I. United Nations Convention on the Law of the Sea and maritime rights and interests
The United Nations Convention on the Law of the Sea (hereinafter referred to as the Convention) was adopted in 1982 and came into force in 1994. The maritime legal system established by it comprehensively and systematically stipulated the maritime rights and interests for the first time, thus making the development and utilization of the oceans in various countries embark on the road of standardization. Up to now, 155 countries and entities have ratified the Convention, and China ratified the Convention on May 2005 1996.
The Convention covers almost all aspects of the law of the sea, with two main contents: on the one hand, it refines and perfects the traditional basic marine legal system, such as territorial sea, contiguous zone, continental shelf and high seas; On the other hand, many brand-new marine legal systems have been formulated, such as exclusive economic zones, straits used for international navigation, archipelagic countries, islands, international seabed areas, marine science and technology, and marine environmental protection, which have greatly expanded the jurisdiction of coastal countries in the ocean. Coastal countries can extend the jurisdictional sea area from 3 nautical miles or 12 nautical miles stipulated by traditional international maritime laws to the exclusive economic zone and continental shelf of 200 nautical miles, and countries with wider continental shelf can also claim to exceed 200 nautical miles. The Convention is essentially a readjustment of maritime ownership and jurisdiction, a redistribution of marine resources and power, a basic document of the contemporary international community on maritime rights and interests and maritime order, and a symbol of the establishment of a new international maritime order.
The entry into force of the Convention means that mankind has entered a new stage of comprehensive development and management of the oceans. The Convention awakens the coastal countries' awareness of developing and maintaining marine resources, and then triggers a new struggle for marine islands, marine land, marine resources and marine passages, making the world's hot spots focus on the ocean. Not only hegemonic countries are constantly seeking maritime hegemony, but developing countries are also increasingly awakening on the maritime issue and trying to occupy the ocean as much as possible. However, because most countries are adjacent or opposite to each other, the interests of coastal countries are often intertwined with those of their neighbors or opposite countries, and the focus of contradiction lies in the acquisition or enjoyment of sovereignty and the possession or sharing of corresponding resources. At the same time, the convention is the product of political compromise among countries all over the world, so there are still many ambiguities. Countries always interpret and apply the Convention from the perspective that is most beneficial to their own interests, which also leaves many controversial hidden dangers. As more countries ratify and join the Convention, maritime rights and interests will be completely redistributed, and the dispute over maritime rights and interests will become more and more complicated. At present, there are more than 300 maritime delimitation disputes in the world, with more than 100 disputed islands.
Second, the status quo of China's maritime rights and interests
The relevant provisions of the Convention provide the basis and guarantee of international law for China to claim the breadth of its territorial sea and contiguous zone. The 200-nautical-mile exclusive economic zone and continental shelf system have expanded the jurisdiction of China; The international seabed regional system gives China the opportunity to become a pioneer investor in deep-sea mining, with a mining area of 15 square kilometers in the northeast Pacific Ocean. The transit system of international navigable straits provides convenience for China to develop ocean-going traffic and head for the straits. As former Vice Foreign Minister Li Zhaoxing said, "The entry into force of the Convention in China is conducive to safeguarding China's maritime rights and interests and expanding China's maritime jurisdiction; Conducive to maintaining China's actual position and long-term interests as a pioneer investor; It is conducive to giving full play to China's positive role in ocean affairs; Conducive to maintaining the image of China. " Therefore, on the whole, the convention is beneficial to our country.
On the other hand, the Convention has also brought us some negative effects. With the formal entry into force of the Convention, China's neighboring countries have improved their marine legislation, adjusted their marine policies and strategies, ignored historical facts, detailed rules for the implementation of the law of the sea and past cases, and inappropriately and seriously invoked favorable clauses to infringe on China's maritime rights and interests, thus making the indisputable historical sovereignty of many sea areas and islands in China face many new disputes and posing a severe challenge to the maintenance of China's maritime rights and interests.
