摘要(Abstract)：
依据海洋规则维系海洋秩序,包括合理地开发和利用海洋的空间和资源,是国际社会的普遍要求。现代海洋法体系中的《联合国海洋法公约》在体系上具有全面性和综合性,是必须维系和遵循的重要海洋法规则。本文结合《联合国海洋法公约》体系的发展阶段,并在分析其主要内容、核心原则后,阐述了中国主要依据《联合国海洋公约》体系所蕴含的原则和精神在国内海洋法的制定和完善过程中的具体实践,指出了我国在海洋法制度中存在的问题和面临的挑战,强调了我国应结合《联合国海洋法公约》体系的发展特点和趋势并联系其他国家实践经验,进一步丰富和完善国内海洋法制的重要性,尤其指出了新时代我国应在维系和构筑海洋秩序、制定和实施海洋规则中实现角色和定位的转换。这种转换角色具有艰巨性和困难性,要实现这些目标,必须强化国内海洋体制机制建设,这是我国建设海洋强国、综合管理海洋事务的重要保障和必由之路。
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基金项目(Foundation): a phased research result of a major project of China Association of Marine Affairs and Academy of Ocean of China, entitled Research into the Marine Exploitation and Utilization System under the Framework of the Law of the Sea (CAMAZDA201701);;
a general project of Shanghai Planning Office of Philosophy and Social Science,entitled Marine Policies and Legal System in the New China: Review and Prospect (2017BHB005)
作者(Author): 金永明;Chen Ling;
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参考文献(References)：
- 1 The modern system on the law of the sea herein specially refers to written laws or treaties on the basis of compiling customary international law.Among them,the system of Geneva Conventions on the Law of the Sea includes four conventions which are the Convention on the Territorial Sea and the Contiguous Zone of 1964,the Convention on the High Seas of 1962,the Convention on Fishing and Conservation of the Living Resources of the High Seas of 1966,the Convention on the Continental Shelf of 1964.See INTERNATIONAL LAW TEACHING AND RESEARCH OFFICE OF LAW DEPARTMENT OF PEKING UNIVERSITY,COMPILATION OF MATERIALS ON THE LAW OF THE SEA,at 197-260(People’s Publishing House,1974).In the First UNConference on the Law of the Sea,besides the four Geneva conventions on the law of the sea,the Optional Protocol of Signature concerning the Compulsory Settlement of Disputes of 1962 was also passed,but it is not a part of the Geneva Conventions on the Law of the Sea because its article 5 sets forth that this protocol shall remain open for signature by all States who become Parties to any convention on the law of the sea adopted by the UNCLOS and is subject to ratification where necessary,according to the constitutional requirements of the signatory States.
- 2 UNITED NATIONS CONVENTION ON THE LAW OF THE SEA,at http://www.un.org/depts/los/reference_files/status2018.pdf(Last visited on August 23,2018).
- 3 See article 26 of the Vienna Convention on the Law of Treaties and article 300 of the UNCLOS.
- 4 The relationship between the Agreement on Implement of Part XI and the UNCLOS is set forth in paragraph 1 of article 2 of the Agreement on Implement of Part XI,while the relationship between the Implementation Agreement on Straddling Fish Stocks and the UNCLOS is set forth in article 4 of the Implementation Agreement on Straddling Fish Stocks.
- 5 Jin Yongming,On the Conservation and Sustainable Use of Marine Biological Diversity of Areas beyond National Jurisdiction,9Journal of Social Sciences 12-21(2018).
- 6 For details on the development and challenges in theory and practice of such three organizations created according to the UNCLOS,See Jin Yongming,On the Development and Challenges of the Law of the Sea,3 Southeast Asian Affairs 1-10(2015).
- 7 CJ Reports of 1969,para.96,51
- 8 ICJ Reports of 1978,3-83.Also see SHIGEYOSHI OZAKI,AEGEAN SEA CONTINENTAL SHELF CASE,in INTERNATIONALCOURT OF JUSTICE:ITS JUDGMENTS AND ADVISORY OPINIONS VOL.II(1964-1993),at 129 and 146(Ribot Hatano,Shigeyoshi Ozaki&Kokusai Shoin ed.,International Academy,1996).
