| Freedom of navigation has become a hot issue in the international maritime field,since a series of disputes between China and the United States on the issue of freedom of navigation in the South China Sea.The freedom of navigation in the exclusive economic zone(EEZ)is very important and involves maritime security.Issues in the development of marine resources,military activities and marine environmental protection in the EEZ are particularly prominent.The freedom of navigation has never been absolute freedom;it is subject to various restrictions in the EEZ.The relevant provisions of the United Nations Convention on the Law of the Sea are ambiguous,and a reasonable interpretation is required for specific application.Countries often interpret the content according to their own interests and needs,which inevitably leads to abuse.Based on the relevant provisions of the United Nations Convention on the Law of the Sea on freedom of navigation in the EEZ,this paper will study the theoretical and legal basis of the "freedom of navigation"(FON)of the United States,analyze the impact of the United States FON policy on China,and draw the enlightenment to China and the policy countermeasures of our country.This article is divided into four chapters:The first chapter provides an overview of the historical evolution and related practices of the FON.Starting from the historical evolution of the principle of freedom of navigation,this chapter explores the background of the development of this principle under various restrictions.In this context,this analysis analyzes the change of the position of the United States on the principle of freedom of navigation in the early years of the founding of the U.S.and under different identities in war.The FON plan was born in the third United Nations Conference on the Law of the Sea.The United States was dissatisfied with the negotiation results of the conference.After the plan was released,the US government continued to improve it and implemented it at different levels through diplomatic protests,consultations,and military declarations.Among them,the FON operation is the core of the implementation of the plan.The last section focuses on the continuous changes in the implementation goals of the FON under the guidance of the US’s constantly adjusting maritime policies,and China has gradually become a key target country for its operations.The second chapter is an in-depth analysis of the conflict between FON operations and the jurisdiction of coastal states in the EEZ.First,to study the claims of coastal States in the EEZ challenged by FON operations,and conclude that the propositions of coastal states that challenge operational challenges focus on restrictions on the freedom of navigation and overflight of warships and aircraft,prior approval of military exercises and surveying activities in the area are classified as crimes.Then it analyzes the basis of international law advocated by coastal states,and examines whether coastal states’ claims challenged by FON are "excessive." The claims made by coastal states in the EEZ are based on the sovereign rights and jurisdiction granted to coastal states by the Convention and the interpretation of the residual rights in the law of the sea.The conflict between "freedom of navigation" and the jurisdiction of coastal states is actually due to the vagueness of the provisions of the "Convention" which has led to different interpretations by various countries.Therefore,this chapter finally analyzes the causes of the conflicts between "freedom of navigation" and coastal states’ legislative jurisdiction,marine scientific research jurisdiction,and conflicts between national security interests and military use,and concludes that "freedom of navigation" challenges the coastal areas.The country’s claims are in line with the rules of international law.The third chapter is an international law analysis on the theoretical basis of the US "freedom of navigation".This chapter first analyzes the theoretical basis supporting "freedom of navigation operations" from the perspective of international law,and points out that the United States’ claim that the exclusive economic zone is listed as "international waters" lacks legal basis in international law;as the "Convention" The United States,which is not a party,asserts its rights to the states parties to the Convention by invoking customary international law,but excludes itself from the obligations related to the exclusive economic zone,creating a state of imbalance of rights and obligations and harming the interests of states parties to the Convention;The United States completely interprets the remaining rights in the exclusive economic zone as rights related to economic value,while downplaying the political and military values in it,and ignoring the national security interests of coastal states in the exclusive economic zone.Then,from a legal point of view,it is pointed out that the abovementioned behavior of the United States is a reflection of its legal instrumentalism tradition on the level of international law.Next,the three legal prerequisites for navigating and other activities of warships in the exclusive economic zone are emphatically analyzed.The legal use of the sea is to satisfy the principle of "peaceful use" and the requirements of "international legal use";the legal fulfillment of the obligation of "due care" is given.The standard of lawful performance is defined as "good faith" fulfillment of treaty obligations;meanwhile,the navigation and activities of warships must not harm the national security interests of coastal states.The fourth chapter is to summarize the enlightenment and countermeasures of American freedom of navigation policies and actions to China.First,it is necessary to clarify China’s attitude towards the navigation of warships and military activities in the exclusive economic zone: the legal navigation of warships should be guaranteed,and specific issues of military activities should be analyzed in detail.At the same time,an inclusive and balanced ocean value should be maintained to pave the way for my country’s future ocean-going strategy.Then,from the level of domestic law,it puts forward suggestions on my country’s exclusive economic zone legislation and management system,pointing out that my country should pass legislative amendments to clearly define the concepts related to military activities,make the approval procedures for foreign-related marine scientific research more operable,and make full use of the sea.The maritime rights enforcement force of the police.From the perspective of international law,the principle of resolving conflicts of rights in the exclusive economic zone as stipulated in Article 59 of the Convention should be followed,and bilateral and multilateral consultation mechanisms should be adopted to resolve misunderstandings and reduce contradictions and frictions. |
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