美国“过度海洋主张”理论及实践的批判性分析

The US Theory of “Excessive Maritime Claims” and Its Practice: A Critical Analysis

美国以其所谓"过度海洋主张"理论为支撑,30多年来持续开展"航行自由行动",针对它所认为的其他国家提出的不符合《联合国海洋法公约》(简称《公约》)的海洋主张予以挑战。"过度海洋主张"理论缺乏《公约》基础,存在单方面解读《公约》、曲解《公约》条款、罔顾习惯国际法规则及"持续反对者"因素等瑕疵。而作为"过度海洋主张"理论具体实践的美国"航行自由行动"的实质是打着维护《公约》的旗号,行违反《公约》精神之实。"航行自由行动"将正常的"航行自由"嬗变为军舰的"横行自由",以美国自创的"国际水域"等概念对他国进行"长臂管辖",不仅不可能解决《公约》中存在的模糊争议,还会加剧海上争端。

Over the past 30 years, the United States has put forward the so-called theory of 'excessive maritime claims' and has applied the theory into the 'Freedom of Navigation'(FON) operations so as to challenge those maritime claims of other States that are deemed by the US as incompatible with the UNCLOS. An in-depth analysis of the theory of 'excessive maritime claims' reveals that the theory has several faults: it lacks the theoretical basis from the UNCLOS, it only represents the biased and unilateral interpretation of the UNCLOS by the US, it misinterprets the provisions of the UNCLOS, it fails to take into consideration the rules of customary international law, and it fails to consider the existence of the 'persist objector'. Meanwhile, as the practice of the theory of 'excessive maritime claims', the US FON operations also have several faults. The essence of the FON operations is by no means to safeguard the UNCLOS. These operations will undermine the authority of the UNCLOS. Moreover, the FON operations are indeed not the reasonable exercise of the 'freedom of navigation', but only reveals that the US navy intends to do whatever they want to do. The term 'international waters' coined by the US reflects that the US intends to exercise 'long-arm jurisdiction'. Therefore, the FON operations will not solve controversial issues in the UNCLOS, but only to exacerbate disputes.