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CHINA LEGAL SCIENCE 2020年第2期 | 海洋命运共同体的法律实施路径研究
日期:20-04-13 来源:CHINA LEGAL SCIENCE 2020年第2期 作者:zzs

CHINA LEGAL SCIENCE 2020年第2期 | 海洋命运共同体的法律实施路径研究

ON LEGAL IMPLEMENTATION APPROACHES TOWARD A MARITIME COMMUNITY WITH A SHARED FUTURE


Chang Yenchiang


TABLE OF CONTENTS



I. QUESTION PRESENTED

II. THE CONNOTATION AND DENOTATION OF A MARITIME COMMUNITY WITH A SHARED FUTURE

A. A Maritime Community of Shared Interests

B. A Maritime Community with Shared Values

C. A Maritime Community with a Shared Future


III. LEGAL BASIS FOR A MARITIME COMMUNITY WITH A SHARED FUTURE

A. Interest Dimension: The Ocean as the Carrier of the Common Interests of the International Society

B. Value Dimension: The Implication of the Idea of Good Marine Governance

C. Responsibility Dimension: Retrospection on Response to the Global Maritime Issues


IV. ‘POINT-LINE-DIMENSION’ GEOGRAPHIC MODE

V. INTEGRATED SHORT-MEDIUM-LONG TERM PLANNING

VI. CONCLUSION


President Xi Jinping proposed to build ‘a maritime community with a shared future’ in April 2019. It is a political concept, however, which needs further interpretation. The fundamental questions to be answered are: What is its legal basis? What are its main contents? In what way can it be implemented? After analysis, this paper concludes that ‘a maritime community with a shared future’ is a way toward the goal of ‘a community with a shared future for humankind’, which has a solid legal basis. It also suggests that the building of ‘a maritime community with a shared future’ should be based on ‘point-line-dimension geographical mode’ with an integrated ‘short-medium-long term plan’.

I. QUESTION PRESENTED

On April 23, 2019, while meeting with heads of foreign delegations invited to participate in multinational naval events in Qingdao, marking the 70th anniversary of the founding of the Chinese People’s Liberation Army Navy, President Xi Jinping, who is also the Chairman of the Central Military Commission, proposed to build ‘a maritime community with a shared future.’ President Xi Jinping pointed out that the earth is not divided into islands by the oceans, but is connected by the oceans to form a community with a shared future, where all the countries share weal and woe in the marine security, economy, culture, and ecological environment, and the like. It is a political concept, however, which needs further interpretation. The fundamental questions to be answered are: What is its legal basis? What are its main contents? In what way can it be implemented? After analysis, this paper concludes that ‘a maritime community of a shared future’ is a way toward the goal of ‘a community with a shared future for humankind’, which has a solid legal basis. It also suggests that the building of ‘a maritime community with a shared future’ should be based on ‘point-line-dimension geographical mode’ with an integrated ‘short-middle-long term plan’.

II. THE CONNOTATION AND DENOTATION OF A MARITIME COMMUNITY WITH A SHARED FUTURE

The prerequisite for further illustration of the maritime community with a shared future is the clarification of its connotation and denotation. The concept of a maritime community with a shared future is constantly enriched and deepened rather than being developed overnight. The presentation of this concept for the first time is the reflection of the concept of a community with a shared future for humankind in handling the international maritime relationships, having the same connotation with a community with a shared future for humankind. With the oceans as the carrier, the main contents of a maritime community with a shared future include the maritime community of shared interests, values, and the future. 

A. A Maritime Community of Shared Interests

As General Secretary Xi Jinping said: ‘The oceans sustain life, connect the world, and facilitate development.’ The oceans nurture humankind while people’s aspirations for a better life cannot be satisfied without the nurture of the oceans. In the era of continuous enhancement of economic globalization, the industrial chain of the global marine economy is huge and cooperation and collaboration among countries are unprecedentedly complicated. Among the over 190 countries in the world, 150 are coastal countries, seeking for their different interests. Common marine interests are the tie linking those countries. On such a basis, a community with a shared future is formed and plays an important role in settling disputes, facilitating maritime connectivity among countries around the world, and maintaining maritime peace and development.

The common interests of cooperation, development, peace, and justice are the goals sought for by all the countries in the maritime community of a shared future, which, however, are not against the interests sought for by the related countries respectively. On the contrary, what is more concerned by the maritime community with a shared future is the principle to be followed after the interests sought for by different countries are fully considered in order to take the maximized interests of different countries into the stable institutional framework.

At the national level, the earlier maritime powers contending to be the hegemony at sea were only concerned about their national interests. The development of the international maritime law at the earlier stage centered on the coordination among those maritime powers in terms of their marine interests. In modern times, the plundering of interests among several maritime powers gradually developed into the distribution of interests among maritime groups around the world. Although at that time, a mature ‘community’ has not been established, cooperative awareness has been aroused and cooperative consensus has been reached in reality. In the 21st Century when the global maritime situation is becoming more and more complicated, the national marine interests are not only the possession of the available marine resources by the countries around the world but also the meeting of global maritime challenges through cooperation among the countries around the world. Bilateral, multilateral, or regional communities of shared interests among the countries around the world are gradually formed to meet the challenges brought about by the oceans. The presentation of the concept of a maritime community with a shared future improves the basis for the cooperation among the countries around the world, changing it from ‘common interests’ into ‘coexistence of common interests with joint responsibilities’, and enhances the bilateral, multilateral, or regional cooperation among the countries around the world to become the global cooperation.

B. A Maritime Community with Shared Values

A maritime community with shared values first manifests the common value pursuit of the countries around the world. The most important significance of building a maritime community with shared values is to learn about the demands of different countries for marine interests, seek common ground and properly handle differences, peacefully settle and eliminate maritime disputes. From the perspective of modern maritime law, the connotation of such common value pursuit can be reflected by the variety of value goals of the international maritime laws. In the international maritime law documents and the connotation of a community with a shared future for humankind, we can find all these common value concepts of ‘peace, development, cooperation, win-win outcomes, equity, and justice’.

