“国际海洋法”英文部分解读

国际海洋法

第一节 概述

一、国际海洋法的概念

The law of the sea is that law by which States regulate their relations in respect of the marine territory subject to coastal State jurisdiction and those areas of the sea and sea bed beyond any national jurisdiction.

三、国际海洋法的编纂

Codification of International Law of the Sea

relevant conventions are:

a) Convention on the Territorial sea and the Contiguous Zone 1959 [TSC], (entered into force on Sept. 10,19); 领海与毗连区公约

b) Convention on the Continental Shelf 1958[CSC], (Jun. 10,19); 架公约

c) Convention on Fishing and the Conservation of the Living Resources of the High Seas 1958[FC]， (Mar. 20,1966)； 捕鱼和养护公海生物资源公约

d) Convention on the High Seas 1958[HSC]， (Sept. 30, 1962)；公海公约 and

e) United Nations Convention on the law of the sea (Law of the Sea Convention ) 1982[LOSC]， ( Nov. 16, 1994)。联合国海洋法公约

四、领海基线 baselines of the territorial sea

The starting point for establishing the maritime zones.

The baselines of a state serve dual functions：

They demarcate the state’s internal waters from external waters. They also provide the lines from which the outer limits of maritime zones will be measured . Thus, all waters of a state that are landward of its baselines are internal waters and are an integral part of the territory of the coastal State, and are treated virtually as if they were part of the state’s land territory. Waters seaward of a state’s baselines are subject to the law of the sea.

According to Law of the Sea Convention , there are two types of baselines:

1. 正常基线 normal baseline / natural baseline

LOSC Article 5 “the normal baseline for measuring the breadth of the territorial sea is the low-water line along the coast as marked on large-scale charts officially recognized by the coastal State. ” 测算领海宽度的正常基线是沿

海国官方承认的大比例尺海图所标明的沿岸低潮线。”

2. 直线基线 Straight baselines

LOSC Article 7 (1) “In localities where the coastline is deeply indented and

cut into, or if there is a fringe of islands along the coast in its immediate vicinity, the method of straight baselines joining appropriate points may be employed in drawing the baseline from which the breadth of the territorial sea is measured. ” 在海岸线极为曲折的地方,或者如果紧接海岸有一系列岛屿,测算领海宽度的基线的划定可采用连接各适当点的直线基线法。”

第二节 主要海域

一、内海 internal sea

LOSC Article 8 (1) waters on the landward side of the baseline of the territorial sea form part of the internal waters of the State. ” 领海基线向陆一面的水域构成国家内水的一部分

legal status:

1. coastal State has complete and exclusive sovereignty subject to the right of foreign vessels in distress to seek safety in internal waters

2. Where the establishment of a straight baseline has the effect of enclosing as internal waters areas which had not previously been considered

as such, a right of innocent passage as provided in this Convention shall exist in those waters.

二、领海 the territorial sea

1. 领海的概念 Concept of territorial sea

LOSC Article 2 (1) “The sovereignty of a coastal State extends, beyond its land territory and internal waters and, in the case of an archipelagic State, its archipelagic waters, to an adjacent belt of sea, described as the territorial sea.” 沿海国的主权及于其陆地领土及其内水以外邻接的一带海域，在群岛国的情形下则及于群岛水域以外邻接的一带海域，称为领海。

2. Breadth of the territorial sea 领海的宽度

LOSC Article 3 “Every State has the right to establish the breadth of its territorial sea up to a limit not exceeding 12 nautical miles, measured from baselines determined in accordance with this Convention.” 每一国家有权确定其领海的宽度，直至从按照本公约确定的基线量起不超过十二海里的界限为止。

(1) Interior limit of the territorial sea

--- is baselines of the territorial sea, which is the boundary between internal waters and territorial sea. 领海的内部界线----是领海基线，是内水和领海的分界线。

(2) Outer limit of the territorial sea

LOSC Article 4

The outer limit of the territorial sea is the line every point of which is at a distance from the nearest point of the baseline equal to the breadth of the territorial sea. 领海的外部界限----是一条其每一点同基线最近点的距离等于领海宽度的线。