- 9 See article 2 of the Convention on the High Seas and article 87 of the UNCLOS.
- 10 See article 1 of the Convention on the High Seas and article 86 of the UNCLOS.
- 11 Paragraph 2 of article 60 and paragraph 2 of article 146 of the UNCLOS.With regard to marine scientific research,article 240 of the UNCLOS sets forth both the content and the principles and paragraph 2 of article 246 of the UNCLOS indirectly shows its definition.Article 5 of the Convention on the Continental Shelf,according to the nature of marine scientific research,divides it into two types:the first one is the basic marine research just for scientific purpose,i.e.,purely marine scientific research;the second one is the practically marine scientific research for the economic purpose of exploring and exploiting resources of the continental shelf.Meanwhile,the requirements for the two different natures of marine scientific research are different.For the purely marine scientific research,the principle of freedom of the high seas may be applicable only when the research is carried out with the intention of open publication;for the practical marine scientific research,the consent of the coastal State shall be obtained.In addition,the coastal State shall not normally withhold its consent if the request is submitted with a view to purely scientific research into the physical or biological characteristics of the continental shelf;while the coastal State has a great discretion in approving or rejecting the application for practically marine scientific research.See SOUJI YAMAMOTO,COMPARATIVE STUDY ON DOMESTIC LEGAL SYSTEM CONCERNING MARINESCIENTIFIC RESEARCH IN THE EXCLUSIVE ECONOMIC ZONE AND THE CONTINENTAL SHELF,in INVESTIGATIONREPORT ON VARIOUS DOMESTIC LEGAL SYSTEMS DEALING WITH MARINE SCIENTIFIC RESEARCH IN THE EXCLUSIVEECONOMIC ZONE AND THE CONTINENTAL SHELF,at 2-3(The Japan Institute of International Affairs ed.,2000).
- 12 The articles in the system of the UNCLOS concerning due regard inclusive of reasonable regard and special consideration are paragraph 4 of article 27,paragraph 2 of article 56,paragraph 3 of article 58,paragraph 2 of article 87,and articles 147 to 149.
- 13 The International Court of Justice stated in the judgment of fisheries jurisdiction Case that with the increasing scope of fisheries activities,the result of the development of marine international law is that the former laissez-faire treatment of the living resources of the sea in the high seas has been replaced by a recognition of a duty to have due regard to the rights of other States and the needs of conservation for the benefit of all.See SHIGEKI SAKAMOTO,THE IMPACT OF EXPANDED FUNCTIONS OF REGIONALFISHERIES MANAGEMENT AGENCY ON THE DEVELOPMENT OF INTERNATIONAL LAW:FROM FISHERIESREGULATION TO MARINE MANAGEMENT,in THE PRACTICE OF INTERNATIONAL LAW,at 459(Shunji Yanai,Shinya Murase&Shinzansha ed.,Xinshan Press,2015).
- 14 LOUIS B SOHN ET AL.,THE LAW OF THE SEA IN A NUTSHELL,at 17(Fu Kuncheng et al.trans.,Shanghai Jiao Tong University Press,2014).
- 15 Chiyuki Mizukami,Formation of Freedom of the Sea(1),28(1)Hiroshima Law 1-2(2014).
- 16 See article 3,paragraph 2 of article 33,article 57,paragraphs 1,4 and 5 of article 76 of the UNCLOS.
- 17 Paragraph 3 of article 77 of the UNCLOS sets forth the rights of the coastal State over the continental shelf do not depend on occupation,effective or notional,or on any express proclamation.
- 18 See paragraph 8 of article 76,and article 153 of the UNCLOS.
- 19 According to the so-called Three-stage Delimitation Methodology,the first stage is to draw a provisional delimitation line or a median line;the second stage is to weigh relevant facts for achieving equitable results and discuss whether it is necessary to adjust the provisional equidistance line or median line;the last stage is to check the proportion between the length of the coastline and the size of allocated maritime zones and determine whether such line leads to unfair result for further adjustment.See ICJ Reports of2009,paras.115-122,101-03.