What our country seeks is not capital expansion but the construction of a peaceful, open and inclusive marine environment. From the perspective of modern politics, many countries are still faced with a variety of risks and unstable marine environment such as rampancy of maritime hegemonism, scramble for marine resources, unavoidable natural disasters, and so on, which makes maritime security and peace the most important value pursuit in the maritime field.

General Secretary Xi Jinping said: ‘ The oceans sustain life, connect the world, and facilitate development.’ While countries around the world are being related more closely than ever before, the oceans are the ties to connect those countries and an important factor influencing the global economy as well. In today’s world, where countries are closely related to each other in the economy, exploitation of the marine economy will inevitably involve every country. Any single country cannot develop separately. In the marine economic chain, cooperative development is the essential common value pursuit.

In terms of the elements of rule of law on the oceans, the connotations of ‘rule of law’, ‘responsibility’, and ‘justice’ manifest the values of equity and justice, which are also the required elements for balancing the power of different countries to avoid hegemonism and to struggle for peaceful environment in the complicated international maritime situation. Without fair and just rule and order, hegemonism will certainly have a hotbed to develop.

Thus, the connotation of a maritime community with shared values is to seek for common values of peace, development, cooperation, win-win outcomes, equity, and justice, which is the important guideline in value pursuit for a maritime community with a shared future in the new era, the unity of values for the countries around the world to confront problems and risks of all kinds, and the important approach to the maritime peace and development.

C. A Maritime Community with a Shared Future

A maritime community with a shared future is the detailed and deepened community with a shared future for humankind and the explicit manifestation of a community with a shared future in the field involving the oceans. It shows that the future of the oceans and the future of humankind are inseparable from each other. The concept of a maritime community with a shared future embodies humankind’s pursuit of and aspiration for peace, development, equity, and justice and the ideal goal of harmony between humankind and the oceans with the dialectical unity of independent individual countries and the community. A maritime community with a shared future closely links the life of separate sea creatures and the future of the oceans as a whole with the life of human beings, which symbolizes that China’s understanding of harmony between humankind and the oceans has reached a new level.

The connotation of a maritime community with a shared future is rather rich. First, humankind and the oceans are combined to form a community with a shared future. General Secretary Xi Jinping pointed out: ‘We should cherish oceans as much as we cherish our lives.’ In the said community, humankind and the oceans are equal and independent. However, they are not unrelated to each other. Instead, they are linked and closely related to each other. Second, people all over the world join together to form a community with a shared future in addressing various challenging maritime issues. The risks in the oceans are becoming more and more complicated since serious natural disasters such as typhoons and tsunami happen frequently and issues of marine ecological environment and climate change are becoming more and more conspicuous. Under such circumstances, the countries around the world must be united together to maintain maritime security and the ecological environment jointly. Third, the oceans on the earth is a community with a shared future. It is known to us that the oceans cover 71 percent of the surface area of the earth and that they are geographically interconnected with each other and constitute an integrated marine ecological system.

The focus of a maritime community with a shared future is that people of all countries should closely joint together and share weal and woe. The core of a maritime community with a shared future is that people of all countries should jointly meet the challenges brought about by issues concerning the global maritime affairs, attach more importance to multilateralism and abandon unilateralism in maritime affairs, actively call for the contribution of every state to the global maritime affairs. From the perspective of the humankind, the connotation of a maritime community with a shared future includes but is not limited to common maritime security, shared maritime well-beings, common marine ecological civilization, and jointly enhanced inter-connectivity in handling maritime affairs.

First, it is the common maritime security. The connotation of maritime security has been expanded unprecedentedly and the demand for maritime public security is more and more urgent because of the rampant piracy, transnational crimes, terrorism and the constant disputes or regional conflicts over marine interests caused by sovereignty over territorial waters and exploitation and exploitation of marine resources. Various complicated maritime disputes spring up and tend to be more and more serious. Just as General Secretary Xi Jinping said in his speech delivered on April 23, ‘Peace and tranquility of the oceans is crucial for the security and interests of countries around the world, and this requires joint efforts to maintain and cherish.’ A maritime community with a shared future emphasizes that people from countries around the world should stick together through thick and thin, firmly observe the ‘common, comprehensive, cooperative, and sustainable new security concept’, and promote that countries around the world should settle maritime disputes through dialogue and consultation to create peaceful marine environment jointly.

Second, it is the shared maritime well-being. General Secretary Xi Jinping pointed out that ‘cooperation in market, technology, information, and culture with oceans as the carrier or the tie has become more and more close.’ He emphasized that the reason why China proposed jointly building the 21st Century Maritime Silk Road was to facilitate maritime connectivity, pragmatic cooperation in various fields and the development of a ‘blue economy’, to promote the integration of maritime cultures and to improve maritime well-beings.

Third, it is the common marine ecological civilization. With the development of the global marine economy, the exploitation range of maritime resources is wider and wider. As a result, marine ecological problems are becoming more and more obvious. The conflict between maintaining the stable development of the production chain of the marine economy and safeguarding the sustainability of the ecological environment of marine resources is more intensified. Therefore, the importance, difficulty, complexity, and urgency of constructing marine ecological civilization are self-evident. The core proposition of marine ecological civilization is to ‘establish and maintain the harmonious relationship between the mankind and the oceans’, which does not imply that the marine ecology must remain the same for the development of human society or that the development and the change of the oceans must be subject to the needs of the progress of human society. Instead, the comprehensive development of the humankind and the marine ecology should be balanced and in orderly harmony and unity.

Fourth, it is the enhanced maritime inter-connectivity. General Secretary Xi Jinping pointed out: ‘The blue planet that humans inhabit is not divided into islands by the oceans, but is connected by the oceans to form a community with a shared future.’ The oceans do not separate the countries around the world. Instead, they make them connected and cooperate. International cooperation in the maritime fields is an important integral part of the 21st Century Maritime Silk Road. In the past two years, China has conducted friendly cooperation in various forms with many countries along the maritime silk road in the fields of marine spatial planning, forecast for reduction of marine disasters, international polar affairs, deep-sea and oceans,seawater desalination, ocean satellite, and so on.

