现代海洋法体系与中国的实践（下）| CHINA LEGAL SCIENCE 2018年第6期

【作者】金永明（上海社会科学院法学研究所研究员；中国海洋发展研究会海洋法治专业委员会副主任委员、秘书长；中国海洋发展研究中心海洋战略研究室主任）

【来源】CHINA LEGAL SCIENCE 2018年第6期

【声明】本文仅限学习交流使用，如遇侵权，我们会及时删除。

ON MODERN SYSTEM OF THE LAW OF THE SEA AND CHINA’S PRACTICE

Jin Yongming

TABLE OF CONTENTS

I. INTRODUCTION

II. DEVELOPMENT PROCESS AND BASIC CONTENT OF THE SYSTEM OF THE UNITED NATIONS CONVENTION ON THE LAW OF THE SEA

A. Development Process of the System of the United Nations Convention on the Law of the Sea

B. Basic Content of the System of the United Nations Convention on the Law of the Sea

III. SEVERAL BASIC PRINCIPLES OF THE SYSTEM OF THE UNCLOS

A. The Principle of Land Dominating the Sea

B. The Principle of the Freedom of the High Seas Especially the Freedom of Navigation and Overflight

C. The Principle of Distance

D. The Principle of Equity

E. The Principle of the Common Heritage of Mankind

IV. SPECIFIC PRACTICE OF CHINA IN ACCORDANCE WITH MODERN SYSTEM OF THE LAW OF THE SEA

A. The Relationship between the International Law and the Domestic Law

B. Specific Practice of China According to Modern System of the Law of the Sea

C. Disadvantageous Effect and Influence of China’s Internal Legal System on the Law

V. THE DEVELOPMENT TREND OF THE SYSTEM OF THE UNCLOS AND CHINA’S RESPONSE

A. The DevelopmentTrend of the System of the UNCLOS

B. China’s Countermeasures for Improving Internal Legal System on the Sea

VI. CONCLUSION

IV. SPECIFIC PRACTICE OF CHINA IN ACCORDANCE WITH MODERN SYSTEM OF THELAW OF THE SEA

As mentioned earlier, it is an important duty for a State party to theUNCLOS to incorporate principles and spirits contained in the modern system ofthe law of the sea into its internal law and make application, therefore thisthesis herein expounds the specific practice of China in the law of the seaafter brief introduction to the relationship between the international law anddomestic law.

A. The Relationship between the International Law and the Domestic Law

1. Theories on the Relationship between the International Law and theDomestic Law.- In theory, there are two schools of Monism and Dualism. TheMonism holds that the international law and the domestic law belong to the samelegal system; the Dualism considers that the international law and the domesticlaw are different legal systems. There are three theories on the effectivenessof the international law and the domestic law: the domestic law prevails overthe international law; the international law prevails over domestic law; theinternational law and the domestic law are independent from each other.

In fact, there will be no practical result from the debate on thetheories of the relationship between the international law and domestic law.Their actual pathways and concrete practices must be examined, so the importantthing is how every State applies rules of the international law in theirinternal legal order frameworks and how to resolve the conflict between rulesof international law and domestic law. That is the issue about the status ofthe international law in the domestic law and which one prevails when theinternational law and the domestic law conflict. The level and effectiveness ofthe international law in the domestic law are different because different Statehas different constitutional system, but it is undeniable that according toarticle 27 of the Vienna Convention on the Law of Treaty, a party may notinvoke the provisions of its domestic law as justification for its failure toperform a treaty. That means the domestic law may not prevail over a treaty,which is the so-called principle of forbidding to invoke the domestic law.