- 20 See paragraph 2 of article 140,articles 154 and 156,paragraph 1 of article 157,and paragraph 6 of article 311 of the UNCLOS.
- 21 WANG TIEYA,INTERNATIONAL LAW,at 19-20(Law Press,2004).
- 22 ROBERT JENNINGS&ARTHUR WATTS,OPPENHEIM’S INTERNATIONAL LAW,VOLUME 1(PEACE NINTH EDITION),at 31-32(Wang Tieya&Chen Gongchuo et al.trans.,Encyclopedia of China Publishing House,1995);TAKANE SUGIHARA,BASIC PRINCIPLES OF INTERNATIONAL LAW,at 77-78(Yuhikaku,2017).
- 23 Id.,78-79.
- 24 See paragraph 15 of article 67 of the Constitution.
- 25 Id.,article 81
- 26 Id.,paragraph 2 of article 67.
- 27 Id.,article 80.
- 28 There is no such provision as article 142 of the General Provisions in the General Principles of the Civil Law of 2017 adopted at the Fifth Session of the 12th National People’s Congress on March 15,2017.
- 29 ZENG LINGLIANG&RAO YIPING,INTERNATIONAL LAW,at 110-113(Law Press,2005).
- 30 Although there are disputes over the level and effectiveness between the international law and the domestic law,the treaty prevails over the domestic law from the legislation and practice of China.See ZHOU ZHONGHAI,INTERNATIONAL LAW,at 64-66(China University of Political Science and Law Press,2004).
- 31 STATEMENT OF PEOPLE’S REPUBLIC OF CHINA ON THE BASELINES OF THE TERRITORIAL SEA OF DIAOYU DAO ANDITS AFFILIATED ISLANDS,at http://www.gov.cn/jrzg/2012-09/10/content_2221140.htm(Last visited on September 11,2012).Meanwhile,in order to deal with the safety of flight in airspace of East China Sea including sea areas surrounding Diaoyu Dao,Ministry of National Defense of China announced the Declaration of China on Establishing Air Defense Zone of East China Sea on November23,2013 according to international customs and internal laws and published the Announcement of China of Rules on Identifying Aircrafts in Air Defense Identification Zone of East China Sea.DECLARATION OF CHINA ON ESTABLISHING AIR DEFENSE ZONE OFEAST CHINA SEA,at http://www.gov.cn/jrzg/2013-11/23/content_2533099.htm(Last visited on October 26,2018).ANNOUNCEMENTOF CHINA OF RULES ON IDENTIFYING AIRCRAFTS IN AIR DEFENSE IDENTIFICATION ZONE OF EAST CHINA SEA,at http://www.gov.cn/jrzg/2013-11/23/content_2533101htm(Last visited on October 26,2018)
- 32 The Law of the People’s Republic of China on the Exploration and Development of Resources in Deep Seabed Areas consists of 7 chapters and 29 articles.For details,see LAW OF THE PEOPLE’S REPUBLIC OF CHINA ON THE EXPLORATION AND DEVELOPMENTOF RESOURCES IN DEEP SEABED AREAS(including the explanation of the draft),at 2-12(China Legal Publishing House,2016).
- 33 See article 1 of the Law of the People’s Republic of China on the Protection of Islands.
- 34 Id.,article 2.
- 35 Id.,article 3.
- 36 Id.,article 30.
- 37 Id.,article 36.
- 38 For details on Chinese government’s submission concerning the outer limits of continental shelf in part of East China Sea,see COMMISSION ON THE LIMITS OF THE CONTINENTAL SHELF(CLCS)SELECTED DOCUMENTS OF THE COMMISSION,at http://www.un.org/depts/los/clcs_new/commission_documents.htm(Last visited on December 27,2014).
- 39 PERMANENT MISSION OF THE PEOPLE’S REPUBLIC OF CHINA TO THE UNITED NATIONS,at http://www.un.org/depts/los/clcs_new/submissions_files/jpn08/chn_6feb09_c.pdf(Last visited on October 26,2018).
- 40 No.CML/17/2009.
