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江西省新余市人民政府


新余市人民政府新余军分区关于印发支持驻市部队搞好后勤保障社会化暂行规定的通知


余府发〔2004〕8号



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现将《关于支持驻市部队搞好后勤保障社会化的暂行规定》印发给你们，请认真遵照执行。



二00四年三月三日

关于支持驻市部队搞好后勤保障社会化的暂行规定

为进一步推进驻市部队后勤保障社会化，根据《国务院中央军委关于推进军队后勤保障社会化有关问题的通知》（国发〔2002〕20号）、《江西省人民政府江西省军区关于印发进一步推进驻赣部队后勤保障社会化有关问题实施办法的通知》（赣府发〔2003〕12号）的要求，结合我市实际，制定如下暂行规定。
一、营房保障
1、驻市部队公寓区、军事行政区（除保密单位或部位外）、售房区及新建经济适用住房小区的营房维修、绿化美化、卫生保洁等管理要与军队营房保障体制脱钩，按照社会化、专业化、市场化的要求实行物业化管理，地方有关部门要给予支持。
2、城区内或靠近城区的驻市部（分）队的水电气供应并入市政管网。对需要水电增容、增加用水（电、气）指标、开通双路供电的，要给予优先解决。军人和军队职工住房的水电气应分户计量，执行当地居民的统一收费标准，由经营单位向用户收龋
3、对军队后勤保障社会化需要配套改造的项目，免征城市基础设施“四源”建设费（指自来水厂、煤气厂、供热厂和污水处理厂建设费）、建材发展基金和水电气的入网费、开口费、增容费、贴费以及其他专项建设费或配套费。
4、为适应国家住房制度改革和军队后勤保障社会化的要求，军人和军队职工购买住房的，逐步由社会供应。各级政府要把符合条件的军人和军队职工住房纳入当地经济适用住房建设和开发计划，满足部队需求。军人和军队职工在地方购买经济适用住房，符合当地购房条件的，当地政府要给予优先安排，享受国家有关税费减免政策。军人在地方工作的配偶购买所在单位具有经济适用住房性质的住房，同等条件下要优先安排。
二、交通运输保障
1、各级交通、公安、城建等部门和交通运输企业要按照《国防交通条例》的有关规定，优先安排军事运输，为军事交通运输提供便利的保障条件，迅速、准确、安全地完成任务，同时要做好保密工作；按照铁道部、总后勤部《关于印发〈铁路军事运输计费付费办法〉的通知》（〔1994〕后交字第403号）的有关规定，在运输价格上给予优惠。对交通不便、远离部队油库（站）的部（分）队，市、县石油公司要与受供部（分）队配合，确定油料供应点，保质保量地为部队提供及时有效的保障。在部（分）队遂行紧急任务时，要优先保障油料供应。
2、市、县交通管理部门要为驻军开设公交站点，把公交线路延伸至营区边界。军人（含军队离退休老干部）乘坐市内公交车（不含民营车）一律免费。
3、军用公路的维修养护，市、县（区）政府有关部门要积极给予支持。对以民用为主、现由军队管理的连接军事设施的公（道）路，无偿移交地方政府统一规划、管理和养护，确保畅通。
三、医疗保障
1、对驻市部队（武警）官兵及享受军队优惠医疗条件的随军家属的医疗，纳入地方医疗服务体系。政府主办的医院要免收挂号费，对符合基本医疗保险规定的就医检查费、治疗费、手术费、住院费予以优惠，对急诊、危重伤病员应先救治后收费；要积极创造条件，开设军人病房，为部队官兵提供优质服务。