2.The Status of International Law Especially a Treaty in Chinese Laws. -Although the Constitution of China does not directly set forth the status of aninternational treaty in the Chinese legal system, it has provisions on powersand procedures of entering into a treaty, for example, paragraph 9 of article89 of the Constitution states that the State Council has the power to enterinto a treaty or agreement with foreign countries; The Standing Committee ofNational People's Congress decides the approval and repeal of a treaty andimportant agreement with foreign countries; The President approves and repealsa treaty and important agreement with foreign countries according to thedecision of the Standing Committee of National People's Congress. While the lawis made and amended by the Standing Committee of National People's Congress andpromulgated by the President of the People's Republic of China （PRC） according to the decisionof the Standing Committee of National People's Congress, so according to theaforesaid provisions of the Constitution, the power and procedure of enteringinto a treaty and the power and procedure of making a law are the same to greater extent.

Now that the Constitution does not clearly set forth the status of theinternational law in the Chinese legal system, it is necessary to make ananalysis of provisions on the international law in general laws of China. Theprovisions relating to the international treaty may be classified into thefollowing three types. Firstly, the domestic law clearly states that theinternational treaty shall apply directly. For example, article 19 of theTrademark Law of 1982, article 19 of the Inheritance Law of 1985, articles 239and 247 of the Civil Procedure Law of 1986, and article 18 of the Patent Law of1992. Secondly, the internal law clearly states that an international treatyprevails when the international treaty conflicts with the domestic law, forexample, article 142 of the General Provisions of Civil Law of 1986. Thirdly,the domestic law does not clearly set forth the direct application of aninternational treaty but make it applicable internally through amending orsupplementing the domestic law.

In order to implement a treaty internally, it is necessary to endow itwith internal effectiveness. There are two modes for incorporating a treatyinto the domestic law: the mode of reception or direct application, i.e., themode of recognizing the effectiveness of a treaty internally by promulgatingit, and the mode of transformation, i.e., the mode of transforming provisionsof a treaty into domestic laws through legislative procedures by legislature.That is to say, the international law especially the treaty gains its internaleffectiveness through the mode of recognition or transformation. The mode oftransformation especially complies with China's practice in the law of the sea.

B. Specific Practice of China According to Modern System of the Law ofthe Sea

China, according to customary international law and modern law of thesea, especially the basic principles and content of the system of the UNCLOS,enacts and implements the domestic law of the sea. The specific practice ismainly reflected in the following several aspects:

1. Legislation （Policies） and Core Content on theGeneral and Principled Systems.- The first is the Declaration of theGovernment of the People's Republic of China on China's Territorial Sea of1958. In this declaration, it sets forth that the straight baselines methodshall be employed to determine the baselines of territorial sea of the mainlandand coastal islands of China, that the breadth of China's territorial sea shallbe twelve nautical miles; meanwhile, foreign aircrafts and military vesselscannot enter into the territorial sea and the airspace of the territorial seaof China without the approval of the government of the PRC; any foreign vesselsmust abide by relevant laws and orders of the government of the PRC when itnavigates in the territorial sea of China.

The second is the Declaration of the Government of the People's Republicof China on the Baselines of the Territorial Sea of 1996. In this declaration,China announces the baselines of part of its territorial sea adjacent to themainland and those of territorial sea adjacent to its Xisha Islands. Thesebaselines are composed of straight lines and the declaration states that thegovernment of the PRC will announce the remaining baselines of the territorialsea of the PRC at another time.

The third is the Decision of the Standing Committee of the NationalPeople's Congress on Approving the United Nations Convention on the Law of theSea of 1996. The content of this declaration is as follows: Firstly, the PRCwill negotiate with States with opposite or adjacent coasts to delimit theirrespective marine jurisdiction according to the principle of equity on thebasis of international law. This shows the requirement of the system of theUNCLOS of delimitation in the principle of equity. Secondly, the PRC reiteratesthat the UNCLOS sets forth the innocent passage in the territorial sea withoutprejudice to the coastal State's right of asking foreign warships to obtainadvance permission from it or give advance notice to it for their passage inthe territorial sea. Such content is not exactly the same as the terms in theDeclaration of the Government of the People's Republic of China on China'sTerritorial Sea.

