论参与撤侨军舰的法律地位

发布时间：2018-07-26 08:42

【摘要】：现今,我国的海外利益随着企业和个人的脚步遍及全球。与此同时,海外风险也日益呈现多样化的特征。这集中体现在我国近些年开展了许多撤侨行动以保护海外公民的生命安全,而在利比亚撤侨和也门撤侨中更是使用了军舰等武装力量参与撤侨。“撤侨”一词由来已久,一般来说意指当侨居海外的公民的生命安全受到威胁时,该国政府通过某些方式将本国公民或他国公民撤离至安全港或者直接撤回到本国领土的行为。当使用武装力量包括军舰和军用飞机等作为运输工具来进行撤侨时,便称之为武装撤侨。在撤侨任务中,军舰既能快速到达东道国,又能承担大量人员的撤离任务,并且能够在极端环境下保护被撤离人员的生命安全。本文认为明确军舰的法律地位是确定撤侨行动合法性的起点所在。首先,军舰在他国海域和港口都享有公认的豁免权;其次,军舰在专属经济区、领海和内水的通行分别受到了不同程度的限制。当军舰参与撤侨时,这些限制同样存在。但随着国家派遣军舰参与撤侨的实践日益增多,军舰在撤侨时的法律地位也渐渐发生改变。在和平时期,各国通过国内法的规定以及签订的双边或多边条约约定了军舰的特殊法律地位,参与撤侨的军舰在履行相关义务的基础上逐渐获得了自由航行的权利。而在战争期间,一方面参与撤侨的军舰基于中立地位可以自由航行;另一方面参与撤侨的军舰拥有保护自身和被撤离人员的安全的权利,而这权利既来源于自卫权,也必须受到武装冲突法规则的限制。当前,我国成功的撤侨实践均是基于友好的外交领事关系而非法律途径,这正是因为我国关于撤侨以及武装撤侨的法律法规甚少,而参与撤侨的军舰的法律地位问题更是立法的空白点。本文认为完善参与撤侨军舰的法律地位应当从立法体系和内容两处入手。在立法体系方面,我国应当考虑在已有的法律法规中添入“撤侨”、“武装撤侨”等有关专业术语,将包括撤侨在内的非战争军事行动法和军舰实施撤侨的单行条例的立法工作提上日程。从而对军舰的法律地位形成从高位阶法到单行条例的全面、详细的规定。在立法内容上,参与撤侨军舰的法律地位应当涵盖军舰从出发到停靠他国港口直至将人员撤离到安全港或者本国领土的全过程。其中至少应当包括合法性基础、相关的权利与义务以及配套机制的内容。此外,我国可以通过细化外交或领事条约,在条约中加入参与撤侨军舰的法律地位的条款,这将进一步加强我国与其他国家在撤侨方面的国际合作。
[Abstract]:Today, China's overseas interests with the pace of enterprises and individuals throughout the world. At the same time, overseas risks are increasingly diversified. This is reflected in the fact that China has carried out many overseas evacuation operations in recent years to protect the lives of overseas citizens, and in the evacuation of overseas Chinese in Libya and Yemen, armed forces such as warships have been used to participate in the evacuation of overseas Chinese. The term "withdrawal of an overseas national" has been used for a long time and generally means that when the safety of a citizen living abroad is threatened, the Government of that State evacuates its citizens or citizens of other countries in some way to a safe port or directly to its territory. When armed forces, including warships and military aircraft, are used as means of transportation, they are called armed evacuation. In the task of evacuating overseas Chinese, the warship can not only reach the host country quickly, but also take on the task of evacuating a large number of people, and can protect the life and safety of the evacuees under extreme circumstances. This paper holds that the legal status of warships is the starting point of determining the legality of the evacuation of overseas Chinese. First, warships enjoy recognized immunity in the sea and ports of other countries; secondly, the passage of warships in exclusive economic zones, territorial waters and internal waters is restricted to varying degrees. These restrictions also exist when warships are involved in evacuating nationals. However, with the increasing practice of sending warships to participate in the evacuation of overseas Chinese, the legal status of warships in evacuating overseas Chinese has gradually changed. In peacetime, the special legal status of warships was stipulated by various countries through the provisions of domestic laws and bilateral or multilateral treaties, and the warships involved in the evacuation of overseas Chinese gradually acquired the right of freedom of navigation on the basis of fulfilling the relevant obligations. During the war, on the one hand, warships involved in evacuating overseas Chinese were able to sail freely on the basis of their neutral status; on the other hand, warships participating in the evacuation of overseas Chinese had the right to protect themselves and the safety of the evacuees, which was derived from the right of self-defence. They must also be subject to the rules of the law of armed conflict. At present, the successful practice of evacuating overseas Chinese in China is based on friendly diplomatic and consular relations rather than legal channels. This is precisely because there are very few laws and regulations concerning the evacuation of overseas Chinese and the armed evacuation of overseas Chinese. The issue of the legal status of warships involved in evacuating overseas Chinese is a blank spot in legislation. This paper argues that the legal status of warships involved in the evacuation of overseas Chinese should be improved from the legislative system and content. In terms of the legislative system, China should consider adding relevant professional terms such as "evacuation of overseas Chinese" and "armed evacuation of overseas Chinese" into the existing laws and regulations. The legislative work of non-war military action law, including evacuation of overseas Chinese, and special regulations of warships to remove overseas Chinese is put on the agenda. Thus, the legal status of warships form a high-ranking law to a single regulation of the comprehensive, detailed provisions. In terms of legislation, the legal status of warships involved in evacuating overseas Chinese should cover the whole process of warships from departure to docking in other countries' ports to evacuate personnel to safe ports or to their own territories. It should include at least the basis of legality, relevant rights and obligations, and supporting mechanisms. In addition, China can include in the treaty provisions on the legal status of warships involved in the evacuation of overseas Chinese through the elaboration of diplomatic or consular treaties, which will further strengthen international cooperation between China and other countries in the evacuation of overseas Chinese.
【学位授予单位】：湘潭大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D993.5

【参考文献】