论我国海洋法律制度与BBNJ协定接轨的理论分析与具体路径

Theoretical Analysis and Specific Paths of the Alignment of China's Ocean Law with the BBNJ Agreement

随着BBNJ协定的谈判通过,其获得越来越多国家(地区)的签署,生效之日指日可待。基于条约必须信守原则、BBNJ协定对国际海洋管理的重要影响以及我国建设海洋强国的现实需要,我国海洋法治与BBNJ协定接轨十分必要。从理论层面分析,要将构建海洋命运共同体作为指导思想,将促进接轨作为我国涉外法治建设的重点内容,将调整我国海洋法治的宏观立法原则作为促进接轨的立法基础。从具体实现路径来说,建议中国从立法、执法和司法三方面入手,一是在立法上加快海洋基本法的立法工作,修订现行海洋相关法律以与BBNJ协定相适应;二是在执法上优化行政执法机构的职能,以便与BBNJ协定的要求相连贯,确保国际规则有效实施;三是在司法上鼓励法院在判决中引用BBNJ协定,以法律判决促进国际条约的适用。

With the conclusion of the BBNJ Agreement negotiations and an increasing number of countries signing the agreement,the agreement is on the verge of coming into effect.Given the principle of pacta sunt servanda,the significant impact of the BBNJ Agreement on international marine management,and the practical needs of our country to become a maritime power,it is essential for China's ocean rule of law to align with the BBNJ Agreement.Theoretically,it is necessary to adopt the concept of a shared future for marine communities as the guiding principle,to prioritize alignment in the construction of China's foreign-related legal system,and to adjust the macro-legislative principles of China's marine rule of law as the legislative basis for promoting alignment.Practically speaking,it is recommended that China approach the alignment in the three aspects of legislation,law enforcement,and judiciary.The drafting of the Basic Marine Law should be accelerated and the current marine-related laws should be revised so as to align with the BBNJ Agreement.The functions of administrative law enforcement agencies should be optimized to align with the requirements of the BBNJ Agreement and ensure the effective implementation of international rules.Courts should be encouraged to refer to the BBNJ Agreement in their adjudications,using legal judgments to facilitate the application of international treaties.