英文摘要 |
Incorporation of the international human rights conventions into domestic law is critical to implementing such conventions by states parties. By using the example of the Convention on the Rights of the Child (the “CRC”), this article analyzes the core issues associated with incorporation of international law into domestic legal systems. Reflecting on the experiences of four countries (Germany, France, the United Kingdom and Australia), the article explains how the “Implementation Act of the Convention on the Rights of the Child” (the “Act”) lacks clarity in underlying issues, including the direct effect of CRC provisions, the hierarchy of CRC in the Taiwanese legal system and whether or not an obligation is imposed on the domestic courts to interpret domestic law(s) in conformity with the CRC. Based on an examination of parliamentary debates and the lawmaking process of the Act, the article concludes that it was drafted on the basis of a monist approach to the application of international conventions. The Act’s main purpose, therefore, was to overcome the obstacle that Taiwan is unable to ratify the CRC and become a party thereto. On this basis, the article takes the view that Taiwan courts should, first and foremost, determine whether or not the rights set out in the CRC are of a self-executing nature. In France and Germany, for example, those provisions categorized as general principles of the CRC are directly applicable. With regard to interpretation of those provisions that are not directly applicable, however, how courts in the United Kingdom and Australia interpret those provisions in order that they may conform to the CRC can provide guidance to Taiwan courts. |