III. LEGAL BASIS FOR A MARITIME COMMUNITY WITH A SHARED FUTURE

With the accurate understanding of today’s international economic and political orders and a new insight of the international social basis, General Secretary Xi Jinping proposed the idea of building a community with a shared future for humankind and presented its connotation of ‘lasting peace, common security, common prosperity, openness and inclusiveness, cleanness and beauty’. He calls on the international society to insist on dialogue and consultation, co-construction and sharing, win-win cooperation, exchange and mutual learning, green and low-carbon development, and to make concerted efforts in five aspects including partnership, security pattern, economic development, cultural exchange, and ecology construction to build a community of a shared future for humankind. On October 18, 2017, General Secretary Xi Jinping addressed again in the Report of the 19th National Congress of the Communist Party of China to ‘insist on promoting the building of a community with a shared future for humankind’. On October 24, 2017, ‘to promote the building of a community with a shared future for mankind’ was written into the Constitution of the Communist Party of China. On March 11, 2018, ‘to promote the building of a community with a shared future for mankind’ was written into the newly amended Constitution of our country, which showed to the international society by means of the fundamental law the determination of our country to promote the building of a community with a shared future for mankind. As the guiding ideology and the governance philosophy of our country in participating in international affairs, the ideology of a community with a shared future for humankind has been gradually accepted by international society. At present, a community with a shared future has been written into the resolutions of international organizations and institutions such as the UN Committee on Social Development, the Security Council, the Human Rights Council, and the Disarmament and International Security (First Committee) of the UN General Assembly. Any concept cannot be put into practice without the safeguard of rules and regulations. As the planning of China for new international order, a community with a shared future for humankind has to be manifested and built through adjustment of international relations. The international maritime law is an important branch of international law, which is complete and independent. It is an important subject in the international maritime law field to introduce the concept of a community with a shared future for humankind into the marine governance rules. The concept of ‘building a maritime community with a shared future’ presented by General Secretary Xi Jinping is just the reflection of a community with a shared future for humankind in the maritime field. A maritime community with a shared future is the world outlook and the approach applied to the marine governance, which is under the guidance of global governance view and developed based on a community with a shared future for humankind. The concept of a maritime community with a shared future embodies the philosophical idea of dialectical unity between the individual and the community, the value system of peace, development, equity, and justice, and the goal of harmony between the mankind and the oceans, which are sought for by all human beings, as well as the idea of guiding the global marine governance with dialectical unity between the individual and the community.

The idea of a maritime community with a shared future originates from the Marxist historical materialism and focuses on the future and the fate of humankind. It will resolve both the conflict between humankind and the ocean and the conflict among human beings. Marx believed that the nature of human beings could only be manifested in the community and that an ideological community should be one with dialectical unity between the individual and the community. The idea of a maritime community with a shared future takes humankind and the ocean as a whole and adjusts the relationship among human beings and between humankind and the ocean by seeking the universal attributes of human beings. Such an idea can stimulate the subjects managing the global marine ecological environment to concern more about the interests of human beings on the whole and the healthy development of the oceans while caring about their interests, to resolve the conflict between the humankind and the ocean as a result of industrial civilization, and to achieve coexistence and harmony between the humankind and the ocean.

Before exploring the legal basis for a maritime community with a shared future, we have to systematically view the theoretical basis of the concept of a community with a shared future for humankind in modern maritime law. The primary driving force for building a community with a shared future for humankind is the demand for maintaining the common interests of the international society; the value basis for building a community with a shared future for humankind is the common values shared by the international society in increasingly close connection and communication; the internal safeguard of building a community with a shared future is the sense of joint responsibility brought about by collective understanding of global issues. The next part of this paper will analyze the significance of a community with a shared future for humankind in modern maritime law from three dimensions of common interests, common values, and joint responsibility to demonstrate the theoretical basis for the concept of a community with a shared future in modern maritime law.

A. Interest Dimension: The Ocean as the Carrier of the Common Interests of the International Society

While illustrating a community with a shared future for humankind, General Secretary Xi Jinping reiterates many times that ‘human beings have constituted an interdependent community with a shared future with highly integrated interests and coexistence with each other.’ The main intention manifested by the concept of a community with a shared future for humankind is the concern about the common interests of human beings. Under the general principle of the formation of international law, the manifestation of common intention goes after common interests, which results in the consensus among the member states by means of treaties. Against the background of globalization, there are related effects on the countries around the world which are interwoven with interests and share weal and woe with each other. Presentation of the concept of a community with a shared future for mankind against such background is the generalization and conclusion of the common interests of the international society. The development tendency of modern international law also shows the change from the concern about national interests to the concern about the common interests of the international society. In the marine governance field, it has the natural material basis with the ocean as the carrier of common interests of human beings to introduce the concept of a community with a shared future for humankind into the international law system and make it the concept of a maritime community with a shared future. The geographical adjustment scope of international law is the oceans connecting the world, which is divided by people into various types of waters in the legal sense. However, the integrity and the circularity of the waters make it possible for the ocean to be the carrier of the common interests of the international society. Global cooperation in marine governance has to be conducted in order to safeguard the effectiveness of marine governance so that the common interests of the international society can be maintained and peace, security, and common prosperity shared by the international society in the maritime field can be further promoted. In addition, at present, utilization of the oceans by the international society has been expanded from the areas within the limits of national jurisdiction to the areas beyond the limits of national jurisdiction. Consequently, the international law system has to be adjusted correspondingly to satisfy the common interests of the international society in a new round of redistribution of the marine ‘residual rights’ and reconstruction of international maritime order, to safeguard common prosperity, and to have a clean and beautiful ocean. Marine governance, especially governance on the waters beyond the limits of national jurisdiction involves the interests of all human beings, the main purpose of which is to guide, control and regulate by means of various systems the activities of the international law subjects in the maritime field and to maintain the common interests to the greatest extent. Presentation of the concept of a maritime community with a shared future helps international society reach an agreement on issues involving global marine governance.

