Experts called for an early formulation of clear ocean Basic Law, China’s maritime strategy
data for: March 2012, the ocean surveillance ship fleet in the East China Sea oil and gas fields near the cruise.
China and the Philippines in the Huangyan Island, the confrontation has been more than a month, can be predicted that similar disputes in the future only will not be less.
If only the sake of discussion about how Huangyan Island event resolve or end, rather than be placed in the increasingly violent and foreign maritime disputes the context of an overall inspection to find a solution, it will trade-off in the future a dispute; meet only in the use of force, fast gunboats, the tongue of the sanctions and the like, it would inevitably mean that China is facing the loss of the danger of the future development of strategic opportunities.
In fact, at this moment, outside the turbulent public opinion about foreign maritime disputes are too many basic facts we need to go calmly to further clarify: history, current situation, the legal, institutional, public opinion, diplomatic, military, resources, economic … Similarly, there are too many constructive and innovative solutions should be serious and frank discussion.
when the Chinese maritime strategy re-think and reform.
DEVELOPMENT AND MANAGEMENT
Shanghai Academy of Social Sciences
Law of the Sea Research Center Director
Although the Chinese government has been consistently use political methods principles and position of resolving disputes between States, but in the political approach has been neglected or poorly, and also explore the use of legal methods to resolve territorial disputes such as the Nansha Islands and the possibility of In fact, the conflict of interest between the nations is very obvious, especially in serious confrontation on the issue of territorial sovereignty and differences, trying to include “putting aside disputes and seeking common development” principle to resolve territorial disputes such as Nansha Islands and the problem through political means, it is very difficult.
in accordance with the United Nations Convention on the Law of the Sea “(hereinafter referred to as” the Convention “) before the final settlement of territorial disputes and the conclusion of the demarcation agreement, the relevant countries should comply with some obligations. : Negotiation and consultation obligations, the obligation to negotiate to reach a demarcation agreement; efforts to conclude a temporary arrangement obligations, the obligations of the parties for the conclusion of the interim arrangements; prohibit unilateral obligation of conduct, which prohibits unilateral implementation of harm or hinder the final demarcation agreement reached between obligations of conduct.
For countries above obligations should be the beginning? In this regard, the international community following views or ideas. First, the above-mentioned obligations from the overlapping claims of the same area; Second, these obligations from the start of negotiations on the interim arrangements;, these obligations from the establishment of the interim arrangements; Fourth, the above-mentioned obligations since the final demarcation onwards. From the purposes of these provisions of the Convention, if the countries concerned of the obligation to explain from the start of negotiations to be followed, the other party may be in the negotiations before the start of implementation of the unilateral development activities will be the resources of the disputed waters. Therefore, I believe that the more reasonable explanation for the countries concerned from the overlapping maritime delimitation claim, it should follow the relevant obligations.
the specific obligations in the following areas: first, honestly fulfill consultation obligations. Two or more parties through dialogue, negotiation and other methods, negotiated settlement, to narrow the dispute differences, exchanging information, the fulfillment in good faith to negotiate a valid obligation; Second, to avoid disputes upgrade obligations. Requiring the parties to dispute the status quo, and to refrain from unilateral acts and measures, to exercise restraint, to avoid disputes further escalation; third, to promote consultation and the outcome of obligations. Consultations, the two sides or more of the parties assume the obligation to strive to promote the agreement reached, adhere to mutual understanding and accommodation, and steadily advance the consultation results; Fourth, strengthen cooperation and exchange obligations. Shall reach a final agreement or stage consensus or desirable, two or more parties should strengthen cooperation and exchanges, and to comply with the consensus reached. The
legal premise and conditions
due to compulsory jurisdiction of international law, such as the use of legal methods to resolve the dispute, must accept the jurisdiction of the judiciary or the conclusion of the arbitration agreement, so that the international court or arbitration body empowered to deal with and resolve disputed issues. Nansha Islands and the territorial dispute, taking into account the conclusion of the arbitration agreement between the relevant countries, the use of the award of the arbitral authority is unlikely.
for the International Court of Justice, in accordance with the provisions of Article 36, paragraph 2, of the “Statute of the International Court of Justice” parties to the Statute State may declare at any time with the following properties of all legal disputes, accepting the same obligation of any other country to recognize the jurisdiction of the Court as compulsory ipso facto and without special agreement: (1) interpretation of the treaty; (2) any question of international law; (3) existence of any fact, if established, constitute a breach of an international obligation; (4) the nature or extent of the reparation to be in violation of international obligations.
