遇难船避难地法律问题研究
发布时间：2018-11-03 19:42
【摘要】： 遇难船避难地问题在当代海事背景下是一个典型的海事问题,并涉及众多的利益主体,如船舶、船东、沿岸国以及船旗国等。出于对本国沿岸利益的保护,有些国家在某些重大的海难事故中拒绝遇难船进入其避难地的案例,如the Castor案和Prestige案,促使国际范围内,特别是国际海事组织(IMO)以及国际海事委员会(CMI)对避难地问题核心问题进行了深入的研究,主要关注遇难船避难地进入权与沿岸国保护自身国家利益之间的冲突、两者权利行使的条件和限制以及可能产出的国家责任问题。 遇难船避难地问题的复杂性不仅体现在其涉及利益主体的多样性,而且还涉及国际法的各个部门,如一般国际法原则、国际海洋法、国际环境法、国际人道主义法以及海商法等。本文探讨的内容主要集中在法律层面,具体指遇难船与沿岸国之间的权利义务层面,并不涉及可能的国家责任。在批判地分析了国际上已有的关于上述权利冲突的四种理论基础上,笔者认为一方面应当肯定国际法上遇难船的进入避难地的权利,此应为一般原则;另一方面,沿岸国依据个案平衡方法,在例外情况下为保护自身安全利益有权拒绝遇难船进入。国家在国际法上是否承担救助遇难船的义务,目前尚无定论,但总的趋势是国家承担对遇难船的救助义务将会越来越重。而有的国家或区域,如欧盟,已有相关的立法举措要求成员国对避难地问题承担更多的责任。 为证明遇难船享有的避难权,本文专门从国际习惯法的角度,实证地考察了不同历史阶段存在的关于避难习惯的大量海事法律实践,包括国家间条约实践、国家立法、司法以及政策性实践。并从微观的角度,归纳出遇难船避难习惯的构成要素,以及遇难船主张避难权应当承担的举证责任和证明标准。具体而言,主张避难权的一方应当证明存在导致其非自愿进入避难地的海难事实,并且该海难应达到迫切情势标准(necessity test)。 本文开创性地研究了我国不同层次的立法就遇难船避难地问题的相关规定,包括双边条约、法律、行政法规以及地方性法规等,并得出结论认为,我国的相关海事立法就遇难船问题的规定比较完善。但限于笔者掌握的材料,未能考察具体实践中我国对遇难船避难地问题的应对。这方面有待进一步的研究。本文最后就遇难船避难地问题的发展趋势和特点进行了归纳,以期对将来的研究有所裨益。
[Abstract]:The problem of refuge place of shipwrecked ship is a typical maritime problem in the contemporary maritime background, and involves many stakeholders, such as ship, ship owner, coastal state, flag state and so on. For the protection of their coastal interests, some countries have denied ships in distress access to their places of refuge in some major maritime accidents, such as the Castor and Prestige cases, prompting the international community, In particular, the International Maritime Organization (IMO) (IMO) and the International Maritime Committee (CMI) have carried out in-depth research on the core issues of asylum, mainly focusing on the conflict between the right of entry to the place of refuge of shipwrecks and the protection of the national interests of coastal States. The conditions and limitations of the exercise of both rights and the question of State responsibility for possible outcomes. The complexity of the issue of places of refuge for ships in distress is reflected not only in the diversity of stakeholders involved, but also in various sectors of international law, such as the principles of general international law, the international law of the sea, international environmental law, International humanitarian law and maritime law. The content of this paper mainly focuses on the legal level, specifically refers to the rights and obligations between the shipwrecked ship and the coastal state, and does not involve the possible state responsibility. Based on the critical analysis of the four theories on the conflict of rights mentioned above, the author holds that the right to enter the asylum of shipwrecked ships in international law should be affirmed, which should be a general principle; On the other hand, coastal states have the right to deny access to wrecked vessels in exceptional circumstances to protect their own security interests, according to the case-based balance method. Whether the state should undertake the obligation of rescuing the shipwrecked ship in international law has not been decided at present, but the general trend is that the obligation of rescuing the shipwrecked ship will be more and more serious. Some countries or regions, such as the European Union, have legislation that requires member states to take more responsibility for asylum issues. In order to prove the right of asylum enjoyed by shipwrecked ships, this paper investigates empirically a large number of maritime legal practices on asylum customs in different historical stages, including inter-state treaty practice and national legislation, from the perspective of international customary law. Judicial and policy practice. From the microcosmic point of view, the author concludes the elements of asylum habits of shipwrecked ships, and the burden of proof and the standard of proof that shipwrecks should bear in claiming the right of asylum. In particular, the party asserting the right of asylum should prove the existence of a maritime disaster that led to its involuntary entry into the place of asylum, and that the maritime disaster should meet the urgent situational standard (necessity test). This paper studies the relevant provisions of different levels of legislation in China, including bilateral treaties, laws, administrative regulations and local regulations, and concludes that, The relevant maritime legislation of our country is relatively perfect on the problem of shipwreck. However, it is limited to the material that the author grasps, and fails to investigate the response of our country to the problem of refuge place of shipwrecked ship in concrete practice. This aspect needs further study. At the end of this paper, the development trend and characteristics of shipwrecked asylum are summarized in order to benefit the future research.