2、驻市73346部队、县（区）人武部、军代处（室）、武警（消防）中队、光端通信站的军（警）官及享受军队优惠医疗条件的随军家属有条件的要尽量参加当地医疗保险，各级医疗保险主管部门要积极提供方便，参加保险的费用由军（警）官所在单位解决。
3、驻市部队职工参照新余市城镇职工基本医疗保险办法参加社会医疗保险，参加保险的费用由军（警）官所在单位解决。
四、军队职工分流安置
1、原由军队承担的服务保障任务移交地方单位后，参与这项服务保障工作的原有军队职工随同移交，其劳动、人事、工资和社会保险关系随同转移。凡接收安置军队职工达到规定比例的新办企业，参照财政部、国家税务总局《关于企业所得税若干优惠政策的通知》（〔94〕财税字第001号）的有关规定，享受国家有关企业所得税的减免政策。
对以安置军队职工为主、具有独立法人资格、与军队彻底脱钩的经济实体和自谋职业的军队职工投资兴办的经济实体，比照《国家税务总局关于中央各部门机关后勤体制改革有关税收政策具体问题的通知》（国税发〔2002〕32号）的有关规定，给予税收优惠政策，具体办法按照财政部、税务总局制定的有关规定执行。
各级政府要在工商登记、场地安排等方面给予支持和照顾，对各种收费给予优惠。银行在资金信贷方面要给予支持。
市、县（区）民政部门要加大对无军籍退休退职职工移交安置的力度，积极协调，妥善做好工作。
2、各级政府和有关部门要把驻市部队职工分流安置工作纳入地方用工、培训、再就业管理体系。鼓励军队职工自谋职业和自主创业。人事、劳动保障部门要在职业介绍、转岗培训、提高再就业能力等方面为他们创造条件，优先吸纳部队职工。承揽部队服务项目的地方服务保障单位，要以吸纳部队职工为主。把与地方通用专业的军队职工培训、专业技术等级考核、评定等纳入地方培训、考核、评定管理体系，军队不再单独组织。
3、对驻市部队职工，按照国家有关规定实行养老、医疗、失业等社会保险，执行属地政策，实行社会化管理。劳动保障部门要积极支持和指导驻市部队职工参加社会保险。分流安置到地方的职工，其连续工龄视同社会保险缴费年限，享受当地投保职工同等待遇，军队原单位和职工本人不再补缴社会保险费。
五、组织领导
1、军队后勤保障社会化是解决军队办社会问题、加强军队质量建设的有效途径。推进驻市部队后勤保障社会化，是军地双方共同的责任。各级政府要站在战略全局的高度，把推进驻市部队后勤保障社会化作为促进军队现代化、正规化建设和我市“双拥共建”工作的重要内容，列入重要议事日程，纳入当地经济社会发展计划，为推进驻市部队后勤保障社会化创造条件，提供服务，在政策、资金上给予必要的支持。要按照“政府部门主导、军队组织实施、社会力量参与、市场机制运作”的原则，加强组织领导，建立有效机制，狠抓工作落实，确保驻市部队后勤保障社会化顺利进行。
2、军地各有关成员单位要积极主动，密切配合，认真负责地做好支持驻军后勤保障社会化相关工作。各级工商、物价、建设、质检等部门要把承担驻市部队后勤保障社会化任务的地方单位纳入监管范围，对其资质资信、技术能力严格把关，对其经营管理、服务质量加强监督，及时发现和解决问题，为驻市部队后勤保障社会化提供优质服务。承担驻市部队后勤社会化保障的地方单位必须遵守国家和军队的有关政策法规，严格执行国家、军队的有关技术标准和规范，认真履行合同，自觉接受军队和地方职能部门的监督管理。驻军单位与承担军队后勤社会化保障的单位发生纠纷时，各级政府及其职能部门要会同驻军有关部门积极做好调解工作。