In other words, if you want to dispute before the International Court of Justice, you must make a statement to accept the jurisdiction of the ICJ. Meanwhile, the International Court of Justice case must be the case of legal disputes.
ICJ the dispute to be divided into legal disputes and non-legal disputes, and accept only legal disputes. ICJ non-legal disputes out of the jurisdiction of the main reasons are: the International Court of Justice does not have compulsory jurisdiction such as domestic courts; the content of international law often lack of coordination with the reality and has a fixed nature. Therefore, the ICJ will not use, except on matters of international law to settle disputes only accept and deal with the parties from a legal point of departure triggered the dispute, the International Court of Justice will be excluded from non-legal disputes.For the jurisdiction of the International Court of Justice, as mentioned above, the relevant countries in principle in advance need to make a statement to accept the jurisdiction of the ICJ. But when a direction of the international courts, there are examples of responding to the jurisdiction of (forum prorogatum).
the so-called under the jurisdiction of the respondent, the parties is not obliged to jurisdiction, whether the other party agrees to accept the jurisdiction of the ICJ has no knowledge of the case to the ICJ proceedings, the following procedures , according to the meaning of each other, express or implied, to accept the jurisdiction of the Court, and give the court jurisdiction of the incident, the official start of the status of the litigation.
method by responding to the jurisdiction of the International Court of Justice may start proceedings, but this method does not make explicit provision in the Statute of the International Court of Justice “, but since the Permanent Court of International Justice as a referee practice gradually be recognized, has also been the case of the International Court of Justice confirmed. For example, the precedent defense verdict made by the ICJ in the Corfu Channel case on March 25, 1948, are responding to the jurisdiction of For the request of the International Court of Justice in a British direction, Albania said in a letter sent to the Registry of the Court, the English party to the lawsuit filed is not appropriate for settlement of disputes on “friendship and cooperation and peace between nations, but to make their own country enthusiasm and sincerity of the principle “do not miss the opportunity, to appear in court, meaning the State, thereby accepting the jurisdiction of the International Court of Justice.
ICJ Statute provides that parties to litigation or responding to the International Court of Justice are generally limited to the country. In order to allow the State to become a litigant must first be “the Statute of the International Court of Justice,” the parties. As the International Court of Justice is one of the main organs of the United Nations, United Nations Member States, of course, the States parties to the Statute of the International Court of Justice “. The countries of the non-United Nations Member States to become the conditions of the States parties to the Statute of the International Court of Justice by the General Assembly upon the recommendation of the Council of the decision on individual cases.ICJ applicable referee guidelines, provisions in the Statute of the International Court of Justice, Article 38. Its paragraph 1, provides impact statements the dispute, the Court in accordance with international law, the referee, the referee shall apply: (1), whether general or special international agreements, to establish regulations Article by litigation the parties expressly recognized; (2) International habits, as proof of general practice has been accepted as law; (3) general principles of law recognized by civilized nations; (4) under the provisions of section 59, judicial precedents and authority of the countries most highly qualified publicists doctrine, as determine the legal principles of subsidiary means. The provisions of paragraph 2, the provisions of the preceding paragraph is without prejudice to the court by consent of the parties the right of this principle of fair and good “referee case. Be seen, as the International Court of Justice of referee guidelines for international treaties, customary international law and general principles of law, others are auxiliary referee guidelines.
the judgment of the ICJ in the legally binding the parties, the parties bears the legal obligation to fulfill the judgment of the ICJ. This is a principle of international law. The binding force of the judgment, the provisions of section 59 of the Statute of the International Court of Justice, the Court referee in addition to the countries concerned and the case, no binding force. But there are exceptions, for example, Article 63, paragraph 1, of the Statute of the International Court of Justice, where the treaty to explain the problem occurred, while other countries still outside of the litigation the parties of the treaty, a signatory to those who should stand by the Registry the notification of the country. The provisions of paragraph 2 of the preceding paragraph, the notification by the State have the right to participating in the program, such as the States to exercise this right, judgment, interpretation of the country has the same binding force. Legal obstacles of
territorial disputes in the South China Sea
As noted above, the use of legal methods, including the International Court of Justice under the jurisdiction of international disputes, must have the consent of the parties agree including prior section 36 of the Statute of the International Court of Justice to make selective statement responding to the jurisdiction of the method to accept the jurisdiction of the International Court of Justice. Although the Philippines on January 18, 1972 made a statement to accept the jurisdiction of the ICJ, but made a reservation and maritime jurisdiction on the land territory disputes. In other words, the Philippines and maritime jurisdiction and land territory disputes, do not accept the jurisdiction of the ICJ. Other countries (for example, Vietnam, Malaysia and other countries) and China, not on the 36 of the Statute of the International Court of Justice to make selective statement. In other words, the territorial disputes on the issue of the Nansha Islands and 36 of the Statute of the International Court of Justice under the jurisdiction of the ICJ judgment of the Nansha Islands and controversial issues of territorial disputes have great difficulties.the
take into account China, Vietnam, Philippines and other countries are the Member States of the Convention. Therefore, we need to consider the possibility to solve the territorial disputes of the Nansha Islands and the International Tribunal for the Law of the Sea.