1, the island of China is occupied. In the East China Sea, Diaoyu Island, the inherent territory of China, was illegally occupied by the Japanese. Diaoyu Island has always been a shelter for fishermen in China, but it is actually controlled by the Japanese. The Japanese not only opposed China's navy's approach to Diaoyu Island, but also prevented China's scientific research vessels from approaching, and even China fishermen could not go fishing in the nearby waters. Japan refuses to recognize China's sovereignty over Diaoyu Islands. Among the Nansha Islands in the South China Sea, Viet Nam occupied 28 islands, the Philippines occupied 8 islands, Malaysia occupied 4 islands, and China actually controlled only 8 islands, including Taiping Island controlled by Taiwan Province Province of China.
2. Marine resources are plundered. The dispute over the ownership of island sovereignty is accompanied by disputes centered on various resources. At present, countries and regions around the South China Sea have put into production more than 0/000 oil wells/kloc-0 in Nansha waters. Most of these oil wells are located on the China side of the South China Sea discontinuity line, and the annual oil output exceeds 60 million tons. In addition, China has closed its fishing season in the South China Sea since 1999, but Vietnam, the Philippines and other countries not only claimed that China "has no right to declare a fishing moratorium", but also used the fishing moratorium of Chinese fishermen to fish.
3. There are many contradictions in the delimitation of sea areas. China borders the Yellow Sea, the East China Sea and the South China Sea. Due to the narrow sea area, the contradiction between China and its maritime neighbors is more prominent. In the Yellow Sea and the East China Sea, its widest point is only 360 nautical miles, less than 400 nautical miles, and some sea areas claim to overlap. In the Yellow Sea with a total area of 380,000 square kilometers, 250,000 square kilometers should be under the jurisdiction of China. South Korea advocates taking the equidistant line as the boundary. If divided according to this, they can draw an additional 6,543,800 square kilometers. The disputed sea area between China and North Korea and South Korea is 6.5438+0.8 million square kilometers. The continental shelf of the East China Sea is a natural extension of China, so 540,000 square kilometers of the 770,000 square kilometers of the East China Sea should be under the jurisdiction of China. Japan, on the other hand, claims that China and Japan are * * * countries, and demands that the sea areas be divided according to the median line. In this way, the disputed sea area between Japan and China is 6.5438+0.6 million square kilometers.
4. Potential threats of maritime transport corridors. Because of its important strategic position, the South China Sea has been included in the global strategy of the United States, and it has been listed as one of the 16 maritime choke points to be controlled by the United States. The United States has changed its policy on the South China Sea issue from "passive neutrality" to "active neutrality", and claimed that Diaoyu Island belongs to the common security of the United States and Japan. The South China Sea is regarded as a traditional sphere of influence by Japan, and the South China Sea traffic line is regarded as the lifeline of Japan. Therefore, under the pretext of "ensuring the freedom of maritime navigation" and "opposing the use of force", Japan actively intervened in China's South China Sea affairs. In recent years, the United States and Japan have tried to control the Malacca Strait, which is known as the lifeline of China, on the grounds of cracking down on pirate terrorist activities and maintaining smooth international navigation channels. At present, more than 90% of the crude oil imported by China needs to be transported by tankers through the Straits of Malacca, so the interference of these external forces will pose a serious threat to the positive development of China and national security.
Third, China's strategic thinking on safeguarding maritime rights and interests.
How to deal with potential contradictions and conflicts, and how to deal with complex disputes over maritime rights and interests are important issues related to many development interests and security in China. In order to safeguard China's maritime rights and interests, we should start from the following aspects.