The fourth is the Statement of the People's Republic of China on theBaselines of the Territorial Sea of Diaoyu Dao and Its Affiliated Islands of2012. The baselines are classified into two types: the first group of baselinesjoins Diaoyu Dao, Huangwei Yu, Nanxiao Dao, Beixiao Dao, Nan Yu, Bei Yu and FeiYu; the second group is the straight baselines determined around Chiwei Yu.

2. The Legislation and Core Content on the Basic Sea Area Systems.- Thefirst is the Law of the People's Republic of China on the Territorial Sea andthe Contiguous Zone of 1992. This basic law of the sea area states that theextent of the PRC's territorial sea measures 12 nautical miles from thebaseline of the territorial sea. The PRC's baseline of the territorial sea isdesignated with the method of straight baselines, formed by joining the variousbase points with straight lines. To enter the territorial sea of the PRC,foreign military ships must obtain permission from the government of the PRC.

The second is the Exclusive Economic Zone and Continental Shelf Act of1998. It sets forth the scope of the exclusive economic zone which extends to adistance of 200 nautical miles from the baselines from which the breadth of theterritorial sea is measured; the continental shelf is the natural prolongationof the land territory to the outer edge of the continental margin, or to adistance of 200 nautical miles from the breadth of the territorial sea ismeasured where the outer edge of the continental margin does not extend up tothat distance. Such provisions are made according to the principle of distancein the system of the UNCLOS.

The third is the Law of the People's Republic of China on theAdministration of the Use of Sea Areas of 2002. According to paragraph 3 ofarticle 2, this law shall be applicable to any exclusive activities relating tothe continuous use of a specific sea area over three months within the inlandwaters or territorial seas of the PRC. Meanwhile, articles 4 to 6 set forththat China adopts the marine function zoning system, the information system forthe administration of the use of sea areas, the registration system for theright to the use of sea areas and the statistics system for the use of the seaareas.

The fourth is the Law of the People's Republic of China on theExploration and Development of Resources in Deep Seabed Areas of 2016. Forperforming a State Party's obligation to sponsor that natural or juridicalpersons which possess the nationality of the State Party or are effectivelycontrolled by the State Party carry out activities in the Area according to theUNCLOS, and make clear that the sponsoring State shall take measures toeffectively control the sponsored contractor's activities in the Area, as aspecific measure of the State Party, China enacted the aforesaid law on February26, 2016 for performing the abovementioned obligations and requirements of theUNCLOS.

3. Legislation and Core Content on Systems of Functions of Sea Areas.-The first is the Law of the People's Republic of China on Marine EnvironmentProtection of 2016. According to article 2, this law shall apply to theinternal seas and territorial seas, contiguous zone, exclusive economic zone,the continental shelf of the PRC and all other sea areas under the jurisdictionof the PRC. This law shall also apply to the activity conducted beyond the seaareas under the jurisdiction of the PRC that causes pollution to sea areaswithin the jurisdiction of the PRC. Meanwhile, this law gives correspondingprovisions on the marine environment supervision management, marine ecologyprotection, prevention and treatment of the pollution damage of land-sourcedpollutants to marine environment, prevention and treatment of pollution damageof coastal engineering and marine engineering construction projects to marineenvironment and the prevention and treatment of pollution damage of vessels andrelevant operating activities to marine environment as well as punishment forvarious law-breaking activities.

The second is the Law of the People's Republic of China on MaritimeTraffic Safety of 1984. According to articles 1 to 3, this law aims tostrengthen the management of maritime traffic; ensure the safety of vessels,installations, human life and property; and safeguard the rights and interestsof the state. This law shall apply to all vessels, installations and personneland to the owners and managers of such vessels and installations that navigate,berth or operate in the coastal waters of the PRC. The harbor superintendenceagencies of the PRC shall be the competent authorities responsible for theunified supervision and administration of traffic safety in the coastal waters.