From the historical perspective, human beings utilize the oceans in different ways at different times, such as the occupation of the oceanic space in the great navigation era and exploration and exploitation of the marine resources after World War II. Now, international society has increasingly realized the importance of sustainable utilization of marine resources. An international law system regarding the common interests of the international society is needed to safeguard the sustainable utilization of marine resources, especially the resources in the waters beyond the limits of national jurisdiction. Since the 1980s, to enact and to amend the legal system on the governance of the waters beyond the limits of national jurisdiction has become an important development tendency of modern international maritime law. Recently, new progress has been made in the systems on the high sea and the ‘area’ toward the direction both of protection, preservation and sustainable utilization of marine resources and of maintenance of the common interests of human beings. Since no laws are regulating the marine genetic resources beyond the limits of national jurisdiction, as the third treaty under the United Nations Convention on the Law of the Sea of 1982, the International Treaty on Conservation and Sustainable Use of Marine Biodiversity of the Area beyond the Limits of National Jurisdiction is being negotiated. The concept of a maritime community with a shared future to maintain and improve the well-being of human beings is compatible with the establishment and improvement of the systems mentioned above.

Part VII of the United Nations Convention on the Law of the Sea of 1982 has the provisions on the high seas with the principle of conditional freedom of the high seas. However, the provision of reservation and management of the high seas is only a guiding principle. Therefore, in 1995, the Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 relating to the Conservation and Management of Straddling Fish Stocks and High Migratory Fish Stocks (hereinafter referred to as the Agreement on Fish Stocks) sets out specific principles on the conservation and management of straddling fish stock and high migratory fish stocks beyond the limits of national jurisdiction. In practice, regional fisheries management organizations play a guiding role in the conservation and management of fishery resources of the high seas. The principle of freedom of the high seas tends to be gradually limited and relative, which is the result of the change of human beings in their understanding of the oceans from having a blindly optimistic view that marine resources are inexhaustible to being worried about marine resource exhaustion. Sustainable use of marine resources is the subject to be primarily considered for modern maritime order, which reflects the responsibility of the international society for conservation and sustainable use of biological resources of the high seas in terms of the common long-term interests, and which is also compatible with the concept of a maritime community with a shared future.

In recent years, with the development and popularization of the technology of fishing on the high seas, illegal, unreported, and unregulated fishing on the high seas or in the improperly regulated exclusive economic zones has seriously influenced the marine biodiversity. As a response to such a situation, the Food and Agriculture Organization of the United Nations (FAO) passed in 2001 the International Plan of Action to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing (hereinafter referred to as the IPOA-IUU). In order to guarantee implementation of the IPOA-IUU, FAO passed the Agreement on Port State Measures to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing in 2009, the Voluntary Guidelines on Flag State Performance in 2014, and the Voluntary Guidelines for Catch Documentation Schemes in 2017, to crack down by means of trade, illegal, unreported, and unregulated fishing. As a result, freedom of the high seas is further limited for the maintenance of international common interests. In practice, the establishment of protected areas on the high seas is also a limitation on the freedom of the high seas.

Part XI of the United Nations Convention on the Law of the Sea of 1982 sets out the ‘area’ system to carry out the principle of the common heritage of humankind and establishes ‘the paneled system’ under the supervision of the International Seabed Authority in exploring the mining resources in the said ‘area’. Due to the resistance of some developed countries, the 1994 Agreement Relating to the Implementation of Part XI of the United Nations Convention on the Law of the Sea of 10 December 1982 made a compromise and greatly reduced the obligations of the explorer. Subsequently, the International Seabed Authority made three ‘prospecting and exploration regulations’ successively to permit explorers to establish joint ventures with the department of enterprises, which opens up distance from the original system conception. Thus, it can be seen that the connotation of the common heritage of mankind is changing. However, its core spirit is still to conduct activities in the ‘area’ for the interests of human beings as a whole. What is more, the ‘area’ provision is based on the principle of the common heritage of humankind and one of its important purposes is to guarantee equal opportunity for all countries around the world, which is a specific institution reflecting a maritime community with a shared future in the international maritime law.

B. Value Dimension: The Implication of the Idea of Good Marine Governance

The reality of the interconnected international society with interwoven interests demands a set of common values concerning the needs of the countries around the world to support, maintain and consolidate the continued stability of the cooperation in the international society. The community with a shared future for humankind with value consensus as the link is a valuable community with a shared destiny for humankind. On September 28, 2015, in his speech at the general debate of the 70th Session of the UN General Assembly held at the UN Headquarters in New York, the US, which was titled Work Together to Build a New Partnership for Win-win Cooperation and a Community with a Shared Future, General Secretary Xi Jinping pointed out: ‘Peace, development, equity, justice, democracy and freedom are the common values of mankind and the lofty goals of the UN.’ A community with a shared future for humankind takes those common values of humankind as its pursuit. Its nature is compatible with the value orientation of such concepts as ‘common interests of mankind’ and ‘global governance’ promoted by modern international law.

The value pursuit of the community with a shared future for humankind is also embodied in the concept of good marine governance. At present, although the concept of good marine governance has not been put forward directly in the international legal practice, every element of such a concept has been manifested to a certain extent in the existing international legal documents, which embodies the value pursuit of the community with a shared future for humankind. For example, one of the elements of good marine governance is ‘the rule of law’. It requires that all the international legal rules and regulations must be publicized properly, be implemented justly and effectively, and be followed by decision-makers and governors in their decision-making. The second element is public participation. It embodies the value of ‘democracy and freedom’. In other words, the public should have the opportunity to participate in making decisions on marine governance, to express their concerns, and to have their interests manifested in the final decisions. The third element is ‘transparency’. It also embodies the value of ‘freedom’ and requires that decision-makers should have the standards and process of their decision-making known to the public. The fourth element is ‘decisions made based on consensus’. It embodies the value of ‘peace, equity, justice, democracy’. In other words, all the opinions of relevant parties involved should be considered in making decisions on marine governance. However, due to the efficiency of making international legal rules and regulations, consensus means the convergence of value orientation other than unanimity. The fifth element is ‘responsibility’. It embodies the value of ‘peace, development, equity, justice’. It requires that the members of the international society should properly perform their international duties and obligations. The sixth element is ‘equity and inclusiveness’. It embodies the value of ‘peace, equity, justice, democracy’ and requires that the rights and interests of each member of the international society should be respected and that the marine interests should be distributed fairly and appropriate concern should be given to disadvantageous groups. The seventh element is ‘responsiveness’. It embodies the value of ‘development, justice, democracy’. It requires that the international society should make decisions within a specified period of time to meet the demand of the public or the demand of the marine environment. The eighth element is ‘consistency’. It embodies the value of ‘peace, equity, justice, democracy’. It requires that decisions of agencies of different countries should be consistent with each other and rational at different times and in different institutes. For such purposes, a horizontal coordination institute needs to be set up to manage the marine governance with the function of conducting coordination among different countries.