3. 领海的法律地位 legal status

LOSC Article 2 （1） The sovereignty of a coastal State extends, beyond its land territory and internal waters and, in the case of an archipelagic State, its archipelagic waters, to an adjacent belt of sea, described as the territorial sea. （1） 沿海国的主权及于其陆地领土及其内水以外邻接的一带海域,在群岛国的情形下则及于群岛水域以外邻接的一带海域,称为领海。 （2） This sovereignty extends to the air space over the territorial sea as well as to Its bed and subsoil. （2）此项主权及于领海的上空及其海床和底土。 （3） The sovereignty over the territorial sea is exercised subject to this Convention and to other rules of international law. （3）对于领海的主权的行使受本公约和其他国际法规则的。 The nature of the coastal state’s rights in the territorial sea is state’s

sovereignty. 沿海国在领海上的权利的性质为国家主权。 4.无害通过权 the right of innocent passage The rights of the vessels of other state’s to pass through the territorial sea； （1） Meaning of passage 通过的意义 LOSC Article 18 A. navigation for the purpose of: a. traversing that sea without entering internal waters or calling at a roadstead or port facility outside internal waters; or b. proceeding to or from internal waters or a call at such roadstead or port facility. B. Passage shall be continuous and expeditious. A. 通过是指为了下列目的,通过领海的航行: a. 穿过领海但不进入内水或停靠内水以外的泊船处或港口设施;或 b. 驶往或驶出内水或停靠这种泊船处或港口设施。

B. 通过应继续不停和迅速进行。 （2） Meaning of innocent passage 无害通过的意义 LOSC Article 19 A. Passage is innocent so long as it is not prejudicial to the peace, good order or security of the coastal State. A.通过只要不损害沿海国的和平、良好秩序或安全,就是无害的。 B. Passage of a foreign ship shall be considered to be prejudicial to the peace, good order or security of the coastal State if in the territorial sea it engages in any of the following activities: B. 如果外国船舶在领海内进行下列任何一种活动，其通过即应视为损害沿海国的和平、良好秩序或安全: a. any threat or use of force against the sovereignty, territorial integrity or political independence of the coastal State；a. 对沿海国的主权、领土完整或政治进行任何武力威胁或使用武力； b. any exercise or practice with weapons of any kind; b.以任何种类的武器进行任何操练或演习； c. spying; c.间谍活动 d. any act of propaganda aimed at affecting the defence or security of the coastal State ; d.任何目的在于影响沿海国防务或安全的宣传行为;

e. the launching or taking on board aircraft; e.在船上起落或接载任何飞机; f. the launching, landing or taking on board of any military device; f.在船上发射、降落或接载任何军事装置; g. the loading or unloading persons or goods contrary to the customs, fiscal, immigration or sanitary laws and regulations of the coastal State; g.违反沿海国海关、财政、移民或卫生的法律和规章，上下任何商品、货币或人员; h. willful and serious pollutionh.；故意和严重的污染行为; i. fishing; i.捕鱼活动 j. research or survey activities; j.进行研究或测量活动; k. any act aimed at interfering with any systems of communication or any other facilities or installations of the coastal State; k.任何目的在于干扰沿海国任何通讯系统或任何其他设施或设备的行为; l. any other activity not having a direct bearing on passage. l.与通过没有直接关系的任何其他活动。 5. judicial jurisdiction 司法管辖权 （1） criminal jurisdiction 刑事管辖权

LOSC Article 27 A. . The criminal jurisdiction of the coastal State should not be exercised on board a foreign ship passing through the territorial sea to arrest any person or to conduct any investigation in connection with any crime committed on board the ship during its passage, save only in the following cases: 沿海国不应在通过领海的外国船舶上行使刑事管辖权,以逮捕与在该船舶通过期间船上所犯任何罪行有关的任何人或进行与该罪行有关的任何调查,但下列情形除外: a. if the consequences of the crime extend to the coastal State; a.罪行的后果及于沿海国; b. if the crime is of a kind to disturb the peace of the country or the good order of the territorial sea; b.罪行属于扰乱当地安宁或领海的良好秩序的性质; c. if the assistance of the local authorities has been requested by the master of the ship or by a diplomatic agent or consular officer of the flag State; or c.经船长或船旗国外交代表或领事请求地方当局予以协助;或 d. if such measures are necessary for the suppression of illicit traffic in narcotic drugs or psychotropic substances. d.这些措施是取缔违法贩运品或精神调理物质所必要的。 B. In other cases, the coastal State shall, if the master so requests, notify a diplomatic agent or consular officer of the flag State before taking any steps,

