國際法中的「人民自決權(quán)」.ppt

1、1,國際法中的人民自決權(quán),長榮大學(xué) 臺灣研究所 兼任客座教授 蕭欣義 .tw,2,on Human Rights),聯(lián)合國大會於1966年全體一致通過第2200號決議文國際人權(quán)公約. 此公約分成下列兩份公約:,國際人權(quán)公約(International Covenants,3,此公約分成下列兩份公約: 1 .民事與政治權(quán)利國際公約俗譯: 公民與政治權(quán)利國際公約(The International Covenant on Civil and Political Rights ICCPR), 1966年聯(lián)大全體一致通過, 1976年簽署國家超過法

2、定數(shù)目(35國), 開始生效, 具有法律上的約束力。 到現(xiàn)在已有149國簽署。,4,2.經(jīng)濟、社會、文化權(quán)利國際公約 (The International Covenant on Economic, Social and Cultural Rights ICESCR), 1966年一致通過, 1976年生效, 具有法律上的約束力。 已有146國簽署。,5,Res 2200, “International Covenants on Human Rights”,adopted unanimously on December 16, 1966, and entered into force on M

3、arch 23, 1976 in accordance with Article 49. This resolution consists of two covenants:,6,1. “Universal Covenant on Civil and Political Rights” /un2200a-XXI.htm 2. “International Covenant on Economic, Social and Cultural Rights” /un2200aa-XXI

4、.htm,7,Universal Covenant on Civil and Political Rights,Adopted and opened for signature, ratification and accession by the General Assembly on 16 December 1966Entered into force 23 March 1976, in accordance with Article 49 /un2200a-XXI.htm,8,Resolution 2200A (XXI) THE G

5、ENERAL ASSEMBLY, Preamble The States Parties to the present Covenant, Considering that, in accordance with the principles proclaimed in the Charter of the United Nations, recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation

6、of freedom, justice and peace in the world,9,Recognizing that these rights derive from the inherent dignity of the human person, Recognizing that, in accordance with the Universal Declaration of Human Rights, the ideal of free human beings enjoying civil and political freedom and freedom from fear a

7、nd want can only be achieved if conditions are created whereby everyone may enjoy his civil and political rights, as well as his economic, social and cultural rights,10,Considering the obligation of States under the Charter of the United Nations to promote universal respect for, and observance of, h

8、uman rights and freedoms, Realizing that the individual, having duties to other individuals and to the community to which he belongs, is under a responsibility to strive for the promotion and observance of the rights recognized in the present Covenant, Agree upon the following articles:,11,PART I Ar

9、ticle 1 1. All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.,12,2. All peoples may, for their own ends, freely dispose of their natural wealth and resources without

10、 prejudice to any obligations arising out of international economic co-operation, based upon the principle of mutual benefit, and international law. In no case may a people be deprived of its own means of subsistence.,13,3. The States Parties to the present Covenant, including those having responsib

11、ility for the administration of Non-Self-Governing and Trust Territories, shall promote the realization of the right of self-determination, and shall respect that right, in conformity with the provisions of the Charter of the United Nations.,14,Article 1, Section 1 of both covenents are identical: “

12、All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.” (所有人民皆有自決權(quán). 憑藉著這個權(quán)利, 他們自由地決定他們的政治地位, 自由地追求他們的經(jīng)濟、社會及文化發(fā)展.),15,人民自決權(quán)中的人民指的是像族群、民族那樣的認同群體, 而不是個別的人. 這是國際法的專門術(shù)語. 二十世紀

13、下半期以來傾向於多使用人民自決權(quán), 而少使用民族自決權(quán).,16,UNGA Res 1514 (聯(lián)大第1514號決議文): 殖民地獨立宣言,“Declaration on the Granting of Independence to Colonial countries and Peoples” (給殖民地及其人民獨立的宣言), adopted on December 14, 1960 (XV), yes: 89, no: 0, abs: 9. /colonial.htm,17,1. Confirms that all peoples

14、have the right to self-determination; and that by virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.,18,2. The binding force of UNGA resolutiions.,Most of the resolutions adopted by UNGA are without legal binding force

15、 (沒有法律上的約束力). They are mostly morally binding (道德上的約束力). However, UNGA Res 1514 is legally binding, because,19,i) The clause of self-determination in this resolution, being repeatedly cited by many later resolutions, has become the fountainhead of right to self-determination. ii) This clause, being

16、cited by the International Court of Justice in 1971 (the Namibia case) and 1975 (the Western Sahara case) as the authority of passing judgement, has thereby obtained legal binding force.,20,Scope of the Principle of Self-Determination,1. International legal scholars and commentators agree that peopl

17、es in Non-Self-Governing-Territories (NSGTs) have right to self-determination.,21,2. As for the peoples in Metropolitan States (MSs), scholars and commentators are divided. a) Some of them insist that no right to self-determination/secession movements shall be granted to peoples in MSs.,22,b) Some i

18、nterpret that secession movements is neither legal nor illegal; that the international community should neither prohibit a Part of an MS from undertaking a secession procedure nor prohibit the Center of an MS from suppressing a secession movement; and that whichever side prevails over the other side

19、 will be recognized by the international community.,23,c) Some scholars propose that a new international codification should be undertaken to endorse justifiable secession movements and reject unjustifiable ones. 參考論著: James Crawford, The Creation of States in International Law (Oxford: Clarendon Pr

20、ess, 1979), pp. 100 and 274.,24,Yonah Alexander and Robert Friedlander, eds. Self-Determination: National, Regional and Global Dimentions (Boulder: Westview Press, 1980), pp.198-205, 314-315, 342-343. Lee Buchheit, Secession: The Legitimacy of Self- Determination (New Haven: Yale University Press, 1978), p. 134. Umozurike Oji Umozurike, Self-Determination in International Law (Hamden: Archon Books, 1972), pp. 185 and 274.,25,中樞國領(lǐng)域內(nèi)的分離運動(secession)關(guān)於人民自決權(quán)適用範圍的爭議,Non-Self-Governing Territories (NSGTs) 非自治領(lǐng)土 Metropolitan