中国海警船舶法律属性浅析

A Brief Analysis of the Legal attributes of China Coast Guard Ship

厘清中国海警船舶法律属性涉及到中国海警船舶与其担负的职能任务相适应的法律地位和权力的基本法律问题,有助于更好地适用《联合国海洋法公约》,更好地履行职能。从国际法层面看,海警船舶符合《联合国海洋法公约》字面意义上"军舰"规定,但不符合实质上"军舰"规定。从"使用目的"考量,海警船舶应定性为《公约》"非商业目的的政府船舶"。从国内法层面看,海警船舶不属于"军舰",但当履行作战任务时,应定性为军舰,并在程序和实体方面依法行事;但仍可以保留"政府公务船"的地位。研究发现,船舶的法律性质取决于国家专门安排,且权利(权力)和压力(义务)是对应的。目前我国法律和具有法律效力的文件尚未对海警船舶是否定性为军舰作明文规定,应考虑国际社会的普遍做法、国际公约的有关规定以及我国国内对政府各部门和武装力量组织的职能任务安排,健全相关法律保障,作出慎重决定。

The legal attributes of the China Coast Guard ship involve basic legal issues, which help to better apply UNCLOS and better perform the functions of China Coast Guard. Those issues are related to the legal status and power of the China Coast Guard ship and the functional tasks it undertakes. From the perspective of international law, the China Coast Guard ship complies with the literal "warship" provisions of UNCLOS, but does not meet the "warship" requirements in substance.Considering "the purpose of use", the China Coast Guard ship should be characterized as a "government ship operated for non-commercial purposes" of UNCLOS. From the perspective of domestic law, the China Coast Guard ship is not a "warship", but when performing combat missions, it should be characterized as a warship and act in accordance with the law in terms of procedures and entities;but it can still retain the status of "public service ship". The study found that the legal attributes of ships depend on special arrangements by the government. Meanwhile, the rights(powers) and pressures(obligations) of ships should be corresponding. At present, the laws and documents of China with legal effect have not yet defined whether the China Coast Guard ship is a warship or not. The general practice of the international community, the relevant provisions of international conventions, and the functional tasks of our country’s government departments and armed forces organizations should be considered to perfect relevant legal guarantees and make prudent decisions.