It can be learned from the above analysis that, in terms of global marine governance issues, based on the consensus mentioned above, the international law subjects have the motive to seek for common ground and reserve differences, to have mutual understanding, and to be united to cooperate, and that good marine governance and a maritime community with a shared future have the same value pursuit and there is value basis to include the latter into the modern maritime law of which good marine governance is an ideal.

C. Responsibility Dimension: Retrospection on Response to the Global Maritime Issues

Responsibility and interest are closely related to each other because the common interests of humankind are sustainable. When the common interests are harmed or are likely to be harmed, joint responsibility will be brought about. The presentation of the concept of a community with a shared future for humankind can show a stronger sense of unity and urgency for human coexistence. The oceans take up 70.78 percent of the earth’s surface, which are the links connecting the world, provide humankind with rich biological and energy resources, and play an important role in adjusting the global climate. Protection of the marine environment and conservation and sustainable use of marine biodiversity are related both to the common interests of survival and development of human society and to the inter-generational equity in terms of the rights of future generations, which needs the joint efforts of the international society. However, the reality is that global maritime problems have piled up, including marine environmental pollution, marine ecological destruction, warming ocean and ocean acidification caused by climate change, and so on. Those problems are confronted by the international society and related to the common fate of the international society, which cannot be faced with and solved by one single state, and which requires human beings to foster the consciousness of a community with joint responsibility and the global marine governance view featuring ‘extensive consultation, joint contribution, and shared benefits’. A maritime community with a shared future shows concern about the common fate of humankind. To build a maritime community with a shared future is also the joint responsibility of the international society, especially in terms of global ecological environment issues which need the response of international law.

Part XII of the United Nations Convention on the Law of the Sea of 1982 provides in principle the states’ duty to protect and preserve the marine environment. Although there are no specific workable provisions, it emphasizes global and regional cooperation and attaches importance to technical assistance and preferential treatment for developing states. It embodies the spirits of promoting win-win cooperation and maintaining the common interests of the international society with appropriate favor to the disadvantaged states, which are compatible with the spirit of a community with a shared future for humankind. In international practice, marine environmental protection and preservation duties are mainly governed by the regional or special international treaties and domestic laws and regulations. Environmental issues cannot be solved separately, but in reality, international environmental laws develop on a case-by-case basis. The features of fragmentation and soft law of such laws can easily make them inconsistent with each other and impractical. Currently, the area in which maritime activities of different states are conducted is being expanded from the area within the limits of state jurisdiction to that beyond the limits of state jurisdiction. Besides, the short-term interests of different states have resulted in even more ‘tragedy of commons’. In such a difficult situation where the international environmental laws are fragmented and the administration agencies perform their functions in their ways, a suitable concept is needed to build a consensus of the international society on marine environmental protection and preservation. A maritime community with a shared future requires that countries have to consider the reasonable concerns of other countries while seeking for their interests, breaks out the traditional individualistic way of thinking which centers on nationality and state, advocates for consciousness of joint subjects identity, strengthen consensus on coexistence of all human beings, better makes up for the lack of value concept in terms of marine environmental protection and preservation, helps countries around the world shoulder responsibility for marine environmental protection, and makes the existing international marine environmental laws effectively implemented and improved.

If the international law focuses only on safeguarding the right to the area beyond the limits of state jurisdiction, the ‘tragedy of commons’ will be inevitable. Modern maritime laws impose on the international society members more and more marine environmental protection and preservation duties to strengthen the sense of community with joint responsibility, which is an inseparable institutional guarantee for building a maritime community with a shared future. Also, in light of the relativity of rights and obligations, a maritime community with a shared future is a community which not only enjoys rights but also assumes obligations, which is also manifested in the development of the modern maritime legal system discussed above. At the specific instrumental system level, for prevention and avoiding governance after the occurrence of damage, the United Nations Convention on the Law of the Sea of 1982 establishes the environmental assessment system. The protection zones on the high seas in practice are also an important institutional means of marine ecological environmental protection.

IV. ‘POINT-LINE-DIMENSION’ GEOGRAPHIC MODE


One important feature of activities involving the oceans is that they are international activities. Since the oceans are interconnected, the flowing of the water, migration of marine lives, and movement of pollutants in the oceans from one water area to the other are not restrained by the human-made boundaries. Consequently, it is far from enough to depend on one single country to take measures to solve various maritime issues. Countries around the world must make joint efforts through international cooperation. The building of a maritime community with a shared future can be undertaken at three levels in the geographical sense: bilateral marine governance cooperation between countries, regional marine governance cooperation, global marine governance cooperation. To a certain extent, this is a step by step process.

