人權條約機構一般性評論和結論性意見的解釋作用

The Interpretative Function of the General Comments and the Concluding Observations of Human Rights Treaty Bodies

人權條約機構的一般性評論和結論性意見並無法律約束力，但具有解釋人權條約的作用。從條約解釋的習慣法規則、國際法院判例法、國際法協會和聯合國國際法委員會相關報告來看，一般性評論和結論性意見中的規範性內容在對其表示同意的國家之間構成嗣後實踐。對於人權條約機構在一般性評論和結論性意見中對人權條約的解釋，締約國有義務作出贊同或反對的回應。國家對一般性評論或結論性意見保持沉默並不妨礙它們成為嗣後實踐。人杈條約機構作出的關於國家控煙義務、經社文權利國家義務和《公民權利和政治權利國際公約》域外義務的一般性評論和結論性意見在多數保持沉默的締約國之間構成嗣後實踐，在少數明確表示反對的締約國之間雖不構成嗣後實踐，但仍可作為解釋條約的補充資料。

General comments and concluding observations of human rights treaty bodies have interpretative functions, although they are not legally binding. According to customary rules on treaty interpretation, and by reference to ICJ jurisprudence and the relevant reports of the International Law Association and the UN International Law Commission, the normative contents of the general comments and concluding observations constitute the subsequent practices among state parties that consent to them. State parties have the obligation to respond, either in a positive or negative way, to the interpretation by treaty bodies in general comments and concluding observations. The silence of States does not prevent the general comments and concluding observations from being subsequent practices. Those general comments and concluding observations concerning State obligations to control cigarette, state obligations on economic, social and cultural rights and extraterritorial obligations under the ICCPR have become subsequent practices of most state parties that are silent on them. Although the same documents have not become subsequent practices among the limited number of state parties which have expressed their dissent, they could also function as supplementary means of interpretation.