The third is the Provisions of the People's Republic of China on theAdministration of Foreign-related Marine Scientific Research of 1996. Article 4of these provisions states that a foreign party, such as an internationalorganization, a foreign organization or an individual, intending to conductmaritime scientific research in the internal seas or territorial seas of thePRC should undertake it in collaboration with a Chinese party. In other seaareas under the jurisdiction of the PRC,a foreign party may conduct maritime scientific research independently or incollaboration with a Chinese party. Such activity shall be subject to theapproval of the State Administrative Department of Marine Affairs, or bereported by the State Administrative Department of Marine Affairs to the StateCouncil for the approval, and shall be in conformity to laws and regulations ofthe PRC. Meanwhile, article 5 provides the date of receiving writtenapplication, the examination authority and the date of deciding whether togrant the approval and other issues or not.

4. Legislation and Core Content on Special Systems on the Law.- Forexample, the Law of the People's Republic of China on the Protection of Islandsof 2010. This law aims to protect the ecosystems of islands and theirsurrounding waters, rationally develop and exploit the natural resources ofislands, protect the oceanic rights and interests of the State, and promote sustainableeconomic and social development. The term “islands” as mentioned in this Lawrefers to the naturally formed land areas which are surrounded by seawater andabove the surface of water at high tide, including inhabited islands anduninhabited islands. The State shall apply the principle of “scientificplanning, giving priority to protection, rational development and sustainableutilization” to islands. Meanwhile, according to article 22, the State shallprotect the military facilities established on islands, and it shall beprohibited to damage or endanger such military facilities. The State shallprotect the public facilities legally established on islands for navigationassistance or guidance, surveying, meteorological observation, marine monitoring,seismic monitoring, etc., and it shall be prohibited to damage, move withoutauthorization or impede the normal use of such facilities. As for anuninhabited island, article 28 states that the status quo of an uninhabitedisland shall be maintained if the use of it has not been approved; and suchactivities as quarrying, excavating sea sand, felling trees, production,construction and tourism shall be prohibited. Where the development andutilization of an uninhabited island involves the utilization of any specialpurpose island, or really needs any sea filling to connect islands or connectthe island with continent or any serious change of the natural terrain orlandform of the island, it shall be subject to the examination and approval ofthe State Council. Certainly, the State shall apply special protection to theislands where the territorial sea base points are located, islands for thepurpose of national defense, islands within the marine natural reserves andother islands for special purposes or with special conservation value. Suchprovisions constitute the core content of islands protection.

5. Legislation （Policies） and Core Content onMarine Dispute Settlement Mechanism.- It is known that there are disputes overmarine and territorial sovereignty and disputes over sea areas delimitationbetween China and many countries which are especially reflected in the East ChinaSea issues and the South China Sea issues. China sets forth in article 2 of theDecision of the Standing Committee of National People's Congress on Approvingthe United Nations Convention on the Law of the Sea and paragraph 3 of article2 of the Law of China on Exclusive Economic Zone and the Continental Shelf thatthe delimitation shall be made by agreement according to the principle ofequity. In addition, other documents also set forth or show some principledprovisions on dispute settlement which are mainly as follows:

First, China submitted a written declaration to the General-Secretary ofthe US on August 25, 2006 according to article 298 of the UNCLOS, pointing outthat the Chinese government does not accept the jurisdiction of anyinternational justice or arbitration set forth in section 2 of Party XV of theUNCLOS over any dispute （such as sea boundary delimitation, territorialdispute, a dispute concerning military activities） set forth in items （a），（b） and （c） of paragraph 1 of article 298 of the UNCLOS. Inother words, China excludes the possibility of applying international justiceor arbitration to the settlement of marine disputes concerning importantnational interests. Such position and attitude are especially shown in handlingthe South China Sea Arbitration case. Second, on December 14, 2012, the PRCsubmitted to the UN Secretary-General an information on the outer limits of thecontinental shelf in part of the East China Sea for supplementing the contentof Preliminary Information Indicative of the Outer Limits of the ContinentalShelf beyond 200 Nautical Miles of the People's Republic of China to the UnitedNations addressed to the UN Secretary-General on May 11, 2009 and fulfillingthe duty.

