难民权利保护的国际软法之治

大规模的难民潮现象出现，难民危机情势急迫，国际社会以政治、法律等多种手段来应对，实际效果却不尽如人意。在“逆全球化”背景下，出于各自国家利益的考虑，加上政治、历史和文化等因素，多边条约等硬法的出台受阻。目前，国际难民法体系的演进和以《纽约宣言》为代表的革新显示软法在难民领域有所作为，软法是大势所趋。软法的功用不容小觑，通过填补硬法空白和缺位、补充及细化既有硬法、传递有效信息和促进规范向习惯法演进，与硬法协同共治，可形成“软硬兼施”的良性互动，促进难民领域法律制度发展及难民问题的解决。就中国而言，目前制定难民法并非最优解，应研究软法，以因地制宜、灵活用于国内所需法律关系之调整，贯彻言行一致的原则，寻觅契机传递中国观念。

Governance of International Soft Law for the Protection of Refugee Rights

The international community is committed to durable solutions to refugee problems through multiple methods, including politics, economy and law. When large-scale refugee flows, responding to the refugee crisis in an urgent situation, the actual effect of hard law has not been up to expectations from the legal perspective, and moreover, lawmaking such as multilateral treaties is hindered under the background of “counter-globalization”. In recent years, to open a new situation, new developments within the field of refugees have pointed to international soft laws. It is representative of a general trend. In particular, the two Global Compacts have led to a breakthrough at the global level, with regional and sub-regional soft laws gaining momentum. The landscape of soft laws is evolving dynamically. International soft law is not only a secondary option to be passively selected, but also favored by actors in international relations. By performing various functions, it can make a difference. Taking status of stages of hard law in existence in this field as a reference for analysis of the interaction between hard law and soft law, it can be concluded that soft law fills gaps and holes in the law, supplements and interprets hard law and transmits effective information, and that soft law is independent and coherent in compliance with the evolution of the law. Moreover, regarding the conversion of “non-refoulement” into customary international law, soft law has a positive effect on the transformation from quantitative changes to qualitative changes. The significance endowed to soft law changes with changing status of norms. If norms have become customary international law, soft law deepens and enriches the connotations of them. In contrast, even if norms have not yet become customary law, soft law will be able to constitute opinion juries and (or) uniform state practice and (or) to provide positive evidences for forming the two elements. It is beneficial to the proof of customary law. As the embodiment of the two elements, the “words” and “act” originated from states is used to judge them. Dislocation of “words” and “act” is possible to happen in the context of contradiction between ideal and reality. National interest is a core factor to be influential for choices and behavior of states in the international community. Once the standard of norms is set too high beyond the limit, states are incapable of accepting them or they may even refuse to adopt them, then compliance with the law becomes tough. It is in this legal sense that keeping balance is extremely crucial to refugee issues. Specifically, states defend national sovereignty and interest, refugees and asylum seekers struggle for their own rights, and UNHCR acts within the limits of their authority. As for exerting the role of soft law, on the one hand, it addresses practical challenges via the approach of “norms-regulation” to participate in governance. On the other hand, soft law makes a long-term cumulative contribution to the lawmaking and progress of hard law to be indirectly involved in governance. Both soft law and hard law aim at promoting legal institutions towards benign development and the pursuit the goal of the rule of law. Undoubtedly, it is necessary to understand soft law objectively, which means the abandonment of prejudices against soft law and establishment of reasonable expectations. While it is true that non-binding is the nature of soft law, it can have an actual effect in practice that should not be underestimated. At the same time, however, it can’t be exaggerated, since the observance of the law is an unavoidable issue for hard law as well as for soft law. To achieve the vision of “good law”, the enactment of soft law requires consideration of rationality and feasibility. Because of the variety of soft laws, some of them have a high degree of participation in governance that is helpful for “good governance”. Through cooperative governance, soft law acts together with hard law to complement each other, and that takes on the effect of “one plus one is larger than two” and forms a virtuous cycle. For China, enacting refugee laws is not an urgent and optimal scheme. Progressive inquiries and transitions with pluralistic measures are necessary instead. Experience of soft law in the field may well be applied flexibly to adjust domestic legal relations of other fields. China gets involved in governance in an appropriate way that is in line with its national conditions.