3 The United Nations Convention …
61
historical nature found at sea; cooperation between related States on issues such as
anadromous stocks in the Exclusive Economic Zone, the jurisdiction and control of
the flag State over ships flying its flag and the inquiry into every marine casualty or
incident of navigation on the high seas, the management of the living resources of the
high seas, rights of access of land-locked States to and from the sea and avoidance
of delay of traffic in transit and other technological difficulties when exercising the
freedom of transit.
66
There are many levels and aspects of cooperation, which are not only decided by
comprehensiveness, uniqueness and functionality of the sea but also are the international community’s understanding on the principle of cooperation and its summary
of the application in marine management.
3.5.2 China’s Measures for Improving the Domestic Legal
System of the Sea
As above-mentioned, China, according to customary international law and the
modern system of the law of the sea, especially the UNCLOS, continually enacts
and enriches the domestic system of the law of the sea. China plays a positive role in
management and development of marine affairs to some extent, but there is a situation
where the international community especially the USA challenges China’s principles and regimes of the law of the sea. In order to further promote the modernization
of marine governance systems and capabilities of China and make contributions to
building an ocean power, it is of special importance for China to take corresponding
measures of improving the legal system of the sea for realizing the goal of ruling the
sea by law.
Firstly, the status of the sea should be established in the national legal system.
From the content of the Constitution of China, there is no expression of the status
of the “sea” in the national legal system, so for improving the sustainable function
of the sea, it is necessary to upgrade its status. The key way would be to incorporate
provisions into the Constitution that allow the sea to be a part of natural resources
and to be protected, or formulating the Basic Law of the Sea to define or regulate the
status of the sea, so as to establish and improve the status of the sea.
Secondly, the emphasis should be on research into provisions of the law of sea
challenged by other countries. As abovementioned, other countries have doubts about
China’s straight baseline system in Xisha, the procedural permission or notice system
for warships’ innocent passage in the territorial sea and the permission system for
military activities in the Exclusive Economic Zone. Therefore, China should enhance
communication and coordination with other countries on these disputed issues on the
66 See Okuwaki (2015), Shinzansha, 2015 Edition.
61
historical nature found at sea; cooperation between related States on issues such as
anadromous stocks in the Exclusive Economic Zone, the jurisdiction and control of
the flag State over ships flying its flag and the inquiry into every marine casualty or
incident of navigation on the high seas, the management of the living resources of the
high seas, rights of access of land-locked States to and from the sea and avoidance
of delay of traffic in transit and other technological difficulties when exercising the
freedom of transit.
66
There are many levels and aspects of cooperation, which are not only decided by
comprehensiveness, uniqueness and functionality of the sea but also are the international community’s understanding on the principle of cooperation and its summary
of the application in marine management.
3.5.2 China’s Measures for Improving the Domestic Legal
System of the Sea
As above-mentioned, China, according to customary international law and the
modern system of the law of the sea, especially the UNCLOS, continually enacts
and enriches the domestic system of the law of the sea. China plays a positive role in
management and development of marine affairs to some extent, but there is a situation
where the international community especially the USA challenges China’s principles and regimes of the law of the sea. In order to further promote the modernization
of marine governance systems and capabilities of China and make contributions to
building an ocean power, it is of special importance for China to take corresponding
measures of improving the legal system of the sea for realizing the goal of ruling the
sea by law.
Firstly, the status of the sea should be established in the national legal system.
From the content of the Constitution of China, there is no expression of the status
of the “sea” in the national legal system, so for improving the sustainable function
of the sea, it is necessary to upgrade its status. The key way would be to incorporate
provisions into the Constitution that allow the sea to be a part of natural resources
and to be protected, or formulating the Basic Law of the Sea to define or regulate the
status of the sea, so as to establish and improve the status of the sea.
Secondly, the emphasis should be on research into provisions of the law of sea
challenged by other countries. As abovementioned, other countries have doubts about
China’s straight baseline system in Xisha, the procedural permission or notice system
for warships’ innocent passage in the territorial sea and the permission system for
military activities in the Exclusive Economic Zone. Therefore, China should enhance
communication and coordination with other countries on these disputed issues on the
66 See Okuwaki (2015), Shinzansha, 2015 Edition.