论公平原则在中日东海大陆架划界中的适用

发布时间：2019-06-21 08:28

【摘要】：大陆架划界问题一直是一个争论不休的问题,争论主要围绕两国间的大陆架划界需用什么原则。目前大陆架划界的原则主要有自然延伸原则、成比例原则、等距离中间线原则和公平原则。东海大陆架划界问题是一直困扰中日两国友好发展的因素,两国对于划界应采取的原则的结论截然相反,随着能源问题愈演愈烈,中日两国之间的矛盾也逐渐升级。鉴于东海油气等资源对于中日两国经济发展的战略意义,东海争端对于维系地区和平、实现妥善解决的现实意义,本文拟从公平原则的基本法律概念和基本制度入手,对中日东海大陆架争端解决依据做法律分析,希望对中日东海大陆架争端的解决有所裨益,切实维护国家的海洋权益。本文旨在对划界原则进行分析整合的基础上重点对公平原则做论述,同时对公平原则的整个体系做深入探讨,指出公平原则是对适用其他原则划界结果的检验标准,是大陆架划界案中首要考虑的原则,其他的划界原则与方法,只有在符合公平原则的基础上才能加以适用。公平原则必须根据具体情况,结合其他的划界方法,才能达到真正意义上的公正合理。据此,指出公平在中日大陆架划界适用的合理性。本文主要分为三个部分：第一部分论述公平原则的概念、产生发展及内涵。真正提出公平原则的概念是美国1945年的《杜鲁门公告》,之后在很多的大陆架划界案中被采用,1982年《联合国海洋法公约》关于大陆架划界问题的第八十三条规定中,虽然没有在条文中明确规定海岸相向或相邻国家间大陆的界限应遵循公平原则划定,但是强调要使划界得到公平解决。现在公平原则已经发展为国际社会认可的一种划界的原则,当相向国家对两国的大陆架进行权力的划分时,最主流的做法就是按照公平原则在协议的基础上划界。公平原则的内涵是双方在协议的基础上划界,考虑一切情况,争取达到结果公平。第二部分是论述公平原则和其他原则的关系,以得出公平原则的适用程序。公平原则其核心内容是结果公平,要实现这一结果就必须考虑与案件有关的一切情况,尤其是尊重海底地形的自然走向。首先讨论了适用公平原则划界必须考虑的各种因素；其次,讨论了自然延伸原则,自然延伸是一个为实现公平的划界结果而应予考虑的重要因素之一。再次,讨论了成比例原则,指出该原则是对用其他方法尤其是等距离方法取得的划界结果的公平性进行检验,并在严重不成比例的情况下对其加以修正。最后,讨论了等距离原则,认为等距离中间线只是一种划界方法,是从属于公平原则的划界方法。本人的观点是公平原则的是其他划界原则和划界方法划界结果的检验标准,公平原则有矫正和独立功能,自然延伸、成比例原则和等距离划界方法在适用时是有先后顺序的,最终结果都是公平。第三部分对中日东海大陆架划界适用公平原则的合理性进行分析论证。首先,分析东海大陆架海底的地理因素,从科学考察的结果来看,冲绳海槽是中日两国大陆架的分界线,在划界时应充分考虑冲绳海槽的地理因素。其次,驳斥日本的中日两国是“共架国”的结论,等距离中间线只是一种划界方法,也是非强制性的,日本没有权力让中国接受自己单方面的主张。再次,成比例也是中日划界应考虑的因素,中日海岸线长度相差悬殊,而中国拥有漫长的海岸线,按这个因素,中国应取得更多的大陆架区域,才符合公平原则的要求。最后,对中日两国划界做出一些分析和设想,最好在协商谈判的基础上公平的划定大陆架界限。
[Abstract]:The issue of the delimitation of the continental shelf has been a question of contention, and the argument is about the principle of the delimitation of the continental shelf between the two countries. At present, the principles of the delimitation of the continental shelf mainly include the principle of natural extension, the principle of proportionality, the principle of equal distance and the principle of fairness. The issue of the delimitation of the continental shelf of the East China Sea is a factor that has always puzzled the friendly development of the two countries. In view of the strategic significance of the oil and gas resources in the East China Sea to the economic development of China and Japan, the East China Sea dispute is of practical significance to maintain the peace of the region and to achieve a proper solution, and this paper intends to start with the basic legal concept and the basic system of the principle of equity. On the basis of the legal analysis of the dispute settlement of the continental shelf in the East China Sea, it is hoped that the dispute settlement of the continental shelf in the East China Sea will be beneficial, and the maritime rights and interests of the State can be effectively maintained. The purpose of this paper is to make an analysis of the principle of the delimitation, to focus on the principle of fairness, and to make a deep discussion on the whole system of the principle of equity, and to point out that the principle of fairness is the standard for the examination of the results of the application of other principles, which is the primary consideration in the submission of the continental shelf. then, other delimitation principles and methods can be adapted only on the basis of the principle of equity The principle of equity must be used in accordance with the specific circumstances, in combination with other methods of demarcation, in order to achieve a true sense of justice. On the basis of which, it is pointed out that the application of fairness in the delimitation of the continental shelf of China and Japan is reasonable The paper is divided into three parts: Part 1: The first part deals with the concept of the principle of equity, which is produced Development and connotation. The concept of a genuine principle of equity is the United States of 1945. The United States Convention on the Law of