宪法视野下的海权保护初探

The Perspective of the Constitution of Sea Power Protection

西方海权理论带有浓重的海洋霸权色彩。中国海权是海洋主权、海洋权利和制海权的统一,具有自卫性和有限性。我国海权的法律保护存在宪法关注缺失、立法相对滞后及体系不平衡等缺陷。海洋战略是一项基本国策,具有重大的宪法价值。宪法保护海权有其必要性,解决海岛海洋争端和提升我国海洋执法的正当性均需宪法提供明确的依据。十八大报告为海权入宪创造了契机,可通过增设涉海条款和授权普通法律来保护海权。

Western theories of sea power are endowed with a strong maritime hegemony. Chinese sea power, as the unity of the marine sovereignty and sea rights and command of the sea, is featured with self- defense and limited. The legal protection of the sea power in our country still has such problems as lack of constitutional coneem, lagging in legislation and unbalanced system. It＇s of necessity to involve constitution in the protection of sea power, which is beneficial to solve disputes on islands and waters and enhance the justifi- cation and legitimacy of the Marine law. The eighteen report of the Communist Party of China has created the opportunity for the sea right into the constitution, specifically to add marine clauses as direct protection and to empower common laws as indirect protection.