1, temporary arrangement and shelving of disputes, and * * * simultaneous development are the basic principles for safeguarding maritime rights and interests. * * * Joint development refers to the exploration and development of related resources in overlapping claimed sea areas on the basis of mutual consent under the condition of temporarily shelving the dispute over exclusive sovereignty rights of resource development. It is a functional cooperation system recognized and adopted by many countries in the world. This institutional arrangement meets the requirements of Articles 74 and 83 of the Convention. Generally speaking, the joint development of disputed sea areas is a transitional arrangement before demarcation, which does not hinder the conclusion of the final agreement and the demarcation of the final boundary, does not mean that either party gives up its power or power claim, nor can it be regarded as acknowledging the other party's power claim. It will not affect the power claims of the countries concerned, but also explore and develop resources in a timely and effective manner based on the principles of economic benefits and respective interests, so that both sides can quickly obtain the maximum economic benefits from commercial oil discovery and production. * * * An appropriate balance has been established between the practical consideration of developing resources in disputed areas of the countries concerned and safeguarding their respective power claims or positions.
In the East China Sea, if China and Japan can jointly develop the continental shelf of the East China Sea, it will benefit both China and Japan. Through joint development, both countries can increase new oil sources without giving up their power claims, and from China's point of view, they can also obtain capital and technology. Politically, joint development will also help maintain the stability of the East China Sea.
In the South China Sea, the Nansha Islands dispute involves five countries and six parties, and the settlement of its problems is a long-term process. In order to properly resolve the disputes in the South China Sea, China creatively put forward the idea of "shelving disputes and jointly developing" from the overall situation of maintaining regional peace and stability. Up to now, some positive progress has been made in the settlement of disputes in Nansha Islands. On a larger scale, China has established a strategic partnership with ASEAN countries for peace and prosperity, and is building a China-ASEAN Free Trade Area, which will undoubtedly help ease the situation in Nansha. Of course, since all parties will not give up their sovereignty requirements and vested interests easily, the settlement of the South China Sea issue is still quite complicated, long-term and arduous.
2. Increasing investment in science and technology and capital is an important guarantee for safeguarding maritime rights and interests. According to the relevant provisions of the Convention and China's claim, the sea area under China's jurisdiction is nearly 3 million square kilometers, but the disputed sea area is as high as 6,543.8+2,000 square kilometers. The location of Okinawa Trough involved in the dispute between China and Japan over the continental shelf in the East China Sea urgently needs to be proved by marine geological data. Japan believes that China and Japan belong to the same continental shelf, and the Okinawa Trough is only an accidental depression naturally extended by the two countries, which cannot interrupt the continuity of the continental shelves of the two countries. Based on this, Japan advocates demarcating the East China Sea with the principle of equidistant standard median line. In order to obtain evidence support, Japan invested 654.38+000 billion yen to explore the continental shelf in the East China Sea from 2004 to 2009, and strived to submit the survey data of Japan to the United Nations Commission on the Limits of the Continental Shelf in the first half of 2009. At present, coastal powers and China's neighboring countries, such as South Korea, the Philippines, Malaysia and Viet Nam, have invested a lot of money in marine surveys. Although China has conducted a national marine survey since 1958, a survey of fishery resources and marine physical geology since 1977, and launched the "China Offshore Marine Comprehensive Survey and Evaluation" in 2006, that is, the "908 Project", the current marine survey work in China is far from fully meeting the requirements of marine resources development and application for the outer continental shelf in the sea areas under our jurisdiction. The geological and sedimentary conditions of the East China Sea are still unclear. At the current progress, China's investigation of the East China Sea will reach the Japanese level in the next 30 years. Therefore, under the current background, China should increase investment in science, technology and funds, and relevant departments should pay close attention to conducting comprehensive marine surveys and mastering comprehensive marine data, so as to provide the most important scientific basis and evidence for diplomatic negotiations or solving disputes through legal means.
Second, the development of marine resources requires capital and technology investment. Although the Convention stipulates the principle of "parallel development" of the international seabed as a "human heritage", it is difficult to achieve equality in practice because of the disparity in comprehensive national strength among countries. Without the support of high technology and high economic investment, you are not qualified to be a "pioneer investment developer" and have no ability to participate in the development of deep-sea mineral deposits. At the same time, in the cooperation mode of "* * * with development" implemented in disputed waters, scientific and technological advantages also contribute to income distribution. At present, marine development is difficult, with high investment, high risk and long cycle. In order to obtain the best development benefit, high-tech investment must be the premise.