Reviews on the principle of effective nationality

孙倩
I. Introduction
In a world of ever-increasing transnational interaction, the importance of individual protection during the processes concurrently increases. Nationality is the principal link between individuals and states but also is the bridge connecting individuals with international law. It is just through the linkage of nationality can a person enjoy diplomatic protection by his parent state. But due to double nationality, there are lots of difficulties to effective diplomatic protection of individuals. The principle of effective nationality was formed through the judicial practice of international court of justice. What is the meaning of the principle of effective nationality? Is it a perfect theory in the face of diplomatic protection of dual national? In this article, the author will introduce the concept of this principle and give her opinions on it.
II: The concept of principle of effective nationality
Nationality of an individual is his quality of being a subject of a certain state. Nationality is of critical importance to individuals, especially with regard to individuals abroad or their property. Firstly, it is the main link between individual and a state. It is evidence that one can be protected by his parent state.
Secondly, to some extent, individuals are not the subjects of international law, so they cannot directly enjoy the rights and undertake responsibilities coming from international law. It is through the medium of their nationality that individuals can normally enjoy benefits from international law.
In principle, nationality as a term of local or municipal law is usually determined by the law of particular state. Each state has discretion of determining who is and who is not, to be considered its nationals. However, there is no generally binding rules concerning acquisition and loss of nationality, and as the laws of different states differ in many points relating to this matter, so it is beyond surprising that an individual may process more than one nationality as easily as none at all. But whether each granted nationality owned by these dual nationals has international effects is in doubt. In another word, the determination by each state of the grant of its own nationality is not necessarily to be accepted internationally without question. Especially, when a dual national seeks diplomatic protection in some third state, that state is not answerable to both of states of his nationality but only one of them. In this situation, the third state is entitled to judge which nationality should be recognized.
As stated in Art1 of the Hague Convention of 1930 on certain questions relating to the conflict of nationality laws, while it is for each state to determine under its own law who are its nationals, such law must be recognized by other states only “in so far as it is consistent with international conventions, international custom, and the principle of law generally recognized with regard to nationality”. In the “Nottebohm” case, the International Court of Justice regard nationality as: ‘a legal bond having as its basis a social fact of attachment, a genuine connection of existence and sentiments, together with the existence of reciprocal rights and duties. It may be upon whom it is conferred, either directly by the law or as a result of an act of the authorities, is in fact more closely connected with the population of the state conferring nationality than with that of any other state’ That is what is called the real and effective nationality. Deriving from the court’s opinion, the principle of effective nationality came into being. The essential parts of effective and real nationality are that which accorded with the facts, which based on stronger factual ties between the person concerned and one of the states whose nationality is involved. Different factors are taken into consideration, and their importance will vary from one case to the next: the habitual residence of the individual concerned is an important factor, but there are other factors such as the centre of his interests, his families, his participation in public life, attachment shown by him for a given country and inculcated in his children, etc. According to this principle, no state is under obligation to recognize a nationality granted not meeting the requirements of it. In the Nottebohm case, International Court of Justice first enunciated this principle and denied Liechtenstein the right to protect Nottebohm.
III． Nottebohm case and reviews on the principle of effective nationality
In the Nottebohm case, involving Liechtenstein and Guatemala, the former sought restitution and compensation on behalf of Nottebohm for the latter’s actions allegedly in violation of international law.
Nottebohm, a German national resident in Guatemala, had large business interest there and in Germany. He also had a brother in Liechtenstein, whom he occasionally visited. While still a German national, Nottebohm applied for naturalization in Liechtenstein on October 9, 1939, shortly after the German invasion of Poland. Relieved of the three-year residence requirements, Nottebohm paid his fees and taxes to Liechtenstein and became a naturalized citizen of Liechtenstein by taking an oath of allegiance on October 20,1939, thereby forfeiting his German nationality under the nationality law of Liechtenstein. He returned to Liechtenstein early in 1949 on a Liechtenstein passport to resume his business activities. At his request, the Guatemalan ministry of External Affairs changed the Nottebohm entry in its Register of Aliens from “German” to “Liechtenstein” national. Shortly afterward a state of war came into existence between the USA and Germany and between Guatemala and Germany. Arrested in Guatemala in 1943, Nottebohm has deported to the USA, where he was interned as an enemy alien until 1946. Upon his release, Nottebohm applied for readmission to Guatemala but was refused; therefore, he took up residence in Liechtenstein. Meanwhile, the Guatemalan government, after classifying him as an enemy alien, expropriated his extensive properties without compensation.
