摘要
根据传统的条约法理论,条约对商业主体产生约束力的前提是该条约已经获得通过、生效,并且在缔约国国内适用。然而,在实践中,即使一项条约暂时或者最终未能获得通过、生效或者在国内适用,它仍有可能对商业主体施加事实上的约束力,即产生溢出效应。溢出效应的形成是即将出现的条约带来的监管威胁与商业主体趋利避害的本能共同作用的结果。此效应对突破当前条约治理的困局和强化商业主体的规制具有不可小觑的现实意义。为了借助溢出效应充分激发条约在规制商业主体行为方面的效用,我国应着力提高进行中的条约的曝光度并重视国际软法的先导功能。
States are a basic subject of international law,and they are also the commonest parties to treaties.As a state enters into a treaty,the obligations in the treaty shall be directly assumed by the state.However,the objective of a treaty is often achieved with the help of non-state actors.Under such circumstances,when implementing the treaty domestically,the contracting states need to transform their obligations in the treaty into the regulation of their domestic actors including the business actors.In accordance with the traditional theory of the law of treaties,the preconditions for the binding force of a treaty on the business actors of the contracting states are that the treaty must be adopted,come into force and be implemented domestically by the contracting states.In other words,such binding force can only be indirectly established by a 2-phase effect conduction from treaties in force to contracting states and then from contracting states to business actors.However,this article explores another possible way that a treaty can influence business actors,which is called the spillover effect.The effect reveals that even if a treaty temporarily or finally fails to be adopted,come into force or be implemented domestically by the contracting states,it is still likely to have direct and de facto binding force on business actors.The effect may occur anytime prior to the domestic implementation of a treaty.There are two main reasons for the occurrence of the spillover effect.The first one is the regulatory threat brought about by an imminent treaty.Before the aforementioned effect conduction is established,an imminent treaty is to business actors a signal of regulatory threat encouraging them to resort to self-discipline.The other is the business actor’s instinct of seeking benefits and avoiding disadvantages.Self-discipline by business actors prior to the establishment of the aforementioned effect conduction results from the benefits of participation that they may have.Business actors can take the initiative of regula
作者
李伯轩
Li Boxuan(School of International Law,China University of Political Science and Law,Beijing 102249,China)
出处
《浙江大学学报（人文社会科学版）》
CSSCI
北大核心
2021年第6期201-214,共14页
Journal of Zhejiang University:Humanities and Social Sciences
基金
国家社会科学基金重大委托项目(17ZH014)。
关键词
溢出效应
商业主体
条约有效性
全球治理
spillover effect
business actors
effectiveness of treaties
global governance
