Study On The US "International Waters" Regime And Diplomatic Practice:A Perspective Of International Law

As “A Constitution for the Oceans”,the 1982 United Nations Convention on the Law of the Sea(hereinafter as UNCLOS)plays an important role in maintaining the order of the oceans,regulating the development and utilization of the oceans,and settling maritime disputes.As the most dominant sea power in the world,even not ratifying the UNCLOS,the United States still recognizes the validity and effect of the customary international law rules codified in the UNCLOS.Different from the regulations of the UNCLOS which defines the water column of the oceans into three categories as territorial sea,exclusive economic zones(hereinafter as EEZ,including contiguous zones as functional jurisdiction area)and high seas,the United States' domestic law divides the waters on the earth into “national waters” and “international waters”,based on whether or not the area is beyond the limit of a country's sovereign territory.The United States holds that all the states shall enjoy the traditional freedoms of high seas in and over those international waters.Accordingly,the United States has launched a series of operations and conducts including “Freedom of Navigation Operations”(hereinafter as FONOPs)which appears to be freedom of navigation but in fact is military reconnaissance and surveys.Those operations and conducts have aroused protests from various coastal states,thus triggering or intensifying many maritime disputes and undermining the order of global oceans either.In the light of the relevant provisions of domestic law and executive regulation documents of the United States and under the guidance of empirical and historical analysis,the dissertation investigates the acts and diplomatic practice of “international waters” regime of the United States,dating back to the root of the United States maritime hegemony,and further questions the legitimacy and lawfulness of “international waters” regime and practice in several aspects by means of normative analysis of the UNCLOS and theoretical analysis both of jurisprudence and customary rules of international law of the sea.The main contents of the dissertation fall into the following five parts:Chapter ? introduces the definition and diplomatic practice of the US “international waters”.The United States disregards coastal states' sovereignty rights and jurisdiction in EEZ,with the view that all kinds of vessels and aircrafts including warships and military aircrafts shall enjoy unrestricted freedom rights in these waters.In recent years,the United States has launched many operations and conducts such as FONOPs,which have jeopardized national interests of costal states and the stability of the order of the oceans.Chapter ? traces the origin of “international waters” in history.Oceans are vital to a country's development,including the United States.Maintaining its hegemony and expanding the global commons of the oceans in order to seize more resources have always been the United States main marine strategy and policy.From the aspect of interaction with other countries,the belief and practice of “American Exceptionalism” deriving from the principle of pragmatism protect the United States' sakes well around the world.As to the practice of international law of the sea,the United States took an active part in the UN conferences on the law of the sea and embedded its own claims and interests into the contexts of the conventions,however,in consideration of some of the provisions set out in the 1982 UNCLOS which go against the interests of the United States,the United States has not ratified the UNCLOS.In fact,the UNCLOS still maintains the core interests of the United States and is binding on countries except the United States.Chapter ? compares and analyzes the differences between UNLCOS provisions and United States “international waters” regimes concerning the water body,and discusses the issue of residual rights in the law of the sea.From the perspective of the historical development of international law of the sea,extending from land to sea,the rights entitled to coastal states are gradually diminishing and the rights enjoyed by the international community are gradually increasing.On the contrary,from the high seas to coastal states' jurisdictional sea,other countries shall commit more duties.However,the United States “international waters” regime obscures this RULE resulting in conflicts between its domestic law and the UNCLOS.Although the United States has not been a party to the UNCLOS,the fundamental principles of the convention can still have some effect on it.Considering peace and order are the basic values of international law and their own national security interests,coastal states should have jurisdiction over military operations of other countries and over ships or aircrafts engaged in specific acts in their exclusive economic zone.Chapter ? challenges the lawfulness and legitimacy of the United States' practice of “international waters”.The United States regards the “global commons” as the theoretical foundation of “international waters” system and holds the position that any area beyond national sovereignty is “global commons” where nation-states enjoy unlimited freedom.However,the sovereign rights enjoyed by a country in a particular area and the integrative management of the “commons” by inter-governmental international organizations along with other means of global governance all set restrictions on the behavior of a country.The proposal and practice of “global commons” highlight the hegemony nature of the United States.The United States takes mare liberum as its legal source of freedom of military operations while the intension and extension of mare liberum have evolved during hundred years of developing.The meaning of freedom in the United States understanding is unlimited,which is inconsistent with UNCLOS and the practice of most states.Peaceful use is the prerequisite of freedom of the sea and there are many restrictions such as the vessels type and the area of the operation.Obviously,warships navigation,military aircrafts over flight and other military uses of the sea such as military survey in other countries EEZ without coastal states' permission are beyond the acceptable intension of “freedom of the sea”.In practice,FONOPs constitutes a vital part of the practice of “international waters” regime aiming at challenging the “excessive maritime claims” of coastal states thereby refraining from the justification of customary international law.Actually,FONOPs threat the peace and security as well as jurisdiction of coastal states.It has no legitimacy thereby.With regard to the SCS,the United States FONOPs within 12 nm of some marine features in Nansha Islands aims at challenging China's actions or statements that indicate a claim to a territorial sea or EEZ and continental shelf around features not so entitled.The concluding remarks summarize the whole dissertation and put forward strategies for coastal countries to fight against the United States' practice of “international waters”.First,the international community should attach great importance to the role of the UNCLOS and general international law in building a harmonious order of the oceans.Second,for coastal states around specific waters and seas,they should strengthen their cooperation and adopt regional approaches to the integration management.Third,coastal states themselves should formulate long-term marine development strategies and improve their domestic legislation.For China,during the process of building a “Marine Power”,it should adhere to the principle of peaceful coexistence and develop friendly foreign maritime relations with other countries,so as to better safeguard our own maritime rights and interests as well as the stability of the international order on the oceans.