经济、社会和文化权利委员会的“一般性意见”研究

论文总字数：21866字

摘 要

本文旨在通过对联合国经济、社会和文化权利委员会编写的一般性意见，以及其他相关的决议、报告、会议记录等文书进行系统梳理、归类、总结和研究，在对一般性意见的形成背景、内容与特点认识充分的基础上，分析一般性意见对各方，包括国际司法机构、国际人权机构、缔约国法院以及委员会自身的影响，并以《经济、社会和文化权利国际公约》缔约国的角度，为我国对一般性意见应当采取的态度建言献策。

本文由六个章节组成，第一章探寻一般性意见如何形成，包括制度形成的历史背景和具体的产生机制，寻找设置这项制度的初衷；第二章总结一般性意见的含义和特点，包括针对对象的一般性、条约解释的权威性和法律效力的无效性，并与相似制度进行对比；第三章依据一定标准将一般性意见划分成两个阶段；第四章探究一般性意见对各方产生的影响；第五章论述我国应重视经济、社会和文化权利委员会拟定的一般性意见，并在法律实践当中积极适用；第六章是对全文的总结。

关键词：一般性意见 人权 条约机构 经济、社会和文化权利委员会

ABSTRACT

The purpose of this article is to systematically reorganize, classify, summarize and study the general comments prepared by the UN Committee on Economic, Social and Cultural Rights, as well as other relevant resolutions, reports, minutes of meetings and documents. On the basis of a full understanding of the background, content and characteristics of the general comments, this article analyzes the impact of the general comments on all parties, including international judicial institutions, international human rights institutions, courts of States parties and the Committee itself, and offers suggestions on the attitude that China should adopt to the general comments from the perspective of States parties to the International Covenant on Economic, Social and Cultural Rights.

This article consists of five chapters. The first chapter explores the background of the formation of general comments, including the historical background of the formation of the system and the specific generation mechanism, looking for the original intention of setting up the system. The second chapter summarizes the meaning and characteristics of general comments, including the generality of the target, the authority of treaty interpretation and the ineffectiveness of legal effect, and compares them with similar systems. The third chapter divides the general comment into two stages according to certain criteria. The fourth chapter probes into the impact of general comments on all parties. The fifth chapter discusses that China should attach importance to the general comments drawn up by the Committee on Economic, Social and Cultural Rights and actively apply them in legal practice. The sixth chapter is a summary of the full text.

Key words: general comments, human rights, treaty bodies, CESCR

目 录

摘 要 ········································································Ⅰ

Abstract ········································································Ⅱ

一、一般性意见的形成····················································1

（一）一般性意见形成的历史背景··········································1

（二）一般性意见的产生机制··············································3

二、一般性意见的含义和特点··············································5

（一）一般性意见的含义··················································5

（二）一般性意见的特点··················································5

1.针对对象的一般性····················································5

2.条约解释的权威性····················································5

3.法律效力的无效性····················································6

三、一般性意见的发展阶段················································7

（一）分类依据··························································7

（二）两个阶段··························································7

四、一般性意见的影响····················································8

（一）对委员会自身的影响················································9

（二）对国际司法机构和国际人权机构的影响································9

（三）对缔约国法院的影响················································10

（四）意义······························································10

五、我国对一般性意见应当采取的态度······································10

（一）立法层面··························································11

（二）司法层面··························································11

（三）政府和社会层面····················································12

六、总结································································12

参考文献 ·······························································13

致 谢································································15

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