【作者】 薛狄；

【导师】 那力；

【作者基本信息】 吉林大学 ， 国际法学， 2010， 博士

【摘要】 现代生物燃料是一种新能源产业,生物燃料问题是国际政策和国际法领域的新问题,生物燃料问题的有效治理是各国和国际社会面临的新挑战。本文从国际关系和国际法中“安全”概念和“安全化”理论出发,判定生物燃料问题已成为和非传统安全相关的全球公共问题;国际社会逐步认识到生物燃料问题带来的多种威胁,提出了采取紧急治理行动的要求。国家和私人市场主体目前产业行为的性质、地位说明在生物燃料问题治理上存在政府干预失灵和市场失灵。国际法理性选择工具性作用和利益重塑的建构性作用降低治理的国际合作成本,促使国家发展生物燃料产业所要实现的利益和人类可持续发展相统一。《联合国气候变化框架公约》和《生物多样性公约》缔约方大会,联合国粮农组织自愿准则,经济、社会和文化权利委员会一般评论,食物权特别报告员机制,WTO部长会议和公共论坛,这些具体领域的国际法工具不断澄清生物燃料问题同气候变化、生物多样性、粮食安全和经济发展的关系,明确国际法规制的范围、问题。现有的减排和保护生物多样性流失的国际义务、资金技术援助义务,尊重、保护、实现食物权义务的框架和WTO关税、补贴、技术壁垒规则,为生物燃料产业朝可持续方向发展提供了治理框架和规则体系。更多还原