and shall facilitate contact between such agent or officer and the ship's crew. In cases of emergency this notification may be communicated while the measures are being taken. B. 如经船长请求,沿海国在采取任何步骤前应通知船旗国的外交代表或领事,并应便利外交代表或领事和船上乘务人员之间的接触。 遇有紧急情况,发出此项通知可与采取措施同时进行。 （2） civil jurisdiction 民事管辖权 LOSC Article 28 The coastal State should not stop or divert a foreign ship passing through the territorial sea for the purpose of exercising civil jurisdiction in relation to a person on board the ship. The coastal State may not levy execution against or arrest the ship for the purpose of any civil proceedings, save only in respect of obligations or liabilities assumed or incurred by the ship itself in the course or for the purpose of its voyage through the waters of the coastal State. 沿海国不应为对通过领海的外国船舶上某人行使民事管辖权的目的而停止其航行或改变其航向。 沿海国不得为任何民事诉讼的目的而对船舶从事执行或加以逮捕,但涉及该船舶本身在通过沿海国水域的航行中或为该航行的目的而承担的义务或因而负担的责任,则不在此限。

三、毗连区 Contiguous zone 1. Concept “In a zone contiguous to its territorial sea” . The contiguous zone may extend beyond 24 nautical miles from the baselines from which the breadth of the territorial sea is measured. 2. Legal status Contiguous zone has no unattached legal status. LOSC Article 33 “the coastal State may exercise the control necessary to: a. prevent infringement of its customs, fiscal, immigration or sanitary laws and regulations within its territory or territorial sea; b. punish infringement of the above laws and regulations committed within its territory or territorial sea. ” 沿海国可在毗连其领海称为毗连区的区域内,行使为下列事项所必要的管制: (a)防止在其领土或领海内违犯其海关、财政、移民或卫生的法律和规章;

(b)惩治在其领土或领海内违犯上述法律和规章的行为。 四、群岛水域 archipelagic waters 1. archipelagic State “archipelagic State” means a State constituted wholly by one or more archipelagos and may include other islands. 2. Legal status of archipelagic waters “archipelagic waters” --- the waters enclosed by the archipelagic baselines. The sovereignty of an archipelagic State extends to archipelagic waters, regardless of their depth or distance from the coast, to the air space over the archipelagic waters, as well as to their bed and subsoil, and the resources contained therein. 3. Right of archipelagic sea lanes passage 1) All ships and aircraft enjoy the right of archipelagic sea lanes passage in such sea lanes and air routes as designated by the archipelagic State. 2) “Archipelagic sea lanes passage ”means the exercise in accordance

with this Convention of the rights of navigation and overflight in the normal mode solely for the purpose of continuous, expeditious and unobstructed transit between one part of the high seas or an exclusive economic zone and another part of the high seas or an exclusive economic zone. 五、用于国际航行的海峡 Straits used for international navigation 1. Legal status The regime of passage through straits used for international navigation shall not in other respects affect the legal status of the waters forming such straits or the exercise by the States bordering the straits of their sovereignty or jurisdiction over such waters and their air space, bed and subsoil. 2. The regime of passage 1) freedoms of navigation and overflight if there exists through the strait a route through the high seas or through an exclusive economic zone of similar convenience with respect to navigational and hydrographical characteristics, in such routes, the freedoms of navigation and overflight apply.