Liechtenstein instituted proceedings against Guatemala in International Court of Justice, asking the court to declare that Guatemala had violated international law “in arresting, detaining, expelling and refusing to readmit Mr. Nottebohm and in seizing and retaining his property”. The court rejected the Liechtenstein claim by a vote of 11 to 3, declaring that Nottebohm’s naturalization could not be accorded international recognition because there was no sufficient “bond of attachment” between Nottebohm and Liechtenstein.
The Nottebohm decision denied the competence of Liechtenstein to protect a naturalized citizen and the loss of Nottebohm could not be remedied. The application of the “genuine link” theory, borrowed from the very different context of dual nationality problems, has the unfortunate effect of depriving an individual of a hearing on the merits and the protection by a state willing to espouse his claim in the transnational arena. The net effect is an immense loss of protection of human rights for individuals. Such a decision runs counter to contemporary community expectations emphasizing the increased protection of human rights for individuals. If the right of protection is abolished, it becomes impossible to consider the merits of certain claims alleging a violation of the rules of international law. If no other state is in a position to exercise diplomatic protection, as in the present case, claims put forward on behalf of an individual, whose nationality is disputed or held to be inoperative on the international level and who enjoys no other nationality, would have to be abandoned. The protection of the individual which is so precarious under the international law would be weakened even further and the author consider that this would be contrary to the basic principle embodied in Article15 (2) of the Universal Declaration of Human Right. As a matter of human rights, every person should be free to change his nationality. Thus the Universal Declaration of Human Right states that ‘everyone has the right to a nationality’ (Art.15 (1)).The right to a nationality can be interpreted as a positive formulation of the duty to avoid statelessness. The duty to avoid statelessness is laid down in various international instruments, in particular in the 1961 Convention on the Reduction of Statelessness. The term statelessness refers to the “de iure stateless persons” rather than “de-facto stateless persons”. If it is a free choice and if this nationality is to be a benefit rather than a burden to the individual, it should follow that he has the right to renounce one nationality on acquiring a new one. Furthermore, refusal to exercise protection is not accordance with the frequent attempts made at the present time to prevent the increase in the number of cases of stateless persons and provide protection against acts violating the fundamental human rights recognized by international law as a minimum standard, without distinction as to nationality, religion or race. It is unfortunately not the case. While the Nottebohm decision denied the competence of Liechtenstein to protect a naturalized citizen, the Flegenheimer case involved the denial of protection to a national by birth, when and where will the principle of effective nationality be used? This is a question that needs to be thought over. From the standpoint of human rights protection, the application of this principle should be strictly limited.
VI. Conclusion
Nationality is within the domestic jurisdiction of the State, which settles, by its own legislation, the rules relating to the acquisition of its nationality. It is sometimes asserted that there must be a genuine and effective link between an individual and a state in order to establish a nationality which must be accepted by other states. It is doubtful, however, whether the genuine and effective link requirement, used by the International Court of Justice in the Nottebohm-Case in order to deny Liechtenstein’s claim to exercise protection, can be considered as a relevant element for international recognition of nationality or as a requirement of a valid naturalization under public international law. It is frequently argued that in the absence of any recognized criteria the attribution of nationality must be considered as arbitrary and that there must be some kind of a personal and territorial link. The rule, however, although maintained in state practice, has been gradually diminished in its importance due to one exception, which concerning the raising of claims in case of human rights protection, especially to dual nationals who suffers injury in the third state and cannot be protected by his origin nationality state.

References
1, Bauer, O. (2001, first published in 1907). The Question of Nationalities and Social Democracy. Minneapolis: University of Minnesota Press.
2, ICJRep , 1995, P4, atP23
3, SIR ROBERT JENNINGS & SIR ARTHUR WATTS Oppenheim’s International Law, Longman Group UK LIMITED AND Mrs.Tomokohudso, 1992