【Abstract】 Technology progress and industry escalation is the power to the development of society, and meanwhile it may bring the risk or even dangers of the sustainable development. Biofuel industry which induces many kinds of security problems has come down from the Green Altar, and become the global biofuel issue which is needed to evaluate immediately. Global development of biofuel industry is irreversible. States and international community recognize the biofuel issue has not been the problem which is needed to decide to keep on going or not, and become the crucial sustainable development issue which has to choose the appropriate instrument to govern. As a kind of governance instrument to new global challenges for states and international community, international law provides governance framework and rules system to control risks, prevent damages, clarify responsibilities and advance benefits by its special doctrines, regimes and different mechanisms. The core of this thesis is the governance of international law to the biofuel issue. The thesis firstly analyzes the facts of the biofuel issue, and secondly explores the necessity and possibility of the governance of international law to the biofuel issue, and investigates the particular the fields of governance of international law and the responses from the different international law mechanisms in these areas, and specifically illustrates the application of the rules of international law to the biofuel issue and the effects from this kind of application to sustainable development of global biofuel industry.Chapter 1 identifies the essential attribute of the biofuel issue. The biofuel issue is the global common public problem and is the nontraditional security problem too. The concept of security in international relations and international law has been evolving, the series of problems induced by biofuel industry have been the nontraditional security category including energy, environment, society, economy securities. The international actors including states, international organizations and other non-state actors have responded the global threats from biofuel industry developing and generate the needs to take urgent actions. The category of security relative to the biofuel issue and the tendency of securitization explain the global public common problem attribute of the biofuel issue. This means states, individuals and the whole human beings have the common benefit on the governance of the biofuel issue. This kind of benefit is in extension of time and space and it means the indivisibility of effects. Therefore, to govern the biofuel issue needs the positive actions of all kinds of shareholders and the associated actions based on the cooperation in order to reverse the status quo of biofuel industry. Chapter 2 is“double failure”and the calling of international law. Governments and private enterprises are the main participants and promoters of biofuel industry, and the key governors of the biofuel issue. From the market share and the level of development, huge transnational agriculture and petrol enterprises penetrate into the biofuel market, which forms industry concentration. This leads to the market failure and success of political objectives. United States and European Union apply the important state intervention, which has the significant effects in the governance of the biofuel issue. Based on the theory of state intervention, both of their biofuel institutions have the large scope, poor coordination and non cost-effective. These facts explain the current operation of governmental intervention cannot accomplish the political objectives, and they are lack of rationality, so they are the government failure. The fact of this kind of“double failure”badly needs effective cooperation internationally and globally in order to govern the biofuel issue. But the global public common problem attribute of the biofuel issue and the non-governmental international system lead that the coordinated actions of governance of the biofuel issue cannot turn out automatically. The instrumental function of rational choice of international system illustrates in the process of governance of the biofuel issue, international law should play a role as follows: through defining the law framework of action responsibility, international law promotes the expectation of participants each others’action; through avoiding duplicating the negotiation and increasing the connections between different topics, international law affects transaction costs; through providing action standards sufficient to evaluate the performance of other states and the public discussing forum, international law promotes information symmetry. The more remote effects of international law to the governance of the biofuel issue are the value standards and sustainable development doctrine which is evolved by the way responding the changes of international system. This affects the attribute of state benefits in biofuel industry. Benefits remodeling and rational choice is just the governance mode by which international law deals with the proliferation of global public common problems. This sufficiently explains applying international law to govern the biofuel issue is possible, inevitable and realistic.The biofuel issue is relative to the many fields of international laws. Institutions and mechanisms of these fields of international law may become effective instruments to govern the biofuel issue. This reflects the multi-dimension of international law that relating the biofuel issue. Chapter 3, 4 and 5 illustrate the regulation to the biofuel issue from multi-dimensional international law.Chapter 3 is the first aspect of international law regulating the biofuel issue. That is the mechanisms of United Nations Framework Convention on Climate Change and Convention on Biological Diversity provide the governance framework to the problems induced by the development of biofuel industry. That United States and European Union control the global development of biofuel industry has been brought the negative effects towards climate change and biodiversity. Biofuel inevitablely generates the negative effects to environment. The key point of this is whether the bad products can be taken place by the sustainable biofuel. Developed countries have no comparative advantages from the natural conditions perspective. But they have the advanced technologies and money which is badly needed by the developing countries having comparative advantages. States have sovereignty to develop own biofuel industry and freely decide to the kind of method. But this power is limited by UNFCCC and CBD. Climate change and biodiversity affected by the development of biofuel industry has been the“common concern of mankind”protected and monitored by UNFCCC and CBD. This defines that contracting parties must obey the obligations of reducing emission and protecting biodiversity based on the common but distinct responsibilities principle. The conventions provide not only general system of technology and finance, but also provide new evolving mechanism such as clean development mechanism which gives developing countries possessing comparative advantages at biofuel industry more chances; against conference of contracting parties’responses, this mechanism of conventions can be the method to explore special rules regulating the biofuel issue and the forum to evaluate the biofuel industry behaviors of different actors. The function of COP must form the pressure of changing ineffective industry behaviors to promote the sustainable development of biofuel.Chapter 4 discusses the issue regulating biofuel-global food crisis by the core approach of the right to food. The explosion globally of biofuel industry becomes one of the main elements which lead to food crisis, intensifies the global hunger problem. The essence of biofuel-global food crisis is affecting the right to food of the fundaments of global food security through pushing food price, competing agricultural resources and intensifying the risk of food safety. Universal Declaration of Human Rights and International Covenant on Economic, Social and Cultural Rights have identified the concept of the right to food, but the content of it, the obligations of state and other actors and the approach of realizing it are clarified and complemented by general comments of Committee on Economic, Social and Cultural Rights, the Rapporteur to the right to food and Guidelines of the right to food of FAO. These international governance instruments of the right to food having different functions because of attributes have responded the international law relative the right to food regulate the biofuel issue; regional organizations and NGOs also have different responses. The regulating framework of the right to food which is consisted of respect, protection and realization provides the behaviors standards of states in biofuel industry. The regulating framework of the right to food provides the quasi-judicial remedy approach to avoid the obligations of the right to food based on the causality of biofuel-global food security.The content of chapter 5 is the approach to the governance of the biofuel issue by which promote to the liberalization of sustainable biofuel trade in order to force the unsustainable products out of the market. That the comparative advantages of supply and the demands of sustainable biofuel in the future determines the huge potential of biofuel. The tendency of global biofuel industry can be irreversible. International trade system which takes WTO as the core promotes effective allocation of biofuel industry resources globally by international competition. Therefore that WTO regulates the biofuel issue is the key of effective governance of the biofuel issue, and achieving to sustainable development. But the institutions and systems which are applied by OECD countries in order to support unsustainable biofuel limit the liberalization of sustainable biofuel trade badly. They are tariff measure which is consisted of high tariff, tariff escalation and tariff quota, subsidies measure and the technical barrier in the form of sustainable certification system. Tariff reduction is the foundation of WTO. The effective operation of WTO tariff reduction system depends on HS system of world customs organization. The fact biofuel has no unified category in HS system prevents reducing tariff of biofuel. Amending HS, achieving new special biofuel agreement and unilateral measure based on transparency principle of WTO are the alternative approaches. The status of subsidies measure in national biofuel system determines the key point of regulation of WTO to the biofuel issue is application subsidies and countervailing rules. The four types of biofuel subsidies used by producers generally may apply different the subsidy disciplines in Agreement on Subsidies and Countervailing Measures in Agreement on Agriculture. To the kinds of challenges inducing by the current development of biofuel industry, international organizations, NGOs, transnational networks and developing countries make or have finished the different certification systems of sustainable biofuel. This new case in process of the governance of the biofuel issue bring new chance to the sustainable development of biofuel industry, on the other hand it may become the genuine obstacles of global uses of sustainable biofuel. The sustainable certification system is the PPMs issue in WTO. WTO should function as safe valve balancing the negative and positive of certification system, that is to control of the risk of preventing the trade liberalization of sustainable biofuel and acknowledge the ones in order to protect global environment and obey the obligations of stats’right to food.The conclusive remarks of the thesis point out that biofuel is the new energy industry. The discussions about the attribute, scope and governance instruments of the biofuel issue just rise of states and international community. Against this situation, the research on governance of international law to the biofuel issue in the thesis is some kind of framework and tentative. The factual effects of the regulation of international law will be clarified in the process of more demands from international actors of responses. Special rules system of biofuel and governance framework can also form, establish and be applied widely, thus it gives due contributes to the sustainable development of global biofuel industry.更多还原