Besides the foresaid legal conducts performed according to the rules andrequirements of the UNCLOS, China also has some specific national practices inmaintaining its marine rights and interests, which are mainly reflected in thefollowing aspects:

Firstly, regarding the status of Okinotori of Japan, the PermanentMission of China to the United Nations submitted a written declaration of itsposition on Okinotori to the UN Secretary-General on February 6, 2009, pointingout that Okinotori is a reef not an island, so it cannot be served as a basepoint for claiming the continental shelf and outer continental shelf, and theCommission on the Limits of the Continental Shelf has no power to examinerelevant materials claiming the outer continental shelf on the basis of theOkinotori.

Secondly, regarding Vietnam and Malaysia's joint submission concerningouter limits of continental shelf on May 6, 2009 and Vietnam's independentsubmission concerning the outer limits of the continental shelf on May 7, 2009,the Permanent Mission of China to the United Nations submitted a letter to theUN Secretary-General on May 7, 2009, pointing out that China has indisputablesovereignty over South China Sea islands and adjacent sea areas and hassovereign rights and jurisdiction over relevant sea areas and their sea bed andsubsoil. China's such position is known to the international community. Inorder to deal with the letter sent from the Ministry of Foreign Affairs ofPhilippines to Chinese Embassy in the Philippines on April 4, 2011, allegingthat the Republic of the Philippines has sovereignty and jurisdiction over theKalayaan Island Group, the Permanent Mission of China to the United Nationssubmitted a letter to the UN Secretary-General again on April 4, 2011,emphasizing that China has indisputable sovereignty over South China Seaislands and adjacent sea areas and has sovereign rights and jurisdiction overrelevant sea areas and their sea bed and subsoil. China's sovereignty andrelated rights and jurisdiction enjoy sufficient historical and legalfoundations. The above-mentioned positions and views are reconfirmed in theStatement of the Government of the People's Republic of China on China'sTerritorial Sovereignty and Maritime Rights and Interests in the South ChinaSea on July 12, 2016.

Thirdly, regarding the advisory opinion on the issue of responsibilitiesand duties of the State sponsoring an individual and entity's activities in theArea given by the Seabed Disputes Chamber of the International Tribunal for theLaw of the Sea on February 1, 2011, the Department of Treaty and Law ofMinistry of Foreign Affairs of China submitted the Written Opinion of China onthe Issue of Responsibilities and Duties of the Sponsoring State for Activitiesin the Area to Seabed Disputes Chamber of the International Tribunal for theLaw of the Sea. Such written opinion was generally accepted in the advisoryopinion of Seabed Disputes Chamber of the International Tribunal for the Law ofthe Sea, making contributions to the improved implementation of the regime ofinternational seabed area.

Fourthly, in order to reasonably manage the South China Sea issues, Chinasigned the Declaration on the Conduct of Parties in the South China Sea withASEAN on November 4, 2002, concluded the Guidelines for the Implementation ofthe DOC on July 20, 2011, promulgated the Joint Statement of the ForeignMinisters of ASEAN Member States and China on the Full and EffectiveImplementation of the Declaration on the Conduct of Parties in the South ChinaSea on July 25, 2016. Meanwhile, China and ASEAN initiated the consultation andnegotiation on formulating a Code of Conduct in the South China Sea in August2013. The implementation of such measures and documents stabilizes thesituation of South China Sea issues and brings about positive results.