Take marine ecological environmental governance as an example. Bilateral cooperation between countries in marine governance is the basis for countries around the world to participate in the global marine ecological environmental governance. Whether the harmonious and stable bilateral maritime relationship between countries can be established determines on the degree of their participation in the global marine ecological environmental governance. In order to promote bilateral cooperation in marine ecological governance between countries, cooperation with maritime powers should be enhanced first. Maritime issues have been global issues. What is even worse is that marine ecological environment issues have become the important factors restraining the sustainable development of human society and the oceans. Marine environmental governance costs much economically needs the support of advanced technology and involves a series of other geopolitical issues. It is an unbearable burden on small countries. Therefore, big countries, especially those maritime powers should assume big states responsibility on their initiative to deepen cooperation among themselves and gradually help small countries participate in the cooperation. For example, our country can take the initiative to enhance its coordination and cooperation with America, Britain, Russia, Canada, Germany, Australia, and Japan in policy communication, goal setting, scientific research and development, energy conservation and emission reduction, disposal of oil spill, garbage collection, biological conservation, and so on and take joint actions with them in environmental governance and ecological restoration. Next, our country should keep on developing its blue partnership with other relevant countries. Blue partnership is a creative idea presented by President Xi Jinping when he paid a state visit to Portugal, which embodies the concepts of ‘openness and inclusiveness, concrete and practical cooperation,mutual benefits, win-win outcomes’ and aims to conduct cooperation between the two countries in many fields. Blue partnership goes beyond the traditional cooperation programs focusing on particular matters, which is an all-round, multilevel, interactive, and comprehensive cooperation mechanism and sets up the relationship between two countries, aiming to maximize the common interests and to reconcile policy differences and interest conflicts to promote equality and mutual trust in the process of global marine environmental governance. In order to enhance the blue partnership relationship, in terms of marine technology, our country should make more investment in marine science and technology, encourage technology research and development, promote mutual marine technological exchange and cooperation, and jointly overcome technological difficulties. In terms of strengthening naval forces, strong naval forces are an important support to state territory protection and marine interest maintenance. However, too much stress on strengthening naval forces will make the tension of the maritime situation among neighboring countries more intensified. Thus, both parties to the blue partnership should reach an agreement on the development of naval forces and set up a consultation mechanism for maritime security to avoid conflict of armed naval forces at sea. In terms of marine ecological environmental protection, our country should make efforts to promote cooperation in particular fields. For the protection of special sea areas, marine protection zones can be jointly established to promote the sustainable improvement of the marine environment. In terms of marine economy, exchange and cooperation should be strengthened and the development of the domestic marine industry can be promoted through cooperation to lay the foundation for the building of a maritime community with a shared future.

Regional cooperation in marine ecological governance is the further development of cooperation between or among nations. The oceans on the earth are divided into different areas based on different elements. Only after countries solve marine ecological environmental problems in their areas can they better participate in global marine ecological environmental governance. In fact, countries tend to adjust marine ecological environmental governance through regional agreements because it is a regional issue. For example, the areas of the oceans polluted most seriously are the coastal areas. Thus, a set of powerful global rules are usually regarded as an interference with the sovereignty of a state. Especially when matters of priority such as the economy are considered, global coordination is even more difficult. The United Nations Convention on the Law of the Sea of 1982 also recognizes the importance of regional laws and regulations, regional planning, and regional cooperation. That is why there is a large number of regional treaties or agreements on marine environmental protection, among which the well-known ones are the Convention for Protection of the Marine Environment of the North-East Atlantic or the OSPAR Convention and the Barcelona Convention for Protection of the Marine Environment of the Mediterranean Sea. These areas are special because of their fragile ecological system and their separation from the nearby oceans. They are usually places where environmental problems frequently occur. Regional cooperation is necessary to take control measures effectively. Regionalization goes together with globalization. Besides the regional maritime regulations with geographic features, the main manifestation of regionalization lies in its reconciliation of the differences in politics and economy caused by geographic factors. The biggest advantage of regionalization is that it can make marine pollution governance more specific and practical. Moreover, compared with global cooperation in environmental protection, compromise in signing and concluding regional agreements for shared interests is less while commitment is more firm and the environment standard to be set up is higher. However, the tendency of regionalization brings about barristers to system establishment. For example, different divisions of economic, political, and marine ecological zones within the same region will result in difficulties in the construction and development of regional institutions.

Based on bilateral and regional cooperation in marine governance, our country should actively participate in global marine governance and building of a world-wide maritime community with a shared future. However, while participating in global marine ecological environmental governance, our country has to be aware of that, for a long time to come, our country will be still a late-developed country with arduous tasks of domestic reform and development. The focus of our country should be on domestic matters. It should participate in its capacity in global governance and should not be imprudent and reckless. Therefore, our country should participate in global marine ecological environmental governance based on the development of itself, which should be a step by step process, to improve its supply capacity of marine public goods. With the rapid development of our country in the economy, science and technology, and culture, etc. our country gradually could supply public goods for global marine governance and actively assume responsibilities as a responsible big state. In the process of global marine governance, with its economic growth and improvement of experience of marine governance, China should pay more importance to the improvement of its capacity to provide such marine public goods as objects, system, environment, spirit, and so on, and should actively participate in and guide marine research programs, hold or sponsor international conferences concerning the oceans, participate in making global maritime rules, conduct training of personnel in the maritime field, and join relevant international organizations.

V. INTEGRATED SHORT-MEDIUM-LONG TERM PLANNING

In terms of time, a maritime community with a shared future can be built based on short-term, medium-term, and long-term plans. The short-term plan is to start out in the field with low sensitivity, such as humanitarian assistance at sea and marine environmental protection; the medium-term plan can be expanded to marine scientific research, marine energy exploitation, military cooperation at sea; the long-term plan can address the issues involving the core interests of countries around the world, such as the demarcation of overlapping waters.

In the short-term planning, our country can cooperate with other countries in marine environmental protection. The United Nations Convention on the Law of the Sea of 1982 provides the obligation of countries around the world for protection and preservation of the marine environment. It classifies the sources of marine environmental pollution into five categories including pollution from land-based sources, from or through the atmosphere, from vessels, from dumping, or from exploration or exploitation of the sea-bed, and sets out provisions on the rights and the obligations of the coastal states. It also provides that states should cooperate on a global or regional basis and clarifies the importance of such cooperation. In terms of different types of marine environmental pollution, international society has established some legal frameworks. For example, in terms of pollution from land-based sources, the international customs, the United Nations Convention on the Law of the Sea of 1982, the Montreal Guidelines for Protection of Marine Environment from Land-based Pollution Sources, the Agenda 21, the Global Programme of Action for Protection of Marine Environment from Land-based Pollution Sources, and so on all have some provisions on the basic spirit, fundamental principles, and introduction of new ideas in terms of prevention of land-based pollution sources. In terms of pollution from vessels, the International Maritime Organization formulated the International Convention for the Prevention of Pollution of the Sea by Oil, the International Convention for the Prevention of Pollution from Ships, and the like, setting out provisions on routine operation of ships, jurisdiction, standard of emission of harmful substances, supervisory system, filter system and so on.

