從國際法視角看簽署待生效的中國一加拿大雙邊投資協定

The China-Canada Bilateral Investment Treaty after Its Signatures: A Comment Based on International Law

中加兩國簽署了經過長期努力達成的雙邊投資協定。但由於加方未能完成國內批准手續，這個本來會促進雙邊投資關係的協定尚在等待其無法預測的生效時刻。與中國學者、潛在的中國投資者和參與協定談利的官員的預期相反，加拿大國內湧現出該協定還需要進一步審查的流行觀點。簡單地對該協定與加拿大雙邊投資條約計畫下的其他投資協定進行比較，就會發現該協定並無殊異之處，而事實上其給予投資者的優惠還不及《北美自由貿易協定》中的投資專章。對加拿大國內針對該協定的批評意見進行分析，會進一步發現這些批評的不靠譜，因為它們要麼源於對該協定的誤解，要麼則是出於政治偏見。文章最後指出，無論根據以《維也納條約法公約》第18條為表徵的習慣國際法規則，還是根據公法學家的論述，都表明已簽署但未批准的條約具有一定的效力，即在等待該協定生效的過程中，加拿大有義務抑制針對中國投資者的違反中加雙邊投資保護協定宗旨與目的的行為。

As a result of the long-haul efforts, a bilateral investment treaty was signed by China and Canada. Due to the inability to complete its domestic ratification procedure on the Canadian part, the treaty, which is supposed to facilitate the investment relationship between the two countries, is pending for its due effect. Contrary to the general expectation of Chinese scholars，prospective investors and possibly Chinese officials involved ,there emerged arguments in Canada that the treaty warrants closer scrutiny. A brief legal analysis of the article shows that the investment treaty not only is not so distinguishable from other bilateral investment agreements but lags behind the investment chapter of the NAFTA to which Canada is a party for years. A further look at the critiques pinpoints that the arguments are unwarranted and many of them are either derivative from misunderstanding of the treaty or due to political bias. The article further argues that，in accordance with both the customary rules of international law on signed but unratified treaties'legal effect, as evidenced by Article 18 of the Vienna Convention on the Law of Treaties, and the discourses of the publicists in this regard, Canada shall refrain from taking measures against Chinese investors which contravene the aims and purpose of the BIT as the Chinese signatory is waiting for the BIT being given its due force.