the jurisdiction of the International Tribunal for the Law of the Sea (hereinafter referred to court), specifically, is divided into the following three.
(1) personal jurisdiction (ratione personae). The provisions of section 291 of the Convention, all of the provisions of Part XV dispute settlement procedures in response to the opening up of the States Parties, the provisions of Part XV of the dispute settlement procedures should only pursuant to specific provisions of the Convention open to entities other than the State party. 20 of the Statute of the International Tribunal for the Law of the Sea “, the court deal with the various parties and to meet open to entities other than the parties to certain conditions. The jurisdiction of the court is as follows: First, include not only the parties to the Convention, but also meet the conditions of autonomy in paragraph 1 of the Convention 305 of the Commonwealth, the Non-Self-Governing regional and international organizations; Second, for Convention in any case expressly provided for in Part XI, in addition to the State party (the International Seabed) The Authority, the Enterprise, state enterprises, natural persons or legal persons can also become a party; the third will be acceptable to all parties in accordance with the parties to cases under the jurisdiction of rights granted to the court submitted by any other agreement in any case, the court shall be open to entities other than States. Of course, these agreements are not limited to international agreements, as long as the party to the case all the parties accept the jurisdiction of the Tribunal, the scope of its subject without restriction.
(2) the subject-matter jurisdiction (ratione materiae). The Convention the provisions of Article 288 of the International Court of Justice or the Court shall have jurisdiction for any dispute relating to the Convention the interpretation or application made to him under this Part (Part XV of the Convention “),; for in accordance with this Convention the purpose of international agreements relating to its questions about the interpretation of the Agreement or any applicable dispute shall have jurisdiction; court Seabed Disputes Chamber and referred to in Section 5 of Part XI of the other chambers or the Court of Arbitration, any matter put to him by the section, shall have jurisdiction. 21 of the Statute of the International Tribunal for the Law of the Sea provides that the Tribunal’s jurisdiction, including all disputes and applications submitted to it under this Convention, and any other agreement to grant jurisdiction to the court specified, all applications.
the subject-matter jurisdiction, compared to the International Court of Justice ICJ Statute provides that all cases; the Statute of the International Tribunal for the Law of the Sea provides that all disputes and application of Convention . Visible, the International Court of Justice of the matters governed by more than matters of jurisdiction of the Court. This is determined by the professionalism of the court.
the International Tribunal under section 22 of the Statute, with the subject matter covered by this Convention relevant existing treaties in force or the Convention to all States Parties agree, on such a treaty or Convention “interpretation or application of any dispute in accordance with this Agreement before the court. That all States Parties to the treaty agreed to, will be able to submit events to the court. “The existing treaties in force” as a benchmark as to what time does not explicitly, it can be understood when the treaties in force for the development of the Convention.
(3) the choice of jurisdiction. 287, paragraph 1 of the Convention, a State when signing, ratifying or acceding to this Convention, or at any time thereafter, shall be free to use the written statement select the court, the International Court of Justice, the Court of Arbitration, in particular, the Court of Arbitration any one or more of the methods to solve the dispute of the interpretation or application of this Convention. That the State party in advance to accept the method of settlement of disputes on the choice of the jurisdiction of international courts or tribunals; in the dispute between the parties accepted the same procedure, to submit the dispute to such procedures; did not receive the same program, in addition to the absence of special agreements only submit to the Court of Arbitration.