the Sea,1982, on the delimitation of the continental shelf, was adopted in the United States in 1945. The 1982 United Nations Convention on the Law of the Sea, eighty-eighth session on the delimitation of the continental shelf in that article, although there is no provision in the provision that the delimitation of the boundary between the coasts or the inter-State is to be made in accordance with the principle of fairness, it is stressed that the delimitation is to be made To a fair settlement. The principle of equity has now evolved to the principle of a delimitation that is recognized by the international community and, when the two countries are divided by the power of the continental shelf of the two countries, the most mainstream approach is to deal with the principle of fairness in the context of the agreement The meaning of the principle of equity is the delimitation of the two parties on the basis of the agreement, taking into account all the circumstances and the pursuit of The second part is to discuss the relationship between the principle of equity and other principles in order to get a fair The principle of application of the principle. The core of the principle of equity is the result of equity, and it is important to take into account all the circumstances related to the case, in particular the respect of the seabed The natural trend of the terrain. First of all, the various factors that must be taken into account for the application of the principle of fair principle are discussed; secondly, the principle of natural extension is discussed, and the natural extension is a result of the equitable delimitation and should be considered One of the important elements of this is the fact that the principle of proportionality was discussed, noting that the principle was an examination of the fairness of the delimitation results obtained with other methods, in particular the equal-range approach, and in a serious and disproportionate situation In the end, the principle of equal distance is discussed, and it is considered that the equal-distance intermediate line is only a method of demarcation, which is a kind of fairness. The method of demarcation of the principle. My view is that the principle of fairness is the standard of examination of the delimitation of the other delimitation principles and the delimitation method, the principle of equity has the function of correction and independence, the natural extension, the proportional principle and the equal-distance delimitation method are sequential and most important in the case of application, The final result is fair. The third part applies the principle of fairness to the delimitation of the continental shelf of the East China Sea. The rationality of the continental shelf of the East China Sea is analyzed and demonstrated. First, the geographical factors of the bottom of the continental shelf of the East China Sea are analyzed. From the results of the scientific investigation, the Okinawa Trough is the dividing line of the continental shelf between China and Japan. Second, it refutes the conclusion that Japan's two countries are co-sponsors, and the intermediate line is only a method of demarcation, and it is non-mandatory. Japan has no power to let China The proportion is also one of the factors that the delimitation of China and Japan should take into account, the length of the coastline of China and Japan is very different, and China has a long coastline, according to which China should have more continental shelf areas To meet the requirements of the principle of equity. Finally, a number of analyses and ideas are made to the delimitation of the two countries, and it is best to build on the basis of the negotiation.
【学位授予单位】：中国海洋大学
【学位级别】：硕士
【学位授予年份】：2011
【分类号】：D993.5

【相似文献】