2) transit passage “Transit passage” means the exercise of the freedom of navigation and overflight solely for the purpose of continuous and expeditious transit of the strait between one part of the high seas or an exclusive economic zone and another part of the high seas or an exclusive economic zone. 3. Innocent passage 1）the strait is between a part of the high seas or an exclusive economic zone and the territorial sea of a foreign State. 2） if the strait is formed by an island of a State bordering the strait and its mainland, transit passage shall not apply if there exists seaward of the island a route through the high seas or through an exclusive economic zone of similar convenience with respect to navigational and hydrographical characteristics. There shall be no suspension of innocent passage through such straits. 六、专属经济区 the exclusive economic zone The exclusive economic zone is an area beyond and adjacent to the territorial sea, shall not extend beyond 200 nautical miles from the baselines from which the breadth of the territorial sea is measured.

2.Legal system 1) Rights, jurisdiction and duties of the coastal State Rights: ⑴ sovereign rights for the purpose of exploring and exploiting, conserving and managing the natural resources, whether living or non-living, of the waters superjacent to the sea-bed and of the sea-bed and its subsoil, and ⑵ with regard to other activities sovereign rights for the economic exploitation and exploration of the zone, such as the production of energy from the water, currents and winds. jurisdiction ： ⑴ the establishment and use of artificial islands, installations and structures; ⑵ marine scientific research; ⑶ the protection and preservation of the marine environment Duties：

the coastal State shall have due regard to the rights and duties of other States 2) Rights and duties of other States in the EEZ Rights: the freedoms of navigation and overflight; the freedoms of the laying of submarine cables and pipelines; and other internationally lawful uses of the sea related to these freedoms. Duties： States shall have due regard to the rights and duties of the coastal State and shall comply with the laws and regulations adopted by the coastal State. 七、架 continental shelf 1. Definition of the continental shelf The continental shelf of a coastal State comprises the sea-bed

and subsoil of the submarine areas that extend beyond its territorial sea throughout the natural prolongation of its land territory to the outer edge of the continental margin. Breadth of the continental shelf To a distance of 200 nautical miles from the baselines from which the breadth of the territorial sea is measured where the outer edge of the continental margin does not extend up to that distance. The fixed points comprising the line of the outer limits of the continental shelf on the sea-bed either shall not exceed 350 nautical miles from the baselines from which the breadth of the territorial sea is measured or shall not exceed 100 nautical miles from the 2,500 metre isobath, which is a line connecting the depth of 2,500 metres. 2. Legal status of continental shelf 1) The rights of the coastal State over the continental shelf do not depend on occupation, effective or notional, or on any express proclamation. 2) The coastal State exercises exclusive sovereign rights over the continental shelf for the purpose of exploring it and exploiting its natural resources.

3) The rights of the coastal State over the continental shelf do not affect the legal status of the superjacent waters or of the air space above those waters。 3.Legal system 1) Rights and duties of the coastal State A. The coastal State exercises over the continental shelf sovereign rights for the purpose of exploring it and exploiting its natural resources. B. The rights are exclusive in the sense that if the coastal State does not explore the continental shelf or exploit its natural resources, no one may undertake these activities without the express consent of the coastal State. C. The coastal State shall have the exclusive right to authorize and regulate drilling on the continental shelf for all purposes. D. the coastal State shall have the exclusive right to construct and to authorize and regulate the construction, operation and use of artificial islands and necessary installations and structures E. The exercise of the rights of the coastal State over the continental shelf must not infringe or result in any unjustifiable interference with navigation and other legitimate rights and freedoms of other States.

2) Rights and duties of other States over the continental shelf 八、公海 （一）公海的概念和法律地位 High seas are referred to as all parts of the sea that are not included in the exclusive economic zone, in the territorial sea or in the internal waters of a State, or in the archipelagic waters of an archipelagic State. Legal status： 1. No State may validly purport to subject any part of the high seas to its sovereignty. 2. Every State, whether coastal or land-locked, has the right to sail ships flying its flag on the high seas. 3. The high seas shall be reserved for peaceful purposes. （二）公海的法律制度 1. Freedom of the high seas The high seas are open to all States, whether coastal or land-locked. comprises:

1) freedom of navigation; 2) freedom of overflight; 3) freedom to lay submarine cables and pipelines; 4) freedom to construct artificial islands and other installations permitted under international law; 5) freedom of fishing; 6) freedom of scientific research, 2. Jurisdiction on the high seas （1）jurisdiction of the flag state A. Nationality of ships Every State shall fix the conditions for the grant of its nationality to ships, for the registration of ships in its territory, and for the right to fly its flag. Ships have the nationality of the State whose flag they are entitled to fly. There must exist a genuine link between the State and the ship. Nationality of ship is established by certificate of ship and the flying flag .