States Parties to the Convention in accordance with section 287 by way of declaration, to accept the compulsory jurisdiction of international courts or tribunals, the same time, the States parties to the dispute enumerated in 298 of the Convention, can also be a written statement more than one class or a class of the following types of disputes do not accept the compulsory jurisdiction of international courts or tribunals of their choice. This selective exceptions: the dispute on the delimitation of maritime boundary disputes, military activities involving historic bays or titles, as well as law enforcement activities relating to the exercise of sovereign rights or jurisdiction, as well as by the Council to implement the United Nations Charter conferred the duties of the dispute; respect of a State Party which has made such a declaration at any time may withdraw the statement.
China since the ratification of the Convention in 1996, has not been selected 287 of the Convention, the provisions of this Convention the interpretation or application dispute. China on August 25, 2006, according to the provisions of section 298 of the Convention submitted to United Nations Secretary-General a written statement, noting that the Convention 298, paragraph 1 (a), (b) and (c Any dispute) above (ie, involving disputes on maritime delimitation and territorial disputes, military activities), the Chinese Government does not accept the provisions of section II of Part XV of the Convention of any international judicial or arbitral jurisdiction.
In other words, maritime disputes involving major national interest to exclude the possibility of application of international judicial or arbitral settlement, adhere to the countries concerned through consultations and negotiations to resolve the position.
this statement on the one hand that China’s consistent stance and attitude in the above dispute; the other hand, to rely on international organizations, international judicial settlement of disputes between States and the international development trend, it seems A little deviation. Of course, not exclude the Chinese to withdraw the above statement, the use of the possibility of dispute settlement mechanism of the Convention to deal with maritime disputes. Because, “Section 298 of the Convention the provisions of paragraph 2, States Parties to make a statement under section 298, paragraph 1, may at any time withdraw the declaration, or agree to the statement to exclude the dispute to the provisions of this Convention any program.
can be seen from the jurisdiction of the court’s analysis, China has been involved in maritime delimitation and territorial disputes and military activities dispute made to exclude the possibility of international judicial or arbitral jurisdiction, if China does not to withdraw the above statement or do not agree with the prescribed procedures, the court deal with the possibility of the Nansha Islands and the territorial dispute does not exist.
Nevertheless, China also should be prepared to submit an international judicial body to solve the territorial disputes of the Nansha Islands and the evidence of the preparatory work at the same time, we should strengthen the international justice system. Resolve territorial sovereignty jurisprudence from the International Court of Justice, applicable to a hierarchy of rules of the judgment that the treaty prevail, and then consider the actual retain possession, and finally for effective control. The former (the treaty and maintain possession of law) is to prove that the territorial rights attributable to the direct method; the latter (effective control) for the indirect method. This has important reference value for us to gather relevant evidence and research of the international judicial system.
In short, the use of legal methods to resolve the territorial disputes of the Nansha Islands and can not be eliminated or overcome obstacles, can not be applied to deal with the Nansha Islands and the territorial dispute between the parties can not conclude an arbitration agreement case still hope in a political solution. This is exactly the Chinese insist on the use of political or diplomatic solution the essence of the Nansha Islands and territorial disputes. Before the final settlement of the Nansha Islands and the territorial disputes in the use of political methods, we need to discuss the further deterioration of the mechanisms of prevention and emergency treatment for the South China Sea issue, I think, can operate one of the ways is, in territorial disputes and the waters of the Nansha Islands and can not be solved delimitation dispute case, the relevant countries, especially China and some ASEAN countries in the field of low-level (for example, marine environmental protection, marine scientific research, marine navigation and traffic safety, search and rescue, combating transnational crime, including but not limited to the fight against drug trafficking, piracy and armed robbery at sea, as well as arms smuggling) endeavor to conclude a cooperation agreement or agreements, and effective implementation. Meanwhile, efforts should continue to start negotiations with the ASEAN countries to further deterioration of the conclusion of a legally binding such as the Code of Conduct of Parties in the South China Sea and other system specifications, to avoid the South China Sea issue.
cooperation agreement or agreements not only required by the Declaration on the Conduct of Parties in the South China Sea “, is also in line with the principles and requirements of the Convention system. In addition, so that more countries should be permitted to join the International Convention on Maritime Search and Rescue “came into effect in 1985, entered into force in 1992,” to stop the illegal acts of the Convention as the international treaties, such as Safety of Maritime Navigation, to a greater extent to build international cooperation system, provide a basis for the system of coordination and cooperation framework for the development of the South China Sea issue.
should expeditiously enact the Basic Law of marine
from the practice of the international community at the international, regional and bilateral system of marine issues yet to sound or be easily amended One of the perfect case, the effective way to deal with and respond to marine issues controversial mechanism for the development of a national marine development strategy and improve the marine system. The protection measures to achieve the above path as soon as possible to the development and implementation of integrated management of marine affairs and the law – Marine Basic Law.