- 41 No.CML/8/2011
- 42 CHINESE SOCIETY OF INTERNATIONAL LAW,THE SOUTH CHINA SEA ARBITRATION AWARDS:A CRITICAL STUDY,at 34(Foreign Languages Press,2018).
- 43 THE DEPARTMENT OF BOUNDARY AND OCEAN AFFAIRS OF MINISTRY OF FOREIGN AFFAIRS OF PRC,COMPILEDDOCUMENTS OF CHINA DEALING WITH SOUTH CHINA SEA ARBITRATION,at 86-90(World Affairs Press,2016).
- 44 Relevant Procedures of China’s Participation in the Case of Advisory Opinion on the Responsibilities of the Sponsoring State of the International Tribunal for the Law of the Sea,in SELECTED CASES OF CHINA’S PRACTICES IN INTERNATIONAL LAW,at 53-80(Department of Treaty and Law of Ministry of Foreign Affairs of China ed.,World Affairs Press,2016).
- 45 For details on the aforesaid documents,see DEPARTMENT OF BOUNDARY AND OCEAN AFFAIRS OF MINISTRY OF FOREIGNAFFAIRS OF PRC,A COMPILATION OF THE DOCUMENTS ON THE ISSUES RELATED TO CHINA SEAS,at 69-94(World Affairs Press,2017).
- 46 For details on the so-called actions of freedom of navigation conducted by the USA warships in Xisha and Nansha sea areas,see HOWTHE USA WARSHIPS’ACTIONS OF FREEDOM OF NAVIGATION CHALLENGE THE INTERNATIONAL LAW,at http://m.thepaper.cn/newsDetail_forward_2249421(Last visited on October 18,2018).
- 47 There are five states(Cambodia,China,Sudan,Syria and Vietnam)in the international community claiming jurisdiction over safety affairs in the contiguous zone.See Raul(Pete)Pedrozo,Military Activities in the Exclusive Economic Zone:East Asia Focus,7(2)The Journal of Island Studies 79(2018).
- 48 For details on the rebuttal against the report of Limits in the Sea of the US Department of State,see Jia Bingbing,Rebuttal against the Fallacy of Argument on the Historic Rights in South China Sea in No.143 Limits in the Sea of the US Department of State,4 Journal of Law Review 76-82(2016).For details on the dotted line of South China Sea,see GAO ZHIGUO&JIA BINGBING,THE NINE-DASHLINE IN THE SOUTH CHINA SEA:HISTORY,STATUS AND IMPLICATIONS,at 1-49(China Ocean Press,2014).
- 49 For details on the comprehensive rebuttal against the South China Sea Arbitration Award,see CHINESE SOCIETY OF INTERNATIONALLAW,THE SOUTH CHINA SEA ARBITRATION AWARDS:A CRITICAL STUDY,at 1-395(Foreign Languages Press,2018).
- 50 The legislative mode refers to the method and way of compiling customary international law and developing it into a treaty.For example,item 1 of paragraph 1 of article 13 of the UN Charter states that the General Assembly shall initiate studies and make recommendations for the purpose of promoting international cooperation in the political field and encouraging the progressive development of international law and its codification.
- 51 Atsuko Kanehara,What Does a New International Legally Binding Instrument on Marine Biological Diversity of Areas beyond National Jurisdiction“under the UNCLOS”Mean?59(4)Sophia Law Review 53-73(2016).
- 52 PLAN ON DEEPENING THE PARTY AND THE COUNTRY’S INSTITUTIONAL REFORM ISSUED BY THE CENTRALCOMMITTEE OF CPC,at http://www.xinhuanet.com/politics/2018-03/21/c_1122570517.htm(Last visited on March 21,2018).DECISION ON THE EXERCISING OF THE MARINE RIGHT SAFEGUARDING AND LAW ENFORCEMENT FUNCTIONSAND POWERS BY THE CHINA COAST GUARD ADOPTED BY THE STANDING COMMITTEE OF THE 13TH NATIONALPEOPLE’S CONGRESS ON JUNE 22,2018,at http://www.npc.gov.cn/npc/xinwen/2018-06/22/content_2056585.htm(Last visited on June 22,2018).
