国家安全视角下的航行自由

Freedom of Navigation from the Perspective of National Security

《联合国海洋法公约》虽然规定了航行自由制度,但未解决军事航行活动与沿海国国防军事安全之间的冲突问题。这种冲突的化解需要借助于其他国际法律制度,特别是和平解决国际争端的法律制度。我国既有维护海洋主权的客观要求,又在海外具有越来越多战略利益,因而需要从总体战略上考虑对待航行自由的法律态度。为应对其他国家可能以维护海洋资源和生态环境安全为由,对航行活动进行单方面、不恰当的限制,我国还应积极倡导宽松的航行自由制度,充分运用该制度维护国家经济安全,为国家开展保障海上丝绸之路和能源通道安全的海外行动提供法律支撑。

Although the United Nations Convention on the Law of the Sea （UNCLOS） provides for the freedom of navigation, it attempts only to strike a balance between the sovereignty of coastal states and the freedom of navigation of maritime states, but is silent or ambiguous on the conflict between coastal states＇ defense security and foreign countries＇ military operations. UNCLOS does not prohibit foreign military ships or planes from engaging in military survey or surveillance activities in coastal states＇ Exclusive Economic Zones （EEZs）. It, however, empowers coastal states to take precautionary and preventive measures when foreign military operations threaten their national security. The resolution of the conflict between coastal states＇ national security and foreign countries＇ military operations calls for the employment of other international legal regimes and institutions, especially legal institutions for peaceful settlement of international disputes. China, as a big power with both objective need to pro- tect its maritime sovereignty and increasing strategic interests overseas, should adopt a comprehensive legal attitude towards the freedom of navigation on the basis of its national strategies. It should also actively advocate for more flexible policies on the freedom of navigation so as to prevent other coun- tries from unilaterally restricting the freedom of navigation of Chinese ships or planes on the excuse of protecting ocean resources and marine ecological environment. In conclusion, China should learn to flexibly utilize the legal principle of freedom of navigation to safeguard national security, protect sea- lane security, and promote its ＂Maritime Silk Road＂ blueprint.