军舰内水豁免权法律地位探析

On legal status of immunity right of warships which sail in other states' internal waters

鉴于《联合国海洋法公约》第32条、第58条第2款和第95条已分别授予了军舰在他国领海、专属经济区和公海享有管辖豁免的权利,因而理论界及实践上对此存在的争议不大。但和平时期军舰经准许驶入他国内水时是否享有豁免权,在国际海洋法学界尚存较大争议。经综合考证可知,国际海洋法法庭对"自由号案"的判决表明,军舰应享有此类豁免权;相关国际法会议决议和国际条约对此类豁免权的态度是留存空白、予以规避或尚存矛盾。笔者认为,从适度前瞻的角度出发,采取支持该类豁免权的主张应该更符合国家长远利益。

According to the regulation of articles 32, 58 and 95 of the UNCLOS, the warship has the right to enjoy immunity in other states＇ territorial sea, EEZ and high seas, which is almost beyond dispute both in theory and in practice. However, whether warships which are permitted to pass the other countriesr internal waters enjoy the immunity right is an issue of controversy in international legal circles. After comprehensive research, it is found that the judgment of ＂ARA LIBERTAD＂ case of ITLOS reveals that the warship should enjoy such immunity, and the attitude of the resolutions of relevant international conferences and the relevant international treaties is to retain blank, to evade the substance of the issue or to remain contradiction. From the moderately perspective field of vision, the positive viewpoint conforms to the long-term interests of China.