The domestic laws of our country on marine environmental protection are mainly the Law of the People’s Republic of China on Marine Environmental Protection and a series of regulations promulgated by the State Council in accordance with the said law, including the Regulation of the People’s Republic of China on the Administration of Environmental Protection for Offshore Oil Exploration and Exploitation, the Regulations on Prevention and Control of Pollution Damage to Marine Environment in Marine Engineering Construction Projects, and the Regulations of the People’s Republic of China on Control over Dumping of Waste Materials into the Ocean. Besides, the State Ocean Administration issued China’s Agenda 21 providing guideline principles for the sustainable use of the ocean in our country. Meanwhile, China cooperates with Korea, Japan, Russia, Indonesia, South Africa, and Poland in marine environmental protection by means of joint statements, cooperation memorandum or agreement.

Currently, problems in the legislation and the international cooperation of our country relating to marine environmental protection are: a) Laws on marine environmental protection are fragmented, lacking a comprehensive fundamental law; b) Some local legislative organs promulgated some local regulations, but provide no detailed implementation rules; c) The cost for violation of the law is low, which means that punishment on perpetrators for damage to the marine environment is not severe enough; d) There lacks introduction of existing and effective new systems in practice in other countries, such as public participation in environmental protection, particularly sensitive sea area system, and the like; e) Agreements on cooperation with other countries are only solemn declaration without legally binding effect and have no specific cooperative mechanism or provisions.

In the process of building a maritime community with a shared future, we should attach full importance to international cooperation regarding the environment of the sea areas surrounding our country and speed up the formulation of the cooperative framework with reference to the successful cooperation modes in the world. Some sea areas surrounding our country are under dispute. Joint exploration of the disputed sea areas has become a common way in the world before the dispute is settled. Therefore, the countries involved have to join together to work out ways to deal with marine environmental pollution caused by their joint exploration and exploitation. Additionally, in the process of promoting the 21st Century Maritime Silk Road, oil pollution and dumping pollution from ships on the relevant routes have to be prevented by the joint efforts of countries along such Road. In terms of the environmental pollution caused by joint exploration in the sea areas under dispute, there are different ways of cooperation due to the perfection of laws and regulations of different countries, such as separate management, concurrent management, and jointly entrusted management. In promoting the 21st Century Maritime Silk Road, in terms of potential marine pollution of all kinds, countries along the shipping routes can also determine on what cooperation model to be adopted with reference to relevant international modes, such as the Baltic Sea mode and the Mediterranean Sea mode. The former adopts an integrated protection mode while the latter adopts framework convention and protocol mode. At present, under the leadership the UN Environment Programme (UNEP), China has participated in making and implementing a series of regional marine environment programs, including the North-west Pacific Action Plan and the Project in South China Sea and the Gulf of Thailand aiming to prevent the environment deterioration in those two areas, both of which involve China’s interests. Until now, no regional agreement with the legal effect has been reached on the environmental protection cooperation and governance in the whole North Pacific area. In the future, first, our country should adopt different cooperation modes in light of the legal and political factors, the economic needs, and the status quo of environmental protection in different sea areas. Next, in cooperation, concrete systems, particular standards, and liabilities for violation of law should be specified. Finally, our country should strengthen our domestic legislation and establish effective new institutions. Meanwhile, our country should enhance its cooperation with its neighboring countries, set up particularly sensitive sea areas, marine environmental protection areas and the like to enhance the protection of the marine environment.

The medium-term plan for the building of a maritime community with a shared future focuses on joint exploration and exploitation of marine resources, which can be classified as renewable and nonrenewable resources. Renewable resources generally include fishery resources and marine renewable energy resources such as the tidal energy, the tidal current energy, the wave energy, the thermal energy, and the salinity energy while nonrenewable resources mainly refer to the fossil energy in the oceans. Due to the fish migration and the unique geologic structure of the fossil, countries around the world have to attach importance to joint exploration and exploitation of marine resources. In addition, since the provision of the United Nations Convention of the Law of the Sea of 1982 on exclusive economic zones made the countries around the world expand the sea areas within the limits of their jurisdiction, more disputes arose over the sea areas. Before those disputes are settled, temporary cooperation has been provided explicitly in the international treaties and recognized by most of the countries around the world. Under such circumstances, it is very important for countries to cooperate and jointly explore and exploit marine resources to seek for economic interests. Joint exploration and exploitation of marine resources has been in practice in many places such as the joint exploration and exploitation planning between Iceland and Norway, between Japan and Korea, between China and Vietnam, between Australia and Indonesia, and so on. In those plannings, those countries concluded corresponding cooperation agreements which brought them certain economic interests.

In terms of the sea areas around our country, especially, the countries which have explored and exploited a large number of resources in the sea areas around the Nansha Islands have no intent of joint exploration and exploitation, which makes it substantially difficult to conclude any relevant agreements on joint exploration and exploitation. Thus, our country can try to work out cooperative areas and fields acceptable to both parties or more parties in the cooperation. With this in mind, we can start cooperation in the fields with low sensitivity. For example, marine fishery resources and marine renewable energy resources are the critical fields for joint exploration and exploitation. In terms of the joint exploration and exploitation of fishery resources, a new type of cooperation mode can be adopted. In this mode, with our investigation data as an incentive, our country can first cooperate with other countries in scientific research to deliver a scientific report on the protection and preservation as well as exploration and exploitation of the fishery resources. After that,  on the basis of the said scientific report and through bilateral or multilateral coordination conferences, we can conclude appropriate management and exploration and exploitation agreements. The Convention for the Conservation of the Southern Bluefin Tuna was concluded by Japan, Australia, and New Zealand in the way discussed above, which not only protected this kind of fish but also made the three countries easily reach an agreement on the total amount of fish catch and quota for each country. In terms of marine renewable energy resources, although there are many technical flaws and defects, the countries around the world generally have an optimistic attitude towards the future development of marine renewable energy resources. In this field, since it involves the related installations, the pipeline, cable construction or laying, it may involve the issues of the state sovereignty and jurisdiction over different sea areas. Besides, exploration and exploitation of marine renewable resources are likely to influence navigation safety and marine environmental protection. In dealing with the problem of marine renewable resources, our country should insist on cooperation. First, we should conclude bilateral or regional cooperation agreements in terms of marine renewable resources in the disputed sea areas. Next, considering most countries along the sea around our country are developing countries, we should attach importance to technical assistance to those countries to win their trust and to lay foundations for cooperation in other fields. Finally, since there have not been any installations or equipment so far on the high seas for exploration and exploitation of marine renewable resources, our country should actively cooperate with other powerful countries to conclude relevant agreements to lay foundations for later cooperation in exploration and exploitation of renewable energy resources and to make our country have more say in making international rules.

