論參與撤僑軍艦的法律地位
發(fā)布時(shí)間：2018-07-26 08:42
【摘要】：現(xiàn)今,我國(guó)的海外利益隨著企業(yè)和個(gè)人的腳步遍及全球。與此同時(shí),海外風(fēng)險(xiǎn)也日益呈現(xiàn)多樣化的特征。這集中體現(xiàn)在我國(guó)近些年開展了許多撤僑行動(dòng)以保護(hù)海外公民的生命安全,而在利比亞撤僑和也門撤僑中更是使用了軍艦等武裝力量參與撤僑。“撤僑”一詞由來已久,一般來說意指當(dāng)僑居海外的公民的生命安全受到威脅時(shí),該國(guó)政府通過某些方式將本國(guó)公民或他國(guó)公民撤離至安全港或者直接撤回到本國(guó)領(lǐng)土的行為。當(dāng)使用武裝力量包括軍艦和軍用飛機(jī)等作為運(yùn)輸工具來進(jìn)行撤僑時(shí),便稱之為武裝撤僑。在撤僑任務(wù)中,軍艦既能快速到達(dá)東道國(guó),又能承擔(dān)大量人員的撤離任務(wù),并且能夠在極端環(huán)境下保護(hù)被撤離人員的生命安全。本文認(rèn)為明確軍艦的法律地位是確定撤僑行動(dòng)合法性的起點(diǎn)所在。首先,軍艦在他國(guó)海域和港口都享有公認(rèn)的豁免權(quán);其次,軍艦在專屬經(jīng)濟(jì)區(qū)、領(lǐng)海和內(nèi)水的通行分別受到了不同程度的限制。當(dāng)軍艦參與撤僑時(shí),這些限制同樣存在。但隨著國(guó)家派遣軍艦參與撤僑的實(shí)踐日益增多,軍艦在撤僑時(shí)的法律地位也漸漸發(fā)生改變。在和平時(shí)期,各國(guó)通過國(guó)內(nèi)法的規(guī)定以及簽訂的雙邊或多邊條約約定了軍艦的特殊法律地位,參與撤僑的軍艦在履行相關(guān)義務(wù)的基礎(chǔ)上逐漸獲得了自由航行的權(quán)利。而在戰(zhàn)爭(zhēng)期間,一方面參與撤僑的軍艦基于中立地位可以自由航行;另一方面參與撤僑的軍艦擁有保護(hù)自身和被撤離人員的安全的權(quán)利,而這權(quán)利既來源于自衛(wèi)權(quán),也必須受到武裝沖突法規(guī)則的限制。當(dāng)前,我國(guó)成功的撤僑實(shí)踐均是基于友好的外交領(lǐng)事關(guān)系而非法律途徑,這正是因?yàn)槲覈?guó)關(guān)于撤僑以及武裝撤僑的法律法規(guī)甚少,而參與撤僑的軍艦的法律地位問題更是立法的空白點(diǎn)。本文認(rèn)為完善參與撤僑軍艦的法律地位應(yīng)當(dāng)從立法體系和內(nèi)容兩處入手。在立法體系方面,我國(guó)應(yīng)當(dāng)考慮在已有的法律法規(guī)中添入“撤僑”、“武裝撤僑”等有關(guān)專業(yè)術(shù)語,將包括撤僑在內(nèi)的非戰(zhàn)爭(zhēng)軍事行動(dòng)法和軍艦實(shí)施撤僑的單行條例的立法工作提上日程。從而對(duì)軍艦的法律地位形成從高位階法到單行條例的全面、詳細(xì)的規(guī)定。在立法內(nèi)容上,參與撤僑軍艦的法律地位應(yīng)當(dāng)涵蓋軍艦從出發(fā)到停靠他國(guó)港口直至將人員撤離到安全港或者本國(guó)領(lǐng)土的全過程。其中至少應(yīng)當(dāng)包括合法性基礎(chǔ)、相關(guān)的權(quán)利與義務(wù)以及配套機(jī)制的內(nèi)容。此外,我國(guó)可以通過細(xì)化外交或領(lǐng)事條約,在條約中加入?yún)⑴c撤僑軍艦的法律地位的條款,這將進(jìn)一步加強(qiáng)我國(guó)與其他國(guó)家在撤僑方面的國(guó)際合作。
[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.
【學(xué)位授予單位】：湘潭大學(xué)
【學(xué)位級(jí)別】：碩士
【學(xué)位授予年份】：2017
【分類號(hào)】：D993.5
本文編號(hào)：2145468
[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.
【學(xué)位授予單位】：湘潭大學(xué)
【學(xué)位級(jí)別】：碩士
【學(xué)位授予年份】：2017
【分類號(hào)】：D993.5
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