跨国公司侵犯人权的司法救济困境——以国际法与国内法的互动为出路

The Dilemma of Judicial Remedies for Human Rights Violation by Transnational Corporations——Interaction Between International Law and Domestic Law as a Solution

跨国公司侵犯人权的司法救济不仅是联合国工商业与人权议程的重要内容,也是建立健全跨国公司适当问责机制面临的重大挑战。然而,在以国家为中心的国际人权法实施体系下,跨国公司侵犯人权的司法救济通常面临管辖权困境、公司面纱屏障、法律规制不足、诉讼程序与证据问题等法律与现实阻碍。平衡国际人权法的理想与国家主权治理的现实困境,尽可能地减少或消除以上障碍,需要国内法与国际法良性互动、协调发展、双管齐下。一方面,国际法指引和推动国内法的发展与改革,促进管辖权问题的基本共识、公司人权责任的法律融合和观念趋同、国际司法协助和社会各界的监督;另一方面,国际法的发展与实施不可能脱离主权国家的意愿和行动,因而需要兼顾国内法的发展水平。对于中国而言,兼顾主权与人权、人权与发展的关系,重新审视和完善现有法律体系,才能构建更加公平、合理、有效的司法救济体系,完善国际人权法在国内的转化与实施。

The judicial remedies for human rights violations by transnational corporations is not only an important part of the UN’s business and human rights agenda, but also a major challenge to the establishment and improvement of the mechanism for a proper accountability of transnational corporations. However, under the state-centered international human rights law implementation system, judicial remedies for human rights violations by transnational corporations often face many legal and practical obstacles, including the jurisdiction dilemma, corporate veil barrier, lack of legal regulation, and procedural and evidential problems. In order to balance the ideal of international human rights law and the realistic dilemma under national governance, and reduce or eliminate the above obstacles as much as possible, efforts must be made to promote a positive interaction between and coordinated development of domestic law and international law. On the one hand, international law guides and promotes the development and reform of domestic law, the formation of basic consensus on jurisdiction issues, legal integration and conceptual convergence of corporate human rights responsibility, and international judicial assistance and supervision by all sectors of society;on the other hand, the development and implementation of international law depends on the will and actions of sovereign states, so it is necessary to take into account the development level of domestic law. As far as China is concerned, only by taking into account the relationships between state sovereignty and human rights and between human rights and development, and re-examining and improving the existing legal system, can we build a fairer, more reasonable and more effective judicial remedial system and improve the transformation and implementation of international human rights law.