In addition, China and Vietnam signed the Agreement between the People'sRepublic of China and the Socialist Republic of Vietnam on the Delimitation ofthe Territorial Seas, the Exclusive Economic Zones and Continental Shelves inBeibu Bay on December 25, 2000 and the Agreement between the People's Republicof China and the Socialist Republic of Vietnam on Fisheries Cooperation inBeibu Bay of 2004. China and Japan signed the Agreement between the People'sRepublic of China and Japan on the Fisheries of 2000, promulgated theSino-Japanese Principled Consensus on the East China Sea Issues of 2008, Chinaand Japan Reaching a Four-point Principled Agreement on Treating and ImprovingSino-Japanese Relations of 2014 and the Memorandum of Understanding betweenMinistry of National Defense of China and Ministry of Defense of Japan on theMaritime and Air Safety Liaison Mechanism of 2018. China and South Korea signedthe Agreement between the Government of the People's Republic of China and theGovernment of the Republic of Korea on Fisheries of 2001 and carried outnegotiation on delimitation in the Yellow Sea, etc. The above-mentioned resultsand documents play a proper role in effective settlement and delay of disputesover the environment of the sea and disputes over the sea adjacent to China,reflect the practical role and effect of China in settling disputes byinsisting on peaceful means especially practical means, delaying disputesthrough risks control mechanism.

C. Disadvantageous Effect and Influence of China's Internal Legal Systemon the Law

As mentioned earlier, although China, according to the modern system ofthe law of the sea, especially the system of the UNCLOS, continually enacts andenriches the internal system of the law of the sea, some of provisions andregimes receive challenges from the international community especially the US.

The first one is the challenge to the application of straight baselinesin the Xisha Islands. China announced the straight baselines of Xisha Islandson May 15, 1996, which was challenged by the US who considered it as ExcessiveMaritime Claims and published a report named Limits in the Seas, StraightBaseline Claim: China （No. 117） on June 9, 1996. The USalso challenges China's laws and rules in recent time through its warships'many actions of exercising the so-called freedom of navigation in theterritorial sea of Xisha Islands.

The second one is the challenge to the procedure of warships' innocentpassage in the territorial sea. The US mainly challenges China's practice ofapplying advance permission and notice given to the coastal state in foreignwarships' innocent passage in the territorial sea which is set forth in theDeclaration of on China's Territorial Sea, the Law of China on the TerritorialSea and the Contiguous Zone, the Decision on Approving the UNCLOS and considersthat these provisions are contrary to the established practices of theinternational community and insisted the position and conduct of the theory offreedom of navigation that there is no need to obtain an advance permission orgive notice to the coastal state for a warship's innocent passage in theterritorial sea.

The third one is the challenge to jurisdiction over safety affairs in thecontiguous zone. The US holds that the provision of article 13 of the Law onthe Territorial Sea and the Contiguous Zone on China's authority to exercisepowers within its contiguous zone for the purpose of preventing or punishinginfringement of its security is contrary to the establish practices of manystates and claims that the provision of China on preventing or punishinginfringement of its security is not in conformity to rules of the system of theUNCLOS.

The fourth one is the challenge to China's island and reef constructionand military deployment in the South China Sea especially in Nansha. The USconsiders that China's construction of its occupied Nansha islands and reefsdamages surrounding marine environment; especially there is a trend ofmilitarization of the construction project of China in Nansha islands and reefsafter the completion of land reclamation projects seriously threatening otherstates' security especially the navigation security. Meanwhile, the US holdsthat China cannot claim more sea areas under its jurisdiction according to itsoccupied Nansha islands and reefs because there are different and oppositeviews on the status of Nansha islands and reefs. In addition, the US Departmentof State published a report named Limits in the Sea, China: Maritime Claims inthe South China Sea （No. 143） on December 5, 2014 andholds that China shall define the nature of the dotted line of the South ChinaSea and the legal status of waters within such line more clearly.