Finally, strengthening the military construction of the navy requires high technology and high investment. Marine rights protection needs strength as the backing, and there must be strong maritime power. When meeting with representatives of the 10th Party Congress of the Navy, General Secretary Hu Jintao emphasized: China is a maritime power, and the Navy plays an important role in defending national sovereignty and security and safeguarding China's maritime rights and interests, and shoulders a glorious mission. Strive to build a powerful people's navy that meets the requirements of the new century and the new stage and fulfills the historical mission of our army. The navy shoulders the mission of defending national territorial sovereignty, safeguarding national maritime rights and interests and maritime traffic safety. We must stand at the height of national interests, strengthen the construction of the navy, build modern maritime armed forces, including aircraft carriers, and provide ocean-going launch capabilities. Only in this way can we meet the challenges of the countries concerned to China's maritime rights and interests.
3. Strengthening the actual control of disputed waters is the main way to safeguard maritime rights and interests. Historically, China discovered and named Diaoyu Island in the14th century, more than 500 years before Japan. The Times Atlas of the World in London, the most authoritative atlas in the world, belonged to China in 1980s. Now the Japanese have set up boundary markers and benchmarks on the Diaoyu Islands, and set up lighthouses to prevent any China people from approaching. The Nansha Islands are in a state of being carved up, and the Philippines, Malaysia and Vietnam still have troops stationed on some islands. China is in a passive position in these disputed areas because we lacked actual control over these areas in the past. For the Diaoyu Islands, we have repeatedly emphasized the "earliest discovery theory", but it is difficult to prove the traces of our rule on the island. Empress Dowager Cixi gave the Diaoyu Islands to Sheng Xuanhuai, the housekeeper of the Qing court, to collect herbs. In the context of modern international law, such evidence is not superior to the evidence that the Japanese set national standards, set up lighthouses and live a regular life. In 1950s, when the South China Sea was detected to be rich in mineral resources and neighboring countries secretly occupied islands and reefs, they found that these islands and reefs were empty. In short, China used to rely too much on historical evidence in its maritime sovereignty claims and paid insufficient attention to reality.
Professor JonathanCharney accurately observed a phenomenon in the international community: "In recent years, maritime delimitation practices and judgments tend to avoid interfering with long-standing resource development actions. When many countries carry out mining operations in the same area, the solution to the problem is often to share resources. Time is on the side of those countries that exploit themselves regardless of historical and traditional activities. Once the economic development of marine resources takes place, it is difficult to completely exclude this country from the region through negotiation or third-party judgment. Therefore, the status quo may be unfavorable to some relevant countries. "
This phenomenon is also an accurate summary of the South China Sea issue in China. In today's fierce struggle to carve up the ocean, we should strengthen the actual control of disputed waters. The state should adopt the principle of combining rights protection with development to declare maritime sovereignty, strive for maritime rights and interests, and make full use of various means such as law, politics, diplomacy, economy, scientific research, culture and tourism to strengthen the actual existence of China's sovereignty in disputed waters. At the same time, we can also mobilize non-governmental forces, such as government funding, to help and escort non-governmental fishing groups to land on the island, so as to interrupt Japan's "governance effect" on the Diaoyu Islands. In recent years, these activities have decreased.
In a word, going to the ocean is a constant strategic choice and path for all powerful countries, and today's coastal countries pay more attention to the strategic position and great value of the ocean than ever before. In 2 1 century, the international maritime rights and interests struggle characterized by competing for marine resources, controlling marine space and seizing the commanding heights of marine science and technology is becoming increasingly fierce. The situation of marine rights protection faced by China will be more severe and complicated. In the new round of maritime competition, how to defend China's maritime territory, China's maritime rights and interests, properly handle relations with neighboring countries and maintain regional peace and stability are important issues that we should consider and deal with.