering the three questions of what is accountability, to whom and how to be held accountable, and such treaties should give top priority to the establishment of approval mechanisms, implementation mechanisms and prior mechanisms for joining relevant codes of conduct, so that such treaties will not become mere formalities. Although the implementation of this method will also face the test of time and cost, in the long run, this method will be a more effective way in line with the law of development. Keywords: international rule of law; international non-governmental organizations; accountability; stakeholders; Code of Conduct ABSTRACTInternational Non-Governmental Organizations (INGOs), widespread around the world, have positively participated in the process of international rule of law by improving the formation of international good laws and good governance. As the participant and promoter of international rule of law,INGOs have played an active role in their procedure and gained widespread attention worldwide. However,everything has two sides,there has existed a good deal of disharmony between INGOs and the procedure of international rule of law. Particularly,the accountability crisis that INGOs have encountered in this procedure has hindered their participation in it,therefore,it is necessary for INGOs to examine their accountability in international rule of law. International rule of law is one condition that the international community has accepted a good governance by law. Although it's an extension of domestic rule of law to international community,it's quite different from the domestic one. Considering the international environment depended upon by international rule of law and fragmentation of international law,the international rule of law has its peculiar connotations such as diversified legislation,international legislation,and its intrinsic requirement of international good law and good governance. Among these elements,the diversification of international rule of law manifests itself in participants. Apart from domestic and international governmental organizations,INGOs have been reported to have participated in the procedure ofinternational rule of law by right of its own peculiar superiority. In addition, INGOs have played a key role in the procedure of international good law and global good governance required by the international rule of law. INGOs demonstrate their roles of participants and promoters in the procedure of international rule of law from numerous facts. Hence,the diversification of the international rule of law requires features of the accountability of INGOs different from the past,which mainly include objects,subjects,contents, mothods, purposes and procedures of the accountability. Numerous international treaties and international governmental organizations more or less endow INGOs with the rights enjoyed by the subjects of international law in both direct and indirect ways. There is no right without obligation. Moreover, if INGOs have rights to exercise their power,they are in duty bound to accept their obligations. Therefore,this paper attempts to explore the accountability of INGOs in the theoretic framework of“the accountability on the basis of rights”from the perspective of the international rule of law. The essence of this basis is the relativity between rights and duties,which means that since INGOs enjoy rights endowed by international law,they should undertake relevant obligations. INGOs should account for what they do to stakeholders and accept evaluation by them,so as to accept rewards or punishment according to evaluation results. The accountability crisis of INGOs stems from the rapid growth of INGOs,the increase of their financial investment; increasing significance in implementing international good law and global good governance and legality crisis. However,it is those factors that lead to the increasing interaction between INGOs and the international rule of law,therefore,it is necessary to discuss the accountability crisis of INGOs from the perspective of international rule of law. The international rule of law mainly refers to rule by international law applied among the subjects of international law. However,it is quite difficult to exhaustively reveal all the problems in the accountability crisis of INGOs from the perspective of international law,due to the deficiency of INGOs’ status as subjects in international law. Despite of all kinds of efforts made by INGOs to gain status of international law in their developmental process,the present progress is still unsatisfied because of various restrictions. The mechanism of accountability of INGOs can be divided into three subclasses from the perspective of accountability subjects,all of which have both positive and negative sides. Firstly,every country should claim requirements to INGOs acting domestically through domestic legislation,moreover,a few coun tries in Europe can conclude international treaties to realize it. However,owing to the distinction of law and values among different countries,this method has very limited influence in INGOs.Secondly,the relationship between IGOs and INGOs manifests coorperation and regulation,in which IGOs have played a positive role in the accountability of INGOs by establishing the latter's obligations. However,given the inequal international legal status between IGOs and INGOs,surely this kind of accountability mechanism is not formal and comprehensive. Lastly,INGOs have itself restrained in establishing their own accountability by concluding and entering all kinds of codes of conduct and ethics which have inherent inadequacy in their implement mechanism because of voluntary nature. In view of the peculiar connotation of INGOs’ accountability from the perspective of international rule of law and different requirements made by numerous stakeholders,theirs is little possibility for INGOs establishing a most effective mechanism of accountability. Combining connotational requirements of international rule of law and their own characteristics,the author has found that the best way is taking good advantage of several current mechanisms of accountability to transit towards the ones constructed by treaty. Massive facts have demonstrated that INGOs have gained the qualification of the subject of international law so that constructing the accountability mechanism of INGOs by entering into treaty is feasible. On the basis of people-oriented,sustainable development and harmonious coexistence principles,INGOs should obey rule of law as well as transparency and balance principles to conclude treaty, and formulate detailed rules for the construction of INGOs’ accountability mechanisms by answering the content,object and procedure of INGOs’ accountability. What is more important,is focusing on approval,implementation mechanism and prior mechanism of participating in pertinent codes of conduct,or this kind of treaty would become formalistic. Although this method may face the challenge of time and cost,it will be quite an effective model which complies with the law of development in the long run. Key words:international rule of law; INGOs; accountability; stake⁃holders; code of conduct(AI翻译)

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GB/T 7714-2015 格式引文
刘海江.国际法治视野内国际非政府组织问责机制研究[M].北京:中国社会科学出版社,2015
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刘海江.国际法治视野内国际非政府组织问责机制研究.北京,中国社会科学出版社:2015E-book.
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刘海江(2015).国际法治视野内国际非政府组织问责机制研究.北京:中国社会科学出版社
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