難民議題之國際規範適用：兼論臺灣面臨之挑戰

難民議題在二十一世紀隨著國家內戰甚或氣候變遷的加劇,再次成為棘手且亟需回應的問題。當今針對難民議題,所適用的國際難民規範係起因於兩次世界大戰後的慘痛經驗。隨著國際人權精神的逐漸成形,國際人權規範開始在國際社會的努力下確立且茁壯。因此,吾人在探討難民議題時,除了具體專責的難民法規範外,以人權為基礎的相應規範更不容忽視。從而,本文面對難民議題時,即探討並主張兩大法規範體系應一體適用,且在未有專責難民規範保障之處,人權規範有其角色與意義。本文以跨國規範化歷程作為研究的主要方法,因此在認識兩大規範體系上,會著重從個別議題至規範形成過程中的觀察。從而本文在分析兩大國際規範體系之際,不會僅是處理法律文字上的解釋,更會進一步探討規範運作以及規範適用過程中的各種行動者。換言之,本文對於難民規範以及人權規範內容的認識,無非是動態性的分析。最後,本文回到我國的現況,以兩大規範體系的兼容關係來探討並適用於當今臺灣面臨的問題。本文認為,在尚未有《難民法》的臺灣社會,對難民議題並非束手無策。2009 年,《公民與政治權利國際公約》以及《經濟社會與文化權利國際公約》藉由國內法化,已奠定其在我國的法律地位。我國政府基於此,對於難民議題責無旁貸。此外,從人權公約的內國法化過程,更彰顯出我國不同領域的行動者,對於催生具體難民規範的貢獻以及努力。這些都再進一步提供我國對於難民應更積極作為的例證。

關鍵字

難民；國際人權公約；難民公約；兩公約；難民法草案；跨國規範化歷程

並列摘要

On account of the rise of civil wars and climate change, the issue of refugee has once become a controversial and urgent topic in the 21st century. The norms that specifically apply to the refugee issue to date can be mainly traced back to the horrific experiences that occurred during World War II. However, it is disputable if these norms still can be applied to the emerging refugee issue over the last decades. In addition to the norms specialized in the refugee issue, the international human right laws also should be considered with the development of human right spirits. The international human right laws are getting stronger and flourish thanks to their own structure for evolving further. Based on human right spirits, refugees cannot be harshly excluded from the application of the international human rights laws. From my perspective, the international refugee laws should be applied in accordance with the international human rights laws. Furthermore, the rights that are not guaranteed in the refugee laws can be inherently protected according to the international human rights laws. I will apply the transnational legal process theory to illustrate the similarity of the contexts where the two legal systems have arisen and point out the actors which are involved in the law-making process of the two legal systems. As one member in the international society, Taiwan can no longer stay out of the emerging refugee issue. Yet, due to the political status of Taiwan, the challenges faced by Taiwan are quite different from what others are confronting. Taiwan is blocked from the international society and thus lacks the capacity to sign the international treaties. However, this does not imply that Taiwan has nothing to do with the refugee issue. In 2009, International Covenant on Civil and Political Rights and International Covenant on Economic, Social and Cultural Rights both have been incorporated into the legal system in Taiwan by means of the implementation act. I suggest that the Two Covenants should be applicable to the refugee and thus Taiwanese government is obligated to take action in response to the refugee issue. Also, through the lens of the transnational legal process theory, the actors involved in the law-making process in Taiwan are manifested and the contribution the actors made can be linked to the final result.