【学位授予单位】：华东政法大学
【学位级别】：硕士
【学位授予年份】：2007
【分类号】：D996.19
本文编号：2308805
[Abstract]:The problem of refuge place of shipwrecked ship is a typical maritime problem in the contemporary maritime background, and involves many stakeholders, such as ship, ship owner, coastal state, flag state and so on. For the protection of their coastal interests, some countries have denied ships in distress access to their places of refuge in some major maritime accidents, such as the Castor and Prestige cases, prompting the international community, In particular, the International Maritime Organization (IMO) (IMO) and the International Maritime Committee (CMI) have carried out in-depth research on the core issues of asylum, mainly focusing on the conflict between the right of entry to the place of refuge of shipwrecks and the protection of the national interests of coastal States. The conditions and limitations of the exercise of both rights and the question of State responsibility for possible outcomes. The complexity of the issue of places of refuge for ships in distress is reflected not only in the diversity of stakeholders involved, but also in various sectors of international law, such as the principles of general international law, the international law of the sea, international environmental law, International humanitarian law and maritime law. The content of this paper mainly focuses on the legal level, specifically refers to the rights and obligations between the shipwrecked ship and the coastal state, and does not involve the possible state responsibility. Based on the critical analysis of the four theories on the conflict of rights mentioned above, the author holds that the right to enter the asylum of shipwrecked ships in international law should be affirmed, which should be a general principle; On the other hand, coastal states have the right to deny access to wrecked vessels in exceptional circumstances to protect their own security interests, according to the case-based balance method. Whether the state should undertake the obligation of rescuing the shipwrecked ship in international law has not been decided at present, but the general trend is that the obligation of rescuing the shipwrecked ship will be more and more serious. Some countries or regions, such as the European Union, have legislation that requires member states to take more responsibility for asylum issues. In order to prove the right of asylum enjoyed by shipwrecked ships, this paper investigates empirically a large number of maritime legal practices on asylum customs in different historical stages, including inter-state treaty practice and national legislation, from the perspective of international customary law. Judicial and policy practice. From the microcosmic point of view, the author concludes the elements of asylum habits of shipwrecked ships, and the burden of proof and the standard of proof that shipwrecks should bear in claiming the right of asylum. In particular, the party asserting the right of asylum should prove the existence of a maritime disaster that led to its involuntary entry into the place of asylum, and that the maritime disaster should meet the urgent situational standard (necessity test). This paper studies the relevant provisions of different levels of legislation in China, including bilateral treaties, laws, administrative regulations and local regulations, and concludes that, The relevant maritime legislation of our country is relatively perfect on the problem of shipwreck. However, it is limited to the material that the author grasps, and fails to investigate the response of our country to the problem of refuge place of shipwrecked ship in concrete practice. This aspect needs further study. At the end of this paper, the development trend and characteristics of shipwrecked asylum are summarized in order to benefit the future research.
【学位授予单位】：华东政法大学
【学位级别】：硕士
【学位授予年份】：2007
【分类号】：D996.19
【参考文献】
相关硕士学位论文 前1条
1 姜传尧;遇难船避难地问题研究[D];大连海事大学;2006年
，本文编号：2308805
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