In fact, China as early as in the “China Ocean Agenda 21″ (1996) proposed that should be established such as marine Basic Law as required by law or goal. Pointed out that China should establish a sound marine Basic Law and Management Act as the main industry, law, and local laws supporting each other marine regulatory system and the supervision of a timely and effective, efficient and effective enforcement of marine law enforcement teams to achieve administering the sea, to ensure that marine and coastal economy, sustainable development of society. The current international and domestic situation is very favorable for the development of national marine development strategy and improve the marine institutional mechanisms, the general consensus of the international community.
In general, the basic path or route of the cause of development of the National Oceanic Pictured:
First of all, should be clearly core national interests, including the development of the National Oceanic strategies for China , the core goal is to build maritime power;
Secondly, should improve the implementation of the strategy of development of the National Oceanic Ocean Policy, including the strengthening of marine concept and awareness, strengthen the coordination of ocean affairs, and to improve marine resource development, control and comprehensive management capabilities, to promote the maritime tradition of cultural, pioneering and innovative marine science and technology, and expand foreign exchanges and cooperation, and promote China’s Marine Programs to continue to make new achievements;
again, the development of marine Basic Law in order to protect the marine development strategy and the propulsion of marine policy implementation, focusing on improving China’s marine institutions and mechanisms, including the establishment of the National Oceanic Affairs Committee as the organization;
Finally, the implementation the marine Basic Law of the marine basic plan should be developed in order to make corrections The weak link in the ocean in the development of elements or fields.the
The author believes that China’s enactment of the Basic Law of the ocean, should include the following: declaration of a national ocean policy, namely summary has been policy for ocean-related issues, including the policy of “shelving disputes and seeking common development” to build a harmonious marine philosophy, and foreign made to publicize and explain; and set the management of marine affairs, national institutions, for example, the National Oceanic Affairs Committee, to the uniform and efficient coordination and management of the National Marine Affairs; announced an important area of ??the national development of marine, including the development of marine industries and activities, to development, use and management of oceans and their resources, protect the marine environment, ensure channel security, research and development of marine technology, to strengthen the waters under the jurisdiction of the management and investigation activities, to enhance national education and publicity of the oceans, to strengthen the international maritime cooperation. Specifically, include the following areas: promoting the development and use of the oceans and their resources; strengthen monitoring and protection of the marine environment; promote the exclusive economic zone and continental shelf resources development and utilization activities; to ensure the safety of maritime transport; ensure that marine security; strengthen the marine investigation work; research and development of marine science and technology; the revitalization of the marine industry and to strengthen the international competitiveness; to strengthen the integrated management of coastal waters; develop new marine space, new resource development and utilization activities; protect the islands and their ecology; to strengthen international coordination and promotion of international cooperation; to advance public understanding and awareness of the marine, nurturing ocean talents.
Chinese develop ocean the principles of the Basic Law should be guided by the principles of international law and institutions, including the United Nations Convention on the Law of the Sea, the specific principles: coordination of the development of the oceans, the use of the principle of protection of the marine environment; ensure The principle of maritime safety; improve marine education scale and layout principles to enhance scientific knowledge and understanding of the ocean; promote the orderly development of the principles of the health of the marine industry; comprehensive coordination of the principles of management of marine affairs; involved in the coordination of the principle of international marine affairs.
Although China has enacted the Ocean Basic Law, is to announce the policy declaration for marine issues, but for other countries to further the understanding and the understanding of China stance and attitude is very important for marine issues. China’s ocean policy, marine economic development policies, with the characteristics of continuity and consistency, is a summary of the previous ocean policy and position and refined, so does not affect other countries adversely affected. Meanwhile, Ocean Basic Law, the content focus of the Declaration of policy, does not impact on the marine department in the field of law and specific regulations and contradictions, will not produce substantial changes and coordination problems. In other words, a good relationship between the Ocean Basic Law and other departments of the existing marine areas France, in order to protect the integrity of the existing marine legal system.share: related topics: ocean surveillance ship in the South China Sea and Philippine warships confrontation