The fifth one is the challenge to the binding force of the South ChinaSea Arbitration Award. Some countries led by the US considers that China shallcomply with the Final Award of the South China Sea Arbitral Tribunal of 2016because they think that the award of the arbitral tribunal is binding uponChina and China must abide by it.

V. THE DEVELOPMENT TREND OF THE SYSTEM OF THE UNCLOS AND CHINA'S RESPONSE

From the analysis of the content and basic principles of the system ofthe UNCLOS herein, the author holds that the system of the UNCLOS shows thefollowing development trend.

A. The Development Trend of the System of the UNCLOS

The development trend of the system of the UNCLOS is mainly reflected inthe following aspects: the first one is the developing nature of thelegislative mode. It can be concluded from the development and the content ofthe system of the UNCLOS that the system of the UNCLOS is supplemented andrefined by adopting the method of improvement through formulating anImplementation Agreement, which can be regarded as an innovation in legislativemode. Such practice not only avoids the difficulty in applying the Amendmentprocedure of article 312 and the simplified procedure of article 313 of theUNCLOS but also enjoys efficiency. Meanwhile, such practice is in conformity tothe norms of articles 30 and 59 of the Vienna Convention on the Law of Treatyand enjoys reasonability. The second one is the developing nature oflegislative idea. It mainly includes limiting the principle of the freedom ofthe high seas, applying the principle of the common heritage of mankind andstrengthening the management of international organizations on the sea for thepurpose of realizing the goal of comprehensive management of the sea andeliminating drawbacks of jurisdiction over a single marine affair. Such changesin legislative idea are especially reflected in the progress of discussion andexamination of the issue of the conservation and sustainable use of marinebiological diversity of areas beyond national jurisdiction. The third one is thenecessity of multi-dimensional cooperation. In the system of the UNCLOS, thereset forth many modes and pathways of cooperation.

In terms of the subjects, they include three types such as cooperationbetween related states, for example, articles 66, 94, 118 and 130, cooperationamong all states, for example, articles 100, 108, 117 and 303, and cooperationbetween a state and an international organization, for example paragraphs 4-5of articles 41, articles 61, 64, 65, 197, 200, 201, and 242 to 244.

In terms of the content, they involve cooperation between a state and aninternational law on the designation of sea lanes and traffic separationschemes in straits used for international navigation, conservation andmanagement of the living resources of the exclusive economic zone, protectionand preservation of the marine environment, marine scientific research and soon; cooperation among all states on issues such as the repression of piracy onthe high seas, the suppression of illicit traffic in narcotic drugs andpsychotropic substances engaged in by ships on the high seas contrary tointernational conventions, taking measures for the conservation of the livingresources of the high seas, the protection of objects of an archaeological andhistorical nature found at sea; cooperation between related states on issuessuch as anadromous stocks in the exclusive economic zone, the jurisdiction andcontrol of the flag state over ships flying its flag and the inquiry into everymarine casualty or incident of navigation on the high seas, the conservationand management of the living resources of the high seas, rights of access ofland-locked states to and from the sea and avoidance of delay of traffic intransit and other technological difficulties when exercising the freedom oftransit. It is obvious that there are many levels and aspects of cooperationand requirements, which is not only decided by the comprehensiveness,specialness and function of the sea but also the understanding of theinternational community on cooperation principle and the application summary ofthe international community of marine management.

B. China's Countermeasures for Improving Internal Legal System on the Sea

As mentioned earlier, although China, according to modern system of thelaw of the sea, especially the system of the UNCLOS, continually enacts andenriches internal system of the law of the sea, which plays a positive role inmanagement and development of marine affairs to some extent, but there is alsoa situation that the international community especially the US challenges theprinciples and regimes of the law of the sea of China. In order to furtherpromote the modernization of marine governance systems and capabilities ofChina and make contributions to building an ocean power, it is of specialimportance to take corresponding measures of improving legal system of the seafor realizing the goal of ruling the sea by law.

