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ince the Freedom of Navigation Program was propod in 1979,1 successive governments of the United States have continued to strengthen their position through a ries of official documents, put forward the so-called “excessive maritime claims” theory and, in practice, took the “two-pronged approach,” using both diplomatic channels and regular “Freedom of Navigation operations” to protest and challenge other countries’ “excessive maritime claims.” It has been proved that this t of theories and practices of the United States, which is not a party to the United Nations Convention on the Law of the Sea, cannot really maintain the authority and integrity of the Convention. At prent, the domestic academia has yielded rich rearch on veral theoretical and practical issues of international maritime law involving the “freedom of navigation.” Rearchers have had some preliminary analysis on the practice of the US Freedom of Navigation Program and related issues of international law and international politics. However, the Chine academia’s analysis on the “excessive maritime claims,” which is the theoretical basis for “Freedom of Navigation operations,” has not been deep enough, and studies on the characteristics and esnce of the operations has not been sufficient. “Freedom of Navigation operations” is the practice of the “excessive maritime claims” theory, thus the two are inparable. It is necessary to combine Bao Yinan is a post-doctoral fellow at the Center for Rule of La
w Strategy Studies, East China University of Political Science and Law.1 J. Ashley Roach and Robert W. Smith, Excessive Maritime Claims , 3rd edition, Leiden: Martinus Nijhoff Publishers, 2012, p.6.The US “Excessive Maritime Claims ”:merry christmas是什么意思
欢迎词英文A Critical Analysis Bao Yinan
international maritime law and the system and rules of general international law to comprehensively unveil the problems of the two from theoretical and practical perspectives.
controlerMain Contents and Defects of “Excessive Maritime Claims”The proposal of “excessive maritime claims” as the theoretical basis for the United States’ “Freedom of Navigation operations” is inparable from the cautious and skeptical attitude of the US towards the Convention before and after the birth of the international accord, and its rerved position concerning some articles to expand the jurisdiction of coastal states and restrict the “freedom of navigation.” With the adoption and entry into force of the Convention, some of the provisions have been gradually established as recognized rules of international law. And the United States has, in accordance with its objectives to maintain its national interests, enriched, updated and expanded the specific contents of its “excessive maritime claims” theory.
Background of “excessive maritime claims”
According to the document issued by the US government in February 2017, the so-called “excessive maritime claims” refers to “claims to maritime zones or jurisdiction that are inconsistent with the international law of the a and, if left unchallenged, could impinge on the rights, freedoms, and us of the a and airspace guaranteed to all States under international law.”2 And in the book Excessive Maritime Claims co-written by J. Ashley Roach, a US scholar who was Navy Captain and worked at the State Department Office of the Legal Advir, and Robert W. Smith, who was a geographic expert on maritime boundary and jurisdictional issues at the State Department, “excessive maritime claims” is defined as “Claims by coastal States to sovereignty, sovereign rights or jurisdiction over ocean areas that are 2 US Department of Defen, “Freedom of Navigation (FON) Program Fact Sheet,” February 28, 2017,
gre机考流程v/Portals/11/DoD%20FON%20Program%20Summary%2016.pdf?ver=2017-03-03- 141350-380.
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inconsistent with the terms of the LOS Convention.”3
In fact, “excessive maritime claims” is not a newly propod concept by the US government and aca
demics, but rather one born in the early 1980s, or the period from the end of the Third Conference on the Law of the Sea to the final adoption of the Convention. The US government has always emphasized the importance of freedom of navigation, and challenged the claims of other countries that may restrict “freedom of navigation” through naval operations. The direct purpo of this challenge is to maintain the “freedom of navigation” in the traditional n that the United States has consistently adhered to, that is, all vesls, including warships, enjoy “high as freedom” in the waters beyond the territorial waters of coastal states, including the high as per . Obviously, the fundamental aim of the US to uphold such traditional “high as freedom” is to prerve its core interests.4 As early as 1979, when the US government initially propod the “Freedom of Navigation Program,” Ambassador Elliot L. Richardson, the Special Reprentative of the President for the Third UN Conference on the Law of the Sea, pointed out the importance of freedom of navigation, especially the freedom of operations of the US Navy in global oceans, to maintaining the core interests of the United States: “Our economic well-being is continually more dependent on overas trade and vulnerable to distant political developments. The combined result is to compel incread reliance on the strength, mobility, and versatility of the US Navy. T o fulfill its deterrent and protective missions, our Navy must have the manifest capacity either to maintain a prence in farflung areas of the globe or to asmble such a prence rapidly…Our strategic objectives cannot be achieved u财务培训
nless the legitimacy of the principles (freedom of navigation and overflight) is sufficiently accepted by the world at large so that their obrvance can be carried out on a routine operational basis.”5
3 J. Ashley Roach and Robert W. Smith, Excessive Maritime Claims, p.17.
4 Ibid. See also Dale Stephens, “The Legal Efficacy of Freedom of Navigation Asrtions,” International Law Studies, V ol.80, 2004, No.1, p.241.
