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国际法治视野内国际非政府组织问责机制研究

刘海江[著]

国际组织 非政府组织 责任制 研究

2015-04-01

978-7-5161-6256-9

194

7

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内容简介

大量的实证证明,国际非政府组织异军突起,在目前为国际法之治的国际法治进程中起到了参与者与促进者的角色。但是在发挥作用的同时也暴露出了问责危机。这种现象的发生是由其深层次原因的。这需要在明了国际非政府组织在国际法治进程中问责的根本内涵的基础之上,各利益相关者共同努力才能解决这个问题。虽然在区域有较为可行的方法可循,但是在国际法治的进程中解决该问题还需要一个长期摸索的进程,目前提出来的方法只能作为过渡。

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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