博士 / 國立臺灣海洋大學 / 海洋法律研究所 / 105 / In this thesis, the main research objectives are the mechanism of incorporating International Human Rights Conventions and Convention on the Law of the Sea into domestic legal regime, the historical process of incorporating the relevant conventions into domestic law, and the way adopted for incorporating international conventions into Taiwan's domestic law in the future. This thesis is divided into eight chapters; the contents of each chapter are summarized as follows:
Chapter one is a preface, including the research motives, the purpose, the method and the research scope of this thesis, the collection and collation of the reference related to the topic of the thesis. It also reviews the research, analysis, discussion of the relevant experts and scholars so as to enlighten the arrangement and discussion of the subsequent chapters of this thesis by analyzing the results of the analysis and induction.
Chapter two introduces the theoretical basis and the norms of international law regarding the legal effect of international convention in the domestic law, and mainly explores the "monism" and "dualism". It also discusses how international law apply in domestic law and further elaborates the theories of "transformation theory", "specific adoption theory" and "delegation theory" to understand the relationship between international law and domestic law and the legal effect of international conventions in domestic law.Then, it expounds the concept of the Convention and describes the ratifications, accessions and the entry into force of the Convention under the relevant provisions of the "Vienna Convention on the Law of Treaties" and "Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations" so as to understandthe legal effect of ratified or acceded international law in domestic law according to the norms of international law.
Chapter three reviews the major countries' incorporation system of international conventions from the perspective of comparative law, and discusses how the international customary law and the international law of the Convention apply in Germany, France, Japan, the United States and the United Kingdom respectively.It mainly describes the implementation of incorporation of the Rome Statute of the International Criminal Court, the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, the Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Second Optional Protocol to the International Covenant on Civil and Political Rights, aiming at the abolition of the death penalty. It also elaborates EU countries' action for incorporation of the international conventions.
The chapter four describes international customary laws and the convention laws in Taiwan's domestic legal norms. It focuses on the legal system aspect of the relevant provisions of the treaty making of the Constitution, interpretations of Grand Justice, Regulations Governing the Process of Treaties and Agreements, Treaty-Making Law, legislative principles of General Principles of Civil Law, the verdict of the Supreme Court and Convention Implementation Act so as to explore the legal effect of the " International customary law" and "Convention Law" in our domestic law and the evolution of related concepts.
Chapter five discusses the implementation of incorporation of the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights. It starts from the sprouting and development of human rights, the establishment of international human rights law, the expansion of specialized international human rights conventions, the vigorous development and its importance of the two covenants. Then it introduces that Taiwan seek to make its policy and action in accordance with international human rights standards in recent years. It also explains that Taiwan government originallyadopted a two-track approach to promote incorporating the two Covenants into domestic law,i.e. deliberated on enactment of a special human rights law and ratified the two conventions at the same time.However, the Executive Yuan decided to give priority to promote the ratification of two covenants and enact the Two Covenants Implementation Act.Secondly, it describes the historical process of signing, ratification and promulgation of the two covenants and the main purpose and important contents of the Two Covenants Implementation Act.Then it recounts the propaganda and promotion of the two Covenants and the Two Covenants Implementation Act, and the work history of coordinating the central and local authorities to handle the propaganda, training, education and legal review of the two Covenants. In 2009, the Ministry of Justicewas assigned to promote the implementation of the two covenants. They firstinvited the experts to do research about the implementation of incorporating the international conventions into domestic law.Next,they took the initiative to put forward a response report to the aforementioned research report and after that, they put forward follow-up studies of "the need to set the national action plan", "the necessity of establishment of national Human Rights Report "and" Establishment of Human Rights Committees ". Finally, this chapter discusses future planning and outlook, including how to continue to promote the enactment, amendment or abolishment of the decrees and the improvement of administrative measures, ensuring the implementation of human rights protection,deliberation on promoting the establishment of a dedicated permanent national human rights institutions, and related important actions.
Chapter six introduces the progress in national implementation of incorporating other important international conventions into domestic law. With regard to the national practice of the Convention on the Elimination of All Forms of Discrimination against Women, the Convention on the Rights of the Child, the Convention on the Rights of Persons with Disabilities, the United Nations Convention against Corruption, Law on the Territorial Sea and the Contiguous Zone of the Republic of China, Law on the Exclusive Economic Zone and the Continental Shelf of the Republic of China, first, it expounds the meaning of each Convention.Next, it describes the process of enactment of the "Convention Implementation Act" ,and the main purpose and important content of the enactment of the "implementation Act" or incorporating into domestic law. It also compares related law with the "Two Covenants Implementation Act" or "the Convention on the Law of the Sea ", and even elaborates the compiling and submitting process of national reports under the Two Covenants Implementation Act. Finally, the newly enacted “Underwater Cultural Heritage Preservation Act " is in comparison with the "Convention on the Protection of Underwater Cultural Heritage" , and the legal system researches about the fulfilment ofincorporating other international conventions into domestic law are also explored.
Chapter seven discusses the development strategies and alternative measures of incorporating international conventions into domestic law under our country's unique legal status. First, it discusses the strategies of acceding to the Convention, inheriting the treaty, incorporating into the constitution, the enactment of the implementation act, the interpretation of the Grand Justices, the enactment of the special law and the treaty-making law, respectively. Then it also analyzes the advantages and disadvantages regarding making a special law or formulating a Convention Implementation Act in accordance with the principles of the Convention.
Chapter eight is the conclusion,which put forward the ideas and suggestions according to the research of this thesis.
Appendix: Historical process of the Government promoting "the incorporating other international conventions into domestic law "in recent years, 2001 the draft "Basic Law on Human Rights Protection", 2006 the draft "Human Rights Law".
Keywords: incorporated into domestic law, conventions, treaties, Implementation Act, anti-corruption, treaty-making, human rights, ocean, special law, basic law
| Identifer | oai:union.ndltd.org:TW/105NTOU5273016 |
| Date | January 2017 |
| Creators | Chen Ming-Tang, 陳明堂 |
| Contributors | Lih-Torng Chen, Chung-Mo Cheng, 陳荔彤, 城仲模 |
| Source Sets | National Digital Library of Theses and Dissertations in Taiwan |
| Language | zh-TW |
| Detected Language | English |
| Type | 學位論文 ; thesis |
| Format | 376 |
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