海上执法与武力使用——如何适用比例原则

Law Enforcement at the Sea and Use of Force—How to Apply the Principle of Proportionality

"新星"号事件再次引发了人们对海上执法使用武力的关注,俄执法机构的实施武力的行为违反了作为国际习惯法的比例原则。为维护海洋权益,各国有权在管辖海域采取执法措施,而执法过程中不可避免地会出现使用武力的情况,问题是该如何合理地实施。武力使用一般被区分为国际关系中的使用和国内执法中的使用。前者受到《联合国宪章》等国际法的调整,后者则更多地受到国内法的规制,但无论何种武力使用都要遵循一个为各国所认可的基本法律原则——比例原则的约束。在国际社会的立法实践以及多起国际司法案例中,作为调整武力使用的比例原则被一再地引用和申明,该原则已经成为国际习惯法,应为所有海上执法国家所遵从。国际和各国法律文件以及司法案例,为海上执法中的比例原则提供了具体的标准。

Once again,the " New Star" incident has made the issue of use of force in law enforcement activities at the sea a hot topic.Forcible actions taken by the Russian law enforcement officials have violated the principle of proportionality,which is considered part of the relevant customary international law.To protect their marine sovereign rights and interests,countries are expected to take forcible actions.The issue is how they should reasonably behave when they do so.In general,use of force may be categorized into two types—in international affairs,and in domestic matters.The former is adjusted by international law,such as the "UN Charter",and the latter is basically regulated by domestic laws.However,both of them should comply with the principle of proportionality,which is a basic,general legal principle as recognized by various civilized nations.The principle has already been repeatedly applied and affirmed to adjust the use of force in the international community and has become part of the customary international law.It should be followed by all the countries for their law enforcement activities at the sea.Through international and domestic statutes as well as juristic precedents,details of the principle applicable to the law enforcement activities at the sea have been established.