摘要
大国问题是国际法实践中的一个老问题。近年来,国际关系民主化与国际法治成为日益重要的国际议程,一批新兴大国也正在崛起,这些新发展既为处理大国问题提供了历史机遇,也使得处理这一问题变得更为复杂,具有鲜明的时代特点。大国问题涉及大国拥有与作为国际法基础的主权平等原则相冲突的法律特权,但法律特权并非是导致大国问题的惟一原因;被赋予法律特权的大国应当承担特殊的法律义务,但获得法律特权并非是大国承担特殊义务,包括特殊法律义务的惟一依据。为了有效约束大国的行动,国际社会一方面应当限制大国可以获得的特权、强化大国应当承担的特殊义务尤其法律义务,另一方面应当寻求建立监督大国依法善意行使特权、履行义务的程序法机制。
Great Powers （GPs） issue is an old issue in international law. The fact that democrati- zation of international relations and international rule of law have become more and more impor- tant international agendas, and that a handful of new GPs are rising in recent years, has created a new historical opportunity to reconsider this issue. The GPs issue in international law first and foremost refers to the equality of sovereignty, which to date remains the foundation of international law. On the one hand, the equality of sover- eignty provides an important, albeit not always effective, legal instrument for the small powers to defend themselves against GPs. Therefore, it remains and should be maintained in international law. On the other hand, in the era of international organizations, in consideration of interest and function, it is legitimate to grant some legal privileges to GPs in international organizations, which somewhat deviates from the principle of equality of sovereignty. However, it is not always legitimate for GPs to argue for legal privileges. Whether and how GPs will be granted with legal privileges should be decided upon various factors including the aims and purposes of international organizations. This rule should be applied not only to future international legal practice but also to the reconsideration of current international legal arrangements. It should be mentioned that De- facto privileges that GPs have in international law and activities conducted by GPs in accordance with the principle of sovereign equality may also significantly affect the interest of other states. Therefore, they should also be regulated. Legal obligations should be imposed upon GPs. This would not only legitimatize the legal privileges of GPS, but also make them exercise legal privileges in a good faith manner. Mean- while, in the context where GPs have not been granted legal privileges, it is also legitimate＇for GPs to bear special obligations including those of a legal nature to other states. A substantive approach to privileges and special obligations is not enough to effectively make GPs exercise privileges and honor obligations in a legal and good faith manner. A procedural ap- proach is thus needed. Such procedural arrangements can be designed in two ways. On the one hand, check and balance among GPs should be established. On the other hand, non-GPs states and non-state actors including inter-governmental organizations and non-governmental organiza- tions have an important role to play.
出处
《法学研究》
CSSCI
北大核心
2012年第6期188-206,共19页
Chinese Journal of Law
基金
作者主持的2011年国家社科基金青年项目(批准号:11CFX064)研究成果
关键词
大国问题
国际法治
国际关系民主化
Great Powers issue, democratization of international relations, international rule of law