Moreover, in terms of jointly conducting marine scientific research, Part XIII of the United Nations Convention on the Law of the Sea of 1982 has 28 special provisions on marine scientific research, which is, however, a highly compromised institutional design of marine scientific research and reflects the conflict between the countries with powerful marine technology seeking for free marine scientific research and the coastal countries expanding their jurisdiction to safeguard their state security. The United Nations Convention on the Law of the Sea of 1982 provides the rights and obligations of the coastal states and the states conducting scientific research on the sea-area basis, mainly including both the coastal states’ rights of consent, participation, acquisition of the relevant materials and research outcomes, supervision, suspension or cessation of scientific research and the coastal states’ obligations to create favorable condition for marine scientific research and to provide assistance for the researching ships, and the corresponding rights and obligations of the researching states as well. The Convention especially sets out provisions on the promotion of international cooperation. Although the United Nations Convention on the Law of the Sea of 1982 has comparatively detailed provisions on marine scientific research, due to its political and legal features, it provides no definition of some basic concepts, which results in some disputes in practice. Also, the provisions in the United Nations Convention on the Law of the Sea of 1982 cannot solve the new problems caused by modern technological improvement such as the legal issues related to the offshore nuclear power plant, which makes the Convention much less applicable.

The laws of our country on marine scientific research are mainly the Law of the People’s Republic of China on Surveying and Mapping, the Regulations of the People’s Republic of China on the Administration of Foreign-related Marine Scientific Research, and the Regulations on the Administration of Geographic Data. At present, the major problems in the legislation of our country on marine scientific research are as follows: a) there are no explicit definitions on ‘marine scientific research’, ‘hydrological survey’, and ‘military activity’; b) there are no provisions on the law enforcement procedure and the emergency measures in terms of the military activities conducted by foreign countries in the exclusive economic zones of our country; c) there is no transformation of relevant systems provided in the United Nations Convention on the Law of the Sea of 1982, such as the provisions on enhancing international cooperation.

Regarding a large range of sea areas under dispute and the building of a maritime community with a shared future, marine scientific research can be the basis for other marine-related activities, and thus, is a natural advantage for cooperation. Currently, marine scientific research programs jointly conducted by our country include the agreement between our country and Japan on applying ‘notification in advance system’ to marine scientific research in 2001. Before maritime delimitation is finished, the dispute settlement between China and Japan has demonstrated the relevant fundamental position of the United Nations Convention on the Law of the Sea of 1982 on marine scientific research. In 2005, the Agreement for Joint Maritime Seismic Undertaking among the Three Countries in the Agreed Area of the South China Sea, the only agreement signed and concluded among China, the Philippines and Vietnam, was shelved after the goal of the first stage was reached. In 2016, at China-Sri Lanka Marine Economic and Cooperation Forum hosted by the Secretariat of the Organization for Indian Ocean Marine Affairs Cooperation, our country, and Sri Lanka, one of the countries along the 21st Century Maritime Silk Road, stressed to enhance cooperation in the fields of marine economy, fishery industry, marine scientific research and the like. On September 24, 2017, at China Mining Conference and Exhibition, our country and Iran concluded a cooperation agreement to jointly conduct marine geology research in the Sea of Oman to provide scientific support to the promotion of the Marine Silk Road. Additionally, our country also actively cooperated with other countries to participate in the scientific research in the Arctic on its climate change and shipping routes utilization, which will provide scientific support for the northern routes of our Maritime Silk Road. It can be seen that marine scientific research activities of our country and the cooperative marine scientific research activities jointly conducted by our country and other counties are in strict conformity with the relevant provisions of the United Nations Convention on the Law of the Sea of 1982 and the domestic laws of our country and that our country actively promotes cooperation with those countries having overlapping sea areas with our country.

In promoting the 21st Century Maritime Silk Road, our country has conducted with the countries along with the Road joint scientific research in many fields. In the future, our country should enhance the establishment of bilateral or regional cooperation mechanism with relevant countries in terms of disputed sea areas, especially the regional cooperation forum, and strengthen the scientific research and cooperation in scientific research in the fields of marine environmental protection, prospecting and exploration of shipping routes, prospecting and exploration and protection of biological and non-biological resources. On the basis of short-term and medium-term planning, China can make long-term planning and gradually solve the problems of overlapping sea areas to reach the goal of building a maritime community with a shared future.

VI. CONCLUSION

The idea of a maritime community with a shared future is based on the common marine interests of all human beings as a whole, which is favorable to the tendency control of marine ecological environmental governance. The building of a maritime community with a shared future requires that the international society should, on the basis of common interests, strengthen mutual coordination and cooperation, mutual technology exchange and mutual trust in policies, and jointly assume the responsibility of global marine governance. Correspondingly, our country as a major maritime country should assume its responsibility and gradually lead the other small maritime countries. On the basis of extensive cooperation, our country should pursue the common goal of global marine governance to achieve good marine governance and make humankind and the oceans coexist and develop sustainably. The purpose and stability rationales of the system theory requires that, while sticking to its purpose, a system should maintain its existence and stability of development, especially ‘the ability to maintain the stability of its order under unbalanced circumstances’, which is just the internal mechanism sought for by the building of a maritime community with a shared future.

The concept of a maritime community with a shared future derives from the concept of a community with a shared future for humankind and has a solid legal basis. Thus this paper concludes that a maritime community with a shared future can be built with different space and time strategies. We should adopt the  ‘point-line-dimension’ geographical mode in terms of space, make integrated ‘short-medium-long’ term plan in terms of time, and gradually conduct the activities of building a marine community with a shared future to achieve the goal of building a community with a shared future for humankind at an early date.


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