僭越5 US Department of State Office of the Legal Advir, “Freedom of Navigation,” in Marian Lloyd Nash, Digest of US Practice in International Law 1979, Washington: Government Printing Office, 1979, pp.1066, 1067-1068.
In December 1982, the same year that the Convention was adopted, the United States issued a National Security Decision Directive, which concily stated the significance of establishing the Freedom of Navigation Program for challenging the “excessive maritime claims” of other countries: “The current uncertainty in the law of the a and the US decision not to become a party to the Law of the Sea (LOS) Convention make all the more necessary a clear asrtion of our rights and a revitalized and more effective navigation and overflight program.”6 On March 8, 1983, the US delegation to the Third UN Conference on the Law of the Sea made a statement regarding the conce
pt of the exclusive economic zone in the Convention: “This concept, as t forth in the Convention, recognizes the interest of the coastal State in the resources of the zone and authorizes it to asrt jurisdiction over resource-related activities therein. At the same time, all States continue to enjoy in the zone traditional high as freedoms of navigation Military operations, exercis and activities have always been regarded as internationally lawful us of the a. The right to conduct such activities will continue to be enjoyed by all States in the exclusive economic zone.”7 Then, in the President’s Ocean Policy Statement issued on the 10th the same month, President Reagan further emphasized that “The United States will not, however, acquiescence in unilateral acts of other states designed to restrict the rights and freedoms of the international community in navigation and overflight and other related high as us.”8
It can be en that, before and after the adoption of the Convention, the top US government officials had realized that some of the newly enacted rules of the Convention have adjusted the traditional principles of “freedom 6 The White Hou, National Security Decision Directive 72, p.1, fas/irp/offdocs/nsdd/nsdd-72. pdf.
7 See “Statement of the United States of America, 8 March 1983,” in “Note by the Secretariat,” UN Doc. A/CONF.62/WS/37, Official Records of the Third United Nations Conference on the Law of the
Sea, Volume XVII, p. 244, legal.un/docs/?path=../diplomaticconferences/1973_los/docs/english/vol_17/a_ conf62_ws_37_and_add1_2.pdf&lang=E.
8 “President’s Ocean Policy Statement, March 10, 1983,” reprinted in J. Ashley Roach and Robert W. Smith, Excessive Maritime Claims, p.648.
of navigation” and, to a certain extent, reduced the scope of applicable waters for “freedom of navigation” while expanding the jurisdiction of coastal states. For example, Ambassador Richardson argues that complicating factors, such as the Convention’s expansion of maximum width of the territorial as to 12 nautical miles and the emergence of a 200-mile exclusive economic zone, will have an unintended impact on the freedom of navigation that the United States has always upheld.9 It was in this context that the theory of “excessive maritime claims” came into being. It not only reflects the US government’s cautious attitude towards veral new rules of the Convention, but also provides theoretical support and guarantee of domestic legal system for making its overas naval operations free from interference from other countries.
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bannySpecific contents and nature of “excessive maritime claims”
In the National Security Decision Directive of 1982, the US government listed for the first time the main categories of excessive maritime claims that it needs to identify and challenge:
1. Tho historic bay/historic water claims not recognized by the
United States.
2. Tho continental territorial a baline claims not drawn in
conformance with the LOS Convention.
3. Tho territorial as claims exceeding three miles but not
exceeding twelve miles in breadth that:
a. overlap straits ud for international navigation and do not
permit transit passage in conformance with the L OS Convention,
现金流量表的编制方法including submerged transit of submarines, overflight of military
aircraft, and surface transit of warships/naval auxiliaries, without
prior notification or authorization; or
b. contain requirements for advance notification or authorization
for warships/naval auxiliaries of [sic] apply discriminatory
9 US Department of State Office of the Legal Advir, “Freedom of Navigation,” in Digest of US Practice in International Law 1979, p.1068.