B. Status of ships a. Ships shall sail under the flag of one State only and shall be subject to its exclusive jurisdiction on the high seas. A ship may not change its flag during a voyage or while in a port of call, save in the case of a real transfer of ownership or change of registry. b. A ship which sails under the flags of two or more States, using them according to convenience, may not claim any of the nationalities in question with respect to any other State, and may be assimilated to a ship without nationality. c. The preceding articles do not prejudice the question of ships employed on the official service of the United Nations, its specialized agencies or the International Atomic Energy Agency, flying the flag of the organization. C. Duties of the flag State a. Every State shall effectively exercise its jurisdiction and control in administrative, technical and social matters over ships flying its flag. “每个国家应对悬挂该国旗帜的船舶有效地行使行政、技术及社会事项上的管辖和控制。” b. assume jurisdiction under its internal law over each ship flying its nag

and its master, officers and crew in respect of administrative, technical and social matters concerning the ship. “根据其国内法,就有关每艘悬挂该国旗帜的船舶的行政、技术和社会事项,对该船及其船长、高级船员和船员行使管辖权。” c. Each State shall cause an inquiry to be held by or before a suitably qualified person or persons into every marine casualty or incident of navigation on the high seas involving a ship flying its flag and causing loss of life or serious injury to nationals of another State or serious damage to ships or installations of another State or to the marine environment. The flag State and the other State shall co-operate in the conduct of any inquiry held by that other State into any such marine casualty or incident of navigation. 每一国家对于涉及悬挂该国旗帜的船舶在公海上因海难或航行事故对另一国国民造成死亡或严重伤害,或对另一国的船舶或设施、或海洋环境造成严重损害的每一事件,都应由适当的合格人士一人或数人或在有这种人士在场的情况下进行调查。对于该另一国就任何这种海难或航行事故进行的任何调查,船旗国应与该另一国合作。 D. Immunity of warships on the high seas Warships on the high seas have complete immunity from the jurisdiction of any State other than the flag State. E. Immunity of ships used only on government non-commercial

service Ships owned or operated by a State and used only on government non-commercial service shall, on the high seas, have complete immunity from the jurisdiction of any State other than the flag State. （3）universal jurisdiction Right of visit: Except where acts of interference derive from powers conferred by treaty, a warship which encounters on the high seas a foreign ship, other than a ship entitled to complete immunity, is justified in boarding it if there is reasonable ground for suspecting that: a. the ship is engaged in piracy; b. the ship is engaged in the slave trade; c. the ship is engaged in unauthorized broadcasting and the flag State of the warship has jurisdiction; d. the ship is without nationality; or e. though flying a foreign flag or refusing to show its flag, the ship is, in reality, of the same nationality as the warship. If the suspicions prove to be unfounded, and provided that the ship

boarded has not committed any act being suspected, it shall be compensated for any loss or damage that may have been sustained These provisions apply to military aircraft,any other duly authorized ships or aircraft clearly marked and identifiable as being on government service. （4）protective jurisdiction Right of hot pursuit The hot pursuit of a foreign ship may be undertaken when the competent authorities of the coastal State have good reason to believe that the ship has violated the laws and regulations of that State. Such pursuit must be commenced when the foreign ship or one of its boats is within the maritime spaces under the jurisdiction of pursuing State, and may only be continued to the hign seas if the pursuit has not been interrupted. The right of hot pursuit ceases as soon as the ship pursued enters the territorial sea of its own State or of a third State. The right of hot pursuit may be exercised only by warships or military aircraft, or other ships or aircraft clearly marked and identifiable as being

on government service and authorized to that effect. Where a ship has been stopped or arrested outside the territorial sea in circumstances which do not justify the exercise of the right of hot pursuit, it shall be compensated for any loss or damage that may have been thereby sustained.