Firstly, the status of the sea shall be established in the national legalsystem. From the content of the Constitution of China, there is no expressionof the status of the sea in the national legal system, so for improving thesustainable function of the sea, it is necessary to upgrade its status. The keyway would be incorporating provisions into the Constitution that the sea is apart of natural resources and shall be protected, or formulating the Basic Lawof the Sea to define or regulate the status of the sea, so as to establish andimprove the status of the sea.

Secondly, the emphasis shall be put on the research into provisions ofthe law of sea challenged by other countries. As mentioned above, othercountries have doubts about China's straight baseline system in Xisha, theprocedural permission or notice system for warships' innocent passage in theterritorial sea, the permission system for military activities in the exclusiveeconomic zone, therefore, China shall enhance communication and coordinationwith other countries on these disputed issues on the basis of continuallylearning from other countries' practices, make various preparations for furtherenriching and improving the UNCLOS regimes including formulating a newImplementation Agreement and properly adjusting relevant internal legal system.

Thirdly, laws and rules on functional affairs of the sea shall be made asa supplement. In order to explore and exploit the marine space and resources ina sustainable way, it is especially important to strengthen research anddevelopment of marine science and technology, which is also the key to buildingChina into an ocean power, because marine science and technology play animportant supporting role in exploring and exploiting marine space andresources including developing the marine economy. Therefore, regardingfunctional affairs of the sea, China shall enhance and improve regulations onthe administration of foreign-related marine scientific research, and carry outinvestigative, research and legislative works for enacting laws such as the lawon marine science and technology and law on ocean safety.

Fourthly, the marine system and mechanism shall be improved for providinga guaranty. In order to improve the modernization level of national governancesystems and capacities, China reforms its marine mechanism and institutions, soit is of importance guaranteeing significance for building an ocean power andcomprehensively managing marines affairs to seize this opportunity of nationalinstitutional reform, coordinate and clarify powers and functions ofsea-related administration authority （e.g. National Committee ofMarine Affairs, Ministry of Natural Resources, Ministry of Ecology andEnvironment, Ministry of Agriculture and Rural Affairs, General Administrationof Customs and China Coast Guard）， and further enact andimprove marine laws and rules such as the Basic Law of the Sea andOrganizational Law of China Coast Guard on the basis of the Decision on theExercising of the Marine Right Safeguarding and Law Enforcement Functions andPowers by the China Coast Guard of 2018.

VI. CONCLUSION

From the content and development trend of the system of the UNCLOS, it isespecially important to enrich and improve the principles and systems of thelaw of the sea of China by further learning from the development process of thesystem of the UNCLOS and practical experiences of other countries. AlthoughChina has gradually improved its internal legal system on the sea according tothe system of the UNCLOS, there still are some difficulties and challenges hardto overcome. China's identity as an adaptor and a conformist in the practice ofthe law of the sea for many years shall be adjusted properly in terms ofcognition and role by combining China's current status and function in theinternational community. Namely, China will transform its role and position inthe following aspects during the process of establishing and rebuilding marineorder and rules: mainly from a conformist to a formulator of marine rules, froma “breaker” （which is shown in its policies on and attitudeto South China Sea Arbitration and the Award） to a follower of marinerules, from the vagueness to the accuracy of marine rules, from an implementerto a supervisor of marine issues, from the distinctiveness to the generality ofmarine rules, from a receiver to a provider of marine rules. In order torealize the above-mentioned goal of role and position, especially to become aleader of maintaining marine order and establishing marine rules and a providerof marine public products, China needs to take many measures in a focused andstep-by-step manner and make continuous efforts, especially shall strengthenresearch into theories and relevant judicial cases of the system of the UNCLOS,enrich and improve legal system on the sea by combining national practices.Therefore, China takes a heavy burden and embarks on a long road in maintainingthe marine order, improving marine rules and strengthening marine managementmechanism.